text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PAUL SEYBERT and Denise “Dusty” Rogers Seybert, v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, Appellant.
    No. 88-15.
    Submitted on Briefs March 18, 1988.
    Decided April 19, 1988.
    753 P.2d 325.

      Brad L. Belke, Butte, for appellant.
    Mike Greely, Atty. Gen., Helena, Betsy Brandborg, Asst. Atty. Gen., Loren Tucker, Co. Atty., Virginia City, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

On December 10, 1987, the Fifth Judicial Court, Madison County, ordered American Bankers Insurance Company of Florida to forfeit 100 percent of the surety bonds posted on behalf of defendants Paul Seybert and Denise “Dusty” Rogers Seybert. The American Bankers Insurance Company appealed. We affirm.

The issue raised on appeal is whether the District Court abused its discretion by requiring the appellant to forfeit 100 percent of the posted surety bonds when the defendants failed to appear for the omnibus hearing and in light of State v. Seybert (Mont. 1987), [229 Mont. 183,] 745 P.2d 687, 44 St. Rep. 1879.

On November 7, 1986, the defendant Paul Seybert was arrested for multiple crimes of theft, burglary, possession of dangerous drugs, and criminal mischief and the defendant Denise Rogers Seybert (Rogers) was arrested for theft and possession of dangerous drugs. The District Court eventually set the bonds at $7,000 for Seybert and $2,500 for Rogers. The American Bankers Insurance Company (American) posted the bonds for each defendant.

The District Court scheduled an omnibus hearing for March 24, 1987 in which the defendants’ presence were required. Both defendants failed to appear for the hearing and the court eventually ordered a forfeiture of 75 percent of the bonds posted on behalf of each defendant. American appealed the 75 percent forfeiture to this Court. State v. Seybert (Mont. 1987), [229 Mont. 183,] 745 P.2d 687, 44 St.Rep. 1879.

In Seybert, this Court recognized that the primary purposes of bail in a criminal case is not “to punish a defendant or surety, nor to increase the revenue of the State,” Seybert, 745 P.2d at 689, 44 St.Rep. at 1882 (quoting State v. Musgrove (1980), 187 Mont. 549, 553, 610 P.2d 710, 712), but rather to honor the presumption of innocence, to allow a defendant to prepare his case, and to ensure the defendant’s presence in the pending proceeding. Seybert, 745 P.2d at 688, 44 St.Rep. at 1880 (citing United States v. Skipper (5th Cir. 1981), 633 F.2d 1177). Upon reviewing the facts of that case, this Court concluded that the District Court abused its discretion when it ordered the forfeiture of 75 percent of the bonds posted on behalf of Seybert and Rogers. Seybert, 745 P.2d at 689, 44 St.Rep. at 1882. This Court also held that when determining the amount of forfeiture, a court is not limited to actual damages only, but should consider, among others, the following six factors: (1) the defendants’ willful violation of bail conditions; (2) the surety’s participation in locating or apprehending the defendants; (3) the cost, inconvenience, and prejudice suffered by the State as a result of the violation; (4) intangible costs; (5) the public’s interest in ensuring a defendant’s appearance; and, (6) any mitigating factors. Seybert, 745 P.2d at 689, 44 St.Rep. at 1882. The District Court on remand found that the record justified a forfeiture of 100 percent of the defendants’ bonds. American again appealed.

On appeal, American argues that the District Court abused its discretion in light of our recent case State v. Seybert (Mont. 1987), [229 Mont. 183,] 745 P.2d 687, 44 St.Rep. 1879. More specifically, American argues that the key in that case was that the original forfeiture of 75 percent was excessive and therefore any forfeiture was absolutely required to be less than 75 percent. We disagree with American’s assessment of our recent case.

This Court’s holding in Seybert, that the 75 percent forfeiture of the posted bond was excessive, stemmed from the lack of findings to justify such a forfeiture. The proper task of this Court is not to determine upper limits on the amount of forfeiture on posted bonds when little or no findings exist to support the forfeiture, but rather, upon review of the record, to determine whether the District Court abused its discretion when it ordered 100 percent forfeiture of the posted bonds. The test this Court employs for abuse of discretion is whether the District Court acted arbitrarily. In re Marriage of Jensen (Mont. 1986), [223 Mont. 434,] 727 P.2d 512, 515, 43 St.Rep. 1891, 1893; In re Marriage of Perry (Mont. 1985), [217 Mont. 162,] 704 P.2d 41, 43, 42 St.Rep. 1101, 1104; State v. Musgrove (1983), 202 Mont. 516, 521, 659 P.2d 285, 288. We hold that the District Court did not abuse its discretion when ordering 100 percent forfeiture of the bonds posted on behalf of the defendants Seybert and Rogers.

On remand, the District Court applied the facts of the case to the six factors listed and found in retrospect that the record fully justified 100 percent forfeiture of both bail bonds. An examination of the record demonstrates that the District Court did not act arbitrarily. The District Court considered the six factors and found:

(1) The defendants willfully violated the provisions of their bail bonds by failing to appear for the omnibus hearing because the defendants were in the custody of federal authorities for crimes committed after the bonds were posted.

(2) The state of Montana and the defendants’ counsel located the defendants; the surety did not assist in the search. In light of the defendant Seybert’s extensive criminal record, the surety knew or should have known that he had a propensity for flight.

(3) No way existed to determine exactly the State’s cost, inconvenience, and the prejudice the State suffered, however, the initial apprehension of the defendants and their subsequent indictment was the result of an extensive multi-county investigation which continued for over 30 days. The county attorney’s office prepared an eight page information and undertook the burdensome task of interviewing several witnesses scattered across a tri-county area. The four defendants were incarcerated in three different counties, which necessarily required four public defenders and three county attorneys to prepare for the pre-trial hearings. Hearings were conducted on motions to reduce bonds. Further, the State continues to be prejudiced as a result of the subsequent death of a key witness and, with the lapse of time, the fading of other witnesses’ memories.

(4) The public’s interest in the matter is great because thousands of dollars in drugs, jewelry, cameras, liquor, and miscellaneous property were stolen. Instead of ordered restitution, the victim of the crime has nothing but disrespect and contempt for the legal process.

(5) No mitigating factors existed in favor of the surety.

(6) The previous partial forfeiture was an abuse of discretion, and the entire bail bond should have been forfeited initially.

American argues that the District Court’s findings are not supported by the record. Specifically, American argues that the record doe's not indicate that the defendant Seybert had a propensity for flight; which party located the defendants; and that the State was prejudiced by the death of a key witness, since no evidence existed of the witness’s death and the alleged death occurred prior to any possible trial date.

The District Court’s findings of facts demonstrate that it considered the six factors set out in Seybert, 745 P.2d at 689, 44 St.Rep. at 1882. Substantial evidence exists to support the District Court’s finding that forfeiture of 100 percent of the bail bonds was justified in this instance. The lack of solid support in the record of one or more of the six factors does not render the District Court’s decision arbitrary.

Finally, we reaffirm our holding in Seybert that when determining the amount of forfeiture of a bail bond, the statute does not limit a district court’s discretion to actual damages. Seybert, 745 P.2d at 689, 44 St.Rep. 1881-82.

We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and McDONOUGH concur.


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    WEBCOR ELECTRONICS, INC., a/k/a Webcor, Defendant and Appellant, v. HOME ELECTRONICS, INC., Plaintiff and Respondent.
    No. 87-126.
    Submitted on Briefs March 11, 1988.
    Decided April 21, 1988.
    754 P.2d 491.

      Richard C. Conover, and K. Robert Foster, Bozeman, for defendant and appellant.
    Mike McCarter, Hughes, Kellner, Sullivan & Alke, Helena, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Plaintiff/respondent Home Electronics, Inc., filed an action in District Court to recover damages for breach of contract, breach of the covenant of good faith, and fraud. The jury returned a verdict in favor of Home Electronics, Inc., and awarded $15,000 in compensatory damages and $50,000 in punitive damages. Defendant, Webcor Electronics, Inc., appeals and we affirm.

Plaintiff/respondent Home Electronics, Inc., (HEI) is a Montana corporation owned and operated by Bruce and Barbara MacIntyre. The corporation specializes in selling various electronic equipment including home telephones manufactured by the defendant/appellant, Webcor Electronics, Inc. (Webcor). HEI’s marketing connection to Webcor was through a Denver, Colorado, sales representative firm known as Pike Marketing, Inc., which acted as a sales representative for Webcor. The MacIntyres dealt chiefly with Shelly Pike and Neil Lentsch at Pike Marketing.

