author: JUSTICE TRIEWEILER

text:
    STEPHANIE VAN TROBA, Plaintiff and Respondent, v. MONTANA STATE UNIVERSITY and NCAA INITIAL ELIGIBILITY CLEARINGHOUSE, Defendants, NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant and Appellant.
    No. 98-195.
    Submitted on Briefs July 29, 1998.
    Decided December 3, 1998.
    1998 MT 292.
    55 St.Rep. 1196.
    291 Mont. 522.
    970 P.2d 1029.

      For Appellant: William M. Brooke and Allan H. Baris; Moore, O’Connell & Refling, P.C.; Bozeman.
    For Respondent: Brian M. Morris and Richard J. Dolan; Goetz, Madden & Dunn, PC.; Bozeman (for Stephanie Van Troba); Leslie C. Taylor, Attorney at Law; Bozeman (for Montana State University).
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 Stephanie Van Troba filed a complaint in the District Court for the Eighteenth Judicial District in Gallatin County against Montana State University and the National Collegiate Athletic Association after she was ruled ineligible to participate in intercollegiate athletics during her freshman year of college. After a hearing, the District Court issued a preliminary injunction which enj oined the NCAA from enforcing its rules of freshman eligibility against Van Troba and ordered that she be permitted to participate with the women’s basketball team at MSU. The NCAA appeals. We hold that the appeal is moot and remand this case to the District Court.

¶2 The parties present two primary issues on appeal:

¶3 1. Does the conclusion of the 1997-98 academic and athletic year render the NCAA’s appeal moot?

¶4 2. Did the District Court err when it granted the prehminary injunction?

FACTUAL BACKGROUND

¶5 The following facts are adopted primarily from the District Court’s findings of fact.

¶6 Stephanie Van Troba graduated in June 1997 from Palmer High School in Alaska. In April 1997, she had signed a letter of intent with Montana State University, which is a member of the National Collegiate Athletic Association. Pursuant to the letter of intent and NCAA rules, Stephanie agreed to enroll at MSU and accept a full athletic scholarship from the school, in exchange for her commitment to participate intercollegiately as a member of the MSU women’s basketball team.

¶7 The NCAA requires incoming student-athletes to have met certain academic standards in order to be eligible to compete in intercollegiate athletics during their freshman year. Its certification system relies on the evaluation of courses from thousands of high schools, and on the specific approval of each prospective student-athlete’s high school course work and college entrance exam scores. A separate organization known as the NCAA Initial Eligibility Clearinghouse is responsible for that review.

¶8 An incoming freshman student-athlete must complete at least thirteen “core courses” as part of her high school course work to be eligible to compete as a freshman. The Clearinghouse identifies for each high school which courses qualify as core courses by means of a list known as Form 48-H. The Clearinghouse may issue updated versions of Form 48-H based upon an annual review of a school’s courses and/or to reflect changes regarding which courses qualify as core courses; the different versions are distinguished by different letters of the alphabet. For example, Form 48-H (Version B) follows and takes the place of Form 48-H (Version A). The Clearinghouse communicates with one specific person at each high school, who is then responsible, in conjunction with prospective student-athletes, for making sure that individual student-athletes meet the requirement of thirteen core courses. If a student-athlete is declared ineligible to compete in her freshman year, she may, among other options, pursue an education at the university at her own expense for the first year, and retain three years of athletic eligibility, as opposed to the potential five years of athletic eligibility that she otherwise would have been entitled to if she had not been ruled ineligible.

¶9 In Stephanie’s case, Patricia Chesbro, the principal at Palmer High School, served as the Clearinghouse contact person. In the fall of 1996, Chesbro advised Stephanie and other prospective NCAA student-athletes about Clearinghouse requirements and about which of the Palmer High School courses qualified as core courses. She relied on Form 48-H (Version C), which was dated May 7,1996, and had been provided to her by the Clearinghouse in the spring of 1996; the form represented the most up-to-date statement that Palmer High School had from the Clearinghouse about which courses qualified as core courses. Form 48-H (Version C) listed Journalism I, among many others, as an acceptable core course. In reliance on Form 48-H (Version C) and to fulfill in part her obligation to complete thirteen core courses, Stephanie enrolled in Journalism I for the 1996 fall semester.

