author: JUSTICE ERDMANN

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BETHANY LEE LONG, Defendant and Appellant.
    No. 95-273.
    Submitted on Briefs November 2, 1995.
    Decided December 5, 1995.
    52 St.Rep. 1204. 907 P.2d 945.
    274 Mont. 228.

      For Appellant: William F. Hooks, State Appellate Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg Coughlin, Assistant Attorney General, Helena; Kim Christopher, Lake County Attorney, Mitchell Young, Deputy County Attorney, Poison.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Defendant Bethany Lee Long appeals the judgment of the Twentieth Judicial District Court, Lake County, convicting her of three felony counts of criminal sale of dangerous drugs in violation of § 45-9-101, MCA (1991). We affirm in part and reverse in part.

The issues on appeal are as follows:

1. Did the District Court err in refusing Long’s proposed jury instruction regarding the credibility of informant testimony?

2. Did the District Court err in sentencing Long without insuring that evidence offered in mitigation was properly made a part of the record?

3. Did the District Court err in reserving its determination of Long’s status as a dangerous or nondangerous offender?

FACTS

The Mission Mountain Drug Task Force based in Ronan employed Troy Stevens as an undercover informant. Stevens had previously been charged with criminal possession of marijuana and, as a result of that charge, agreed to act as an informant if the authorities would take the charge off his record. Stevens worked off his fine as a part-time informant and later became a full-time informant for the Mission Mountain Drug Task Force. The task force paid Stevens’ rent and paid him for each drug buy.

On April 28,1993, Stevens met an individual he later identified as Bethany Long at the Club Bar in Ronan. Long told him that she had some “smoke” if he was looking to buy some. Stevens left the bar and contacted agents of the task force who searched him, attached a body wire, and provided him with money to buy the drugs. Stevens returned to the bar, met Long, and purchased a quarter-ounce bag of marijuana. After the drug purchase, Stevens met again with agents of the task force. On May 7, 1993, Stevens and Long met at the Midnight Market in Ronan, where Stevens purchased marijuana under task force supervision. On June 2, 1993, Stevens called Long at her home to arrange a third marijuana purchase which was made in Long’s vehicle later that day. A task force agent observed and recorded this third and final transaction between Long and Stevens, though the agent only had a profile view of the driver of the car.

The material purchased by Stevens was analyzed by the State Crime Lab and determined to be marijuana. Long was subsequently charged with three felony counts of criminal sale of dangerous drugs in violation of § 45-9-101(1), MCA (1991). Following a jury trial in January 1995, Long was convicted on all three counts. On March 10, 1995, the District Court sentenced Long to a term of twenty years in the Women’s Correctional Facility, with thirteen years suspended. This appeal follows.

ISSUE 1

Did the District Court err in refusing Long’s proposed jury instruction regarding the credibility of informant testimony?

We review jury instructions in criminal cases to determine whether the instructions as a whole fully and fairly instruct the jury on the law applicable to the case. State v. Claric (1995), 271 Mont. 141, 145, 894 P.2d 946, 949 (citing State v. Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734, 737; State v. Lundblade (1981), 191 Mont. 526, 529-30, 625 P.2d 545, 548).

Long’s defense at trial was one of general denial and mistaken identity. Stevens was the only individual who positively identified her as the individual who sold him marijuana and Long argues that the issue of Stevens’ credibility is crucial to her case. Long proposed the following jury instruction to the District Court:

You have heard testimony that Troy Stevens, a witness, has received compensation and favored treatment from the state in connection with this case. You should examine this testimony with greater caution than that of ordinary witnesses. In evaluating this testimony, you should consider the extent to which it may have been influenced by the receipts of compensation and favored treatment from the state.

The District Court refused Long’s proposed instruction and instead gave the following general instruction regarding witness credibility:

You are the sole judges of the credibility, that is the believability, of all the witnesses testifying in this case, and of the weight, that is the importance, to be given their testimony. In judging the effect of evidence you must be fair and impartial and not arbitrary. While you have discretion in judging the effect of evidence, you must exercise that discretion in accordance with these instructions.

The evidence presented by one witness whom you believe is sufficient for the proof of any fact in this case.

You are not bound to decide any fact based upon the testimony of a larger number of witnesses whose testimony does not convince you against the testimony of a smaller number of witnesses or against a presumption, or other evidence which does convince you.

In determining what the facts are in the case, it may be necessary for you to determine what weight should be given to the testimony of each witness. To do this you should carefully consider all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to indicate whether a witness is worthy of belief. You may consider:

1. The appearance of each witness on the stand, his manner of testifying, his apparent candor or lack of candor, his apparent fairness or lack of fairness, his apparent intelligence or lack of intelligence, his knowledge and means of knowledge on the subject upon which he testifies.

2. Whether the witness has an interest in the outcome of the case or any motive, bias or prejudice.

3. The extent to which each witness is either supported or contradicted by other evidence in the case.

4. The capacity of the witness to perceive and communicate.

5. Proof that the witness has a bad character for truthfulness.

If you believe that any witness willfully testifies falsely as to any material matter in the case, you must reject such of his testimony as you believe to be false and you have the right to view the rest of his testimony with distrust and in your discretion disregard it, unless, after examination of all the evidence, you find such testimony worthy of belief. You need not find a witness’s testimony false if he or she while testifying:

unintentionally commits an error in his or her testimony, or is unintentionally mistaken as to some matters or facts about which he or she testifies, or gives evidence concerning matters not material in this case without intention of deceiving the Court or jury.

Long claims that her proposed instruction goes to the essence of her defense and that denial of the instruction violated her substantial rights, constituting reversible error. The State maintains that viewed as a whole the instruction given was proper and that Long had the opportunity at trial to present the issue of Stevens’ credibility as a paid informant.

District courts are given broad discretion in instructing the jury and while the defendant is entitled to have instructions on her theory of the case, she is not entitled to an instruction concerning every nuance of her argument. State v. Ross (1995), 269 Mont. 347, 358, 889 P.2d 161, 167. If the instructions, as a whole, fully and fairly present the applicable law, they will be deemed to be sufficient. State v. Goodwin (1991), 249 Mont. 1, 13, 813 P.2d 953, 961. To constitute reversible error, the district court’s actions must affect substantial rights of the party. State v. Bradley (1995), 269 Mont. 392, 395, 889 P.2d 1167, 1168.

We have stated that the “testimony of informants should be scrutinized closely to determine ‘whether it is colored in such a way as to place guilt upon a defendant in furtherance of the witness’s own interests.’ ” State v. Gommenginger (1990), 242 Mont. 265, 273, 790 P.2d 455, 460 (citing Fletcher v. United States (D.C. Cir. 1946), 158 F.2d 321, 322). In Gommenginger, however, the issue was the scope of cross-examination rather than the sufficiency of jury instructions. We determined that limiting cross-examination of an informant’s background could result in the jury viewing the credibility of the informant in a vacuum. We stated that the defendant should be afforded latitude in cross-examining drug informants and should be allowed to introduce evidence regarding informants’ drug use relevant to their motive to testify falsely. Gommenginger, 790 P.2d at 461. Our review of the record indicates that Stevens was cross-examined in regard to his background and status as a paid informant which allowed Long to establish a possible motive for unreliable testimony.

We directly addressed the issue of jury instructions related to informant credibility in State v. Webb (1992), 252 Mont. 248, 828 P.2d 1351. Webb proposed two instructions on informant testimony and credibility which were similar to Long’s proposed instruction. We affirmed the district court’s refusal of Webb’s proposed instructions and held that the instructions given by the court accurately reflected the applicable law. Webb, 828 P.2d at 1354. One of the instructions given in Webb did specifically address “paid informants,” but our approval of that instruction does not mean that other general instructions would not have sufficed. The instruction given by the District Court in this case adequately addresses witness motive, bias or prejudice, and bad character for truthfulness. Where the proposed instruction is adequately covered by a given instruction, it is not error for the trial court to refuse the proposed instruction. State v. Floyd (1990), 243 Mont. 269, 275, 790 P.2d 475, 479.

We therefore conclude that the jury instructions as a whole accurately reflect the applicable law, and therefore, are sufficient. In refusing the proposed instruction, the District Court did not abuse its discretion or affect Long’s substantial rights. We hold that the District Court properly instructed the jury and affirm the lower court on this issue.

ISSUE 2

Did the District Court err in sentencing Long without insuring that evidence offered in mitigation was properly made a part of the record?

Letters on behalf of Long were submitted to the District Court for purposes of mitigation prior to sentencing. The following exchange between defense counsel and the District Court regarding the letters took place at the sentencing hearing.

DEFENSE COUNSEL: Your Honor, I believe the Court has received some letters from relatives; is that correct?
THE COURT: Yes, the Court has. And they’ve been placed in the court file.

The letters were never formally offered into evidence and they do not appear in the record on appeal. Long argues that the District Court “may” not have considered the letters as mitigating evidence since they are not in the record and requests us to remand for a new sentencing hearing. We do not find Long’s argument persuasive.

