author: JUSTICE TRIEWEILER JUSTICE LEAPHART,

text:
    CITY OF BILLINGS, Plaintiff and Respondent, v. RODNEY BRUCE, Defendant and Appellant.
    No. 97-183.
    Submitted on Briefs January 15, 1998.
    Decided July 29, 1998.
    1998 MT 186.
    55 St.Rep. 750.
    290 Mont. 148.
    965 P.2d 866.

      For Appellant: Matthew J. Wald, Attorney at Law; Miles City.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General; Helena; Craig C. Hensel, Deputy City Attorney; Billings.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 Rodney Bruce appealed to the District Court for the Thirteenth Judicial District in Yellowstone County from a misdemeanor conviction in the City Court for the City of Billings for the offense of stalking. He moved to dismiss the charges based on a violation of his right to speedy trial in both the City Court and District Court, and based on a violation of his due process rights. The District Court denied the motions. Bruce pled guilty and reserved his right to file this appeal from the denial of his motions. We reverse the District Court’s order.

¶2 Bruce raises three issues on appeal:

¶3 1. Was Bruce denied his constitutional right to a speedy trial in the District Court?

¶4 2. Was Bruce denied his constitutional right to a speedy trial in the City Court?

¶5 3. Did the document which charged Bruce in the City Court violate his constitutional right to due process because it failed to provide adequate notice?

FACTUAL BACKGROUND

¶6 On May 19,1994, Rodney Bruce was charged in the City Court for the City of Billings with the misdemeanor offense of stalking, in violation of § 45-5-220(l)(a) and (b), MCA. The complaint alleged that Bruce committed the offense during the period from June 1993 through May 1994. He was arraigned on May 30,1994, and a trial in City Court was set for September 30,1994.

¶7 At the omnibus hearing on September 20,1994, Bruce claimed the stalking statute was unconstitutional and filed a motion to dismiss. A few days later, he requested a continuance and, together with the motion and a request to interview more witnesses, he filed a waiver of his right to a speedy trial. Trial was reset for February 8, 1995, and a hearing on the constitutionality of the statute was set for January 17, 1995, but reset for January 24, 1995, due to a conflict with the schedule of Bruce’s counsel. However, on January 17,1995, bis counsel moved to withdraw. The City Court granted the motion and reset the trial for July 12,1995.

¶8 New counsel took over for Bruce in May 1995, and at the pretrial conference on July 3,1995, he moved to dismiss based on the 407-day delay since the initial arraignment. Without a response from the City, the City Court denied the motion, based on Bruce’s waiver in September 1994. Bruce was convicted of the crime charged following a three-day jury trial which had commenced on July 12. On July 18, 1995, Bruce appealed the verdict and the denial of his motions to the District Court.

¶9 On August 23,1995, District Judge G. Todd Baugh set a date for the omnibus hearing and for trial. The next day, however, Bruce moved to substitute judges, and Judge Robert Holmstrom took over the case. On August 28, the City sought substitution of Judge Holmstrom, and the matter was assigned to Judge Russell Fagg. On September 15, Judge Fagg disqualified himself, and on September 18, the case was assigned to Judge Maurice Colberg. On September 25, the District Court set the omnibus hearing for October 12, and the trial date for November 13,1995.

¶10 At the omnibus hearing on October 12, the parties indicated their intent to file motions. In response, the District Court ordered that all motions be filed by November 1,1995, and that the response briefs be filed by November 13; in the event that an evidentiary hearing on the motions was necessary, it was scheduled for November 16. Bruce moved to dismiss for denial of due process and for denial of his right to speedy trial. The City moved to amend its complaint to extend the period covered by the charge through August 1994, and on November 3 the District Court granted that motion.

¶11 On November 13,1995, the City also moved to continue the evidentiary hearing. It based its motion on the fact that Bruce had subpoenaed a number of individuals from the City Court whose schedules could not be rearranged on short notice. A week later, it filed its response to Bruce’s motion to dismiss.

¶12 No further action in the matter took place until May 6, 1996, nearly six months later, when the District Court ordered the parties to appear by telephone conference on May 20, 1996. It appears that counsel for each party had been discussing a separate matter, and counsel for Bruce asked whether the City had dismissed the case. The conversation prompted the City to contact the District Court and schedule the telephone conference.

¶13 On May 23,1996, the District Court ordered that a hearing be set for June 12,1996, and that all motions be filed by May 24; all responsive briefs were to be filed by May 31, 1996. On May 24, Bruce filed a motion to dismiss based solely on the denial of his right to speedy trial. In support of his motion, he alleged that all but one of the 353 days of delay that had occurred in the District Court by that time should be attributed to the City. In response to the motion, on May 30, the City moved for a continuance of an additional week so that it could submit its response to the motion to dismiss; the District Court granted the City leave to file its brief by June 7. However, on June 6, the City requested a second continuance, until June 14, by which to respond. It eventually filed its response on June 13.

¶14 On June 10,1996, the parties filed a stipulation to continue the hearing set for June 12, 1996. The parties agreed in the stipulation that any delay between June 12 and the date of the hearing would not be held against either party for purposes of the speedy trial motion. On June 24, the District Court granted the parties’ request and reset the hearing for August 22,1996. On the day of the hearing, the City moved for a continuance due to the unavailability of a City Court Judge who had been subpoenaed by Bruce. The District Court granted the continuance, and on September 30,1996, reset the hearing at which to consider the motions for October 16,1996.

¶15 At the hearing on October 16, Bruce’s former counsel testified regarding the problems he encountered with Bruce’s defense as a result of the delay, including the unavailability of two witnesses and the impaired memory of those who were still available. Bruce did not appear at the hearing, but he submitted an affidavit in which he stated that the delay caused him anxiety, resulted in the unavailability of certain witnesses, and hindered his defense.

¶16 On November 1, the District Court set a trial date for December 2,1996. On November 27,1996, the District Court denied Bruce’s motions to dismiss. The parties agreed to waive a jury trial, and the District Court rescheduled the trial for December 9,1996. On December 9, Bruce pled guilty and reserved his right to appeal the denial of his motions.

DISCUSSION

¶17 Was Bruce denied his constitutional right to a speedy trial in the District Court?

¶18 Whether a defendant has been denied a speedy trial constitutes a question of constitutional law. See State v. Small (1996), 279 Mont. 113, 116, 926 P.2d 1376, 1378; see also State v. Bullock (1995), 272 Mont. 361, 368, 901 P.2d 61, 66. We review a district court’s conclusions of law to determine whether its interpretation of the law is correct. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; see also Kreger v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

¶19 Since 1972, we have reviewed claims that a speedy trial was denied in violation of the Sixth Amendment to the United States Constitution, and Article II, Section 24, of the Montana Constitution, based on the general guidelines established by the United States Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101. See, e.g, Bullock, 272 Mont. at 368-69, 901 P.2d at 67; State v. Sunford (1990), 244 Mont. 411, 416, 796 P.2d 1084, 1087; Fitzpatrick v. Crist (1974), 165 Mont. 382, 388, 528 P.2d 1322, 1325. The Barker test requires that we consider: (1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right to a speedy trial by the defendant; and (4) the prejudice to the defense. See Barker, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Prejudice to the defense can be established based on any of the following factors: (1) pretrial incarceration; (2) anxiety and concern to the defendant; and (3) impairment of the defense. See Barker, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. Of these concerns, the Supreme Court stated the following about their order of importance:

Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.

Barker, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118.

¶20 However, the four factors established by Barker are necessarily general guidelines to be applied on a case-by-case basis to the unique circumstances of each case. “In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.”Barker, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. Perhaps for that reason, commentators have noted the seemingly inconsistent results from Barker1 s application. As noted by one author:

Because the right is so “amorphous,” “slippery” and generally difficult to vindicate, courts have not applied a consistent legal standard in speedy trial cases. Indeed, federal appellate courts’ speedy trial rulings throughout this century have portrayed the right as somehow less fundamental and more contingent than other procedural safeguards in the Bill of Rights. This treatment reflects the orthodoxy that the right to a speedy trial is the one criminal procedural guarantee in the Constitution that must be limited by the countervailing demands of “public justice.” In other words, courts have typically held — and most academic commentators have agreed — that the Sixth Amendment provides relief for defendants suffering from trial delays only where society lacks a countervailing interest in continuing to hold them for trial.

Brian P. Brooks, A New Speedy Trial Standard for Barker v. Wingo: Reviving a Constitutional Remedy in an Age of Statutes, 61U. Chi. L. Rev. 587, 588 (1994).

¶21 Montana’s experience in dealing with speedy trial issues mirrors the national experience described by Mr. Brooks in his article. For example, we have considered the first factor, the length of delay, as both a triggering mechanism which justifies further speedy trial analysis, see State v. Dahms (1992), 252 Mont. 1, 12, 825 P.2d 1214, 1220, and as a factor which, if sufficient in length, can shift the burden to the State to disprove that prejudice has occurred. See State v. Carden (1977), 173 Mont. 77, 85, 566 P.2d 780, 784.

¶22 However, the length of delay that we have found necessary to trigger further speedy trial analysis has varied from case to case. In Dahms, 252 Mont. at 12, 825 P.2d at 1220-21, we stated that “[i]n [State v. ]Wombolt [(1988), 231 Mont. 400, 753 P.2d 330], we set out a number of recent decisions indicating that delays over 200 days will usually trigger the full analysis.” However, we also recognized that we had previously held a 175-day delay sufficient to trigger the presumption. See State v. Bartnes (1988), 234 Mont. 522, 764 P.2d 1271; see also State v. Bailey (1982), 201 Mont. 473, 655 P.2d 494 (186 days triggered the presumption); State v. Fife (1981), 193 Mont. 486, 632 P.2d 712 (194 days triggered the presumption). Nevertheless, in Dahms we held that a 161-day delay was not a sufficient delay to require further analysis. See Dahms, 252 Mont. at 12, 825 P.2d at 1221.

