author: JUSTICE LEAPHART JUSTICE NELSON JUSTICE TRIEWEILER,

text:
    STATE OF MONTANA, ex rel. JOSEPH P. MAZUREK, ATTORNEY GENERAL, Relator, v. DISTRICT COURT OF THE MONTANA FOURTH JUDICIAL DISTRICT, and the HONORABLE ED McLEAN, DISTRICT JUDGE, Respondent.
    No. 95-577.
    Submitted on Briefs April 18, 1996.
    Decided July 25, 1996.
    53 St.Rep. 678.
    277 Mont. 349.
    922 P.2d 474.

      For Appellant: Joseph P. Mazurek, Attorney General, Chris Tweeten, Deputy Attorney General, Helena; Karen S. Townsend, Deputy Missoula County Attorney, Missoula.
    For Respondent: Michael J. Sherwood, Attorney at Law, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Petitioner, the State of Montana on relation of Attorney General Joseph P. Mazurek, filed with this Court an application for writ of supervisory control under Article VII, § 2(2) of the Montana Constitution and Rule 17, M.RApp.P. The State’s application requests that we address two orders of the Fourth Judicial District Court, Missoula County, granting the motions of defendant Michael Paul Johns (Johns) to admit certain evidence relating to the misconduct of the alleged victims under the Montana Rape Shield Law, § 45-5-511(2), MCA. Defendant Johns also filed a cross-petition for writ of supervisory control.

In its order of April 9, 1996, this Court accepted original jurisdiction over the issues raised by the State in its application for writ of supervisory control, declined to accept jurisdiction over the evidentiary-related issues raised in the cross-petition for writ of supervisory control, and declined original jurisdiction over Johns’ request to dismiss certain counts of the amended information.

Factual and Procedural Background

At the time of the alleged incidents, Johns and the victims, identified as K.C. and L.A., were students attending the University of Montana-Missoula. Johns is charged with two counts of felony sexual intercourse without consent and two counts of criminal endangerment. These counts arise from two separate incidents involving K.C. and L.A. Johns filed a motion seeking to introduce evidence relating to the prior sexual history of the alleged victims. Two pretrial hearings have been held in the respondent District Court pursuant to the Montana Rape Shield Law, codified at § 45-5-511(2), MCA. The District Court considered certain evidence relating to the past sexual conduct of K.C. and L.A. and determined that the evidence would be admissible at trial.

The State requests that this Court address the following decisions of the District Court:

(a) The respondent court intends to admit testimony from a witness named Bob Keissal that he observed L.A. sitting on the lap of, rubbing against, and fondling a person named Brad Becker on the night in which the conduct that is the subject of counts one and three of the amended information occurred.
(b) The respondent court intends to allow a witness named Ben Graham to testify that L.A. was “hitting on every guy in sight” and sitting on Brad Becker’s lap on the night in which the conduct that is the subject of counts one and three of the amended information occurred.
(c) The respondent court intends to allow a witness named Brad Woons to testify that after the conduct that is the subject of counts one and three of the amended information occurred, L.A. came into his dormitory room, eventually undressed, lay down on a bed in the dormitory room, and appeared to masturbate.
(d) The respondent court intends to allow a witness named Brian Mothershead to testify from personal knowledge that L.A., while in high school, became intoxicated and spent the night in a motel room, waking up unclothed and wrapped in a blanket in the company of several men the following morning.
(e) The respondent court intends to allow a witness named Shannon Sims to testify from personal knowledge to the same incident described in (d) above.
(f) The respondent court intends to allow witnesses Daryl and Jean Toews to testify that K.C. made and recanted false allegations of sexual assault against Chad Reddig.

This Court accepted jurisdiction over the issues raised in the State’s petition for writ of supervisory control.

This Court has stated that:

“Supervisory control is an extraordinary remedy, to be exercised only in extraordinary circumstances. We have said... that to justify such a writ an exigency or emergency must be shown to exist, or that a gross injustice would result from a denial of the writ, and the absence of other adequate relief. ... [Supervisory control] has its own appropriate functions, and, without undertaking to define particularly what these functions are, we think one of them is to enable this court to control the course of litigation in the [district] courts where those courts are proceeding within their jurisdiction, but by mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal or the remedy by appeal is inadequate....”

State ex rel. Forsyth v. District Court (1985), 216 Mont. 480, 484, 701 P.2d 1346, 1348 (quoting State ex rel. O’Sullivan v. District Court (1946), 119 Mont. 429, 431-32, 175 P.2d 763, 764); accord State ex rel. Mapes v. District Court (1991), 250 Mont. 524, 528-29, 822 P.2d 91, 94. In our order of April 9, 1996, we determined that this case implicates such “extraordinary circumstances” as are contemplated in Forsyth and Mopes, and, consequently granted the State’s petition. The State correctly notes that § 46-20-103, MCA, provides the scope of issues from which the State may appeal in a criminal case and that evidentiary rulings under the Rape Shield Law, § 45-5-511(2), MCA, are not included. See State ex rel. Dep’t of Justice v. District Court (1976), 172 Mont. 88, 93, 560 P.2d 1328, 1331 (discussing the appropriateness of the writ in the absence of an adequate remedy at law). Therefore, if the District Court erroneously admits this evidence at trial, the State has no adequate remedy on appeal.

In addition, the State asserts that the Rape Shield Law was enacted to protect victims from further trauma at trial by restricting the admissibility of evidence relating to the victim’s prior sexual conduct. Once a trial is held and the testimony has been presented in open court, the injury which the statute is intended to prevent will have been inflicted upon the victim. A later decision of this Court would be wholly ineffective in rectifying the injury to the victim. For these reasons we granted the State’s petition for writ of supervisory control.

Discussion

In reviewing a district court’s decisions regarding the admissibility of evidence relating to the extrinsic sexual conduct of sexual assault victims under § 45-5-511, MCA, we determine whether the district court abused its discretion. State v. Howell (1992), 254 Mont. 438, 445, 839 P.2d 87, 91, cert. denied, 507 U.S. 1036, 113 S.Ct. 1862, 123 L.Ed.2d 483 (1993); State v. Rhyne (1992), 253 Mont. 513, 518-19, 833 P.2d 1112, 1116. The State argues that the District Court’s rulings on the admissibility of the testimony labeled as issues (a) through (f) violate Montana’s Rape Shield Law. Section 45-5-511, MCA, the Rape Shield Law, provides in relevant part:

(2) No evidence concerning the sexual conduct of the victim is admissible in prosecutions under this part except evidence of the victim’s past sexual conduct with the offender or evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution.
(3) If the defendant proposes for any purpose to offer evidence described in subsection (2), the trial judge shall order a hearing out of the presence of the jury to determine whether the proposed evidence is admissible under subsection (2).

The State asserts, and we agree, that the statute recognizes only two instances in which the sexual conduct of a victim may be admitted and that neither circumstance is satisfied in the instant case. First, such evidence may be admitted where the conduct involves the defendant as a participant. Second, such evidence may be admitted where an issue exists as to the origin of semen, pregnancy or disease, and the victim’s sexual conduct is probative on that issue. Section 45-5-511(2), MCA.

In State v. Fitzgerald (1989), 238 Mont. 261, 263, 776 P.2d 1222, 1223, the defendant wanted to present testimony that the victim was a prostitute. Fitzgerald argued that he and the victim acted consensually and that the victim fabricated the rape story so that she would not have to face her pimp with no earnings for the evening. The district court refused to allow this line of questioning and we affirmed. Fitzgerald, 776 P.2d at 1223. Like Johns in the present case, Fitzgerald asserted that this line of questioning was relevant to the victim’s veracity and essential to his right of confrontation. This Court, however, has repeatedly rejected this assertion. State v. Higley (1980), 190 Mont. 412, 422-23, 621 P.2d 1043, 1050. In Higley we stated that “rules limiting inquiry into sexual conduct of the victim are essential to preserve the integrity of the trial and to prevent it from becoming a trial of the victim.” Higley, 621 P.2d at 1050-51. This Court has consistently upheld the exclusion of prior sexual conduct evidence rejecting claims that the Sixth Amendment of the United States Constitution and Article II, § 24 of the Montana Constitution guarantee the defendant the right to introduce such evidence. Howell, 839 P.2d at 91; Higley, 623 P.2d at 1050. We have held that the Sixth Amendment right of confrontation is not absolute and that the Rape Shield Law serves a compelling state interest in preventing rape trials from becoming trials on the prior sexual conduct of the victims. Howell, 839 P.2d at 91; Fitzgerald, 776 P.2d at 1223-24. In balancing the rights of victims and the rights of the defendant we have stated that:

“The Sixth Amendment is not absolute, and ‘may bow to accommodate other legitimate interests in the criminal trial process.’ [Chambers v. Mississippi (1973), 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 309.] The rape shield statute has been upheld as a legitimate interest justifying curtailment of the constitutional right to confront witnesses.”

State v. Steffes (1994), 269 Mont. 214, 230, 887 P.2d 1196, 1206 (quoting Howell, 839 P.2d at 91).

Although the testimony outlined in issues (a) through (c) all relates to victim L.A.’s sexual conduct on the date of the alleged incident, none of it involves defendant Johns as a participant nor is there an issue relating to semen, pregnancy or disease. In this case, as in Fitzgerald, “neither of the two statutory exceptions applies ....” Fitzgerald, 776 P.2d 1223. Accordingly, we conclude that the District Court abused its discretion in finding the evidence referred to in issues (a) through (c) to be admissible. The testimony is inadmissible under § 45-5-511(2), MCA.

