text:
    ALVA DARRELL BOGLE, Petitioner and Appellant, v. OWNERRENT RENT TO OWN, Employer, and STATE COMPENSATION MUTUAL INSURANCE FUND, Respondent and Respondent.
    No. 93-605.
    Submitted on Briefs March 31, 1994.
    Decided April 25, 1994.
    51 St.Rep. 380.
    264 Mont. 515.
    872 P.2d 800.

      For Petitioner and Appellant: John C. Doubek, Small, Hatch, Doubek & Pyfer, Helena.
    For Respondent: Daniel J. Whyte, State Compensation Mutual Insurance Fund, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Alva Darrell Bogle, claimant, appeals from a decision of the Workers’ Compensation Court of the State of Montana. The court denied claimant’s request for an award of benefits by the State Compensation Insurance Fund because it determined that the claimant failed to notify his employer, Ownerrent Rent to Own, of an alleged work-related accident as required by § 39-71-603, MCA. We affirm.

The claimant presents the following issue for review: Whether the Workers’ Compensation Court erred in determining that claimant failed to notify his employer of an alleged work-related accident as required by § 39-71-603, MCA.

Claimant and T. C. Collins were both hired by Ownerrent as drivers/deliverers during December 1992. On January 6,1993, claimant and Collins were in the process of repossessing one of Ownerrent’s washing machines. As they loaded the machine into the delivery van, claimant alleges that he fell and that the machine landed on top of him. Collins stated that claimant “slipped and the washer, the dolly came back down on top of him.” The next day claimant called his manager at Ownerrent, David Robinson, and informed Robinson that claimant would be taking sick leave because “[he] was hurting where [he] could not get off the couch ....” Both parties agree that claimant did not notify Robinson of a work-related accident at that time.

After two days’ sick leave claimant resumed his work at Owner-rent. On January 15, 1993, he was terminated from employment for reasons not relevant to this appeal.

According to medical records, claimant visited Dr. Allen Weinert regarding back pain on January 27, 1993. On February 8 and 12, 1993, claimant visited Dr. Brooke Hunter. On February 8 Dr. Hunter ordered an MRI examination. On February 12, Dr. Hunter gave the claimant the results of the MRI which showed claimant had a herniated disc on the right side of his spine. Claimant testified that he subsequently had reconstructive disc surgery in March 1993.

On February 25,1993, claimant filed a claim for benefits alleging that his back injury was a result of the work-related accident mentioned above. The State Compensation Insurance Fund (State Fund) denied the claim because claimant failed to comply with the notification requirements set forth in § 39-71-603, MCA. The Workers’ Compensation Court determined that the claim for benefits was barred because of claimant’s failure to notify his employer of a work-related accident within thirty days of the January 6,1993 accident. From the transcripts of proceedings before the Workers’ Compensation Court, the record discloses the following:

JUDGE MCCARTER: Mr. Bogle, I do have a couple of questions. As I understand your testimony, and I want to make sure that I am understanding you correctly, when you called Mr. Robinson the day after the injury, you didn’t tell him about the accident. You just told him that you were hurting and couldn’t come in to work?
THE WITNESS: Right.
JUDGE MCCARTER: If I understand you further, the first time you specifically told him about the accident was after you had the MRI?
THE WITNESS: Right.
JUDGE MCCARTER: So your conversations with him prior to that had been about your hurting?
THE WITNESS: Right.

At trial, claimant further testified that he believed Collins to be a supervisor for Ownerrent, and that Collins’ actual knowledge of the accident satisfied the notice requirements of § 39-71-603, MCA. The court, however, determined that claimant’s testimony that he believed Collins to be his supervisor was not credible or reasonable. After analyzing the inapplicability of ostensible authority in this case, the court entered judgment for the State Fund. Claimant appeals.

Did the Workers’ Compensation Court err in determining that claimant failed to notify his employer of an alleged work-related accident as required by § 39-71-603, MCA?

In reviewing the Workers’ Compensation Court’s findings of fact, we will not substitute our judgment for the trier of fact unless the findings are clearly erroneous, and the court’s conclusions of law are reviewed to determine if the conclusions are correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

Claimant argues that the object and purpose of § 39-71-603, MCA, have been met. In support of his argument, he asserts that substantial, credible evidence supports his belief that Collins was his supervisor; that because of the nature of his injury he was prohibited from notifying his employer of the work-related injury within thirty days of the accident; and that the court erred in finding that Robinson was not aware of claimant’s work-related accident within thirty days of the accident. We disagree.

To obtain workers’ compensation benefits from the State Fund, an employee who is injured on the job or involved in a work-related accident must, within thirty days, notify the employer of the time and place where the accident occurred and the nature of the injury. Section 39-71-603, MCA. Actual knowledge of the accident and injury by the employer, manager or superintendent of the employer is also notice under § 39-71-603, MCA.

Claimant argues that the decision of the Workers’ Compensation Court should be reversed based upon our decision in Killebrew v. Larson Cattle Company (1992), 254 Mont. 513, 839 P.2d 1260. We disagree.

In Killebrew the claimant suffered an industrial accident on December 17, 1989, and within two days personally told his employer that he had hurt his shoulder in the accident. On March 17, 1990, claimant suffered another industrial accident and on the next day claimant told his employer of the accident and showed him physical injuries to his body.

Clearly in Killebrew the employer had actual knowledge of the accident and injuries, thereby satisfying the requirement of notice under § 39-71-603, MCA.

The facts in Killebrew are not comparable to those in this case. No knowledge of the claimed industrial accident was made available by claimant to the employer, the employer’s managing agent or superintendent within thirty days of the claimed injury as required by the statute.

In this case claimant failed to timely notify the employer or its manager, David Robinson, of the accident which is alleged to have caused the back injury. See Lee v. Lee (1988), 234 Mont. 197, 761 P.2d 835.

Further, claimant’s contention that he believed Collins occupied a supervisory position at Ownerrent is equally insufficient to give his employer actual notice in this case. Claimant and Collins were hired the same day and held identical positions at Ownerrent. When asked about whether he held himself out as the claimant’s supervisor, Collins stated:

[W]hat I said was that when I had my interview there the manager that gave me my interview had said that he was looking for somebody to be — that he could appoint to warehouse manager. ...
It’s possible that I could have said it in a way that he thought I was the warehouse manager, yes, but when we were talking about it I said in my interview that David [Robinson] said he was looking for somebody — He had told me he was looking for somebody to appoint to warehouse manager, somebody he didn’t have to watch all the time.

Claimant contended that his belief in Collins’ supervisory authority was reasonable because Collins “always jump[ed] in the driver’s seat and [did] the paper work and what have you.”

In rejecting the claimant’s argument that Collins was an ostensible supervisory agent, the court found:

Whether ostensible authority existed must be determined from all facts and circumstances surrounding the matter.
“The test is found in a determination of the exact extent to which the principal held the agent out or permitted him to hold himself out as authorized, and what a prudent person, acting in good faith, under the circumstances would reasonably believe the authority to be.[”]

Butler Mfg. Co. v. J & L Imp. Co., 167 Mont. 519, 527, 540 P.2d 962 (1975). The belief that another is an agent must be reasonable. Kraus v. Treasure Belt Mining Co., 146 Mont. 432, 435-6, 408 P.2d 151 (1965). The circumstances in this case are inconsistent with the creation of an ostensible agency. Robinson, not Collins, assigned deliveries, determined work schedules, and signed off on time sheets. Collins performed no supervisory functions. Collins’ “jumping” into the driver’s seat when he made deliveries does not amount to supervision or provide a basis for petitioner to reasonably believe that Collins was his supervisor.

After reviewing the record, we conclude the court’s decision that, under the facts in the record, the employer did not have notice within thirty days of the alleged work-related injury is not clearly erroneous. We affirm the decision of the Workers’ Compensation Court.

JUSTICES HARRISON, GRAY, NELSON and WEBER concur.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    IN THE MATTER OF DECLARING D.H. and F.H. Youths In Need Of Care.
    No. 93-504.
    Submitted on Briefs March 31, 1994.
    Decided April 28, 1994.
    51 St.Rep. 386.
    264 Mont. 521.
    872 P.2d 803.

      For Appellant: Chris P. Christensen, Kalispell.
    For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Thomas J. Esch, Flathead County Attorney, Randy K. Schwickert, Assistant County Attorney, Kalispell.
    For Youths:Robert Allison, Kalispell.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On behalf of the Department of Family Services, the Flathead County Attorney filed a petition to terminate the parent-child relationship of Susan H. and her natural children, D.H. and F.H., in the Eleventh Judicial District Court in Flathead County. The District Court found that the children were abused and neglected, terminated Susan’s parental rights, and awarded permanent custody of the children to the Department of Family Services. Susan appeals the order of the District Court. We affirm.

Susan raises the following issues on appeal:

1. Did the District Court abuse its discretion when it concluded that Susan had abandoned D.H. and F.H.?

2. Did the District Court abuse its discretion when it concluded that a treatment plan was not required for Susan?

3. Was there substantial credible evidence to support the District Court’s finding that previous efforts to counsel Susan had failed and that she was unlikely to change?