¶23 We later cited Dahms for the proposition that 200 days usually triggers the analysis. See State v. Thompson (1993), 263 Mont. 17, 32, 865 P.2d 1125, 1135; see also State v. Eklund (1994), 264 Mont. 420, 424, 872 P.2d 323, 326 (relying on Thompson for the same proposition). We have not, however, considered 200 days as a necessary threshold. First, Thompson introduced the 200-day proposition from Dahms immediately after citing Dahms for the notion that the length of delay is case specific. See Thompson, 263 Mont. at 32, 865 P.2d at 1134-35. Second, in Eklund, the Court held that “197 days is presumptively prejudicial ... given the close proximity to the 200-day trigger.”Eklund, 264 Mont. at 424, 872 P.2d at 326. More recent cases, though, have referred to 200 days as the length of delay which will trigger a full Barker analysis. See State v. Williams-Rusch (1996), 279 Mont. 437, 449, 928 P.2d 169, 176-77; State v. Collier (1996), 277 Mont. 46, 54, 919 P.2d 376, 382.

¶24 Although we have been consistent in our statements that a delay sufficient to trigger further analysis also creates a presumption of prejudice, we have likewise been inconsistent in our application of that presumption.

¶25 We first discussed the effect of presumptive prejudice in Fitzpatrick, 165 Mont. at 388, 528 P.2d at 1326, where we were concerned with a delay of seven months. There we held that:

We emphasize this delay is not considered a per se violation of petitioner’s right to a speedy trial, but under the circumstances here it is thought long enough to shift to the state the burden of explaining the reason for the delay and showing absence of prejudice to petitioner.

¶26 In State v. Steward (1975), 168 Mont. 385, 389, 543 P.2d 178, 181, we cited with approval United States v. Rucker (D.C. Cir. 1972), 464 F.2d 823, 825, where that court held that:

A delay of over one year between arrest and trial raises a Sixth Amendment claim of “prima facie merit.” Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684 (1966). It places on the Government the necessity of justification, the burden of which increases with the length of delay. ... When the delay approaches a year and a half, as in this case, the Government must provide a justification which convincingly outweighs the prejudice which can normally be assumed to have been caused the defendant.

¶27 In State ex rel. Sanford v. District Court (1976), 170 Mont. 196, 199, 551 P.2d 1005, 1007, we held that a ten-month delay between arraignment and trial established a prima facie case of denial of the right to a speedy trial.

¶28 In Fife, 193 Mont. at 491, 632 P.2d at 715, we cited Moore v. Arizona (1973), 414 U.S. 25, 26, 94 S. Ct. 188, 189, 38 L. Ed. 2d 183, 185, for the principle that “Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial.”

¶29 In State v. Britton (1984), 213 Mont. 155, 689 P.2d 1256, we had the following to say about the presumption of prejudice from a delay which was less than the delay in this case:

Here it was the State’s burden to rebut the presumption of prejudice caused by the 396-day delay. The State has not sufficiently done so, and we therefore conclude the delay has resulted in prejudice to the defendant.... [I]t is nonetheless clear defendant had no duty to prosecute himself and the State had the burden to proceed in a manner that would protect his constitutional right to a speedy trial. The State did not do so, and the delay continued with the State giving no constitutionally acceptable explanation for the substantial delay.

Britton, 213 Mont. at 162-63, 689 P.2d at 1261.

¶30 In State v. Waters (1987), 228 Mont. 490, 743 P.2d 617, we explained the effect of “presumptive prejudice” as follows:

The delay in the instant case gives rise to a rebuttable presumption of prejudice. In order to rebut the presumption, the State must come forward with evidence showing that the defendant was not prejudiced by the delay and that there is a reasonable excuse.

Waters, 228 Mont. at 493, 743 P.2d at 619 (citing State v. Ackley (1982), 201 Mont. 252, 256, 653 P.2d 851, 853).

¶31 We have followed the rule that a delay less than that found in this case gives rise to a presumption of prejudice which must be rebutted by direct evidence produced by the State in State v. Matthews (1995), 271 Mont. 24, 28, 894 P.2d 285, 287, State v. Heffernan (1991), 248 Mont. 67, 71, 809 P.2d 566, 568, State v. Curtis (1990), 241 Mont. 288, 299, 787 P.2d 306, 313, State v. Wombolt (1988), 231 Mont. 400, 403, 753 P.2d 330, 331, State v. Haskins (1986), 220 Mont. 199, 202, 714 P.2d 119, 121, State v. Cutner (1984), 214 Mont. 189, 192, 692 P.2d 466, 467, State v. Chavez (1984), 213 Mont. 434, 443, 691 P.2d 1365, 1370, State v. Tiedemann (1978), 178 Mont. 394, 399, 584 P.2d 1284, 1288, and State v. Cassidy (1978), 176 Mont. 385, 390, 578 P.2d 735, 738. We have also recently applied the rule in State v. Tweedy (1996), 277 Mont. 313, 320, 922 P.2d 1134, 1138, where the delay was greater than the delay in this case.

¶32 Only recently, and without either distinguishing or reversing our earlier cases, have we begun paying lip service to “presumptive prejudice,” but placing the burden on the defendant to prove prejudice. See State v. Keating (1997), 285 Mont. 463, 475, 949 P.2d 251, 259; Williams-Rusch, 279 Mont. at 452, 928 P.2d at 178-89; State v. Lane (1996), 279 Mont. 128, 134, 927 P.2d 989, 992-93; State v. Moore (1994), 268 Mont. 20, 69-70, 885 P.2d 457, 487-88.

¶33 Those recent cases, including this case, which have shifted the burden to the defendant to disprove prejudice, ignore the effect of the presumption which has been established by our earlier decisions.

A presumption has been defined as an inference as to the existence of one fact from the existence of some other fact founded on logic or on a previous experience of their connection. A true presumption is a rule of law laid down by the courts which attaches to facts certain procedural consequences, such as the shift in the burden of evidence production. ...
... A presumption ... attaches definitive probative value to certain facts. If the presumption is conclusive, it mandates a particular conclusion; if it is rebuttable, it mandates the conclusion in the absence of contradictory evidence.

22A C. J.S. Criminal Law § 695 (1985).

¶34 Furthermore, the presumption of prejudice, at some point in time, is well-founded and this Court’s recent decisions ignore those decisions of the United States Supreme Court which point out why prejudice is often difficult to prove and why a defendant cannot always be held to the burden of such proof in a state court’s speedy trial analysis.

¶35 In Barker, the Court pointed out that delay skews the fairness of the entire judicial system, and that even without the disappearance of witnesses, there is likely to be prejudice by the passage of time when witnesses are unable to recall accurately the events about which they testify. Most importantly, the Court in that case pointed out that “[l]oss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.” Barker, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118.

¶36 In Moore, the Supreme Court reversed the Arizona Supreme Court’s denial of a defendant’s motion to dismiss based on the Arizona Court’s conclusion that the defendant had not made an affirmative demonstration of prejudice. The U.S. Supreme Court held that:

The state court was in fundamental error in its reading of Barker v. Wingo and in the standard applied in judging petitioner’s speedy trial claim. Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial[.]
Moreover, prejudice to a defendant caused by delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings. Inordinate delay,
‘wholly aside from possible prejudice to a defense on the merits, may seriously interfere with the defendant’s liberty whether he is free on bail on not, and ... may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed. 468 (1971).

Moore, 414 U.S. at 26-27, 94 S. Ct. at 190, 38 L. Ed. 2d at 186 (footnote omitted).

¶37 Most recently, in Doggett v. United States (1992), 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520, the Supreme Court reversed the denial of a defendant’s motion to dismiss on speedy trial grounds, even though no demonstration of prejudice had been established. There, the Court stated:

[Consideration of prejudice is not limited to the specifically demonstrable, and ... affirmative proof of particularized prejudice is not essential to every speedy trial claim. Barker explicitly recognized that impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony “can rarely be shown.” And though time can tilt the case against either side, one cannot generally be sure which of them it has prejudiced more severely. Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.

Doggett, 505 U.S. at 655-56, 112 S.Ct. at 2692-93, 120 L. Ed. 2d at 530-31 (citations omitted).

¶38 Finally, the Supreme Court, in Doggett, concluded that:

When the Government’s negligence thus causes delay six times as long as that generally sufficient to trigger judicial review, see n.l., supra, and when the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant’s acquiescence, e.g., 407 U.S. at 534-536, 92 S.Ct. 2194-2195, nor persuasively rebutted, the defendant is entitled to relief.

Doggett, 505 U.S. at 658, 112 S.Ct. at 2694, 120 L. Ed. 2d at 532 (emphasis added; footnotes omitted).

¶39 For those reasons articulated in the preceding paragraphs, i.e., the purposes that the speedy trial requirement serves, the difficulty of proving the extent to which witnesses’ memories have been impaired, and the fact that in most instances only the State can bring the defendant to trial in an expeditious fashion, we conclude that the rebuttable presumption of prejudice established by our earlier cases is not only the better public policy, but that it is constitutionally required. However, in recognition that the only remedy for denial of speedy trial is dismissal of the State’s case, see Strunk v. United States (1973), 412 U.S. 434, 440, 93 S. Ct. 2260, 2263-64, 37 L. Ed. 2d 56, 61, and in recognition of the countervailing demands of “public justice” recognized generally by both courts and academic commentators, we will, later in this opinion, state more clearly than we have in the past the point at which and the circumstances under which the presumption of prejudice will attach.

