text:
    MONTANA METAL BUILDINGS, INC., Plaintiff and Respondent, v. DAVID A. SHAPIRO, Individually and d/b/a BRIDGER AVIATION SERVICES, Defendant and Appellant.
    No. 96-661.
    Submitted on Briefs April 3, 1997.
    Decided July 15, 1997.
    54 St.Rep. 731.
    283 Mont. 471.
    942 P.2d 694.

      For Appellant: Robert Cameron, Gregory O. Morgan; Morgan, Cameron & Weaver Bozeman.
    For Respondent: Steven R. Milch; Crowley, Haughey, Hanson, Toole & Dietrich, Billings; Terry B. Cosgrove, Michael E. Frank; Crowley, Haughey, Hanson, Toole & Dietrich, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

David A. Shapiro (Shapiro) appeals from the order and decree entered by the Eighteenth Judicial District Court, Gallatin County, which granted the cross-motion for summary judgment filed by Montana Metal Buildings, Inc. (MMB) and foreclosed its construction lien. We reverse.

The issue on appeal is whether the District Court erred in granting MMB’s cross-motion for summary judgment.

FACTUAL BACKGROUND

On April 14,1994, MMB submitted a bid proposal to Shapiro, doing business as Bridger Aviation Services, for the construction of a 60’ x 80’ metal building on premises leased by Shapiro at the Three Forks Airport. Shapiro accepted the bid proposal and MMB began construction. Thereafter, MMB served a Notice of Claim and Construction Lien (Lien) on Shapiro on July 31, 1995. It specified that MMB claimed a lien against Shapiro’s property in the amount of $26,889.43, as the balance due for materials and labor used in the construction of the metal building.

MMB subsequently sued Shapiro in District Court, seeking judgment in the amount of $26,889.43, plus interest on that amount from July 31, 1995, and an order of foreclosure on the Lien. In his answer to the complaint, Shapiro denied that MMB was entitled to the relief requested and affirmatively alleged that he did not owe MMB any additional payments.

Shapiro subsequently moved for summary judgment, asserting that the Lien was fatally flawed and, therefore, unenforceable as a matter of law. The bases for his motion were that the Lien insufficiently described the property to which it purported to attach and that statutory notice requirements had not been met. He filed affidavits in support of his motion. MMB opposed Shapiro’s motion, contending that the Lien sufficiently described the property and that the notice provisions did not apply. MMB also filed a cross-motion for summary judgment, relying on its brief in opposition to Shapiro’s motion and the affidavit of its president and requesting entry of judgment in its favor against Shapiro for the amounts prayed for in its complaint.

At the hearing on the summary judgment motions, the attorneys for both parties presented their arguments for and against the validity of MMB’s Lien. Neither party presented testimony, although MMB entered a photograph of the Bridger Aviation Services building it had constructed for Shapiro into evidence.

The District Court subsequently entered a written order denying Shapiro’s motion and granting MMB’s motion. The court determined that no issues of material fact existed in the case and decreed that the amounts listed in MMB’s complaint were due and owing, that they were a first and prior lien on the property and that MMB’s Lien be foreclosed. The District Court certified its order as a final judgment for purposes of appeal pursuant to Rule 54(b), M.R.Civ.P, and Shapiro appeals that portion of the order which granted MMB’s cross-motion for summary judgment and ordered foreclosure of the Lien.

STANDARD OF REVIEW

Our standard in reviewing a district court’s summary judgment ruling is de novo; we use the same Rule 56, M.R.Civ.P, criteria as the district court. Clark v. Eagle Systems, Inc. (1996), 279 Mont. 279, _, 927 P.2d 995, 997 (citations omitted). Rule 56(c), M.R.Civ.P., provides, in pertinent part, that

[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Summary judgment is an extreme remedy which should never be substituted for a trial if a material factual controversy exists. Clark, 927 P.2d at 997 (citations omitted).

The party seeking summary judgment must establish, in light of the pleadings and other evidence before the court, the absence of any genuine issue of material fact which would allow the nonmoving party to recover and entitlement to judgment as a matter of law. Clark, 927 P.2d at 997-8 (citations omitted). If, but only if, the party seeking summary judgment meets this burden, the nonmoving party must come forward with substantial and material evidence raising a genuine issue of material fact. Clark, 927 P.2d at 998 (citation omitted). “[A]ll reasonable inferences that might be drawn from the offered evidence should be drawn in favor of the party who opposed summary judgment.” Clark, 927 P.2d at 998 (citations omitted).

DISCUSSION

Did the District Court err in granting MMB’s cross-motion for summary judgment?

Shapiro argues that MMB did not establish the absence of genuine issues of material fact regarding entitlement to the relief prayed for in its complaint. Specifically, he contends that MMB presented no testimony or other evidence establishing that he owed the amount set forth in MMB’s Lien and prayed for in the complaint, or any other amount. Because his answer to the complaint put the amount MMB sought to recover at issue, Shapiro asserts that genuine issues of material fact remain for trial which preclude summary judgment for MMB. Thus, we first address whether MMB met its initial burden as the party moving for summary judgment.

MMB’s complaint alleged, in pertinent part, that it had an interest in certain property by virtue of the Lien attached to, and incorporated by reference in, the complaint. It also alleged that Shapiro owed it $26,889.43, plus interest, as reflected on invoices billed to Shapiro for the labor and materials used in the construction of the metal building. Copies of the invoices also were attached to, and incorporated by reference in, MMB’s complaint. As a result of Shapiro’s failure to pay, the allegations continued, MMB filed the Lien. The effect of attaching and incorporating the Lien and the invoices is to make those attachments a part of the complaint for all purposes. Rule 10(c), M.R.Civ.R; see Gallatin Trust and Savings Bank v. Darrah (1968), 152 Mont. 256, 262, 448 P.2d 734, 737.

In his answer to the complaint, Shapiro denied that the described property was subject to MMB’s Lien, denied that MMB had an interest in the property and denied that he owed the amount indicated in the invoices. Shapiro affirmatively asserted that he owed no further payments to MMB. The denials and affirmative allegation in Shapiro’s answer effectively controverted the factual allegations in MMB’s complaint on which its prayer for relief was based, thus putting those allegations in issue. See Rule 8(b), M.R.Civ.R; Brown v. Ehlert (1992), 255 Mont. 140, 146, 841 P.2d 510, 514.

Rule 56(c), M.R.Civ.R, authorizes summary judgment “ifthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” It is clear from MMB’s complaint and Shapiro’s answer in this case that MMB was not entitled to summary judgment based on the pleadings because the allegations on which MMB’s prayer for relief was based were put at issue by Shapiro’s answer. In other words, the denials of MMB’s material allegations in Shapiro’s answer created genuine issues of material fact and put MMB to its proof. The question then becomes whether MMB came forward with evidence — via discovery, affidavits or otherwise — to overcome Shapiro’s denials and establish the absence of genuine issues of material fact. See Rule 56(c), M.R.Civ.P. We conclude that it did not.

MMB submitted the affidavit of its president, Donald Jones. Jones’ affidavit was directed at Shapiro’s argument that the Lien was materially defective in that it insufficiently described the property to which it purported to attach; in that regard, Jones stated only that MMB provided materials and labor for the construction of the Bridger Aviation Services metal building and identified the building by location and description. Although MMB’s Lien is mentioned in the affidavit, no statements are made therein that Shapiro owed any amount of money to MMB. In addition to the affidavit, MMB admitted a photograph of the Bridger Aviation Services building it had constructed for Shapiro into evidence at the hearing on the summary judgment motions. Like Jones’ affidavit, the photograph was advanced solely to counter Shapiro’s argument about the sufficiency of the property description.

The only other items of record which relate to MMB’s motion for summary judgment are its brief filed in the District Court and its counsel’s arguments at the hearing. The brief and arguments also related solely to whether MMB’s Lien was, as Shapiro contended, materially defective; they did not touch on MMB’s entitlement to judgment in the amounts prayed for in the complaint. In any event, however, proof is required to establish the absence of genuine issues of material fact; a party may not rely on the arguments of counsel. City of Bozeman v. AIU Ins. Co. (1993), 262 Mont. 370, 378, 865 P.2d 268, 273.

MMB contends that it presented the District Court with an appropriate evidentiary basis to establish the absence of genuine issues of material fact in the form of the Lien and the invoices attached to its complaint. These documents were not attached to MMB’s briefs submitted on the summary judgment motions, were not otherwise filed by MMB and were not admitted into evidence at the hearing on the motions. While MMB’s argument in this regard is not altogether clear, it is clear that the Lien and the invoices became part of the complaint, as discussed above, and were not separately filed or submitted by MMB. To that extent, they were not evidence of the matters contained therein, but merely allegations of the complaint. See Gallatin Trust and Savings Bank, 448 P.2d at 737. Moreover, as discussed above, the denials of those allegations in Shapiro’s answer put the allegations at issue and required additional proof by MMB of the absence of genuine issues of material fact. MMB advanced no such additional proof.

MMB also argues that, since Shapiro did not object to the documents attached to its complaint and which it purports to have used as the basis for its cross-motion, he “waived any right to object to the evidentiary basis in support of MMB’s cross-motion for summary judgment.” We observe that this argument presupposes the existence in the record of an evidentiary basis for MMB’s motion separate and apart from the complaint and attachments thereto. As previously noted, no such evidentiary basis exists in the record. As a result, we need not address the cases on which MMB relies for its waiver theory.

As the party moving for summary judgment, MMB had the initial burden of producing evidence to establish the absence of any genuine issue of material fact with regard to its entitlement to judgment as a matter of law on its complaint. See HKM Assoc. v. Northwest Pipe Fittings, Inc. (1995), 272 Mont. 187, 193, 900 P.2d 302, 305. It could not rely on the allegations in its complaint, where those allegations had been denied, or the arguments of its counsel. See AIU Ins. Co., 865 P.2d at 273. The record reflects that MMB did not satisfy its burden.