In June 1983, the MacIntyres attended a consumer electronic show in Chicago and made contact with Pike and Lentsch who indicated that Webcor was now marketing an advanced business phone system. Subsequently, the MacIntyres were introduced to Brian Azar, national sales manager of Webcor telephones. The MacIntyres watched a demonstration of the phone systems and later met with Azar to discuss the possibility that they act as distributors. Azar inquired as to the MacIntyres’ capabilities of handling a distributorship for the phones. The MacIntyres alleged that Azar made four specific promises during this discussion. Specifically, the MacIntyres stated Azar promised they would receive: (1) an exclusive distributorship for Montana, (2) hands-on training for installing and repairing the systems, (3) a full refund for all unsold telephones if the distributorship failed to work out, and (4) documentation and information permitting them to connect the systems to telephone company lines.

The MacIntyres were informed that another Montana retailer was interested in the product and the first to act would receive the distributorship. The MacIntyres agreed to act and executed an order for five systems totaling $8,405. Other than the purchase order, no other document was signed at that time.

The MacIntyres subsequently began to spend a significant amount of money marketing the product. However, no sales occurred because the MacIntyres had not received installation training. Additionally, the record indicates Azar was actively soliciting an additional distributor for the Montana area. Azar visited the MacIntyres in mid-July 1983 for approximately two hours and had the MacIntyres sign documents which he stated would allow the MacIntyres to install the systems after their training. Despite numerous requests by the MacIntyres, Webcor failed to provide any training other than giving the MacIntyres an installation manual.

In February, 1984, the MacIntyres located a buyer for a system. Despite the fact that no training had been received the MacIntyres decided to attempt the installation. Upon contacting the phone company, they were informed they did not have sufficient permission to connect the system to the existing lines. The MacIntyres believed they already had sufficient clearance for the connection and entered a complaint with Webcor. Webcor promised to correct the problem, but the MacIntyres buyer rescinded the sale before any correction was made.

The MacIntyres later attempted to return the phone systems and in June of 1984, Webcor informed them that only $2,956.95 worth of the phone systems would be accepted as returns. This lawsuit followed.

Appellant Webcor raises five issues for our consideration on appeal:

(1) Was the District Court incorrect in failing to instruct the jury regarding independent contractors and agents?

(2) Did the District Court correctly determine that the parol evidence rule and statute of frauds had no application to the case?

(3) Did the District Court incorrectly refuse to give instructions regarding the Uniform Commercial Code?

(4) Did the jury find fraud on the part of Webcor by considering evidence which should have been ruled inadmissible?

(5) Were punitive damages properly awarded pursuant to the implied covenant of good faith and fair dealing?

1. Instructions regarding independent contractors and agents.

Defendant Webcor asserts that the District Court erred when it refused to give jury instructions which distinguished an agent from an independent contractor. Webcor’s theory was that Pike and Lentsch of Pike Marketing were related to Webcor on only an independent contractor basis. Therefore, Webcor concludes it is not liable for any actions or representations made by Pike or Lentsch. However, plaintiff HEI was not attempting to present evidence of wrongdoing by either Pike or Lentsch, and Webcor fails to point out evidence that would support such a finding by the jury. The instructions were properly refused because the evidence presented by plaintiff demonstrating wrongdoings stemmed from the actions and representations of Webcor’s employee Azar. We have held that “a party is not prejudiced by a refusal of proposed instructions where the subject matter of the instruction is not applicable to the facts or not supported by the evidence introduced at trial.” In the Matter of the Estate of Hogan (Mont. 1985), [218 Mont. 428,] 708 P.2d 1018, 1019, 42 St.Rep. 1711, 1712.

2. Parol evidence and statute of frauds.

Defendant Webcor states the District Court incorrectly refused to instruct the jury regarding parol evidence and the statute of frauds. Specifically, Webcor states the following parol evidence instruction should have been read:

“Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented by evidence of consistent additional terms.”

Webcor’s source for this instruction is Section 30-2-202, MCA. However, we refuse to conclude that the District Court was required to give the instruction. The “written agreement” entered by the MacIntyres on June 7, 1983 was merely a purchase order made through Webcor’s marketing representative, Pike Marketing. While it is a contract for goods subject to the Uniform Commercial Code, the writing makes no mention of the additional promises made by Azar on behalf of Webcor. The record indicates that Azar made promises far beyond what the purchase order was ever intended to address and the writing was obviously not intended to be a final expression of the agreement. The same could be said of the document later signed by the MacIntyres regarding their alleged competence to install the phone systems. This document was not intended to include any agreements regarding the distributorship and the services Webcor would guarantee the MacIntyres if they became distributors.

Additionally, we note the MacIntyres alleged a fraud and that parol evidence may be used to establish a fraud. Section 28-2-905(2), MCA. See also, Flemmer v. Ming (Mont. 1980), [190 Mont. 403,] 621 P.2d 1038, 37 St.Rep. 1916. The alleged fraud in this case stems from Azar’s oral representations and it would be an injustice to prohibit their consideration by the jury because they do not appear in writing. Such a rule would lead to an illogical requirement that a fraud must be demonstrated by a writing. We affirm the District Court’s rejection of Webcor’s instruction regarding parol evidence.

Webcor also alleges the District Court should have given the following instruction regarding the statute of frauds:

“One of the plaintiff’s claims is for the breach of an agreement to allow the plaintiff to become an exclusive distributor of the phones marketed by defendant. If you find that such an agreement involved the sale of goods of a value in excess of $500, then such an agreement, to be enforceable, would be required to be in writing.”

The District Court correctly refused the instruction. The purchase order for the goods themselves is a written contract which sufficiently fulfills the requirement that an agreement to purchase over $500 worth of goods be in writing. Section 30-2-201, MCA. The proposed instruction is misleading because it also requires a writing for any agreement as to the MacIntyres’ receiving a distributorship. The proposed instruction would have effectively required that any misrepresentation made by Azar be in writing. This is not what is required by Section 30-2-201, MCA, and we affirm the District Court’s decision refusing to give the instruction.

3. Instructions regarding the Uniform Commercial Code.

Webcor asserts the District Court committed reversible error by failing to give three instructions regarding statutes contained in Montana’s Uniform Commercial Code. The proposed instructions would have advised the jury when an agreement could arise by performance, Section 30-2-206, MCA, when additional terms become part of the contract, Section 30-2-207, MCA, and what damages a buyer may recover for nonconforming goods, Section 30-2-714, MCA. Webcor contends that by refusing the instructions the District Court effectively held “that the [Uniform Commercial Code] sales statutes had no application to the transactions which formed the basis of the plaintiff’s complaint.”

Webcor is correct in asserting that Montana’s Uniform Commercial Code sales statutes control agreements to sell goods. Section 30-2-102, MCA. However, the proposed instructions are not applicable. The MacIntyres are not disputing the fact they entered a contract to buy goods from Webcor. Instead, the crux of their allegations is that Azar made untrue oral representations that caused them to enter an agreement which they would have otherwise not entered. Similarly, there is no claim that these representations are “additional terms” within the meaning of Section 30-2-207, MCA, and this instruction is also inapplicable. Additionally, there is no claim that the merchandise itself was nonconforming. The MacIntyres did allege that Webcor failed to provide a connecting access number, but this allegation did not mean that the goods themselves were inadequate. Therefore, the instruction based on Section 30-2-714, MCA, which offers guidance for recoverable damages when goods are nonconforming, is also inapplicable.

4. Evidence of fraud.

Defendant Webcor states that the MacIntyres claim of fraud is based on four alleged misrepresentations by Azar: assurances of hands-on training, failure to provide a connecting number, failure to accept returns for refunds, and representations of an exclusive distributorship. Webcor contends that the jury reached the conclusion that Webcor committed fraud by considering improper evidence regarding each of these items.

Webcor states that the MacIntyres signed a document entitled “appointment of installation supervisor” effective July 1, 1983, which effectively relieved Webcor from providing any hand-on training for the MacIntyres or any further information regarding a connecting number. This document contained a merger clause providing that the document constituted “all the terms and conditions of [the] agreement and [superseded] any and all prior agreements and understandings written or oral.” As a result of these provisions Webcor argues that any representations made to the MacIntyres prior to this agreement regarding training or a connecting number were inadmissible because the parties reached an integrated agreement.

Webcor’s contentions fail to recognize the fundamental rule that parol evidence may be used to demonstrate fraud. Section 28-2-905(2), MCA. This rule remains the same under Section 30-2-202, MCA, the provision addressing parol evidence in the sales chapter of the Uniform Commercial Code. See, Norwest Bank Billings v. Murnion (Mont. 1984), [210 Mont. 417,] 684 P.2d 1067, 1071, 41 St.Rep. 1132, 1136. Moreover, the record does not support the allegation that the parties intended the document to be the final expression of their agreement regarding the distributorship. Such a determination would be necessary under Section 30-2-202, MCA. Instead, the document appears to focus on issues related only to the installation of the phones.