The testimony outlined in issues (d) and (e) relates to incidents that occurred on dates prior to the dates of the alleged incidents. Specifically, the testimony relates to L.A.’s conduct while in high school. The State asserts, and we agree, that this testimony also violates § 45-5-511(2), MCA. The District Court determined that the testimony of Brian Mothershead, a high school classmate of L.A.’s, would be admissible if based on his personal knowledge and that the testimony of Shannon Sims, another classmate, would also be admitted. As in issues (a) through (c), Mothershead’s and Sims’ testimony would not relate to events in which defendant Johns was a participant nor would it relate to semen, pregnancy or disease. Rather, it relates to alleged prior sexual acts which tend to impugn L.A.’s reputation. This is precisely the type of testimony that the Rape Shield Law was designed to prohibit. Fitzgerald, 776 P.2d at 1224; Higley, 621 P.2d at 1050-51. The victim’s prior sexual conduct is not on trial. Thus, we conclude that the District Court abused its discretion in determining that this testimony would be admissible.

In issue (f), the State requests that this Court review the District Court’s decision to allow the testimony of Daryl and Jean Toews. The Toews would testify that K.C. had made and recanted false allegations of sexual assault against her former husband, Chad Reddig. Again, the State asserts that this testimony would violate § 45-5-511(2), MCA. Johns responds that the testimony should be allowed based on this Court’s opinion in State v. Anderson (1984), 211 Mont. 272, 686 P.2d 193. In Anderson, we stated that:

[E]vidence of prior false accusations of the same sexual crime involved in a more current case, while not admissible for the purpose of impeaching the general character or reputation of the witness, may be admissible if probative of the witness’ state of mind, motive, or biases with respect to making the more current accusations.

Anderson, 686 P.2d at 199 (citing People v. Hurlburt (Cal. Ct. App. 1958), 333 P.2d 82, 87). In Anderson, we recognized that most jurisdictions have determined that “evidence of prior false charges may often be probative of the complaining witness’ specific reputation for untruthfulness.” Anderson, 686 P.2d at 199 (surveying other jurisdictions and collecting cases). We determined that “evidence of similar sexual offenses claimed to have been committed against the victim by other individuals is admissible if the offenses were proven or admitted to be false.” Anderson, 686 P.2d at 200. The offered evidence must be “narrowed to the issue of the complaining witness’ veracity.” Anderson, 686 P.2d at 200 (citing Hall v. State (Ind. Ct. App. 1978), 374 N.E.2d 62). In addition, we cautioned that:

If the charges are true or reasonably true, then evidence of the charges is inadmissible, mainly because of its prejudicial effect [citation omitted] but certainly because of its irrelevance to the instant proceeding. [Citations omitted.] Furthermore, evidence of prior charges which have not been adjudicated to be true or false; i.e., which may be true or false is also inadmissible, primarily because its introduction circumvents the interest in preserving the integrity of the trial and preventing it from becoming a trial of the victim.

Anderson, 686 P.2d at 200. In Anderson, we directed that a separate hearing outside the jury’s presence should be held in order to establish whether there was sufficient support for the contention that the prior allegations were false. Anderson, 686 P.2d at 200 (citing People v. Sheperd (Colo. Ct. App. 1976), 551 P.2d 210, 212). In Anderson, such a hearing had been held in the district court and we determined that the court did not err in excluding the evidence. We noted that the charges had never been tested for their truth or falsity and were still disputed at the time of trial. Anderson, 686 P.2d at 200.

Contrary to Justice Nelson’s concurring and dissenting opinion, we have not expanded our prior holding in Anderson. The dissent argues that, under Anderson, in order to be admissible in the present proceeding, prior charges must have been actually filed against another person as a result of the victim’s accusations and, secondly, that there must have been, separate and distinct from the present proceeding, a prior adjudication that the charges were false. As to the first prong, an actual filing of charges, although Anderson involved a situation where actual charges had been filed and later dismissed, the opinion does not state that such an actual filing is a prerequisite to admissibility. As to a requirement of a prior adjudication in a separate proceeding, Anderson clearly does not require this. Rather, Anderson requires that the district court conduct a hearing outside the presence of the jury to determine whether there is sufficient evidence to support the contention that the allegation was false. Such an in camera determination of falsity satisfies the “adjudication” requirement in the absence of a prior adjudication in a separate proceeding. In Anderson, the district court determined that there was not sufficient support to make a determination of falsity. Thus, it refused to allow evidence of the alleged false accusation and the issue did not go to the jury. However, if the district court, in its in camera hearing, had determined that the prior charges were false, Anderson envisions that the matter would then have been presented to the jury for its judgment. The present case, in which the District Court determined that the prior accusation was false, is a variation of the process contemplated by this Court in Anderson.

In Anderson, we recognized that “limiting or barring a defendant’s cross-examination of a complaining witness in a sex crime case where there is evidence of prior false accusations restricts defendant’s enjoyment of the worth of his constitutional rights to confront witnesses.” Anderson, 686 P.2d at 200 (citing Hughes v. Raines (9th Cir. 1981), 641 F.2d 790, 792); State v. Corella (Haw. Ct. App. 1995), 900 P.2d 1322, 1327-28. Thus, if this Court were to adopt the approach suggested by Justice Nelson’s concurring and dissenting opinion, without citation to any authority, and approve of such a restriction on cross-examination of a complaining witness, we would arguably infringe upon the defendant’s Sixth Amendment right to confront witnesses. See Hughes, 641 F.2d at 792.

In Anderson this Court did not set forth any procedure to govern the in camera hearing or the presentation of “prior false accusation” evidence to a jury. We take this opportunity to do so. In Miller v. State (Nev. 1989), 779 P.2d 87, 90, the Nevada Supreme Court was confronted with a question as to the admissibility of evidence relating to the complaining witness’ allegations of prior sexual assault and sexual abuse which the defendant asserted were false. The Nevada Supreme Court determined that “a threshold inquiry must establish both the fact of the accusations and the falsity thereof even before defense counsel launches into cross-examination.” Miller, 779 P.2d at 90 (citation omitted). Accordingly, the Nevada Supreme Court outlined the following procedure that must be followed if a defendant in a sexual assault case proposes to cross-examine the complaining witness about prior and allegedly false accusations of sexual abuse or assault and to introduce corroborative evidence. First, prior to such questioning, counsel must file written notice of his intent. Then, as this Court recognized in Anderson, the trial court must order a hearing outside the presence of the jury to determine the propriety of such questioning and the admissibility of the corroborative evidence. The Nevada Supreme Court directed that:

In making such a determination, the defendant must establish, by a preponderance of the evidence, that (1) the accusation or accusations were in fact made; (2) that the accusation or accusations were in fact false; and (3) that the evidence is more probative than prejudicial. [Citation omitted.] If the defendant satisfies these three conditions, the trial court will authorize cross-examination of the complaining witness concerning the alleged false accusations. The defendant may thereafter present extrinsic evidence of the false accusations only if the complaining witness denies or fails to recall having made such accusations.

Miller, 779 P.2d at 90. The foregoing analysis is consistent with this Court’s holdings in both Anderson and Higley in that it seeks to prevent the trial from becoming a trial of the victim. Accordingly, we adopt the reasoning and procedures of the Nevada Supreme Court as set forth in Miller.

In the instant case, the District Court held a hearing outside the presence of the jury and determined, first, that K.C. had made accusations of rape and, second, that KC.’s prior allegations of rape against Reddig were false. The court stated that “[biased on the testimony of Mr. and Mrs. Thews and Arthur Gray, the Court finds that there were false allegations made by [K.C.] against Chad Reddig and Brian Miller, and testimony regarding those allegations is admissible at the trial of this case.” The District Court did not determine, however, whether the proffered evidence would be more probative than prejudicial as the third prong of the test we now adopt requires. Accordingly, we remand this case to the District Court for this determination. If the District Court determines that the evidence is more probative than prejudicial, as the court recognized in Miller, extrinsic evidence of the false accusations may be presented only if the complaining witness denies or fails to recall having made such accusations. Miller, 779 P.2d at 90.

As we recognized in Anderson, this type of evidence has the potential to transform the trial from a trial of the defendant for specific criminal acts into a trial of the victim or victims. Accordingly, such evidence of prior sexual assault allegations adjudicated to be false or admitted to be false must be narrowed to the issue of the complaining witness’ veracity. Anderson, 686 P.2d at 200 (citing Hall, 374 N.E.2d at 65).

The orders of the District Court dated November 27, 1995 and December 7, 1995, holding the testimony described in issues (a) through (e) to be admissible are reversed, while the decision of the District Court holding the testimony described in issue (f) to be admissible is remanded with direction to determine whether the proffered evidence is more probative than prejudicial. This case is remanded to the District Court for proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICE ERDMANN concur.

JUSTICE NELSON

specially concurs and dissents.

I concur with all that is said and in our decision on issues (a) through (e). I dissent from our decision on issue (f), regarding the allegations of sexual intercourse without consent made by K.C. against her former husband, Chad Reddig.

At the outset, given the specific provisions of Montana’s Rape Shield Statute, § 45-5-511(2) and (3), MCA, and the very narrow limitations under which evidence concerning sexual conduct of the victim is admissible, none of which are at issue here, I have serious reservations about the correctness of our decision in State v. Anderson (1984), 211 Mont. 272, 686 P.2d 193.

That case stands presently as the law of Montana, however, and having expressed my initial concern, I nonetheless, believe that we have misapplied the rule in Anderson. My disagreement with our decision in the instant case flows from what I view is an expansion of the sort of evidence that is admissible under the Anderson rationale.