¶40 A second area where our decisions have been at least arguably inconsistent is our consideration of the third Barker factor, the assertion of the right to a speedy trial by the defendant. We have repeatedly held that so long as a defendant asserts his or her right to a speedy trial prior to the commencement of trial, the assertion is timely, and we have relied on language from Barker, 407 U.S. at 527, 92 S. Ct. at 2190, 33 L. Ed. 2d at 115, for the principle that:

The nature of the speedy trial right does make it impossible to pinpoint a precise time in the process when the right must be asserted or waived, but that fact does not argue for placing the burden of protecting the right solely on defendants. A defendant has no duty to bring himself to trial; the State has that duty ....

¶41 In Steward, 168 Mont. at 390-91, 543 P.2d at 182, we held that:

The general rule remains that an accused must take some affirmative action to obtain a trial to be entitled to a discharge for delay. 22A C. J.S. Criminal Law § 469, p. 37. In United States v. Research Foundation, D.C., 155 F.Supp. 650, 654, the court said:
“* * * The burden is on the defendant to assert his constitutional right by some affirmative act in court, such as, objecting to adjournments of the trial, demanding a trial, or making an appropriate motion.”
The “appropriate motion” is a motion to dismiss for denial of a speedy trial. The proper time to assert the right to a speedy trial is prior to the actual commencement of the trial, usually at the time the trial date is set, or the time the case is called to trial. Morse v. Municipal Court, et al., 13 Cal.3d 149, 118 Cal.Rptr. 14, 529 P.2d 46. Defendant, in the instant case, made his motion to dismiss at the proper time. [Steward’s motion was made at the time of arraignment.]

(Emphasis added.)

¶42 In Fife, 193 Mont. at 490-91, 632 P.2d at 715, we held that:

The third test is whether there has been a timely assertion of the right by defendant. A motion to dismiss for denial of speedy trial made by the defendant prior to the commencement of the trial is an “appropriate motion” which fulfills this requirement. State v. Steward (1975), 168 Mont. 385, 390, 543 P.2d 178, 182. The appellant properly asserted his right with such a motion four days prior to trial.
The State contends we should consider that the appellant failed to put the State on notice by earlier communicating his desire for a speedy retrial. This is not the law. "... (I)t is not the duty of defendant to bring himself to trial.” Larson, 623 P.2d at 958.

¶43 In State v. Bailey (1982), 201 Mont. 473, 479, 655 P.2d 494, 498, we noted that:

The State, when discussing this factor [assertion of the right], urges this Court to adopt the position that Bailey’s assertion was sufficient to raise inquiry as to whether the right was denied, but is insufficient to sustain the defendant’s claim on its merits because the right was not asserted often enough.

However, we held that “this is not the case, because as long as the defendant has asserted his right to speedy trial prior to trial, he has met the third factor in this test; State v. Steward (1975), 168 Mont. 385, 543 P.2d 178, 182; State v. Larson, 623 P.2d at 958.”Bailey, 201 Mont. at 479-80, 655 P.2d at 498.

¶44 In State v. Britton (1984), 213 Mont. 155, 161-62, 689 P.2d 1256, 1260, we reaffirmed our prior position with the following explanation:

Our rule is that if a defendant has moved to dismiss before trial, he has fulfilled the requirement of asserting his constitutional rightto a speedy trial. State v. Bailey (Mont. 1982), [201 Mont. 473,] 655 P.2d 494, 498. The trial court, on the other hand, held defendant was tardy in asserting his right to a speedy trial by first raising it at the omnibus hearing on July 15, 1983, more than eleven months after the complaint had first been filed in Justice Court. The trial court did not indicate when that magic time was, but simply ruled that defendant’s motion was too late. However, delay of assertion of the right to speedy trial is not measured simply by measuring the lapse of time from the time of the charge until the time the motion is made. Rather, the sole inquiry is whether defendant has moved before trial to dismiss on the ground that he has been denied a speedy trial. The United States Supreme Court stated in Barker v. Wingo, supra, that “[t]here is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial.” 407 U.S. at 521, 92 S.Ct. at 2187. We adopt this same position when interpreting our own Constitution. In holding that the defendant in effect waived his right to assert his right to a speedy trial because his motion at the omnibus hearing came too late, the trial court was clearly wrong.

¶45 We reaffirmed our traditional rule regarding the defendant’s timely assertion of the right to a speedy trial, if made before trial, in Tweedy, 277 Mont. at 321, 922 P.2d at 1139, Waters, 228 Mont. at 493-94, 743 P.2d at 620, and Haskins, 220 Mont. at 202, 714 P.2d at 121.

¶46 We first suggested that there might be varying degrees of timely assertion in State v. Mooney (1991), 248 Mont. 115, 119-20, 809 P.2d 591, 594, where it was suggested in dictum that:

[FJuture litigants are reminded that in the past failure to object to lack of speedy trial until the eve of trial shows a lack of actual interest which should be considered in balancing the Barker factors. State v. Carden (1977), 173 Mont. 77, 566 P.2d 780, 626 F.2d 82 (9th Cir. 1980), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473.

¶47 Although the gratuitous advice in Mooney was probably ill-founded based on the unique facts of the Carden decision upon which it was based, it has since assumed a life of its own in subsequent decisions of this Court. See State v. Deavila (1997), 285 Mont. 530, 535, 949 P.2d 1185, 1188; Keating, 285 Mont. 463, 472, 949 P.2d at 257; Williams-Rusch, 279 Mont. at 451, 928 P.2d at 178; Lane, 279 Mont. at 133, 927 P.2d at 992; Thompson, 263 Mont. at 32-33, 865 P.2d at 1135. However, in none of the more recent cases which suggest that the time when the right to speedy trial was asserted should be weighed did we reverse our previous decisions to the contrary or address policy reasons for our previous decisions.

¶48 We conclude that for the reasons stated in our earlier decisions, and especially, the compelling policy argument against waiver of a constitutional right, there is no magical time for assertion of the right to a speedy trial which should be weighed more favorably to the defendant than some other time. So long as the defendant asserts his or her right to a speedy trial by a motion to dismiss on speedy trial grounds filed prior to the time of trial, we conclude that the defendant has satisfied the third-prong of the Barker test and that further analysis of that prong is not only unnecessary, but inappropriate. Analysis of when in a long period of delay, or how often during a long period of delay a defendant asserts the right to a speedy trial, makes an already subjective and arbitrary review process even more so. In the interests of consistency, predictability, and justice, our purpose should be to establish more objective criteria for prosecutors, defense lawyers, and district courts to evaluate speedy trial issues. The trend of subjectively evaluating the date on which each appellant has asserted his or her right to a speedy trial is the antithesis of that objective.

¶49 We also note that there is disagreement nationally about the respective weight to be given each of the Barker factors when conducting a speedy trial analysis and that our own decisions have not been consistent in that regard. While earlier decisions placed greater emphasis on the length of delay without regard to demonstrable prejudice, see, e.g., Sanford, 170 Mont. 196, 551 P.2d 1005, later decisions have placed greater emphasis on the defendant’s failure to demonstrate prejudice regardless of the length of delay. See, e.g., Williams-Rusch, 279 Mont. 437, 928 P.2d 169.

¶50 In this regard, various approaches have been described for purposes of balancing the four Barker considerations. They have been referred to as: (1) the straight balancing test, (2) the weighted balancing test, and (3) the motive test. See Brooks, A New Speedy Trial Standard for Barker, 61 U. Chi. L. Rev. at 592-94, 608.

¶51 The straight balancing test considers each of the four factors equally, and no single factor is decisive. For example, if the length of delay is great enough, or the State is sufficiently culpable in causing delay, prejudice is unnecessary. On the other hand, if prejudice is extreme, the length of delay required is less. See Brooks, A New Speedy Trial Standard for Barker, 61 U. Chi. L. Rev. at 592-93.

¶52 The weighted balancing test considers each factor, but places the greatest emphasis on whether or not there has been prejudice to the defendant. Without prejudice to the defendant, it would be very unlikely that even lengthy delay or culpable delay by the State would result in dismissal for denial of a speedy trial. See Brooks, A New Speedy Trial Standard for Barker, 61 U. Chi. L. Rev. at 593-94.

¶53 The motive test gives greatest consideration to the second Barker factor, the reason for delay. The greater the degree of fault by the State in causing the delay, the less the delay or prejudice that need be shown. Where there is no fault on the part of the State for delay, greater prejudice, and presumably greater delay, would have to be shown. See Brooks, A New Speedy Trial Standard for Barker, 61 U. Chi. L. Rev. at 610.

¶54 It is our intention to adopt a method for analysis of speedy trial claims which includes features of both the “straight balancing test” and the “motive test.” For purposes of this case and future cases, we will apply the Barker factors in the following manner to determine whether a defendant has been denied his or her right to a speedy trial in violation of the Sixth Amendment to the United States Constitution, or Article II, Section 24, of the Montana Constitution.

¶55 1. We will first consider the length of delay from the time charges are filed (or as in this case, the date on which the notice of appeal from the city court is filed) until the defendant’s trial date for the purpose of determining whether there is a basis for conducting a speedy trial analysis. This period of time will be calculated without assignment of fault to either party for the various periods of delay. This period of time has been referred to, in the past, as the “trigger” for speedy trial analysis. Based on our prior decisions, we establish 200 days as the necessary length of time to trigger further speedy trial analysis. However, length of delay will also be considered later in our analysis after responsibility for various periods of delay has been assigned.