We find our resolution of the first issue dispositive, and therefore, will not address the remaining two issues.

FACTUAL BACKGROUND

Susan H. and Duaine H. are the natural parents of twin girls, D.H. and F.H., who were born March 23, 1990, in Kalispell, Montana. Susan is also the mother of J.A. Only the parent-child rights between Susan and the twins are at issue in this case.

On September 26,1990, Susan and her mother were arrested and incarcerated at the Flathead County Detention Center for their involvement in a scheme to deliver a series of bad checks. Susan ultimately pled guilty to felony theft and accountability for issuing bad checks and was sentenced to a term of 17 years at the Women’s Correctional Center in Warm Springs. She was denied parole in November 1992.

On the day of her arrest, Susan’s mother telephoned an acquaintance, Susan Schraeder, to ask if Schraeder would babysit D.H. and F.H. When Schraeder went to pick up the twins, she was given a box containing a large supply of cereal, baby food, and formula. Susan and her mother did not return for D.H. and F.H. that day due to their arrest and incarceration. Susan’s mother was released from jail, but was unable to care for the children. Duaine attempted to care for them, but in July 1991, having no job and no resources, he requested foster placement for D.H. and F.H. with the Schraeders, who then became licensed foster parents. Duaine was given a treatment plan and reunited with D.H. and F.H. in September 1991, but within two months, he was again relying on the Schraeders for the majority of the care and supervision of the twins. In December 1991, D.H. and F.H. were again placed with the Schraeders, where they have remained since that time.

Duaine was arrested for probation violation in February 1992. On June 19,1992, the Flathead County Attorney, on behalf of the Department of Family Services (DFS) filed a petition for temporary investigative authority and protective services based on the allegation that the children were abused and neglected within the meaning of § 41-3-102, MCA. With the petition, an affidavit was filed in which it was alleged that: (1) both parents were incarcerated due to criminal convictions; (2) the mother’s lengthy prison sentence would cause her to be absent from the children’s lives for a prolonged period; and (3) the father would not be released until August 1992 and prior to his incarceration, had failed to provide the minimum physical, emotional, and psychosocial needs of the children.

On October 19, 1992, the DFS filed a petition for permanent custody and authority to consent to adoption, and requested that D.H. and F.H. be declared youths in need of care.

Based upon evidence from the June 9, 1993, hearing, the District Court declared D.H. and F.H. youths in need of care, abandoned by their mother, whose best interests would be served by termination of the parent-child legal relationship with their natural mother. On November 2, 1993, Duaine voluntarily terminated his parent-child legal relationship with D.H. and F.H., consented to their adoption, and relinquished their legal custody to the DFS.

STANDARD OF REVIEW

This Court has previously stated:

We presume the correctness of a district court’s decision to terminate parental rights and we will not overturn that decision “unless there is a mistake of law or a finding of fact not supported by substantial credible evidence that would amount to a clear abuse of discretion.” In re S.P. (1990), 241 Mont. 190, 194, 786 P.2d 642, 644.

In re Custody of M.D. (1993), [262 Mont. 183] 864 P.2d 783, 785, 50 St. Rep. 1505, 1506. See also In re Matter of R.A.D. (1988), 231 Mont. 143, 753 P.2d 862. However, that standard of review is inadequate for the following reasons. First, we have adopted a different standard of review for nonjury findings of fact than we apply to jury verdicts. Interstate Prod. Credit Ass’n. v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285. There, we stated:

This Court will affirm the findings of a trial court sitting without a jury unless the findings are clearly erroneous. Rule 52(a), M.R.Civ.P. In comparison, this Court will affirm the verdict of a jury if there is substantial credible evidence in the record to support the verdict.....
Substantial credible evidence when used to support a jury verdict is fairly well understood; however, when substantial evidence is used in the clearly erroneous standard it is less clear. If a finding is not supported by substantial evidence it is clearly erroneous. The converse proposition that a finding supported by substantial evidence cannot be clearly erroneous is not true in a non-jury case. “Substantial evidence and clearly erroneous are not synonymous and a finding may be set aside, though supported by substantial evidence if found to be clearly erroneous.” W.R.B. Corp. v. Geer (C.A. 5th 1963), 313 F.2d 750.
We adopt the following three-part test to determine if a finding is clearly erroneous. First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended the Court may still find that “[a] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” U.S. v. U.S. Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. [Citations omitted].

DeSaye, 820 P.2d at 1287. This is the appropriate standard to be applied to purely factual findings in a proceeding to terminate parental rights. The second reason the previously articulated standard of review for termination of parental rights is inadequate is that, as a general rule, we review conclusions of law to determine whether they are correct. In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 618. This is also the appropriate basis for reviewing most conclusions of law in a termination proceeding.

However, we find that the conclusion that a child is abused and neglected involves a decision that is neither purely factual nor purely legal, and is analogous to a district court’s determination of conscionability when reviewing marital and property settlement agreements.

When it determines the conscionability of a marital and property settlement agreement, a district court
engage[s] in discretionary action which cannot be accurately characterized as a finding of fact or a conclusion of law. These discretionary judgments made by the trial court are presumed to be correct and will not be disturbed by this Court absent an abuse of discretion by the lower court.

In re Marriage of Caras (1994), [263 Mont. 377] 868 P.2d 615, 617, 51 St. Rep. 98, 99 (citing In re Marriage of Hamilton (1992), 254 Mont. 31, 36, 835 P.2d 702, 704-05).

In this case, Susan challenges the District Court’s decision that her children were abused and neglected. Therefore, we review the District Court’s decision to determine whether there was an abuse of discretion.

ABANDONMENT

Did the District Court abuse its discretion when it concluded that Susan had abandoned D.H. and F.H.?

A district court must determine the presence of at least one of the threshold requirements set forth at § 41-3-609(1), MCA, to terminate a parent-child legal relationship. In satisfaction of that requirement, the District Court concluded under § 41-3-609(l)(b), MCA, that Susan abandoned D.H. and F.H.

Section 41-3-102(8)(d), MCA, states that a child is abandoned when the child is left

under circumstances that make reasonable the belief that the parent or other person does not intend to resume care of the child in the future or by willfully surrendering physical custody for a period of 6 months and during that period does not manifest to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child ....

Although Susan contends that she and Duaine intended to resume custody of the children, the statute requires that the parent “manifest a firm intention” to resume custody. The District Court found that the children have not lived with their mother since October 1990 (a period over two and one-half years by the time of the hearing) and that during this time, Susan “has never expressed an intention to the Schraeders or to the Department of Family Services to resume custody or make permanent legal arrangements for the care of the [children].”

The District Court also found:

Since her transfer to the Women’s Correctional Center in Warm Springs, Susan has never requested from the Department or the Schraeders any visitation with the girls, nor has she initiated any telephone calls to [them]. She has, however, on occasion, sent them cards on holidays and one telephonic contact between Susan and the girls was initiated by Susan’s mother on their second birthday.

These findings are supported by substantial evidence, are not clearly erroneous, and must be affirmed on appeal.

The evidence established that Susan willfully surrendered physical custody of her six-month-old twins to Susan Schraeder with the representation that it would be for the day. Three and one-half years later, the twins continue to reside with the Schraeders. There is no evidence in the record that Susan ever indicated to the persons having physical custody of the twins, that she intended to resume physical custody or attempted to make any permanent legal arrangements for the care of the children.

We have previously affirmed a finding of abandonment under similar circumstances. In re Matter of M.J.D. (1987), 225 Mont. 200, 205, 731 P.2d 937, 940. In that case, we concluded it was significant that the father had not informed his family or social workers of his intention to acquire custody until after termination proceedings had begun. M.J.D., 731 P.2d at 940.

We conclude that the District Court did not abuse its discretion when it concluded that Susan’s children had been abandoned by her, were “abused and neglected,” and on that basis, terminated her parental rights.

Because we affirm the District Court’s conclusion that Susan abandoned D.H. and F.H., and because abandonment is a sufficient basis for termination of parental rights under § 41-3-609(l)(b), MCA, we need not determine whether there was a sufficient basis for termination under § 41-3-609(l)(c), MCA. The order of the District Court is affirmed.

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


author:
CHIEF JUSTICE TURNAGE JUSTICE GRAY
      JUSTICE TRIEWEILER

text:
    DEBRA RUTH MONROE and MARVIN MONROE, Plaintiffs and Appellants, v. THE STATE OF MONTANA, Defendant and Respondent.
    No. 93-403.
    Submitted February 16, 1994.
    Rehearing Denied May 26, 1994.
    Decided March 30, 1994
    51 St.Rep. 327.
    873 P.2d 230.
    265 Mont. 1.