¶10 The NCAA contends that three subsequent versions of Form 48-H were mailed to Palmer High School, each of which excluded Journalism I from the list of approved courses. Clearinghouse records suggest that Version D was mailed at the end of July, Version E was mailed in August, and Version F was mailed in November 1996; the Clearinghouse has no actual record of the forms themselves. Records at Palmer High School indicate that none of the three forms was ever received by the school. The District Court ultimately found that the Clearinghouse failed to mail any of the three Form 48-Hs.

¶11 Chesbro did receive a new Form 48-H (Version G) in January 1997. Form 48-H (Version G) did not list Journalism I as an approved core course. By that time, Stephanie and other students had completed the course.

¶12 In July 1996, Chesbro had provided the Clearinghouse with additional information about the journalism course, as well as another course, after it had requested the information pursuant to a separate eligibility matter with another recently-graduated Palmer High School student-athlete. When she received Form 48-H (Version G) in January, Chesbro contacted the Clearinghouse about what she assumed was a mistake regarding the omission of Journalism I from the list of approved courses.

¶13 The Clearinghouse normally contacted high schools in February of each year and asked them to revise and update their Form 48-H and to resubmit it to the Clearinghouse. The purpose of the annual review was so that an updated Form 48-H could reflect changes made by either the school in its curriculum or the Clearinghouse in its evaluation of the courses, with the ultimate goal being to accurately advise prospective student-athletes for the following academic year. Pursuant to the Clearinghouse’s instruction, in March 1997, Chesbro resubmitted to the Clearinghouse Form 48-H (Version G) with Journalism I on the list with the expectation that the next Form 48-H would indicate that Journalism I was in fact an approved core course.

¶14 When she spoke with the Clearinghouse, Chesbro expressed her concern about the potential effect that a rejection of Journalism I might have on those prospective student-athletes who had relied on Form 48-H (Version C) and taken the course to satisfy their thirteen course obligation. She also wrote to an official at the NCAA regarding her concern over the Clearinghouse’s apparently retroactive decision to disapprove the course after prospective student-athletes had relied on its statement that the course was approved. During the same period, she received Form 48-H (Version H) from the Clearinghouse. It also rejected Journalism I as an approved core course.

¶15 In March 1997, Chesbro received a written response from the NCAA, in which it assured her that an initial eligibility waiver process existed for those students who may have been hurt by the Clearinghouse’s decision. In addition, the letter addressed her concerns regarding retroactivity. It stated that there was a proposal to be acted upon in April 1997 by the relevant governing committee at the NCAA which would permit student-athletes “to receive credit for courses that were approved on the high school Form 48-H confirmation at the time the student completed the course.” Based in part on these assurances, Chesbro decided not to investigate the status of prospective student-athletes whose eligibility with the Clearinghouse might have been affected as a result of the decision to no longer certify Journalism I. Similarly, she decided not to inform Stephanie or any of the other prospective student-athletes about the Clearinghouse’s disapproval of Journalism I.

¶ 16 The NCAA finally rej ected Journalism I as a core course in June 1997, as specially notated on Clearinghouse Form 48-H (Version J), which was sent to Chesbro in July 1997.

¶ 17 MSU had begun recruiting Stephanie to play basketball in December 1996. At the time, it received from Palmer High School a copy of both Stephanie’s transcript and what the high school believed to be its most up-to-date Form 48-H — Form 48-H (Version C). When MSU signed Stephanie to a letter of intent in April 1997, it had neither sought nor received any further verification from the Clearinghouse or Palmer High School regarding Stephanie’s ability to satisfy Clearinghouse standards. She eventually graduated with an overall grade point average of 3.41, including a 2.88 GPA in her core courses; her college entrance exam scores were 75 total on the ACT and 960 on the SAT. Stephanie exceeded Clearinghouse standards in each of these areas. However, due to the rejection of Journalism I as an approved core course, Stephanie fell short of the thirteen course requirement by one-half core credit.

¶18 During the summer, the Clearinghouse notified MSU that Stephanie had not satisfied its initial eligibility requirements due to her reliance on Journalism I as one of her core courses. Stephanie learned then for the first time that her eligibility was in doubt. MSU contacted Chesbro, who in turn wrote to one of the women’s basketball coaches at MSU and explained the full circumstances of Stephanie’s enrollment in the course, including their reliance on Form 48-H (Version C), and the school’s subsequent and unexpected notice that the course had been rejected by the Clearinghouse. Stephanie enrolled at MSU that fall. She still had not been certified by the Clearinghouse and, as a result, MSU was unable to apply her scholarship aid.

