author: JUSTICE LEAPHART

text:
    BLAZE CONSTRUCTION, INC., Plaintiff and Appellant, v. GLACIER ELECTRIC COOPERATIVE, INC., Defendant and Respondent.
    No. 96-326.
    Submitted on Briefs November 14, 1996.
    Decided November 26, 1996.
    53 St.Rep. 1274.
    280 Mont. 7.
    928 P.2d 224.

      See C.J.S. Indians § 18.
    For Appellant: Robert G. Olson; Frisbee, Moore & Olson, Cut Bank.
    For Respondent: Larry Epstein; Werner, Epstein & Johnson, Cut Bank.
    For Amicus: Kathleen Fleury, Blackfeet Legal Department, Browning (for Blackfeet Tribe); Jeanne S. Whiteing; Whiteing & Smith, Boulder Colorado (for Blackfeet Tribe).
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Appellant, Blaze Construction (Blaze) filed suit against Glacier Electric Cooperative (Glacier) alleging breach of contract for the failure to pay Blaze the sum of $36,000 on a contract concerning the construction of 24 homes on the Blackfeet Reservation. Glacier moved to dismiss for failure to join an indispensable party and for lack of jurisdiction of the parties. The Blackfeet Tribe, which is litigating breach of contract and recoupment claims against Blaze in federal district court, moved to intervene for the purpose of contesting jurisdiction. The District Court granted Glacier’s motion to dismiss for failure to join the Blackfeet Tribe as an indispensable party. Blaze appeals from the order of dismissal. We affirm.

Background

Blaze is a corporation existing under the laws of the Blackfeet Tribe and authorized to do business in the State of Montana. Glacier is a rural electric cooperative with its principal office in Cut Bank, Montana.

In conjunction with the Bonneville Power Administration, Glacier administers a conservation incentive program known as Super Good Cents. Under this program, homes built to meet certain energy conservation specifications qualify the builder or the owner to a payment of reimbursement for additional weatherization costs of up to $1,500 per home. Depending upon the circumstances and the agreement between the parties, Glacier has in the past made these payments to the owner of a new home, or, in the alternative, to the builder. Usually, the builder or contractor and the owner of the residence reach agreement whereby the owner receives some form of credit for the Super Good Cents expense incurred by the builder in new construction.

In June of 1994, Blaze contracted with Glacier to construct 25 homes in conformance with Super Goods Cents standards. All the homes constructed pursuant to this contract were constructed on the Blackfeet Reservation and are owned by the Tribe. Glacier and Blaze are the only signatories to this contract. Both Blaze, as the builder, and the Tribe as the owner, of 24 of the 25 certified new homes, claim reimbursement of the funds due under the incentive program.

Glacier does not dispute that Blaze completed its obligation to build the homes nor does it dispute that it has not paid incentive money to Blaze. Rather, Glacier moved to dismiss the suit arguing that, since the Tribe had made a demand upon Glacier for the incentive monies, the Tribe, as the owner of the homes, was an indispensable party to the litigation. The Tribe moved to intervene for the sole purpose of having the matter dismissed for lack of jurisdiction over the Tribe. Blaze concedes that if the Tribe is an indispensable party, the complaint has to be dismissed since the court has no jurisdiction over the Tribe. Blaze contends that the Tribe is not an indispensable party since the Tribe was not a party to the Blaze/Glacier contract. Blaze argues that only those entities which are in privity can be considered indispensable.

Discussion

In considering a motion to dismiss on the ground that an indispensable party is absent, “the court is given discretion to determine whether the action will proceed or will be dismissed.” Mohl v. Johnson (1996), 275 Mont. 167,169,911P.2d217,219.Inreviewing such discretionary rulings we apply an “abuse of discretion standard.” Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121,125.

Resolution of this appeal hinges upon application of Rule 19, M.R.Civ.P, which states:

Rule 19(a). Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and j oinder of that party would render the venue of the action improper, that party shall be dismissed from the action.
Rule 19(b). Determination by court of whenever joinder not feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

In interpreting Rule 19, this Court has held that, in the interests of judicial economy, all parties claiming an interest in the subject of the suit should be joined. Dagel v. City of Great Falls (1991), 250 Mont. 224, 239, 819 P.2d 186, 195.

Under Rule 19, M.R.Civ.P., a court must first determine under Rule 19(a) whether the absent party is necessary to the action, that is, whether complete relief can be accorded without the absent party’s participation and, second, if the absent party is necessary but joinder is not possible, whether the absent party is indispensable under Rule 19(b), that is, whether in “equity and good conscience the action should proceed ... or should be dismissed. ...” Mohl, 911 P.2d at 219.

Blaze relies on our decision in Gambles v. Perdue (1977), 175 Mont. 112, 572 P.2d 1241, for its argument that a person who is not a party to a contract is not an indispensable party to a suit involving that contract. In Gambles, a retail carpeting store sued John Perdue on contracts covering the purchase and installation of carpeting in Perdue’s residence. After the installation of the carpeting, Perdue’s wife obtained a divorce in which she was awarded the residence in question and was made solely responsible for all indebtedness on the property. Gambles, 572 P.2d at 1242. In response to Gambles’ complaint, John Perdue contended that all proper parties were not before the court; that his ex-wife was responsible because she had been awarded the property in the divorce proceeding. Gambles, 572 P.2d at 1243. The court entered judgment for him on that basis. Gambles appealed. We vacated the dismissal for the reason that a contracting obligee cannot be deprived of recourse against the contracting obligor (John Perdue) by a substitution of debtors without the obligee’s, (Gambles) consent. Thus John Perdue remained liable on his contract despite the provisions of the divorce decree. We held that Anna, John’s ex-wife, was not a proper party because she was not a party to the contract. Gambles, 572 P.2d at 1243. Gambles is clearly distinguishable from the present case. Gambles did not involve an interpretation of Rule 19. Further, the present case does not involve a substitution of an obligee. Rather, it involves a question of whether the obligor (Glacier) may, in the absence of joinder, be subject to multiple obligations.

In the present case, the District Court noted that Blaze conceded that proceeding to judgment in state court without the Tribe as a party will most likely subject Glacier to further litigation with the Tribe over the same monies in another forum. Rule 19(a), M.R.Civ.P, specifically requires joinder of persons who claim an interest in the action and whose absence may “leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations ....” We agree with the court’s conclusion that, given the Tribe’s claimed interest, Glacier is in substantial risk of incurring multiple and inconsistent obligations. The court correctly concluded that the Tribe is a necessary party to the litigation.

Having concluded that the Tribe is a necessary party, the next inquiry is whether, “in equity and good conscience” the matter should proceed without the Tribe or should be dismissed, the Tribe being thus regarded as indispensable. Rule 19(b), M.R.Civ.P. In making this determination, the court is directed to consider the following factors:

1. To what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties;
2. The extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;
3. Whether a judgment rendered in the person’s absence -will be adequate;
4. Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

Rule 19(b), M.R.Civ.P.

Blaze contends that if this matter is dismissed, for failure to join the Tribe, Blaze will be denied the right to proceed in a state court forum. In this regard, we note that, although Blaze filed three briefs in this appeal and surprisingly did not rely on State ex rel. Drum v. District Court (1976), 169 Mont. 494, 548 P.2d 1377, the holding in Drum merits some discussion. Drum involved a suit against David Drum by First National Bank to collect on promissory notes. Drum moved to dismiss on the ground that the suit was not prosecuted in the name of the real party in interest and for failure to join an indispensable party plaintiff, i.e., Chase Manhattan Bank of New York; an entity which could not be sued in the courts of Montana under 12 U.S.C. § 94. Drum, 548 P.2d at 1379. In refusing to issue a writ of supervisory control to dismiss for nonjoinder, we noted that dismissal would leave First National with no remedy in the courts of its own state to collect the money it loaned to the Drums. Drum, 548 P.2d at 1382.

Although it would appear that this same concern for a state court forum would militate against dismissing Blaze’s suit for nonjoinder of the Tribe, there are a number of aspects of the present suit which distinguish it from the Drum matter. Drum sought to dismiss for nonjoinder of Chase Manhattan. Chase’s only tie to the transaction was that it had a participation agreement with First National. Chase’s absence from the litigation would not impair its ability to enforce its participation agreement with First National. Furthermore, judgment in the case would not have subjected Drum to the risk of multiple or otherwise inconsistent obligations since Drum’s rights and liabilities would be finally concluded in the context of the Drum/First National Bank promissory note agreements. We noted that it was no concern of Drum what First National did with the proceeds of the repaid loan. Drum, 548 P.2d at 1381. In contrast, Glacier’s rights and obligations with regard to the incentive monies will not be finally concluded in the context of the Glacier/Blaze contract. Rather, in the absence of joinder of the Tribe, Glacier will be at risk of multiple and inconsistent obligations.

Recognizing that it did not have any jurisdiction over the Tribe, the District Court concluded that it would be unable to fashion any meaningful relief which would address the claims of the Tribe and avoid the risk of further litigation to Glacier. Furthermore, the court recognized that there are two other forums, the Tribal Court and the United States District Court, which have jurisdiction over all three entities.

We hold that the Blackfeet Tribe is a necessary party over which the District Court has no jurisdiction. Thus, the District Court did not abuse its discretion in dismissing Blaze’s claim for nonjoinder of an indispensable party. Affirmed.

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


source: Caselaw Access Project

author: JUSTICE NELSON JUSTICE LEAPHART,

license: Public Domain

text:
    JEAN WENTZ, Plaintiff and Respondent, vs. MONTANA POWER COMPANY, NORTH AMERICAN ENERGY SERVICES, ROSEBUD COUNTY, COLSTRIP MEDICAL CLINIC, WILLIAM C. ANDERSON, M.D., CAROL LANDS, P.A. AND JOHN DOE I through JOHN DOE IV, Defendants and Appellants.
    No. 96-334.
    Submitted on Briefs November 14, 1996.
    Decided November 26, 1996.
    53 St.Rep. 1277.
    280 Mont. 14.
    928 P.2d 224.