      For Appellants: Kirk Bond (argued) and Carl A. Hatch, Small, Hatch, Doubek & Pyfer, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General; Clay R. Smith, Solicitor (argued), Helena. Mike McGrath, County Attorney and Vicki Frazier, Deputy County Attorney, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Debra Ruth Monroe and Marvin Monroe seek a declaratory judgment that § 87-2-102(2), MCA (1989), is void for vagueness. The statute defines “resident” for purposes of issuing resident fishing, hunting, and trapping licenses. The District Court for the First Judicial District, Lewis and Clark County, upheld the constitutionality of the statute. We affirm.

The issue is whether the term “resident” is unconstitutionally vague as defined in § 87-2-102(2), MCA (1989).

Montana has long assessed higher fees from non-residents than from residents of Montana for licenses to fish, hunt, and trap in this state. This fee differential has been upheld against challenges based upon the Privileges and Immunities Clause of Art. IV, § 2, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Baldwin v. Montana Fish and Game Comm’n. (1978), 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354.

In January 1992, the State of Montana brought misdemeanor charges in Lewis and Clark County Justice Court against Debra Ruth Monroe and Marvin Monroe, alleging that they made false statements in obtaining resident hunting licenses in violation of § 87-2-205, MCA. Marvin Monroe also faces related charges, including illegally killing big game animals.

“Resident” is defined, for purposes of § 87-2-205, MCA, at § 87-2-102, MCA. The Monroes moved to dismiss the charges against them, arguing that § 87-2-102(2), MCA (1989), which applies in this case, provides no precise and clear definition of “resident.” The Justice Court denied the motion to dismiss.

The Monroes then filed this declaratory judgment action in District Court. The Justice Court granted a stay of the criminal matter during the proceedings in District Court. In July 1993, the District Court entered judgment in the State’s favor and dissolved the stay in Justice Court. The Monroes appeal. Because this is a challenge to the facial validity of the statute, no facts are before us concerning the Monroes’ residency status.

The State argues in its brief that a declaratory judgment proceeding may not be used to attack a decision in an ongoing criminal prosecution. By order dated December 7,1993, this Court declined to consider that argument.

Is the term “resident” unconstitutionally vague as defined in § 87-2-102(2), MCA (1989)?

Statutes are accorded a presumption of constitutionality; the burden of proof is upon the party challenging a statute’s constitutionality. 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. GBN, 815 P.2d at 597.

This Court has set forth the standard for facial vagueness as “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 by statute.” City of Choteau v. Joslyn (1984), 208 Mont. 499, 505, 678 P.2d 665, 668 (citation omitted). However, the fact that a statute is difficult to apply to some situations does not render it unconstitutionally vague.

The strong presumptive validity that attaches to [a legislative act] has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.

United States v. National Dairy Corp. (1963), 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561, 565. The complainant attacking a statute’s validity must prove that the statute is vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 495, n. 7, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369 (citation omitted).

Section 87-2-102, MCA (1989), provides:

Resident defined. In determining a resident for the purpose of issuing resident fishing, hunting, and trapping licenses, the following provisions shall apply:
(2) Any person who has been a resident of the state of Montana, as defined in 1-1-215, for a period of 6 months immediately prior to making application for said license shall be eligible to receive a resident hunting, fishing, or trapping license.

Section 1-1-215, MCA, provides:

Residence — rules for determining. Every person has, in law, a residence. In determining the place of residence the following rules are to be observed:
(1) It is the place where one remains when not called elsewhere for labor or other special or temporary purpose and to which he returns in seasons of repose.
(2) There can only be one residence.
(3) A residence cannot be lost until another is gained.
(6) The residence can be changed only by the union of act and intent.

In 1991, § 87-2-102(2), MCA, was revised so that it no longer refers to § 1-1-215, MCA, in defining “resident.” The Monroes point to that revision in arguing that the 1989 statutory scheme is unconstitutionally vague. They admit, however, that neither the fact of the revision nor the testimony in support of the revision (which they have cited in their brief) determines the constitutionality of the 1989 version of the statute. The fact that the 1991 revision made the statute clearer as to some applicants, such as persons who spend part of each year in Montana, does not render the 1989 statute unconstitutionally vague.

We have not previously construed § 1-1-215, MCA, in the criminal law context, but the Monroes cite civil cases in which this Court has applied that statute. Section 87-2-102(2), MCA (1989), in addition to incorporating § 1-1-215, MCA, provides that a person must meet the definition of “resident” “for a period of 6 months immediately prior to making application for [a license to fish, hunt, or trap.]” This six-month duration requirement distinguishes this case from the cases interpreting § 1-1-215, MCA, in a civil context.

In Hoffman, the United States Supreme Court upheld a village ordinance against a challenge of facial vagueness. The ordinance, violation of which was punishable as a misdemeanor criminal offense, required local businesses to obtain a license if they sold any items “designed or marketed for use with illegal cannabis or drugs.” The Court stated that a law challenged as unduly vague on its face must be demonstrated to be impermissibly vague in all of its applications. Hoffman, 455 U.S. at 497, 102 S.Ct. at 1192. The Court ruled that the ordinance’s clear applicability to at least some items sold by the plaintiff rebutted the facial challenge. Hoffman, 455 U.S. at 500, 102 S.Ct. at 1194. Counsel for the Monroes agreed at oral argument before this Court that the Hoffman standard applies in this case.

Section 87-2-102(2), MCA (1989), requires that, for a period of six months immediately preceding the application for a resident license to fish, hunt, or trap in Montana, the applicant must have been a resident as defined in § 1-1-215, MCA. Under § 1-1-215, MCA, a residence is the place where one remains when not called elsewhere for labor or other special or temporary purpose and to which one returns in seasons of repose; a person has only one residence; a residence is not lost until another residence is gained; and residence is established by the union of act and intent. Certainly a person who came into Montana on the day before hunting season, on his or her first trip to this state, and intending to stay for only a week or two of hunting, would know that he or she did not qualify as a resident under this standard.

We conclude that at least some applicants could determine whether they qualified as residents of Montana under § 87-2-102(2), MCA (1989). Therefore, the Monroes’ facial challenge to the statute must fail. We hold that the District Court did not err in upholding the constitutionality of the statute. Affirmed.

JUSTICES HARRISON and WEBER concur.

JUSTICE GRAY

specially concurring.

I concur in the result reached by the Court, but not in all that is said in reaching that result. Specifically, I disagree that the “impermissible in all its applications” language from Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (Hoffman) is to be read as literally as the Court suggests. As a practical matter, such a reading would make it impossible to succeed in any facial void for vagueness challenge. Nor is such a literal reading supported by the United States Supreme Court’s discussion and application of that language in Hoffman.

Indeed, in all candor, I hardly know what to make of the Hoffman decision. Throughout the opinion in that case, the Supreme Court appears to intermingle traditionally separate “void for vagueness on its face” and “void for vagueness as applied” concepts. It does so by repeated references in its pronouncements, and its application of those pronouncements, to factual and record-based materials relating to Flipside’s conduct, the notion of examining a complainant’s conduct before analyzing other hypothetical applications of the law, and the like. In so doing, the Supreme Court has blurred the rules governing the heretofore purely legal issue involved in a facial void for vagueness challenge. Given the posture in which the present case is before this Court — that is, on the facial challenge and without a single shred of fact or evidence of record — I conclude that Hoffman provides little appropriate or applicable guidance here.

I believe it is appropriate to begin with the Supreme Court’s oft-stated pronouncement of the critical element involved in evaluating criminal statutes under a void for vagueness challenge, noting its consistency with this Court’s standard, as enunciated in City of Choteau v. Joslyn (1984), 208 Mont. 499, 678 P.2d 665:

[B]eeause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.

Grayned v. City of Rockford (1972), 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227. In short form, this element might be referred to as “fair warning.”

I conclude that adding the scienter, mens rea or mental state element of the offense with which the Monroes were charged to the two statutes relating to residency provides sufficient fair warning of the conduct necessary to “stay on the right side of the law” and negate a successful facial challenge to the statutes at issue here. I note that, in Hoffman, the Supreme Court specifically referenced and applied its long-standing recognition of a scienter requirement as mitigation of a statute’s vagueness, “especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Hoffman, 455 U.S. at 499, 102 S.Ct. at 1193 (citations omitted).

In the case before us, I agree that the “guidelines” contained in § 1-1-215, MCA, are insufficient on a stand-alone basis to withstand a facial challenge for vagueness in the context of a criminal proceeding. It is my view that the 6-months factor contained in § 87-2-102(2), MCA (1989), adds at least a modicum of clarity to the residency definition. However, it is the addition of the “mental state” element of the offense charged that I believe sufficiently mitigates the vagueness of the other two statutes with respect to the “fair warning” element and saves the statutes from a facial vagueness challenge.

The Monroes were charged under § 87-2-205, MCA, which provides that it is “unlawful to subscribe to any false statement in an application for a wildlife conservation license.” The mental state statutorily required for the offense — “knowingly” or “purposely” — is provided in § 87-1-102, MCA, and defined in § 45-2-101, MCA. Thus, it is clear the offense contains a scienter requirement of making a false statement concerning residence knowingly or purposely as those terms are defined in the Montana criminal code.