Webcor states it properly rejected the full refund requested by the MacIntyres because the shipping invoices provided: “No returns for credit accepted. Returns for repair or substitution only with prior written authorization.” Webcor contends that these additional terms became part of the contract pursuant to Section 30-2-207 which states in pertinent part:

“(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.
“(2) The additional or different terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
“(a) the offer expressly limits acceptance to the term of the offer;
“(b) they materially alter it; or
“(c) notification of objection to them has already been given or was given within a reasonable time after notice of them is received.

Since Azar had already represented that full refunds would be accepted, the additional terms could be construed to have materially altered the contract. At any rate, the additional terms contained in the shipping invoices would not cure or negate the misrepresentations previously made by Azar.

Finally, Webcor argues that any promises regarding an exclusive distributorship made by Azar in Chicago constitutes parol evidence and should not have been considered by the jury. In this assertion, Webcor largely repeats its argument that the jury should have received an instruction on parol evidence. As we have noted, parol evidence may be used to establish fraud. Section 28-2-905(2), MCA. Additionally, there is serious doubt as to whether the parties ever entered a written agreement which was intended to be a final Webcor expression of their agreement as required by Section 30-2-202, MCA. The record demonstrates that Azar represented, and the MacIntyres intended, that the agreement between Webcor and HEI include much more than that contained in the few documents signed by the MacIntyres. In conclusion, we find the District Court correctly admitted, and the jury properly considered, evidence regarding the misrepresentations by Azar on behalf of Webcor.

5. Tort damages.

Webcor contends the District Court incorrectly allowed plaintiffs a tort recovery. Webcor asserts that the facts of this case address a contractual setting in which contract damages are the only appropriate remedy. Webcor recognizes that the MacIntyres allege a breach of the implied covenant of good faith and fair dealing, in addition to the breach of contract claim. However, Webcor states that this case deals with an ordinary commercial setting in which two parties negotiated with relatively equal bargaining power and without any special relationship which would generate an exceptional duty. Webcor concludes that a breach of the implied covenant should not generate punitive damages under these circumstances.

We recognize that there has been considerable discussion as to whether a breach of the implied covenant should result in a tort remedy when the facts demonstrate the parties were operating in an ordinary commercial setting with equal bargaining power and without a special relationship. See, Note, Commercial Bad Faith: Tort Recovery for Breach of Implied Covenant in Ordinary Commercial Contracts 48 Mont. L. Rev. 349 (1987). However, this specific question need not be addressed in this case. The jury not only found a breach of contract and good faith, but also found actions constituting fraud. Reasonable punitive damages may be awarded where the defendant is found guilty of actual fraud. Section 27-1-221, MCA. In a case where the jury finds both fraud and a breach of the implied covenant of good faith and fair dealing, we hold that the plaintiff is free to pursue punitive damages.

Finally, Webcor asserts that this issue should be decided pursuant to the laws of the state of New York. Webcor points out that the document which gave Bruce MacIntyre the authority to install the phone systems had a provision which stated “the validity, performance and interpretation of this agreement shall be governed by the laws of the state of New York.” Webcor’s assertion has no merit because this written agreement was only intended to address those issues related to the installation of phone systems by Bruce MacIntyre. As plaintiffs point out, the document pertained only to installations and liability for installations, and had nothing to do with any purchase of goods, any return policy, any hands-on training, or any exclusive distributorship. Section 30-1-105(1), MCA, states that if the partners do not choose which law is to be used, the Montana Code “applies to transactions bearing an appropriate relation to this state.” Plaintiffs state that there is an appropriate relation to this state because the injury occurred in Montana, the respondent was domiciled and did business in Montana, the appellant actively solicited sales in the state through traveling representatives, the distributorship was to service Montana, and the appellants sales manager visited Montana to check on the plaintiffs and solicit another distributor. Based on these contacts, we find that it was not incorrect to apply Montana law.

For the foregoing reasons we affirm the decision of the District Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, HUNT and McDONOUGH concur.


author: MR. JUSTICE WEBER MR. JUSTICE HUNT,

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. KENNETH N. MORAN, Defendant and Respondent.
    No. 87-155.
    Submitted Jan. 15, 1988.
    Decided April 21, 1988.
    Rehearing Denied April 21, 1988.
    753 P.2d 333.

      Mike Greely, Atty. Gen., Helena, Robert F.W. Smith, Asst. Atty. Gen., Mike Salvagni, Co. Atty., Bozeman, Marty Lambert, Deputy Co. Atty., for plaintiff and appellant.
    LeAnne Schraudner, Lilly, Andriolo and Schraudner, Richard Nellen, Bozeman, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The State of Montana appeals an order granting dismissal of four criminal charges against the defendant in the Eighteenth Judicial District, Gallatin County. We reverse and remand for trial.

The issue is whether the District Court committed error by granting defendant’s motion to dismiss.

In May, 1986, Mr. Moran was charged with the crime of forgery by accountability or in the alternative, conspiracy to commit forgery. Later that month he was charged with two counts of witness tampering. The two cases were consolidated by the District Court, and trial began on September 22, 1986. The jury was empaneled and sworn on that day, and the prosecution presented six witnesses. This was defense counsel’s first felony criminal trial before a jury. On the morning of the second day of trial, before any more testimony was offered, the trial judge on his own motion declared a mistrial. The basis for this action was the court’s belief that defendant was being denied effective assistance of counsel and that manifest necessity required mistrial. The defense raised no objection to mistrial, although the State did object.

The court scheduled the matter for retrial in November, 1986. As the parties prepared for retrial, the original trial judge was substituted. The substitute judge then ordered briefs on the issue of retrial and double jeopardy, pursuant to defendant’s motion to dismiss. Subsequently, this substitute judge granted the motion.

Did the District Court commit error by granting defendant’s motion to dismiss?

We accord great deference to the trial judge’s findings and conclusions when the judge heard the witnesses and observed their demeanor. Similarly, we accord deference to the trial judge’s judgment as to competence of counsel when the judge heard and observed his performance as criminal defense counsel, both in chambers and in the courtroom during voir dire and trial. The substitute judge likewise should accord deference to the original trial judge on these matters. The substitute judge in effect reversed the trial judge, having reviewed only seven pages of a trial transcript which when complete contains 221 pages of voir dire, testimony, and in-chambers discussions. For these reasons, the substitute judge’s order of dismissal will not receive the same deference as the action by the trial judge.

We now consider whether the trial judge abused his discretion in finding manifest necessity for mistrial. The trial judge’s action was motivated by his concern for defendant’s constitutional right to effective assistance of counsel. Because the decision to order mistrial was made to protect defendant’s constitutional interests, that decision will receive a high degree of deference on review. See United States v. Sanders (9th Cir. 1979), 591 F.2d 1293, 1297 (stating “A trial judge’s decision to declare a mistrial because of possible juror bias is also deserving of great deference.”); see also Wright v. United States (D.C. 1976), 365 A.2d 365. The defendant’s interest in effective assistance of counsel, however, must be considered in light of his Fifth Amendment right not to be placed twice in jeopardy. Jeopardy attaches when the jury is empaneled and sworn. State v. Carney (Mont. 1986), [219 Mont. 412,] 714 P.2d 532, 535, 43 St.Rep. 54, 58. In this case, jeopardy had attached. The constitutional protection against double jeopardy bars a second criminal trial “unless there was a ‘manifest necessity’ to terminate the trial or defendant acquiesced in the termination.” Carney, 714 P.2d at 535.

If the trial judge exercised sound discretion, if he acted rationally and responsibly, his order of mistrial will be affirmed. Arizona v. Washington (1978), 434 U.S. 497, 514, 98 S.Ct. 824, 54 L.Ed.2d 717. Upon review, “[t]he record must support the explicit or implicit finding of manifest necessity.” United States v. Jarvis (9th Cir. 1986), 792 F.2d 767, 769. Our review of the record convinces us that the trial judge acted responsibly, exercising sound discretion when he found manifest necessity for a mistrial.