      See C.J.S. Venue § 70.
    For Appellant: Thomas M. Monaghan, Lucas & Monaghan, Miles City (Dr. Anderson); Steven J. Harman, Tiffany B. Lonnevik, Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings (Colstrip Medical Clinic & Carol Lands); James D. Walen, Stacey & Walen, Billings (Rosebud County).
    For Respondent: L. Randall Bishop, Jarussi & Bishop, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from an order of the Thirteenth Judicial District Court, Yellowstone County, denying motions for change of venue filed by certain of the defendants. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 3, 1995, Jean Wentz (Jean), plaintiff in the underlying action, filed her complaint in the Thirteenth Judicial District Court, Yellowstone County, alleging that on April 15, 1992, Gerald Wentz (Gerald) suffered a heart attack while on the job performing a welding test for North American Energy Services on the premises of Montana Power Company.

According to Jean’s complaint, Gerald was initially transported to the Colstrip Clinic (the Clinic) for treatment. She alleges that he was then transferred from the Clinic back into the Rosebud County EMS ambulance for transportation to Rosebud County Hospital in Forsyth for treatment that was unavailable at the Clinic. That trip was aborted, however, because of Gerald’s deteriorating condition, and he was returned to the Clinic.

Jean states that St. Vincent Hospital and Health Center in Billings, Yellowstone County, Montana (St. Vincent) was then contacted, and that its HELP helicopter was dispatched to the Clinic. Gerald was treated by the St. Vincent’s flight team, but was pronounced dead shortly after his arrival at St. Vincent. Jean alleges that negligent medical treatment by the Clinic and defendants Rosebud County, William C. Anderson, M.D. (Dr. Anderson) and Carol Lands, P.A. (Lands) reduced Gerald’s chances for survival and caused his death on April 15,1992.

Jean’s complaint, filed in one count, claims damages of the type recoverable in a survivorship cause of action under § 27-1-501, MCA, and in a wrongful death action under § 27-1-513, MCA.

Dr. Anderson and Lands are residents of Rosebud County; the Clinic is located in Rosebud County; and Rosebud County operated the EMS ambulance that transported Gerald to, from and then back to the Clinic. Those defendants filed motions requesting that venue be changed to Rosebud County arguing that Yellowstone County was not a proper place for the trial of Jean’s suit. The District Court ruled that Jean had filed her complaint in a proper county and denied defendants’ motions. This appeal followed.

DISCUSSION

While each of the appellants and Jean frame the questions to be resolved in this appeal somewhat differently, the basic issue is whether the District Court erred in denying the requested change of venue on the facts of this case.

Whether a county is a proper place for trial is a question of law involving the application of the venue statutes to pleaded facts. State v. Pegasus Gold Corp. (1995), 270 Mont. 32, 35, 889 P.2d 1197, 1199 (citing Minervino v. University of Montana (1993), 258 Mont. 493, 497, 853 P.2d 1242, 1245). Thus, our review of the trial court’s grant or denial of a motion for change of venue is plenary; we simply determine whether the court’s ruling was legally correct. Pegasus, 889 P.2d at 1199 (citing Carter v. Nye (1994), 266 Mont. 226, 228, 879 P.2d 729, 730). See also Gabriel v. School Dist. No. 4, Libby (1994), 264 Mont. 177, 179, 870 P.2d 1351, 1352; Emery v. Federated Foods, Inc. (1993), 262 Mont. 83, 87, 863 P.2d 426, 429.

In the instant case, noting that § 27-1-501, MCA, requires that survivorship and wrongful death actions be combined in one legal action, the District Corut relied primarily on our decision in Gabriel in rejecting appellants’ motions.

Dr. Anderson and, by adopting his arguments, Rosebud County, the Clinic and Lands, contend that Gabriel is not dispositive of the issue in this case. They base their arguments primarily on their interpretation of §§ 25-2-122 and 25-2-126, MCA. Section 25-2-122, MCA, provides in pertinent part:

Torts. (1) Except as provided in subsection (2), the proper place of trial for a tort action is:
(a) the county in which the defendants, or any of them, reside at the commencement of the action; or
(b) the county where the tort was committed. ...

Section 25-2-126, MCA, provides in pertinent part:

(2) The proper place of trial for an action against a county is that county unless such action is brought by a county, in which case any county not a party thereto is also a proper place of trial.
(3) The proper place of trial for an action against a political subdivision is in the county in which the claim arose or in any county where the political subdivision is located.

Before addressing those arguments, however, it is necessary that we discuss our decision in Gabriel. In Gabriel, decedent was injured and his survivorship action arose in Lincoln County when he fell from a roof while working on a construction project for a school district. His resulting death, however, occurred in Flathead County where he was taken for medical treatment. Plaintiff sued the school district in Flathead County premising venue on § 25-2-126(3), MCA, (a suit against a political subdivision is proper in the county where the claim arose or where the political subdivision is located). Gabriel, 870 P.2d at 1352.

We agreed. We relied on Carroll v. W.R. Grace & Co. (1992), 252 Mont. 485,830 P.2d 1253, in concluding that since death is the critical and final element in the accrual of a wrongful death action, a wrongful death claim arises for venue purposes where the death occurs. Gabriel, 870 P.2d at 1352. Moreover, we determined that because § 27-1-501(2), MCA, requires that survivorship and wrongful death actions be combined in one legal action and that because, as to this combined action, venue would properly lie either where the survivor-ship claim or the wrongful death claim arose, plaintiff’s choice of a proper venue as to the wrongful death action — the county where death occurred — precluded a successful motion for change of venue to the county where the survivorship action arose. Gabriel, 870 P.2d at 1353 (citing Petersen v. Tucker (1987), 228 Mont. 393,396, 742 P.2d 483, 484-85). See also § 25-2-115, MCA.

Notwithstanding, on appeal, Dr. Anderson attempts to distinguish Gabriel in arguing that our decision in that case should not be followed. He contends Gabriel is of limited precedential value because that case involved a school district (a political subdivision) and a venue determination under § 25-2-126(3), MCA, which pertains to political subdivisions. Dr. Anderson maintains, that, to the contrary, no named defendant in the instant case is a “political subdivision” (we will address this contention later in this opinion). Rather, he contends (and Rosebud County agrees) that the place of trial in this case is controlled by § 25-2-126(2), MCA, which provides specifically that in an action brought against a county — here Rosebud County— venue lies in that county. Moreover, Dr. Anderson contends that, except for Rosebud County, all of the other defendants are “private citizens” and, therefore, come under the general venue statute dealing with torts, § 25-2-122, MCA, instead of § 25-2-126(3), MCA, dealing with political subdivisions.

In this regard, and while his argument is somewhat difficult to follow, it appears to be Dr. Anderson’s position that since the school district in Gabriel was a “political subdivision,” § 25-2-126(3), MCA, by its language, specifically provided for venue where the claim “arose.” However, since none of the defendants are “political subdivisions” then the County is entitled to be sued in Rosebud County under § 25-2-126(2), MCA, and all defendants are entitled to be sued in Rosebud County where the tortious acts were “committed” under § 25-2-122(l)(b), MCA. Relying on Howard v. Dooner Laboratories, Inc. (1984), 211 Mont. 312, 688 P.2d 279, Dr. Anderson contends that a tort is “committed” (as opposed to when it “arises”) where all negligent acts take place. Thus, reasons Dr. Anderson, since all the alleged negligent acts of which Jean complains took place in Rosebud County, the tort of wrongful death was “committed” there. According to Dr. Anderson, determining when the wrongful death action accrues does not address itself to the legal issue of where that tort is “committed” for purposes of analyzing a case in which the general tort venue statute applies as opposed to a venue statute that speaks in terms of where the claim “arises.”

We are not persuaded by Dr. Anderson’s argument. In fact, we rejected a similar argument in Gabriel, wherein we stated:

Nor is the School District’s reliance on Howard v. Dooner Laboratories, Inc. (1984), 211 Mont. 312, 688 P.2d 279, well placed. Howard involved application of the general tort statute providing for venue in the county where the tort “was committed” to a situation involving medical malpractice. Addressing the word “committed,” we determined that the tort occurred where the medical negligence took place. Howard, 688 P.2d at 282. Howard did not address either a post -Carroll wrongful death claim or the specific language contained in § 25-2-126, MCA.

Gabriel, 870 P.2d at 1353.

While § 25-2-126(3), MCA, and § 25-2-122(l)(b), MCA, are not consistent in the language used, the point is that the statutory cause of action for the tort of wrongful death cannot come into existence until death occurs. Carroll, 830 P.2d at 1254-55. Thus, it necessarily follows that the tort of wrongful death cannot “arise,” “accrue” or be “committed” until the critical and defining element of this claim— death — occurs. Gabriel, 870 P.2d at 1352. The location where death occurs is determinative for venue purposes of where the tort of wrongful death “arises,” “accrues” or is “committed.” In this case, it is undisputed that Gerald died in Yellowstone Comity. Accordingly, it is equally clear that the tort of wrongful death for which Jean has filed suit arose, accrued arid was committed in that County.

Likewise, we find no merit in Dr. Anderson’s and the County’s argument that § 25-2-126(2), MCA, rather than § 25-2-126(3), MCA, applies to Rosebud County. Without question, these two subparagraphs of the statute are contradictory. However, we addressed this problem over a decade ago and resolved this issue in Spencer v. Flathead County (1984), 212 Mont. 399, 687 P.2d 1390.

In Spencer the plaintiff filed an action against Flathead County and the State in Lincoln County alleging wrongful arrest and invasion of privacy in Lincoln County on a Flathead County warrant. The defendants moved to change venue to Flathead County on the basis that § 25-2-106, MCA, controlled the venue of actions brought by nongovernmental entities against counties and established venue exclusively where the county being sued is located. Spencer, 687 P.2d at 1391. Section 25-2-106, MCA, was adopted in 1877.

We noted, however, that § 2-9-312(2), MCA, adopted in 1973, established venue in actions brought by nongovernmental entities against counties in either the county where the cause of action arose or where the county being sued is located. Citing Hutchinson v. Moran (1983), 207 Mont. 330, 673 P.2d 818, we stated:

[T]he authority of a private entity to sue a county now exists solely by virtue of 1972 Mont. Const., Art. II, § 18, and the venue of such actions is determined by the more recently enacted section 2-9-312(2), MCA.
Counties are specifically included within the definition of a “political subdivision” by section 2-9-101(5), MCA.
In suits brought by private entities against counties, the new venue statute, section 2-9-312(2), MCA, supersedes the venue provision contained in section 25-2-106, MCA, and exclusively determines the venue of such actions.