¶56 2. We will next consider the reason for delay. This is something that we have, in the past, assigned to either the State or the defendant, based on the unique facts in each case. We see no reason to change this part of our analysis because it will necessarily vary from case to case. However, after we have determined how many days of delay are attributable to the State, we will next determine whether that length of delay is sufficient to shift the burden to the State to demonstrate that the defendant has not been prejudiced by the delay. We conclude that when it has been demonstrated that 275 days of delay is attributable to the State, the burden should shift to the State to demonstrate that the defendant has not been prejudiced by the delay. The State’s proof should take into consideration, but need not include, all three traditional bases for prejudice: (a) pretrial incarceration, (b) anxiety and all of its attendant considerations, and (c) impairment of the defense. In considering whether the State has met its burden, the district court should take into consideration the fact that direct proof of a defendant’s state of mind may not always be possible, and that the State’s ability to anticipate the nature of the defendant’s defense may vary from case to case. Therefore, there may be cases where the State can satisfy its burden without demonstrating a lack of prejudice based on each consideration. Once the State has demonstrated lack of prejudice based on one or more of these considerations, the burden will then shift to the defendant to demonstrate prejudice and the district court will have to weigh the evidence of each party. If the delay attributable to the State is less than 275 days, the burden remains on the defendant to demonstrate prejudice. At some point in time (which we leave for future consideration), however, the mere passage of time must necessarily be considered sufficient to conclusively establish denial of the right to speedy trial. See generally Doggett, 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520. Furthermore, where the delay is both excessive (but not sufficient to establish a conclusive presumption of prejudice, as required by Doggett), and intentional, demonstration of prejudice may not be necessary. See Moore, 414 U.S. at 27, 94 S. Ct. at 190, 38 L. Ed. 2d at 186.

¶57 3. When we consider the third Barker factor, whether the defendant’s right to speedy trial has been timely asserted, we will follow those decisions in which we have held that if the right to speedy trial is invoked at any time prior to the commencement of trial, either by demanding a speedy trial, or by moving to dismiss for failure to provide a speedy trial, the third prong is satisfied. However, we will require that once a motion to dismiss for denial of speedy trial has been made, that it be ruled upon by the district court before commencement of trial. We also note, as a practical matter, that unless a motion to dismiss for speedy trial has been made at least ten days prior to the commencement of trial, it may be difficult for the State to adequately brief the issue, and for the court to adequately consider the issue, without postponing the existing trial date. Therefore, any delay directly attributable to a motion to dismiss based on denial of speedy trial which is filed less than ten days prior to the commencement of trial will be assigned to the defendant.

¶58 4. Our consideration of the fourth Barker factor, which relates to prejudice, will continue to include those traditional considerations: (a) pretrial incarceration, (b) anxiety and all of the practical applications that have been articulated by the U.S. Supreme Court, and (c) impairment to the defense. However, the importance of this factor and the degree of prejudice to establish denial of speedy trial will vary based upon other considerations, such as the length of delay and the reason for delay.

¶59 Applying this approach to the facts in this case, we first note that the length of delay, which was 508 days from the time of appeal to the ultimate date of trial, is sufficient to trigger further analysis of whether Bruce was denied his right to a speedy trial.

¶60 Next, we consider whether any of the 508-day delay is attributable to Bruce. In this case, Bruce moved for no continuances, nor did he, through other maneuvers, prevent the City from bringing him to trial in a timely fashion. Bruce did move to substitute the judge to whom the case was originally assigned; however, that substitution was accomplished on the same date. The original trial date was vacated because both parties expressed the need to file motions; however, Bruce was no more at fault for that delay than was the City. Furthermore, when the District Court established a date for submission of those motions, the defendant fully complied. Subsequent hearings to consider the parties’ motions were continued at the request of the City.

¶61 Bruce did agree to continue a hearing from June 12 to August 22,1996, and did agree that the amount of time resulting from that delay would not count against the City for purposes of speedy trial analysis. However, that period of delay accounts for only 61 days, and leaves 447 days of delay which was either institutional or caused directly by the prosecution. In either event, it is charged to the City. See State v. Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 416.

¶62 Here, the longest delay occurred between November 1995 and May 1996, a span of nearly six months. Neither party has provided a reason for the delay, although the lack of an explanation by the City and the complete void in the District Court record seem to reflect that the delay occurred mainly because the District Court and the City had simply neglected the matter. Nonetheless, the District Court described it as institutional, refused to use it as grounds on which to find a violation of Bruce’s right to speedy trial, and even implied that Bruce was partially responsible for the delay. The court stated: “What always troubles me in these cases, I never have the defendant asking me to set something for trial. They just bushwack you at the end when you’ve got a problem.”

¶63 However, the City bears the burden of prosecution, and a defendant is under no obligation to ensure diligent prosecution of the case against him or to help the City avoid dismissal for failure to timely prosecute him. See Tweedy, 277 Mont. at 318-20, 922 P.2d at 1137-38.

¶64 The District Court stated that the delay was precipitated by Bruce’s “extensive motions” after the October 1995 hearing, and the fact that he subpoenaed key personnel from the City Court. It suggested that his actions were an intentional attempt to set up a claim of denial of speedy trial. For example, it quoted our holding in State v. Wirtala (1988), 231 Mont. 264, 752 P.2d 177, in which we stated:

The right to a speedy trial... is not designed to reward a criminal defendant who artificially creates delay through an avalanche of motions and hearings. Nor does the right protect a defendant who makes a transparent assertion of the right or sleeps on his rights during the course of a proceeding only to belatedly claim injustice as the day of reckoning draws near.

Wirtala, 231 Mont. at 268, 752 P.2d at 180 (citation omitted). However, we disagree with the District Court’s characterization of the reasons for the delay, and conclude that Bruce did not here attempt to “create delay through an avalanche of hearings and motions.” In fact, we note that Bruce’s motions were filed in accordance with the schedule set by the District Court, and that they represented arguments he had raised initially in the City Court. We have no reason to believe that they were “artificially” made to create delay in the District Court. We further note that Bruce was not the unilateral source of delay after the omnibus hearing; the City also filed motions after the hearing in October 1995. Finally, the City’s subsequent motion to continue the evidentiary hearing was made because of scheduling problems for witnesses who had been subpoenaed, not so that it could respond to Bruce’s motions.

¶65 Neither the City nor the District Court suggest that consideration of Bruce’s motions necessitated over six months of total inactivity. Additionally, despite the fact that all parties, including the District Court, had been aware in November 1995, of the scheduling problems created by Bruce’s subpoenas, there is no indication that those problems, or any other aspect of this case, were even addressed during the delay. Finally, the record seems to reflect that the primary reason this matter was even remembered in May 1996, was the fortuitous fact that Bruce’s counsel alluded to it when he and counsel for the City were discussing another matter.

¶66 Based on our holding that the City is responsible for 447 days of delay which was either institutional or caused by the City’s repeated requests for a continuance, we conclude that sufficient delay is attributable to the City of Billings to shift the burden to the City to prove that Bruce was not prejudiced by the delay.

¶67 Bruce has satisfied the third Barker criteria by asserting his right to a speedy trial when he moved to dismiss the action against him based on denial of his right to speedy trial on May 24,1996, well in advance of his December 9,1996, trial date.

¶68 When considering the fourth Barker factor, we look to the problems the speedy trial guarantee is intended to prevent: (1) pretrial incarceration, (2) anxiety and concern, and (3) impairment of defense.

¶69 Bruce concedes that he suffered little pretrial incarceration, and none after his appeal to the District Court.

¶70 As to the second interest, we recognize that anxiety and concern are an inherent part of being charged with a crime, and that the City’s “burden to show a lack of anxiety becomes considerably lighter in the absence of more than marginal evidence of anxiety.” Williams-Rusch, 279 Mont. at 452, 928 P.2d at 178; see also State v. Weeks (1995), 270 Mont. 63, 74, 891 P.2d 477, 483. Even in light of a diminished burden, however, the City’s only response has been to deny that Bruce suffered any anxiety or concern. It suggests that his failure to appear at the final hearing is evidence that he did not suffer anxiety or concern, although we fail to see a logical connection between his failure to appear and his level of anxiety.

¶71 We focus instead on the third interest. Although prejudice is presumed and it is the State’s burden to rebut it, the only evidence relating to impairment was presented by Bruce. Therefore, it is Bruce’s evidence we will discuss. Bruce contends that his defense was substantially impaired by the delay. Both he and the attorney who represented him through most of this matter testified that the delay impaired the defense because he was unable to locate important witnesses, and those he could locate could not remember events that had occurred almost three years earlier.

¶72 Prejudice from diminished memory is especially plausible based on the facts alleged in this case. For example, the charge here involves the fifteen-month period from June 1993 to August 1994; trial was eventually set for December 9, 1996. Witness testimony would necessarily encompass a prolonged period of time and, as the District Court noted, it goes without saying that witnesses’ memories suffered as more time passed between the period of the alleged offense and the time of trial. We also recognize that unlike some other offenses, the nature of the charge here is very fact-sensitive, and Bruce’s defense depended on all the parties’ and witnesses’ recollection of the period.

¶73 Furthermore, the record indicates that at least one witness who testified in the City Court trial was lost as a result of the delay in the District Court. Bruce’s former attorney testified that John Scott was his “main witness in the City Court trial” and that they had remained in contact until approximately May 1996, but that he could not locate him when the hearing was set for August 1996. Neither the City nor the District Court’s order addressed the potential impairment from the loss of that witness.

¶74 For these reasons, we conclude that the City has failed to rebut the presumption that Bruce’s defense was impaired.

¶75 No single factor of the Barker analysis is determinative, and each must be weighed in light of the facts of this case to determine if Bruce was denied his right to speedy trial. See Weeks, 270 Mont. at 72, 891 P.2d at 482; Moore, 268 Mont. at 67, 885 P.2d at 486. When we consider that over 500 days of delay occurred from the time that Bruce appealed this case until the time that a trial was finally set, and that for almost half of that period the City made no effort to ensure expeditious resolution of this matter, and that Bruce was prejudiced by the loss of evidence, we conclude that the City denied Bruce his right to speedy trial.