The trial judge concluded that counsel was too inexperienced to defend a major felony charge involving conspiracy and accountability theories. One example was the failure of defense counsel to object to the admission of State’s exhibit 38 which was the foundation for an alleged admission or confession of the defendant. Exhibit 38 was offered in evidence through a deputy sheriff. Exhibit 38 was a “rights” card, which contained a Miranda statement of the defendant’s right against self-incrimination and his right to assistance of counsel. This particular form provided a line for the defendant’s signature if he made a signed waiver. The defendant here had not signed that line. The form also provided a space where the deputy could write down the answer of the defendant when he was asked “Do you want to use any of these rights before we ask you questions?” The officer testified that he had not filled out that blank and that he could not explain why he had failed to get either the defendant’s signature for a written waiver or why he failed to record an oral waiver. Defense counsel did not make any objection at that point. Notwithstanding the absence of an objection, the trial court called counsel into chambers and afforded defense counsel an opportunity to object to the admission of evidence. The court inquired as to the testimony which was going to come in and was advised as to the nature of the confession type evidence. At that point, even though counsel for the defense had still failed to make any objection, the court refused the testimony on the grounds that the officer failed to properly obtain an oral waiver of rights.

The following day, before the commencement of trial, the court made the following ruling:

“Let the record show we’re outside the presence of the jury. After some agonizing thought on this matter, gentlemen — let the record show the Defendant is present, represented by [counsel]. Mr. Lambert is present. I am regretfully concluding that [defense counsel] does not have the sufficient experience to try this case, and that is no reflection on you .... I was in a similar situation when I was in your shoes, but the constitution requires that the Defendant be guaranteed effective assistance of counsel, and I’m going to conclude that he does not have that, and I’m going to grant on my own motion a mistrial and I’m going to -find that manifest necessity dictates that matter be retried and that the bars of double jeopardy do not prevent a retrial.”

Counsel for the defendant argues that the record reflects that the defendant voluntarily and intelligently waived his rights prior to the confession. They cite State v. Blakney (1982), 641 P.2d 1045, 197 Mont. 131, where this Court pointed out that the existence of a valid waiver depends in each case upon the particular facts and circumstances, including the background, experience and conduct of the accused and other appropriate considerations including the age, education and intelligence of the accused and his capacity to understand the warnings and the consequences of waiving those rights. In addition this Court pointed out that a valid waiver must include an actual relinquishment of the benefits as evidenced by the actions or statements of the accused. The record contains substantial evidence to support the conclusion of the District Court that the State had failed to properly obtain an oral waiver of rights so that the defendant’s admission or confession was not admissible in evidence.

We conclude that the trial judge acted rationally, carefully considering the problems of the difficult situation with which he was confronted. There is substantial evidence from which to conclude that counsel’s performance had been ineffective. There is substantial evidence to support the conclusion that highly prejudicial evidence would have been admitted for the lack of a proper objection if the trial judge had not stepped in. We conclude that the trial court exercised sound discretion.

Because mistrial is an extreme remedy, a trial judge should carefully consider alternatives. No reasonable alternatives were suggested in this case. A continuance until a new defense counsel was familiarized with the case would have resulted in an unnecessary delay, Cautionary instructions would not have been adequate. No reasonable alternatives were presented.

Defense counsel argues that the trial court should have considered the tactics of counsel for the defendant. Having concluded that the failure to object to the rights card and the admission testimony was highly prejudicial to the defendant, there remains no question of trial tactics. Counsel failed to object to the admission of damaging evidence in the absence of a proper foundation. We conclude that the trial judge was in the best position to judge the performance of counsel and the effect of the evidence, and the record supports his judgment. By this opinion we do not intend a criticism of the defense counsel. The record demonstrates that he applied himself diligently in the performance of his duties, but that he had insufficient experience to recognize the extent of his duties.

The argument is made that we should apply the two-pronged Strickland test to the trial court’s determination. The second prong of that test requires the defendant to show that the deficient performance prejudiced the defense and that the errors were so serious as to deprive the defendant of a fair trial. That test was established for the review of actions taken in the course of a completed trial. There is no way of showing in the present case whether the conduct deprived the defendant of a fair trial because a mistrial was declared. We conclude that the Strickland test is not applicable. As previously stated, we conclude that the standard upon review of a decision to order mistrial is whether the trial court exercised sound discretion.

We conclude that the trial judge exercised sound discretion when he found manifest necessity for mistrial. We also conclude that there was no basis for reversal by the subsequent trial judge who granted the dismissal of all charges against the defendant.

We reverse the order dismissing the charges on grounds of double jeopardy and remand the case for a new trial.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GULBRANDSON and McDONOUGH concur.

MR. JUSTICE HUNT,

dissenting:

The majority today provides the means by which the defendant may be tried twice for the same offense. Accordingly, I dissent.

In its opinion, the majority holds that the substitute judge should not be accorded the same deference upon review as is normally accorded trial courts because it reviewed only a partial transcript of the proceedings. It then proceeded to discuss only one incident that was an “example” of counsel’s inexperience, namely failing to object to an improperly filled out rights cards. It was the partial transcript of this incident that the substitute judge reviewed along with the parties’ briefs and District Court record, and it was this incident which the substitute judge found was not manifest necessity for a mistrial. Although the majority has reviewed the whole record, it does not point to any other example of “ineffectiveness” and confines itself to a discussion of the very incident the substitute judge reviewed.

It is clear to me that the substitute judge should have been given more deference by the majority than he was. Declaring a mistrial is an extreme measure which should be used with great caution. State v. Carney (Mont. 1986), [219 Mont. 412,] 714 P.2d 532, 535, 43 St.Rep. 54, 59. Reviewing courts must be satisfied that the trial court exercised sound discretion in declaring a mistrial. Arizona v. Washington (1978), 434 U.S. 497, 514, 98 S.Ct. 824, 835, 54 L.Ed.2d 717, 733. The majority has discussed only one instance of defense counsel’s possible “inadequacy.” The trial court cited no particular incident that prompted its action, nor has the majority explained any other event that showed inadequate representation other than the one also reviewed by the substitute judge. It seems to me that the substitute judge balanced the defendant’s constitutional interest with the public’s interest in prosecution and, not surprisingly, came out in favor of the Constitution.

Montana has adopted and refined the two-pronged test for ineffective assistance of counsel set out by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See, State v. Robbins (Mont. 1985), [218 Mont. 107,] 708 P.2d 227, 42 St.Rep. 1440. The Strickland test is as follows:

“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

In Robbins, this Court stated that a counsel’s assistance is constitutionally effective if he or she acts “ ‘within the range of competence demanded of attorneys in criminal cases.’ ” Robbins, 708 P.2d at 231, quoting State v. Rose (1980), 187 Mont. 74, 86, 608 P.2d 1074, 1081. If an attorney’s conduct fails this first step then it must be shown that the error resulted in prejudice and “ ‘stemmed from neglect or ignorance rather than from informed professional deliberation.’ ” Robbins, 708 P.2d at 231, quoting State v. Morigeau (1982), 202 Mont. 36, 44, 656 P.2d 185, 189. Robbins concerned the defendant’s claim that his attorney had, inter alia, failed to make a motion to suppress some properly seized evidence, namely stolen guns. This Court discovered nothing in the record that supported any of the defendant’s claims.

In fact, the failure to make the above motion was sound professional judgment considering there were no irregularities in Robbins’ arrest or in the seizure of the evidence. Robbins, 708 P.2d at 232. Of particular interest is the recent decision of State v. Probert (Mont. 1986), [221 Mont. 476,] 719 P.2d 783, 43 St.Rep. 988, in which the court held that although counsel’s failure to object to hearsay was error, it was not prejudicial. The Court also recognized that “[tjhere is a difference between ineffective assistance and counsel’s tactical decisions in defense of a case.” Probert, 719 P.2d at 787.

I disagree with the majority’s assertion that the Strickland test is not applicable to the case at hand because it was not a completed trial. The United States Supreme Court does not limit its decision in such a manner. In fact, Strickland itself arose not out of a trial proper but out of a post-trial capital hearing proceeding which the court claimed was “adversarial” enough in nature to warrant application of the test. The proceeding we are concerned with was an actual trial, although an uncompleted one. Perhaps the full Strickland test is not appropriate in proceedings terminated sua sponte by the presiding judge but its general thrust is, especially when the trial is interrupted because the court feels ineffective assistance is taking place. If we do not measure the court’s soundness of decision in a manner at least similar to Strickland, how else are we to review the decision?

Defendant argues that what Judge Olson perceived as ineffective assistance of counsel was in fact a tactical plan designed to promote the eventual impeachment of the State’s witnesses. Moran’s counsel made many appropriate motions and objections before and after trial. There appears to be only one place during the trial proceedings where Judge Olson was concerned with defense counsel’s conduct. This instance was thoroughly examined by the substitute judge and found not to rise to the level of ineffective assistance of counsel. This conclusion deserves every deference normally accorded trial court decisions.