Spencer, 687 P.2d at 1391-92.

In 1985, the Code Commissioner renumbered and combined various venue statutes. Section 2-9-312, MCA, became § 25-2-126, MCA, and subparagraphs (1) and (2), of the former § 2-9-312, MCA, became subparagraphs (1) and (3) of § 25-2-126, MCA, respectively. Unfortunately, § 25-2-106, MCA, became § 25-2-126(2), MCA. Thus, while it appears from the present arrangement of §§ 25-2-126(2) and (3), MCA, that the legislature intended to treat counties as something other than what they are expressly defined to be under § 2-9-101(5), MCA — i.e., political subdivisions — such a conclusion is erroneous and derives solely from legislative oversight in failing to repeal § 25-2-106, MCA, (now § 25-2-126(2), MCA) when § 2-9-312, MCA, (now § 25-2-126, MCA) was enacted and the Code Commissioner’s combining and renumbering the statutes. Section 25-2-126(2), MCA, was and remains superseded by § 25-2-126(3), MCA. Spencer, 687 P.2d at 1391-92.

Dr. Anderson’s and Rosebud County’s arguments to the contrary are without merit; Rosebud County is a political subdivision and is subject to the venue provisions of § 25-2-126(3), MCA, in the same manner that the school district was in Gabriel. Rosebud County may be sued in Yellowstone County since Jean’s claim of wrongful death against Rosebud County arose in Yellowstone County, where Gerald died.

Finally, the Clinic and Lands argue that even though § 27-1-501(2), MCA, requires that wrongful death and survivorship claims be combined for purposes of suit, each cause of action remains unique with a separate existence and with distinct attributes. See, Swanson v. Champion Intern. Corp. (1982), 197 Mont. 509, 646 P.2d 1166. Consequently, according to the Clinic and Lands, § 25-2-116, MCA, requires that the court ascertain whether plaintiff selected a proper venue as to both her claims, and if the county selected is proper as to one, but not both, any defendant is entitled to a change of venue which is proper for both claims.

Section 25-2-116, MCA, provides:

Multiple claims. In an action involving two or more claims for which this part designates more than one as a proper place of trial, a party entitled to a change of place of trial on any claim is entitled to a change of place of trial on the entire action, subject to the power of the court to separate claims or issues for trial under Rule 42(b) of the Montana Rules of Civil Procedure.

While the Clinic and Lands concede that venue for Jean’s wrongful death claim may appropriately lie in Yellowstone County, they argue that Yellowstone County is not a proper place for the trial of Gerald’s estate’s survivorship claim since the alleged negligent acts complained of all took place in Rosebud County. The Clinic and Lands conclude that since Jean selected an improper venue as to the survivorship claim, she waived the right to choose the place of trial leaving it to any defendant to select venue from among proper counties. Moreover, since the survivorship claim requires a change of venue, § 25-2-116, MCA, allows venue to be changed to Rosebud County for the wrongful death claim as well. We disagree.

Section 25-2-116, MCA, was enacted in 1985.1985 Mont. Laws 432. The Evidence Commission’s recommendation for the adoption of this section of the Montana Code states that it is a codification of this Court’s holdings involving venue changes in multiple claim cases. According to the Evidence Commission,

The Court feels the rule is necessary to prevent a plaintiff from controlling venue by adding spurious claims that have little or no validity, but are triable in the forum the plaintiff chooses rather than at the normal situs which would be the defendant’s residence or another location more favorable to the defendant.

Without determining the sorts of cases to which § 25-2-116, MCA, might apply, we conclude that since § 27-1-501(2), MCA, specifically mandates that wrongful death and survivorship actions be combined in one legal action, there is little likelihood that one such claim or the other would be added spuriously by the plaintiff simply to defeat a venue favorable to the defendant. The evil which § 25-2-116, MCA, seeks to address simply is not present in these sorts of cases.

Furthermore, our decision in Gabriel addressed and rejected essentially this same argument. In that case we agreed that Gabriel could have sued the school district for wrongful death and survivor-ship in either Lincoln County or Flathead County, as both were proper places for trial. Gabriel, 870 P.2d at 1352.

However, also recognizing that under § 27-1-501(2), MCA, wrongful death and survivorship actions must be combined in one legal action, we rejected the same argument that the Clinic and Lands present here:

Nor does the School District’s argument that venue for the survivorship claim is in Lincoln County — where the alleged tortious conduct was committed and the claim arose — advance its cause. It is well-established that venue may be appropriate in more than one place and that, in such an event, filing in a proper venue precludes a successful change of venue motion. Petersen, 742 P.2d at 484.

Gabriel, 870 P.2d at 1353.

Given that the nature of the evil sought to be addressed by § 25-2-116, MCA, is not present here; given that § 27-1-501(2), MCA, mandates that the plaintiff file a wrongful death and survivorship action in one combined legal action; and given our decision in Gabriel, that a proper venue for such a combined action can be determined on the basis of either the survivorship action or the wrongful death action if a proper venue for each cause of action is different, we conclude that the trial court did not err in refusing to apply § 25-2-116, MCA, in the instant case.

Venue for Jean’s wrongful death action is properly in Yellowstone County because that is where Gerald died and where the cause of action, thus, arose. That her wrongful death action combined with the survivorship action could have also been brought in Rosebud County because the survivorship action arose there does not render Yellowstone County an improper place for trial for both.

If... more than one county [is designated] as a proper place of trial for any action, an action brought in any such county is brought in a proper comity and no motion may be granted to change the place of trial upon the ground that the action is not brought in a proper county under 25-2-201(1).

Section 25-2-115, MCA.

We hold that the District Court properly denied appellants’ motions for change of venue. Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and TRIEWEILER concur.

JUSTICE LEAPHART,

specially concurring.

I concur in the result reached by the Court because I agree that our decision in Gabriel v. School Dist. No. 4, Libby (1994), 264 Mont. 177, 870 P.2d 1351, is controlling. However, having paid deference to stare decisis, I must note that I fail to follow the logic of Gabriel. I agree with Justice Weber’s dissent in Gabriel in which he reasons that if you have two causes of action, one in which venue is appropriate in county A and the other in which venue is appropriate in counties A or B, the logical venue is the county which is appropriate for both causes of action, i.e., county A. See Gabriel, 870 P.2d at 1354 (Weber, J. dissenting). In the present case, Rosebud County would be proper venue for both the wrongful death action and the survivorship while Yellowstone Comity is appropriate only for the wrongful death action.

Section 25-2-116, MCA, clearly provides that when an action involves two or more claims, and when the law designates more than one place as a proper place of trial, “a party entitled to a change of place of trial on any claim is entitled to a change of place of trial on the entire action ...” Since defendants would be entitled to change of venue on the survivorship claim standing alone, they are entitled to a change of venue on both claims. The Court however, relying on the Evidence Commission’s recommendation, reasons that § 25-2-116, MCA, only has application when a plaintiff has added a spurious claim in order to control venue. Since the law requires that a wrongful death claim and a survivorship claim be combined in one suit, the Court concludes that “[t]he evil which § 25-2-116, MCA, seeks to address simply is not present in these sorts of cases.”

The intent behind § 25-2-116, MCA, may have been aimed at the “evil” of spurious claims. However, that intent was not incorporated into the statute. The plain wording of the statute clearly applies to any suit involving “two or more claims.” It does not say “two or more claims, one of which is spurious.” If the intent of the legislature can be determined from the plain meaning of the words used, the Court may not go further and apply other means of construction. Wunderlich v. Lumbermens Mut. Cas. Co. (1995), 270 Mont. 404, 410, 892 P.2d 563, 567. Given that the wording of the statute is clear and not subject to differing interpretations, there is no call to resort to legislative history. In my view, the statute clearly requires a change of venue to Rosebud County. That interpretation, however, was rejected in the Gabriel decision.


author: CHIEF JUSTICE TURNAGE JUSTICE GRAY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SHANNON LEE SULLIVAN, a/k/a SHANNON LEE MARSHNO, Defendant and Appellant.
    No. 96-009.
    Submitted on Briefs October 17, 1996.
    Decided November 29, 1996.
    53 St.Rep. 1282.
    280 Mont. 25.
    927 P.2d 1033.

      See C.J.S. Criminal Law § 887.
    For Appellant: William F. Hooks, Appellate Defender, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; Christine A. Cooke, County Attorney; Curtis Bevolden, Deputy County Attorney, Hardin.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Shannon Sullivan appeals from a jury verdict, judgment and sentence of the Thirteenth Judicial District, Big Horn County, convicting him of deliberate homicide. We reverse and remand.

ISSUE

Did the prosecutor violate Sullivan’s right to due process and privilege against self-incrimination by commenting on Sullivan’s post-Miranda silence and is this issue reviewable under the common law plain error doctrine?

FACTS

This case arises from events that occurred in Hardin, Montana, on March 20 and 21, 1995. On the afternoon of March 20, Sullivan and the victim, Kevin Lessard (Kevin), stopped at the residence of Ella Deputee, Kevin’s mother. Kevin, age seventeen, attended school in Billings, Montana, and was home visiting his family. Sullivan, age twenty-two, was a friend of the Lessards and lived in Leroy Lessard’s trailer.

Sullivan and Kevin went fishing with Leroy (Kevin’s father), Rowena Lessard (Kevin’s sister), Terry Little and Gloria Little Head. Kevin returned to his mother’s house for dinner. Ella Deputee recalled that Kevin was in a hurry to return to Leroy’s trailer and that he left her house around 8:30 or 9:00 p.m.

Leroy had a .22 magnum pistol in his trailer. According to Leroy, Sullivan was familiar with it. Sullivan and Kevin played with the pistol often, twirling it and trying to act like gunslingers. Occasionally, the pistol was loaded when they played with it. Leroy did not see the .22 on the night of the shooting. However, Rowena Lessard (Rowena) testified that around 9:00 p.m., she saw Kevin place the .22 near the television.