Taken together with the residence guidelines contained in §§ 87-2-102(2) and 1-1-215, MCA, it is my view that the scienter requirement provides sufficient warning of the required or prohibited conduct. As the Supreme Court has stated:

A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainly can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.

Boyce Motor Lines v. United States (1952), 342 U.S. 337, 340, 72 S.Ct. 329, 330-31, 96 L.Ed. 367, 371.

For the reasons stated herein, I join in the result reached by the Court: namely, that the Monroes’ facial challenge on vagueness grounds has not been sustained here.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

The majority opinion has misconstrued the vagueness doctrine, misapplied federal case law, and in the process, done severe damage to the Due Process Clauses of the Montana and Federal Constitutions.

The Monroes were charged with violating § 87-2-205, MCA, by providing a false statement in their application for wildlife conservation licenses. The false statement they are accused of making was that they were residents of Montana.

Section 87-2-102(2), MCA (1989), provided that residency for purposes of determining entitlement to a resident hunting license was determined under § 1-1-215, MCA. The relevant part of that statute provides:

Every person has, in law, a residence. In determining the place of residence the following rules are to be observed:
(1) It is the place where one remains when not called elsewhere for labor or other special or temporary purpose and to which he returns in seasons of repose.

What does that mean? Does it mean that if you live and work in Texas for 11 months out of the year, but return to Montana for one month during your annual vacation you are a Montana resident? The statute obviously does not provide any objective criteria which would put people with connections to Montana and some other state on notice of whether they satisfied the residency requirement found in the Fish and Game laws.

We have previously held that a statute can violate the Fourteenth Amendment of the United States Constitution, and Article II, Section 7, of the Montana Constitution, if it is unconstitutionally vague. State v. Woods (1986), 221 Mont. 17, 22, 716 P.2d 624, 627.

The issue of “vagueness” with regard to a statute or ordinance can be raised in two different connotations: (1) whether it is so vague the law is rendered void on its face; or (2) if it is vague as applied in a particular circumstance.
The general rule is that a statute or ordinance is void on its face if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute. United States v. Harriss (1954), 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989.

City of Choteau v. Joslyn (1984), 208 Mont. 499, 505, 678 P.2d 665, 668.

The United States Supreme Court elaborated on the rule set forth in United States v. Harriss in its decision in the case of Bouie v. City of Columbia (1964), 378 U.S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894. In that case, the U.S. Supreme Court gave the following explanation of the vagueness doctrine, as it pertains to the Due Process Clause of the United States Constitution:

The basic principle that a criminal statute must give fair warning of the conduct that it makes a crime has often been recognized by this Court. As was said in United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989,
“The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.”
Thus we have struck down a state criminal statute under the Due Process Clause where it was not “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 706 L.Ed. 322. We have recognized in such cases that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law,” ibid., and that “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888.

Bouie, 378 U.S. at 350-51, 84 S.Ct. at 1700-01 (footnote omitted).

If it is not sufficiently apparent from the murky language of the residency statute itself that people of reasonable intelligence would be unable to ascertain who is or is not a resident of Montana under its terms, that conclusion necessarily follows from our prior decisions. In fact, in McCarthy v. Montana Power Company (1963), 143 Mont. 134, 387 P.2d 438, we concluded that the statute relied on by the State of Montana to establish residency in this case was not a definition at all. Referring to the same statute, we held:

“However, these are guides for interpretation, they are not a definition. This is unavoidable, for as Mr. Justice Holloway observed in Carwile v. Jones, 38 Mont. 590, at page 602, 101 P. 153, at page 158, ‘it is as easy to -understand the meaning of “residence” as it is to understand the meaning of some of the terms used in the rules for determining the meaning of “residence.” Every case must stand upon its own facts, and a decision in any event must, of necessity, be the result of a more or less arbitrary application of the rules of law to the facts presented’.”

McCarthy, 387 P.2d at 441-42 (quoting Kunesh v. City of Great Falls (1957), 132 Mont. 285, 289-90, 317 P.2d 297, 299).

If § 1-1-215, MCA, does not provide a definition of residence, and if § 87-2-102(2), MCA, did not, in 1989, have a definition of residence other than by reference to § 1-1-215, MCA, then what notice did the Monroes have that when they filled out this application for a resident hunting license they were violating the law?

Arbitrary, after-the-fact applications of the criminal law are exactly what the Due Process Clause, through the vagueness doctrine is designed, in fairness, to avoid. In defining the values that are offended by vague criminal statutes, the United States Supreme Court has stated as follows:

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant danger of arbitrary and discriminatory application. [Emphasis added].

Grayned v. City of Rockford (1972), 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222, 227-28 (footnotes omitted).

According to our own prior decisions, the residency statute in this case requires the sort of ad hoc, arbitrary, judicial application that the Due Process Clause clearly prohibits according to the decisions of the United States Supreme Court. That observation should resolve the issue raised by the Monroes on appeal to this Court.

However, the majority has inexplicably added a new element to the vagueness doctrine. The majority concludes that if anyone would understand they are not a resident under this statute, then it cannot be unconstitutionally vague. In other words, the majority has eliminated the former requirement that a statute give “a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute,” and instead, substituted the requirement that if one out of 100 people would understand that his or her conduct is prohibited, it makes no difference that the other 99 people of average intelligence do not have the foggiest notion about what the statute prohibits. In support of this unprecedented conclusion, the majority cites Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362. However, in doing so, the majority has taken language from Hoffman out of context and misapplied its holding.

In Hoffman, the defendant was charged with violating an ordinance which required that he obtain a license if he sold any items that were “ ‘designed or marketed for use with illegal cannabis or drugs....’” Hoffman, 455 U.S. at 492. In his business, he sold a variety of merchandise, including “phonographic records, smoking accessories, novelty devices, and jewelry ....” Hoffman, 455 U.S. at 491, 102 S.Ct. at 1189. The Circuit Court of Appeals concluded that the statute was unconstitutionally vague on its face because of its application to certain items sold by defendant, such as ordinary pipes or paper clips. The Supreme Court discussed the requirement that the statute be impermissibly vague in all of its applications in the context of whether a plaintiff could challenge the constitutionality of the statute if at least some of his conduct was clearly proscribed by the statute. It concluded that he could not. The Supreme Court said nothing about a requirement that the statute be vague with regard to every conceivable person to whom it could be applied. In explaining its holding, the Court stated as follows:

The ordinance requires Flipside to obtain a license if it sells “any items, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs, as defined by the Illinois Revised Statutes.” Flipside expresses no uncertainty about which drugs this description encompasses; as the District Court noted, [The Flipside, Hoffman Estates v. Village of Hoffman Estates,] 485 F.Supp. [400], at 406 [(N.D.Ill. 1980)] Illinois law clearly defines cannabis and numerous other controlled drugs, including cocaine. Ill. Rev. Stat., ch. 56V2, ¶¶703 and 1102(g) (1980). On the other hand, the words “items, effect, paraphernalia, accessory or thing” do not identify the type of merchandise that the village desires to regulate. Flipside’s challenge thus appropriately focuses on the language “designed or marketed for use.” Under either the “designed for use” or “marketed for use” standard, we conclude that at least some of the items sold by Flipside are covered. Thus, Flipside’s facial challenge is unavailing.

Hoffman, 455 U.S. at 500, 102 S.Ct. at 1194 (footnote omitted).

It is clear from the quoted passage, that when discussing “all of its applications” the Supreme Court was referring to all of the statutes applications to that defendant’s conduct.

The residency requirement -under which the Monroes are being prosecuted was so vague that many county attorneys have refused to prosecute based on the criteria that it establishes, and the former head of the Department of Fish, Wildlife, and Parks asked that it be amended to provide some workable guidelines in the future. In his testimony before the Legislature in support of the proposed amendment to § 87-2-102(2), MCA, which became effective on July 1, 1991, K. L. Cool testified as follows:

Senate Bill 298 consolidates and clarifies the elements necessary to determine legal residency for purposes of obtaining hunting, fishing and trapping licenses. The residency requirements, as presently written, are not specific enough to effectively support criminal prosecutions and, in fact, are sometimes confusing to sportsmen because the requirements are vague. County attorneys prosecuting residency cases in courts have frequently found the current residency statutes unworkable. Some county attorneys have told us they will no longer prosecute residency cases until Montana has a workable law. This bill will not change who qualifies as a resident, but will make specific and clarify the standards for determining residency.
Simply stated, the current statute defines a resident as a person who has moved to Montana and intends to make his or her home here. The only specific requirement is that a person must be a resident 6 months prior to. being eligible to purchase a resident hunting, fishing or trapping license. With this vague and general definition, it is understandable that county attorneys have difficulty prosecuting an individual who owns property and lives part of the year in Montana, but earns his living and pays state income taxes in another state.