MR. JUSTICE SHEEHY concurs in the foregoing dissent.


author: MR. CHIEF JUSTICE TURNAGE

text:
    LARRY E. NASI, Plaintiff and Appellant, v. STATE DEPARTMENT OF HIGHWAYS, a Department of the State of Montana, Defendant and Respondent.
    No. 87-415.
    Submitted on Briefs March 11, 1988.
    Decided April 21, 1988.
    753 P.2d 327.
    William F. Hooks and Patrick F. Hooks, Hooks & Budewitz, Townsend, for plaintiff and appellant.
    John Bobinski, Dept, of Admin., Helena, for defendant and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiff Nasi appeals the June 12, 1987, order of the First Judicial District Court, Lewis and Clark County, granting State Department of Highways’ motion for summary judgment. We affirm.

The sole issue on appeal is whether the District Court erred in applying res judicata to Nasi’s wrongful discharge action.

Nasi began working for the Department of Highways (Department) at its Townsend maintenance shop on February 5,1979. On June 18, 1982, his employment ended. Nasi claims he was fired. The Department claims he voluntarily quit.

On March 12, 1984, Nasi filed a grievance with the Board of Personnel Appeals (BPA). On April 17, 1984, the BPA preliminary hearing examiner decided that Nasi had “quit and/or walked off the job.” The following day, Nasi filed his rejection of the preliminary decision.

On April 23, 1984, Nasi filed a separate tort action in District Court, alleging wrongful discharge and bad faith. The Department filed motions to dismiss on several grounds including (1) BPA had exclusive jurisdiction, (2) Nasi failed to exhaust his administrative remedies, and (3) the tort action was barred by res judicata. On July 5, 1984, the District Court ordered that all further tort proceedings would be stayed until the BPA made a final determination on the grievance.

On October 11, 1984, the BPA formal hearing examiner found that Nasi had “voluntarily terminated his employment with the Department of Highways.” The examiner concluded that Nasi had not been aggrieved by the Department. On February 5, 1985, the BPA adopted the examiner’s recommended order as the final order.

On March 5, 1985, Nasi filed a petition for judicial review of the BPA final order. On August 15, 1986, the District Court affirmed the BPA final order. Nasi did not appeal the judicial review.

On August 29, 1986, the District Court lifted its stay on the tort action. On October 27, 1986, the Department filed a motion for summary judgment, or in the alternative, a motion to dismiss the tort action. On June 12, 1987, the District Court granted the Department’s motion for summary judgment on the grounds that the matter was res judicata. The court stated: “BPA specifically found that Nasi quit. Such a determination is dispositive in the court case. It forecloses Plaintiffs wrongful discharge and bad faith causes of action and any additional issues associated therewith.” Nasi appeals the summary judgment.

Res Judicata

Nasi contends that the BPA did not act in a judicial capacity in its grievance decision and res judicata is therefore inapplicable. Nasi also asserts that the issues, remedies and subject matter of his tort action differ from those of his BPA grievance.

. In analyzing this case, we note that Title 2, Chapter 4, Montana Code Annotated, establishes the Montana Administrative Procedure Act (MAPA). Section 2-4-102(2)(a), MCA, defines agency as any agency defined in Section 2-3-102(1), MCA, which provides: “ ‘Agency’ means any board ... of the state . . . authorized by law to . . . determine contested cases . . .” Section 2-15-1705, MCA, creates a Board of Personnel Appeals and subsection (6) provides: “The board is designated a quasi-judicial board for purposes of 2-15-124.”

Title 2, Chapter 4, Part 6, sets forth the statutory provisions relating to contested cases. Section 2-18-1001(1), MCA, grants the BPA the jurisdiction to conduct hearings and resolve grievances of employees of the Department of Highways. Title 2, Chapter 4, Part 7, provides for judicial review of contested cases by the District Court with a right of review of a final judgment of the District Court by the Supreme Court.

As we have noted, Nasi had a contested case hearing before the BPA. From its adverse decision, he sought and received judicial review by the District Court. The District Court affirmed the decision of the Board, but Nasi did not assert his right of appeal.

The District Court decision rested on the doctrine of res judicata. The doctrine reflects a policy of judicial finality:

“The basic proposition embraced by the doctrine of res judicata has always remained the same: a party should not be able to relitigate a matter he or she has already had an opportunity to litigate. This policy reflects the notion that a lawsuit should not only bring justice to the aggrieved parties but provide a final resolution of the controversy.” ' ‘

Brault v. Smith (Mont. 1984), [209 Mont. 21,] 679 P.2d 236, 238, 41 St.Rep. 527, 529.

Res judicata applies when administrative proceedings possess a judicial character:

“When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicatá to enforce repose.”

United States v. Utah Construction and Mining Co. (1966), 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed. 642, 661.

The application of res judicata rests on the following four criteria: (1) the parties must be the same; (2) the subject matter must be the same; (3) the issues must be the same, and (4) the relationship among the parties, the subject matter and the issues must be the same. Brault, 679 P.2d at 239, 41 St.Rep. at 530, citing Fox v. 7L Bar Ranch Co. (1982), 198 Mont. 201, 645 P.2d 929.

In comparing Nasi’s tort action and his BPA grievance, we note an identity of the parties, the subject matter and the relationship. Both the tort action and the grievance flowed from the same set of facts. The pivotal issue was identical: Did Nasi voluntarily quit or was he fired?

At each level of the administrative process, Nasi had an adequate opportunity to litigate his claim. Nasi fully utilized the procedural safeguards of MAPA, including notice, right to counsel, evidence, cross-examination and judicial review. At each level, the decision was the same: Nasi voluntarily quit.

Nasi failed to appeal the judicial review. Instead, he asked the District Court to reach an opposite decision with an encore of the identical issue. We will not allow Nasi to relitigate his grievance in a tort action raising the same issue previously litigated.

We hold that the BPA acted in a judicial capacity and provided Nasi with a full contested case hearing which was subsequently judicially reviewed. We further hold the District Court correctly applied res judicata to Nasi’s tort action.

“To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.”

Montana v. United States (1979), 440 U.S. 147, 153-154, 99 S.Ct. 970, 973-974, 59 L.Ed.2d 210, 217. The four res judicata criteria of Brault have been satisfied. Where the moving party is entitled to summary judgment as a matter of law, we will uphold the District Court. Schaffer v. Champion Homes Builders (Mont. 1987), [229 Mont. 533,] 747 P.2d 872, 874, 44 St.Rep. 2196, 2198.

Affirmed.

MR. JUSTICES HARRISON, SHEEHY, HUNT and McDON-OUGH concur.


author: MR. JUSTICE GULBRANDSON

text:
    The STATE OF MONTANA, Plaintiff and Appellant, v. SCOTT A. WOMBOLT, Defendant and Respondent.
    No. 87-509.
    Submitted on Briefs March 24, 1988.
    Decided April 21, 1988.
    753 P.2d 330.
    Mike Greely, Atty. Gen., Helena, Harold F. Hánser, Co. Atty., Billings, Charles A. Bradley, Deputy Co. Atty., for plaintiff and appellant.
    Arthur J. Thompson, Thompson and Sessions, Billings, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The State appeals from an order of the District Court of the Thirteenth Judicial District, County of Yellowstone, dismissing an information charging defendant/respondent Scott A. Wombolt (Wombolt) with arson. The dismissal was based on failure to provide a speedy trial. We affirm.

The State raises but one issue:

Did the District Court abuse its discretion in granting Wombolt’s motion to dismiss for failure to provide a speedy trial?

Wombolt was arrested and jailed on March 27, 1987. He was charged with the crime of felony arson. A preliminary hearing was scheduled for April 16, 1987 when Wombolt appeared in justice court on March 31, 1987. At the March 31 hearing, and before any examination began, Wombolt invoked his statutory right to close the proceedings to the press and public pursuant to Section 46-10-201, MCA. Accordingly, the court closed the preliminary examination to the public and press.

The Billings Gazette (Gazette) commenced a series of legal proceedings, ultimately culminating in an August 5, 1987, Federal District Court ruling that the closure statute was unconstitutional. Therefore, the preliminary examination did not occur until August 25, 1987. The State filed an information in District Court on September 1, 1987 and trial was set for October 27, 1987. Defendant asserted his right to a speedy trial at an October 2, 1987 omnibus hearing. Wombolt formally moved the court for dismissal of the action on October 5, 1987 and argued that he had previously made five unsuccessful attempts to have his bail reduced. The court entered it order of dismissal on October 23, 1987. As the District Court noted, Wombolt would have commenced his 214th day of incarceration on October 27, 1987, the scheduled date of trial.