At approximately 10:00 p.m., Sullivan, Kevin, Rowena, Terry, and Gloria left Leroy’s trailer to go into town. At 2:00 a.m., they returned to the trailer. There, Leroy visited with a friend, Raymond Holmes. Terry went outside to sleep in his truck, and Gloria went to the back bedroom of the trailer to sleep. According to both Leroy and Rowena, Sullivan and Kevin appeared to be getting along. The two went to the front bedroom, where Sullivan lived, to listen to music. At about 5:00 a.m., Kevin told Leroy that he was going to sleep, and returned to the front bedroom.

Sometime later, Leroy’s conversation with Raymond was interrupted by the sound of a gun discharging. Leroy rushed to the back of the trailer where he believed the sound had originated. He heard Rowena call out Kevin’s name. Rowena had been awakened by the sound of a gunshot and hurried to the front bedroom where she found Kevin. Leroy ran into the front bedroom where he saw Kevin lying on the bed. He picked Kevin up and held him for several seconds before he ran to a neighbor’s house to call for help. Leroy returned to his trailer until the police arrived. At approximately 6:00 a.m. Kevin was pronounced dead by the Big Horn County Coroner.

Dr. Kenneth Mueller performed an autopsy on Kevin. In his opinion, the cause of Kevin’s death was a close-range penetrating small-caliber gunshot wound to the head. Dr. Mueller opined that the gun was between six and twelve inches away from Kevin when it was discharged, and the presence of powder burns on Kevin’s eyelids suggested that his eyes were closed when the gun was discharged.

Rowena and Leroy did not see Sullivan after they heard the gun discharge. Immediately after the shooting, no one except Sullivan left Leroy’s trailer. The back door to the trailer, which had been closed earlier, was open. Leroy did not see the .22 after the shooting.

Approximately twenty-four hours later, Sullivan appeared at the home of Ralph Turns Plenty. Turns Plenty knew there was something wrong because the tribal police had been to his residence on the previous day looking for Sullivan. Turns Plenty advised Sullivan to turn himself in to the police. Sullivan agreed, and one of Turns Plenty’s sons contacted the Big Horn County Sheriff’s Office. Big Horn County Sheriff Larson Medicinehorse arrived, picked up Sullivan for questioning, and took him to his office. There, Big Horn County Chief Detective John Shaw spoke with Sullivan. He advised Sullivan of his Miranda rights and asked if he would be willing to make a statement. Sullivan refused. Shaw stopped the interview, excused himself, and left.

Sullivan was released and spent the night at the Turns Plenty residence. The next day, Sheriff Medicinehorse, accompanied by Bureau of Indian Affairs Criminal Investigator Wesley Stops, returned to the Turns Plenty residence. Stops showed Sullivan the waiver of rights form that he had signed one day earlier. Stops asked Sullivan if he understood his Miranda rights, and Sullivan said that he did. Stops then conducted a tape-recorded interview.

Sullivan explained how the shooting occurred. According to Sullivan, he and Kevin returned to Leroy’s trailer and entered the front bedroom. He picked up Kevin’s pistol, and while talking to Kevin, twirled it. Sullivan was standing at the foot of the bed, and Kevin was lying on it. The pistol went off, shooting Kevin. Sullivan said that he stood and looked at Kevin for several seconds but then became afraid and ran out of the trailer. After leaving, he threw the pistol into a dumpster. Sullivan tried to describe the location of the dumpster to Stops. However, despite the description and a police search, the pistol was never found.

The State of Montana charged Sullivan by information with deliberate homicide. Sullivan pleaded not guilty. At trial, he did not dispute the State’s claim that he shot and killed Kevin, but maintained that the shooting was accidental. The defense argued that Sullivan was guilty of negligent homicide rather than deliberate homicide. Sullivan did not testify.

In his opening statement, the prosecutor informed the jury that the shooting was deliberate. He explained how Sullivan fled immediately after the shooting, disposed of the murder weapon, and hid for twenty-four hours before turning himself in to authorities. Then he informed the jury that Sullivan refused to give a statement after being advised of his Miranda rights. “The defendant, when he did turn himself in, refused to give a statement at first when advised of his rights by Chief Detective John Shaw.”

During the defense’s opening statement, counsel explained, Detective Shaw brought [Sullivan] down to the police department and read him his rights and asked him if he would give a statement, whereupon Mr. Sullivan became frightened again and wouldn’t say — he didn’t want to — he didn’t want to talk at that point.

During the State’s case-in-chief, two witnesses testified concerning Sullivan’s silence. The prosecutor questioned Detective Shaw about the conversation he had with Sullivan on the first day he was brought to the sheriff’s office and was advised of his Miranda rights.

Q. The first time [Sullivan] came to the Sheriff’s office did you speak with him?
A. Yes, I did.
Q. What was the extent of that conversation?
A. Very brief. I read an adult waiver form to him, essentially advising him of his Miranda rights. I asked him if he would be willing to speak with me and give a statement at that time. He refused. I excused myself and left.

Later in the State’s case-in-chief, the prosecutor asked Sheriff Medicinehorse if Sullivan had said anything to him:

Q. Did he say anything to you when you brought him in that first day?
A. No, he did not.
Q. Sat quietly during the ride?
A. Yes.
Q. He didn’t produce a handgun for you at any time, did he?
A. No, he did not.

During his closing argument, the prosecutor commented twice to the all-female jury on Sullivan’s failure to give a statement to the police after the shooting. He stated:

I suggest, based on your common experience as ladies, that if you commit an accident, particularly if someone had committed an accident as horrible and as tragic as this particular accident, wouldn’t you want to tell somebody it was an accident, how sorry you were, that you didn’t mean to do it? Would you get rid of the gun? Dispose of it? [Emphasis added.]

Later, in closing argument, the prosecutor argued, “[Sullivan] has the better part of twenty-four hours to turn himself in and then another twenty-four hours before he gives a statement. And his mistake is that his statement is absolutely, totally inconsistent with this physical evidence.” Defense counsel did not object to any of the prosecutor’s comments or to the testimony elicited during the State’s case-in-chief.

The District Court instructed the jury on both deliberate and negligent homicide. The jury returned a verdict finding Sullivan guilty of deliberate homicide. The District Court sentenced Sullivan to fifty years at the Montana State Prison, with ten additional years for the use of a weapon.

Sullivan appeals.

DISCUSSION

Did the prosecutor violate Sullivan’s right to due process and privilege against self-incrimination by commenting on Sullivan’s post -Miranda silence and is this issue reviewable under the common law plain error doctrine?

Sullivan argues that his right to due process and privilege against self-incrimination were violated when the prosecutor commented in his opening statement and closing argument, and elicited testimony during the State’s case-in-chief, that Sullivan declined to make a statement after being advised of his Miranda rights. The State responds, and Sullivan concedes, that defense counsel failed to make a timely objection to these alleged errors. The State argues that Sullivan’s claims are barred from consideration on appeal because he does not meet the exceptions of Montana’s plain error statute, § 46-20-701, MCA. Sullivan counters that this Court should review the alleged errors by applying the common law plain error doctrine as outlined in State v. Finley (1996), 276 Mont. 126,915 P.2d 208,212-16.

In Finley, we explained under what circumstances we would apply common law plain error review. We will discretionarily review claimed errors that implicate a criminal defendant’s fundamental constitutional rights, where failing to review the claimed error may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process. Finley, 915 P.2d at 215.

The plain error rule is of limited application and is to be used sparingly. State v. Arlington (1994), 265 Mont. 127,152,875 P.2d 307, 322. Since Finley, we have declined to apply common law plain error review in the following cases: State v. Swoboda (1996), 276 Mont. 479, 918 P.2d 296, (failure to consider alternatives to imprisonment); State v. Monaco (1996), [277 Mont. 221], 921 P.2d 863, (allowing testimony concerning statements made in related civil proceeding); and Seyferth v. State Dept, of Justice (1996), [277 Mont. 377], 922 P.2d 494 (challenges to sobriety test).

The State attempts to distinguish Finley from the facts of the case presently before us, arguing that the common law plain error doctrine was adopted in Finley because that case turned on witness credibility. We decline to distinguish the facts of Finley from those of the case at bar. In Finley, we made no suggestion that our recognition of the common law plain error doctrine was decided because the State’s case essentially boiled down to a test of witness credibility.

The State also encourages this Court to follow State v. Huebner (1992), 252 Mont. 184,827 P.2d 1260, and refuse to invoke plain error. In Huebner, the defendant was convicted of wasting game in violation of § 87-3-102, MCA (1989). On appeal, Huebner challenged, for the first time, the legal sufficiency of the jury instructions. We declined to invoke plain error review to invalidate the jury verdict, concluding, “because Huebner’s own testimony established all of the elements of the offense with which he was charged, those issues, as well as the issues concerning ... references to his exercise of Fifth Amendment rights, could not have resulted in any prejudice to him.” Huebner, 827 P.2d at 1264.

The facts of Huebner differ from the case at bar. Sullivan did not testify at trial. Nor did his testimony “establish all of the elements of the offense with which he was charged.” Sullivan does not dispute the sufficiency of the evidence presented by the State at trial. Rather, he challenges the fundamental fairness of a trial where the prosecutor commented on his post -Miranda silence.

The State suggests that this Court should apply a harmless error standard to the plain error doctrine. The State argues that, because the physical evidence presented at trial directly conflicted with Sullivan’s version of the shooting, the prosecutor’s comments were harmless. However, that is not the standard that we articulated in Finley. When invoking the plain error doctrine, we consider the nature of the constitutional rights implicated and the fairness of the proceedings — not the sufficiency of the evidence. Finley, 915 P.2d at 215.

When determining whether to apply the common law plain error rule, we must decide whether the errors alleged by Sullivan implicate fundamental constitutional rights. Sullivan argues that the prosecutor’s comments and elicited testimony violated his right to due process and his privilege against self-incrimination. These are both undeniably fundamental constitutional rights. Finley, 915 P.2d at 216; U.S. Const, amend. V; Art. II, Sec. 17, Mont. Const.; U.S. Const, amend. XIV, § 1; Art. II, Sec. 25, Mont. Const.

Because of the importance of these rights and the effect that a denial of these rights would have on the fairness of a trial, and notwithstanding defense counsel’s failure to contemporaneously object or to claim error pursuant to § 46-20-701(2), MCA, our failure to review Sullivan’s claims would leave unsettled a question as to the fundamental fairness of his trial.