The District Court determined that, as a result of the cross-motions for summary judgment, no issues of material fact existed. However, the fact that both parties have moved for summary judgment does not establish, in and of itself, the absence of genuine issues of material fact. Duensing v. Traveler’s Companies (1993), 257 Mont. 376, 385, 849 P.2d 203, 209. Cross-motions for summary judgment may support a conclusion that no genuine issues of material fact exist when the parties are moving for summary judgment on precisely the same legal issue or theory. In this case, for example, had MMB moved for partial summary judgment on the sole issue of the legal validity of its Lien, its cross-motion may have sufficiently mirrored Shapiro’s motion so as to support the District Court’s determination that the mere existence of the cross-motions established the absence of material factual issues.

Here, however, MMB’s motion for summary judgment went beyond asserting entitlement to judgment on the issue of the legal validity of its Lien. It requested judgment for the dollar amounts and other relief prayed for in the complaint and, thus, brought into issue whether Shapiro was actually indebted to MMB for those amounts. As a result, MMB bore the burden of establishing the absence of genuine issues of material fact regarding the amounts owed by Shapiro and, as discussed above, it did not satisfy that burden. The District Court’s misapprehension that cross-motions for summary judgment necessarily preclude the existence of genuine issues of material fact led it into error in this case.

We hold that the District Court erred in granting MMB’s cross-motion for summary judgment and in ordering that MMB’s Lien be foreclosed.

Reversed.

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


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    IN RE THE LICENSE REVOCATION OF JEFFREY H. GILDERSLEEVE
    No. 96-513.
    Submitted on Briefs June 19, 1997.
    Decided July 17, 1997.
    54 St.Rep. 735.
    283 Mont. 479.
    942 P.2d 705.

      For Appellant: Steve Fletcher, Bulman Law Associates, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Brenda Nordlund, Assistant Attorney General; Helena; Tom Orr, Assistant City Attorney, Missoula.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

The appellant, Jeffrey H. Gildersleeve, petitioned the District Court for the Fourth Judicial District in Missoula County for a hearing at which to consider reinstatement of his motor vehicle operator’s license pursuant to § 61-8-403, MCA. After hearings, the District Court upheld the revocation. Gildersleeve appeals. We reverse the judgment of the District Court and remand this case to the District Court for proceedings consistent with this opinion.

The following issues are presented on appeal:

1. Did the District Court err when it concluded that Gildersleeve refused to submit to testing pursuant to § 61-8-403, MCA?

2. Did the District Court err when it concluded that it lacks jurisdiction to consider the constitutionality of §§ 61-8-402 and -403, MCA?

FACTUAL BACKGROUND

On August 28, 1995, Officer Jeff Dobie of the Missoula Police Department arrested Jeffrey H. Gildersleeve for driving under the influence of alcohol or drugs after Gildersleeve made an illegal left turn. Gildersleeve admitted that he had consumed one shot of whiskey. He cooperated with Officer Dobie and performed the field sobriety tests which were administered. Officer Dobie contended that because of Gildersleeve’s slurred speech, red eyes, and poor performance in the field sobriety tests, he arrested him and transported him to the Missoula police station, where he asked Gildersleeve to take a breath test.

The breath analysis results indicated a 0.00 blood alcohol content. Officer Dobie then requested that Gildersleeve submit to a blood test. Gildersleeve objected to the blood test for ethical reasons, a fear of needles, and a concern that he could thereby contract the AIDS virus. The Missoula Police Department does not offer a urine test, and neither Officer Dobie nor Gildersleeve raised it as an alternative. Pursuant to § 61-8-402, MCA, Officer Dobie seized Gildersleeve’s license and Gildersleeve’s driving privileges were suspended for ninety days.

On September 27,1995, Gildersleeve filed a notice of appeal of the revocation of his license in the District Court pursuant to § 61-8-403, MCA. He maintained that he was not under the influence of alcohol or drugs, and that he did not refuse to submit to the blood test. In addition, he informed the District Court of his intent to challenge the constitutionality of §§ 61-8-402 and -403, MCA. After a hearing on November 1, 1995, the District Court concluded that it lacked jurisdiction to consider Gildersleeve’s constitutional challenges. After a second hearing on May 31, 1996, the District Court concluded that Officer Dobie had reasonable grounds to arrest Gildersleeve and that Gildersleeve had refused to submit to the blood test.

ISSUE 1

Did the District Court err when it concluded that Gildersleeve refused to submit to testing pursuant to § 61-8-403, MCA?

The District Court held that it was the burden of the petitioner to prove the invalidity of his license revocation and that Gildersleeve had not met that burden. Specifically, with regard to the issue of whether Gildersleeve refused to submit to a blood test, the District Court found that he had refused.

The District Court’s opinion and order was entered on June 18, 1996. On July 11,1996, we decided Wessell v. State (1996), 277 Mont. 234, 921 P.2d 264. In Wessell, the petitioner was placed under arrest for driving under the influence of alcohol. He cooperated with the investigating officer and submitted to a breath test, which was unsuccessful because the testing instrument failed. He was then asked to submit to a blood test, but declined on the basis that he had a great fear of needles. He volunteered to submit to a urine test; however, none was available at the Glendive Police Department. Therefore, his license was revoked based on his refusal to submit to the blood test. The District Court affirmed the revocation of his license; however, we reversed and held that:

In the present case, it was not contested that Wessell had a valid fear of needles which prevented him ¡from being able to submit to a blood test and therefore we accept this as stipulated. The record shows that he was willing to consent to a test for alcohol but was prevented from doing so by a psychological inability to perform resulting from his disabling fear of needles, which he immediately disclosed to the officer. We determine that under the facts of this case, this psychological inability to perform the test is the equivalent of a physical disability which precludes an individual from participating in or completing a valid test regardless of their willingness.

Wessell, 277 Mont. at 240, 921 P.2d at 267-68.

Although the facts of record in this case are similar to those in Wessell, they are not identical. Neither did the parties have an opportunity to present or test evidence based on the standard established in Wessell. Finally, the District Court did not have the opportunity to consider whether, based on the record in this case, Gildersleeve was prevented from submitting to a blood test based on a psychological inability to perform resulting from a disabling fear of needles.

Therefore, we vacate the judgment of the District Court and remand to that court for further consideration in light of our decision in Wessell. Either party may supplement the record to the extent necessary to assist the court in its determination.

The State contends that as a result of our decision in Wessell this Court has unintentionally eliminated the petitioner’s burden of proving an inability to perform a blood test and placed the burden on the State to prove there was no such inability. The State, therefore, urges this Court to reconsider its decision in Wessell and more clearly articulate the factors an officer should consider when deciding whether a suspect is “unable” to perform or submit to a test.

The State’s interpretation of Wessell, however, is unsupported by the plain language in that decision. We clearly noted that in that case it was uncontested that Wessell had a valid fear which prevented him from being able to submit to a blood test. We accepted that fact as stipulated. There was no reason to discuss the petitioner’s burden, or a shifting of the burden, because the facts were not disputed. The rule remains, as it has been, that “[t]he burden of proof falls upon the appellant to prove the invalidity of the State’s action, rather than require the State to justify its act of revocation.” Jess v. State (1992), 255 Mont. 254, 259-60, 841 P.2d 1137, 1140.

For these reasons, we decline the invitation to reconsider our decision in Wessell v. State.

ISSUE 2

Did the District Court err when it concluded that it lacks jurisdiction to consider the constitutionality of §§ 61-8-402 and -403, MCA?

The District Court’s determination that it lacks jurisdiction over this matter is a conclusion of law. We review conclusions of law to determine whether they are correct. Bayleat Law v. Pettit (1997), [281 Mont. 95], 931 P.2d 50, 52.

Section 61-8-403, MCA, which sets forth the scope of review from a driver’s license revocation, states in relevant part:

(4) (a) The court shall take testimony and examine the facts of the case, except that the issues are limited to whether:
(i) a peace officer had reasonable grounds to believe that the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs, or a combination of the two;
(ii) the person was placed under arrest; and
(iii) the person refused to submit to the test or tests.

Section 61-8-403(4)(a), MCA. We have strictly construed this language and held that the Legislature clearly intended to limit the issues that a court may consider on appeal pursuant to the statute. See Thompson v. Department of Justice (1994), 264 Mont. 372, 871 P.2d 1333 (removing from consideration the issue of whether the initial report was properly sworn); Blake v. State (1987), 226 Mont. 193, 735 P.2d 262 (denying authority to consider the issue of hardship as a mitigating factor in granting a restricted or probationary license).

The District Court erred, however, when it equated limitation on its authority to consider factual issues other than those specified by statute with limitation on its authority to consider the constitutionality of the statute itself. The two exercises of authority are inherently different and emanate from distinct sources. The District Court’s authority to consider the constitutionality of a statute derives from the basic constitutional notion of separation of powers, while its authority to review factual issues related to a driver’s license revocation comes from the Legislature.

“[T]he Constitution vests in the courts the exclusive power to construe and interpret legislative Acts, as well as provisions of the Constitution.” State v. Leslie (1935), 100 Mont. 449, 455, 50 P.2d 959, 962. Inherent in this power is the responsibility to determine whether a particular law conforms to the Constitution. Powell v. McCormack (1969), 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491. “[I]t is the province and duty of the judicial department to determine in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution.” Powell, 395 U.S. at 506, 89 S. Ct. at 1956, 23 L. Ed. 2d at 508. Thus, we hold that the District Court erred when it concluded that § 61-8-403, MCA, limits its jurisdiction to consider constitutional challenges to that statute.

The State’s contention that a declaratory judgment pursuant to §§ 27-8-101 to -313, MCA, should constitute Gildersleeve’s sole opportunity to challenge the constitutionality of the statute is unfounded. Declaratory relief is not meant to displace otherwise available remedies. In In re Matter of Dewar (1976), 169 Mont. 437, 548 P.2d 149, we stated:

The purpose of declaratory relief is to liquidate uncertainties and controversies which might result in future litigation and to adjudicate rights of parties who have not otherwise been given an opportunity to have those rights determined. However, it is not the true purpose of the declaratory judgment to provide a substitute for other regular actions.