¶19 Calli Sanders is an assistant athletic director at MSU. She serves as the University’s compliance coordinator and, as such, is responsible for NCAA rules education, compliance, and enforcement, including Clearinghouse eligibility, at MSU. In August 1997, she was still relatively new on the MSU staff, and learned from both the Clearinghouse and the basketball coach with whom Chesbro had communicated that Stephanie had not been certified. She also communicated with Chesbro and received the same explanation regarding Stephanie’s situation. She decided to pursue an initial eligibility waiver with the NCAA on behalf of Stephanie.

¶20 The NCAA waiver process first involves review by NCAA staff. If the waiver is denied, a university can appeal the decision to an NCAA subcommittee. If the appeal is also denied, the university can then seek review before the NCAA’s full initial eligibility committee. The criteria at each stage require the university to show extraordinary circumstances to justify consideration of a waiver and additional evidence that the student-athlete is proficient in the area of core credit deficiency. In addition, if a student-athlete has been recruited by the university, the NCAA applies a stricter standard of review. The reviewing body relies in part on its past eligibility decisions regarding other student-athletes in similar situations.

¶21 On September 16,1997, Sanders submitted an initial eligibility waiver to the NCAA on Stephanie’s behalf. The proposed waiver relied on the fact that, according to Chesbro’s knowledge, Journalism I was removed from the 48-H list of approved courses only after Stephanie had completed the course. On October 27,1997, the NCAA denied the waiver. Its decision stated that Palmer High School had “received notification that Journalism I was not an approved core course on July 26,1996 (Version D), and August 27,1996 (Version E).”

¶22 Sanders contacted Palmer High School, the Clearinghouse, and the NCAA in an attempt to receive copies of the Form 48-H (Versions D, E, and F) that allegedly notified the high school about the disqualification of Journalism I. None of them could provide her with a copy of any of the three forms.

¶23 Sanders learned at approximately the same time that the University of Indiana had submitted a waiver of initial eligibility to the NCAA on behalf of another Palmer High School student-athlete who faced the same problem as Stephanie due to his reliance on Journalism I as a core course. The facts surrounding Stephanie’s waiver are nearly identical to those of the Indiana student-athlete’s waiver: both student-athletes relied on Journalism I as a core course and only learned after their completion of the course that the Clearinghouse no longer recognized it; they took the class together and both received the same grade in the course; they scored approximately the same on their college entrance exams; and they were recruited at approximately the same time. The only potentially meaningful difference in their waivers was that Stephanie’s classmate’s core course GPA was 3.52, as compared to Stephanie’s 2.88. On August 5,1997, the NCAA granted the waiver of the Indiana student-athlete. Based largely on the similarity of the two student-athletes’ situations and the NCAA’s grant of a waiver to the first student, Sanders appealed the NCAA’s waiver decision on November 19,1997.

¶24 Chuck Lindemenn is the MSU Athletic Director. He is also Chairman of the NCAA subcommittee that regulates the Clearinghouse. He initially limited his involvement in Stephanie’s appeal to avoid the appearance of improper influence. However, as he became more aware of the facts surrounding Stephanie’s situation, he became convinced that Palmer High School had advised Stephanie to the best of its knowledge, and that Stephanie should not be ineligible. Accordingly, he instructed Sanders to inform the NCAA that MSU’s appeal dated November 19 would be superseded by his upcoming appeal on Stephanie’s behalf.

¶25 Like Sanders, Lindemenn contacted the Clearinghouse to obtain copies of the forms that allegedly were sent to Palmer High School notifying it that Journalism I no longer qualified as a core course. Just as before, however, the Clearinghouse could not document Versions D, E, and F, to Lindemenn or establish that it had in fact sent the forms to Chesbro. The Clearinghouse acknowledged that in spite of the three subsequent versions of Form 48-H that were supposed to have been sent to Palmer High School, all correspondence with the Clearinghouse initiated by Chesbro used Form 48-H (Version C).