As in Finley, we again emphasize the necessity for counsel to contemporaneously object to claimed errors made at trial. Trial courts must first be given the opportunity to cure claimed errors. We also note the difficulty that we face when invoking the common law plain error doctrine to review alleged violations of a defendant’s fundamental constitutional rights. If the alleged violation affects a defendant’s fundamental constitutional rights, why did trial counsel fail to object?

Having determined that Sullivan raises issues that affect his fundamental constitutional rights, we next inquire whether the prosecutor’s comments and the testimony that he elicited during the State’s case-in-chief violated Sullivan’s right to due process of the law under the Fourteenth Amendment of the United States Constitution and Article II, Sec. 17, of the Montana Constitution.

Sullivan argues that the prosecutor’s comments concerning his post-Miranda silence made during the State’s opening statement and closing argument and the testimony elicited during the State’s casein-chief violated his right to due process of law as set forth in Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. The State responds that Doyle and other cases relied on by Sullivan do not apply because in those cases the government’s case was weak or largely circumstantial and there was no physical evidence to resolve the discrepancy between the State’s witnesses and the defendant’s trial testimony.

In Doyle, the United States Supreme Court held that a prosecutor’s use of a defendant’s silence maintained after Miranda warnings for impeachment purposes was fundamentally unfair because Miranda warnings inform a person of his right to remain silent and assure him that his silence will not be used against him. Doyle, 426 U.S. at 619, 96 S.Ct. at 2245. The Covert explained that

[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty ... it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

Doyle, 426 U.S. at 618, 96 S.Ct. at 2245.

We have held that Doyle does not apply to pre-arrest silence where the defendant has not been advised of his right to remain silent. State v. Furlong (1984), 213 Mont. 251, 258, 690 P.2d 986, 989; State v. Sadowski (1991), 247 Mont. 63, 76, 805 P.2d 537, 545. We reasoned that Doyle is “based on principles of fundamental fairness that a defendant’s silence after receipt of governmental assurances [will] not be used against him. ...” Sadowski, 805 P.2d at 545. In the instant case, the record indicates that Sullivan did not receive a Miranda warning until he was brought to the Big Horn County Sheriff’s Office and questioned by Detective Shaw. Sullivan had not been advised of his right to remain silent and was not subsequently punished at trial for having invoked that right when the prosecutor questioned Sheriff Medicinehorse about whether Sullivan had made a statement while being transported. Therefore, we hold that Sullivan’s right to due process was not violated, and no Doyle error occurred, when the prosecutor questioned Sheriff Medicinehorse about whether Sullivan had said anything during the ride to the sheriff’s office.

We next consider whether the prosecutor’s opening statement, closing argument, and questioning of Detective Shaw violated Sullivan’s due process rights. The State correctly points out that Doyle and the holdings of Sadowski and Furlong prohibit prosecutorial comments on a defendant’s post-arrest silence £or impeachment purposes. However, these cases do not speak to a situation, such as Sullivan’s, where the defendant did not testify at trial and was never subject to cross-examination and impeachment by the State.

Therefore, we must decide whether a defendant’s due process rights are violated when a prosecutor comments on a defendant’s post-arrest silence at a trial where the defendant does not testify. The Ninth Circuit Court of Appeals addressed this issue in United States v. Newman (9th Cir. 1991), 943 E2d 1155, and in United States v. Baker (9th Cir. 1993), 999 F.2d 412.

In Newman, the defendant’s post-arrest silence was referred to on three occasions by government witnesses, who testified that after being advised of his Miranda rights, the defendant declined to make a statement. The Ninth Circuit held that the testimony constituted Doyle error. Newman, 943 F.2d at 1157. In Baker, the defendant refused to testify at trial. During rebuttal, the prosecutor commented on the defendant’s post-arrest silence. The Ninth Circuit found Doyle error. Baker, 999 F.2d at 416.

The record in this case indicates that the prosecutor commented on Sullivan’s silence in his opening statement, introduced testimony regarding Sullivan’s decision to remain silent during direct examination of Detective Shaw, and commented on Sullivan’s silence two times in his closing argument. In United States v. Wycoff (9th Cir. 1976), 545 F.2d 679, the Ninth Circuit explained the effect of informing a jury that the defendant remained silent. “The natural tendency of the use of testimony in this matter is to prejudice the defendant by attempting to create an inference of guilt in the jury’s mind.” Wycoff, 545 F.2d at 681. Sullivan was entitled to remain silent when asked by Detective Shaw whether he wished to make a statement. This silence should not be used by the State to suggest that Sullivan was guilty of deliberate homicide. We hold that the prosecutor committed Doyle error when he commented on Sullivan’s post-Miranda silence during the State’s opening statement, case-in-chief, and closing argument.

The State suggests that, even if the prosecutor’s comments constituted Doyle error, such error was harmless. For error to be harmless, the State must show beyond a reasonable doubt that the error did not contribute to the verdict obtained. State v. Rothacre (1995), 272 Mont. 303,312-13,901 P.2d 82,88; Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 828,17 L.Ed.2d 705, 710-11. We agree with this standard in reviewing harmless error.

In opening statements, the prosecutor mentioned that Sullivan refused to give a statement to Detective Shaw after being advised of his Miranda rights. The prosecutor received testimony regarding Sullivan’s post-Miranda silence from Detective Shaw. During closing argument, the prosecutor commented two more times on Sullivan’s silence when he argued that Sullivan should be found guilty of deliberate homicide. The prosecutor’s inference in all these statements was that Sullivan must be guilty of deliberate homicide because a person guilty of negligent homicide in an accidental shooting would have explained his actions sooner than Sullivan did and would not have remained silent. Here, the prosecutor used Sullivan’s silence to prove that he was guilty of deliberate homicide.

We agree that the circumstantial evidence supporting Sullivan’s deliberate homicide conviction was not weak. However, this is not an excuse for allowing the prosecutor to comment on Sullivan’s post-Miranda silence. See Newman, 943 F.2d at 1158 (conviction reversed on Doyle error when all evidence circumstantial); Scarborough v. Arizona (9th Cir. 1976), 531 F.2d 959, 962 (Doyle error found when evidence weak upon which jury could have acquitted).

We conclude that the four separate comments made in the State’s opening statement, during the testimony of Detective Shaw, and during the State’s closing argument regarding Sullivan’s post-Miranda silence were not harmless beyond a reasonable doubt. These comments and testimony that Sullivan declined to give a statement to law enforcement officers after being advised of his Miranda rights violated Sullivan’s right to due process. By making these comments, the State created an inference for the jury that, by remaining silent after having been read his rights, Sullivan was guilty of deliberate homicide.

The State also argues that defense counsel commented on Sullivan’s post-Miranda silence during his opening statement, cross-examination of Sheriff Medicinehorse, and closing argument, thus “opening the door” to further discussion on the issue. This Court has refused to reverse an alleged Doyle violation when defense counsel opened the door by first inquiring into the defendant’s silence as proof of innocence rather than as an exercise of his Miranda rights. See Sadowski, 805 P.2d at 546; State v. White (1982), 200 Mont. 123, 127-128, 650 P.2d 765, 767-768.

The State’s reliance on White and Sadowski is incorrect. Unlike the defendant in White, Sullivan did not testify and make “positive assertions in his direct testimony which put in issue his silence.” White, 650 P.2d at 768. Contrary to Sadowski, Sullivan’s attorney never alluded to his client’s post-Miranda silence during cross-examination of a government witness. Defense counsel did not “open the door” by initially commenting on Sullivan’s post-Miranda silence. The comment was made in response to a statement initially raised by the State.

After reviewing the claimed violation of Sullivan’s fundamental constitutional rights under the common law plain error doctrine, we conclude that the prosecutor’s statements and the testimony elicited during the State’s case-in-chief concerning Sullivan’s post -Miranda silence constituted Doyle error and violated Sullivan’s right to due process of law as guaranteed by the Fourteenth Amendment and Article II, Sec. 17, of the Montana Constitution. The prosecutor elicited comments from Detective Shaw. The prejudicial effect of that testimony, coupled with references to Sullivan’s silence made in the State’s opening statement and closing argument, suggested to the jury that Sullivan was guilty of deliberate homicide because an innocent person would not have remained silent.

Sullivan also argues that the State violated his constitutional right against self-incrimination by commenting during trial on his post -Miranda silence. The Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and Article II, Sec. 27, of the Montana Constitution guarantee against self-incrimination.

In this case, Sullivan exercised his Miranda rights by declining to make a statement after being questioned by Detective Shaw. Sullivan also invoked his Fifth Amendment right against self-incrimination when he declined to testify at trial. The State’s comments and testimony concerning Sullivan’s right to remain silent is a clear violation of these rights.

Reversed and remanded.

JUSTICES HUNT, TRIEWEILER and LEAPHART concur.

JUSTICE GRAY,

specially concurring.

I specially concur in the Court’s opinion.

For the reasons stated at some length in my dissent in Finley, I continue to strenuously disagree that we should apply the common law plain error doctrine absent a successful constitutional challenge to § 46-20-701(2), MCA, the plain error statute duly enacted by the Montana Legislature. See Finley, 915 P.2d at 222-23 (Gray, J., dissenting). Having failed to convince my brethren of their error in the context of Finley, however, I am now bound to recognize — and to apply — the Court’s holding therein as the law of the state of Montana.

That said, I concur entirely in the Court’s analysis and resolution of the issue of whether the prosecutor’s comments on Sullivan’s post-Miranda silence violated Sullivan’s right to due process and privilege against self-incrimination. I join the Court in reversing and remanding.

      . The Fifth Amendment to the Constitution of the United States reads in relevant part: “No person shall be ... compelled in any criminal case to be a witness against himself...”

      . Article II, § 25 of the Montana Constitution reads: “No person shall be compelled to testify against himself in a criminal proceeding.”


author: JUSTICE GRAY JUSTICE GRAY, JUSTICE ERDMANN CHIEF JUSTICE TURNAGE,

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. GREGORY S. STUECK, Defendant and Respondent.
    No. 96-081.
    Submitted on Briefs July 18, 1996.
    Decided December 9, 1996.
    53 St.Rep. 1288.
    280 Mont. 38.
    929 P.2d 829.