Dewar, 169 Mont. at 444, 548 P.2d at 153-54. Here, Gildersleeve has already been affected by §§ 61-8-402 and -403, MCA, and thus, his challenge to the statute is appropriately made during the course of his regular appeal pursuant to § 61-8-403, MCA.

Although this Court has the ultimate authority and responsibility to interpret Montana’s Constitution, we are primarily a court of review. State v. Finley (1996), 276 Mont. 126, 915 P.2d 208. Furthermore, resolution of this case on a constitutional basis should be avoided where it may be unnecessary. In State v. Still (1995), 273 Mont. 261, 263, 902 P.2d 546, 548, we held that:

This Court has repeatedly recognized that “courts should avoid constitutional issues whenever possible.” Wolfe v. State, Dept. of Labor & Ind. (1992), 255 Mont. 336, 339, 843 P.2d 338, 340 (citing Ingraham v. Champion Intern. (1990), 243 Mont. 42, 46, 793 P.2d 769, 771). Certain constraints govern the Court’s power to determine the constitutionality of statutes. Among those constraints is the principle that we will not rule on the constitutionality of a legislative act if we are able to decide the case without reaching constitutional considerations. Ingraham, 793 P.2d at 771; Wolfe, 843 P.2d at 340 (citing Taylor v. Dept. of Fish, Wildlife & Parks (1983), 205 Mont. 85, 90, 666 P.2d 1228, 1231); see also State ex rel. Hammond v. Hager (1972), 160 Mont. 391, 400, 503 P.2d 52, 57.

Because of our resolution of Issue 1, and the possibility that Gildersleeve’s appeal could be resolved without the necessity of addressing the constitutional issues which have been raised; and because ifitis necessary to address those constitutional issues whichrelate to the constitutionality of §§ 61-8-402 and -403, MCA, as applied, further development of the factual record may be appropriate; we decline to address those issues at this time, but remand to the District Court for the appropriate resolution of those issues, if necessary.

For these reasons, the judgment of the District Court is vacated, and this case is remanded to the District Court for further proceedings consistent with this opinion.

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


author:
JUSTICE GRAY JUSTICE LEAPHART and JUSTICE NELSON,
      JUSTICE REGNIER, JUSTICE TRIEWEILER,

text:
    ASH GROVE CEMENT COMPANY, a Delaware corporation, Plaintiff and Appellant, v. JEFFERSON COUNTY; and CHUCK NOTBOHM, GLENNA OBIE and LEONARD WORTMAN, the Commissioners of Jefferson County, Defendants and Respondents.
    No. 96-203.
    Argued January 21, 1997.
    Submitted February 21, 1997.
    Decided July 23, 1997.
    54 St.Rep. 756.
    283 Mont. 486.
    943 P.2d 85.

      For Appellant: John Alke (argued); Hughes, Kellner, Sullivan & Alke, Helena.
    For Respondents: Valerie D. Wilson (argued), Jefferson County Attorney, Boulder.
   JUSTICE GRAY

delivered the Opinion of the Court.

Ash Grove Cement Company (Ash Grove) appeals from the order of the Fifth Judicial District Court, Jefferson County, granting summary judgment in favor of Jefferson County and the Jefferson County Commissioners and dismissing Ash Grove’s complaint. We reverse and remand with instructions.

We restate the issues on appeal as follows:

1. Does state law prohibit Jefferson County from regulating air and water quality and siting hazardous waste facilities?

2. Did Jefferson County unlawfully establish the boundaries of a zoning district via adoption of the local vicinity plan for a portion of north Jefferson County?

3. Did Jefferson County properly adopt the local vicinity plan for a portion of north Jefferson County on either a stand-alone basis or as an amendment to, or partial repeal of, the comprehensive master plan?

FACTUAL AND PROCEDURAL HISTORY

Ash Grove owns and operates limestone quarries and a cement plant near Montana City, in Jefferson County. In recent years, substantial residential development in the area has resulted in increased enrollment at the Montana City School, located approximately one-half mile from Ash Grove.

In the spring of 1992, the Jefferson County Planning Board (Planning Board) began developing a comprehensive master plan (Master Plan) for Jefferson County. While the Master Plan was being developed, Ash Grove was considering burning hazardous waste in its dry fuel cement kiln and, in 1993, it filed applications for the necessary permits. A group of Montana City residents opposed to Ash Grove’s proposed burning of hazardous waste formed an organization called “Montanans for a Healthy Future” (MHF). In November of 1993, numerous residents of Jefferson County, including members of the MHF, petitioned the Planning Board to include language in the Master Plan addressing the burning of hazardous waste. At some point thereafter, Ash Grove withdrew its applications for the permits to bum hazardous waste.

In response to concerns about Ash Grove’s interest in burning hazardous waste, the Planning Board included language in the proposed Master Plan which would allow residents of each Jefferson County “community” or “vicinity” to work with it in developing planning and implementation programs consistent with the Master Plan. These local vicinity plans could include “performance standards” covering air pollution or the handling and disposal of hazardous waste.

The Jefferson County Board of Commissioners (County Commissioners) adopted the Master Plan by Resolution No. 46-93 in December of 1993 “for its jurisdictional area (the entirety of Jefferson County outside of the limits of the incorporated towns of Boulder and Whitehall).” Ash Grove’s cement plant and mining quarries are located within this jurisdictional area.

The “fundamental goal” of the Master Plan is to “help guide and manage community change to best serve its citizens’ overall long-term interests.” To that end, the Master Plan recognizes that three basic forces — economic, physical and social/cultural — shape all communities and that these forces must be considered together and balanced to best achieve the citizens’ goals. The “Community Goals Statement” in the Master Plan summarizes the citizens’ goals relating to each of these three forces; each goal is followed by a list of objectives meant to accomplish the goal. The goals and objectives set forth in the Master Plan are intended to guide future decision-making in planning and zoning decisions for the county.

Insofar as they relate to the present dispute between Ash Grove and Jefferson County, the Master Plan’s stated goals and objectives seek to retain existing industries, support economic development throughout the county, preserve the county’s scenic beauty and healthful environment and invite continued mineral exploration, extraction and refinement. The Master Plan recognizes that the culture and economy of Jefferson County historically have been dependent on land utilization and states, in this regard, that “Montana City is ... the site of a plant that produces cement out of raw materials mined in the nearby vicinity.”

The Master Plan classifies the area around the Ash Grove cement plant as “Mining and Industrial: Intensive Mineral Processing and Industrial Uses.” The stated purpose of this land use classification is

[t]o encourage the preservation of, continued use and expansion of these areas for mining, processing or industrial activities in a manner that will provide fair and reasonable protection of properties in nearby vicinities.

The Master Plan classifies the areas around Ash Grove’s quarries as “Mining: Active Surface,” with the stated purpose of

encourag[ing] the maximum utilization of mineral resource areas currently being mined or planned to be developed for surface mining activities in a manner consistent with community protection objectives.

Over a period of nearly two years after formal adoption of the Master Plan in 1993, a group of residents from the Montana City area worked together with the Planning Board to develop a local vicinity plan for the specific area of northern Jefferson County in which Ash Grove is located. In the early stages, the local vicinity plan included proposed zoning regulations which prohibited the treatment, storage, disposal or incineration of hazardous waste within two miles of a school, residence or day care facility. The Jefferson County Planner subsequently noted numerous problems with the proposed zoning ordinance.

The County Commissioners then hired an attorney to review the proposed local vicinity plan and zoning ordinances. The attorney advised that the County Commissioners should adopt the local vicinity plan and zoning regulations sequentially rather than simultaneously. The proposed local vicinity plan was revised accordingly to delete the accompanying zoning regulations.

Jefferson County adopted the Local Vicinity Plan for a Portion of North Jefferson County (LVP) pursuant to Resolution No. 51-95 on September 26, 1995. The County Commissioners stated that they were amending the Master Plan via adoption of the LVP and that

to the extent that the Jefferson County Master Plan contains any provisions inconsistent with the Vicinity Plan, the Jefferson County Master Plan should be deemed amended, repealed and/or superseded by the provisions of the Vicinity Plan.

The LVP states that the area it covers has a “unique rural residential character” and is

home to active farms and ranches, residential subdivisions, neighborhood retail and commercial business operations, offices and professional uses, child care and day care facilities, school and other governmental uses and facilities.

Although Ash Grove also is located in the area, the LVP fails to mention industrial uses or mining.

One of the stated goals of the LVP is to create location standards for the placement of facilities which treat, store, dispose of or bum hazardous waste a certain distance from schools, day care facilities and residences. The LVP also sets forth goals for the preservation and enhancement of water and air quality and “[t]o plan for and guide future development in a manner consistent with the Jefferson County Master (Comprehensive) Plan.”

Ash Grove challenged the validity of the LVP on numerous grounds in a declaratory judgment action brought against Jefferson Comity and its County Commissioners (collectively, Jefferson County) in October of 1995. Both Jefferson County and Ash Grove moved for summary judgment, the motions were fully briefed, and oral arguments were presented in February of 1996. The District Court subsequently granted Jefferson County’s motion, denied Ash Grove’s motion and dismissed the entirety of Ash Grove’s complaint. Ash Grove appeals.

STANDARD OF REVIEW

Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review a district court’s grant of summary judgment de novo, applying the same Rule 56(c), M.R.Civ.P., criteria used by that court. Matter of Estate of Lien (1995), 270 Mont. 295, 298, 892 P.2d 530, 532 (citation omitted). Ordinarily, such a review requires that we first determine whether the moving party met its burden of establishing both the absence of genuine issues of material fact and entitlement to judgment as a matter of law. See Estate of Lien, 892 P.2d at 532.