¶26 The appeal was eventually filed on November 24, 1997. It alleged the lack of any tangible proof that the Clearinghouse had notified Chesbro regarding the changes to Form 48-H, referred to the Indiana student-athlete’s waiver, and discussed in detail how the only notice from the Clearinghouse in Chesbro’s possession at the time that she advised Stephanie regarding J ournalism I indicated that the course was an approved core course. The NCAA denied the appeal on December 3, 1997, based on what it described as Stephanie’s “marginal overall academic record.”

¶27 Throughout the waiver process, Stephanie attended classes at MSU at her own expense. However, she remained ineligible to practice or play with the women’s basketball team. Stephanie testified that after the first waiver was denied, she had plans to leave MSU and return to Alaska because it was too difficult for her to be on campus and see her teammates but not be able to participate in basketball with them.

¶28 On December 9,1997, after the NCAA rejected MSU’s appeal on Stephanie’s behalf, Stephanie filed a complaint in the District Court against MSU and the NCAA. She presented the facts and relied in part on the NCAA’s waiver in the case of the Indiana student-athlete. Stephanie sought relief from the District Court in the form of a declaration that she had in fact completed the thirteen core course requirement and, therefore, that she was eligible to compete during her freshman year. In addition, she sought relief to enjoin the defendants from denying her the scholarship that MSU had promised and from prohibiting her participation with the basketball team.

¶29 The District Court held a hearing on December 17-18,1997. On December 29,1997, it made findings of fact on which the previous discussion is based, and concluded that Stephanie was entitled to a preliminary injunction based upon her letter of intent and on her showing of a prima facie case. Additionally, it concluded that: (1) she would suffer irreparable injury without the injunction due to her continued inability to compete with the basketball team; (2) the continued exclusion of Stephanie from the basketball team throughout the remainder of the season would render any final action by the District Court ineffectual; and (3) the balance of hardships tipped in Stephanie’s favor. Accordingly, it issued a preliminary injunction that barred the NCAA and MSU from preventing Stephanie from playing basketball and from receiving her scholarship pending a final ruling on her complaint.

¶30 At the time of the hearing, MSU still had an opportunity to appeal theNCAA’s December 3,1997, decision. The District Court noted that even though Stephanie could pursue a second appeal with the NCAA, all the relevant information had been presented to the NCAA, and the District Court implied that there was little reason to expect a different decision. More importantly, it noted that Stephanie would remain ineligible throughout the second appeal, which had the potential to extend well into January 1998.

¶31 On January 14,1998, Stephanie amended her complaint to add the Clearinghouse as a defendant. She also made additional claims based on equitable estoppel, promissory estoppel, negligent misrepresentation, and negligent infliction of emotional distress.

¶32 MSU chose not to appeal the District Court’s order, while the Clearinghouse was not bound by the order and, therefore, is not a party to this appeal.

DISCUSSION

¶33 Does the conclusion of the 1997-98 academic and athletic year render the NCAA’s appeal moot?

¶34 Stephanie contends that the NCAA’s appeal regarding the District Court’s alleged error from its issuance of the preliminary injunction is now moot. We address this issue first because its determination is potentially dispositive of the appeal.

¶35 This Court normally does not address moot questions. See Smith v. Electronic Parts, Inc. (1995), 274 Mont. 252, 258, 907 P.2d 958, 962; In re T.J.F. (1987), 229 Mont. 473, 475, 747 P.2d 1356, 1357; State ex rel. Miller v. Murray (1979), 183 Mont. 499, 503, 600 P.2d 1174, 1176. “A moot question is one which existed once but because of an event or happening, it has ceased to exist and no longer presents an actual controversy.” Miller, 183 Mont, at 503, 600 P.2d at 1176. For purposes of an appeal, a question becomes moot “where by a change of circumstances prior to the appellate decision the case has lost any practical purpose for the parties, for instance where the grievance that gave rise to the case has been eliminated.” In re T.J.F., 229 Mont. at 475, 747 P.2d at 1357 (quoting 5 Am. Jur. 2d Appeal and Error § 762 (1962)).

¶36 Stephanie contends that the District Court’s preliminary injunction addressed only her freshman eligibility. She asserts that since she has completed her freshman year, her freshman eligibility is no longer at issue and subject to interference from the NCAA. Therefore, she claims that the propriety of the District Court’s decision to grant the preliminary injunction is no longer relevant to the remaining claim which addresses generally how many years of eligibility Stephanie is entitled to and whether or not she was entitled to scholarship money during her freshman year.