¶76 Although our criminal justice system is clearly strongest when a determination of each case can be made on the merits, we recognize that the system also depends on fundamental principles, such as the right to a speedy trial. The State or City must diligently pursue the prosecution of those who have been charged with a criminal offense, and when a defendant has been harmed and his defense impaired by the City’s failure to reasonably and timely try him, his constitutional right to a speedy trial has been denied and a decision on the merits is not possible.

¶77 Where a defendant’s right to speedy trial has been denied, we must reverse the conviction and dismiss the claim. See State v. Barker (1993), 261 Mont. 379, 385, 862 P.2d 1112, 1116 (citing Strunk, 412 U.S. 434, 93 S. Ct. 2260, 37 L. Ed. 2d 56). Accordingly, we need not address the remaining constitutional challenges raised by Bruce. We reverse the order of the District Court and dismiss the charge that is the subject of this appeal.

JUSTICES NELSON, REGNIER and HUNT concur.

JUSTICE LEAPHART,

specially concurring.

¶78 I concur in the result reached by the Court and in the Court’s ultimate method of resolving the speedy trial claims under the Montana Constitution. However, I do not agree with all of the Court’s analysis with regard to the third Barker factor; that is, assertion of the right to speedy trial. The Court reviews our confusing and inconsistent precedent on assertion of the right and then, relying on language from Barker that the nature of the speedy trial right makes it impossible to pinpoint a precise time in the process when the right must be asserted or waived, concludes that “there is no magical time for assertion of the right to a speedy trial which should be weighed more favorably to the defendant than some other time. So long as the defendant asserts his or her right to a speedy trial by a motion to dismiss on speedy trial grounds filed prior to the time of trial, we conclude that the defendant has satisfied the third-prong of the Barker test and that further analysis of that prong is not only unnecessary, but is inappropriate.” Although I agree that there is no magical time for assertion of the right, I do not agree that Barker rejects a weighing analysis when considering assertion of the right to a speedy trial. On the contrary, the United States Supreme Court’s consideration of the tardiness and infrequency of Barker’s assertion goes to the very heart of the Barker decision.

¶79 In rejecting Barker’s speedy trial claim, the Court noted that, in addition to the absence of serious prejudice, the record did not indicate any action whatsoever between October 21,1958 and February 12,1962 which could be construed as the assertion of the speedy trial right. Although Barker did make a motion to dismiss in February 1962, the record did not show on what ground the motion was based, “[ijnstead the record strongly suggests that while he hoped to take advantage of the delay in which he had acquiesced, and thereby obtain a dismissal of the charges, he definitely did not want to be tried.” Barker, 407 U.S. at 535, 92 S.Ct. 2182.

We do not hold that there may never be a situation in which an indictment may be dismissed on speedy trial grounds where the defendant has failed to object to continuances. There may be a situation in which the defendant was represented by incompetent counsel, was severely prejudiced, or even cases in which the continuances were granted ex parte. But barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial. We hold, therefore, that Barker was not deprived of his due process right to a speedy trial.

Barker, 407 U.S. at 536, 92 S.Ct. 2182.

¶80 It is apparent from the Supreme Court’s conclusion, that, had Barker asserted his right to a speedy trial earlier on and more frequently, his speedy trial claim would have carried more weight. Although Barker eventually filed a motion to dismiss before trial, the Court concluded that his acquiescence in continuances without objection for over three years indicated that “[he] did not want a speedy trial.” I do not agree that we can invoke Barker for the proposition that, so long as the defendant files a speedy trial motion sometime prior to trial, any further analysis of the timing is inappropriate. If further analysis of the timing were inappropriate, the Court would have accepted Barker’s pretrial motion on its face and would not have engaged in an analysis of what Barker “really wanted” when the motion was viewed in the context of his three plus years of lying in the weeds.

¶81 Although I do not agree that this Court’s non-weighted, “either you asserted the right or you did not” approach is consistent with Barker v. Wingo, I recognize that it favors the defendant over an approach in which the timing of a speedy trial motion is scrutinized. Accordingly, since the rule adopted by this Court offers more, not less, protection to the defendant, I concur in the result.

JUSTICE GRAY joins in the foregoing special concurrence.


source: Caselaw Access Project

author: JUSTICE REGNIER

license: Public Domain

text:
    JOSEPH EVE & CO., Plaintiff and Appellant, v. CATHERINE B. ALLEN, Defendant and Respondent.
    No. 97-405.
    Submitted on Briefs May 14, 1998.
    Decided July 29, 1998.
    1998 MT 189.
    55 St.Rep. 767.
    290 Mont. 175.
    964 P.2d 11.

      For Appellant: Steven T. Potts; Thompson, Jacobsen & Potts, P.C.; Great Falls.
    For Respondent: T. Thomas Singer and Christopher J. Flann; Moulton, Bellingham, Longo & Mather, PC.; Billings.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 In March 1996, plaintiff and appellant, Joseph Eve & Co., filed an action in the Thirteenth Judicial District Court, Yellowstone County, against Catherine B. Allen to recover amounts allegedly due under the terms of a professional employment contract entered into by the parties. Allen answered, and counterclaimed. The parties subsequently filed cross-motions for partial summary judgment as to the enforceability of a non-competition clause contained in paragraph nine of the employment contract. The District Court found the clause enforceable and ordered partial summary judgment in Eve’s favor, and the case proceeded to trial in March 1997. The jury returned a verdict in Allen’s favor, but determined that neither party was entitled to recover damages from the other. The court entered its judgment on March 10,1997, ordering the action dismissed on the merits. It is from entry of this judgment that Eve presently appeals. For the reasons discussed below, we affirm.

¶2 We find the following issues dispositive on appeal:

¶3 1. Did the District Court err in instructing the jury regarding the reasonableness and enforceability of the covenant not to compete contained in the parties’ professional employment contract, and in submitting a verdict form which instructed the jury to determine whether the covenant should have been enforced against Allen?

¶4 2. Did the District Court err in denying Eve’s motion for a directed verdict?

¶5 3. Did the District Court err in denying Eve’s motion to alter or amend the judgment or for a new trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 In 1991, Catherine Allen and her partner, Robert Murray, both certified public accountants practicing in Billings, Montana, sold their accounting practice to the certified public accounting firm of Joseph Eve & Co. Allen was interested in working for Eve after the sale. The parties, therefore, entered into two separate contracts in connection with the sale, one of which was a purchase and sale agreement dated December 2, 1991, the other a professional employment contract of the same date.

¶7 The purchase and sale agreement contained a provision pursuant to which Allen agreed not to compete with Eve “for a period of three years from the date of closing.” Allen agreed, for example, that she would not “[d]irectly or indirectly engage in or establish an office for the purpose of engaging in public accounting business within Billings, Montana, Yellowstone County, or any county adjacent to Yellowstone County, Montana.” The purchase and sale agreement also contained a purchase option pursuant to which Allen would “have the option to purchase the clients listed in Exhibits ‘B’ and ‘C’ from the Purchasers on January 1,1995, at a mutually agreed-upon price.” ¶8 The second contract entered into by the parties on December 2, 1991, was a professional employment contract pursuant to which Allen became Eve’s employee. The term of the employment contract was to commence on the date signed and “continue for six months on a probationary basis.” After the initial six-month period, the contract could “be terminated by either party or extended until terminated by either party.” The employment contract also contained a covenant not to compete, embodied in paragraph nine of the document. Paragraph nine, entitled “Post-Employment Representation of Partnership Clients,” provides in pertinent part as follows:

It is specifically understood and agreed that upon termination of the Employee’s employment for any reason whatsoever, the Employee may represent any client of the Partnership. In the event that the Employee begins to serve a client of the Partnership at any time within three (3) years after the effective date of the termination of this agreement, the Employee agrees to pay to the Partnership fifty percent (50%) of the gross fees collected from any such client or clients during the said three (3) year period, or, if the fees have not been collected during such period, fifty percent (50%) of the gross fees billed for services during such period, or, if such fees have not been billed, fifty percent (50%) of the gross fees which could have been billed for services during such period at generally prevailing rates. The Employee shall account annually on each anniversary date of the termination of this agreement for all services rendered to any such client or clients during such three (3) year period and the amount due the Partnership for such year shall be due and payable therewith.

¶9 In summary, Allen agreed to sell her practice to Eve and become its employee. She was not obligated to work for Eve for any period of time, but she agreed not to compete with Eve for a period of three years. She had the option to acquire her client base back from Eve after three years. If she chose not to exercise the option but still represented those clients, she agreed to pay Eve a percentage of the fees she generated from those clients for up to three years.

¶10 On December 13,1994, three years after she began working for Eve, Allen notified the company of her intent to leave its employ. Allen initially indicated that she intended to exercise her purchase option, and negotiated with Eve for the purchase of various client accounts. Negotiations were unsuccessful, however, and on December 27,1994, Allen’s attorney notified Eve that she had “decided not to exercise her option to purchase the client accounts,” but to instead take client accounts with her and make payments pursuant to paragraph nine of her employment contract.

¶11 Allen left Eve’s employ in late December 1994, and performed services for former Eve clients during 1995. Although she had performed services for Eve’s clients, Allen refused to make the first payment due pursuant to the employment contract on the grounds that Eve had refused to provide her with the necessary client files.

¶12 In light of Allen’s refusal to pay, Eve filed suit on March 21, 1996, to recover those amounts allegedly due under paragraph nine of the employment contract. Allen answered, asserted several affirmative defenses, and counterclaimed against Eve. Among the affirmative defenses Allen asserted was that Eve “is barred from enforcing or recovering under the Professional Employment Contract because [Eve] breached that Contract by refusing to release client files to the Defendant even after receiving requests to do so from clients.”