In this case, however, the dispositive facts surrounding the simultaneous adoption of the LVP and amendment of the Master Plan are undisputed. Through their cross motions for summary judgment, each party asserted entitlement to judgment as a matter of law. The District Court having granted Jefferson County’s motion for summary judgment, we need only determine whether the court correctly concluded that Jefferson Comity is entitled to judgment as a matter of law. We review a district court’s conclusions of law to determine whether the interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citation omitted).

DISCUSSION

1. Does state law prohibit Jefferson County from regulating air and water quality and siting hazardous waste facilities?

Ash Grove argues that Jefferson County cannot regulate air and water quality or set siting requirements for hazardous waste facilities through adoption of the LVP because the authority to regulate these matters is vested exclusively in the State of Montana. On that basis, it contends that the LVP is preempted by the Montana Hazardous Waste and Underground Storage Tank Act, §§ 75-10-401 through 75-10-451, MCA; the Clean Air Act of Montana, §§ 75-2-101 through 75-2-123, MCA; and Montana’s water quality laws, §§ 75-5-101 through 75-5-1122, MCA.

The LVP sets forth the following goals and objectives:

To preserve and enhance water quality....
To preserve and enhance air quality. ...
To create location standards requiring the placement of hazardous waste treatment, storage, disposal, and/or incineration facilities a certain distance away from schools, day care facilities and residences. ...

The LVP does not implement these goals and objectives in any way, however, and, indeed, Jefferson County had not enacted any implementing ordinances, regulations or restrictions pursuant to the stated goals and objectives at the time of the oral argument in this case. We conclude, therefore, that Ash Grove’s preemption argument is premature and we decline to address this issue on the merits.

2. Did Jefferson County unlawfully establish the boundaries of a zoning district via adoption of the LVP?

Ash Grove argues that, in adopting the LVP for the small portion of northern Jefferson County in which Ash Grove is located, Jefferson County established a zoning district, pursuant to which it intends to adopt and apply zoning ordinances, without meeting statutory requirements. Jefferson County agrees that the creation of zoning districts and adoption of zoning ordinances or regulations are controlled by statute. It contends, however, that the LVP is a planning document adopted as an amendment to the Master Plan, rather than a zoning document, and, therefore, that the statutes governing zoning are irrelevant and inapplicable.

The establishment of zoning districts is governed by statute in Montana. A zoning district may be created under either § 76-2-101 et seq., MCA (commonly called Part 1 zoning), or § 76-2-201 et seq., MCA (commonly called Part 2 zoning). Each statutorily-authorized method for creating zoning districts and enacting zoning regulations is separate and distinct from the other. See Petty v. Flathead County (1988), 231 Mont. 428, 432, 754 P.2d 496, 499.

Under § 76-2-101, MCA, the county commissioners are authorized to create a planning and zoning district and appoint a zoning commission upon receipt of a petition to create a zoning district signed by sixty percent of the freeholders within the proposed district. The zoning commission then makes and adopts a development pattern for the physical and economic development of the planning and zoning district. Section 76-2-104, MCA. After notice and a public hearing, the county commissioners may adopt the development district and, thereafter, may adopt zoning regulations for the purpose of carrying out the development district. Sections 76-2-106 and 76-2-107, MCA.

Here, it is clear that the LVP is not a zoning district created pursuant to the statutory requirements for Part 1 zoning districts; none of the statutory prerequisites for a Part 1 zoning district was met in adopting the LVP. As a consequence, it is equally clear that the LVP cannot serve as the foundation for the adoption of zoning regulations under § 76-2-107, MCA.

Sections 76-2-201 though 76-2-228, MCA, expressly apply in counties which have adopted a comprehensive master plan for their jurisdictional areas. In such a situation, the county commissioners may establish zoning districts and zoning regulations for all or part of the jurisdictional area covered by the master plan after requiring the county planning board to propose recommended boundaries and appropriate zoning regulations for the various zoning districts. Sections 76-2-202 and 76-2-204, MCA. Zoning regulations must be made in accordance with the master plan and pursuant to express statutory criteria and guidelines. Section 76-2-203, MCA. Part 2 zoning districts and regulations may be adopted only after specific statutory procedures are met, including notice of — and a public hearing on— both the proposed zoning district boundaries and the zoning regulations proposed for the district. See § 76-2-205, MCA.

Here, although Jefferson County has adopted the Master Plan which could serve as the foundation for Part 2 zoning districts and regulations, it clearly did not follow Part 2 statutory procedures for the creation of a zoning district and zoning regulations applicable thereto when it adopted the LVP. Indeed, Jefferson County concedes that it would be required to proceed under §§ 76-2-201 et seq., MCA, in order to create zoning districts and zoning regulations in all or any part of the jurisdictional area covered by its Master Plan. Regardless of whether the LVP was properly adopted under the Master Plan or as part thereof, which we discuss below, the LVP relates to planning and not to zoning.

Accordingly, we conclude that Jefferson County did not unlawfully establish the boundaries of a zoning district via adoption of the LVP.

3. Did Jefferson County properly adopt the LVP on either a standalone basis or as an amendment to, or partial repeal of, the Master Plan?

Ash Grove argues that the LVP was not properly adopted on either a stand-alone basis or as an amendment to, or partial repeal of, the Master Plan. As a necessary foundation to our resolution of this issue, we first discuss Montana law relating to local government planning, the development and adoption of comprehensive master plans and the role of such plans in subsequent land use planning.

Alocal government may create a planning board — which serves in an advisory capacity — to promote the orderly development of governmental units and their environs. Sections 76-1-101, 76-1-102 and 76-1-106(1), MCA. In counties such as Jefferson County where a planning board has been created, the preeminent planning tool is the comprehensive jurisdiction-wide development plan called a master plan. See §§ 76-1-106, 76-1-601 and 76-1-103(4), MCA. A master plan essentially surveys land use as it exists and makes recommendations for future planning; it may include maps and other descriptive materials which document the various land uses present within the jurisdictional area. Section 76-1-601, MCA.

The planning board is statutorily charged with preparing the master plan. Section 76-1-106, MCA. Prior to submitting the plan to the governing body for approval, it must provide notice and hold a public hearing. See §§ 76-1-601 and 76-1-602, MCA. Thereafter, the planning board submits the proposed master plan to the governing body by means of a planning board resolution recommending the plan. Section 76-1-603, MCA. The governing body must then adopt a resolution of intention to adopt, revise or reject the proposed master plan. Section 76-1-604(1), MCA.

Once a master plan has been adopted, the governing body “shall be guided by and give consideration to the general policy and pattern of development set out in the master plan” in subsequent decision-making, including the adoption of zoning regulations. Section 76-1-605, MCA. Indeed, as discussed above, the statutes governing adoption of zoning regulations in a county which has a master plan are separate and distinct from those governing zoning in a county without a master plan. Cf. §§ 76-2-201 et seq., MCA, with §§ 76-2-101 et seq., MCA. In the former case, zoning regulations “shall be made in accordance with a comprehensive development plan. ...” Section 76-2-203, MCA. Likewise, our prior decisions mandate that local governments consider and adhere to the policies set forth in their comprehensive master plans in future land use planning decisions.

Bridger Canyon Property Owners’ Assoc. v. Planning and Zoning Comm’n (1995), 270 Mont. 160, 890 P.2d 1268, involved an appeal by the Bridger Canyon Property Owners’ Association (POA) from a district court order upholding the decision of the Planning and Zoning Commission (Commission) to approve a planned unit development (PUD) in Bridger Canyon. The POA argued, in part, that the Commission lacked authority to approve the PUD because the Bridger County Zoning Ordinance (Zoning Ordinance) under which the PUD was approved conflicted with the General Plan and Development Guide of Bridger Canyon (General Plan) and was inconsistent with the official zoning map for the area. Bridger, 890 P.2d at 1270-72. The respondents, which included the Commission as well as the corporation which had applied for the PUD approval, argued that the General Plan was exactly that, merely a general plan providing guidance for future land planning and development. Bridger, 890 P.2d at 1268, 1272-73.

We observed that the language used in the Zoning Ordinance expressly recognized the importance of the General Plan in the development pattern for Bridger Canyon and concluded, on that basis, that “it makes sense that the commissioners should be required to comply with the General Plan.” Bridger, 890 P.2d at 1273. Indeed,

to require no compliance at all would defeat the whole idea of planning. Why have a plan if the local government units are free to ignore it at any time?

Bridger, 890 P.2d at 1273-74 (following Little v. Board of County Comm’rs (1981), 193 Mont. 334, 631 P.2d 1282). We concluded that, while a comprehensive master plan need not be strictly complied with, a local government unit must at least substantially comply with the plan. Bridger, 890 P.2d at 1273-74 (citing Little, 631 P.2d at 1293). We further observed that

[t]his standard is flexible enough so that the master plan would not have to be undergoing constant change. Yet, this standard is sufficiently definite so that those charged with adhering to it will know when there is an acceptable deviation, and when there is an unacceptable deviation from the master plan.

Bridger, 890 P.2d at 1274 (citing Little, 631 P.2d at 1293).

Both Bridger and Little involved the role of comprehensive master plans in zoning. However, the principles set forth therein regarding the importance of comprehensive master plans in future land use planning are equally applicable to our analysis here of the role of the master plan in the context of adopting a subsequent local vicinity plan. It is against this backdrop of Montana statutes controlling local government land use planning and our prior decisions that we scrutinize Jefferson County’s adoption of the LVP both on a stand-alone basis and as an amendment to, or partial repeal of, the Master Plan.

A. Adoption of the LVP on a Stand-Alone Basis

Ash Grove contends that, once Jefferson County adopted the Master Plan, all future planning and zoning, including the adoption of local vicinity plans, was required to be consistent with it. Ash Grove argues that the LVP is expressly inconsistent with the Master Plan. Jefferson County points out in response that, by its terms, the Master Plan authorizes and encourages local communities or vicinities to adopt local vicinity plans reflecting the unique character of the vicinity as a means of implementing the Master Plan and, therefore, that the LVP is entirely consistent with the Master Plan.