¶37 The NCAA disagrees that its challenge to the preliminary injunction is moot. It contends that it is still subject to the District Court’s injunction and that it has no remedy other than this appeal of the District Court’s actions. In addition, it states that all of the substantive issues raised here regarding the District Court’s grant of the preliminary injunction remain material to the underlying case.

¶38 Stephanie’s mootness claim is based on the fact that criteria for a student-athlete’s eligibility vary from year to year. For example, freshman eligibility is determined entirely by the Clearinghouse, based upon a student-athlete’s high school academic record. A student-athlete’s eligibility in subsequent years, however, is purely a function of her collegiate academic performance; the determination depends in no part whatsoever on initial eligibility status.

¶39 In other words, Stephanie’s eligibility is no longer affected by what she claims is the Clearinghouse’s mistake regarding her initial eligibility, as was the case when the District Court granted the preliminary injunction. For that reason, she contends that regardless of whether the District Court’s injunction was correct, it no longer represents an actual controversy between the parties.

¶40 The NCAA does not contest the fact that so long as Stephanie’s academic performance at MSU meets NCAA standards, she has the privilege to participate in intercollegiate athletics and receive her scholarship for at least her second and third years of college. The NCAA might prevail in the underlying claim and thus be permitted to limit Stephanie’s eligibility and financial aid to three years instead of five. As a practical matter, however, it cannot take away Stephanie’s athletic participation as an eligible freshman, even if that “eligibility” was the result of an error by the District Court. After the fact, it can do nothing more than require Stephanie to pay back the scholarship that she received her freshman year and count her freshman participation against her as one of the three years for which she would otherwise have been eligible. Therefore, the District Court’s injunction, which was issued for the sole purpose of preventing the loss of Stephanie’s freshman year of eligibility, is of no practical consequence to the parties now that Stephanie has completed her freshman year at MSU and exhausted her freshman year of eligibility. Accordingly, we hold that the issue is moot and will not address whether the District Court erred when it granted the injunction.

¶41 The NCAA contends that our decision in J.M. v. Montana High School Ass’n (1994), 265 Mont. 230, 875 P.2d 1026, compels that we review the District Court’s decision. J.M. involved a high school student-athlete who was deemed ineligible pursuant to a restriction on the number of years (four) that a student-athlete can participate in high school athletics. The student-athlete sought a waiver of the rule from the Montana High School Association, then also filed a complaint in the district court to prevent the Association from enforcing the rule against him. The district court granted a preliminary injunction and thereby permitted the student-athlete to play his fifth season of high school football. The MHSA appealed the injunction, and this Court ultimately reversed the district court’s order for reasons that do not apply here.

¶42 The Court’s decision in J.M., like the situation here, came after the student-athlete had been allowed to participate in the disputed season of eligibility. There, however, the Court rejected the idea that the appeal was moot, despite the fact that the injunction had lapsed and the student-athlete’s season, and thus his high school eligibility, had expired. The Court stated:

To mechanically apply the doctrine of mootness under such circumstances would effectively deny the remedy of appeal. Where MHSA will, undoubtedly, be faced with future challenges to its maximum participation rules on issues and facts such as those presented here, it has a right to a final decision of this Court on the merits of its appeal.

J.M., 265 Mont. at 241-42, 875 P.2d at 1033. In J.M., a decision from this Court that the issue was moot would have essentially denied the MHSA all opportunity to have the validity of its regulations affirmed. Moreover, it would have permitted J.M., as well as all other student-athletes who were likely to subsequently come before the MHSA with similar claims, to prevail while they evaded review altogether. ¶43 That risk is not present here. As we stated above, the Clearinghouse decision, in conjunction with the NCAA’s denial of an initial eligibility waiver, has a dual effect. First, it has the immediate impact of barring a student-athlete from intercollegiate participation in her freshman year and from receipt of her athletic scholarship during the period of her ineligibility. Second, it consequently reduces the number of years in which a student-athlete is potentially eligible from five to three.

¶44 Therefore, the underlying claim regarding whether Stephanie should in fact have been ineligible during her freshman year remains, and the resolution of that issue will have very real consequences. Unlike the situation presented in J.M., we have no reason to suspect that this claim will not proceed in the District Court or to believe that the NCAA will be denied the opportunity to receive a final judgment, and our ultimate consideration of the matter, if desired, on the merits. Stephanie’s amended complaint, which was filed after the injunction issued, attests that there is more at stake in this case than just Stephanie’s freshman basketball season. Simply put, this case will not evade review as the result of our holding that the preliminary injunction is now a moot issue. Accordingly, J.M. does not apply.