The law in this area is clear. Our most recent statement was in State v. Waters (Mont. 1987), [228 Mont. 490,] 743 P.2d 617, 619, 44 St.Rep. 1705, 1707-1708:

“Any person accused of a crime is guaranteed the right to a speedy trial by the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution. The right to a speedy trial is fundamental. It attaches when a defendant is accused of a crime, State v. Ackley (1982), 201 Mont. 252, 255, 653 P.2d 851, 853, but the nature of the right precludes establishing a time period cast in stone as determinative.
“The right of a speedy trial is necessarily relative. It is consistent with delays and depends on circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.
“Beavers v. Haubert (1905), 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed.2d 950, 954. Thus, any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case.
“Consistent with the amorphous quality of the right, the United States Supreme Court established a four-pronged balancing test to determine speedy trial claims in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. This Court has adopted the Barker test as stated in State ex rel. Briceno v. District Court (1977) , 173 Mont. 516, 518, 568 P.2d 162, 163-4:
“These cases involve a sensitive balancing of four factors, in which the conduct of the prosecution and defendant are weighed in determining whether there has been a denial of the right to a speedy trial. The four factors to be evaluated and balanced are:
“1) Length of delay;
“2) Reason for delay;
“3) Assertion of the right by defendant; and
“4) Prejudice.
“No single factor is determinative. Each facet of the analysis is weighed in light of the surrounding facts and circumstances.”

In speedy trial analysis, the length of delay acts as a “triggering” mechanism and the other above enunciated factors need not be examined unless presumptive prejudicial delay is present. State v. Harvey (1979), 184 Mont. 423, 433, 603 P.2d 661, 667. The State argued only 56 days expired between the filing of the information and the trial date. The District Court properly dispelled this claim stating the right to speedy trial attaches at arrest or the filing of the complaint in justice court. State v. Larson (Mont. 1981), [__ Mont __,] 623 P.2d 954, 957, 38 St.Rep. 213, 215. The delay in this case would have been 214 days. It is indisputable that this length of time is sufficient to trigger a speedy trial examination. State v. Palmer (Mont. 1986), [223 Mont. 25,] 723 P.2d 956, 43 St.Rep. 1503 (256 days); State v. Chavez (Mont. 1984), [213 Mont. 434,] 691 P.2d 1365, 41 St. Rep. 2219 (214 days); State v. Ackley (1982), 201 Mont. 252, 653 P.2d 851 (257 days); State v. Cassidy (1978) , 176 Mont. 385, 578 P.2d 735 (246 days).

This delay gives rise to a rebuttable presumption of prejudice. The State therefore, in order to rebut this presumption, has an affirmative duty to come forward with evidence showing Wombolt was not prejudiced by the delay and show there was a reasonable excuse. Waters, 743 P.2d at 619.

The State’s burden was not met in this case to rebut the presumption of prejudice. This length, 214 days, leads us to the second Barker factor, reason for delay. The State claimed the delay was “institutional” and therefore not chargeable to the State. “Although institutional delay weighs less heavily against the State, it is the policy of this Court to gradually reduce our tolerance for this excuse . . .” Chavez, supra, 691 P.2d at 1370. Nevertheless, institutional delay still must be considered by this Court: “[d]elay inherent in the system . . . chargeable to the State.” Ackley, supra, 201 Mont. at 256, 653 P.2d at 853-854; citing, State v. Harvey (1979), 184 Mont. 423, 434, 603 P.2d 661, 667. As the District Court appropriately pointed out, the institutional delay in this case was caused by the “Gazette suit, and the State’s inaction in the face of that suit.”

Here, the State had the alternative to proceed with the filing of the information in the District Court. State ex rel. Brackman v. District Court (1977), 172 Mont. 24, 28, 560 P.2d 523, 526. Although the State properly asserts that it has the power to choose the method of commencement of prosecution, the District Court appropriately pointed out “concomitant with this discretion, however, is the duty to bring the accused to trial.” Citing, Larson, supra, 623 P.2d 954. Here, the State held Wombolt in custody without proceeding with the motion for leave to file an information. Therefore, although institutional, the delay was still chargeable to the State. The State has the responsibility to bring the accused to trial, it is not the duty of the accused to bring himself to trial. This responsibility was clearly not met. Larson, supra, 623 P.2d at 958.

The third factor involved in this analysis is Wombolt’s assertion of the right. Wombolt properly asserted this right prior to trial at the omnibus hearing, October 2, 1987. This factor is met when the denial of speedy trial is put before the court prior to the commencement of trial. Waters, supra, 743 P.2d at 620; State v. Steward (1975), 168 Mont. 385, 390, 543 P.2d 178, 182.

The final factor involved requires an analysis of whether the defendant was prejudiced.

“Prejudice is determined by examining the defendant’s interest in a speedy trial. These interests are: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and, (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.”

Waters, supra, 743 P.2d at 620. Here, a review of the District Court’s order of October 23, 1987, disposes of any argument the State can present in regard to the prejudice Wombolt suffered:

“The State does not address the first interest, the prevention of oppressive incarceration. The Supreme Court discussed the prejudicial effect of incarceration in Barker:
“ ‘We have discussed previously the societal disadvantages of lengthy pretrial incarceration, but obviously the disadvantages for the accused who cannot obtain his release are even more serious. The time spent in jail awaiting trial has a detrimental impact on the individual. It often means the loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious * * * ’
92 S.Ct. at 2193. The State has failed to demonstrate that Defendant’s incarceration was not oppressive.
“The State does not address the second interest, the minimization of anxiety. In State v. Britton, [213] Mont. [155], 689 P.2d 1256, 41 St.Rep. 2018 (1984), the Montana Supreme Court held that a criminal Defendant’s anxiety over a ‘potential loss of liberty because of a criminal conviction’ was significant. 41 St.Rep. at 2022. There, Defendant was released on his own recognizance after his first appearance in Justice Court. The criminal charges against him were pending for over a year before he was brought to trial. Id. It cannot be conscientiously argued that the degree of anxiety and concern experienced by Britton regarding his potential loss of liberty in any way outweighs Defendant Wombolt’s anxiety and concern caused by his actual loss of liberty.
“The Court must next consider whether the accused defense has been impaired by the delay. As noted above, oppressive incarceration hinders the preparation of a defense. Barker, supra. Further, witnesses may die, suffer memory lapses, and physical evidence may vanish. State v. Larson, 623 P.2d at 959. The Defendant is not required to affirmatively prove prejudice; the State must come forward with some evidence that outweighs the presumption of prejudice. Chavez, 41 St.Rep. at 2223. Here, the State asserts only that the witnesses ‘are still alive, present and able to testify’. Such a statement, without more, is insufficient to carry the State’s burden. Thus, the State fails to show that Defendant was not prejudiced by the delay.”

The State argues on this appeal that Wombolt admitted he could not prove prejudice and therefore the State should be entitled to the advantage of this. admission as part of its burden to overcome prejudice. However, from the above recitation of the District Court’s ruling, it is clear that the State alleges only that witnesses “are still alive, present and able to testify.” This argument pales in light of Wombolt’s incarceration of over 200 days.

Upon consideration of the Barker factors and the circumstances of this case, we have no alternative than to determine that there was excessive delay on the part of the prosecution with no justification. Wombolt timely asserted his right to a speedy trial.

The judgment of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, SHEEHY, HUNT and McDONOUGH concur.


author: MR. JUSTICE SHEEHY

text:
    STATE OF MONTANA EX REL. MONTANANS FOR THE PRESERVATION OF CITIZENS’ RIGHTS; the Montana State AFL-CIO; the Women’s Law Caucus; Tyndall Cox; Gary Henricks and Pam McClain, individually and as next friend of her minor daughther, Felicia McClain; and the Montana Trial Lawyers Association, Plaintiffs and Relators, v. JIM WALTERMIRE, Secretary of State of the State of Montana; Gerald Wine, Election Administrator and Clerk and Recorder of Gallatin County, Montana, individually and as representative of the Class of All Election Administrators and Clerk and Recorders of the State of Montana; and the State of Montana, Defendants and Respondents.
    No. 88-168.
    Submitted April 19, 1988.
    Decided April 21, 1988.
    757 P.2d 746.

      James H. Goetz and William L. Madden, Jr., Goetz, Madden and Dunn, P.C., Bozeman, for plaintiffs and relators.
    Gregory L. Curtis, Chief Legal Counsel, Office of the Secretary of State, Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Walter S. Murfitt, Sp. Asst. Atty. Gen., Luxan and Murfitt, Helena, A. Michael Salvagni, Gallatin Co. Atty., Bozeman, for defendants and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion and Order of the Court.