The Master Plan specifically recognizes Ash Grove’s presence, and encourages industry and mining, while requiring a balancing between retaining mining and industry and preserving the area’s scenic beauty and healthful environment. For example, the economic goal of the Master Plan is to “[s]ustain and strengthen the economic well-being of Jefferson County’s citizens.” One objective in fulfilling the Master Plan’s economic goal is to

[sjtimulate the retention of existing and the development of new basic and value adding businesses and industries; especially ... mining... and manufacturing/processing.

The Master Plan’s physical goal is to “[p]rotect and maintain Jefferson County’s rural character and the community’s historic relationship with natural resource development.” The following objectives set forth in the Master Plan are designed to accomplish this goal and recognize the importance of both mining and environmental considerations:

Invite continued mineral exploration, extraction and refinement.... Preserve the County’s scenic beauty. ...
Assure clean air, clean water, a healthful environment and good community appearance.

In addition, the Jefferson County Master Plan expressly recognizes the preeminent role assigned to it by the controlling statutes. It contains an Implementation Program for the purpose of systematically implementing its goals and objectives. One of the implementation strategies is the preparation of planning and implementation programs, called local vicinity plans, for the distinct areas within Jefferson County. To that end, the Master Plan states:

By developing “vicinity’ or “community” plans that are consistent with the County Comprehensive Plan, but which reflect the unique character of the vicinities and their citizens, the Countys diversity of places and people can be maintained and strengthened.

(Emphasis added.)

Similarly, the LVP at issue recognizes that the authority for the adoption of local vicinity plans derives solely from the foregoing language of the Master Plan by stating that “[t]hese Local Vicinity Plans must be consistent with the County Comprehensive Plan.” It goes on, however, to describe the area it covers — including the Ash Grove property — as rural residential,

home to active farms and ranches, residential subdivisions, neighborhood retail and commercial business operations, offices and professional uses, child care and day care facilities, school and other governmental uses and facilities.

In doing so, the LVP not only ignores both Ash Grove’s physical presence and the Master Plan’s classification of the area around Ash Grove’s cement plant and quarries as mining and industrial, but purports to change the classification to a designation totally at odds with that contained in the Master Plan.

Thus, the LVP is clearly inconsistent with the Master Plan and violates the mandate of that Plan which authorizes local vicinity plans only to the extent they are consistent with the Master Plan and designed to implement it. Likewise, the LVP also violates the spirit and language of § 76-1-605, MCA, which requires the County Commissioners to “be guided by and give consideration to the general policy and pattern of development” set forth in the Master Plan in future land use planning such as zoning. Indeed, “[i]f the master plan is important enough to be a condition precedent to permanent zoning, it is also important enough to be followed once it is in existence.” Bridger, 890 P.2d at 1274 (citing Little, 631 P.2d at 1293). We conclude that the County Commissioners failed to substantially comply with the Master Plan in adopting the LVP and, therefore, the LVP was not properly adopted on a stand-alone basis.

B. LVP as an Amendment to, or Partial Repeal of, the Master Plan

Ash Grove argues that Jefferson County cannot amend, revise or repeal the Master Plan via adoption of the LVP for the small area described therein. Jefferson County contends, on the other hand, that § 76-1-604(3), MCA, authorizes it to revise or repeal the Master Plan or any parts thereof and that it properly did so via adoption of the LVP. In that regard, Jefferson County directs our attention to Resolution No. 51-95, by which it adopted the LVP, and which states that

to the extent that the Jefferson County Master Plan contains any provisions inconsistent with the Vicinity Plan, the Jefferson County Master Plan should be deemed amended, repealed and/or superseded by the provisions of the Vicinity Plan.

It is true that § 76-1-604, MCA, authorizes governing bodies to revise or repeal a master plan. Jefferson County’s purported amendment to, and partial repeal of, the Master Plan via adoption of the LVP, however, is problematic in three regards.

As discussed above, § 76-1-601, MCA, provides that a master plan may include a survey of existing land uses; where such a survey is included, it must be based on careful and comprehensive studies of the existing conditions in the area. Jefferson County included such a factually-based land use inventory in the Master Plan which necessarily recognized the use of Ash Grove’s property for mining and industrial purposes. The purported amendment of the Master Plan via adoption of the LVP, which effectively reclassifies Ash Grove’s property from mining and industrial to rural residential, no longer meets the requirement that existing land uses be reflected in a master plan. The LVP’s classification of the land within it, which includes Ash Grove’s cement plant and quarries, as rural residential clearly is not based on the existing condition and use of the land as contemplated by § 76-1-601, MCA. Because the LVP disregards the actual use of the land to which it purports to apply, it is not a proper amendment to the Master Plan.

Moreover, as discussed above, a master plan is a plan for the entire jurisdictional area. See § 76-1-601, MCA. While § 76-1-604, MCA, authorizes revision of a master plan, nothing in that statute supports the notion that revisions can be made which alter the master plan’s inherent jurisdiction-wide nature and result in a patchwork plan for the jurisdictional area. Indeed, “[i]f the plan can be amended piecemeal, ... the role of the plan as a comprehensive statement of community planning policies may be diluted and the planning process may be abused.” Daniel R. Mandelker, The Role of the Local Comprehensive Plan in Land Use Regulation, 74 Mich. L. Rev. 899, 946 (1976). Jefferson County’s effort to adopt the LVP, as an amendment to the Master Plan for only a small portion of the jurisdictional area covered by the Plan, simply undermines the importance of comprehensive planning recognized in Montana statutes and our decisions.

Finally, and as previously noted, § 76-1-604, MCA, permits a governing body to repeal a master plan. Jefferson County contends that, in adopting the LVP via Resolution No. 51-95, it repealed portions of the Master Plan inconsistent with the LVP as authorized by the statute. The problems associated with such a generic and imprecise partial repeal are obvious and further demonstrate the dangers inherent in failing to accord a comprehensive master plan its proper role.

If Jefferson County’s attempt to partially repeal the Master Plan by adoption of the LVP for only a small portion of the jurisdictional area is allowed to stand, how does one discern what is left of the Plan? What of the Master Plan’s requirement, which reflects the spirit and intent of § 76-1-605, MCA, and Bridger, that local vicinity plans be consistent with — and developed to implement — the Master Plan? Does adoption of a local vicinity plan inconsistent with the Master Plan — like the LVP at issue here — repeal the requirement that local vicinity plans be consistent with the Master Plan, with the result that other vicinities also are free to disregard the Master Plan? Or does the requirement for consistent local vicinity plans remain applicable to other “vicinities” in Jefferson County which have not yet developed local vicinity plans? If implementation steps and planning which are necessarily subordinate to the goals and objectives of the Master Plan can be inconsistent with the Master Plan and used to partially repeal it, what becomes of the Master Plan as the preeminent planning device? Section 76-1-604, MCA, simply does not contemplate the use of a document required by the Master Plan and by Montana law to be a subordinate implementing device to override the Master Plan itself in the guise of a partial “repeal.”

We conclude that Jefferson County’s adoption of the LVP is neither a proper amendment to, nor a proper partial repeal of, the Master Plan. Having concluded above that the LVP also was improperly adopted on a stand-alone basis, we hold that the District Court erred in concluding that Jefferson County was entitled to judgment as a matter of law on the basis that it properly adopted the LVP pursuant to § 76-1-604, MCA, and in granting its motion for summary judgment on that basis.

In the usual summary judgment case in which we reverse a district court’s grant of summary judgment, that resolution is based on our conclusion that genuine issues of material fact exist which preclude the moving party’s entitlement to judgment as a matter of law. Under such a circumstance, a reversal necessitates a remand for trial in which the factual issues will be determined by the trier of fact. Where all of the facts bearing on the resolution of the legal issues are before us, however, this Court may reverse a district court’s grant of summary judgment and direct it to enter summary judgment in favor of the other party. See Matter of Estate of Langendorf (1993), 262 Mont. 123, 128, 863 P.2d 434, 438; Duensing v. Traveler’s Companies (1993), 257 Mont. 376, 386, 849 P.2d 203, 210.

As stated above, the dispositive facts regarding Jefferson County’s adoption of the LVP are undisputed. We concluded that Jefferson County improperly adopted the LVP either on a stand-alone basis or as an amendment to, or partial repeal of, the Master Plan. Based on those conclusions, we hold that Ash Grove is entitled to summary judgment on the invalidity of the LVP.

Reversed and remanded to the District Court for entry of summary judgment in favor of Ash Grove.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and LEAPHART concur.

JUSTICE LEAPHART and JUSTICE NELSON,

specially concurring.

We specially concur in the decision of the Court. In quoting Daniel R. Mandelker, The Role of the Local Comprehensive Plan in Land Use Regulation, 74 Mich. L. Rev. 899, 946 (1976), the Court recognizes that, if the comprehensive plan can be amended piecemeal, the plan as a comprehensive statement of community planning may be diluted and the planning process may be abused. The present case presents a situation in which the party opposing the piecemeal amendment is a corporate entity which owns a cement plant and has, in the past, engendered public disfavor by proposing the burning of hazardous waste. Resolution of the legal issue presented, however, does not hinge upon whether the proponent is wearing a black or white hat. If, as respondents contend, we approve the piecemeal amendment of a comprehensive master plan through the adoption of inconsistent local vicinity plans, we would establish a very dangerous precedent. An influential special interest or corporate entity could, for example, utilize the local vicinity plan, piecemeal amendment process to establish a feedlot in an area previously designated by the comprehensive master plan as “residential.”

Although the law allows for the amendment of comprehensive master plans, it does not envision piecemeal amendment or partial repeal through the adoption of junior documents which are inconsistent with the “master” plan. The sort of “comprehensive plan” at issue here is, in truth, the very antithesis of that which is contemplated by Montana’s planning laws. It invites avoidance of what the law requires — a well thought out, long range, detailed and comprehensive planning document that takes into consideration past, present and anticipated land uses throughout the jurisdiction and which is debated and adopted in an atmosphere that is free, to the extent possible, from the influence of special interests and political expedience.