¶45 For these reasons, we hold that the appeal is moot and remand this case to the District Court for further consideration of the merits of Stephanie Van Troba’s complaint.

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

      . A student-athlete’s eligibility depends on many factors and is never in fact an absolute right. See T.H. v. Montana High School Ass’n (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 10 1992 WL 672982 (“Generally speaking, a student has no constitutional right to participate in interscholastic sports; it is a privilege which may be withdrawn by the school or by a voluntary association whose rules the school has agreed to follow.”); see also M.H. v. Montana High School Ass’n (1996), 280 Mont. 123, 131, 929 P.2d 239, 244; J.M. v. Montana High School Ass’n (1994), 265 Mont. 230, 237, 875 P.2d 1026, 1031. Nonetheless, barring some extraordinary occurrence, Stephanie’s letter of intent and her continued academic progress entitle her to play basketball and receive a scholarship to attend classes at MSU.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KEVIN ALLEN, Defendant and Appellant.
    No. 97-606.
    Submitted on Briefs May 28, 1998.
    Decided December 3, 1998.
    1998 MT 293.
    55 St.Rep. 1202.
    292 Mont. 1.
    970 P.2d 81.

      For Appellant: Terry Wallace, Attorney at Law, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Mark W. Mattioli, Assistant Attorney General; Helena; Robert L. “Dusty” Deschamps HI, Missoula County Attorney; Missoula.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 The defendant, Kevin Allen, appealed to the District Court of the Fourth Judicial District in Missoula County from a conviction in Missoula County Justice Court for driving under the influence of alcohol and improper use of dealer plates. Allen made a motion to suppress evidence and the District Court denied it. Allen then pled guilty and reserved his right to appeal the denial of his motion to suppress. Following consideration of that appeal, we affirm the order of the District Court.

¶2 The sole issue on appeal is whether the District Court erred when it denied Allen’s motion to suppress evidence.

FACTUAL BACKGROUND

¶3 The parties have stipulated to the following facts:

¶4 On December 16, 1997, Highway Patrol Officer Michael J. Burman initiated a traffic stop of Kevin Allen at approximately 2:45 p.m. Burman based the stop on his observation that Allen’s vehicle did not have a front license plate.

¶5 He approached Allen’s vehicle and explained the reason for the stop. When Burman asked Allen if he knew that there was no front license plate, Allen showed Burman a demonstrator plate from a used car dealership in Billings which had been inside his car. Burman explained to Allen that the plate had to be displayed and then ran a check on Allen’s driver’s license. He became suspicious that Allen was improperly using the demonstration plate and testified that at that time he intended to cite defendant for improper use of a dealer plate pursuant to § 61-4-103(4), MCA.

¶6 Burman returned to Allen’s car and asked him to exit the vehicle to speak with Burman. As he explained the charges which were being made against Allen, Burman detected the odor of alcohol and asked Allen whether he had been drinking. Allen admitted to having two beers. Burman then asked Allen to perform roadside sobriety tests, to which Allen responded that he would like to consult with his lawyer. Burman told him that at that time he did not have the right to call his lawyer. Allen performed the tests, but Burman concluded that he had failed those tests, and placed Allen under arrest for DUI. After he was transported to the police department office, Allen provided a breath sample that measured his blood alcohol content at 0.13. The time was 3:50 p.m. He was then advised of his Miranda rights for the first time.

¶7 In Justice Court, Allen moved to suppress any statements he made prior to his arrest. He contended that he was in custody during Burman’s roadside investigation, and that he was therefore entitled to a Miranda warning. The motion was denied and Allen was convicted by a jury of DUI and improper use of dealer plates. On appeal to the District Court, he made the same motion to suppress, which was also denied. Allen eventually pled guilty to the DUI charge and reserved his right to appeal the denial of his motion to suppress; the improper use of dealer plates charge was dismissed.

DISCUSSION

¶8 Did the District Court err when it denied Allen’s motion to suppress evidence?

¶9 We review a district court’s denial of a motion to suppress to determine whether the court’s interpretation and application of the law is correct. See State v. Scheetz (1997), 286 Mont. 41, 44, 950 P.2d 722, 724; State v. Graham (1995), 271 Mont. 510, 512, 898 P.2d 1206, 1207-08.