We addressed the issue of pre-sentence information in State v. McPherson (1989), 236 Mont. 484, 771 P.2d 120. In McPherson, we held that “a defendant is entitled to have his sentence predicated on substantially correct information.” McPherson, 771 P.2d at 123-24 (citing State v. Baldwin (1981), 192 Mont. 521, 524, 629 P.2d 222, 224; State v. Olsen (1980), 189 Mont. 43, 48, 614 P.2d 1061, 1064; State v. Knapp (1977), 174 Mont. 373, 379, 570 P.2d 1138, 1141).

The defendant has an affirmative duty to present evidence showing inaccuracies in the sentencing information. State v. Trangsrud (1982), 200 Mont. 303, 308, 651 P.2d 37, 40 (citing State v. Radi (1979), 185 Mont. 38, 41, 604 P.2d 318, 320). If Long had wanted to ensure the letters were made part of the record, the defense counsel needed to do more than merely ask the District Court if it had received them. Section 46-18-115, MCA (1991), states that at the sentencing hearing the court shall give the defendant the opportunity to make a statement and “to present any information in mitigation of punishment or reason why the defendant should not be sentenced.” Long did not attach the letters to her sentencing memorandum nor did she move their admission into evidence. Since the letters were never offered by Long as evidence there can be no error based on their absence from the record.

Long also argues that the District Court “may” not have considered the letters. In McPherson, we stated that this Court “will not strain at worst-case assumptions in order to find a mistake and we presume the District Court to be correct.” McPherson, 771 P.2d at 124 (citing State v. Herrera (1982), 197 Mont. 462, 643 P.2d 588). There is nothing in the record which supports Long’s speculation that the letters were not considered and we cannot conclude that her sentence was based on inaccurate or incomplete information. The District Court did not err on this issue.

ISSUE 3

Did the District Court err in reserving its determination of Long’s status as a dangerous or nondangerous offender?

The District Court sentenced Long to confinement in the Women’s Correctional Facility for a term of ten years with three years suspended on Count I; for a term of five years with all suspended on Count II; and for a term of five years with all suspended on Count III. The imposed sentences ran consecutively for a total sentence of twenty years, with thirteen years suspended. The District Court also reserved the right pursuant to § 46-18-404(4), MCA (1991), to make the determination of whether Long is a dangerous or nondangerous offender at the time of a revocation of the suspended sentence.

The District Court’s decision to reserve Long’s dangerous/ nondangerous designation is a question of law. We review questions of law to determine if the district court’s interpretation is correct. Farmers Plant Aid, Inc. v. Huggans (1994), 266 Mont. 249, 252, 879 P.2d 1173, 1175:

When the District Court sentenced Long, § 46-18-404(4), MCA (1991), provided as follows:

If an offender is given a probationary sentence that is subsequently revoked, the court may make the determination of whether the offender is a dangerous or nondangerous offender at the time of the revocation proceeding.

“Probation” is defined in § 46-1-202(21), MCA (1991), as “release by the court without imprisonment of a defendant found guilty of a crime. The release is subject to the supervision of the department of corrections and human services upon direction of the court.”

Long contends that the plain language of § 46-18-404(4), MCA (1991), permits the District Court to “reserve” a dangerous/ non-dangerous determination only when the defendant has been given a probationary sentence and the probationary sentence is later revoked. Since “probation” is defined as “release by the court without imprisonment,” and since Long was sent to prison, she argues that the District Court had no authority to reserve the designation for some future point in time.

The State claims Long’s interpretation of the statute is unreasonable and argues that the suspended portion of Long’s sentence is a probationary period, notwithstanding the fact that the sentence also includes a term of imprisonment. The State maintains that in order to determine the true intent of the Legislature, we must construe § 46-18-404(4), MCA (1991), in conjunction with other statutory provisions to “attain its evident object or purpose.” Long maintains there is no reason to go beyond the plain language of the statute but that, nevertheless, legislative history would support her position that the intent of the Legislature was to address “probationary” sentences which do not include a term of imprisonment.

Where the language of a statute is clear and unambiguous, we look no further than to the plain meaning of the statute for its interpretation. Howell v. State (1994), 263 Mont. 275, 284, 868 P.2d 568, 573. It is only when the intent of the Legislature cannot be determined from the language of the statute that this Court will examine legislative history. United States v. Brooks (1995), 270 Mont. 136, 139, 890 P.2d 759, 761. We conclude that the language of § 46-18-404(4), MCA (1991), is clear and unambiguous.

Under § 46-18-404(4), MCA (1991), the district court may reserve making a dangerous/nondangerous determination only if an offender initially has been given a probationary sentence. Under § 46-1-202(21), MCA (1991), a probationary sentence does not include imprisonment. Since Long was sentenced to a term of seven years in the Women’s Correctional Facility, she was not given a probationary sentence and § 46-18-404(4), MCA (1991), is inapplicable.

A district court has no power to impose a sentence in the absence of specific statutory authority. State v. Hatfield (1993), 256 Mont. 340, 346, 846 P.2d 1025, 1029. We conclude that the District Court did not have statutory authority to reserve its designation of Long as a dangerous or nondangerous offender and we reverse the District Court on this issue.

Pursuant to our holding on this issue, we order stricken from the District Court’s March 10,1995, Judgment and Commitment the language which reserves the right to make a dangerous/nondangerous determination. Furthermore, our review of the record indicates that Long satisfies the criteria of § 46-18-404(1), MCA (1991), necessary to be designated as a nondangerous offender. Therefore, we designate Long as a nondangerous offender for purposes of parole eligibility.

JUSTICES GRAY, TRIEWEILER, HUNT and NELSON concur.


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    GARY R. MOTARIE, Plaintiff and Appellant, v. NORTHERN MONTANA JOINT REFUSE DISPOSAL DISTRICT, Defendant and Respondent.
    No. 95-259.
    Submitted on Briefs October 26, 1995.
    Decided December 7, 1995.
    52 St.Rep. 1209.
    907 P.2d 154.
    274 Mont. 239.

      For Appellant: John F. Lynch; Lynch & Chisholm, Great Falls.
    For Respondent: Selden S. Frisbee, Attorney at Law, Cut Bank.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Gary R. Motarie (Motarie) appeals from an order of the Ninth Judicial District Court, Glacier County, granting Northern Montana Joint Refuse Disposal District (NMJRDD) summary judgment. The court concluded that there was no genuine issue of material fact as to the essential element of Motarie’s claim of wrongful discharge, specifically, that NMJRDD fired Motarie in retaliation for his reporting a violation of public policy. We reverse.

The following issue is raised on appeal:

Did the District Court err in granting NMJRDD’s motion for summary judgment?

NMJRDD hired Motarie in early July, 1992, as an attendant at a landfill “roll-off site” in Cut Bank, Montana. Motarie was hired as a probationary, or “at will” employee. According to Motarie, NMJRDD did not provide its workers at the site with shelter, bathroom facilities, or any means of communication. After NMJRDD failed to ameliorate these conditions, Motarie contacted the Federal Occupational Safety and Hazard Administration (OSHA). In response, OSHA informed NMJRDD that OSHA had been notified of an alleged hazard as follows:

1. Employee is not provided with emergency communication while working at the landfill alone which may be a violation of Section

5(a)(1) of the Act [Occupational Safety and Health Act of 1970]. OSHA made no determination that the alleged hazard existed and informed NMJRDD that OSHA would not conduct an investigation at that time. Instead, OSHA requested NMJRDD to investigate the alleged conditions and make the necessary corrections. Within 30 days of receiving OSHA’s notice, NMJRDD was to advise OSHA in writing of the results of NMJRDD’s investigation, with supporting documentation, as well as a description, with supporting documentation, of any corrective action taken. If NMJRDD did not respond within 30 days, OSHA stated, “an investigation may be conducted.” OSHA stated that the letter to NMJRDD was not a citation or notification of proposed penalty since these may not be issued without an inspection or investigation of the workplace by OSHA. The record reveals no response from NMJRDD to OSHA, and NMJRDD received no further communication from OSHA. In early January, 1993, before his probationary term expired, NMJRDD fired Motarie.

Did the District Court err in granting NMJRDD’s motion for summary judgment?

Our standard of review in appeals from summary judgment rulings is de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. Therefore, this Court reviews an order granting summary judgment based on the same criteria applied by the district court pursuant to Rule 56, M.R.Civ.P. Chilberg v. Rose (1995), [273 Mont. 414], 903 P.2d 1377, 1378 (citing Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214). Summary judgment should not be granted if there is any genuine issue of material fact. Thus, we determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Chilberg, 903 P.2d at 1379; Howard v. Conlin Furniture No. 2, Inc. (1995), [272 Mont. 433], 901 P.2d 116, 118. We look to the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits to determine the existence or nonexistence of genuine issues of material fact. Krebs v. Ryan Oldsmobile (1992), 255 Mont. 291, 294, 843 P.2d 312, 314 (citing Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 815 P.2d 1135, 1136).