Mr. Cool’s testimony, in combination -with our previous decisions, including McCarthy, are perfect illustrations of the kind of arbitrary applications that resulted from the vague language used to define a resident in Montana’s hunting, trapping, and fishing license laws. Because of uncertainty about the meaning of the statute, prosecutions under the statute are arbitrary and have historically depended on the county where a violation is suspected. Even if charges are brought, successful prosecution depends on an arbitrary case-by-case application of the statute in the judicial system. Since this is the kind of unpredictability and unfairness that the vagueness doctrine is intended to prohibit, I would conclude that the statute pursuant to which the Monroes have been prosecuted was unconstitutionally vague in violation of the due process clauses in the Montana and Federal Constitutions and would reverse the judgment of the District Court.

For these reasons, I dissent from the majority opinion.

JUSTICES HUNT and NELSON join in the foregoing dissenting opinion.


author: JUSTICE GRAY

text:
    CITY OF MISSOULA, Plaintiff and Respondent, v. JAMES ASBURY, DEBORAH BAKER, LONNIE BOSTON, CLAIRE BRISENDINE, FRANK BRISENDINE, HELEN BROWN, THOMAS BRUECKNER, STEVEN EUKER, MIKE FARMER, JOHN GROVE, DEANA IRVINE, PATRICK KINSELLA, GAIL KRAUTTER, JOHN LEWIS, AMANDA McCURDY, PATRICK McCURDY, BRADLEY PRIGGE, KEITH SIMMONS, ROGER SMITH, BRADLEY STEPHENSON, and RALPH TURNER, Defendants and Appellants.
    No. 93-506.
    Submitted on Briefs April 7, 1994.
    Decided April 27, 1994.
    51 St.Rep. 383.
    873 P.2d 936.
    265 Mont. 14.

      For Defendants and Appellants: Patrick F. Flaherty, Great Falls.
    For Plaintiff and Respondent: Judith L. Wang, Assistant City Attorney, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

The numerous Appellants in this case appeal from an order of the Fourth Judicial District Court, Missoula County, affirming the judgment of the Municipal Court of the City of Missoula convicting them of criminal offenses. The assertions of error relate to alleged abuses of discretion by the Municipal Court in granting the City of Missoula’s motion in limine excluding certain testimony and materials from evidence in the underlying criminal trial. We affirm.

The relevant facts in this case are not in dispute. Appellants were among numerous people arrested at the Blue Mountain Clinic in Missoula on November 23, 1991, as a result of their activities in blocking the Clinic doors and interfering with people desiring to utilize the Clinic. All adult defendants were charged with trespass, criminal contempt and disorderly conduct; the City subsequently amended the charge of disorderly conduct to one of failure of disorderly persons to disperse.

Certain defendants filed motions to dismiss the charges. Anumber of notices of affirmative defenses also were filed. The City of Missoula (City) filed a motion in limine requesting the Municipal Court to exclude evidence purportedly relating to defenses. The court denied the motions to dismiss and granted the City’s motion in limine.

A jury trial was held and Appellants were convicted of the three offenses with which they were charged. They appealed their convictions to the District Court on a variety of grounds, including the granting of the City’s motion in limine.

The District Court reviewed the record and questions of law pursuant to § 3-6-110, MCA. It rejected Appellants’ assertions of error, affirmed the judgment of the Municipal Court and remanded to that court for execution of the sentences imposed. On motion of the Appellants, the District Court subsequently stayed execution of the sentences pending appeal to this Court.

Did the Municipal Court abuse its discretion in excluding evidence relating to whether life begins at conception?

Appellants’ assertions of error relating to the Municipal Court’s granting of the City’s motion in limine are premised on the principles that criminal defendants have a right to be heard and to present a defense. These principles and their importance in American jurisprudence are so fundamental and well-established as to need no discussion or citation to authority.

It is equally clear, however, that limitations exist on the right to be heard and present a defense. “In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v. Mississippi (1973), 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 313.

In the case before us, the City filed a motion in limine — primarily on relevance grounds — to exclude testimony and materials to be offered by Appellants in connection with their “defenses.” The Municipal Court granted the motion.

“The purpose of a motion in limine is to prevent the introduction of evidence which is irrelevant, immaterial, or unfairly prejudicial.” City of Helena v. Lewis (1993), 260 Mont 421, 425, 860 P.2d 698, 700 (citation omitted). We will not overturn a court’s grant of such a motion absent an abuse of discretion. Lewis, 860 P.2d at 700.

The admissibility of the evidence to be offered by Appellants at trial is, in the first instance, a question of relevance. “Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, M.R.Evid. Relevant evidence generally is admissible; “[e]vidence which is not relevant is not admissible.” Rule 402, M.R.Evid. Relevant evidence in this case relates to whether the Appellants committed the charged offenses and whether any recognized defenses are applicable.

Defenses to criminal charges generally are matters of statute in Montana. Defenses available include “compulsion” and “use of force in defense of person,” sometimes called the justifiable use of force defense, as defined in §§ 45-2-212 and 45-3-102, MCA. The compulsion defense merges the common law defenses of necessity, justification, compulsion, duress and “choice of two evils.” State v. Ottwell (1989), 240 Mont. 376, 379, 784 P.2d 402, 404. Appellants herein do not specifically argue that any of the evidence excluded by the grant of the City’s motion in limine is relevant to these, or any other, statutory defenses. Moreover, they appear to concede that, under Lewis, the compulsion defense is not available here because it does not excuse criminal conduct in response to imminent threat of harm to a third party. See Lewis, 860 P.2d at 701.

Appellants do present a lengthy discussion on when life begins. They assert that the Municipal Court abused its discretion in excluding evidence of their belief that life begins at conception, without citing to any defense to which that evidence might be relevant.

Appellants apparently are attempting to argue that, if life begins at conception, they are entitled to rely on the justifiable use of force defense. Insofar as is relevant here, that defense justifies a person’s “use of force ... against another when and to the extent that he reasonably believes that such conduct is necessary to defend ... another against such other’s imminent use of unlawful force.” Section 45-3-102, MCA.

As best we can construct Appellants’ argument, it is this:

1. Appellants’ acts of trespass would be characterized as the “use of force” against another — the Clinic;
2. The Clinic’s performing of abortions would be characterized as the “use of force”;
3. Appellants believe that life begins at conception;
4. Under Appellants’ belief, the fetus would be “another” against whom the use of force was imminent;
5. Thus, Appellants’ “forcible” trespass would be based on their “reasonable belief’ that such conduct was necessary to defend the fetus against the imminent use of force by the Clinic.

Even assuming (without so holding) that the first two characterizations were appropriate, the statutory justifiable use of force defense is not applicable to Appellants’ conduct.

Section 45-3-102, MCA, requires that the use of force against another alleged to be imminent, and to justify a corresponding use of force, must be “unlawful.” In light of the continued efficacy of Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, the Clinic’s activities cannot constitute the unlawful force required for application of the justifiable use of force defense as defined in § 45-3-102, MCA.

Appellants contend that our decision in Strzelczyk v. Jett (Mont. 1994), 870 P.2d 730, 51 St.Rep. 206, supports their position that they were entitled to defend against criminal charges by discussing when life begins. We disagree.

In Jett, we concluded that a full-term fetus is a “person” as defined in § 27-1-513, MCA, for purposes of bringing an action for the tort of wrongful death. Jett, 870 P.2d at 733. We did not reference or discuss issues of viability or when life begins. Moreover, the concurring opinion in Jett specifically notes that the case did not relate to abortion in any way, and briefly discusses the differences between acts which might form the basis for a negligence action for wrongful death and those which result in a lawful abortion under Roe. Jett, 870 P.2d at 733 (Gray, J., specially concurring).

We conclude that the Municipal Court did not abuse its discretion in excluding Appellants’ evidence on when life begins.

Did the Municipal Court abuse its discretion in excluding evidence of biblical or moral justification?

Appellants also assert that the Municipal Court abused its discretion in precluding their ability to rely on biblical or moral justification as a defense to the criminal charges against them. As set forth above, defenses to criminal charges are statutory in Montana. Appellants’ individual religious and moral beliefs are neither included in, nor relevant to, those statutory defenses.

In affirming a district court’s rejection of biblical or moral justifications for actions substantially similar to those of Appellants here, we quoted with approval the following language from Cleveland v. Municipality of Anchorage (Alaska 1981), 631 P.2d 1073, 1084:

“[t]hey [philosophers and religionists discussing civil disobedience] have been in general agreement that while in restricted circumstances a morally motivated act contrary to law may be ethically justified, the action must be non-violent and the actor must accept the penalty for his action. In other words, it is commonly conceded that the exercise of a moral judgment based upon individual standards does not carry with it legal justification or immunity from punishment for breach of the law.”

Lewis, 860 P.2d at 702-703. The same reasoning applies here. Appellants’ beliefs are sincere and fervent and Appellants are entitled to hold and act upon them. Those personal beliefs, however, do not provide legal justification for, or immunize Appellants from the consequences of, acts which violate the criminal laws of Montana.

We conclude that the Municipal Court did not abuse its discretion in excluding evidence of biblical or moral justification for Appellants’ conduct.