In Anderson, prior to the incident there at issue, the victim made accusations of unlawful sexual conduct against an individual (Bratcher) and, as a result, criminal charges were actually brought against that individual. The criminal charges were dismissed without any actual adjudication of the truth or falsity of the accusations. However, the allegations underlying those charges were still disputed by Bratcher at the time of Anderson’s trial. Anderson, 686 P.2d at 200. Moreover, we pointed out that Anderson’s offer to have Bratcher’s attorney testify that Bratcher had denied the charges was irrelevant because the attorney's testimony was inadmissible on the ground that mere denial does not establish falsity and because the testimony would have been inadmissible hearsay under Rule 801(c) and 802, M.R.Evid. Anderson, 686 P.2d at 200. We concluded,

In short, the offered evidence would not have been probative of R.F.’s inclination for truthfulness or untruthfulness, as maintained by defendant, but certainly would have placed a prejudicial stamp on her general character and reputation ... [and that this] ... irrelevant, prejudicial evidence would have shifted the focus of trial away from its central purpose and thus had to be barred.

Anderson, 686 P.2d at 201.

In the instant case, the offered evidence is even more tenuous. Here, no criminal charges were filed against KC.’s former husband as a result of K.C.’s allegations of non-consensual sexual intercourse. It does not appear that she even made these allegations to the authorities, but rather that she made her statements to acquaintances. KC.’s former husband, Reddig, disputed KC.’s allegations, but his mere denial does not establish falsity. Anderson, 686 P.2d at 200. K.C. maintained that the accusations were accurate, and the actual truth or falsity of those allegations — which never even rose to the level of criminal charges — was at no time adjudicated prior to the instant proceedings. It appears from the briefs that the evidence at the in camera hearing basically involved a swearing match between K.C. and the Toews, who claimed she had recanted the accusations against Reddig.

In my view, our requirement in Anderson that, to be admissible, evidence of prior charges must have been adjudicated to be true or false, contemplates first, that criminal charges were actually filed on a prior occasion against someone other than the defendant in the proceeding then at issue on the basis of the victim’s accusations, and second, that there was an adjudication on the merits of those charges that ended in a final judgment or verdict that the charges were false. Proof of the false accusations must then still be shown to be probative of the state of mind, motive or biases respecting the victim’s current allegations — not simply as a general attack on her character, and, in addition, such evidence must be more probative than prejudicial.

The in camera hearing referred to in Anderson and now required as a result of our decision here should be limited to the factual and legal determinations discussed in the preceding paragraph. To allow, as we have here, the merits of the victim’s prior, disputed accusations to be “adjudicated,” in a summary in camera hearing, as part of an unrelated criminal trial, for the sole purpose of allowing the defendant to offer testimony impeaching the victim’s current testimony, accomplishes in spades exactly what the Rape Shield Statute and our decisions in Higley, Anderson and their progeny sought to avoid — a trial of the victim within the trial of the current defendant.

Indeed, here, in addition to the court’s in camera “adjudication” there will be a second “trial within a trial.” I assume that our opinion does not permit the trial judge to instruct the jury that he has found the victim’s prior accusations to be false. Accordingly, when those prior accusations are brought into the current trial in the context of the victim, on cross-examination, admitting she made the accusations, that they were true and that she did not recant and the Toews then testifying that she did recant, the jury will have to “adjudicate” the truth or falsity of the prior accusations a second time in another mini-trial of the victim’s character and credibility. This procedure not only flies directly in the face of the prior “adjudication” requirement ofAnderson, (we have never held that the current trial jury is allowed to decide the truth or falsity of the prior charges), but, obviously, this procedure also shifts the focus of the jury away from the merits of the current charges against the defendant — again contrary to the purpose of the Rape Shield Statute and rulings under our prior case law.

Contrary to the implication in the opinion of the Court, the in camera hearing in Anderson did not adjudicate the merits of the prior charges which the complaining witness had made against Bratcher. Rather, the hearing in that case went simply to the reasons why such charges had not been adjudicated to be true or false in a previous trial on the merits. Because the testimony at the Anderson in camera hearing demonstrated that the prior accusations had not been proven false or admitted to be false, (as opposed to whether the charges were true or false), we concluded that the trial court properly rejected Anderson’s attempts in his trial to prove the falsity of the prior charges and that the court properly excluded evidence of the victim’s prior accusations. Anderson, 686 P.2d at 201. The approach which I have suggested here is precisely the same. The majority’s statements to the contrary, Anderson did not sanction a trial of merits of the victim’s prior accusations within the trial of her allegations against the current defendant. That case stands for a much narrower procedure than we have adopted here.

While the defendant’s Sixth Amendment right of confrontation is an important one, we have also been careful to balance that right against those of the victim and have held that

[t]he Sixth Amendment is not absolute, and “may bow to accommodate other legitimate interests in the criminal trial process.”

State v. Steffes (1994), 269 Mont. 214, 230, 887 P.2d 1196, 1206, (citing State v. Howell (1992), 254 Mont. 438, 445-46, 839 P.2d 87, 91.) See also State v. Stuit (1994), 268 Mont. 176, 183, 885 P.2d 1290, 1295 (collecting cases). I fail to see how this defendant’s “enjoyment of the worth of his constitutional right to confront witnesses” is restricted by requiring in the instant case the same sort of narrow, balanced approach that we approved in Anderson.

In Hughes v. Raines (9th Cir. 1981), 641 F.2d 790, the defendant asserted that his right to confrontation was denied when the trial court precluded him from questioning the complaining witness regarding an attempted rape accusation she had previously made against another person. The Ninth Circuit Court of Appeals, stating that the right to confront witnesses is not unlimited, concluded that the object of the intended cross examination in Hughes was not to establish bias against the defendant, but was merely to attack the general credibility of the witness on the basis of an unrelated prior incident. Hughes, 641 F.2d at 793. Thus, the Court of Appeals held that the trial court’s limitation of cross examination on this issue was not a violation of the defendant’s confrontation rights.

The same result should obtain here, given that the defendant has failed to demonstrate, and the majority has failed to explain, how exactly KC.’s prior allegations against her former husband are probative of her state of mind, motive or biases in making her current accusations. Anderson, 686 P.2d at 201. Purely and simply, and contrary to Hughes, we are allowing the defendant here to attack KC.’s character and credibility on the basis of mere prior accusations that remain disputed.

Finally, it is not subject to serious dispute that many rapes presently go unreported and unprosecuted (especially on college campuses) simply because the victims of those assaults fear being victimized a second time by the criminal justice system. For that reason, Montana’s Rape Shield Law and, until now, our cases have very narrowly limited the circumstances under which inquiry may be made of the victim regarding sexual matters not involving the current accused. Our decision here is supported by neither source of authority and is, decidedly, a giant step backward to a time when we instructed juries that, where consent is at issue, “the charge of rape is easily made and difficult to refute” and requiring the rape victim’s testimony to be viewed with caution. See State v. Smith (1980), 187 Mont. 245, 609 P.2d 696 (holding that the trial court committed reversible error in failing to so instruct) and State v. Liddell (1984), 211 Mont. 180, 685 P.2d 918, (overruling Smith).

I would hold that evidence of K.C.’s prior accusations against Reddig is inadmissible, and I dissent from our failure to do so.

JUSTICE GRAY concurs in the foregoing special concurrence and dissent.

JUSTICE TRIEWEILER,

dissenting and concurring.

I dissent from this Court’s order dated April 9, 1996, in which it granted the State’s application for supervisory control, but denied the cross-petition filed on behalf of the defendant, Michael Paul Johns. The defendant’s cross-petition raised significant issues which could be dispositive of the charges against him, or at least significantly affect the outcome of his trial. Because the Court has declined to accept supervisory control to decide these issues, prolonged and expensive litigation will result which, based on representations of the parties, will substantially exhaust the life-time savings of the defendant’s family. Under these circumstances, treatment of these issues by appeal following trial is not an adequate remedy.

I concur with the majority’s decision to reverse the District Court and exclude evidentiary items (d) and (e).

I specially concur with the majority’s decision regarding evidentiary item (f) which relates to past allegations of sexual assault made by K.C. However, I do not agree that the testimony relates to sexual conduct of the victim, and therefore, do not concur with all of the majority’s discussion of that issue.

I dissent from that part of the majority opinion which would exclude that evidence referred to in paragraphs (a), (b), and (c). I conclude that those acts are admissible pursuant to the transaction rule found at § 26-1-103, MCA, and that to exclude them violates constitutional rights of confrontation guaranteed by the Sixth Amendment of the United States Constitution, and Article II, Section 24, of the Montana Constitution.

In State v. Wing (1994), 264 Mont. 215, 870 P.2d 1368, defendants were charged with sexual intercourse without consent based on conduct that occurred at a party where several other persons were present. Following the acts which formed the bases for the charges against the defendants, three other persons allegedly engaged in nonconsensual sexual intercourse with the victim. At trial, the district court allowed the victim to testify about not only the acts committed by the defendants, but also those acts committed by the other three people. Defendants contended on appeal that the evidence of other acts should have been excluded because it was not related to their conduct and its probative value was outweighed by its prejudicial effect. This Court, however, held that the evidence was part of a single transaction which was admissible to explain the circumstances surrounding the charged offenses. We stated that:

The concepts embraced by the term res gestae are included within the codification of that common law doctrine in § 26-1-103, MCA, also referred to as the “transaction” rule, which provides as follows:
26-1-103. Declaration, act, or omission which is a part of the transaction. Where the declaration, act, or omission forms part of a transaction which is itself the fact in dispute or evidence of that fact, such declaration, act, or omission is evidence as part of the transaction.

Whether an act is referred to as part of the res gestae or as part of the “transaction,” that act is evidence which is part of the same litigated event.