¶13 On December 31,1996, Eve filed a motion for partial summary judgment as to the enforceability of paragraph nine of the professional employment contract. Allen responded, and on February 7, 1997, filed her own motion for partial summary judgment asking the court to hold that “paragraph 9 of the Professional Employment Agreement is unreasonable as a matter of law, and hence unenforceable.”

¶ 14 The District Court issued an order on February 13,1997, granting Eve’s motion for partial summary judgment and denying Allen’s. Relying on our decision in Dobbins, Deguire & Tucker v. Rutherford (1985), 218 Mont. 392, 708 P.2d 577, the District Court held that “the provision at issue in the case at bar is not an unreasonable restraint on the profession of public accounting,” and was thus enforceable.

¶15 The case was tried before a Yellowstone County jury on March 3-5,1997. At the close of trial, each party moved for a directed verdict. The District Court denied both motions, and the case went to the jury. The jury determined that paragraph nine of the employment contract should not be enforced against Allen. Of particular note, the jury also found Eve in breach of the employment contract, but awarded Allen no damages. Accordingly, on March 10,1997, the court entered a judgment providing that neither party take anything, and ordering the action dismissed on its merits.

¶16 On March 28,1997, Eve renewed its motion for judgment as a matter of law pursuant to Rule 50, M.R.Civ.P., and filed an alternative motion to alter or amend the judgment or for a new trial, pursuant to Rule 59, M.R.Civ.P. The court never issued an order in response to Eve’s motion, which was deemed denied pursuant to Rule 59(g), M.R.Civ.P.

¶17 On June 23,1997, Eve filed its notice of appeal from the judgment entered by the District Court on March 10,1997.

ISSUE 1

¶ 18 Did the District Court err in instructing the jury regarding the reasonableness and enforceability of the covenant not to compete contained in the parties’ professional employment contract, and in submitting a verdict form which instructed the jury to determine whether the covenant should have been enforced against Allen?

¶ 19 We review discretionary trial court rulings, such as the giving of jury instructions, to determine whether the district court abused its discretion. Hislop v. Cady (1993), 261 Mont. 243, 247, 862 P.2d 388, 390.

¶20 On appeal, Eve argues the District Court erroneously submitted the question of the professional employment contract’s enforceability to the jury. Eve notes that the District Court, in deciding the parties’ cross-motions for partial summary judgment, ruled prior to trial that paragraph nine of the parties’ employment contract was in fact enforceable. Because the court had already determined that the employment contract was enforceable, Eve asserts, it erred in submitting the issue of enforceability to the jury by way of numerous instructions and an improper verdict form. Eve specifically takes issue with instruction numbers 18,19, and 21, and with that portion of the special verdict form which asked the jury to decide whether or not paragraph nine of the professional employment agreement “should be enforced against Catherine Allen.” Eve additionally asserts the court erred in failing to instruct the jury that the professional employment agreement was enforceable as a matter of law.

A. Instruction Number 21

¶21 For the purposes of our discussion, we turn first to Eve’s argument that the court erred in offering jury instruction number 21. During the settlement of instructions, the court ordered that Allen’s offered instruction number 7A be given to the jury as instruction number 21. Instruction number 21 provided as follows:

Any contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind is to that extent void.
A covenant in a contract that restrains trade may be enforced if it is reasonable. For a covenant to be reasonable:
(1) the covenant should be limited in operation either as to time or place;
(2) the covenant should be based on some good consideration; and
(3) the covenant should afford a reasonable protection for and not impose an unreasonable burden upon the employer, the employee or the public.

¶22 Eve argues it was improper for the court to approve the foregoing instruction because it placed the issue of the employment contract’s enforceability, already decided by the court on summary judgment, before the jury. Eve asserts the court thus failed to apply its summary judgment ruling, and effectively disregarded its prior conelusion that paragraph nine of the professional employment contract was “not an unreasonable restraint on the profession of public accounting,” and was thus enforceable. Eve notes that Allen has not appealed from the District Court’s summary judgment order, and asserts the court’s conclusion regarding the contract’s enforceability is thus final.

¶23 In response, Allen notes that the District Court did not grant summary judgment on the issue of liability, and asserts that it was thus proper for the court to submit to the jury the question of whether the employment contract, including paragraph nine, was reasonable and enforceable in the present case. Allen argues that, because there were several factual issues in this case, the District Court was not empowered to determine the reasonableness and enforceability of the employment contract as a matter of law. Allen notes that the District Court merely found the covenant at issue “not unreasonable” when it granted Eve’s motion for partial summary judgment, and argues the court thus left “the jury as finders of fact to determine reasonableness” and enforceability under the circumstances of this case. After hearing those facts, Allen contends, the jury “correctly declined to enforce paragraph nine” of the professional employment contract against Allen.

¶24 In granting summary judgment in Eve’s favor, the District Court relied on our decision in Dobbins, and upheld the enforceability of that section of the parties’ contract which obligated Allen to pay Eve a portion of any fees she billed to Eve’s former clients during the first three years after she terminated her employment. In Dobbins, we recognized that for a covenant such as the one at issue in the present case to be reasonable, it must be limited in operation either as to time or place and must be based on some good consideration. Dobbins, 218 Mont. at 396, 708 P.2d. at 580. We also held that such a covenant “should afford only a fair protection to the interests of the party in whose favor it is made, and must not be so large in its operation as to interfere with the interests of the public.” Dobbins, 218 Mont. at 396, 708 P.2d at 580 (quoting O’Neill v. Ferraro (1979), 182 Mont. 214, 218-19, 596 P.2d 197, 199).

¶25 The District Court explicitly discussed each of the foregoing factors in its summary judgment order before concluding that the provision at issue in the present case was not unreasonable and, therefore, was enforceable. For example, the court recognized that “the covenant is limited to three years, was based on Allen receiving a fair salary, and does not impose an unreasonable burden on Eve, Allen, or the public.” In light of the foregoing, the court expressly ruled that, as a matter of law, “the provision at issue in the case at bar is not an unreasonable restraint on the profession of public accounting,” and found it enforceable. As Allen has not filed a cross-appeal from the District Court’s summary judgment decision, that decision is final.

¶26 Despite its summary judgment ruling, the court instructed the jury at the close of trial that a covenant in restraint of trade may be enforced if reasonable. In so doing, the court set forth for the jury’s consideration the precise factors it had previously considered in reaching its determination that the covenant in question was both reasonable and enforceable. It is thus apparent that Instruction number 21 did nothing but instruct the jury to redetermine the validity of the covenant contained in the parties’ employment contract and thereby adjudicate an issue already decided by the District Court on summary judgment. We conclude it was error for the court to instruct the jury to redetermine an issue the court had already resolved on summary judgment.

¶27 Although we conclude the court erred in giving instruction number 21, it is for the reasons discussed below that we conclude the court’s error was harmless. As noted above, the District Court clearly granted partial summary judgment in Eve’s favor as to the enforceability of paragraph nine of the parties’ employment contract. The District Court found that paragraph nine was not facially an unlawful restraint of trade and, therefore, was enforceable. The court correctly determined, however, that this did not end the inquiry. The District Court did not grant summary judgment on the ultimate question of either party’s liability under the terms of that contract or the contract’s enforceability against either party under the factual circumstances present in this case. It was thus appropriate for the court to permit the jury, as finders of fact, to determine the liability of the respective parties under the terms of the contract and in light of the facts presented at trial.

¶28 Allen contended throughout the litigation that she should be relieved of any responsibility to pay Eve a percentage of the fees in question because Eve denied her access to certain client files. The jury was charged with the responsibility of sifting out and deciding the liability questions in this case. In reviewing the special verdict form, we note that the jury specifically found that Eve breached the professional employment contract, presumably for failing to deliver the files as Allen argued. Therefore, although we conclude the court erred in instructing the jury regarding the contractual covenants, the error played no role in the jury’s ultimate verdict and was harmless.

B. Instruction numbers 18 and 19

¶29 In a similar vein, Eve asserts the District Court abused its discretion in giving instruction numbers 18 and 19 regarding partial performance and breach of contract. Instruction number 18 advised the jury that: “If one of the contracting parties materially breaches a contract, the injured party is entitled to suspend his or her performance.”

¶30 Instruction number 19 explained that: “The failure of a party to fully perform a contract is excused if his performance is prevented or delayed by the conduct of the other party.”

¶31 As it did with respect to Instruction number 21, Eve argues instruction numbers 18 and 19 improperly placed issues before the jury that had been resolved by the District Court on summary judgment. For example, Eve notes that Allen argued on summary judgment that Eve had breached the terms of the parties’ professional employment agreement, and was thus precluded from enforcing it against Allen. Eve contends the fact that the District Court ordered partial summary judgment in its favor, indicates the court considered and rejected Allen’s argument that she was entitled to suspend her performance due to Eve’s alleged breach. Because the District Court rejected Allen’s argument on summary judgment, Eve argues, it consequently erred in giving instruction numbers 18 and 19.

¶32 As we noted above, the District Court ordered partial summary judgment in Eve’s favor, concluding the contractual provision at issue was not unreasonable and was thus enforceable. Although Allen argued in opposition to Eve’s motion for summary judgment that Eve had itself breached the parties’ employment contract, the District Court did not address that argument in its summary judgment order. Rather, the District Court simply concluded that paragraph nine of the professional employment contract was enforceable as a matter of law. The court did not, however, order summary judgment in Eve’s favor on the issue of liability, and did not address Allen’s argument that she was excused from performing her contractual obligations due to Eve’s failure to perform. That the court concluded the covenant at issue was enforceable as a matter of law did not preclude it from submitting to the jury the question of whether the contract was enforceable against either party under the facts presented at trial. As the court properly left it to the jury to determine the liability of the respective parties, it did not abuse its discretion in giving instruction numbers 18 and 19. In fact, these two instructions go to the very heart of Allen’s case and she was clearly entitled to have the jury so instructed.