Did the Municipal Court abuse its discretion in excluding “treaty” or “international law” defenses?

Several of the Appellants raised an issue of reliance on treaties entered into by the United States in their motions to dismiss in the Municipal Court. The City included reliance on the treaty in its motion in limine, which was granted by that court. In a section of their brief before us entitled ‘Whether the trial court erroneously excluded the defense of international laws,” Appellants reassert that treaty issue here. The City responds that the treaty/international laws issue is not properly before us. We agree.

As set forth above, the District Court reviewed this appeal from the Municipal Court under § 3-6-110, MCA. Under that procedure, unlike “appeals” for trial de novo from justice court to district court, the district court acts as an appellate court and reviews questions of law presented on the record before it. See § 3-6-110, MCA; In the Matter of Municipal Court Appeals to District Court, Order of the Montana Supreme Court, dated May 12, 1992.

The Appellants filed a “Defendants’ Opening Brief,” together with an appendix to that brief, in their appeal to the District Court. The City filed a responsive brief. No further briefs were filed. We have scrutinized the Appellants’ brief in the District Court closely. It advances no issue regarding the treaty as paramount law; indeed, the treaty Appellants attempt to rely on here is never mentioned therein.

The principle that this Court will not address an issue not presented to the trial court is well-established. State v. Thompson (1993), 259 Mont. 62, 65, 853 P.2d 1188, 1190. The rationale underlying the principle — while seldom stated — is that both fairness and judicial economy necessitate bringing alleged errors to the attention of each court involved, so that actual error can be preventéd or corrected at the first opportunity. See State v. Applegate (Or. App. 1979), 591 P.2d 371, 373. Here, of course, the “treaty” issue was presented to the trial court which, in this instance, was the Municipal Court. However, the treaty issue was not presented to the first-level appellate court — here, the District Court.

While we have little experience in Montana with two-tiered appeals such as that presently before us, the expressed rationale clearly carries over into a two-tiered appeal. Thus, based on the Appellants’ failure to raise the treaty issue at the first appellate level in the District Court, we conclude that the issue is not properly before us. As a result, we decline to address it.

AFFIRMED.

JUSTICES HARRISON, TRIEWEILER, HUNT and WEBER concur.


author: JUSTICE HUNT

text:
    JAMES BAKER, Personal Representative of the Estate of Laura Perrine, Plaintiff and Appellant, v. RICHARD BERGER, Defendant and Respondent.
    No. 93-415.
    Submitted on Briefs January 20, 1994.
    Decided May 3, 1994.
    51 St.Rep. 389.
    873 P.2d 940.
    265 Mont. 21.

      For Plaintiff and Appellant: John F. Lynch, Lynch Law Firm, Great Falls.
    For Defendant and Respondent: Gregory J. Hatley, Cure, Borer & Davis, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff/appellant, James Baker, personal representative of the estate of Laura Perrine, appeals from a judgment of the First Judicial District Court, Lewis and Clark County, denying his motion for summary judgment asking the court to find that as a matter of law, the 1960 property agreement between respondent, Richard Berger, and others is unenforceable; and from the order of the court granting respondent specific performance of the agreement.

Affirmed.

We rephrase the issues as follows:

1. Is the 1960 agreement an unreasonable restraint on the alienation of the subject property?

2. Did the District Court abuse its discretion when it granted respondent specific performance of the agreement?

In 1959, respondent and his late wife, Marjorie, purchased a lot on Holter Lake with the plan to build a vacation cabin on the site. On June 30,1960, they signed an agreement with his brother Frederick and his wife, Margaret, Harlan and Josephine Mattson, and Pat and Laura Perrine. Simultaneously, respondent executed three deeds to the couples, which transferred an undivided one-fourth interest in the lot to the three couples, while respondent and his wife retained a one-fourth interest. The agreement provided that the couples were subject to the following buy-out provision:

AND WHEREAS, the parties hereto are desirous of providing for the disposition of the interest of each in said property, in the event of the death of both of the joint tenants of such parties, and restricting the sale of the interest of any of the parties, except to each other, it being the intention and desire of each and all of the parties hereto that said property shall not be sold to or otherwise disposed of by any of them except to the others, as hereinafter provided, and that so far as possible the ownership of said property shall remain in the present group or those remaining.
... [I]f a sale is made by any set of the parties hereto, the remaining set or sets of the parties hereto shall purchase such interest for the sum of One Thousand ($1,000.00) Dollars; that each set of the remaining parties shall purchase said share or interest so offered for sale, and contribute equally thereto; SAVE AND EXCEPT that if any set of parties desiring to sell, shall have contributed toward the purchase of the interest of any former set, then the amount so paid shall be added to the One Thousand Dollar price or value hereinabove mentioned.
That upon the death of the surviving joint tenant of any set of parties hereto, the remaining set or sets of the parties hereto shall have the right and privilege, and are hereby given the right and privilege and do hereby obligate themselves to purchase the interest of said deceased in said lands for the sum of One Thousand ($1,000.00) Dollars, for an undivided one-fourth interest, plus a proportionate amount for any additional interest owned by said deceased. [Emphasis added].

The property has not been appraised, but appellant claims that the actual value of the property is estimated at $100,000, making the original share of each party now worth $25,000, and Laura Perrine’s current share worth $33,333.33. The District Court found that the parties agree that the property’s fair market value is significantly in excess of the $4000 value utilized by the parties in 1960.

The couples built a cabin which they all used as vacation property for many years, and shared in its upkeep and maintenance. During the cotenancy, respondent supplied the maintenance, and periodically submitted itemized statements to the cotenants for their contribution to the costs. Since Laura’s death, respondent made substantial improvements to the property, has kept up the property, and since Pat Perrine’s death in 1982 or 1983, has paid all the property taxes.

In 1967, Harlan Mattson died and Josephine Mattson sold their interest in the property shortly thereafter to the three other couples for $1000, in accord with the agreement. In about 1978, Margaret Berger died, and in 1979 her husband, Frederick Berger, died. Laura and Pat Perrine did not purchase a half of Frederick and Margaret Berger’s one-third interest in the property. The Berger’s son, who was the executor of their estate, sold the couple’s interest to respondent in 1992. Between 1979 and 1992, Frederick and Margaret Berger’s children did not use the property. In 1982 or 1983, Pat Perrine died. In 1984, respondent’s wife died. Laura Perrine died in 1990. Respondent is the last surviving cotenant. Appellant is Laura’s nephew, as well as the personal representative of her estate.

In 1991, respondent tendered $1334 to appellant for Laura Perrine’s one-third interest in the property, pursuant to the agreement, but appellant refused the tender on the basis that the 1960 agreement is unenforceable.

The District Court found that respondent had the right to specifically enforce the purchase provision in the cotenancy agreement, and that upon respondent’s re-tender of payment of $1344 to appellant, appellant was ordered to make, execute, and deliver to respondent his personal representative’s deed conveying all right, title, and interest in the disputed property.

On August 19, 1993, appellant filed this appeal.

ISSUE 1

Is the 1960 agreement an unreasonable restraint on the alienation of the subject property?

Appellant argues that the terms and conditions of the 1960 agreement constitute an illegal restraint upon alienation of property, in violation of § 70-1-405, MCA, because the agreement sought only to restrain alienation, not to facilitate an original transfer.

Montana’s statute regarding restraint on alienation of real property states that “conditions restraining alienation, when repugnant to the interest created, are void.” Section 70-1-405, MCA. In addition, § 28-2-707, MCA, provides that:

[a] condition in a contract the fulfillment of which is impossible or unlawful within the meaning of part 6 and this part or which is repugnant to the nature of the interest created by the contract is void.

In Edgar v. Hunt (1985), 218 Mont. 30, 33, 706 P.2d 120, 122, we interpreted § 70-1-405, MCA,

as a statement of the majority common law rule that restraints on alienation, when reasonable, are valid. The question is whether the particular restraint is reasonable under the circumstances. [Citations omitted; emphasis added].

In Edgar, we held that a preemptive fixed price repurchase option in an agreement executed contemporaneously with a deed transferring property did not violate § 70-1-405, MCA. There we set out several factors that may be used in an analysis of whether an agreement’s provision restraining alienation was reasonable. We noted that the various factors set out in the Restatement (Second) of Property § 406 cmt. i (1977), may be considered. In addition, we stated that we will consider the intent of the parties contracting for the preemptive right, and whether the particular restraint, or price set thereby, is primarily for the purpose of restraining the alienability of the property. Edgar, 706 P.2d at 122. Moreover, we determined that:

if the circumstances suggest that the restraint was freely entered into by mutual consent as a normal incident of an equal bargaining relationship in order to promote the original transfer of the property, the scales will tip back towards the reasonableness of the restraint....

Edgar, 706 P.2d at 122.