¶10 Pursuant to Miranda v. Arizona (1966), 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694, a defendant is entitled to be informed of his right to remain silent and of his right to have an attorney present before an officer initiates a custodial interrogation. Allen contends that much of the State’s evidence should be suppressed because he was not given a Miranda warning prior to Burman’s investigation of whether he was driving under the influence of alcohol. The State, on the other hand, contends that Allen was not entitled to a Miranda warning prior to his arrest for DUI, and that any statements he made prior to that arrest, including those made dining Burman’s roadside investigation, were voluntary and not subject to constitutional protection. ¶11 The United States Supreme Court held in Berkemer v. McCarty (1983), 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317, that roadside questioning of a motorist detained pursuant to a routine traffic stop does not constitute a custodial interrogation subject to the procedural safeguards of Miranda. It distinguished a roadside detention from the kind of custodial situation with which Miranda was concerned, and stated that there is less of a danger that a motorist “will be induced to speak where he would not otherwise do so freely.” Berkemer, 468 U.S. at 437, 104 S. Ct. at 3149, 82 L. Ed. 2d at 333 (quoting Miranda, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719). The Court ultimately concluded that most roadside detentions are analogous to “Terry stops,” in which an officer may briefly question a detainee to confirm or dispel his suspicions, but where the detainee is not obligated to respond, and that temporarily detained motorists are not in custody for purposes of Miranda. See Berkemer, 468 U.S. at 439-40, 104 S. Ct. at 3150, 82 L. Ed. 2d at 334-35.

¶12 In the recent decision of Hulse v. Department of Justice, 1998 MT 108, [289 Mont. 1], 961 P.2d 75, we also recognized the similarity of roadside administration of field sobriety tests to a Terry investigative stop. We held that an officer need only have a particularized suspicion, as opposed to probable cause, to conduct field sobriety tests, and gave the following example of facts which would give rise to a particularized suspicion:

[I]f an officer stops a driver for a broken taillight and upon approaching this driver the officer does observe signs of intoxication, e.g., the driver’s breath smells of alcohol... the officer would have a separate particularized suspicion that the individual was driving under the influence of alcohol, and, therefore, may administer field sobriety tests. If the driver should fail the field sobriety tests, the officer would then have probable cause to arrest this individual for driving under the influence of alcohol.

Hulse, ¶ 40. The facts of this case present a direct application of our example in. Hulse. Based on the absence of an observable plate, the officer was justified in making his stop. Based on the odor of alcohol detected after the stop, he was justified in further investigation, including brief questioning and field sobriety tests.

¶13 Allen argues that based on our decision in State v. Ellinger (1986), 223 Mont. 349, 355, 725 P.2d 1201, 1204, an interrogation is custodial if the person is not free to léave. See also State v. Stoat (1991), 251 Mont. 1, 6-7, 822 P.2d 643, 646. He contends that because Burman had decided to charge Allen for improper use of a dealer plate, and because Allen was in fact not free to leave the scene, the offleer’s questions occurred while Allen was in custody and should have been preceded by a Miranda warning. The Court in Berkemer rejected this same argument, and so do we. See Berkemer, 468 U.S. at 436-37, 104 S. Ct. at 3148-49, 82 L. Ed. 2d at 332-33. Allen’s detention cannot be distinguished from prior decisions involving traffic stops simply because in this case the officer had made a decision to charge Allen with a license plate violation. See City of Billings v. Skurdal (1986), 224 Mont. 84,89,730 P.2d 371,373-74. The stop was still public, routine, and temporary in nature. Those critical facts distinguish it from “custodial” interrogations.

¶14 Based on the analyses and holdings in Berkemer and Skurdal, our own discussion of field sobriety tests in Hulse, and the facts of this case, we conclude that Allen was not entitled to a Miranda warning following his traffic stop and prior to his arrest for driving under the influence of alcohol. We affirm the District Court’s denial of his motion to suppress.

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

      . Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.