C. Failure to instruct jury as to contract’s enforceability

¶33 Eve next asserts the District Court erred in refusing to instruct the jury that the parties’ professional employment agreement was a binding contract. Eve offered the following as its nineteenth proposed instruction:

You are instructed that the following facts are true and require no proof:
Catherine Allen provided accounting services to former clients of Joseph Eve & Co. On or before December 31, 1995, Allen performed $58,806.20 of work for clients who had formerly been clients of Eve. Allen collected $34,574.75 of this during 1995, $2,608.45 was owing at the end of 1995, and $150.00 was uncollectible. Allen did not bill the remaining $21,773.00 until after December 31,1995.
The Professional Employment Agreement between Joseph Eve & Co. and Catherine Allen, Exhibit 2, was a binding contract.

¶34 The District Court issued Eve’s proposed instruction number 19 as instruction number 11, but in so doing deleted the final sentence regarding the binding nature of the contract. Eve argues the court erred in failing to abide by its prior summary judgment ruling and in refusing to instruct the jury that, as a matter of law, the employment contract was enforceable.

¶35 We review the district court’s refusal to give jury instructions for an abuse of discretion. See Northwest Truck & Trailer Sales, Inc. v. Dvorak (1994), 269 Mont. 150, 157, 887 P.2d 260, 264.

¶36 As noted above, the District Court ruled on summary judgment that paragraph nine of the parties’ employment contract was “not unreasonable,” and was thus enforceable. The court did not, however, rule upon the question of liability and thus did not determine whether the contract was ultimately binding upon either party under the circumstances of this case. In other words, although the District Court addressed the contract’s enforceability as a matter of law, it did not address the contract’s effect, binding or not, upon the parties under the facts in this case. Actually, the last sentence in the court’s instruction number 11, which Eve argues should have been included but was stricken by the District Court, amounts to a comment on the evidence. Accordingly, we hold the District Court did not abuse its discretion in refusing to direct the jury that the contract at issue was binding upon the parties.

D. Special verdict form

¶37 In a related argument, Eve argues the District Court erred in submitting a special verdict form which specifically asked the juiy to determine the following: “Do you find that Paragraph 9 of the Professional Employment Agreement should be enforced against Catherine Allen?”

¶38 Eve again asserts that, because the District Court ruled on the contract’s enforceability prior to trial, it erred in permitting the jury to determine whether the contract should have been enforced against Allen.

¶39 As we have above, we again note the limited nature of the District Court’s summary judgment order. Because the court simply found the provision at issue enforceable as a matter of law, but made no determination as to the contract’s enforceability against either party under the factual circumstances of this case, we conclude the court did not err in submitting the special verdict form at issue.

ISSUE 2

¶40 Did the District Court err in denying Eve’s motion for a directed verdict?

¶41 We review a District Court order denying a motion for a directed verdict in the light most favorable to the non-moving party. Wise v. Ford Motor Co. (1997), 284 Mont. 336, 343, 943 P.2d 1310, 1314.

¶42 At the close of evidence, Eve orally moved for a directed verdict, incorporating “the same argument that it made on its motion for summary judgment” in December 1996. Eve again pointed to the court’s summary judgment order, and argued that because the court had concluded the professional employment agreement was enforceable, and because “it is absolutely clear that Allen has not complied with” the terms of that agreement, Eve was entitled to a directed verdict.

¶43 The District Court denied Eve’s motion, and Eve appeals. Eve asserts “the district court had ruled as a matter of law in connection with the summary judgment that the Professional Employment Agreement was enforceable,” and argues the court again failed to apply its ruling on this point when it denied Eve’s motion for a directed verdict. Allen, in contrast, notes that “[t]he underlying facts were at issue here,” and argues the District Court properly denied Eve’s request for a directed verdict.

¶44 As we have discussed at length above, the District Court did not grant summary judgment in Eve’s favor on the question of liability, and merely held that that portion of paragraph nine which required Allen to pay Eve a portion of any fees she billed to Eve’s former clients was “not unreasonable,” and, therefore, was enforceable. As the court did not determine the parties’ liability under the terms of that contract, however, the court did not err in permitting the case to go to the jury. Accordingly, we hold the District Court did not err in denying Eve’s motion for a directed verdict.

ISSUE 3

¶45 Did the District Court err in denying Eve’s motion to alter or amend the judgment or for a new trial?

¶46 We review the District Court’s denial of Eve’s motion to alter or amend or for a new trial for an abuse of discretion. See, e.g., Estate of Nielsen v. Pardis (1994), 265 Mont. 470, 478, 878 P.2d 234, 238.

¶47 On March 28, 1997, Eve filed a motion to alter or amend the judgment, or for a new trial, pursuant to Rule 59(g), M.R.Civ.P. Eve argued that it made its motion

for the reason that the judgment conflicts with the Court’s order granting plaintiff’s motion for partial summary judgment and is based upon error in law which occurred at the trial and which was excepted to by the plaintiff; and irregularity in the proceedings by defendant Allen, who failed to disclose prejudicial material during discovery and then relied upon it in her testimony.

¶48 The District Court did not rule on Eve’s motion, which was deemed denied after sixty days pursuant to Rule 59(g), M.R.Civ.P. Eve appeals, arguing “[t]he evidence at trial did not justify denying Eve recovery,” and again asserting the District Court erroneously disregarded its prior summary judgment order. Eve merely refers this Court “to the argument made in preceding sections for authorities showing that the district court was wrong to enter final judgment denying relief to Eve.”

¶49 In light of our determination that the District Court did not err in permitting the jury to determine whether the parties’ employment contract was enforceable against Allen under the facts of this case, we similarly conclude the court did not err in denying Eve’s motion to alter or amend or for a new trial.

¶50 Affirmed.

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


text:
    IN RE PATERNITY AND CUSTODY OF B.E.S., A Minor Child. JAMES LEWIS, Petitioner and Respondent, v. MELISSA SOWERS, n/k/a MELISSA GREENE, Respondent and Appellant.
    No. 97-680.
    Submitted on Briefs June 11, 1998.
    Decided July 29, 1998.
    1998 MT 190.
    55 St.Rep. 773.
    290 Mont. 188.
    963 P.2d 449.

      For Appellant: Marcia Birkenbuel, Attorney at Law; Great Falls.
    For Respondent: Daniel L. Falcon, Attorney at Law; Great Falls.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 In August 1995, James Lewis filed a petition in the Eighth Judicial District Court, Cascade County, to establish paternity, custody, and visitation rights as the father of then three-year-old B.E.S. In June 1997, Lewis filed a motion for contempt and for specified visitation on the grounds that the child’s mother, Melissa Sowers (now known as Melissa Greene and hereinafter referred to as Sowers) had denied him reasonable visitation. Sowers later filed a motion asking that the District Court decline to exercise continuing jurisdiction over the matter. The court denied Sowers’ motion to decline jurisdiction, and subsequently entered an oral order granting Lewis much of the relief he sought by way of his motion for contempt and specified visitation. Sowers appeals from the District Court’s order denying her motion to decline jurisdiction and from the court’s oral order granting Lewis’s motion for specified visitation and request for attorney fees.

¶2 The sole dispositive issue presented by Sowers on appeal is whether the District Court abused its discretion in denying her motion to decline jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 B.E.S. was born in Great Falls, Montana, on March 29,1992, to Melissa Sowers and James Lewis. The relationship between Sowers and Lewis had begun to deteriorate prior to B.E.S.’s birth, and the two never married. The record indicates that Lewis’s paternity was initially established by blood tests performed in 1994.

¶4 B.E.S. has lived with her mother for her entire life. B.E.S. lived in Great Falls with her mother from the time of her birth until the summer of 1997, when she and her mother moved to Fargo, North Dakota, to live with Sowers’ new husband. On August 15, 1995, while B.E.S. and her mother were still living in Great Falls, Lewis filed a petition in Cascade County District Court to establish paternity, custody, and visitation rights as B.E.S.’s father. Lewis is a Wisconsin resident, as he was at the time he filed the petition in August 1995.

¶5 On March 6,1996, Lewis filed a motion for temporary visitation on the grounds that he and Sowers had been unable to negotiate an acceptable visitation schedule. On March 15,1996, Sowers filed a motion for an order requiring Lewis to pay temporary child support, to maintain health insurance for B.E.S. and to pay all of the child’s uncovered medical expenses. The court held a hearing on March 18, 1996, to address the parties’ respective motions. Prior to the hearing, the parties reached an agreement with respect to temporary visitation, temporary child and medical support, and a variety of other issues. The parties entered their stipulations upon the record during the hearing.

¶6 More than one year later, on June 24,1997, Lewis filed a “motion for contempt, for specified visitation, and other relief.” Lewis asserted he had been denied visitation with his daughter on a regular basis, and asked the court to order “a set visitation schedule.” Lewis additionally asked that the court hold Sowers “in contempt for her failure to abide by past orders, and to live up to her obligations under the joint custody statutes regarding maintaining contact between” B.E.S. and Lewis. Among Lewis’s remaining requests were that the court issue an order temporarily prohibiting Sowers from removing B.E.S. from the court’s jurisdiction, and that it order Sowers to pay the attorney fees and costs he incurred in connection with filing the motion.

¶7 On July 10,1997, the District Court issued a temporary order mandating that B.E.S. “remain in Great Falls, Montana, with her maternal grandmother, until a hearing can be held in this matter.” The court set a hearing to address the remainder of Lewis’s motion for October 31,1997.