For example, it is well established that evidence which tends to explain circumstances surrounding the charged offense is relevant, probative and competent. When the court is not dealing with the introduction of evidence of wholly independent or unrelated crimes, the evidence is properly admitted. State v. Cameron (1992), 255 Mont. 14, 20, 839 P.2d 1281, 1285. In Cameron, we also pointed out that evidence may be admissible if it is closely related to and explanatory of the offense. Cameron, 839 P.2d at 1287. See also State v. Riley (1982), 199 Mont. 413, 426, 659 P.2d 1273, 1279.

To be admissible, evidence must be relevant, competent and material. These concepts of admissibility are included in Rules 401 and 402, M.R.Evid., relating to relevancy. Generally, evidence is relevant if it logically and naturally tends to establish a fact in issue. State v. Smith (1986), 220 Mont. 364, 376, 715 P.2d 1301, 1308.

[A]dmissibility is predicated on the jury’s right to hear what transgressed immediately prior and subsequent to the commission of the offense charged, so that they may evaluate the evidence in the context in which the criminal act occurred. Acts of a defendant subsequent to the alleged commission of the crime, and intertwined therewith, are highly probative. (Citation omitted.)

State v. Moore (1992), 254 Mont. 241, 246, 836 P.2d 604, 607.

We conclude that the victim’s testimonial evidence about the sexual acts committed by Gary Wing and Scott and Mike Sheehan was admissible as part of the transaction and as such, the District Court did not abuse its discretion by admitting it because such testimony was relevant according to Rule 402, M.R.Evid., which provides that “[a]ll relevant evidence is admissible.”

Wing, 264 Mont. at 224-25, 870 P.2d at 1374.

In this case, Johns admits that he engaged in sexual acts with L.A., but contends that she consented to those acts. Evidentiary items (a), (b), and (c), which relate to L.A.’s conduct immediately before and immediately after her encounter with Johns, were as probative and relevant to the issue of her consent, as was the evidence we found admissible in Wing. If the jury had a right to hear what “transgressed immediately prior and subsequent to the commission of the offense charged, so that they may evaluate the evidence in the context in which the criminal act occurred” in Wing, why is similar evidence less helpful to the jury in this case?

Because we have, in the past, held that conduct which is part of the same transaction is helpful to explain circumstances surrounding the charged offense, and therefore, relevant, probative, and competent, I conclude that arbitrarily excluding such evidence based on a legislative decision denies the defendant the right to fully and fairly confront and cross-examine his accuser in violation of the Sixth Amendment of the United States Constitution, and Article II, Section 24, of the Montana Constitution.

For these reasons, I would affirm the District Court’s order which admitted that evidence pertaining to L.A.’s conduct immediately before and after her encounter with Johns. I dissent from that part of the majority opinion which holds otherwise.

JUSTICE HUNT joins in the foregoing dissent and concurrence of Justice Terry N. Trieweiler.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER JUSTICE LEAPHART,

license: Public Domain

text:
    HELENA PARENTS COMMISSION, et al., Plaintiffs and Appellants, v. LEWIS AND CLARK COUNTY COMMISSIONERS, et al., Defendants and Respondents.
    No. 95-579.
    Submitted on Briefs May 2, 1996.
    Decided July 25, 1996.
    53 St.Rep. 687.
    277 Mont. 367.
    922 P.2d 1140.

      For Appellants: Lawrence G. Allen and William Wewer, Wewer Law Firm, Helena.
    For Respondents: Allen B. Chronister, Chronister, Moreen & Larson, Helena (for Lewis and Clark County Respondents); P. Keith Keller, Keller, Reynolds, Drake, Johnson & Gillespie, Helena (for School District Respondents).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Appellants, the Helena Parents Commission and several individuals (HPC), filed a complaint in the District Court for the First Judicial District in Lewis and Clark County in which they sought a declaratory judgment against respondents, Lewis and Clark County and Helena School District Number One, related to certain investments of public funds made by them from 1991 to present. Respondents filed motions to dismiss and after a hearing, the District Court granted the dismissal. The Court dismissed a claim against the County Attorney for failure to state a claim and dismissed the other claims for lack of standing. HPC appeals the court’s order of dismissal. We affirm that part of the District Court’s order which pertains to the County Attorney and reverse the remainder of the order in which the Court concluded that HPC did not have the requisite standing.

Two issues are presented on appeal:

1. Did the District Court err when it dismissed HPC’s claim against both respondents for lack of standing?

2. Did the District Court err when it dismissed HPC’s claim against the County Attorney for failure to state a claim?

FACTUAL BACKGROUND

Appellants, Helena Parents Commission and several individuals (HPC), brought a declaratory judgment action, in which they asked the District Court to interpret relevant Montana statutes and determine the parties’ rights pursuant to those statutes. HPC contends that Lewis and Clark County and Helena School District Number One (respondents) illegally managed public funds from 1991 to the present. HPC asserts standing as property taxpayers residing in Lewis and Clark County, as parents who have children attending school in Helena School District Number One, or as persons who receive benefits or services from local government entities.

HPC’s complaint consists of several counts:

Count I alleges that respondents illegally invested School District and County funds in certain collateralized mortgage obligations (CMOs); Count II alleges that Lewis and Clark County illegally purchased the School District’s illegal CMO investments; Count III alleges that Lewis and Clark County illegally invested its own money in CMOs; Count IV alleges that there was an illegal investment concerning the County’s bond sinking funds in CMOs; CountV alleges that the County Treasurer violated her statutory duty to protect the investments of the County’s bond sinking funds; Count VI alleges that the Treasurer or Finance Officer made an improper accounting of interest earned on bond sinking fund investments; and Count VII alleges that the Lewis and Clark County Attorney had an affirmative duty to pursue legal recourse and seek recovery of the losses against such government officials but failed to do so despite being informed by HPC prior to its filing of the request for declaratory judgment. HPC contended that these investments of public funds were not only illegal pursuant to statute, but also resulted in a loss of more than $5.5 million of property tax revenue intended to support taxpayer services provided by the School District and the numerous local government entities of Lewis and Clark County.

Respondents filed a motion to dismiss and after a hearing, the District Court granted the dismissal. The court dismissed the claim against the County Attorney for failure to state a claim and dismissed the other claims for lack of standing. HPC appeals the court’s order of dismissal.

ISSUE 1

Did the District Court err when it dismissed HPC’s claim against both respondents for lack of standing?

The question of whether the District Court properly granted the motion to dismiss is a conclusion of law. Common Cause v. Argenbright (1996), [276 Mont. 382], 917 P.2d 425, 427. We review a district court’s conclusions of law to determine whether the court’s interpretation and application of the law is correct. Jim’s Excavating Serv. v. HKM Assocs. (1994), 265 Mont. 494, 501, 878 P.2d 248, 252.

When it considers a motion to dismiss made pursuant to Rule 12(b)(6), M.R.Civ.P, a court must view the allegations in the light most favorable to the plaintiff and accept as true all facts well pleaded. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Farris v. Hutchinson (1992), 254 Mont. 334, 336, 838 P.2d 374, 375.

The District Court concluded that HPC lacked standing and dismissed HPC’s complaint. “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin (1975), 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343. In addition, “when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.” Flast v. Cohen (1968), 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947. We have stated that the following criteria must be satisfied to establish standing:

(1) The complaining party must clearly allege past, present or threatened injury to a property or civil right; and (2) the alleged injury must be distinguishable from the injury to the public generally, but the injury need not be exclusive to the complaining party.

Sanders v. Yellowstone County (1996), [276 Mont. 116], 915 P.2d 196, 198 (citing Stewart v. Board of County Comm’rs (1977), 175 Mont. 197, 201, 573 P.2d 184, 186).

As to the injury requirement, we have stated that a plaintiff is required to allege “a personal stake in the outcome of the controversy,” Bowen v. McDonald (1996), [276 Mont. 193], 915 P.2d 201, 206 (citing Olson v. Department of Revenue (1986), 223 Mont. 464, 469, 726 P.2d 1162, 1166); Western Litho v. Board of County Comm’rs (1977), 174 Mont. 245, 247, 570 P.2d 891, 892 (quoting Baker v. Carr (1962), 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663), and that “[i]t is not enough that appellants allege an injury which others may have suffered by the operation of some statute. They must allege an injury personal to themselves as distinguished from one suffered by the community in general.” Olson, 233 Mont. at 470, 726 P.2d at 1166. But see Grossman v. Department of Natural Resources (1984), 209 Mont. 427, 439, 682 P.2d 1319, 1325 (holding that in special circumstances, presenting issues of an urgent nature, this Court will accept original jurisdiction and drape the taxpayer with standing). The requirement that a plaintiff demonstrate an injury “is most easily satisfied if a plaintiff alleges either a direct economic injury or alleges that she is confronted with the prospect of criminal prosecution.” Eric J. Kuhn, Comment, Stood Up at the Courthouse Door, 63 Geo. Wash. L. Rev. 886, 891 (1995) (citin g Pennell v. City of San Jose (1988), 485 U.S. 1, 8, 108 S.Ct. 849, 855-56, 9 L.Ed.2d 1 (concluding that the likelihood of enforcement of a rent-control ordinance causing lower rents for landlords is sufficient to constitute an injury-in-fact) and Virginia v. American Booksellers Ass’n (1988), 484 U.S. 383, 392-93, 108 S.Ct. 636, 642-43, 98 L.Ed.2d 782).

Here, plaintiffs alleged that the government will impose tax burdens on them as it seeks to recoup losses and that the investments will result in a lessening of governmental services. These allegations of an economic injury satisfy the injury requirement.