Based principally on the language of the state constitution itself, we determine in this original proceedings that proposed amendments to the state constitution through ballot Initiatives CI-30 and CI-27 would now be improper; and that state election officials charged with duties relating to further dissemination or publication of information relating to such initiatives, computing election results thereon, or canvassing and certifying the results thereof should be enjoined from so proceeding.

In the interim between the filing of the application in this proceedings and this writing, Secretary of State Jim Waltermire met an untimely death in a disastrous air accident. The members of this Court joined in the general outpouring of shock and grief at his death, and in the deep-felt expressions of sympathy and condolence to his aggrieved widow. We emphasize that by nothing here stated do we slight in the smallest degree his devotion to his public duty, nor his perception of those public duties.

The office of Secretary of State was being administered by the acting Secretary of State, and a successor Secretary to the late Mr. Waltermire has now been appointed. In usual circumstances, we could, out of decent respect, await the decision of the new Secretary to determine his stance in this matter before deciding the issues. Exigencies of time and expense compel us, however, to proceed quickly to a disposition of the cause.

Constitutional Initiative 30 (CI-30) has been the subject of earlier original proceedings before this Court. State of Montana ex rel. Montana Citizens for the Preservation of Citizens’ Rights, et al. v. Jim Waltermire, et al., (Mont. 1986), [224 Mont. 273,] 729 P.2d 1283, 43 St.Rep. 2192; State ex rel. Montana Citizens for the Preservation of Citizens’ Rights, et al. v. Jim Waltermire, et al., Opinion and Order on Reconsideration (Mont. 1987), [227 Mont. 85,] 738 P.2d 1255, 44 St.Rep. 913. A more detailed explanation of the language of CI-30 and the issues involved therein may be obtained from those volumes. It is enough to say here that CI-30 would amend Art. II, Section 16 of the Montana Constitution.

Following the state general election of November 4, 1986 and canvass by the Board of State Canvassers, CI-30 was certified as having amended by initiative through passage by the electorate Art. II, Section 16 of the state constitution. That certification of the initiative, and the election thereon, was voided by this Court on two principal grounds: (1) that an error had been made in the voter information pamphlet describing CI-30; and, (2) that the proposed amendment had not been published prior to the election as required by law. 738 P.2d at 1258, 1262.

On September 15, 1987, Gary S. Marbut, a registered elector of Montana, and the Secretary of State filed a joint affidavit entitled, “Submission of Controversy Without Action” in the District Court, Fourth Judicial District, Missoula County (Cause No. 67691). The District Court made findings of fact and conclusions of law dated November 6, 1987 refusing to order a further election on CI-30, and holding that the issues presented had been decided by this Court. See, 738 P.2d at 1271-1272. No appeal was taken from the order of the Missoula County District Court in cause No. 67691.

We must now refer to CI-27. The applicants in this case have not sought any relief relating to CI-27. We must examine the purpose and history of CI-27, however, because it is pertinent to this proceeding.

CI-27 was a proposed constitutional initiative amendment which would add a new section to Article VIII of the state constitution to be designated as Section 15. The proposal would have provided that “no tax shall be imposed on any real or personal property. The establishment of a sales tax, or the increase in sales tax or personal income tax shall be accomplished only by referendum of the legislature with the approval of the majority of the qualified electors or initiative of the people.”

CI-27 was attacked for its constitutionality in State of Montana ex rel. Montana School Board Association, et al. v. Jim Waltermire, Secretary of State, et al., (Mont. 1986), [224 Mont. 296,] 729 P.2d 1297, 43 St.Rep. 2198. This Court declined in that proceeding to consider the constitutionality of CI-27 and dismissed the action of the relators without prejudice. At the state general election of November 4, 1986, CI-27 was defeated by the electorate.

A separate action was later filed in the District Court of the Fourth Judicial District, Missoula County, before a different district judge, relating to CI-27. The complainants were Emery M. Benson, Robert E. Godwin, Gary S. Marbut, et al., Freemen, v. “Montanans against CI-27” ex rel. Montana Association of Counties, Gordon Morris, et al., cause No. 65743. In their complaint, the complainants alleged that their constitutional rights regarding CI-27 had been violated because of the alleged faulty publication of the proposed initiative before the election. The Secretary of State was joined as a defendant in the action through an amendment to the original complaint. The District Court granted a summary judgment based on our decision in the CI-30 case. The District Court held that because of the lack of proper publication of CI-27, the result of the election on CI-27 was void. In effect, the District Court said that by voiding the election on CI-27, that initiative had neither passed nor failed at the election, and that a certified version of the initiative had never been submitted properly for a vote. The District Court refused, though requested to do so, to order a new election on CI-27, pursuant to Section 13-35-107, MCA, holding instead that the constitutional provision of Article XIV, Section 9, specifically required publication of the proposed amendment prior to the next “regular statewide election” and “at that election, the proposed amendment shall be submitted to the qualified electors for approval or rejection.” The District Court then went on to hold as a conclusion of law that because CI-27 had not been published as required by law, the matter had not been expressly submitted as required by the state constitution and that it was the duty of the Secretary to publish the proposed constitutional amendment and submit it to the electorate at the next general election. Upon a subsequent motion to clarify the judgment, the District Court held that this could be either a general or a primary election.

The effect of the District Court’s decision required also a summary judgment in favor of the other defendants in the cause, who, it had been alleged, were guilty of unfair election practices relating to CI-27. The holding of the court was that since the election itself was void, their activities respecting CI-27 could have no effect. Again, no appeal was taken from the decision of the District Court.

Acting on the District Court’s opinion that the Secretary of State had a duty to resubmit CI-27 at the next statewide election, the Secretary informed the various clerks and recorders of the Montana counties that he intended to place both CI-30 and CI-27 as proposed constitutional initiatives for decision on the Montana primary election ballot to be conducted on June 7, 1988. Since that announcement, the Secretary has taken such statutory steps as are required by law to place such initiatives on the primary election ballot, including necessary certifications, preparation of ballots and publications in various newspapers. Moreover, such additional steps will be taken by the office of the Secretary of State as may be necessary to present the initiatives to the electorate on primary election day. We are advised by the affidavit of the acting Secretary of State that voter information pamphlets are now being prepared and will be printed unless the election thereon is ordered stopped. Unless contracts for the printing of the voter information pamphlets are canceled on or before April 22, 1988, printing costs will be unavoidably incurred in the sum of $12,483.27.

There are issues and counter-issues raised by the application of the relators here, and by the responses thereto from the defendants. The single determinative issue before us, however, may be stated thusly:

Must a constitutional initiative, once approved or defeated at a regular statewide election, be resubmitted to the electorate at the next regular statewide election, where procedural defects of constitutional proportion, caused the first election result thereon to be voided?

If the answer to the foregoing question is “yes,” then, of course, the Secretary of State, as the state supervisor of elections and election officials has the duty to resubmit the initiative. If the answer is “no,” then there is no corresponding duty incumbent upon the Secretary.

The answer, we think, lies in the language of the state constitution itself, which permits constitutional amendments by initiative. Article XIV, Section 9, provides:

“Section 9. Amendment by Initiative.
(1) The people may also propose constitutional amendments by initiative. Petitions including the full text of the proposed amendment shall be signed by at least 10 percent of the qualified electors of the state. That number shall include at least ten percent of the qualified electors in each of two-fifths of the legislative districts.
“(2) The petitions shall be filed with the secretary of state. If the petitions are found to have been signed by the required number of electors, the secretary of state shall cause the amendment to be published as provided by law twice each month for two months previous to the next regular statewide election.
“(3) At that election, the proposed amendment shall be submitted to the qualified electors for approval or rejection. If approved by a majority voting thereon, it shall be a part of the constitution effective on the first day of July following its approval, unless the amendment provides otherwise.” (Emphasis added.)

We know that in this case, the petitions relating to CI-30 were filed in the office of the Secretary of State in 1986. On July 30, 1986, the Attorney General certified CI-30 to the Governor as a proposed constitutional initiative amendment. Before that time, the Secretary of State had certified to the Governor that the completed petitions for CI-30 had been officially filed in his office. Under Subdivision (2) of Section 9, Article XIV, supra, the amendment was required to be published twice each month for two months previous to the next regular statewide election. The “next regular statewide election” in the case of CI-30, could only be the general election of November 4, 1986, which followed the filing of the petitions with the Secretary of State. Further, under subdivision (3) of Section 9, Article XIV, supra, it is “at that election [that] the proposed amendment shall be submitted to the qualified electors for approval or rejection.” If we were to construe Section 9, Article XIV, supra, to permit the resubmission of constitutional initiatives to the electorate “at succeeding elections,” we would be inserting in the constitutional provision language not otherwise to be found there. No court in this state has such power.