¶8 OnSeptember 19,1997, Sowers filed a motion for an order declining jurisdiction. Sowers asked that the court decline “to exercise continuing jurisdiction in this matter for the reasons that this state is an inconvenient forum, pursuant to Section 40-7-108, MCA, and the child’s home state of North Dakota is a more appropriate forum for this case.” Sowers noted that Lewis was a resident of Wisconsin, and argued that because she and B.E.S. were residents of North Dakota, “[a]ny evidence regarding the child’s present or future care, protection, training, and personal relationships is more readily available in North Dakota than in Montana.” Sowers argued that “[t]he state of North Dakota obviously has a closer connection with the child and her family than Montana has,” and asserted that the continued exercise of jurisdiction by Montana’s courts would contravene the purpose of the Uniform Child Custody Jurisdiction Act.

¶9 On October 29,1997, the District Court issued an order denying Sowers’ motion for an order declining jurisdiction, finding that, at the time Lewis filed his motion for contempt, for specified visitation, and other relief, “Montana was clearly the home state of the child and it is at that point that the determination is made.” The court additionally noted that, as of the October 29,1997, date of its order, B.E.S. had “yet to live for a six month period of time in North Dakota.”

¶10 OnOctober31,1997, the court held a hearing on Lewis’s motion for contempt, visitation, and other relief. At the close of the hearing, the court entered an oral order granting Lewis certain visitation rights, and mandating that Sowers pay a portion of Lewis’s attorney fees and costs.

¶11 On November 26,1997, Sowers filed her notice of appeal from the District Court’s October 29,1997, order denying her motion to decline jurisdiction, and from its October 31,1997, oral order regarding visitation and attorney fees.

DISCUSSION

¶12 Did the District Court abuse its discretion in denying Sowers’ motion to decline jurisdiction?

¶ 13 As noted, Sowers appeals from the District Court’s order denying her motion to decline jurisdiction, as well as from its subsequent order granting Lewis certain visitation rights and mandating that she pay a portion of his attorney fees and costs. Although Sowers appeals from both orders, the sole issue she raises on appeal is whether the court erred in denying her motion to decline jurisdiction. We review the District Court’s decision denying Sowers’ motion to decline jurisdiction for an abuse of discretion. See, e.g., In re Marriage of Irwin (1993), 259 Mont. 176, 179, 855 P.2d 525, 527.

¶14 On appeal, Sowers argues the District Court failed to complete the two-tiered jurisdictional analysis required by the Uniform Child Custody Jurisdiction Act (UCCJA), and that it was thus an abuse of discretion for the court to deny her motion to decline jurisdiction. Although Sowers does not specifically dispute the District Court’s conclusion that Montana was B.E.S.’s “home state” at the time of Lewis’s motion for contempt and visitation, she does assert the court erred in ending its jurisdictional inquiry at that point. Sowers argues that once the court had evaluated the jurisdictional prerequisites of § 40-4-211, MCA, it was bound to then determine whether Montana’s courts were an inconvenient forum to make a custody determination under the circumstances present at the time of her September 19, 1997, motion to decline jurisdiction. More specifically, Sowers argues the court abused its discretion in failing to address those factors identified in § 40-7-108(3), MCA, as relevant to an inconvenient forum determination. For example, although Sowers concedes the court considered whether another state was B.E.S.’s home state, she argues the court failed to consider whether another state had a closer connection with the child and whether substantial evidence regarding B.E.S.’s welfare was more readily available in another state. Sowers also argues the court failed to consider whether the continued exercise of jurisdiction by Montana’s courts would contravene the purposes of the UCCJA as set forth in § 40-7-102, MCA. Based on the foregoing, Sowers asks that we vacate the District Court’s decision, and remand this matter “with instructions to stay the District Court proceedings pending assumption of jurisdiction over these matters by the North Dakota court.”

¶15 Lewis, in contrast, argues the District Court correctly concluded it had jurisdiction over the present case pursuant to § 40-4-211, MCA, and asserts the court did not abuse its discretion in deciding to maintain jurisdiction over the matter. More specifically, Lewis argues the District Court correctly concluded that Montana was B.E.S.’s “home state,” and argues the court thus had jurisdiction pursuant to § 40-4-211, MCA.

¶16 Lewis next recognizes that § 40-7-108, MCA, authorizes a Montana court to decline jurisdiction “at any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum,” but argues the court was not obligated to undertake such an analysis. Even if it was necessary for the court to address the inconvenient forum question, however, Lewis argues there was no more appropriate forum in this case than that presented by Montana’s courts. For example, Lewis asserts that “all relevant evidence pertaining to B.E.S.’s care, training, [and] personal relationships” was located in Montana at the time he filed his motion for contempt and visitation. Moreover, unlike Sowers, Lewis asserts that the District Court’s decision to maintain jurisdiction in this case actually complies with the stated purposes of the UCCJA. Based on the foregoing, Lewis argues the District Court did not abuse its discretion in denying Sowers’ motion to decline jurisdiction.

¶17 We have previously stated that the UCCJA “establishes a two-tiered jurisdictional test which a court must find satisfied before it makes even an initial custody decree.” In re Marriage of Bolton (1984), 212 Mont. 212, 216, 690 P.2d. 401, 403 (quoting Wenz v. Schwartze (1979), 183 Mont. 166, 178, 598 P.2d 1086, 1093, cert. denied (1980), 444 U.S. 1071, 100 S. Ct. 1015, 62 L. Ed. 2d 753). The first tier “mandates that one of the four disjunctive requirements of Section 40-4-211, MCA, be satisfied before a district court may take jurisdiction to make a child custody determination.” Bolton, 212 Mont. at 216, 690 P.2d at 403. Section 40-4-211(1), MCA, provides in pertinent part that “[a] court of this state competent to decide parenting matters has jurisdiction to make a parenting determination by initial or amended decree if: (a) this state: (i) is the home state of the child at the time of the commencement of the proceedings.”

¶18 In the present case, the District Court specifically concluded that because B.E.S. had “yet to live for a six month period of time in North Dakota” at the time of Lewis’s motion for contempt and specified visitation, or the time of its order, “Montana was clearly the home state of the child.” Because Sowers does not specifically dispute this conclusion on appeal, we need not determine whether the court erred in concluding that Montana qualified as B.E.S.’s “home state” as that term is defined by § 40-7-103(5), MCA. It is thus apparent that the first tier' of the UCCJA’s jurisdictional test was met in the present case.

¶19 The second tier of the UCCJA’s jurisdictional test “demands that a court which has satisfied the prerequisites of Section 40-4-211, MCA, then determine whether jurisdiction should be exercised.” Bolton, 212 Mont. at 220, 690 P.2d at 405. Under this second tier, the district court has “discretionary authority to ‘decline to exercise its jurisdiction’ upon a determination that it is an ‘inconvenient forum’ and that a court of another state is a ‘more appropriate forum.’” Bolton, 212 Mont. at 216-17, 690 P.2d at 403 (citing § 40-7-108, MCA). We have explicitly recognized that “[t]he decision to decline jurisdiction on inconvenient forum grounds is purely discretionary with the District Court.” In re Marriage of Cook (1986), 223 Mont. 293, 297, 725 P.2d 562, 564-65. We have stated that the court, in determining whether it is an inconvenient forum, “shall consider if it is in the child’s best interest for another state to assume jurisdiction, taking into account such factors as whether another state is the child’s home state, whether substantial evidence concerning the child’s welfare is more readily available in another state, and whether the exercise of jurisdiction by a Montana court would contravene the UCCJA’s stated purposes.” Irwin, 259 Mont. at 179, 855 P.2d at 527 (citing § 40-7-108(3), MCA). Section 40-7-108(3), MCA, specifically provides that:

In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(a) if another state is or recently was the child’s home state;
(b) if another state has a closer connection with the child and his family or with the child and one or more of the contestants;
(c) if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
(d) if the parties have agreed on another forum which is no less appropriate; and
(e) if the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in 40-7-102.

¶20 Although the District Court considered the “home state” factor, it is clear from the text of its order denying Sowers’ motion to decline jurisdiction that it did not specifically evaluate any of the remaining statutory factors before deciding to maintain jurisdiction over the present case. Despite the fact that the court did not expressly discuss the remaining criteria identified by § 40-7-108(3), MCA, we nevertheless conclude the court did not abuse its discretion in denying Sowers’ motion to decline jurisdiction. Nowhere does § 40-7-108(3), MCA, mandate that the court consider each of the five factors set forth within. Instead, the statute simply lists a number of elements which the court may consider in making an inconvenient forum determination. In the present case, the court clearly considered the first factor set forth in § 40-7-108(3), MCA, and concluded that Montana was B.E.S.’s home state. The record indicates that B.E.S. spent the first five years of her life in Great Falls, Montana, and moved to North Dakota in early July 1997, just days after Lewis filed his motion for contempt and for specified relief. Sowers filed her motion asking that the court decline to exercise continuing jurisdiction over the case just two and one-half months after B.E.S. had moved to North Dakota. At the time of Sowers’ motion to decline jurisdiction, B.E.S. had lived in Montana for all but two and one-half months of her life. Under these circumstances, there is no indication that B.E.S. and her family had any closer connection to North Dakota then they did to Montana, and no indication that evidence regarding B.E.S.’s welfare was any more readily available in North Dakota than it was in her home state of Montana. Finally, we note there is no indication that the exercise of continuing jurisdiction by the Montana court in this case contravenes any of the nine general purposes of the UCC JA, among which is the deterrence of “unilateral removals of children undertaken to obtain custody awards.” Section 40-7-102(l)(e), MCA.

¶21 Based on the foregoing, we hold the District Court did not abuse its discretion in denying Sowers’ motion to decline jurisdiction, and accordingly affirm the court’s October 31,1997, oral order regarding visitation and attorney fees.

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