The District Court, however, did not conclude that HPC failed to meet the injury requirement. Instead, it based its dismissal of HPC’s complaint on its failure to meet the second requirement for standing — “the alleged injury must be distinguishable from the injury to the public generally.” Sanders, [276 Mont. 116], 915 P.2d at 198. In dismissing HPC's complaint, the Court relied on Chovanak v. Matthews (1948), 120 Mont. 520, 527, 188 P.2d 582, 585, and stated that “the interest of a citizen, electorate, taxpayer, and resident of Lewis and Clark County is not, alone, sufficient to invoke the exercise of judicial power.” In so holding, the court failed to consider that “the injury need not be exclusive to the complaining party,” Sanders, [276 Mont. 116], 915 P.2d at 198, and failed to consider Lee v. State (1981), 195 Mont. 1, 635 P.2d 1282.

In Lee, we discussed Chovanak and held that a plaintiff who drove an automobile on Montana’s highways had sufficient standing to attack, via a declaratory judgment, the constitutionality of a 55 mile-per-hour speed limit proclaimed by the attorney general. Lee, 195 Mont. 1, 7, 635 P.2d 1282, 1285. In Lee, the State claimed that the plaintiff lacked standing because all members of the driving public had an affected interest in the statute, and attempted to dismiss the case on those grounds. We distinguished Chovanak, rejected defendant’s argument, and noted that such an argument would render the Uniform Declaratory Judgment Act meaningless. We stated:

In that case [Chovanak] Chovanak attacked a 1945 Montana statute providing for the licensing of slot machines owned and operated by religious, fraternal, charitable or nonprofit organizations. He sued as a resident, citizen and elector. This Court pointed out that he was suing against gambling in general, and said that it appeared from his complaint that slot machines, licensed or unlicensed, were utterly anathema to him. This Court found no controversy between him and the defendants in that case.
On the other hand, Gary Lee is directly affected by the operation of the statute he attacks.... The statute he attacks operates against him and all drivers in Montana directly. All members of the driving public have an affected interest under the statute attacked, but that does not mean that no member of that driving public can question the constitutional validity of the statute without being arrested for a violation. The acts of the legislature which directly concern large segments of the public, or all the public, are not thereby insulated from judicial attack. Otherwise, the Uniform Declaratory Judgment Act would become largely useless ....

Lee, 195 Mont. at 7, 635 P.2d at 1285 (emphasis added). Therefore, we concluded that while the harm must be distinguishable from injury to the public in general, it need not be an expressly unique harm. See also O’Donnell Fire Serv. & Equip. Co. v. Billings (1985), 219 Mont. 317, 320, 711 P.2d 822, 824; Stewart v. Board of County Comm’rs (1977), 175 Mont. 197, 201, 573 P.2d 184, 186.

This case is similar to Lee in several respects. While Lee asked for a declaratory ruling concerning the legality of the Attorney General’s action as measured by the 1972 Montana Constitution, in this case, HPC asks for a declaratory ruling concerning various government officials’ actions pursuant to relevant Montana statutes. Further, HPC alleges direct injury from the conduct complained of. HPC alleges that those of its members who pay property taxes will have them increased, that those of its members who have children in school will see a reduction in opportunities, and that those of its members who receive various public services will see a reduction in those services as the government seeks to recoup its alleged $5.5 million in losses. Not everyone who claims they will be injured claims to have been injured in the same way, and while each plaintiff claims a form of harm in common with other members of a larger class of people, the harm each claims is not common to all members of the general public.

Not only have we held that the harm need not be exclusive to the plaintiff, but the United States Supreme Court has also held similarly. As one commentator noted:

The [United States Supreme] Court’s refusal to serve “as a forum in which to air ... generalized grievances” should be distinguished from situations in which a large group of people share the same injury. In the former situation the Court typically denies standing; in the latter situation the Court has indicated a willingness to adjudicate on the merits.

Kuhn, Stood Up at the Courthouse Door, 63 Geo. Wash. L. Rev. at 895 (footnotes omitted).

The United States Supreme Court demonstrated this willingness to invest large groups of people with standing when it upheld the standing of a group of Georgetown law students to contest a railroad rate increase approved by the Interstate Commerce Commission. United States v. SCRAP (1973), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254. The students argued that an increase in the cost of shipping would discourage recyclable containers in favor of disposables and that some of the disposables would be discarded in parks frequented by the students, causing them aesthetic injury. The Supreme Court accepted this contention. “7b deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody.” SCRAP, 412 U.S. at 688, 93 S.Ct. at 2416, (emphasis added); see also Sierra Club v. Morton (1972), 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (holding that “the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.”).

For these reasons we reverse the order of the District Court dismissing HPC’s complaint for lack of standing.

ISSUE 2

Did the District Court err when it dismissed HPC’s claim against the County Attorney for failure to state a claim?

We review a district court’s conclusions of law to determine whether the court’s interpretation and application of the law is correct. Jim’s Excavating Serv. v. HKM Assocs. (1994), 265 Mont. 494, 501, 878 P.2d 248, 252. As stated above, in considering a motion to dismiss made pursuant to Rule 12(b)(6), M.R.Civ.P., a court must view the allegations in the light most favorable to the plaintiff and accept as true all facts well pleaded. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317.

Count VII of HPC’s complaint addresses the County Attorney’s duty to prosecute public officials for illegal investments. Specifically, the complaint alleges that “the County Attorney has refused to prosecute or otherwise pursue a course of legal action against the governmental officials, officers, employees or agents involved in the mismanagement of County, School District, and Local Authority funds.” The District Court dismissed HPC’s complaint against the County Attorney for failure to state a claim.

It is well established that a decision as to whether or not to prosecute and what charge to bring against an individual is entirely within the discretion of the county attorney. State v. Lemmon (1984), 214 Mont. 121, 126, 692 P.2d 455, 457. Moreover, a county attorney “is a quasi-judicial officer who enjoys common law immunity from civil liability for conduct within the scope of his duties.” Ronek v. Gallatin County (1987), 227 Mont. 514, 516, 740 P.2d 1115, 1116. See also State ex rel. Fletcher v. District Court (1993), 260 Mont. 410, 415, 859 P.2d 992, 995; Lemmon, 214 Mont. at 126, 692 P.2d at 457. Therefore, the District Court correctly dismissed HPC’s claim against the Lewis and Clark County Attorney.

We affirm the District Court’s dismissal of the complaint against the County Attorney, reverse the court’s dismissal of the remainder of the complaint, and remand for further proceedings.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and GRAY concur.

JUSTICE LEAPHART,

specially concurring.

I concur with the Court’s conclusion that the claim against the county attorney was properly dismissed and that HPC has standing. I specially concur, however, to note that § 20-3-332, MCA, which was invoked by the plaintiffs and discussed by the District Court, provides authority for HPC’s standing to sue the school district trustees. Section 20-3-332(2), MCA, provides that:

(2) The trustees of each district shall be responsible for the proper administration and utilization of all moneys of the district in accordance with the provisions of law and this title. Failure or refusal to do so shall constitute grounds for removal from office. Those trustees consenting to illegal use of the moneys shall be jointly and individually liable to the district for any losses the district has realized. The county attorney shall prosecute any proceeding arising pursuant to this section, or a party seeking such action may retain private counsel. The party commencing the action shall be liable for the costs if the action fails. [Emphasis added.]

Section 20-3-332(2), MCA, provides for trustee liability for illegal use of monies. The statute also clearly envisions that, in addition to the county attorney being able to file suit to impose this liability on behalf of the public, other private parties may retain counsel and seek to impose the liability as well. In recognizing that parties may retain private counsel and file suit pursuant to this statute, the legislature has acknowledged that private parties too will be injured by the illegal use of monies and that such injury is distinguishable from the injury to the public generally. Stewart v. Board of County Commr’s (1977), 175 Mont. 197, 201, 573 P.2d 184, 186. If plaintiffs, as parents and taxpayers, do not qualify as such “parties,” then it is difficult to imagine who would. Accordingly, I would hold that HPC has standing to sue the school district trustees based upon the narrow provisions of § 20-3-332(2), MCA.


author: JUSTICE GRAY

text:
    C.A. SEYFERTH, Petitioner and Appellant, v. STATE OF MONTANA, DEPARTMENT OF JUSTICE, MOTOR VEHICLE DIVISION, and CITY OF BILLINGS, Respondents and Respondents.
    No. 95-382.
    Submitted on Briefs May 16, 1996.
    Rehearing Denied August 29, 1996.
    Decided July 29, 1996.
    53 St.Rep. 698.
    277 Mont. 377.
    922 P.2d 494.

      For Appellant: Gary R. Thomas; Thomas Law Office, Red Lodge.
    For Respondents: Joseph P. Mazurek, Attorney General, Brenda Nordlund, Ass’t Attorney General, Helena; Alan Hall, Deputy Billings City Attorney, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

C.A. Seyferth (Seyferth) appeals from orders of the Thirteenth Judicial District Court, Yellowstone County, denying his petition for reinstatement of his driving privileges and denying his motion to set aside that denial and reopen the proceedings. We affirm.

We restate the issues on appeal as follows:

1. Did the District Court violate Seyferth’s right to due process of law by issuing its order denying his petition for reinstatement of his driving privileges, without notice, nearly one year after the hearing on the petition was recessed?

2. Is the District Court’s finding that the arresting officer had reasonable grounds to believe that Seyferth was driving under the influence of alcohol clearly erroneous?

3. Did the field sobriety tests violate Seyferth’s right to be free from unreasonable searches and seizures and his right to privacy?