A party seeking summary judgment has the burden of establishing a complete absence of any genuine factual issues. Howard, 901 P.2d at 118 (citing Hagen v. Dow Chem. Co. (1993), 261 Mont. 487, 491, 863 P.2d 413, 416). In light of the pleadings and the evidence before the court, there must be no material issue of fact remaining which would entitle a nonmoving party to recover. Howard, 901 P.2d at 118. Once the moving party has met its burden, the opposing party must present material and substantial evidence, rather than mere conclusory or speculative statements, to raise a genuine issue of material fact. Howard, 901 P.2d at 119. Disputed facts are material if they involve the elements of the cause of action or defense at issue to an extent that necessitates resolution of the issue by a trier of fact. State Med. Oxygen v. American Med. Oxygen (1994), 267 Mont. 340, 344, 883 P.2d 1241, 1243. Finally, all reasonable inferences that might be drawn from the offered evidence should be drawn in favor of the party who opposed summary judgment. Howard, 901 P.2d at 119. In this case, our review of the District Court’s order granting summary judgment focuses on one of the bases of wrongful discharge, namely, whether the discharge was in retaliation for the employee’s good faith reporting of a violation of public policy. Section 39-2-904(1), MCA.

The Montana Wrongful Discharge From Employment Act (WDFEA) provides three bases upon which a terminated employee may bring a claim for wrongful discharge. Section 39-2-904, MCA. These elements are set forth in the statute:

39-2-904. Elements of wrongful discharge. A discharge is wrongful only if:

(1) it was in retaliation for the employee’s refusal to violate public policy or for reporting a violation of public policy;

(2) the discharge was not for good cause and the employee had completed the employer’s probationary period of employment; or

(3) the employer violated the express provisions of its own written personnel policy.

The parties agree that Motarie was a probationary employee. The statutory prohibition on termination in retaliation for the employee’s refusal to violate public policy does not distinguish between probationary and non-probationary employees. Section 39-2-904(1), MCA. In fact, as long as an employer’s conduct is consistent with the employer’s personnel policies, the only basis for challenging the discharge of a probationary employee is that the employer discharged the employee in retaliation for refusing to violate public policy or for reporting a violation of public policy. See LeRoy H. Schramm, Montana Employment Law and the 1987 Wrongful Discharge From Employment Act: A New Order Begins, 51 Mont. L. Rev. 95, 117 (1990).

Motarie’s complaint alleges that NMJRDD violated § 39-2-904( 1), MCA, by terminating him because he reported unsafe working conditions to OSHA. NMJRDD moved for summary judgment arguing that it was undisputed that OSHA had not cited NMJRDD for a statutory violation. The District Court agreed, concluding that NMJRDD met its burden in support of its motion for summary judgment by presenting undisputed evidence that there had been no OSHA citation. Recognizing that OSHA had not cited NMJRDD for any violation of the Occupational Safety and Hazard Act, the District Court determined that there had been no actual statutory violation, thus, there could be no violation of public policy.

The burden then became Motarie’s to raise a genuine issue of material fact concerning a violation of public policy. In response to an interrogatory, Motarie testified that: “I did report to OSHA the violation of communication and I was confronted about it by Don and that after that time I was constantly harassed by him and feel it was due to my report to OSHA. I was fired in retaliation for my reporting to OSHA.” The court determined that these statements were merely conclusory and speculative. Accordingly, the court concluded there was no genuine issue of material fact because Motarie could not show that a violation of public policy occurred nor could he show the basis for his belief that a violation had occurred. We disagree.

Section 39-2-903(7), MCA, defines public policy as a policy in effect at the time of the discharge concerning the public health, safety, or welfare established by constitutional provision, statute, or administrative rule. In the present case, OSHA’s letter to NMJRDD stated that the alleged hazard “may be a violation of § 5(a)(1) of the Act.” The District Court premised summary judgment upon the fact that there was no official determination that there had been a violation of the Occupational Safety and Health Act. In other words, the court reasoned that, because Motarie’s report did not result in a citation or investigation, Motarie could not base his claim upon a violation of public policy. This retrospective reasoning is without merit. It fails to recognize that the WDFEA protects a good faith “whistle blower.” Krebs, 843 P.2d at 315. Thus, regardless of whether the employee’s report actually results in a citation or investigation, the test is whether the employee made the report in good faith.

Motarie reported to OSHA that he was not provided with emergency communication while working alone. Although this report did not result in an OSHA citation, NMJRDD has not alleged or shown that Motarie’s report of working alone without emergency communication was baseless; that is, that it was not made in good faith. In fact, NMJRDD admits that there were no communication facilities at any of the roll-off sites.

Therefore, we hold that Motarie’s statement that he reported potential violations of the Occupational Safety and Health Act to OSHA and that he was fired in retaliation, are not merely conclusory and speculative statements. Rather, Motarie has raised a genuine issue of material fact regarding an essential element of the WDFEA; namely, whether his discharge was in retaliation for a good faith reporting of what he reasonably perceived to be a violation of public policy. Consequently, we conclude that the District Court erred in granting summary judgment.

Reversed.

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


author: JUSTICE HUNT

text:
    CITY OF FORSYTH, Plaintiff and Respondent, v. RONALD ALLISON, Defendant and Appellant.
    No. 95-264.
    Submitted on Briefs November 2, 1995.
    Rehearing Denied January 11, 1996.
    Decided December 12, 1995.
    52 St.Rep. 1212.
    908 P.2d 205.
    274 Mont. 246.

      For Appellant: Ronald Allison, Forsyth (pro se).
    For Respondent: Lee R. Kerr, Rosebud County Attorney, Forsyth.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Ronald Allison (Allison), was convicted by a jury in the Sixteenth Judicial District Court, Rosebud County, of a misdemeanor for failing to obtain a city business license. He appeals his conviction.

We affirm.

Appellant raises three issues, which we restate as follows:

1. Did the District Court err in finding that Allison’s business was located within the Forsyth city limits?

2. Is the City of Forsyth’s business licensing scheme unconstitutional or discriminatory?

3. Did the District Court rely on perjured testimony by the city clerk in obtaining a conviction?

FACTS

Appellant, Allison, owns and operates “King’s Muffler,” located in Forsyth, Montana. The land upon which Allison operates his business was reserved on an original plat of the City of Forsyth by the Northern Pacific Railroad Company. On the plat, the land is designated as “reserved for railroad purposes.”

In May 1994, the City of Forsyth filed a complaint in City Court against Allison for failure to obtain a business license in violation of § 5-1-2 of the City of Forsyth Codes. In September 1994, a jury found Allison guilty of this misdemeanor offense. Allison then filed an appeal in the District Court.

Prior to trial, Allison contested the City of Forsyth’s jurisdiction over his business and filed a motion to dismiss. In response, the District Court issued an order allowing Allison access to all relevant public records, and asked both Allison and the City of Forsyth to submit briefs on the issue of whether the property is within the legal boundaries of the City of Forsyth.

After the parties submitted their briefs, the District Court denied Allison’s motion to dismiss and found the reserved land to be within the city limits for all purposes except the platting of streets, alleys and lots. Allison filed a notice of appeal to this Court, and refused to attend the District Court trial held on March 31,1995. Trial was held without him, and the jury returned a guilty verdict.

ISSUE 1

Did the District Court err in finding that Allison’s business was located within the Forsyth city limits?

Allison filed a pretrial motion to dismiss alleging that his muffler shop was not within the jurisdiction of the City of Forsyth. The District Court denied the motion and in doing so found that Allison’s shop was within the city limits and therefore subject to the city’s licensing requirements. The standard of reviewifor findings by a district court is whether the court’s findings are clearly erroneous. Bradshaw v. Bradshaw (1995), 270 Mont. 222, 229, 891 P.2d 506, 510.

When reviewing a motion to dismiss, the court construes the complaint in the light most favorable to the plaintiff and considers the allegations of the complaint as true. Rule 12(b)(6), M.R.Civ.P.; Kelman v. Losleben (1995), 271 Mont. 156, 894 P.2d 955.

Allison argues that because the city ordinance only applies to businesses operating within the city limits of Forsyth, he cannot be charged with failure to obtain a license. Allison contends his business is not within the city limits. Allison bases his claim on the original plat of the City of Forsyth, in which the proprietor, Northern Pacific Railroad Company, reserved certain property for “railroad purposes.” The muffler shop is located upon such a reservation. Allison claims that the City of Forsyth has never taken action to include this property within its boundaries, and therefore, the business is located outside the city limits, citing Gregory v. City of Forsyth (1980), 187 Mont. 132, 609 P.2d 248. In that case, this Court found discrepancies existed in the City of Forsyth’s boundaries. Allison argues that the Gregory case “casts doubt on the remainder of the city property.” Allison further contends that the Gregory case “mandates” that when there is ambiguity as to whether property is within the city’s jurisdiction, the city must go through certain annexation procedures; and since the area upon which his shop is located has never been annexed it is outside the domain of the City of Forsyth.

In response to Allison’s motion to dismiss, the City of Forsyth contends the reservation does not exclude the reserved property from the city limits. Rather, the reservation only excepted the property from being platted into blocks, lots, streets, and alleys. Furthermore, the City of Forsyth argued that the Gregory case dealt with property located outside of the city that had not been annexed. In this case, the property is within the boundaries of the city, and has been zoned as industrial property.