If the sort of “comprehensive planning” that is at issue here is lawful, then there is nothing to prevent a local government from adopting a “master plan” that is, as a practical matter, meaningless in its generality and then allowing the “plan” to be fleshed out via a crazy quilt of local “amendments” and partial repeals which, if history is any guide, will reflect, not the beneficial criteria and high purposes specified in § 76-1-102, MCA, but, rather, the alliance of special interest, money and politics.

Assuming that this local vicinity plan amends the master plan, what is the status when the next inconsistent local vicinity plan is adopted? Does LVP number two take precedence over the master plan and LVP number one? If the “master” plan is to be truly comprehensive, then its provisions, and its amendments, must be adopted from the top down, with an eye on the big picture. The master plan is no longer “comprehensive” when it is amended through adoption of inconsistent provisions in one or more local vicinity plans.

JUSTICE REGNIER,

dissenting.

I agree with the majority’s opinion on Issues 1 and 2; however, I disagree with the majority on Issue 3 and respectfully dissent.

The majority concludes that the Local Vicinity Plan for the north portion of Jefferson County, which was adopted by resolution on September 26,1995, unlawfully repeals the Jefferson County Master Plan. The Jefferson County Board of Commissioners adopted the Local Vicinity Plan on September 26, 1995, in compliance with § 76-1-604, MCA. Section 76-1-604, MCA, provides, in part:

(1) The governing bodies shall adopt a resolution of intention to adopt, revise, or reject the proposed plan or any of its parts.
(3) The governing bodies may adopt, revise, or repeal a master plan under this section.

This statute gives the Board, as a matter of law, the authority to adopt, revise, or repeal the Master Plan, or any of its parts. The Board acted within its statutory authority when it adopted the Local Vicinity Plan which resulted in a revision of the Master Plan.

The majority relies upon our decisions in Bridger and Little in reaching their decision. In my view, both cases are distinguishable. In Little, we noted that the Flathead County Board of Commissioners, which was involved in adopting zoning for a tract of land on which a shopping mall was proposed to be built, was required to substantially adhere to the master plan for the area, which established medium density residential use. The commissioners in that case essentially ignored the master plan which prohibited the type of proposed commercial development in the area which was designated for residential use. In Little, we stated: “We are aware that changes in the master plan may well be dictated by changed circumstances occurring after the adoption of the plan. If this is so, the correct procedure is to amend the master plan, rather than to erode the master plan by simply refusing to adhere to its guidelines.” Little, 193 Mont. at 354, 631 P.2d at 1293.

Bridger, which was also a zoning case, involved an appeal from a district court order upholding the decision of the planning and zoning commission to approve a planned unit development in Bridger Canyon. The Bridger Canyon Property Owners argued that the commission lacked authority to approve the PUD because the zoning ordinance under which that PUD was approved conflicted with the general plan and development guide of Bridger Canyon. In Bridger, we held that the commissioners were required to comply with the general plan when adopting zoning ordinances. Bridger Canyon Property Owners’ Assoc. v. Planning and Zoning Comm’n (1995), 270 Mont. 160, 175, 890 P.2d 1268, 1277.

In neither Bridger nor Little did the county commissioners amend or revise the master plan but, rather, attempted to adopt zoning ordinances which were inconsistent and conflicting with the master plan. In the present case, the Jefferson County Board of Commissioners adopted a local vicinity plan and specifically revised the master plan by including language that any provisions inconsistent with the vicinity plan would be “deemed amended, repealed, and/or superseded by the provisions of the Vicinity Plan.” In revising the Master Plan, the Board followed the procedure we stated was necessary in Little.

It is also important to note that the Jefferson County Board of Commissioners was not acting independently of the Jefferson County Planning Board. Unlike Little, where the commissioners adopted a resolution of intent without involving the planning board, the Local Vicinity Plan adopted by the Jefferson County Board was the result of an extensive process. It included public hearings before the Jefferson County Planning Board which ultimately recommended the adoption of the Local Vicinity Plan. This process also included a lengthy period of public comment before the Local Vicinity Plan was ultimately adopted by the Board of Commissioners.

The majority is concerned that the procedure followed in this instance may potentially result in piecemeal revisions of the Master Plan, until ultimately the Master Plan becomes a meaningless document. This may certainly occur. However, demographics change and the Legislature provided for a statutory framework which allows for master plans to be revised and changed to accommodate both population changes and resulting land use decisions. The Jefferson County Board followed this framework when it adopted the Local Vicinity Plan.

In summary, this is not a case where the commissioners adopted a zoning ordinance without input from the planning board or in contradiction with the master plan. It is an amendment to the master plan which the commissioners have authority to make. The Board acted entirely within its statutory authority, as the District Court so found.

Therefore, as to Issue 3,1 would affirm the decision of the District Court.

JUSTICE TRIEWEILER and JUSTICE HUNT join in the foregoing dissent of JUSTICE REGNIER.

JUSTICE TRIEWEILER,

dissents as follows:

I agree with the concurring and dissenting opinion of Justice Regnier.

In response to the concurring opinion of Justices Leaphart and Nelson, I wish to point out that while I agree with the public policy-arguments made therein, I can find no statutory basis for imposing those requirements on Jefferson County. Section 76-1-604, MCA, authorizes the governing body to “revise” its master plan. That statute does not limit the nature nor extent of revision as the majority would require. The majority has simply substituted its judgment for that of the legislature.

For these reasons, while I share the majority’s concern about the negative impact of piecemeal revision, I can find no statutory basis for doing anything about it.

Furthermore, my conclusion about what appears to be very plain language in § 76-1-604, MCA, has nothing to do with whether the proponent of revision to the master plan is “wearing a black or white hat.”

While the concurring opinion makes a lot of sense from a land use planning point of view it simply finds no basis in the statutory law pertaining to master plans.

For these reasons I dissent from the majority opinion.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID NATHAN NYE, Defendant and Appellant.
    No. 96-288.
    Submitted on Briefs January 9, 1997.
    Decided July 23, 1997.
    54 St.Rep. 766.
    283 Mont. 505.
    943 P.2d 96.

      For Appellant: Dan Yardley, Livingston.
    For Respondent: Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena; Tara Depuy, Park County Attorney, Livingston.
   JUSTICE NELSON

delivered the Opinion of the Court.

David Nathan Nye (Nye) was charged by information with the offense of malicious intimidation or harassment relating to civil or human rights, a felony, in violation of § 45-5-221, MCA. Nye pleaded guilty in the District Court for the Sixth Judicial District, Park County, pursuant to a plea agreement wherein he reserved his right to appeal the constitutionality of the statute. He now appeals his conviction. We affirm.

We address the following issues on appeal:

1. Does § 45-5-221, MCA, violate Nye’s right to freedom of speech under the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution?

2. Did the District Court err in determining that § 45-5-221, MCA, is not unconstitutionally vague?

3. Did the District Court err in determining that § 45-5-221, MCA, is not unconstitutionally over broad?

4. Does § 45-5-221, MCA, set penalties grossly disproportionate to the offense in violation of Nye’s rights under the Eighth Amendment to the United States Constitution and Article II, Sections 22 and 28 of the Montana Constitution?

Factual and Procedural Background

On April 14,1995, Nye and four other individuals affixed bumper stickers that read “NO I do not belong to CUT” on state and county road signs near Gardiner, Montana. They also placed the stickers in several mailboxes in the area and affixed them to property belonging to the Church Universal and Triumphant (CUT).

On April 26,1995, Nye was charged by information with violating § 45-5-221(l)(c), MCA, the “hate crimes” statute. He entered a plea of not guilty to the charge and was released on his own recognizance subject to certain conditions. On October 12,1995, Nye filed a motion to dismiss the case on the grounds that § 45-5-221(l)(c), MCA, is void for vagueness, over broad as applied to Nye, and in violation of Nye’s constitutional rights. This motion was subsequently denied by the District Court.

The State filed an Amended Information on December 6, 1995, adding an alternative charge of accountability for malicious intimidation or harassment relating to civil or human rights. Nye pleaded not guilty to the charges in the Amended Information and was again released on his own recognizance subject to the conditions previously imposed.

On March 15, 1996, pursuant to a plea agreement, Nye withdrew his not guilty plea and pleaded guilty to the charge of malicious intimidation or harassment relating to civil or human rights, a felony. Pursuant to § 46-12-204(3), MCA, Nye reserved his right to appeal the District Court’s order denying his motion to dismiss.

On April 8, 1996, a sentencing hearing was held wherein the District Court ordered that sentencing be deferred for 18 months and that Nye be placed on probation with the Department of Corrections. Nye’s sentence was ordered stayed pending appeal to this Court.

Standard of Review

A district court’s denial of a motion to dismiss involves a legal question that we review de novo to determine whether the district court’s interpretation of the law is correct. State v. Romero (1996), [279 Mont. 58], 926 P.2d 717, 722 (citing State v. Bullock (1995), 272 Mont. 361, 368, 901 P.2d 61, 66).

Section 45-5-221, MCA, the statute under which Nye was charged, provides:

Malicious intimidation or harassment relating to civil or human rights — penalty. (1) A person commits the offense of malicious intimidation or harassment when, because of another person’s race, creed, religion, color, national origin, or involvement in civil rights or human rights activities, he purposely or knowingly, with the intent to terrify, intimidate, threaten, harass, annoy, or offend:
(a) causes bodily injury to another;
(b) causes reasonable apprehension of bodily injury in another; or
(c) damages, destroys, or defaces any property of another or any public property.
(2) For purposes of this section, “deface” includes but is not limited to cross burning or the placing of any word or symbol commonly associated with racial, religious, or ethnic identity or activities on the property of another person without his or her permission.
(3) A person convicted of the offense of malicious intimidation or harassment shall be imprisoned in the state prison for a term not to exceed 5 years or be fined an amount not to exceed $5,000, or both.