Seyferth attended a Christmas party at Jakes, a restaurant and bar in Billings, Montana, on the evening of December 17,1993. Upon leaving Jakes, Seyferth noticed three police cars stopped nearby with their red and blue lights flashing. A traffic stop was in progress at that location, and Officers Keavin Unruh (Unruh) and Ladd Paulson (Paulson) were assisting a third unidentified officer. After Seyferth drove by the officers, Unruh followed him for several blocks and then pulled him over. Paulson assisted Unruh in the stop.

Unruh asked Seyferth for the usual driving-related documents and told Seyferth that his vehicle’s headlights were not on. Unruh noticed that Seyferth smelled of alcohol and that his speech was slurred. After administering field sobriety tests, Unruh arrested Seyferth for driving under the influence of alcohol (DUI), in violation of § 61-8-401, MCA, and took him to the detention facility in Billings. At the detention facility, Unruh advised Seyferth of the implied consent statute and asked him to submit to a breathalyzer test to determine his blood-alcohol content. Seyferth replied that he wanted an attorney and declined to take the test. As a result of Seyferth’s refusal to submit to the test, Unruh seized Seyferth’s driver’s license. The State of Montana, Department of Justice, Motor Vehicle Division (State) subsequently sent Seyferth a letter informing him that his driving privileges were revoked for one year pursuant to § 61-8-402(5), MCA, and that he could petition for reinstatement.

Seyferth petitioned the District Court for reinstatement of his driving privileges and the court reinstated his privileges during the pendency of the proceedings on his petition. At the hearing on his petition in June of 1994, Seyferth moved for a continuance to allow him time to subpoena a witness he had located the night before the hearing and who had agreed to appear and testify. According to Seyferth, the witness would contradict the officers’ testimony with regard to whether his vehicle’s headlights were on. The State objected on the basis that the proceedings had been initiated in December of 1993, and Seyferth had already obtained several continuances to prepare for the hearing. The District Court noted that Seyferth could have contacted this alleged witness much earlier and denied the motion to continue.

Seyferth, Unruh and Paulson testified at the hearing and the State played the videotaped interview of Seyferth at the detention facility during which he declined to submit to the breathalyzer test. At the conclusion of the hearing, the District Court recessed the proceedings; Seyferth was to locate, and presumably subpoena, the alleged witness who would testify that his vehicle’s headlights were on and the State was to aid Seyferth in attempting to determine the identity of the third officer at the traffic stop Seyferth passed before being stopped by Unruh. The court stated that the parties were to report back within two weeks regarding the status of the additional witnesses and “whether we need to reconvene or whether it will be submitted on the evidence that we’ve taken so far.”

Nearly a year passed, and neither Seyferth nor the State contacted the District Court. The District Court deemed the matter submitted and denied Seyferth’s petition in May of 1995. Thereafter, Seyferth moved the court to set aside its order denying his petition and reopen the proceedings. The District Court concluded that there was no good cause to reopen the proceedings and denied Seyferth’s motion. Seyferth appeals.

1. Did the District Court violate Seyferth’s right to due process of law by issuing its order denying his petition for reinstatement of his driving privileges, without notice, nearly one year after the hearing on the petition was recessed?

Once a driver’s license has been issued, the licensee has an important interest in retaining it; therefore, a license cannot be suspended or revoked without the procedural due process guaranteed by the Fourteenth Amendment. See State ex rel. Majerus v. Carter (1984), 214 Mont. 272, 276, 693 P.2d 501, 503 (quoting Bell v. Burson (1971), 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90). The United States Supreme Court has stated that, in order to satisfy due process requirements in this context, states must afford notice and an opportunity for a hearing. See Bell, 402 U.S. at 542, 91 S.Ct. at 1591 (citations omitted). Ahearing subsequent to revocation or suspension of a driver’s license satisfies due process requirements so long as the procedures used prior to revocation or suspension provide a reasonably reliable basis for concluding that facts justify deprivation of a driver’s property interest in his or her license. See Mackey v. Montrym (1979), 443 U.S. 1, 13, 99 S.Ct. 2612, 2618, 61 L.Ed.2d 321, 331.

Seyferth does not challenge Montana’s statutory procedures for revoking or suspending a person’s driver’s license. He argues that, under the facts of this case, he was entitled to notice prior to the District Court’s issuance of an order denying his petition for reinstatement of his driving privileges nearly one year after his hearing was recessed. Seyferth relies on Memphis Light, Gas & Water Div. v. Craft (1978), 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30, in support of his argument that the court’s failure to provide such notice here violated his due process rights.

In Memphis Light, Willie and Mary Craft (the Crafts) were receiving two utility bills from their municipal utility provider instead of one. Memphis Light, 436 U.S. at 4, 98 S.Ct. at 1557-58. They paid the undisputed portion of the bills and repeatedly attempted to resolve the double billing problem with their utility provider, Memphis Light, Gas and Water (MLG&W); they received neither a satisfactory explanation for the double billing nor suggestions for further recourse within MLG&W. Memphis Light, 436 U.S. at 5, 98 S.Ct. at 1558. The Crafts’utility service was terminated numerous times due to nonpayment and the Crafts and other customers filed suit contending that they had a property interest in their utility service while disputed bills remained unpaid and, therefore, were entitled to due process prior to termination of service. Memphis Light, 436 U.S. at 5, 98 S.Ct. at 1558.

The United States Supreme Court reviewed Tennessee law governing utilities and concluded that, since utility providers could terminate service only “for cause,” the Crafts had a sufficient property interest to implicate Fourteenth Amendment due process rights. Memphis Light, 436 U.S. at 11-12, 98 S.Ct. at 1561. The Supreme Court reiterated the fundamental requirements of due process that notice be given to interested parties of the pendency of an action and that the parties be provided an opportunity to present objections. Memphis Light, 436 U.S. at 13, 98 S.Ct. at 1563 (citation omitted). “The purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending ‘hearing.’ ” Memphis Light, 436 U.S. at 14, 98 S.Ct. at 1563 (citation omitted). In reviewing MLG&W’s “pay or be terminated” notice, the Supreme Court held that MLG&W violated the Crafts’ due process rights because it did not provide them with “notice reasonably calculated to apprise [them] of the availability of an administrative procedure to consider their complaint of erroneous billing. ...” Memphis Light, 436 U.S. at 22, 98 S.Ct. at 1567.

Here, the State informed Seyferth by letter that his driving privileges were revoked for one year and that he had thirty days to petition for reinstatement in the District Court. Unlike the Crafts in Memphis Light, Seyferth was provided with notice which apprised him of, and permitted adequate preparation for, a proceeding to challenge the revocation and seek reinstatement of his driving privileges. See Memphis Light, 436 U.S. at 14, 98 S.Ct. at 1563. Thus, the State’s letter to Seyferth met the only notice requirement set forth by the Supreme Court in Memphis Light and the case provides no support for Seyferth’s argument.

Seyferth’s petition was originally scheduled for hearing on February 25,1994. The District Court granted Seyferth three continuances and the petition finally was heard on June 22,1994. At the hearing, Seyferth moved for another continuance; the court denied the motion. At the conclusion of the hearing, however, the court gave Seyferth an additional two weeks to procure witnesses.

Upon recessing the hearing, the District Court expressly directed the attorneys for Seyferth and the State to report back to it within two weeks regarding “whether we need to reconvene or whether it will be submitted on the evidence that we’ve taken so far.” Neither Seyferth nor the State reported back to the court within the two-week period and, indeed, the District Court waited nearly a year before issuing its order. Seyferth cites to no authority, and we have found none, under which a party who has had a hearing and been directed to inform the court within two weeks whether reconvening the hearing is necessary, but who fails to contact the court at all, is entitled to further notice prior to court action.

The record indicates that Seyferth had ample opportunity to present his case. His failure to do so does not entitle him to yet more notice and yet another opportunity; nor does it translate into a due process violation by the District Court. Under these facts, we hold that the District Court did not violate Seyferth’s due process rights when it issued its order denying his petition for reinstatement of his driving privileges, without notice, nearly one year after the hearing on the petition was recessed.

2. Is the District Court’s finding that Unruh had reasonable grounds to believe that Seyferth was driving under the influence of alcohol clearly erroneous?

The District Court’s review of Seyferth’s petition for reinstatement of his driving privileges was statutorily limited to three issues: (1) whether Unruh had reasonable grounds to believe that Seyferth had been driving or was in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs or a combination of the two; (2) whether Seyferth was placed under arrest; and (3) whether Seyferth refused to submit to a blood, breath or urine test, as required by § 61-8-402, MCA. See § 61-8-403(4), MCA. In denying Seyferth’s petition, the District Court found that Unruh had reasonable grounds to believe Seyferth was driving under the influence of alcohol, that Seyferth was arrested and that he refused to submit to the breathalyzer test. Seyferth challenges the “reasonable grounds” finding. We review the District Court’s finding to determine whether it is clearly erroneous. See Anderson v. State (1996), 275 Mont. 259, _, 912 P.2d 212, 214.

A finding of “reasonable grounds” to make an investigative stop, as required by § 61-8-403(4)(a)(i), MCA, is the equivalent of a finding of “particularized suspicion” to make an investigative stop under § 46-5-401, MCA. Anderson, 912 P.2d at 214 (citation omitted). Section 46-5-401, MCA, provides:

In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

(Emphasis added.) Because the statute requires some objective manifestation that a person is engaged in criminal activity before a stop can be made, we adopted a two-part test to determine whether an officer had sufficient cause to stop a person. Anderson, 912 P.2d at 214 (citing State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293). First, the State must show objective data from which an experienced officer can make certain inferences. Second, the State must demonstrate a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity. Anderson, 912 P.2d at 214. Whether a particularized suspicion exists is a question of fact which depends on the totality of the circumstances. Anderson, 912 P.2d at 214 (citing State v. Reynolds (1995), 272 Mont. 46, 50, 899 P.2d 540, 542-43).