      See C.J.S. Motor Vehicle § 633(4).
    JUSTICE GRAY specially concurring.
    JUSTICE ERDMANN dissenting.
    CHIEF JUSTICE TURNAGE dissenting.
    For Appellant: Hon. Joseph P. Mazurek, Attorney General, Barbara C. Harris, Ass’t Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, Jane Mersen, Deputy County Attorney, Bozeman.
    For Respondent: Karl P. Seel, Attorney at Law, Bozeman.
   JUSTICE GRAY

delivered the Opinion of the Court.

The State of Montana (State) appeals from the order of the Eighteenth Judicial District Court, Gallatin County, suppressing blood alcohol evidence obtained from Gregory S. Stueck (Greg). We affirm.

The dispositive issue on appeal is whether the District Court erred in concluding that Montana’s implied consent statute applies to a negligent vehicular assault prosecution so as to preclude the admissibility of blood sample evidence forcibly drawn after Greg refused to submit to a blood alcohol test.

Shortly before midnight on January 19, 1995, Montana Highway Patrol Officer Joseph Campbell (Campbell) was traveling east on Interstate 90 near Belgrade, Montana. He observed what appeared to be a large cloud of either smoke or steam developing approximately three-quarters of a mile ahead of him in the westbound lanes of traffic. As he approached the scene, Campbell saw a vehicle emerge from the cloud; the vehicle itself was trailing a huge cloud of steam and traveling west toward the Belgrade interchange. It appeared to Campbell that an accident had just occurred.

As Campbell approached the accident site, he saw a pickup truck in the median, a man staggering near the pickup and debris from the accident littering the median and the highway. The dazed man, Eric W. Troth (Troth), was the driver of the disabled pickup in the median; he had sustained a substantial bump on the back of his head. Campbell theorized that the vehicle he had seen emerge from the vaporous cloud was responsible for the accident. Observing a “fluid trail” heading west on the highway from the point of impact, Campbell put Troth in his patrol car and they began following the fluid trail toward the Belgrade interchange.

Campbell and Troth followed the fluid trail until it led them off the highway and down several local roads; it then tapered off to a point where Campbell was unable to detect its direction. With an injured man in his car and debris from the accident still littering the highway, Campbell decided that his best course of action was to return with Troth to the accident scene. He did so and immediately began clearing the highway and investigating the accident. After a wrecker arrived and lifted Troth’s pickup, Campbell detected a powder blue paint transfer on Troth’s dark-colored pickup which appeared to have been left by the vehicle responsible for the accident.

Officer Dennis DeLaittre (DeLaittre) responded to the accident scene five to ten minutes after Campbell and Troth’s return. DeLaittre began following the fluid trail down and off the highway and, eventually, to Amsterdam Road. DeLaittre could see where the vehicle leaving the fluid trail had made a right turn off of Amsterdam Road onto Thorpe Road. The fluid trail became more infrequent, often was in the wrong lane and ultimately consisted of an accumulation of fluids deposited from the vehicle after it either hit a bump or braked for a comer. About that time, Campbell radioed DeLaittre that a baby blue paint transfer had been found on Troth’s pickup.

DeLaittre continued down Thorpe Road. When the road surface changed to gravel, he followed a single set of tire tracks visible in the early morning frost to where a vehicle appeared to have skidded on the roadway, backed up and pulled into a driveway. DeLaittre observed a “baby blue Ford pickup truck with extensive front-end damage on the driver’s side” in the driveway, and radioed Campbell that he had located the vehicle.

Campbell met DeLaittre at the driveway entrance to the residence on Thorpe Road where the baby blue Ford pickup was parked. Before approaching the house, the officers radioed the dispatch office for a registration check on the pickup. Dispatch called the registered owner, Don Stueck, who reported that his son Greg had been using the pickup; he also provided Greg’s telephone number.

The sheriff’s office telephoned Greg’s home in the early morning hours of January 20, 1995, and reached Greg’s wife, Kristy Stueck (Kristy). She was asked to go outside to talk to two officers who were parked in her yard. Kristy complied and Campbell and DeLaittre left their patrol cars and met her at the front door. After explaining to Kristy that an accident had occurred, the officers asked her if she had been driving or if Greg had been driving and if Greg had been drinking. When she answered that Greg had been driving the truck, they asked her to have Greg come to the door. Kristy responded that he was sleeping and she was unable to wake him. The officers returned to their patrol cars and, after Kristy’s second attempt to awaken him, Greg came to the door. According to Campbell, Greg motioned the officers to the house and eventually called them inside.

Campbell could smell the strong odor of alcohol on Greg at the outset of the interview and observed that Greg started “fumbling and trying to pull his boots on which took quite a bit of effort and concentration....” Greg initially told Campbell and DeLaittre that his friend “Bill” had been driving the pickup that night, but that he did not know Bill’s last name. Greg then left the house abruptly and walked outside to the truck to find his registration and proof of insurance; the officers followed. After further questioning, Greg admitted that he had been driving the truck and had fallen asleep at the wheel. When he felt the impact of the accident, Greg panicked and drove away from the scene.

Greg was arrested for three misdemeanor traffic violations, including negligent vehicular assault, and transported to Bozeman Deaconess Hospital. The officers did not advise Greg of the terms of the implied consent statute, but did request a blood sample to determine his blood alcohol content. When Greg refused to give a blood sample, it was taken from him forcibly.

The State charged Greg in Gallatin County Justice Court with negligent vehicular assault, failure to stop at the scene of an injury accident and failure to give immediate notice of an injury accident. Greg moved to suppress the evidence seized from his Ford pickup and his residence, as well as “[t]he blood sample forcibly withdrawn ... at Bozeman Deaconess Hospital,” and to dismiss the charges. Following a hearing, the Justice Court suppressed the evidence resulting from the forced blood drawing, but denied Greg’s motion to dismiss. The State appealed, and Greg cross-appealed, to the District Court.

The District Court granted Greg’s motion to suppress the blood sample evidence and denied the rest of his motions. The State appeals from the District Court’s suppression of the blood sample evidence.

Did the District Court err in concluding that Montana’s implied consent law applies to a negligent vehicular assault prosecution so as to preclude the admissibility of blood sample evidence forcibly drawn after Greg refused to submit to a blood alcohol test?

In granting Greg’s motion to suppress the blood sample evidence, the District Court rejected the State’s contention that State v. Thompson (1984), 207 Mont. 433,674P.2d 1094, rendered § 61-8-402, MCA, inapplicable to any offense other than driving under the influence of alcohol (DUI). The court distinguished Thompson, concluding that § 61-8-402, MCA, Montana’s implied consent statute, applies to the charge of negligent vehicular assault and, as a result, that the blood sample evidence is inadmissible because it was taken in violation of the statute. Where a district court grants a motion to suppress based on legal conclusions, we review those conclusions to determine whether they are correct. State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021 (citation omitted).

We begin our analysis by focusing on § 61-8-402, MCA, Montana’s implied consent statute. Section 61-8-402, MCA, provides, in pertinent part:

(1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent, subject to the provisions of 61-8-401, to a test or tests of the person’s blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person’s body if arrested by a peace officer for driving or for being in actual physical control of a vehicle while under the influence of alcohol, drugs, or a combination of the two.
(3) If a driver under arrest refuses upon the request of a peace officer to submit to a test or tests designated by the arresting officer as provided in subsection (1), a test may not be given, but the officer shall, on behalf of the department, immediately seize the person’s driver’s license. ... [Emphasis added.]

In interpreting a statute, we look first to the language used therein by the legislature. State v. Gould (1995), 273 Mont. 207, 219,902 P.2d 532, 540. “Where the language is plain, unambiguous, direct, and certain, the statute speaks for itself ....” Gould, 902 P.2d at 540 (citation omitted).

According to the plain and unambiguous language used, § 61-8-402(1), MCA, applies when the defendant has been arrested for committing the DUI offense set forth in § 61-8-401, MCA. In such an event, a defendant’s refusal to submit to a blood alcohol test mandates that the test “may not be given.” Section 61-8-402(3), MCA. Moreover, blood samples drawn in violation of the implied consent statute are inadmissible as evidence in prosecutions for DUI. Thompson, 674 P.2d at 1095 (citing State v. Mangels (1975), 166 Mont. 190, 531 P.2d 1313).

Here, Greg was not arrested for violating § 61-8-401, MCA, the statute defining the offense of DUI. He was arrested, however, for committing the misdemeanor offense of negligent vehicular assault in violation of § 45-5-205, MCA. A person commits that offense if he or she (1) operates a vehicle in a negligent manner; and (2) is driving while under the influence of alcohol or drugs, “as provided for in 61-8-401(1)[;]” and (3) his or her conduct is the cause of bodily injury to another. Section 45-5-205(1), MCA. Thus, the DUI offense set forth in § 61-8-401, MCA, is a specific element of — and subsumed in — the negligent vehicular assault offense. As a result, it is clear that, in the language of § 61-8-402(1), MCA, Gregwas “arrested by a peace officer for driving or for being in actual physical control of a vehicle while under the influence of alcohol ....” Consequently, we conclude that § 61-8-402(3), MCA, prohibited the State from forcibly giving the blood test after Greg refused to submit to it and the blood sample evidence drawn in violation of the statute is inadmissible. Thompson, 674 P.2d at 1095.

The State correctly points out that, in Thompson, we held § 61-8-402, MCA, inapplicable to a negligent homicide prosecution. It contends, therefore, that Thompson renders § 61-8-402, MCA, inapplicable to the negligent vehicular assault charge at issue here and does not preclude the admissibility of the blood sample taken without Greg’s consent. The State reads Thompson too broadly.

In Thompson, the defendant was charged with negligent homicide, which is statutorily defined as negligently causing the death of another human being. Section 45-5-104, MCA. He did not consent to the taking of a blood sample for purposes of determining the alcohol content in his blood; nonetheless, the sample was taken. The defendant moved for suppression of the blood sample on the basis that it had been drawn against his will in violation of § 61-8-402, MCA, and, therefore, was inadmissible. The district court refused to suppress the evidence, it was admitted at trial and the defendant was convicted of negligent homicide. Thompson, 674 P.2d at 1095. The issue before us on appeal was whether the prohibition against nonconsensual extractions of blood samples in § 61-8-402, MCA, applied to prosecutions for negligent homicide. If the prohibition applied, the blood sample drawn in violation of the statute was inadmissible and should have been suppressed. Thompson, 674 P.2d at 1095.