In support of its argument, the City of Forsyth submitted an affidavit from an appraiser from the Department of Revenue. The appraiser stated that he had considered the question of whether the railroad property was within city limits on “numerous occasions.” In order to answer the question he had mapped out the described boundaries of the City of Forsyth using the original legal description. After doing so, the appraiser concluded the property in question was within the city boundaries. At the time the original plat was drawn, the railroad company was the sole owner of Forsyth and the company reserved the railroad right-of-way for its own use; it did not exclude the reservation from the boundaries of the city.

In its order denying the motion to dismiss, the District Court agreed with the City of Forsyth. The court found that the areas marked “reserved for railroad uses” merely kept the reserved property from being platted, and therefore Allison was subject to the City of Forsyth’s business licensing ordinance.

The District Court’s determination is not clearly erroneous and we therefore affirm its conclusion that Allison’s muffler shop is located within the City of Forsyth for the purposes of city licensing, and subsequent denial of Allison’s motion to dismiss.

ISSUE 2

Is the City of Forsyth’s business licensing scheme unconstitutional or discriminatory in nature?

On appeal, we review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Section 46-20-701(2), MCA; State v. Courchene (1992), 256 Mont. 381, 385, 847 P.2d 271, 273. Section 46-20-104, MCA, provides that if the defendant fails to make a timely objection during the trial, the objection is waived, except as provided in § 46-20-701(2), MCA, which reads in part as follows:

46-20-701. Elements of record court considers on review — errors noticed.

(2) Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant

[convicted person] establishes that the error was prejudicial as to his guilt or punishment and that:

(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;

(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant [convicted person] or his attorney that prevented the claim from being raised and disposed of; or

(c) material and controlling facts upon which the claim is predicated were not known to the defendant [convicted person] or his attorney and could not have been ascertained by the exercise of reasonable diligence. (Emphasis added.)

Allison’s claim that the licensing requirement is unconstitutional may create prejudicial error, but his claim does not meet any of the three requirements listed in the statute. See State v. Cain (1986), 220 Mont. 509, 514, 717 P.2d 15, 18. If Allison wished to raise the issue of the constitutionality of the licensing requirement, he should have raised it at trial. Instead Allison chose not to participate in the trial. His appeal rests solely on the District Court’s pretrial denial of a motion to dismiss based on a factual finding that his business is within the city limits.

The constitutionality of the City of Forsyth’s licensing requirements was never properly before the trial court for adjudication. Because we do not consider issues raised for the first time on appeal we decline to review the question of whether the licensing requirement is unconstitutional.

ISSUE 3

Did the District Court rely on perjured testimony by the city clerk in obtaining a conviction?

On appeal, Allison objects to the testimony of the city clerk stating that Allison had obtained a business license prior to 1994. Allison asserts that he has never obtained a business license, and that the testimony was therefore untrue.

Again, the issue was not preserved at the District Court level. Allison failed to object to the testimony at trial. Going through the same analysis as provided in Issue 2, Allison fails to establish the threshold requirement of prejudicial error under § 46-20-701, MCA. Even if the testimony of the city clerk was incorrect, whether Allison purchased a business license prior to 1994 bears little if any relevance to his conviction. Allison’s subsequent assumption that the rest of the city’s testimony is “tainted” and that he did not receive a fair trial is a mere allegation which has not been substantiated on appeal.

We affirm the District Court.

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


author: JUSTICE TRIEWEILER

text:
    MARION SMITH, Plaintiff and Appellant, v. ELECTRONIC PARTS, INC., Defendant and Respondent.
    No. 95-291.
    Submitted on Briefs November 16, 1995.
    Decided December 12, 1995.
    52 St.Rep. 1215.
    907 P.2d 958.
    274 Mont. 252.

      For Appellant: Richard M. Baskett, Attorney at Law, Missoula.
    For Respondent: Alan F. Blakley, Blakley and Velk, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On January 17, 1995, Marion Smith moved the Fourth Judicial District Court in Missoula County for a preliminary injunction to prevent Electronic Parts, Inc.’s (EPI) counsel from continuing to represent the corporation; to enjoin EPI’s officers, agents, and employees from altering any of the corporation’s documents; and to order that those documents be produced for inspection and copying. That same day, EPI sought an injunction to prevent Smith from attempting to enforce the provisions of a stock redemption agreement and to order Smith to take necessary actions to receive full payment pursuant to the agreement. Smith later moved for a second injunction to enjoin a meeting of EPI’s corporate shareholders. On January 26, 1995, after a hearing to consider both parties’ motions, the court entered an order which denied both of Smith’s motions for injunction, granted EPI’s motion for an injunction, and imposed Rule 11 sanctions against Smith and Smith’s counsel. Smith appeals the District Court’s order. We affirm the District Court’s denial of Smith’s applications for injunctions, decline to decide the issue of EPI’s injunction against Smith based on mootness, and remand for a hearing on the issue of Rule 11 sanctions.

There are three issues on appeal:

1. Did the District Court abuse its discretion when it denied Smith’s motions for injunctions?

2. Did the District Court abuse its discretion when it granted EPFs motion for a preliminary injunction?

3. Did the District Court err when it assessed Rule 11 sanctions against Smith and his attorney?

FACTUAL BACKGROUND

Prior to January 20,1986, Marion Smith was the sole shareholder and director of Electronic Parts, Inc. (EPI). On January 20, 1986, Smith sold his interest in the corporation as part of a complicated transaction that involved the redemption of the bulk of his stock in EPI; the sale of 101 shares of his stock to Bob Lussy and ninety-nine shares of his stock to his son, Stephen Smith; and the gift of ten shares to John Tester.

The redemption of Smith’s stock was set forth in a Stock Redemption Agreement. The agreement required EPI to make monthly payments to Smith for the redemption of 790 shares of common stock over a ten-year period, and obligated EPI to carry life insurance on Stephen Smith and Bob Lussy in aggregate amounts sufficient to cover the outstanding balance and accrued interest owed to Smith during that period. The agreement further provided that Smith would have the right to inspect all business records and demand inventories at his discretion during the redemption period.

On January 20,1986, Smith also entered into a Consulting Agreement with EPI. Pursuant to the terms of the agreement, Smith was to receive 2.0 percent of EPFs gross sales on a monthly basis. However, the agreement provided that upon the occurrence of certain conditions, the payment would be reduced to 1.4 percent of the gross sales. In 1992, after Bob Lussy had bought out Stephen Smith’s entire interest in EPI, the corporation reduced the payment from 2.0 percent to 1.4 percent. Marion Smith brought suit against EPI to collect the difference between 2.0 percent and 1.4 percent, and to request other relief. That suit is still pending.

Bob Lussy died on December 12,1994. At that time, EPI still owed Smith approximately $17,000 pursuant to the Stock Redemption Agreement. The corporation did have life insurance on Lussy at the time of his death in an amount sufficient to pay this balance to Smith, as required by the Stock Redemption Agreement. Smith, however, did not accept the payment and instead began a series of efforts to reinstate himself as an officer of the corporation.

On January 15,1995, Smith held a telephonic conference call with his attorney, Richard Baskett, and John Tester, who still owned ten shares of stock in EPI. Smith took the position at that time that he was the sole remaining director of the corporation pursuant to the terms of an agreement which had been executed on January 20,1986, between Smith, Lussy, and Stephen Smith. That agreement, referred to by both parties as the “Consent to Action,” provided in part that:

Notwithstanding any provision contained in the Montana Business Corporation Act, the articles of incorporation or the bylaws, the directors and shareholders jointly agree that they shall retain Marion R. Smith, as a director, provided [Smith] wishes to serve in that capacity, during the 10 year term of the Redemption Agreement....”

Smith also took the position that based upon another document, the Stock Purchase and Redemption Agreement, dated January 20,1986, John Tester was the only shareholder with shares in EPI that could be voted.

During the conference call, Smith purported to appoint Tester as the replacement director for Bob Lussy. Thereafter, Smith and Tester purported to terminate Alan Blakley’s legal representation of the corporation, and to elect Smith as president of EPI.

Smith notified Blakley of the results of the telephonic conference on January 15, 1995. Blakley, however, sent Smith a reply letter in which he stated that he did not recognize the actions of Smith and Tester, that he would continue to represent the corporation, and that he would file an application for injunctive relief.

On January 17, 1995, Blakley filed an application for injunctive relief on behalf of EPI to enjoin Smith from attempting to enforce the provisions of the Stock Redemption Agreement and to order Smith to accept the $17,000 insurance check as full payment pursuant to the agreement. That same day, Smith filed a motion for injunctive relief to enjoin Blakley from continuing to represent EPI; to enjoin EPI’s officers, agents, and employees from altering any of the corporation’s documents; and to order that those documents be produced for inspection and copying. Smith later moved for a second injunction to enjoin a meeting of the corporate shareholders called by the personal representative of Robert Lussy’s estate. On January 26, 1995, the court denied Smith’s applications for injunctions, granted EPI’s injunction against Smith, and imposed Rule 11 sanctions against Smith and Smith’s counsel.