Here, both Unruh and Paulson testified that, at approximately 11:30 p.m., Seyferth was driving his vehicle without the headlights on; they attempted to get his attention by shining and flashing their flashlights at him as he drove by them. Unruh testified that, despite their efforts, Seyferth drove by and looked at them with “unseeing” eyes “as if he didn’t realize what we were doing.” On these bases, Unruh suspected that Seyferth was driving under the influence and immediately followed him. Unruh testified that Seyferth stopped abruptly, almost running a red fight, then turned a comer to pull over and ran over the curb prior to stopping.

Unruh testified to the extensive and continuing training he has had for detecting when a person is driving under the influence of alcohol or drugs. Moreover, he has made “several hundred” DUI arrests and assisted in “hundreds” of others. According to Unruh, driving without headlights after dark is one sign indicating that a person is driving under the influence. Erratic driving, such as nearly running a red fight, stopping abruptly and driving over a curb, is another sign that a person may be driving under the influence.

Unruh is an experienced officer who has participated in hundreds of DUI arrests. He observed Seyferth driving a vehicle after dark without its headlights on, noted “unseeing” eyes and observed erratic driving. Paulson’s testimony corroborated the existence of objective data from which Unruh could infer that Seyferth was driving under the influence. We conclude that, under the totality of the circumstances, the evidence of record is sufficientto support a particularized suspicion that Seyferth was driving under the influence of alcohol.

Seyferth relies on his own testimony that his vehicle’s headlights were on to support his contention that a particularized suspicion did not exist justifying Unruh’s stop. Our standard of review, however, is not whether evidence supports a finding different from that made by the district court. Our standard is whether the court’s finding is clearly erroneous. Anderson, 912 P.2d at 214. Where, as here, a district court is the trier of fact, it is within the province of the district court to determine witness credibility and the weight to be given evidence. See Keebler v. Harding (1991), 247 Mont. 518, 523, 807 P.2d 1354, 1357 (citing Matter of Estate of Murnion (1984), 212 Mont. 107, 113, 686 P.2d 893, 896). The District Court apparently found the officers’testimony more credible than Seyferth’s in this case and afforded that testimony more weight. We will not substitute our judgment for that of the District Court. See Keebler, 807 P.2d at 1358.

Seyferth also relies on Reynolds in support of his argument that Unruh did not have a particularized suspicion justifying the stop. Reynolds, however, is factually distinguishable.

In Reynolds, a deputy sheriff observed the defendant driving down a dead-end street “ ‘bordering on traveling too fast’for the conditions.” Reynolds, 899 P.2d at 542. The deputy drove to where he thought the defendant would end up, eventually meeting the defendant at an intersection where the defendant had the right-of-way. The defendant waited approximately seven to ten seconds before proceeding through the intersection. Reynolds, 899 P.2d at 542. Immediately thereafter, the deputy pulled the defendant over. Reynolds, 899 P.2d at 542.

We noted on appeal that the deputy testified only that the defendant had been driving “ ‘bordering on traveling too fast.’ ” After the initial “possible” traffic violation, the deputy did not observe any erratic driving or traffic violations. Reynolds, 899 P.2d at 543. On the record before us, we determined that the defendant did not exhibit patterns consistent with a person driving under the influence of alcohol. We ultimately concluded that, based on the totality of the circumstances, the possible traffic violation on a stand-alone basis was not sufficient to support a particularized suspicion that the defendant had been engaged in criminal conduct. Reynolds, 899 P.2d at 543.

Here, Unruh and Paulson initially observed that Seyferth was driving his vehicle without the headlights on after dark in violation of § 61-9-201, MCA. Seyferth did not respond to the officers’ attempt to alert him to that fact by shining and flashing their flashlights at him. Thereafter, Unruh followed Seyferth and observed his erratic driving in nearly running a red light, stopping abruptly and driving up on the curb while pulling over. Thus, in this case an actual traffic violation and other objective data existed which supports a particularized suspicion.

Having determined that, under the totality of the circumstances, the evidence of record is sufficient to support a particularized suspicion, we hold that the District Court’s finding that Unruh had reasonable grounds to believe that Seyferth was driving under the influence of alcohol is supported by substantial credible evidence and not otherwise clearly erroneous.

3. Did the field sobriety tests violate Seyferth’s right to be free from unreasonable searches and seizures and his right to privacy?

On appeal, Seyferth raises numerous constitutional issues relating to the field sobriety tests, including that the tests violated his right to be free from unreasonable searches and seizures, guaranteed by both the Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution, and his right to privacy, guaranteed by Article II, Section 10 of the Montana Constitution. Seyferth did not raise these issues regarding the field sobriety tests in the District Court.

Seyferth concedes the well-settled principle that we will not address issues raised for the first time on appeal. See Insured Titles, Inc. v. McDonald (1996), 275 Mont. 111, _, 911 P.2d 209, 213 (citation omitted). He argues, however, that we should invoke our discretionary power of common law plain error review because these issues affect his substantial rights.

We recently clarified the common law plain error rule in State v. Finley (1996), [276 Mont. 126], 915 P.2d 208. The power of plain error review

is inherent in the appellate process itself. Appellate courts have the inherent duty to interpret the constitution and to protect individual rights set forth in the constitution and necessarily have the correlative authority to invoke the plain error doctrine in order to carry out those duties.

Finley, 915 P.2d at 213 (citations omitted). We held that we would review claimed errors that implicate a criminal defendant’s fundamental constitutional rights under the plain error rule only sparingly and only where failing to do so might result in a manifest miscarriage of justice, leave the question of the fundamental fairness of the proceedings unsettled, or compromise the integrity of the judicial process. Finley, 915 P.2d at 215.

We conclude that refusing to review Seyferth’s challenges to the field sobriety tests in this civil reinstatement proceeding will not result in a manifest miscarriage of justice, leave the question of the fundamental fairness of the proceedings unsettled, or compromise the integrity of the judicial process. See Finley, 915 P.2d at 215. Accordingly, we decline to address the constitutional issues relating to the field sobriety tests which Seyferth raises for the first time on appeal.

Affirmed.

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


author: JUSTICE LEAPHART JUSTICE GRAY,

text:
    IN THE MATTER OF THE ADOPTION OF JESSICA LYNN RIFFLE, a Youth in Need of Care
    No. 96-076.
    Submitted on Briefs June 27, 1996.
    Decided July 30, 1996.
    53 St.Rep. 723.
    277 Mont. 388.
    922 P.2d 510.

      For Appellants: Jerrold L. Nye; Nye & Meyer, Billings.
    For Respondent: Monte J. Boettger, Attorney at Law, Lewistown (for John Garlick); Ann Gilkey, Department of Family Services, Helena (for Department of Family Services); Ronald Ameson, Attorney at Law, Billings (for Turtle Mountain Band of Chippewa Indians).
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Appellants, Kenneth and Clara Siroky (the Sirokys), appeal from the Findings of Fact and Conclusions of Law and Order of the Tenth Judicial District Court, Fergus County, concluding that Jessica Lynn Riffle (Jessica) is an Indian child and that, pursuant to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to 1963 (the ICWA), Jessica’s uncle, John Garlick (Garlick) gets the benefit of an adoptive placement preference. We affirm.

The Sirokys present four issues on appeal:

1. Is Jessica an “Indian child” as defined by the ICWA?
2. Does application of the ICWA deny Jessica her constitutional rights?
3. Have Jessica’s best interests been addressed?
4. Is the Montana Department of Public Health and Human Services’ (Department) consent required for the adoption of Jessica pursuant to § 40-8-111, MCA?

The background to this case is set forth in this Court’s opinion in In re Adoption of Riffle (1995), 273 Mont. 237, 902 P.2d 542. In Adoption of Riffle, Garlick, who is an enrolled member of the Turtle Mountain Band of Chippewa Indians, the Department, and the Turtle Mountain Band of Chippewa Indians (the Tribe) appealed the District Court’s grant of the Sirokys’ petition for adoption of Jessica. We reversed and remanded for a determination of whether Jessica is an “Indian child” pursuant to 25 U.S.C. § 1903(4).

In Adoption of Riffle, we held that, in determining whether a child is an “Indian child” pursuant to the ICWA, the Tribe is the ultimate authority on eligibility for tribal membership. Adoption of Riffle, 902 P.2d at 545. The ICWA defines an “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4). Consequently, we held that the district court erred in relying on the Bureau of Indian Affairs’ (BIA) determination that Jessica is ineligible for tribal membership based on her blood quantum. Adoption of Riffle, 902 P.2d at 545. Furthermore, we held that the Tribe must be allowed to intervene in the proceeding. Adoption of Riffle, 902 P.2d at 545.

On remand, the District Court concluded that the Tribe’s determination that Jessica is an Indian child and is a member of the Tribe was conclusive. Thus, the court determined that the ICWA applied to Jessica’s adoption. Consequently, although the court found that both the Sirokys and Garlick could provide a loving, caring and secure environment for Jessica, the court concluded that there was no good cause not to follow the ICWA placement preferences and that the ICWA preference favored placement with Jessica’s uncle, Garlick. Thus, the court granted Garlick’s petition for adoption of Jessica and concluded that it was in Jessica’s best interest to maintain contact with the Sirokys.

We review district court conclusions of law to determine whether the court’s interpretation of law is correct. Adoption of Riffle, 902 P.2d at 544 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603).