We ultimately concluded, based on three considerations, that § 61-8-402, MCA, did not apply to negligent homicide convictions. Thompson, 674 P.2d at 1096. First, and most importantly, we focused on the legislative intent as reflected in the language of the statute. Highlighting the “if arrested by a peace officer for DUI” language, we concluded that the protections afforded by the § 61-8-402, MCA, prohibition against nonconsensual blood drawings are “not engaged until there is an arrest for driving under the influence.” Thompson, 674 P.2d at 1096. Next, we reviewed decisions from other jurisdictions having implied consent laws similar to Montana’s and determined that “the better reasoned cases hold that the statute does not apply to negligent homicide cases.” Thompson, 674 P.2d at 1096-97 (citations omitted). Finally, we addressed the gravity of the charged offense and opined that, where a death had been caused by a drinking driver, a driver’s license suspension was an insufficient penalty for refusing to submit to a chemical analysis. Thompson, 674 P.2d at 1097.

Applying the three Thompson considerations to this case involving an arrest for negligent vehicular assault, rather than negligent homicide, mandates a different result and clearly indicates that Thompson is distinguishable. There, we began by applying the plain meaning of the “arrest for DUI” language in § 61-8-402, MCA, to the negligent homicide charge at issue. Thompson, 674 P.2d at 1095-96. As noted above, the offense of negligent homicide is defined as negligently causing the death of another human being. See § 45-5-104, MCA. Nothing in that definition relates in any way to operating a vehicle while under the influence of alcohol. Accordingly, we properly concluded in Thompson that the legislature did not intend the protections afforded by § 61-8-402, MCA, to apply to an arrest for negligent homicide because the statutory language was inapplicable “until there is an arrest for driving under the influence.” Thompson, 674 P.2d at 1096. Here, as discussed above, the negligent vehicular assault charge includes, as a specific element, driving while under the influence of alcohol as set forth in § 61-8-401, MCA. See § 45-5-205(1), MCA. Thus here, unlike in Thompson, there has been an arrest for DUI and the protections afforded by § 61-8-402, MCA, are engaged.

Having concluded, under the statutory interpretation consideration which necessarily was our primary concern in Thompson, that § 61-8-402, MCA, applies to an arrest for negligent vehicular assault, the remaining Thompson criteria are of limited significance. With regard to the “other jurisdictions” consideration from Thompson, the State cites to State v. Woolery (Idaho 1989), 775 P.2d 1210, and State v. Armenia (Or.App. 1985), 702 P.2d 1113, in support of its position that § 61-8-402, MCA, is not applicable to non-DUI offenses. Those cases are readily distinguishable from the case presently before us and, therefore, they do not support the State’s position here.

In Woolery, the Idaho Supreme Court’s primary focus was not whether the statute applied to the offense charged. Rather, the Idaho court focused on the absence of any statutory language prohibiting a nonconsensual blood test in the event a requested test was refused. Woolery, 775 R2d at 1214. The court ultimately determined that no statutory right to refuse had been created and, therefore, compliance — or lack thereof — with the implied consent statute was irrelevant to the admissibility of the blood test evidence so long as the constitutional requisites for a lawful search and seizure were met. Woolery, 775 P.2d at 1214-15. Woolery has no application here where § 61-8-402(3), MCA, expressly provides that a test may not be given if it has been refused and, as a result, our cases hold that a nonconsensual drawing of blood following a § 61-8-402, MCA, refusal to submit to the test renders the blood test evidence inadmissible. See, e.g., Thompson, 674 P.2d at 1095.

In Armenta, the defendant was charged with DUI and assault II following an accident which resulted in injuries. Armenta, 702 P.2d at 1113. The trial court suppressed blood test evidence in connection with both charges as a consequence of an invalid consent under the implied consent statute, and the state appealed only the inadmissibility of the evidence vis-a-vis the assault charge. Armenta, 702 P.2d at 1114. The Oregon Court of Appeals applied the statutory language specifically rendering the statute inapplicable to non-DUI offenses, and concluded that the blood test was admissible as to the assault charge assuming compliance with constitutional requirements. Armenta, 702 P.2d at 1114. Thus Armenta, like Thompson, limited the applicability of the implied consent statute to a DUI charge. Like Thompson, and for the reasons set forth above, Armenta is distinguishable from the present case involving an arrest for the offense of negligent vehicular assault, which includes DUI as a specific element, and which, therefore, constitutes an arrest for DUI pursuant to § 61-8-402(1), MCA.

The final Thompson consideration was the gravity of the charged offense and we observed, in that regard, that the negligent homicide offense at issue involved the death of a human being. Thompson, 674 P.2d at 1097. Indeed, negligent homicide is a felony offense punishable by imprisonment in the state prison for up to ten years and a fine of up to $50,000, or both. See §§ 45-2-101(22) and 45-5-104(3), MCA. In the case presently before us, however, negligent vehicular assault is a misdemeanor offense with maximum punishments of one year imprisonment in the county j ail and a fine of $ 1,000, or both. See §§ 45-2-101(41) and 45-5-205(2), MCA. Thus, while we agree with the State that this consideration is of very limited significance in light of the paramount importance of statutory interpretation in this case, its application here further distinguishes Thompson and weighs in favor of our conclusion that § 61-8-402, MCA, applies to an arrest for negligent vehicular assault.

We hold that the District Court did not err in concluding that § 61-8-402, MCA, applies to a negligent vehicular assault prosecution so as to preclude the admissibility of blood sample evidence drawn in violation of the statute and also did not err in suppressing that evidence.

Affirmed.

JUSTICES NELSON, HUNT, TRIEWEILER and LEAPHART concur.

JUSTICE GRAY,

specially concurring.

While the Court’s opinion adequately addresses the matters raised in Justice Erdmann’s dissenting opinion, I write separately to add additional comments about several of the arguments contained therein.

First, the dissent states that the Court cites no cases which support its position. In this regard, I observe only that it is not necessary for this Court to cite “other jurisdiction” cases in support of a straightforward analysis of Montana statutes and case law such as the Court has conducted here.

Next, the dissent quotes from State v. Zielke, (Wis. 1987), 403 N.W.2d 427, a Wisconsin case relied on by the State in addition to the Armenia and Woolery cases discussed in the Court’s opinion. The Wisconsin implied consent statute at issue in Zielke, however — like the Idaho implied consent statute at issue in Woolery — did not contain language prohibiting a nonconsensual blood test in the event a requested test was refused. See Zielke, 403 N.W.2d at 429. Thus, like Woolery, Zielke is not applicable here where § 61-8-402(3), MCA, expressly provides that a test “may not be given” once it has been refused by the arrestee. As discussed in the Court’s opinion, it is this specific portion of Montana’s implied consent statute which renders inadmissible evidence resulting from a nonconsensual drawing of blood following a § 61-8-402, MCA, refusal to submit to the test and which negates the propriety of addressing the issue of the constitutionality of the seizure of Greg’s blood which the dissent would reach in this case.

Finally, while I do not disagree that the Court’s resolution of this case may appear to allow defendants in alcohol or drug-related accidents to use the implied consent statute as a “shield,” I disagree with the dissent’s view that this Court can simply ignore the statutory language in order to produce a politically expedient result. The State’s “remedy” lies with the legislature, which is free to amend the implied consent statute as other state legislatures have done, not with this Court.

JUSTICE ERDMANN

dissenting.

I respectfully dissent from the majority’s conclusion that the implied consent law, § 61-8-402, MCA, apples to a negligent vehicular assault prosecution. The majority’s opinion allows the implied consent law to be used as a shield by defendants in alcohol or drug-related accidents and allows them to prevent the introduction of otherwise admissible evidence of chemical impairment. Further, although not reached by the majority, I would conclude that a warrantless search was appropriate under these circumstances and that the seizure of blood did not violate Greg Stueck’s right of privacy. I would reverse the District Court on all three of these issues and remand the matter for trial.

The District Court granted Greg’s motion to suppress the blood sample evidence by finding that State v. Thompson (1984), 207 Mont. 433, 674 P.2d 1094, does not apply when a charge of negligent vehicular assault is brought. In Thompson, this Court held that the implied consent law did not apply to a negligent homicide charge. In reaching that conclusion, the Court first reviewed the language of the implied consent law, and then employed a three-step analysis to determine whether that law should apply to charges other than DUI.

Given the clear language of § 61-8-402, MCA, it is questionable whether the analysis need go any further than a reading of the statute. This basic statutory construction analysis is the first of the Thompson criteria. Section 61-8-402, MCA, provides in pertinent part:

(1) Aperson who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent, subject to the provisions of 61-8-401, to a test or tests of the person’s blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person’s body if arrested by a peace officer for driving or for being in actual physical control of a vehicle while under the influence of alcohol, drugs, or a combination of the two.

(Emphasis added.) Section 61-8-401, MCA, referenced in the implied consent statute, is the statute that prohibits DUI. By the clear language of the statute itself, it is applicable only to cases involving an arrest for DUI. As this Court recently noted in State v. Gould (1995), 273 Mont. 207, 902 P.2d 532:

In interpreting a statute, we first look to the plain meaning of its words. [State v.] Christensen, [(1994), 265 Mont. 374], 877 P.2d at 469 (citation omitted). If the legislative intent can be ascertained from the plain meaning of the words used, no further interpretation is required and we will not resort to legislative history. Clarke v. Massey (1995), [271 Mont. 412], 897 P.2d 1085,1088. Where the language is plain, unambiguous, direct, and certain, the statute speaks for itself and there is no need to resort to extrinsic means of interpretation. Christensen, 877 P.2d at 469 (citation omitted). In addition,
[i]n the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted ....
Section 1-2-101, MCA.

Gould, 902 P.2d at 540.