The District Court found that the agreement was reasonable and enforceable. The court stated:

Even accepting [appellant’s] assertion of the huge discrepancy between the fixed price and the present market value of the shares of the property, the intent of the parties in entering into the agreement far outweighs that consideration. This situation is unique in that the restraint on alienation of the property is a material and integral part of the cotenancy arrangement; without that provision, the purpose of the cotenancy agreement would be defeated.

We agree with the District Court that under the circumstances, the restraint on alienation in the 1960 agreement was an integral and material part of the cotenancy arrangement. The restraint provision promoted and facilitated the original transfer of the property.

The record is clear that but for the couples’ 1960 agreement, executed simultaneously with the deeds, respondent and his wife would have retained all interest in the property. The parties’ intent was to share and maintain the cabin on the property with the understanding that they would share close confines among family and friends, not strangers. The couples entered into the agreement by mutual consent as an incident of an equal bargaining relationship which promoted the original transfer of the property and granted each other the right to purchase their respective interests under two conditions. Without the restraint provision, respondent’s original plan and the couples’ subsequent agreement to the cotenancy arrangement would have been defeated.

In addition, the record shows that the parties included the provision in the agreement to fix the buy-out price of the property at $1000 so as to avoid price negotiations every time one of the surviving spouses died, and to prevent the last living spouse from being forced to buy out the decedent’s remaining interest at a price far inflated from his or her own interest in the property.

We hold that the couples’ 1960 agreement contains nothing repugnant to the interest created, but rather, provided a reasonable restraint on alienation of the vacation property in accord with § 70-1-405, MCA, and our decision in Edgar.

ISSUE 2

Did the District Court abuse its discretion when it granted respondent specific performance of the agreement?

Appellant argues that the District Court abused its discretion when it granted respondent specific performance of the agreement because the agreement is void and unenforceable against him and Laura’s successors. Appellant asserts that: (1) nothing in the agreement restricts the donative or intestacy transfer by a party; (2) they were not parties to the 1960 agreement; (3) the agreement did not contain an express covenant that would justify enforcement of the agreement against them, and Montana law prohibits an implied covenant to sell; and (4) the fixed price contained in the agreement is unreasonable and inequitable because it cannot be applied in a way contrary to statutory authority and an exchange of only $1334 for Laura’s ownership rights in the property would work a great injustice on the estate.

The District Court found that as personal representative to Laura Perrine’s estate, appellant stepped into her shoes with respect to her legal obligations, and as such, was bound to sell the property pursuant to the buy-out provision in the agreement, (citing §§ 72-3-602, -604, and -613, MCA).

The agreement provided respondent with an enforceable right and privilege, and in fact, an obligation to purchase a decedent’s intérest in the property without a provision expressly stating that each cotenant or cotenant’s estate had a duty to sell the interest.

Appellant’s argument that nothing in the agreement restricts the donative or intestacy transfer by a party is without merit. The buy-out provision specifically states that “said property shall not be sold to or otherwise disposed of by any of them except to the others, as hereinafter provided, and that so far as possible the ownership of said property shall remain in the present group or those remaining.” [Emphasis added].

The agreement provides that cotenants could buy out a couple’s interest by two methods: (1) by way of a voluntary inter vivos sale by a couple to the cotenants for $1000, or the value of a couple’s interest after a contribution toward the purchase of the interest of any former couple; or (2) by way of a compulsory buy-out of a surviving spouse’s interest at death. As the last of “those remaining” of the surviving spouses, respondent’s alternative, pursuant to the agreement, was to buy out Laura’s interest in the property, which he had attempted by tendering payment to appellant. Even under the maxim of statutory construction, expressio unius est exclusio alterius, (the expression of one thing implies the exclusion of another), the couples’ agreement prohibits donative or intestacy transfer of a surviving spouse’s interest in the property.

Appellant’s argument that he and Laura’s successors are not bound by the 1960 agreement because they are not parties to it is likewise without merit. Generally, contracts made by a decedent are specifically enforceable against the decedent’s personal representatives, heirs, devisees, and assigns. 81 C.J.S. Specific Performance § 31 (1977); Exchange Nat’l Bank v. Sparkman (Colo. 1976), 554 P.2d 1090, 1093; In re Estate of Sharp (Utah 1975), 537 P.2d 1034, 1038. Montana law provides that:

[w]henever an obligation in respect to real property would be specifically enforced against a particular person, it may be in like manner enforced against any other person claiming under him by a title created subsequently to the obligation ....

Section 27-1-421, MCA. In addition, the Uniform Probate Code authorizes a personal representative to perform the decedent’s enforceable contracts to convey or lease land by executing and delivering a deed of conveyance for cash payment of all sums remaining due. Section 72-3-613(3)(a), MCA. As personal representative to the estate of Laura Perrine, the 1960 agreement was enforceable against appellant, who was both authorized and obligated to convey Laura’s interest in the property to respondent, as the last surviving cotenant.

Appellant is also mistaken that the agreement is unenforceable because it contains no express covenant requiring any party to sell. Appellant argues by way of semantics. Appellant is misguided to assume that the parties’ use of the language “the right to purchase” rather than stating “an obligation to sell” proves that the parties could not obligate a deceased party’s estate to sell the decedent’s interest, but that could only be implied by creating a mutual right to buy. Such an interpretation of the agreement’s buy-out provision would render it meaningless. The decedent’s obligation to sell is not found in impermissible extrinsic evidence, as appellant suggests, (citing § 28-2-905, MCA). It follows that where the agreement both obligates and gives “the right and privilege” to the surviving cotenant(s) to purchase the decedent’s interest in the property, it logically creates a corresponding obligation on the part of the decedent’s estate to sell her interest in the property to the surviving cotenant(s). The buy-out provision obligated the parties to a set of mutual promises — one to buy, and one to sell. See § 28-2-303, MCA. We conclude that the agreement, by its terms, obligated appellant to sell Laura’s interest in the property to respondent. The agreement provides respondent with an enforceable right to purchase the decedent’s interest in the property.

Finally, appellant argues that the fixed price contained in the agreement is unreasonable, inequitable, and cannot be enforced in equity by the remedy of specific performance. Specifically, appellant claims that application of the remedy of specific performance in this case is inappropriate because: (1) it cannot be applied in a way contrary to statutory authority; and (2) an exchange of only $1334 for Laura’s ownership rights in the property would work a great injustice on the estate, presumably where such an amount tendered for Laura’s interest is inadequate consideration to justify the transfer based on his estimate of the property’s $100,000 fair market value.

We have held that specific performance is an equitable remedy and is a matter of discretion for the trial court. Larson v. Undem (1990), 246 Mont. 336, 342, 805 P.2d 1318, 1323. Specific performance is an appropriate remedy where “the act to be done is such that pecuniary compensation for its nonperformance would not afford adequate relief.” Section 27-1-411(2), MCA. In addition, “[i]t is to be presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation....” Section 27-1-419, MCA. Finally, a party claiming to be entitled to specific performance must have offered to perform. Pond v. Lindell (1981), 194 Mont. 240, 245, 632 P.2d 1107, 1110.

Here, the remedy of specific performance can be applied in a way that is not contrary to statutory law. The act to be done is the transfer of Laura’s interest in the property for $1334 to respondent, as the last surviving cotenant, pursuant to the agreement. In this case, pecuniary compensation for the nonperformance of the transfer of Laura’s interest in the real property would not afford respondent adequate relief.

It is not clear whether appellant seeks $32,000 in additional consideration, or a donative or intestacy transfer to Laura’s interest in the property. Regardless, either result would render the 1960 agreement meaningless. If appellant seeks an additional $32,000 in consideration for Laura’s interest, respondent would be denied the right to be free from a forced purchase of a deceased cotenant’s interest at an inflated price — a result that flies in the face of the couples’ intent. If appellant is claiming that Laura’s heirs have received Laura’s one-third interest in the property by donative or intestacy transfer, respondent would be denied exclusive enjoyment of the property, as the last surviving cotenant, and potentially faces a forced buy-out from Laura’s heirs; both results which are contrary to the couples’ intent. Either consequence would not honor the 1960 agreement, and unjustly deny respondent the benefit of his bargain.

Appellant argues that $1334 is inadequate consideration for Laura’s one-third interest in property supposedly worth $100,000, and thus respondent is not entitled to specific performance. The argument is without merit. The mutual promises in the buy-out provision fixed the buy-out price of a cotenant’s interest at $1000, plus any other value paid. The parties had free and equal bargaining powers. Each couple knowingly bargained that they could predecease the other couples, and leave the surviving couple or spouse with full ownership of the property.

Montana law defines good consideration as:

any benefit conferred or agreed to be conferred upon the promisor by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor is a good consideration for a promise.

Section 28-2-801, MCA. Here, each party to the agreement agreed to confer upon the surviving cotenants, his or her interest in the property upon death. Had Laura Perrine not been a party to the agreement, respondent, as the last surviving cotenant and promisor, was not otherwise lawfully entitled to her interest upon her death, in exchange for $1334. Because Laura was a party to the contract, and is now deceased, respondent is entitled to the benefit of the bargain. No new consideration is now required as a result of the increase in the fair market value of the property. Respondent will receive nothing more than for what he originally bargained.