All statutes carry with them a presumption of constitutionality and it is the duty of the courts to construe statutes narrowly to avoid an unconstitutional interpretation if possible. State v. Lilburn (1994), 265 Mont. 258, 266, 875 P.2d 1036, 1041 cert denied (1995), 513 U.S. 1078, 115 S.Ct. 726, 130 L.Ed.2d 630 (citing Montana Auto. Assn. v. Greely (1981), 193 Mont. 378, 382, 632 P.2d 300, 303; State v. Ytterdahl (1986), 222 Mont. 258, 261, 721 P.2d 757, 759). This Court has made clear that, when construing a statute, it must be read as a whole, and terms used in the statute should not be isolated from the context in which they were used by the Legislature. Lilburn, 875 P.2d at 1041 (citing McClanathan v. Smith (1980), 186 Mont. 56, 61-62, 606 P.2d 507, 510). Statutes should be construed according to the plain meaning of the language used therein. Lilburn, 875 P.2d at 1041 (citin g Norfolk Holdings v. Dept. of Revenue (1991), 249 Mont. 40, 43, 813 P.2d 460, 461.

When the constitutionality of a statute is challenged, the party making the challenge bears the burden of proving the statute unconstitutional beyond a reasonable doubt. State v. Martel (1995), 273 Mont. 143, 148, 902 P.2d 14, 17 (citing Monroe v. State (1994), 265 Mont. 1, 3, 873 P.2d 230, 231; GBN, Inc. v. Montana Dept. of Revenue (1991), 249 Mont. 261, 265, 815 P.2d 595, 597). Any doubt is to be resolved in favor of the statute. Martel, 902 P.2d at 18.

Issue 1.

Does § 45-5-221, MCA, violate Nye’s right to freedom of speech under the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution?

Nye argues on appeal that his acts of distributing the bumper stickers were meant to convey his beliefs and ideas, thus his conduct invokes his right to freedom of speech under the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution. He compares his conduct to that of the defendant in Texas v. Johnson (1989), 491 U.S. 397, 109 S.Ct. 2533,105 L.Ed.2d 342, whose conviction for burning the American flag in violation of a Texas statute prohibiting the desecration of a venerated object was overturned by the United States Supreme Court as infringing on his First Amendment rights.

Johnson was one of more than 100 political demonstrators who marched through the streets of Dallas, Texas, during the 1984 Republican National Convention. When the demonstrators reached Dallas City Hall, Johnson unfurled an American flag, doused it with kerosene, and set it on fire. He was the only demonstrator charged with a crime. In overturning Johnson’s conviction, the Supreme Court held that the restrictions on Johnson’s political expression were impermissibly content based. Johnson, 491 U.S. at 412, 109 S.Ct. at 2544, 105 L.Ed.2d 342. The Supreme Court also held that Johnson’s actions were expressive conduct permitting him to invoke the First Amendment. Johnson, 491 U.S. at 406, 109 S.Ct. at 2540, 105 L.Ed.2d 342.

The Supreme Court has made it clear that to be protected as “expressive conduct,” the activity must be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” Spence v. State of Washington (1974), 418 U.S. 405, 409, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842. Nye has not shown that his conduct meets this test.

In Wisconsin v. Mitchell (1993), 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436, the United States Supreme Court held that bias-motivated speech, coupled with assaultive or other nonverbal proscribed conduct, is not protected by the First Amendment. In that case, defendant’s sentence for aggravated battery was enhanced because he intentionally selected his victim because of the victim’s race. The Supreme Court concluded that “violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact... are entitled to no constitutional protection.” Mitchell, 508 U.S. at 484, 113 S.Ct. at 2199, 124 L.Ed.2d 436 (quoting Roberts v. United States Jaycees (1984), 468 U.S. 609, 628, 104 S.Ct. 3244, 3255, 82 L.Ed.2d 462).

In Lilburn we noted that the Supreme Court has provided clear guidelines for distinguishing a content-neutral regulation from one which is impermissibly content-based:

The principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.

Lilburn, 875 P.2d at 1042 (quoting Ward v. Rock Against Racism (1989), 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661).

“The determination of whether a regulation is content-based turns not on whether its incidental effects fall more heavily on expression of a certain viewpoint, but rather on whether the governmental purpose to be served by the regulation is not motivated by a desire to suppress the content of the communication.” Lilburn, 875 P.2d at 1042 (citing City of Renton v. Playtime Theaters, Inc. (1986), 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29). In the case before us, the governmental purpose to be served by § 45-5-221, MCA, is not to suppress the content of the communication, rather, it is to prohibit conduct that violates other criminal laws, such as assault, criminal mischief, and trespass, and that are committed against another person because of that person’s race, religion or national origin with the intent to intimidate, harass or annoy that person.

Nye points out that many others in the Gardiner community have similar stickers affixed to their vehicles or in their windows as a protest against what they perceive to be objectionable practices of CUT. However, Nye fails to recognize that the difference between his conduct and that of others in the Gardiner community is that the others he refers to placed the stickers on their own property while Nye placed the stickers on other people’s property without their permission. As the State asserts in its brief, if Nye had limited his attack on CUT to the display of a bumper sticker on his car or living room window, the First Amendment would have protected his right to do so. Nye lost his First Amendment protection when he coupled the message on the bumper sticker with defacement of the property of others.

Nye has not argued that Article II, Section 7 of the Montana Constitution provides any different or greater protection for free expression than does the First Amendment of the United States Constitution. Along those lines this Court has recognized that neither the First Amendment nor the Montana Constitution protect all speech:

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

State v. Cooney (1995), 271 Mont. 42, 48, 894 P.2d 303, 307 (quoting State v. Lance (1986), 222 Mont. 92, 102, 721 P.2d 1258, 1265; Chaplinsky v. State of New Hampshire (1942), 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031).

Furthermore, “free speech does not include the right to cause substantial emotional distress by harassment or intimidation.” Cooney, 894 P.2d at 307. Activities which are intended to embarrass, annoy or harass, as was the case here, are not protected by the First Amendment. State v. Helfrich (1996), 277 Mont. 452, 460, 922 P.2d 1159, 1164 (citing People v. Holt (Ill.App. 1995), 649 N.E.2d 571, 581).

Accordingly, we hold that § 45-5-221, MCA, does not violate Nye’s right to freedom of speech under the First Amendment to the United States Constitution or Article II, Section 7 of the Montana Constitution.

Issue 2.

Did the District Court err in determining that § 45-5-221, MCA, is not unconstitutionally vague?

The issue of vagueness, with regard to a statute or ordinance, can be raised in two different connotations: (1) whether it is so vague that the law is rendered void on its face; or (2) whether it is vague as applied in a particular situation. Martel, 902 P.2d at 18 (citing City of Choteau v. Joslyn (1984), 208 Mont. 499, 505, 678 P.2d 665, 668). Nye claims that § 45-5-221, MCA, is unconstitutionally vague on its face because the terms “annoy” and “offend” are not defined within the statute.

We have previously stated that a statute is void on its face “if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” State v. Brogan (1995), 272 Mont. 156, 168, 900 P.2d 284, 291 (citing State v. Crisp (1991), 249 Mont. 199, 202, 814 P.2d 981, 983). “No person should be required to speculate as to whether his contemplated course of action may be subject to criminal penalties.” Brogan, 900 P.2d at 291.

The Legislature need not define every term it employs when constructing a statute. If a term is one of common usage and is readily understood, it is presumed that a reasonable person of average intelligence can comprehend it. Martel, 902 P.2d at 18-19 (citing Contway v. Camp (1989), 236 Mont. 169, 173, 768 P.2d 1377, 1379). The failure to include exhaustive definitions will not automatically render a statute overly vague, so long as the meaning of the statute is clear and provides a defendant with adequate notice of what conduct is proscribed. Martel, 902 P.2d at 19. The terms “annoy” and “offend” have commonly understood meanings. “Annoy” means to bother, irritate or harass, particularly by repeated acts. The American Heritage Dictionary 112 (2d college ed. 1985). “Offend” means to create or excite anger, resentment or annoyance or to cause displeasure. The American Heritage Dictionary 862 (2d college ed. 1985). These are terms of common usage and are readily understood, thus we can presume that a reasonable person of average intelligence would comprehend their meaning.

Nye contends that it is possible to find a person guilty under § 45-5-221, MCA, if the victim were annoyed or offended by an action related to the victim’s religion. Nye maintains that if the victim is sensitive about his or her religious beliefs, then almost any action would be likely to annoy or offend them. The United States Supreme Court has long recognized that the constitutionality of a “vague” statutory standard is closely related to whether that standard incorporates a requirement of mens rea. Martel, 902 P.2d at 19 (citing Colautti v. Franklin (1979), 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d 596). Thus the requirement of a mental state to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid. Martel, 902 P.2d at 19-20 (citing Screws v. United States (1945), 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495). Indeed, contrary to Nye’s assertions, § 45-5-221, MCA, does not punish a defendant for offending or annoying another individual because of that individual’s race, religion or national origin. The statute punishes a defendant for assaults and damage to property when that conduct is done with the intent to annoy or offend another individual because of that individual’s race, religion or national origin.

The Supreme Court has made clear that if the challenged statute is reasonably clear in its application to the conduct of the person bringing the challenge, it cannot be stricken on its face for vagueness. Lilburn, 875 P.2d at 1044 (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 495 n.7, 102 S.Ct. 1186, 1191 n.7, 71 L.Ed.2d 362). “One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Lilburn, 875 P.2d at 1044 (quoting Hoffman, 455 U.S. at 495 n.7, 102 S.Ct. at 1191 n.7, 71 L.Ed.2d 362). Section 45-5-221, MCA, prohibits damaging, destroying or defacing the property of another with the intent to harass, annoy or offend because of another’s race, religion or national origin. By affixing stickers to public and private property, Nye defaced that property. His actions were committed with the intent to harass, annoy or offend CUT members. Nye’s actions clearly fall within the prohibitions of § 45-5-221, MCA.