ISSUE 1

Did the District Court abuse its discretion when it denied Smith’s motions for injunctions?

The grant or denial of an injunction is a discretionary ruling of the trial court which we will not overturn absent an abuse of discretion. Sebena v. State (1994), 267 Mont. 359, 366, 883 P.2d 1263, 1267. The party seeking injunctive relief must prove his right to the injunction. Sebena, 883 P.2d at 1267.

In this case, Smith sought two injunctions based on his claim that he was the sole remaining director of EPI as of the date of Robert Lussy’s death. Smith maintained that because he was a director he was entitled to terminate Alan Blakley as EPI’s counsel, elect John Tester as a director of the corporation, and inspect and review EPI’s corporate records. Smith further maintained that, as director, he was entitled to prevent a meeting of the corporate shareholders called by the personal representative of Lussy’s estate. At the District Court hearing, however, Smith did not establish that he was a director of the corporation, and therefore, did not prove his right to the injunctions.

The Consent to Action agreement provided that Smith would be retained as a director of EPI “provided [he] wishes to serve in that capacity.” (Emphasis added.) The record is clear, however, that Smith had never chosen to serve as a director for EPI. At the hearing before the District Court, Smith freely admitted that he had not acted as a director of the corporation in any way since he sold his interest in EPI in January 1986. Smith testified that he did not attend any director’s meeting, and that he had not inquired about the director’s meetings or activities. He testified that he did not ask any corporate employees if he was still a director of EPI or inform any corporate employees that he would be acting in his capacity as director before he arranged the telephonic meeting on January 15, 1995. Furthermore, Helen Kolokotrones, who had been present at all the board meetings from 1986 through 1995, testified that Robert Lussy was the sole director of EPI on the date of Lussy’s death. A Montana Annual Corporation Report filed with the Secretary of the State in 1995, and admitted as an exhibit in the District Court hearing, confirmed Kolokotrones’s testimony that Lussy was the sole director of the corporation in 1994.

Smith’s claim that he is a director of the corporation was further undermined by deposition testimony which he gave in January 1993, and by his pending suit against EPI for his consulting fee. On January 18, 1993, Smith testified that he could not “recall” being retained as a director of EPI. In his pending suit against EPI, he did not inform the corporation or the District Court that he was a director of the corporation against which he had filed suit. These factors, combined with Smith’s demeanor during direct and cross-examination at the District Court hearing, led the court to find that “Smith is not a credible witness.” In fact, after it heard all testimony presented at that hearing, the court stated that “[o]n January 15, 1995, Smith knew that he was not a director of Corporation.” (Emphasis added.)

We conclude that the District Court’s finding that Smith was not a director was supported by substantial evidence and was not clearly erroneous. Therefore, we conclude that the District Court did not abuse its discretion when it denied Smith’s motions for injunctive relief. Because Smith did not establish that he was a director of EPI as of the date of Bob Lussy’s death, he did not prove his right to terminate EPI’s corporate counsel, inspect corporate records, or enjoin the meeting of the corporate shareholders called by the personal representative of Lussy’s estate.

ISSUE 2

Did the District Court abuse its discretion when it granted EPFs motion for a preliminary injunction?

Following a hearing on Smith’s and EPFs motions for injunctions, the District Court granted EPI’s motion for an injunction against Smith. The court stated:

Smith is enjoined from this date from making any demands upon Corporation pursuant to that Stock Redemption Agreement, dated January 20, 1986, under which he sold 790 shares of stock to Corporation, and he is enjoined from attempting to enforce in any way any provisions of that Agreement....

On August 7, 1995, EPI filed an affidavit from the general counsel of the insurance company that held Lussy’s life insurance policy. The affidavit stated that the company had issued a check in the amount of $17,236.74 payable to Smith pursuant to the terms of the Stock Redemption Agreement and that Smith had endorsed the check and was paid on or about May 4, 1995. Smith failed to object to EPFs submission of the affidavit and, in fact, conceded in his reply brief that he had accepted the check. Although this Court is not an evidentiary tribunal and does not accept evidence beyond that which is submitted at the trial court level, we will accept both parties’ representations that Smith did in fact receive payment pursuant to the terms of the Stock Redemption Agreement as a stipulated fact.

The Stock Redemption Agreement clearly states that Smith may enforce the terms of the agreement only “during the redemption of his shares of common stock to Corporation.” Since it is stipulated that EPI redeemed Smith’s shares of common stock in May 1995 when Smith accepted full payment pursuant to the Stock Redemption Agreement, it is clear that Smith no longer has any rights pursuant to that agreement and can no longer enforce the terms of that agreement. It is therefore clear that we need not address the issue of EPI’s injunction against Smith pursuant to the Stock Redemption Agreement because that issue is moot.

It is well established that this Court may not address moot questions. See, e.g., State ex rel. Miller v. Murray (1979), 183 Mont. 499, 600 P.2d 1174; In re T.J.F. (1987), 229 Mont. 473, 747 P.2d 1356. In Miller, we defined a moot question as “one which existed once but because of an event or happening, it has ceased to exist and no longer presents an actual controversy.” Miller, 600 P.2d at 1176. In In re T.J.F., we held that:

A case will become moot for the purpose of an appeal “where by a change of circumstances prior to the appellate decision the case has lost any practical purpose for the parties, for instance where the grievance that gave rise to the case has been eliminated ....”

In re T.J.F., 747 P.2d at 1357 (quoting 5 Am. Jur. 2d Appeal and Error § 762 (1962)).

Because Smith accepted payment pursuant to the terms of the Stock Redemption Agreement, he has no further rights pursuant to that agreement, and the issue of whether he should be enjoined from enforcing those rights and should be compelled to accept payment is moot.

Therefore, we need not and do not decide whether the District Court abused its discretion when it granted the injunction sought by EPI.

ISSUE 3

Did the District Court err when it assessed Rule 11 sanctions against Smith and his attorney?

In its opinion and order, the District Court imposed Rule 11 sanctions against Smith and his attorney. At that time, the court directed EPI to submit an affidavit of costs and fees and gave Smith ten days to object and request a hearing on the matter. Although EPI did file an affidavit and Smith did object to the sanctions, a hearing has not yet been held. Smith now appeals the assessment of the costs and fees. He maintains that the sanctions were not justified pursuant to Rule 11 because he believed that his applications for injunctive relief were well-grounded in fact and supported by the law. He further maintains that he is entitled to a separate hearing on the issue of sanctions.

This Court has held that a trial court must give notice and afford an opportunity to be heard before it imposes Rule 11 sanctions. Lindey’s, Inc. v. Goodover (1994), 264 Mont. 489, 497, 872 P.2d 767, 772. We have held that a hearing is necessary to provide the party with due process by affording it a sufficient opportunity to defend against the imposition of sanctions. Lindey’s, 872 P.2d at 772. In addition, we have held that the trial court should identify in its judgment or order the pleadings, motions, or other papers on which it bases the imposition of Rule 11 sanctions. Lindey’s, 872 P.2d at 772.

Since the District Court has not yet held a hearing on the issue of Rule 11 sanctions, and therefore, has not yet set forth its rationale for the imposition of attorney fees and costs, we remand for notice and a hearing as mandated by our decision in Lindey’s.

We affirm the District Court’s order as it relates to the denial of Smith’s motions for injunctions, decline to review the District Court’s order which granted EPI’s motion for an injunction, and remand for further proceedings regarding the issue of Rule 11 sanctions.

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


text:
    FARM CREDIT BANK OF SPOKANE, a corporation, successor by merger to The Federal Land Bank of Spokane, Plaintiff and Respondent, v. RONALD FULBRIGHT and GAYLE FULBRIGHT, husband and wife; WILLIAM L. DICKSON and BERTHA A. DICKSON, husband and wife; DUANE SCOTT and RENAE SCOTT, husband and wife; and LYNN BLAIR, Defendants and Appellants.
    No. 95-360.
    Submitted on Briefs November 9, 1995.
    Decided December 12, 1995.
    52 St.Rep. 1219.
    907 P.2d 956.
    274 Mont. 261.

      For Appellant: Ronald Fulbright, Coffee Creek (pro se).
    For Respondent: A. Lance Tonn, Lucas & Monaghan, Miles City.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellants appeal the order of the Tenth Judicial District Court, Fergus County, granting Respondent an extension of the time in which it may execute a foreclosure entered against Appellants.

We affirm.

Appellants Fulbright (Fulbrights) obtained a loan from Respondent (Bank), and, as collateral, executed a mortgage in the Bank’s favor on certain real property. The Fulbrights subsequently defaulted on the loan, and the Bank foreclosed the mortgage. The Bank sold the foreclosed property for considerably less than the amount of the loan, and obtained a deficiency judgment against the Fulbrights for the amount still owed.

Under § 25-13-101, MCA, a party has six years in which to execute a judgment, but § 25-13-102, MCA, provides that a judge may extend the time allotted for execution. The Bank moved for such an extension, which the District Court granted. The Fulbrights appeal the order extending the time allowed for executing the judgment. As the sole basis of their appeal, they allege that the Bank is a foreign corporation and, as such, must obtain a certificate of authority before conducting business in the state of Montana.