As correctly recognized by the majority, the plain, unambiguous language of § 61-8-402, MCA, makes the statute applicable only where there has been an arrest for DUI. As Greg was not arrested for DUI, the only logical conclusion is that the implied consent statute does not apply. The majority, however, holds that § 61-8-402, MCA, applies to a charge of negligent vehicular assault, and in doing so, concludes that an arrest for negligent vehicular homicide constitutes an arrest for DUI.

While the majority is correct in noting that driving under the influence of alcohol or drugs is one of the elements of the negligent homicide statute, that does not make an arrest for negligent vehicular assault an arrest for DUI. The Legislature could easily have extended the provisions of the implied consent statute to both vehicular homicide and negligent vehicular assault, but has chosen not to do so. In concluding that an arrest for negligent vehicular assault constitutes an arrest for DUI, the majority has inserted provisions into § 61-8-402, MCA, that were omitted by the Legislature. That is not the proper function of this Court.

As noted, the first of the Thompson criteria deals with legislative intent and statutory interpretation, which is discussed above. As the plain language of the statute is clear, I do not believe that further analysis is necessary. However, even if the second and third Thompson criteria are utilized, the result is the same.

In Thompson, this Court stated:

We find that Section 61-8-402 does not apply to negligent homicide prosecutions. This conclusion is based on three considerations. First we consider the legislative intent. “Legislative intent must first be determined from the plain meaning of the words used; and if the language is plain, unambiguous, direct, and certain, the statute speaks for itself.” Crist v. Segna (1981), 191 Mont. 210, 622 P.2d 1028 at 1029, citing Dunphy v. Anaconda Co. (1968), 151 Mont. 76, 438 P.2d 660. The language of the statute and an examination of the statutory scheme of Title 61, Chapter 8, part 4 plainly show that application of the implied consent law to negligent homicide cases was not within the legislature’s contemplation. The operative language of Section 61-8-402 reads,
“Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of 61-8-401, to a chemical test of his blood, breath, or urine for the purpose of determining the alcohol content of his blood if arrested by a peace officer for driving or in actual physical control of a motor vehicle while under the influence of alcohol.” (emphasis supplied)
The italicized passage above makes it clear that the protections afforded there are not engaged until there is an arrest for driving under the influence. (But, see State v. Campbell (1980), 189 Mont. 187, 615 P.2d 190, where we held that an arrest is not always a prerequisite to administration of a blood alcohol test.) Not only is the section specifically premised on such an arrest, but it is made subject to the section of the code which outlines the offense of driving under the influence of alcohol or drugs.... This Court does not have the power to remove or ignore language in a statute.
The second consideration is how similar implied consent laws have been interpreted in other jurisdictions.... [W]e feel the better reasoned cases hold that the statute does not apply to negligent homicide cases. Relying on the plain wording of the statute, these cases held that applying the implied consent laws to negligent homicide prosecutions was not what the legislature had intended.
The third consideration also weighed heavily on the courts deciding the cases cited immediately above; suspension of the driver’s license is simply an insufficient penalty for refusing to submit to a chemical analysis when there has been a death caused by the drinking driver. The gravity of the crime heightens the importance of the blood sample, and it appears the legislature felt the administrative remedy was simply inappropriate. The decision to modify the scope of the implied consent law properly rests within the legislature’s power. It is not within our power to read into a statute more than is found there, as appellant would have us do. Therefore, we hold that Section 61-8-402 does not apply to suspects in negligent homicide prosecutions.

Thompson, 674 P.2d at 1096-97 (citations omitted).

The Court’s discussion of the first Thompson criteria provides additional support for the conclusion that the Legislature did not intend the implied consent law to apply to charges other than DUI. The protection afforded by the implied consent law simply is not triggered until there has been an arrest for DUI. In this case, there was no arrest for DUI.

After reaching its conclusion that the Legislature intended that an arrest for negligent vehicular assault constitutes an arrest for DUI, the majority then determines that the remaining two Thompson criteria are of limited significance. This is not surprising since, after attempting to distinguish the cases from other jurisdictions which support the Státe’s position, the majority can cite no cases which support its position. State v. Woolery (Idaho 1989), 775 P.2d 1210; State v. Armenia (Or. Ct. App. 1985), 702 P.2d 1113; State v. Zielke (Wis. 1987), 403 N.W.2d 427.

The third Thompson criteria addresses the gravity of the crime. The majority notes that vehicular homicide involves the death of an individual and is a felony, while negligent vehicular assault is merely a misdemeanor. While conceding that this criteria is of very limited significance, the majority relies on it for further support of its conclusion that § 61-8-402, MCA, applies to an arrest for negligent vehicular assault. The Thompson case did not make any distinction between felonies and misdemeanors and that is a troublesome distinction to create. Further, it cannot be disputed that negligent vehicular assault is a serious crime for which the mere sanction of having a license temporarily suspended is an insufficient penalty.

The negligent vehicular assault statute requires that a person: (1) operate a vehicle in a negligent manner; (2) while driving under the influence of alcohol or drugs; and that (3) his or her conduct is the cause of bodily injury to another. Section 45-5-205, MCA. Under the majority’s rationale, if the victim in this case would have died, the implied consent law would not have applied, but if the victim were only injured, seriously or otherwise, it would apply. Such a judicially created distinction is not warranted and places an unreasonable burden on law enforcement officers who investigate accidents involving alcohol or drugs.

Whether applying the basic rules of statutory interpretation, or utilizing the Thompson criteria, it is clear that the Legislature did not intend that an individual involved in an alcohol or drug-related traffic accident be able to use the implied consent law as a shield to prevent evidence of chemical impairment to be introduced at trial. As noted by the Wisconsin Court in Zielke:

The implied consent law is an important weapon in the battle against drunk driving in this State. Neither the law, its history or common sense allows this court to countenance its use as a shield by the defense to prevent constitutionally obtained evidence from being admitted at trial.

Zielke, 403 N.W.2d at 434.

While not addressed by the majority, I would conclude that the seizure of blood in this case was a reasonable seizure and did not violate Greg’s privacy interests. By the time the officers reached Greg’s residence, approximately one hour and twenty-five minutes had passed since the accident. The additional time in obtaining a search warrant in the middle of the night would have resulted in further dissipation of Greg’s blood alcohol content and the loss of valuable evidence. The means and procedures employed in taking the blood were reasonable. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.

While this Court has recognized that Montana has a broad right of privacy in Article II, Section 10, of the Montana Constitution, the right of privacy contained in that provision is to be weighed against any applicable state interest. State v. Brown (1988), 232 Mont. 1, 755 P.2d 1364; State ex rel. Zander v. District Court (1979), 180 Mont. 548, 591 P.2d 656. Here, the State’s interest is to enforce the criminal and traffic laws which protect all citizens, and specifically in this case, to apprehend and appropriately punish the person who rear-ended the Troth vehicle and then left the scene of an injury accident. I would find these interests to be compelling and outweigh Greg’s right of privacy associated with his blood.

For the foregoing reasons I would reverse the District Court and remand this matter for trial.

CHIEF JUSTICE TURNAGE,

dissenting:

I concur with the dissenting opinion of Justice Erdmann. I write further and in addition thereto.

The correct decision in this case requires an analysis of three separate statutes. The majority has failed to analyze correctly these operative statutes which are in their essential parts set forth as follows:

61-8-401. (1) It is unlawful and punishable as provided in 61-8-714 and 61-8-723 [penalty for driving under the influence of alcohol] for any person who is under the influence of:
(a)alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public;
(3) “Under the influence” means that as a result of taking into the body alcohol, drugs, or any combination thereof, a person’s ability to safely operate a motor vehicle has been diminished.
(4) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the person at the time alleged, as shown by analysis of the person’s blood, urine, or breath, shall give rise to the following inferences:
(a) If there was at that time an alcohol concentration of 0.05 or less, it may be inferred that the person was not under the influence of alcohol.
(b) If there was at that time an alcohol concentration in excess of 0.05 but less than 0.10, that fact shall not give rise to any inference that the person was or was not under the influence of alcohol but such fact may be considered with other competent evidence in determining the guilt or innocence of the person.
(c) If there was at that time an alcohol concentration of 0.10 or more, it may be inferred that the person was under the influence of alcohol. The inference is rebuttable.
(5) The provisions of subsection (4) do not limit the introduction of any other competent evidence bearing upon the issue of whether the person was under the influence of alcohol, drugs, or a combination of the two.
61-8-402. (1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent, subject to the provisions of 61-8-401, to a test or tests of the person’s blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person’s body if arrested by a peace officer for driving ... a vehicle while under the influence of alcohol[.] [Emphasis added.]
45-5-205. (1) If a person operates a motor vehicle in a negligent manner and he is driving while under the influence of alcohol... as provided for in 61-8-401(1), and his conduct is the cause of bodily injury to another, he commits the offense of negligent vehicular assault. [Emphasis added.]

I emphasize the fact that defendant Greg Stueck was not arrested for the offense of driving while under the influence of alcohol.

The District Court erroneously concluded that, because the negligent vehicular assault statute requires that the accused must be operating a motor vehicle in a negligent manner and driving while under the influence of alcohol, the statute necessarily requires compliance with § 61-8-402, MCA, the so-called implied consent statute. The majority of this Court also engages in that erroneous analysis. Both the District Court and the majority of this Court have engaged in faulty logic.

Section 61-8-402, MCA, the implied consent statute, applies only if the accused is arrested by a peace officer for driving a vehicle while under the influence of alcohol. This is clearly not the fact in the present case. Stueck was not arrested for driving under the influence of alcohol.

The inferences relating to alcohol concentration in a person’s body as set forth in § 61-8-401, MCA, are rebuttable inferences only and, as in that section provided, proof of such alcohol concentration is not the only method by which a conviction for operating a motor vehicle while under the influence of alcohol can be obtained. Any other competent evidence bearing on that issue may be introduced and may result in a conviction.

State v. Thompson (1984), 207 Mont. 433, 674 P.2d 1094, is clearly on point in this case, and the efforts of the majority to distinguish Thompson are misplaced. The operative facts in Thompson are virtually identical to the facts of this case. The fact that Thompson’s drunken driving resulted in a homicide cannot be legally distinguished from the facts in this case. Stueck’s driving may well have resulted in a homicide instead of a bodily injury to Mr. Troth. The legal principles set forth in Thompson are applicable here.

I would reverse the decision of the District Court.