Accordingly, we hold that the District Court did not err in determining that § 45-5-221, MCA, is not unconstitutionally vague on its face. Moreover, there is nothing in the record of this case which would support a conclusion that the statute is vague as applied to Nye’s conduct.

Issue 3.

Did the District Court err in determining that § 45-5-221, MCA, is not unconstitutionally over broad?

“An over-broad statute is one that is designed to burden or punish activities which are not constitutionally protected, but the statute includes within its scope activities which are protected by the First Amendment.” Martel, 902 P.2d at 20 (quoting Hill v. City of Houston, Tex. (5th Cir. 1985), 764 F.2d 1156, 1161, cert. denied (1987), 483 U.S. 1001, 107 S.Ct. 3222, 97 L.Ed.2d 729). A facial overbreadth challenge is an exception to the general rule that statutes are evaluated in light of the situation and facts before the court. Lilburn, 875 P.2d at 1040 (citing R.A.V. v. City of St. Paul, Minn. (1992), 505 U.S. 377, 411, 112 S.Ct. 2538, 2558, 120 L.Ed.2d 305; Broadrick v. Oklahoma (1973), 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830).

Nye contends that § 45-5-221, MCA, is unconstitutionally over broad because under the definition of “deface” in subsection (2) of the statute, a defendant could be found guilty if he merely placed the stickers in mailboxes if that act annoyed or offended a person’s religious beliefs. However, the claimed overbreadth of a statute, must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep, particularly where conduct and not merely speech is involved. State v. Ross (1995), 269 Mont. 347, 353, 889 P.2d 161, 164 (citing Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918, 37 L.Ed.2d 830). In the instant case, Nye has failed to demonstrate how the statute might infringe on another’s constitutionally protected rights in a real or substantial way, especially when compared to the statute’s wide variety of constitutional applications.

This Court has determined that when the claimed overbreadth of a statute is not substantial and real, the statute is not unconstitutional on its face, but rather an unconstitutional application of the statute should be dealt with on a case-by-case basis. Ross, 889 P.2d at 164 (citing New York v. Ferber (1982), 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113). In that regard, Nye's conduct of affixing the stickers to state and county road signs, mailboxes, as well as property belonging to CUT, was clearly a violation of § 45-5-221(l)(c), MCA. Even assuming that the damage to the mailboxes and road signs was, as argued by Nye, “nominal,” nevertheless there was damage. Moreover, the mailboxes and road signs were defaced within the definition of “deface” in § 45-5-221(2), MCA. Nye placed the anti-CUT stickers on the mailboxes and road signs. Whether the word “deface” would have properly applied to his placing the stickers in the mailboxes is irrelevant. That was not the conduct for which he was convicted, and we do not find it necessary to address that argument. Section 45-5-221(l)(c), MCA, clearly applied to and criminalized Nye’s actual conduct at issue here.

Accordingly, we hold that the District Court did not err in determining that § 45-5-221, MCA, is not unconstitutionally over broad on its face or as applied to Nye’s conduct.

Issue 4.

Does § 45-5-221, MCA, set penalties grossly disproportionate to the offense in violation of Nye’s rights under the Eighth Amendment to the United States Constitution and Article II, Sections 22 and 28 of the Montana Constitution?

The penalty for violating § 45-5-221, MCA, is imprisonment in the state prison for a term not to exceed 5 years or a fine in an amount not to exceed $5,000, or both. Section 45-5-221(3), MCA. Nye contends on appeal that this penalty is so grossly disproportionate to the crime he committed that it violates the Eighth Amendment of the United States Constitution and Article II, Sections 22 and 28 of the Montana Constitution.

The State contends that Nye is precluded from raising this issue on appeal because he failed to raise it in the court below. As a result, when Nye pleaded guilty under § 46-12-204(3), MCA, this issue was not preserved for appeal. Section 46-12-204(3), MCA, provides:

With the approval of the court and the consent of the prosecutor, a defendant may enter a plea of guilty, reserving the right, on appeal from the judgment, to review the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant must be allowed to withdraw the plea.

In his motion to dismiss, Nye argued that § 45-5-22l(l)(c), MCA, violated his right to free speech, and was unconstitutionally over broad and vague. He did not argue that the penalty provided for in the statute was grossly disproportionate to the crime with which he was charged, as he now contends. Since Nye did not raise this issue below, it was not decided either adversely or favorably to him by the District Court. Therefore, there is no “adverse determination” to review on appeal regarding this issue. Section 46-12-204(3), MCA. Accordingly, we decline to address the merits of this issue.

Affirmed.

JUSTICES TRIEWEILER, REGNIER, LEAPHART and HUNT concur.

      . Nothing in this opinion should be read as addressing conduct involving mail receptacles that might otherwise be prohibited by federal laws or regulations.


author: JUSTICE LEAPHART

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DANIEL BARNHART, Defendant and Appellant.
    No. 96-559.
    Submitted on Briefs June 12, 1997.
    Decided July 23, 1997.
    54 St.Rep. 772.
    283 Mont. 518.
    942 P.2d 718.
    For Appellant: Jeffrey T. Renz and Matt Putzier, Jr., Montana Defender Project, University of Montana School of Law, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Elizabeth Griffing, Ass’t Attorney General, Helena; Brant Light, Cascade County Attorney, Great Falls.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Daniel Barnhart (Barnhart), appeals from the Eighth Judicial District Court’s order sentencing him to twenty years in the Montana State Prison. We reverse and remand for resentencing.

The following issue is raised on appeal:

May a sentencing court bypass the sexual offender evaluation requirement of § 46-18-111(1), MCA, based upon an assumption that the defendant will not cooperate in the evaluation or will not benefit from treatment?

In August of 1995, Barnhart was charged with sexual assault, a felony, in violation of § 45-5-502(1), and § 45-5-502(3), MCA. Barn-hart pled guilty to the charge and the District Court ordered a sexual offender evaluation to be completed. Barnhart attended the first of three evaluation sessions scheduled with Dr. Ron Silvers. Prior to his second scheduled session, Barnhart filed a motion to withdraw his guilty plea based on his belief that the prosecutor had coerced him into pleading guilty by threatening to seek a persistent felony offender designation if he pled not guilty. Barnhart then declined to further cooperate in the sexual offender evaluation sessions pending a hearing on his motion to withdraw his plea of guilty.

The District Court denied Barnhart’s motion to withdraw his guilty plea and, despite the fact that an evaluation had not been completed, a sentencing date was scheduled. At sentencing, Barnhart objected to the District Court’s decision to impose sentence without the benefit of a sexual offender evaluation and a recommendation for treatment. The District Court overruled Barnhart’s objections and imposed a twenty-year sentence. Barnhart appeals this twenty-year sentence.

In State v. Alexander (1994), 265 Mont. 192, 875 P.2d 345, we held that a district court’s consideration of a completed presentence report prior to sentencing is not discretionary. Alexander, 875 P.2d at 352. Under § 46-18-111(1), MCA, a defendant convicted of violating § 45-5-502, MCA, where the victim is under 16 years of age, must be evaluated and a recommendation as to treatment must be included in the defendant’s presentence investigation. Specifically, § 46-18-111(1), MCA, provides:

(1) Upon the acceptance of a plea or upon a verdict or finding of guilty to one or more felony offenses, the district court shall direct the probation officer to make a presentence investigation and report. The district court shall consider the presentence investigation report prior to sentencing. If the defendant was convicted of an offense under 45-5-502,45-5-503, 45-5-504,45-5-505, 45-5-507, or 45-5-625 involving a victim who was less than 16 years of age when the offense was committed, the investigation must include an evaluation of the defendant and a recommendation as to treatment of the offender in the least restrictive environment, considering community safety and offender needs. The evaluation must be completed by a person who is determined to be qualified under guidelines established by the department of corrections. All costs related to the evaluation must be paid by the defendant. If the defendant is determined by the district court to be indigent, all costs related to the evaluation are the responsibility of the district court and must be paid by the county or the state, or both, under Title 3, chapter 5, part 9.

Here, as in Alexander, the defendant was convicted of sexual assault of a victim under 16 years of age. In Alexander, this Court explained that the legislature amended subsection (1) of § 46-18-111, MCA, so as to mandate an evaluation and a recommendation as to treatment in the least restrictive environment in light of community safety and offender needs .Alexander, 875 P.2d at 351. In addition, we explained that the wording of the 1991 statute expressly requires that a district court “shall direct the probation officer to make a presentence evaluation and report” and that the “investigation must include an evaluation of the defendant and a recommendation as to treatment by a qualified person ....’’Alexander, 875 P.2d at 351.

In the instant case, the District Court sentenced Barnhart before it had the benefit of Dr. Silvers’ evaluation. The State contends that an evaluation would have made no difference because Barnhart, with his history of prior sex offenses, would not have qualified for community treatment in any event. In stating, “I don’t know if there is hope for [Barnhart] in treatment,” the District Judge apparently shared this sentiment.

Although Barnhart refused to participate in scheduled evaluations, his refusal was based on the pendency of his motion to change his plea. Barnhart’s desire to avoid making any statements or admissions prior to a ruling on his motion to withdraw his plea should not have been construed either as a ploy to forestall sentencing or as a lack of amenability to future treatment. The statute mandates an evaluation. There is no leeway for the court to make any assumptions as to whether the defendant will cooperate in an evaluation or whether he will be amenable to treatment.

Section 46-18-111(1), MCA, is clear on its face. Before a defendant convicted of violating § 45-5-502, MCA, may be sentenced, the district court must order and consider an evaluation of the defendant and a recommendation as to treatment. The District Court’s decision to sentence Barnhart without the benefit of the requisite evaluation constitutes reversible error. Accordingly, we reverse the sentence and remand to the District Court for resentencing consistent with the requirements set forth under § 46-18-111(1), MCA.

JUSTICES HUNT, NELSON, REGNIER and GRAY concur.