While the Fulbrights contend that the Bank is a foreign corporation and the Bank contends it is not, we need not consider this issue because we find the plain language of the pertinent statute to be dispositive.

Section 35-1-1026, MCA, provides:

(1) A foreign corporation may not transact business in this state until it obtains a certificate of authority from the secretary of state.

(2) The following activities, among others, do not constitute transacting business within the meaning of subsection (1) ...

(g) creating or acquiring indebtedness, mortgages and security interests in real or personal property;

(h) securing or collecting debts or enforcing mortgages and security interests in property securing the debts ....

The activities the Bank has pursued in this case involve creating a mortgage and collecting a debt by foreclosing on the mortgage. Under the plain language of the above statute, it is irrelevant whether the Bank is a foreign corporation or not. Even assuming arguendo that it is, it need not obtain a certificate of authority in order to pursue these activities.

The Fulbrights contend that § 35-1-1026, MCA, is not applicable in this case because the Bank initiated the foreclosure action in 1988 and this statute was not enacted until 1992. However, the Fulbrights have overlooked the predecessor to § 35-1-1026, MCA, which similarly provided:

[A] foreign corporation shall not be considered to be transacting business in this state for the purposes of this chapter by reason of carrying on in this state any one or more of the following activities ... (7) creating, as borrower or lender, or acquiring indebtedness or mortgages or other security interests in real or personal property; (8) securing or collecting debts or enforcing any rights in property securing the same ....

Section 35-1-1002, MCA (1987). This predecessor to the current § 35-1-1026, MCA, was enacted in 1967, and therefore was in force during all of the events pertinent to this case.

Because the Bank need not obtain a certificate of authority in order to execute a foreclosure, regardless of whether it is a foreign corporation or not, the order of the District Court is affirmed.

CHIEEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER and LEAPHART concur.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES MOSES GRAVES, Defendant and Appellant.
    No. 94-608.
    Submitted on Briefs September 28, 1995.
    Decided December 14, 1995.
    52 St.Rep. 1221.
    907 P.2d 963.
    274 Mont. 264.

      For Appellant: William F. Hooks, State Appellate Defender, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Assistant Attorney General, Helena; Thomas J. Esch, Flathead County Attorney, Ed Corrigan, Deputy Flathead County Attorney, Kalispell.
   JUSTICE NELSON

delivered the Opinion of the Court.

Charles Moses Graves (Graves) was convicted by a jury of felony theft and burglary. During the trial, the District Court for the Eleventh Judicial District, Flathead County, permitted jurors to submit written questions to be asked of witnesses at the conclusion of their testimony. Graves’ counsel objected to this practice and it is on this basis that Graves appeals. We affirm.

The sole issue raised by Graves on appeal is:

Did the trial court deny Graves a fair trial by an impartial jury, by permitting the jurors to pose questions during trial?

Background Facts

On February 28, 1994, Graves was charged by information with burglary in connection with an early-morning incident in the Kalispell Center Mall, where Graves was employed as a janitor. The information was later amended to include a charge of felony theft. The amended information charged that between February 4 and February 5, 1994, Graves knowingly entered and remained unlawfully in the Great Bear Bakery in the Kalispell Center Mall with the purpose to commit the offense of theft, and that he obtained and exerted unauthorized control over more than $500 in currency and checks belonging to the owners of the bakery.

Graves entered pleas of not guilty to the charges and proceeded to trial on May 16, 1994. Following voir dire and outside the presence of the jury, the District Court inquired whether either party wished to obj ect to the court’s standard practice of permitting jurors to submit to the court written questions to be read to witnesses following their testimony. Defense counsel objected to this procedure, while counsel for the State argued that this was a matter for the court’s discretion.

In his preliminary instructions to the jury, the trial judge instructed the jury that they would be permitted to ask questions of witnesses. In outlining the procedure to be followed, the judge stated that “if at the conclusion of a witness’ [testimony] you feel that some significant ground has been left unturned or something is not totally clear to you but could be clarified, you’re welcome to ask any number of questions you wish.”

The trial judge instructed the jurors to write out their questions and hand them to the bailiff who would then deliver them to the judge for review. Both counsel were given the opportunity to review the questions and make objections in a private side bar with the court. The judge read the questions to the witnesses as they were submitted and counsel were then permitted to ask follow-up questions. In the course of the trial, the District Court permitted 13 questions from the jury, including several questions for the defendant at the conclusion of his testimony. |

The jury found Graves guilty on both counts. At his sentencing hearing, Graves admitted that he had committed the burglary and theft. The District Court sentenced Graves to 20 years in the Montana State Prison for the burglary conviction and 10 years for the theft conviction. The sentences were to run concurrently to each other, but consecutively to the sentences for two prior convictions. Graves was also designated a persistent felony offender and sentenced to an additional 15 years in the Montana State Prison with 10 years suspended.

Discussion

Did the trial court deny Graves a fair trial by an impartial jury, by permitting the jurors to pose questions during trial?

Graves argues that allowing the jurors to pose questions to witnesses during his trial encouraged the jurors to become advocates and jeopardized the adversarial nature of his trial. Graves claims that juror participation in the presentation of evidence encourages jurors to depart from their role as passive listeners and assume an active adversarial or inquisitorial stance and that this practice spawns premature deliberation by the jurors.

The State argues that allowing jurors to question witnesses is within the sound discretion of the trial court and, if properly structured and organized, this practice can be beneficial to both parties. The State claims that there is no constitutional mandate that jurors sit silently and passively accept the omission of certain facts that may be helpful in rendering their decision. In addition, the State points out that juror questions may bring to the court’s attention improper concerns which can be promptly addressed with cautionary instructions.

While this Court has not previously addressed the issue of whether jurors should be permitted to pose questions to witnesses in a criminal trial, courts in other jurisdictions have struggled with this issue for some time. A brief examination of some of these cases is appropriate in resolving this issue.

In 1970, in an opinion lacking any analysis of this issue, the Ninth Circuit Court of Appeals held that allowing a juror to submit a question to the court was not error. U.S. v. Gonzalez (9th Cir. 1970), 424 F.2d 1055, 1056.

Similarly, in 1979, the Fifth Circuit Court of Appeals determined that the proper handling of juror questions is a matter within the discretion of the trial judge. U.S. v. Callahan (5th Cir. 1979), 588 F.2d 1078, 1086. In Callahan, the court of appeals stated:

There is nothing improper about the practice of allowing occasional questions from jurors to be asked of witnesses. If a juror is unclear as to a point in the proof, it makes good common sense to allow a question to be asked about it. If nothing else, the question should alert trial counsel that a particular factual issue may need more extensive development. Trials exist to develop truth. It may sometimes be that counsel are so familiar with a case that they fail to see problems that would naturally bother a juror who is presented with the facts for the first time.

Callahan, 588 F.2d at 1086.

On the other hand, in a 1985 opinion, the Fourth Circuit Court of Appeals pointed out that although it also believed that juror questioning is a matter within the trial court’s discretion, the practice of juror questioning is “fraught with dangers which can undermine the orderly progress of the trial to verdict.” DeBenedetto v. Goodyear Tire & Rubber Co. (4th Cir. 1985), 754 F.2d 512, 516. In this case, jurors were allowed to pose questions orally in the presence of other jurors. The court of appeals expressed its concern about jurors asking improper or prejudicial questions and about jurors attaching more significance to answers to questions posed by jurors. DeBenedetto, 754 F.2d at 516-17. However, because it could detect no prejudice to either party and because appellants did not object to the procedure at the time of trial, the court of appeals did not find error in the use of juror questions in that case. DeBenedetto, 754 F.2d at 517.

A few years later, in U.S. v. Lewin (8th Cir. 1990), 900 F.2d 145, the Eighth Circuit Court of Appeals set forth certain safeguards that should be used if a trial court decides to permit jurors to ask questions of witnesses. In Lewin, the trial court informed the jurors at the beginning of the trial that they would be allowed to ask questions of each witness after cross-examination. The jurors asked their questions orally and objections were discussed at the bench, but within the presence of the jury. Lewin, 900 F.2d at 147. The court of appeals stated that if a trial court decides to permit jurors to ask questions, it should consider requiring jurors to submit their questions in writing, or orally out of the presence of the other jurors, and without prior discussion with the other jurors. Lewin, 900 F.2d at 148.

In the case before us on appeal, Graves relies on a 1992 case, Morrison v. State (Tex.Crim.App. 1992), 845 S.W.2d 882, for his contention that the risks posed by permitting jurors to question witnesses in a criminal trial far outweigh any benefits. In Morrison, the trial judge instructed the jury that following the testimony of each witness, jurors could submit written questions to the court to be asked of that witness. The court would rule on the questions outside of the presence of the jury. If a question was ruled admissible, the judge would recall the jury and read the question to the witness. Counsel would then be allowed to ask follow-up questions limited to the subject matter of the juror’s question. During trial, a juror question was ruled inadmissible, however, the prosecutor was allowed to present additional evidence based on that question. Morrison, 845 S.W.2d at 883.