1. Is Jessica an “Indian child” as defined by the ICWA?

We find this issue to be dispositive. There are two prerequisites to the application of the ICWA: (1) a child custody proceeding; and (2) an Indian child. 25 U.S.C. § 1903; see generally Debra DuMontier-Pierre, The Indian Child Welfare Act of 1978: A Montana Analysis, 56 Mont. L. Rev. 505, 510 (1995). The instant case meets both prerequisites.

In Adoption of Riffle, we quoted § B.l.(b)(i) of the Department of Interior Guidelines for State Courts when interpreting the ICWA:

The determination by the tribe that a child is not a member of that tribe, or is not eligible for membership in that tribe, or that the biological parent is or is not a member of that tribe is conclusive.

Adoption of Riffle, 902 P.2d at 545. We held that the Tribe is the ultimate authority on eligibility for tribal membership. Adoption of Riffle, 902 P.2d at 545.

In the instant case, the Tribe filed papers with the District Court officially recognizing Jessica as an Indian child and a “member of the tribe” under the provisions of the ICWA. Contrary to the Sirokys’ contention, enrollment of the child in the Tribe is not required so long as the Tribe recognizes the child as a member. In re Junious M. (Cal. Ct. App. 1983), 193 Cal.Rptr. 40, 44. Enrollment and membership are not synonymous. In re Baby Boy Doe (Idaho 1993), 849 P.2d 925, 931. Enrollment is a common but not exclusive evidentiary means of determining membership in a tribe. Baby Boy Doe, 849 P.2d at 931 (citing 44 Fed.Reg. 67,584, 67,586 (1979)). Given the Tribe’s determination that Jessica is an Indian child, we hold that the District Court correctly concluded that the Tribe’s determination was conclusive.

Since Jessica is an Indian child, the ICWA applies to this adoption proceeding. Accordingly, the District Court properly applied the adoptive placement preferences found at 25 U.S.C. § 1915. 25 U.S.C. § 1915(a) provides:

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with
(1) a member of the child’s extended family;
(2) other members of the Indian child’s tribe; or
(3) other Indian families.

The child’s extended family is defined at 25 U.S.C. § 1903(2) as follows:

“extended family member” shall be as defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent!.] [Emphasis added.]

As Jessica’s uncle, Garlick clearly falls within the definition of “extended family member.” The District Court was thus correct in giving Garlick the benefit of the adoptive placement preference under 25 U.S.C. § 1915(a).

2. Does application of the ICWA deny Jessica her constitutional rights?

The Sirokys ask this Court to adopt the rationale of the California appellate court in its recent decision in In re Bridget R. (Cal. Ct. App. 1996) 49 Cal.Rptr.2d 507. In In re Bridget R., the California court held that the ICWA could not be constitutionally applied in the absence of evidence that the biological parents have a significant social, cultural, or political relationship with the Tribe. In re Bridget R., 49 Cal. Rptr.2d at 526.

In 1978, Congress passed the ICWA in response to a significant threat to the integrity of Indian cultures caused by the alarmingly high incidence of often unwarranted removal of Indian children from their families. 25 U.S.C. § 1901(4). Congress declared that “it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families. ...” 25 U.S.C. § 1902. As this Court has previously stated, we share Congress’ concern and support its policy. In re Baby Girl Jane Doe (1993), 262 Mont. 380, 385, 865 P.2d 1090, 1092; In re M.E.M. (1981), 195 Mont. 329, 333, 635 P.2d 1313, 1315-16. In In re M.E.M., we stated that it was our constitutional duty to preserve the unique cultural heritage and integrity of the American Indians. Mont. Const, art. X, § 1(2); In re M.E.M., 635 P.2d at 1316. Moreover, in Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29, the United States Supreme Court affirmed the intent and purposes of the ICWA. In In re Baby Girl Doe, we discussed Mississippi Choctaw at length and concluded that “the principal purposes of the Act are to promote the stability and security of Indian tribes by preventing further loss of their children; and to protect the best interests of Indian children by retaining their connection to their tribes.” In re Baby Girl Doe, 865 P.2d at 1095. Accordingly, we hold that the application of the ICWA does not deny Jessica her constitutional rights and we decline to adopt the California Court’s approach in In re Bridget R.

3. Have Jessica’s best interests been addressed?

The Sirokys contend that the District Court should have made a “best interest” analysis under § 40-8-109, MCA, outside the restrictions, preferences or limitations of the ICWA. However, since we affirm the District Court’s determination that the ICWA applies to this adoption, a determination of “best interests” under Montana law would be inappropriate. The ICWA expresses the presumption that in an adoptive placement of an Indian child, the child’s best interests are best served by placement with an extended family member. 25 U.S.C. 1915(a)(1). To overcome this preference, a party must establish the existence of “good cause to the contrary.” 25 U.S.C. 1915(a)(1). BIA guidelines provide “good cause to the contrary” must be based upon one or more of the following considerations:

(i) The request of the biological parents or the child when the child is of sufficient age.
(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.
(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.

Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,594 (1979).

At least two courts which have interpreted the “good cause” exception of 25 U.S.C. § 1915 have determined that courts may consider the best interests of the child in determining whether the exception applies. Matter of Adoption of F.H. (Alaska 1993), 851 P.2d 1361, and Adoption of M. (Wash. Ct. App. 1992), 832 P.2d 518. The Minnesota Supreme Court, however, has rejected this interpretation and we agree. The Minnesota Supreme Court held that:

We believe, however, that a finding of good cause cannot be based simply on a determination that placement outside the preferences would be in the child’s best interests. The plain language of the Act read as a whole and its legislative history clearly indicate that state courts are a part of the problem the ICWA was intended to remedy. See Mississippi Band of Choctaw Indians, 490 U.S. at 44-45, 109 S.Ct. at 1606-07. ... The best interests of the child standard, by its very nature, requires a subjective evaluation of a multitude of factors, many, if not all of which are imbued with the values of majority culture. It therefore seems “most improbable” that Congress intended to allow state courts to find good cause whenever they determined that a placement outside the preferences of § 1915 was in the Indian child’s best interests. Cf Missis sippi Band of Choctaw Indians, 490 U.S. at 45, 109 S.Ct. at 1606-07.

Matter of Custody of S.E.G. (Minn. 1994), 521 N.W.2d 357, 362-63.

Although the District Court cited Adoption of M. and concluded that “there was no good cause not to follow the placement preference and Garlick’s adoption is in the best interests of the child” (emphasis added), that conclusion, to the extent that it determines “best interests,” is an unnecessary and inappropriate analysis under the ICWA. The determination that there was no “good cause” not to follow the ICWA placement preference was sufficient.

In the present case, the record clearly supports the conclusion that there was no “good cause” for overcoming the placement preferences of the ICWA: the Department had approved Garlick as providing an approved adoptive home; Garlick is bonded with Jessica; he had significant contact with her dining the first 18 months of her life; he is Jessica’s uncle and, as such, is part of her extended family; Jessica’s natural mother supported Garlick as the adoptive parent for Jessica, and; the Department supports Garlick as the adoptive parent for Jessica.

We affirm the District Court’s decision to adhere to the adoption preferences established by the ICWA.

4. Is the Montana Department of Public Health and Human Services’ consent required for the adoption of Jessica pursuant to § 40-8-111, MCA?

We hold that the District Court correctly applied the provisions of the ICWA and granted Garlick’s Petition for Final Adoption of Jessica Lynn Riffle. The Department supported and consented to Garlick’s adoption of Jessica. Since the court did not grant the Sirokys’ petition to adopt, the Sirokys’ argument that they do not need the Department’s consent to petition for the adoption of Jessica is moot.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER and HUNT concur.

JUSTICE GRAY,

specially concurring.

I concur in the result reached in the Court’s opinion and with much of what is said therein. On the basis of the record before us, however, I disagree with the Court’s conclusion that Jessica is an “Indian child” as defined by the ICWA and its related conclusion that the ICWA applies. I would affirm the District Court on the basis of that court’s determination that Jessica’s adoption by her uncle, John Garlick, is in her best interests.

As the Court correctly observes, the ICWA defines an “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” See 25 U.S.C. § 1903(4). I also agree with the Court that a Tribe’s determination that a child is “a member or eligible for membership” is conclusive for purposes of the ICWA.

The Court states that the Tribe officially recognized Jessica as an Indian child and “a member of the Tribe.” I agree that the Tribe stated that Jessica is “an Indian child;” that statement is not conclusive on the District Court, however, because it is a conclusion of law that only the court can make by applying the ICWA definitions to the record before it.

I disagree with the Court’s conclusion that the Tribe’s “recognition” of Jessica as a member of the Tribe meets either definition of an “Indian child” under the ICWA. I do not find of record any statement by the Tribe that Jessica either is a member of, or is eligible for membership in, the Tribe. What the Tribe does say is that Jessica is “recognized as a member during her childhood.” It is my view that the ICWArequires more than this. Thus, while I agree with the Court that the language of the ICWA does not require that the child actually be enrolled as a member, the ICWA does require that the child be a member or eligible for membership. No clear and unequivocal determination to either effect has been made by the Tribe.

Notwithstanding my disagreement with the Court over whether the ICWA applies here, however, I also would affirm the District Court. The District Court determined that it is in Jessica’s best interests to be adopted by her uncle, John Garlick, and there is a surfeit of evidence on the record to support that determination.

      . We note that in In re M.E.M., we stated that, in determining whether to transfer jurisdiction to the tribal court, “the best interest of the child could prevent transfer of jurisdiction upon ‘clear and convincing’ showing by the State.” In re M.E.M., 635 P.2d at 1317. In the instant case, however, we are not considering the transfer of jurisdiction to a tribal court; rather, we are considering adoption placement preferences under 25 U.S.C. § 1915(a)(1). Thus, In re M.E.M. is not controlling on this issue.