In addition, in accord with Montana law, respondent offered to perform the buy-out when he tendered $1334 to appellant — the amount of Laura’s interest in the.property. The fact that the property now may be worth $100,000 is irrelevant.

We hold that the District Court did not abuse its discretion when it granted respondent specific performance.

Affirmed.

JUSTICES HARRISON, GRAY, TRIEWEILER and WEBER concur.


text:
    ROBERT HAGAN, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.
    No. 93-327.
    Submitted on Briefs February 17, 1994.
    Rehearing Denied April 14, 1994.
    Decided March 22, 1994.
    51 St.Rep. 230.
    873 P.2d 1385.
    265 Mont. 31.

      For Petitioner and Appellant: Jay F. Lansing, Moses Law Firm, Billings.
    For Respondent and Respondent: Joseph P. Mazurek, Attorney General, Carol E. Schmidt, Assistant Attorney General, Helena; Garry P. Bunke, Custer County Attorney, Miles City.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Robert Hagan filed a petition for post-conviction relief in the District Court for the Sixteenth Judicial District in Rosebud County after he pled guilty and was convicted of attempted sexual intercourse without consent, in violation of § 45-5-503, MCA (1987). Hagan alleged that his conviction was improper and violated his constitutional rights because the victim was his natural daughter and the only crime with which he could have been charged, convicted, and sentenced was incest, in violation of § 45-5-507, MCA (1987). Following a hearing on the merits of Hagan’s petition, the District Court dismissed the petition for post-conviction relief.

We affirm.

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

On February 27, 1989, the Rosebud Comity Attorney charged Robert Hagan in the District Court for the Sixteenth Judicial District with attempted sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA (1987), and aggravated assault, a felony, in violation of § 45-5-202, MCA. The alleged victims of the charged offenses were Hagan’s minor daughters.

On September 14, 1989, Hagan pled guilty to the offense of attempted sexual intercourse without consent. This plea was not the result of a plea bargain agreement but was entered after Hagan signed an acknowledgment of his rights. During the hearing on this matter, Hagan’s attorney testified that he had advised Hagan that the offense of incest, which carries a lower maximum penalty, may have been the most applicable offense based on the alleged conduct. However, Hagan’s attorney stated that Hagan was pleading guilty to the offense described in the information, which was attempted sexual intercourse without consent. Based on the testimony received and the court’s questioning of Hagan, the court found that Hagan was competent, and had entered his guilty plea knowingly and voluntarily. The District Court also found that Hagan understood he was waiving all of his rights, including the right to appeal a finding of guilt, by pleading guilty.

The charge of aggravated assault was reduced by the State to the charge of misdemeanor assault. Hagan also pled guilty to the reduced charge.

The District Court sentenced Hagan to 30 years in the Montana State Prison, with ten suspended if Hagan met certain conditions, for the offense of attempted sexual intercourse without consent, and to six months imprisonment in the Rosebud County Jail for the offense of misdemeanor assault. The Court further ordered that the two sentences be served consecutively, and designated Hagan a dangerous offender for purposes of parole eligibility.

Hagan did not appeal the entry of his guilty pleas to this Court. However, on May 29,1992, Hagan filed a petition in the District Court for post-conviction hearing and relief, pursuant to §§ 46-21-101 through -203, MCA.

In his petition, Hagan argued that sexual intercourse without consent, in violation of § 45-5-503, MCA (1987), and incest, in violation of § 45-5-507, MCA (1987), are two separate and distinct crimes, and due to the fact that the alleged victim was Hagan’s natural daughter, the only offense with which he could have been charged, convicted, and sentenced was the offense of incest. He further argued that if the court found that these two offenses were not separate and distinct crimes, and if Hagan could be charged, convicted, and sentenced for either crime for the same or identical conduct, then his constitutional rights were violated, including his rights to equal protection and due process of law, as well as the separation of powers doctrine. Based on these assertions, Hagan sought relief from his conviction for attempted sexual intercourse without consent, and requested the court to vacate and set aside that conviction and to order that he be charged with the offense of incest which carries a lower maximum penalty.

Hagan did not assert in his petition for post-conviction relief that his guilty plea to either charge was made involuntarily or unknowingly, or that he had ineffective assistance of counsel at the time the plea was entered.

On July 1, 1992, the State moved to dismiss the petition for post-conviction relief on the grounds that Hagan was procedurally barred from seeking the relief requested pursuant to § 46-21-105, MCA, because he could have raised these claims on direct appeal.

The District Court denied the motion to dismiss and ordered the State to address the merits of Hagan’s petition.

An evidentiary hearing was held to allow evidence in support of Hagan’s petition on December 7, 1992. At that time, in addition to testimony concerning the merits of the petition, John Forsythe, the attorney who had represented Hagan during the criminal proceedings, testified about Hagan’s mental state when the criminal charges were brought against him. Forsythe testified that Hagan was very distraught and “self-destructive” and “acted against his interests regularly, and seemed to do everything he could to harm his own best interests with respect to the criminal charges.” Nonetheless, Forsythe confirmed that he had discussed the issue of incest with Hagan and pointed out that it carried a lower maximum penalty. However, Hagan insisted this defense not be brought up because he wanted to be “punished” by receiving the maximum penalty for his acts. Forsythe conceded that Hagan’s waiver of that issue was voluntary, but alleged that it was not an intelligent waiver because Hagan “wasn’t acting in his own self-interest.”

On cross-examination, Forsythe stated that he did not believe Hagan suffered from any mental defect which would have excused liability under the penal statutes. He testified that Hagan was “intelligent, competent, [and] aware” and had made a voluntary decision to plead guilty.

On May 14, 1993, the District Court issued its opinion and order. The court first held that Hagan’s claims were jurisdictional and were not waived by pleading guilty. However, after considering the merits of Hagan’s petition, the court concluded there were no grounds for relief and dismissed the petition for post-conviction relief. From this order, Hagan appeals.

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

It is well established that a plea of guilty which is voluntarily and understandingly made constitutes a waiver of nonjurisdictional defects and defenses, including claims of constitutional violations which occurred prior to the plea. State v. Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788. Thereafter, the defendant “may only attack the voluntary and intelligent character of his plea.” State v. Hilton (1979), 183 Mont. 13, 18, 597 P.2d 1171, 1174 (citing Tollett v. Henderson (1973), 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235). As stated by the Supreme Court in Tollett, 411 U.S. at 267, 93 S.Ct. at 1608:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the plea ....

The District Court based its dismissal of Hagan’s request for post-conviction relief upon its conclusion that his constitutional rights, including his rights to equal protection and due process of law, as well as the separation of powers doctrine, were not violated when he was charged, convicted, and sentenced for attempted sexual intercourse without consent. Without addressing the merits of the court’s conclusions, we conclude that a proper basis for denying post-conviction relief is Hagan’s waiver of the right to raise these claims after entering a knowing and voluntary guilty plea. This Court will uphold the decision of a district court, if correct, regardless of the lower court’s reasoning in reaching its decision. Wolfe v. Webb (1992), 251 Mont. 217, 824 P.2d 240; District No. 55 v. Musselshell County (1990), 245 Mont. 525, 802 P.2d 1252.

In this instance, Hagan does not challenge the voluntary and intelligent nature of his plea. Moreover, as demonstrated by the transcripts from both the plea hearing and the post-conviction hearing, there is ample evidence that Hagan was competent and had voluntarily and knowingly entered the plea, understood the consequences of the plea, and had been informed prior to entering the plea that an offense with a lower maximum penalty may have been applicable to the conduct for which he was charged.

The District Court based its conclusion that Hagan’s claims were jurisdictional on Sword v. State (Wyo. 1987), 746 P.2d 423, 425-26. However, we disagree. In United States v. Cortez (9th Cir. 1992), 973 F.2d 764, 767, the Ninth Circuit, citing United States v. Broce (1989), 488 U.S. 563, 109 S. Ct. 757, 102 L. Ed. 2d 927, described jurisdictional claims in the context of waiver as “those cases in which the district court could determine that the government lacked the power to bring the indictment at the time of accepting the guilty plea from the face of the indictment or from the record.” We agree and hold that jurisdictional claims, in the context of waiver, are limited as described in Cortez. In this instance, we conclude that Hagan’s claims are nonjurisdictional because, at the time of accepting the guilty plea, the State did have the power to bring charges against Hagan based on his alleged conduct and nothing to the contrary was evident from the face of the information.

Because the validity of Hagan’s guilty plea is not in question, we conclude that Hagan is precluded from seeking post-conviction relief on the bases that the offense of incest was more applicable to the facts in this case and that his constitutional rights were violated when he was charged with attempted sexual intercourse without consent. These nonjurisdictional claims were waived when he entered his guilty plea and we decline to address the merits of these arguments. The petition for post-conviction relief was properly denied.

Accordingly, the order of the District Court dismissing Hagan’s petition for post-conviction relief is affirmed.

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