In his appeal, Morrison claimed that juror questions amounted to a form of communication between the jurors and the parties and called into question the integrity of the adversary system. Morrison, 845 S.W.2d at 884. The Court of Criminal Appeals of Texas agreed holding that no authority established or authorized jurors to ask questions of witnesses in the criminal jurisprudence of Texas, therefore, permitting juror questions was error. Morrison, 845 S.W.2d at 889.

The same year that Morrison was decided, the First Circuit Court of Appeals held that allowing juror-inspired questions in a criminal case is not prejudicial per se but is a matter committed to the sound discretion of the trial court. U.S. v. Sutton (1st Cir. 1992), 970 F.2d 1001, 1005. In Sutton, the jury was permitted to ask questions of witnesses in writing. The judge reviewed the questions and, if he determined they were relevant, he asked them for the jury and then asked follow-up questions. Sutton, 970 F.2d at 1003.

The appellant in Sutton asserted that the questioning of witnesses by jurors in a criminal trial “is inherently prejudicial, invades counsel’s province, distorts the roles of judge and jury, and unfairly inhibits objections.” Sutton, 970 F.2d at 1004. The court of appeals disagreed holding that “the lower court’s use of a small number of juror-inspired questions, under carefully controlled conditions, did not impinge upon the defendant’s substantial rights or tarnish the fundamental fairness of his trial.” Sutton, 970 F.2d at 1008.

Likewise, in U.S. v. Cassiere (1st Cir. 1993), 4 F.3d 1006, the First Circuit Court of Appeals determined that the trial court did not commit plain error in allowing eleven juror-inspired questions to be asked of witnesses including four questions asked of the defendant. The court of appeals found that the questions asked were relatively bland in character and designed to clarify and explain testimony already given. Cassiere, 4 F.3d at 1017. However, the court of appeals stated that the practice should be reserved for exceptional situations, and should not become the routine, even in complex cases. Cassiere, 4 F.3d at 1018.

The courts in three recently decided cases took varying views on the practice of permitting jurors to pose questions to witnesses. In U.S. v. Bush (2nd Cir. 1995), 47 F.3d 511, 514, the Second Circuit Court of Appeals stated that every circuit court that has addressed this issue agrees that questioning by jurors is a matter within the judge’s discretion and is similar to witness-questioning by the judge himself. Moreover, the court of appeals claimed that state courts have overwhelmingly placed juror questioning of witnesses within the trial judge’s discretion. Bush, 47 F.3d at 515. Nonetheless, the court of appeals discouraged this practice in Bush finding that the practice risks turning jurors into advocates, thereby compromising their neutrality. Bush, 47 F.3d at 515.

The court of appeals pointed out that the practice will often impale attorneys on the horns of a dilemma. If attorneys object to questions posed by the jurors, they risk alienating the jury. On the other hand, foregoing objections will usually constitute a waiver of even the most pernicious errors.

Bush, 47 F.3d at 515.

Several months later, that same court stated in U.S. v. Ajmal (2nd Cir. 1995), 67 F.3d 12, 14, that the practice of allowing juror questioning of witnesses is well entrenched in the common law and in American jurisprudence. Indeed, the courts of appeals have uniformly concluded that juror questioning is a permissible practice, the allowance of which is within a judge’s discretion, [citations omitted] Nonetheless, the courts of appeals are similarly unified in their disapproval of the general practice of juror questioning of witnesses.

Hence, in Ajmal, the court of appeals determined that the trial court had abused its discretion by allowing jurors to question witnesses as a matter of course, as the practice should be reserved for exceptional situations, and should not become routine, even in complex cases. The court of appeals said that if allowed to formulate questions throughout the trial, jurors may prematurely evaluate the evidence and adopt a particular position as to the weight of that evidence before considering all the facts. Ajmal, 67 F.3d at 14.

Most recently, in U.S. v. Bascope-Zurita (8th Cir. 1995), 68 F.3d 1057, the Eighth Circuit Court of Appeals determined that the trial court did not err by permitting jurors to ask questions of witnesses in a drug prosecution. The court of appeals held that the practice of allowing juror questions is a matter committed to the sound discretion of the trial court and that the procedure used by the trial court of submitting written questions to the court so that evidentiary issues could be resolved, did not constitute an abuse of discretion. Bascope-Zurita, 68 F.3d at 1064.

After reviewing these decisions from other jurisdictions, we agree that juror questioning of witnesses is a matter within the sound discretion of the trial judge. Moreover, Montana’s Rules of Evidence provide that the trial court controls the mode and order of interrogating witnesses and presenting evidence so as to “make the interrogation and presentation effective for the ascertainment of the truth.” Rule 611(a)(1), M.R.Evid.

While we neither encourage nor discourage the practice of allowing jurors to question witnesses, we, nevertheless, caution trial courts which allow this practice to be ever mindful that the jury’s fact-finding role is to be accomplished in a spirit of neutrality, fairness and open-mindedness. Accordingly, juror questioning of witnesses must be at all times carefully controlled by the court to insure that individual jurors do not lapse into an advocacy role, or by their questions intimate any prejudgment of the evidence or the credibility of the witnesses being questioned. Additionally, we emphasize that the adoption of this practice is at the discretion of the trial court. Jurors have no inherent right to question witnesses, and juror questioning may not be appropriate in all cases or of all witnesses.

To that end, we conclude that if a judge, in his or her discretion, decides to allow this practice, certain minimum safeguards must be implemented. These safeguards include: (1) the questions should be factual, not adversarial or argumentative, and should only be allowed to clarify information already presented; (2) the questions should be submitted to the court in writing; (3) counsel should be given an opportunity to object to the questions outside of the presence of the jury; (4) the trial judge should read the questions to the witness; and (5) counsel should be allowed to ask follow-up questions.

In the case before us on appeal, the District Court did use the appropriate safeguards by allowing only written questions to be submitted to the court and reviewing these questions for evidentiary problems. Both counsel were given the opportunity to object to the questions in a private side-bar with the court and to ask follow-up questions of the witnesses. In addition, the questions were intended to clarify certain facts brought out by the witnesses and were non-argumentative.

Graves also argues that to allow the jurors to question the accused when the accused chooses to testify at trial is an abuse of discretion. While we agree that this is a dangerous practice, it was defense counsel that invited the jurors to ask questions of Graves and Graves may not now claim error in that regard.

Accordingly, we hold that permitting jurors to pose questions to ’ witnesses during trial is a matter within the sound discretion of the trial court, and the District Court did not abuse its discretion in this case.

Affirmed.

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

JUSTICE LEAPHART did not participate in this opinion.


text:
    JOHN FRANCHI, Relator and Appellant, v. THE COUNTY OF JEFFERSON, MONTANA, PAUL RUFFATTO, LEONARD WORTMAN, and DAVID ANDERSON, Jefferson County Commissioners, THE JEFFERSON COUNTY COMMISSION, and SUSAN MILLER, Jefferson County Treasurer, Respondents and Respondents.
    No. 95-267.
    Submitted on Briefs November 30, 1995.
    Rehearing Denied January 11, 1996.
    Decided December 14, 1995.
    52 St.Rep. 1229.
    908 P.2d 210.
    274 Mont. 272.

      For Appellant: Robert T. Cummins, Attorney at Law, Helena.
    For Respondent: Valerie D. Wilson, Jefferson County Attorney, Boulder.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On January 5, 1994, John Franchi filed a petition for writ of mandate in the District Court for the Fifth Judicial District in Jefferson County in which he requested that the court direct the Jefferson County Board of Commissioners to rescind the establishment of the Boulder Mosquito Control District fee and order the Jefferson County Treasurer to refund fees already collected for the District. On January 5,1994, the District Court granted the writ and ordered the Board of Commissioners to comply with § 7-22-2432(2), MCA, which governs the financing of mosquito control districts, or in the alternative, to appear and show cause why they should not comply. After a hearing on November 9, 1994, the District Court issued an order which quashed the writ of mandate and dismissed Franchi’s petition. Franchi appeals the court’s order. We affirm the order of the District Court.

The issue on appeal is:

Did the District Court err when it denied Franchi’s application for a writ of mandate?

FACTUAL BACKGROUND

In 1973, the Jefferson County Board of Commissioners created the Boulder Mosquito Control District for the purpose of controlling mosquitoes within its boundaries, which include the town of Boulder and the surrounding rural area in the upper Boulder Valley. Prior to July 1, 1992, the District was funded by a tax of five mills on the taxable value of all property situated within the District, pursuant to § 7-22-2432(1), MCA.

On March 11, 1992, pursuant to § 7-22-2432(2), MCA, the Board of Commissioners passed Resolution 4-92, which called for an election to determine whether the voters in the Mosquito Control District approved the imposition of annual fees, in addition to the five mills then levied to support the District. The Commissioners’ Resolution provided that the election would be held on June 2,1992, in conjunction with the primary election.

On June 2, 1992, 531 registered voters voted on the issue of the imposition of fees for the Mosquito Control District. Of those, 282 voted in favor of imposing the fees, and 246 voted against additional fees. There has been no challenge to the qualifications of those electors who voted on the issue.