Undoubtedly, the proponents of CI-30, in circulating and obtaining the petitions which led to the certification of the proposed amendment for the ballot, so construed the constitution. The petitions proposed “that the Secretary of State place the following constitutional amendment on the November 4, 1986 general election ballot.” The signers of the petition themselves petitioned that the initiative be placed on the November 4, 1986, ballot and not at any other time.

In so holding, we are fully mindful that the people of this state in adopting the 1972 state constitution reserved unto themselves the exclusive right of governing themselves, and to alter or abolish the constitution whenever they deemed it necessary. (Article II, Section 2, 1972 Mont. Const.) We are concernedly aware of our judicial duty to preserve this right where possible. As the majority stated in State ex rel. Montana Citizens v. Waltermire, supra, 729 P.2d at 1285:

“The right retained by the people of Montana to change our constitution by initiative is unique. The people do not have such a right under the federal Constitution nor under many state constitutions. In Montana this right of constitutional change by initiative was first inserted in the 1972 constitution. As we stated in our opinion in State ex rel. Montana School Board Association v. Waltermire (1986), [224] Mont. [296], 729 P.2d 1297, we should decline to interfere with this right of constitutional change by initiative unless it appears to be absolutely essential.” (Emphasis added.)

Essentiality is found when the constitution itself dictates the manner in which it may be amended. Constitutional provisions for amendment of their own force must be complied with:

“. . . Although the people of this State have retained the exclusive right of governing themselves, and the right to alter or abolish the constitution or form a government whenever they deem it necessary (Article II, Section 2), it is nonetheless true that as long as the State Constitution is in effect, the people may amend the constitution by initiative only in the manner provided by the constitution. ‘The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed.’ Hunter v. Erickson (1969), 393 U.S. 385, 392, 89 S.Ct. 557, 561, 21 L.Ed.2d 616.”

State ex rel. Montana Citizens v. Waltermire, supra, 738 P.2d at 1258.

Grammatically, logically and legally, under our state constitution, constitutional amendment initiatives must be voted upon at the next regular statewide election following the filing of the petitions in the office of the Secretary of State. While the legislature may, as in this case, flesh out constitutional provisions by legislation implementing the constitutional requirements (as for example, the procedures for procuring signatures to petitions, the forms of petitions, the filing and certification of the same) such legislation must be in aid of, and not in conflict with the constitutionally provided procedures.

Under our holding here, it is not possible, as the defendants suggest, that the purposeful or negligent or capricious acts of state or county officials or other persons could in effect hold an initiative proposal “hostage” by some action or inaction. One may envision other omissions, defects or acts in the election or petition process but unless they run afoul of specific constitutional requirements, they would be short of constitutional weight.

Because a resubmission of CI-30 to the electorate cannot be accomplished in a manner prescribed by Article XIV, Section 9, the Secretary of State has no duty to place the same on the upcoming primary ballot, and in fact is precluded from doing the same. Such injunctive orders as are necessary to preclude the resubmission of CI-30 at the next state primary election must necessarily issue here. Since our holding here is dispositive of the central issue, there is no need for us to discuss or dispose of other issues raised by the parties in this cause, except for the request of the plaintiffs for indemnification to the State by the Secretary of sums spent in connection with the resubmission of CI-30.

It is clear that the Secretary acted in proposing to resubmit CI-30 in accordance with the decision of the District Court in Missoula County in the litigation pertaining to CI-27. There, the District Court saw such a duty incumbent upon the Secretary of State, although it was not within the power of the District Court to set a special election. The Secretary contended here that since we had decided we had no such inherent power to order a special election (738 P.2d at 1272) and the District Court had decided it had no such power, the Secretary himself had a duty as executive officer to go forward with the initiative. It is clear that the Secretary acted for plausible and straightforward reasons. Although our holding here is adverse to what he proposed to do, there is no reason here to impose monetary sanctions upon the Secretary.

In all the foregoing discussion, we have concerned ourselves with the issue of placing initiative CI-30 for resubmission on the ballot. We do not have before us an issue raised by the parties relating to CI-27, although the resubmission of CI-27 on the next statewide primary election is inextricably intertwined with the issues relating to the resubmission of CI-30. It would be judicially unreasonable, we conclude, to allow CI-27 to remain on the primary election ballot, knowing as we do with all possible certainty, that if an opponent of CI-27 came to this Court seeking injunctive relief, that relief would likewise be granted. The Secretary’s successor has advised in his response and briefs to this Court in this proceeding that he will be governed as to CI-27 in the same manner as we decide the issues relating to CI-30. To assure the Secretary of our agreement in that regard, our injunctive orders in this case will and do prevent the resubmission of CI-27. That is simply judicial economy.

We remind all parties, proponents and opponents of the proposed constitutional amendments by initiative that nothing herein stated prevents the recirculation of initiative petitions pertaining to the same subjects in the manner provided by the state constitution and the laws in conformance therewith.

Gerald Wine, Election Administrator and Clerk and Recorder of Gallatin County, Montana, has moved this Court for an order dismissing the application insofar as it names him as the representative of the class of all election administrators and clerks and recorders of the State of Montana. His motion for dismissal will be granted as there is no need here to establish such a class in order to effectuate this Opinion.

WHEREFORE, HAVING CONSIDERED the complaint of the plaintiffs herein, the response of the Secretary of State thereto, the motion of respondent Gerald Wine and the response of the Attorney General of the State of Montana, and the memoranda and exhibits submitted by respective parties in connection therewith, and finding expeditious action necessary in the premises,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

1. The motion of Gerald Wine, Election Administrator and Clerk and Recorder of Gallatin County, Montana, for his dismissal from this action as a defendant/respondent be and the same is GRANTED.

2. A constitutional initiative once approved or defeated at a regular statewide election may not properly be resubmitted to the electorate at the next regular statewide election, where certain procedural defects of constitutional proportion have caused the first election result thereon to be voided.

3. It is meet and proper in the premises that this Court accept original jurisdiction of these proceedings in view of the exigencies of time and expense to the State of Montana in connection with the proposed resubmission of Initiatives CI-27 and CI-30. The Secretary of State of Montana, his incumbent successor or successors to his present term of office, his agents and employees are hereby mandatorily enjoined, restrained and prevented from taking, directly or indirectly, any further steps, actions or proceedings not heretofore already taken which are designed or intended to place on the election ballot, through local election officials or otherwise, Constitutional Initiative 30 (CI-30) and Constitutional Initiative 27 (CI-27) at the state primary election which will be held on June 7, 1988; that they and each of them are further enjoined, restrained and prevented from distributing to local election administrators or through them to voters, the voter information pamphlet which includes either CI-30 or CI-27 or to pay state monies for the preparation, printing or distribution of such voter information pamphlets relating to those initiatives, except for those expenses for which the State is now contractually bound to pay; that the Secretary of State, his incumbent successor or successors and their agents and employees are encouraged, but not mandatorily enjoined, to take such further actions as may have the effect of removing from said primary election ballot any reference to initiatives CI-30 or CI-27; or, if that is not possible, to take such steps as may seem reasonably calculated to relieve any confusion of the electorate respecting said initiatives, including the incurring of reasonable expenses to that end; that if the actions heretofore taken by the Secretary are irrevocable, and the ballots presented to the electorate at said June 7, 1988 primary election contain provision for the vote of the electorate on either CI-30 or CI-27, the Secretary of State, his incumbent successor or successors, their agents and employees, are each hereby mandatorily enjoined, restrained and prevented from calculating or computing any election results as to passage or nonpassage by the electorate of either CI-30 or CI-27, and from certifying the same results in any manner, and from canvassing any election results relating to said initiatives and from certifying to any other state official the passage or nonpassage of said initiatives.

4. The prayer for monetary sanctions or indemnification from the Secretary of State is hereby DENIED.

5. No costs to either party.

6. This Opinion and Order when signed by the majority of the members of this Court and filed in the office of the Clerk of this Court shall be and constitute and serve the office of a judgment and mandatory injunctive order, without the necessity of further judgment, orders or writs issued by this Court. The Clerk of this Court shall forthwith serve certified copies of this Opinion and Order on counsel of record for each and all of the parties appearing herein by telephonic communication and by ordinary mail and this Opinion and Order shall be in full force and effect as to each party herein from and after the receipt by his or her respective counsel of record of such telephonic communication or service by mail. The Clerk of this Court shall make and file in this cause her written certificate showing the manner, time, date and names of each counsel or firm served by her in accordance with this Order.

DATED this 21st day of April, 1988.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, HUNT and McDONOUGH concur.

MR. JUSTICE GULBRANDSON did not participate in this case.