On June 4, 1992, the County Commissioners concluded that a majority of the voters had voted in favor of the additional fees, and pursuant to their resolution and the election results, imposed the additional fees. In accordance with § 7-22-2432(4), MCA, the fees were included in the yearly tax notices.

Franchi, who owns real property within the District, paid the fees in 1992 and 1993 “under protest.” He did not, however, file a tax protest lawsuit after he made the payments, as provided by § 15-1-406, MCA. On January 5,1994, however, within ninety days after his 1994 “protested” tax payment, Franchi petitioned the District Court in Jefferson County for a writ of mandate to direct the County Commissioners to rescind their action and resolution which established the fees, and to mandate the County Treasurer not to expend any further funds from the Mosquito District account, not to collect any further fees assessed, and to refund all fees in the account to those who had paid them.

On April 28, 1995, the District Court dismissed Franchi’s petition for writ of mandate. The court concluded that Franchi’s action was barred by the statute of limitations provided in § 13-35-107, MCA. The court further concluded that even if Franchi was entitled to some form of relief, a writ of mandate was not an available remedy because Franchi had an adequate legal remedy pursuant to § 15-1-406, MCA, which provides that an aggrieved taxpayer may bring a declaratory judgment action to determine if a tax was illegally or unlawfully imposed.

DISCUSSION

Did the District Court err when it denied Franchi’s application for a writ of mandate?

The issuance or denial of a writ of mandate calls for a conclusion of law which we will review to determine if it is correct. Phillips v. City of Livingston (1994), 268 Mont. 156, 161, 885 P.2d 528, 531. Pursuant to § 27-26-102, MCA, a two-part standard applies to the issuance of a writ of mandate. State ex rel. Chisholm v. District Court (1986), 224 Mont. 441, 443, 731 P.2d 324, 325. Awrit is available when the party who requests it is entitled to the performance of a clear legal duty, and where there is no available speedy and adequate remedy in the course of law. Section 27-26-102, MCA. State ex rel. Cobbs v. Montana Dept. of Social and Rehab. Svcs. (1995), [274 Mont. 157], 906 P.2d 204, 206-07 (citing State ex rel. Galloway v. City of Great Falls (1984), 211 Mont. 354, 358, 684 P.2d 495, 497). In Chisholm, we clarified the inquiry: “A negative answer to the first question bars the issuance of the writ, and, irrespective of the answer to that question, an affirmative answer to the second, divests the court of authority to issue it.” Chisholm, 731 P.2d at 325.

In this case, as the District Court noted, it is clear that Franchi has an adequate statutory remedy pursuant to § 15-l-406(l)(b), MCA, which provides:

An aggrieved taxpayer may bring a declaratory judgment action in the district court seeking a declaration that:

(b) a tax authorized by the state or one of its subdivisions was illegally or unlawfully imposed or exceeded the taxing authority of the entity imposing the tax.

In addition, § 15-1-408, MCA, provides in part:

If the district court determines that the tax was illegally or unlawfully imposed or exceeded the taxing authority of the entity imposing the tax, the judgment may direct:

(1) that the revenue collected under the illegal tax be directly refunded to the taxpayers who have paid the illegal tax and who have not been excluded from the action ....

Franchi sought a writ to have the Mosquito Control District fees, which are imposed in the nature of a property tax, declared unlawful, and the tax money refunded to him. It is clear, however, that Franchi has a “speedy and adequate” remedy in the course of law in the form of an action for a declaratory judgment. As we noted above, where there is an adequate legal remedy the district court has no authority to issue a writ of mandate. Chisholm, 731 P.2d at 325. We therefore conclude that the District Court’s order which denied Franchi’s writ was correct. We affirm the order and judgment of the District Court.

JUSTICES GRAY, HUNT, LEAPHART and ERDMANN concur.


text:
    IN RE MARRIAGE OF LINDA G. HECKLER PERKINS, Petitioner and Appellant, and LEE DAVID HECKLER, Respondent and Respondent.
    No. 95-348.
    Submitted on Briefs November 30, 1995.
    Decided December 14, 1995.
    52 St.Rep. 1231.
    908 P.2d 208.
    274 Mont. 277.

      For Appellant: Barbara E. Bell, Bell & Marra, Great Falls.
    For Respondent: Robert F. James, James, Gray & McCafferty, Great Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Lee David Heckler filed a motion in the District Court for the Eighth Judicial District in Cascade County in which he requested the court to hold his former wife, Linda Perkins, in contempt for violating the couple’s 1980 settlement agreement by failing to pay her share of the college education expenses of their children. After a hearing, the court granted David’s motion and entered judgment for the amount due from Linda. After additional hearings and judgments for college expenses, the court entered an order which required that Linda execute an assignment of her wages to satisfy David’s judgment against her. When Linda refused to assign her wages, the court ordered that her employer withhold the amount of $175 per pay period and pay that amount directly to David. Linda appeals from the District Court’s assignment of wages. We reverse the order of the District Court.

The issue on appeal is whether the District Court abused its discretion when it ordered an assignment of Linda’s wages pursuant to § 40-4-207, MCA.

FACTUAL BACKGROUND

Linda and David’s marriage was dissolved by decree of dissolution filed on October 30, 1980. The decree incorporated the parties’ property settlement agreement which provided that the parties’ two children would live with David and that “[s]o long as the children reside with husband, husband will be fully responsible for the support and maintenance of the minor children ....” The parties also agreed that $11,600 would be set aside in an interest bearing deposit for the college expenses of their children and that David and Linda would “share equally in the cost, including tuition, books, and room and board, of a college education for each of the children to the extent that the educational fund proves to be insufficient for that purpose.”

The decree included the following provision regarding child support:

LEE DAVID HECKLER shall be responsible for the support of the minor children so long as they reside with him and he shall also be responsible for all medical and medically related expenses incurred by or on behalf of the minor children. No other or further award of support for the minor children shall he made at this time. ... The Court further orders the parties to perform all covenants, conditions, and obligations set forth in their said agreement as the same respect the care and support of the minor children.

(Emphasis added.)

The parties’ children are now 25 and 23 years of age and have attended college. The daughter attended from 1988 until she graduated in 1993 and the son, presently a senior in college, began college in 1991. Both were over the age of 18 at the time they began attending college. The education fund, which had a balance of $32,330 in 1986, was depleted during the 1991-1992 school year and David has paid the remainder of the education expenses without the help of Linda. After repeated unsuccessful efforts to enforce Linda’s contractual obligation, David sought, and the court entered, the assignment order which is the subject of this appeal.

DISCUSSION

Did the District Court abuse its discretion when it ordered an assignment of Linda’s wages pursuant to § 40-4-207, MCA?

A district court’s order to assign wages is a discretionary act. In re Marriage of Benner (1985), 219 Mont. 188, 192-93, 711 P.2d 802, 805; see § 40-4-207, MCA. We review discretionary acts to determine if the court abused its discretion. May v. First Nat’l Pawn Brokers (1995), 270 Mont. 132, 134, 890 P.2d 386, 388.

The District Court ordered Linda’s employer to withhold part of her wages and pay them directly to David pursuant to § 40-4-207, MCA. That section provides that a “court may order the person obligated to pay support or maintenance to make an assignment of a part of his periodic earnings ... to the person entitled to receive payment.” Section 40-4-207, MCA, therefore, allows the trial court to order a wage assignment for child support purposes, but an obligation to pay child support is a prerequisite to such an assignment order. See In re Benner, 711 P.2d at 805.

In this case, David agreed in the 1980 property settlement agreement that he would be “fully responsible for the support and maintenance of the minor children ....” Furthermore, the court’s decree provided that David was responsible for all child support. Accordingly, Linda was never obligated by either the agreement or the court’s decree to pay any child support, and there was no support obligation to enforce pursuant to § 40-4-207, MCA.

Furthermore, in Montana, a parent’s obligation for support automatically terminates at the age of majority, unless there has been some voluntary agreement that support by one or both parents will continue beyond majority. In re Marriage of Hurley (1986), 222 Mont. 287, 298-99, 721 P.2d 1279, 1287 (citing In re Marriage of Bordner (1986), 220 Mont. 339, 343, 715 P.2d 436, 438; In re Marriage of Herrig (1982), 199 Mont. 174, 187, 648 P.2d 758, 765). Here, there could be no agreement to extend an obligation for Linda to pay support beyond majority because Linda had no obligation in the first place.

Therefore, while David’s and the District Court’s frustration is understandable, Linda’s agreement to pay college expenses created nothing more than a contractual obligation which is enforceable in the same manner as all other contractual obligations. It may be reduced to judgment, as has been done in this case, and executed upon subject to the provisions of §§ 25-13-201 to -405, MCA. However, enforcement provisions which, by their terms, are specifically limited to obligations for child support and maintenance are not available.

Therefore, we conclude that the District Court abused its discretion when it ordered an assignment of Linda’s wages pursuant to § 40-4-207, MCA. We reverse the District Court’s order and order the wage assignment pursuant to § 40-4-207, MCA, to be withdrawn.

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