      . Terry v. Ohio (1968), 392 U.S. 1,88 S. Ct. 1868, 20 L. Ed. 2d 889.


text:
    STATE OF MONTANA, Plaintiff, vs. Havaii Kai Akane, Defendant.
    NO. 12607
    DECISION
   On August 12,1997, it was the judgment of the court that Havaii Kai Akane be and is hereby committed to the Department of Corrections for a term of seventeen (17) years on Count I for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is the judgment of the court that Havaii Kai Akane be and is hereby sentenced to a term of six (6) months each on Count II and III in the Missoula County Jail in Missoula, Montana. All of these sentences shall run concurrently with each other. It is the recommendation of the Court that the defendant be considered for placement in the Correctional Training Program. It is further ordered that the defendant shall register as a violent offender, pursuant to Section 46-23-504, 46-23-505, and 46-23-506, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein he resides for the remainder of his lifetime following his release from custody. The defendant shall further notify any law enforcement agency with whom he was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if he should change his address during this registration period. Further, pursuant to Section 44-6-103, M.C.A., the defendant shall provide a blood sample to be used for DNA testing. That, however, five (5) years of defendant’s sentence on Count I is hereby suspended on terms and conditions as stated in the August 12,1997judg-ment. Defendant shall receive credit for time served at Missoula County Jail from February 27,1997, through date of sentencing, August 12,1997, in the amount of one hundred sixty-seven (167) days. It is further ordered that as restitution in this matter is received by the Clerk of Court, the Clerk may pro rate partial payments to the victims. The restitution shall be disbursed to Safeco Insurance Company of America, Spokane Claims, (Insured: Two Bears Truck Stop and Café; Policy No. CP8629518; Claim No. 26A970241181), PO Box 2726, Spokane, WA 99220-2726, in the amount of One Thousand One Hundred Thirty-Two and 67/100 Dollars ($1,132.67); Two Bears Truck Stop and Café, Lolo, MT 59847, in the amount of Two Hundred Fifty Dollars ($250.00); Lizabeth Moree, 4740 Parent, Missoula, MT 59802, in the amount of Three Hundred Fifty Dollars ($350.00).

Done in open Court this 19th day of February, 1998.

DATED this 12th day of March, 1998.

On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be dismissed.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.


text:
    STATE OF MONTANA, Plaintiff, vs. Kip Dwight Anderson, Defendant.
    NO. DC 96-58
    DECISION
   On October 8,1997, the defendant, Kip Dwight Anderson, is guilty of the crimes of Driving or being in actual physical control of a vehicle while under the influence of alcohol or drugs (4th or Subsequent Offense), a Felony, in violation of Section 61-8-40 l(l)(a), M.C.A.; Habitual traffic offender operating a motor vehicle, a misdemeanor, in violation of Section 61-11-213, M.C.A., and Driving while license suspended or revoked, a misdemeanor, in violation of Section 61-5-212, M.C A. With respect to the Felony D.U.I., the defendant is committed to the Montana Department of Corrections for appropriate placement into a community-based program, facility, or state correctional institution for a period of thirteen months, to be followed by four years of supervised probation. With respect to the Habitual Traffic Offender Operating a Motor Vehicle, the defendant is sentenced to one year in the County Jail, which is suspended, and a $1,000.00 fine, which is also suspended. With respect to the Driving While License Suspended or Revoked, the defendant is sentenced to six months in the County Jail, which is suspended, and a $500.00 fine, which is also suspended. The sentences will run consecutive to one another. The period of suspension is subject to conditions as stated in the October 8,1997 judgment. The defendant shall receive credit for 214 days for jail time served prior to sentencing. The Court recommends to the Department of Corrections that the defendant be placed in a prerelease center.

Done in open Court this 19th day of February, 1998.

DATED this 12th day of March, 1998.

On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Alt. Member, Hon. Robert Boyd.

The Sentence Review Board wishes to thank Kip Dwight Anderson for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Albert D. Bartlett, Defendant.
    NO. 93-CR-143
    DECISION
   On May 31, 1994, it was ordered, adjudged and decreed, and this does order, adjudge and decree that the defendant Albert D. Bartlett be committed to the custody of the Department of Corrections and Human Services for a term of twenty (20) years for the offense of Criminal Possession of Dangerous Drugs with Intent to Sell, a felony. It is further ordered that the defendant is designated a dangerous offender for purposes of parole eligibility, pursuant to the findings and conclusions set forth in the May 31,1994 judgment. That the defendant shall receive credit for 180 days served in the Silver Bow County Jail awaiting his disposition of this matter.

On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by Attorney Bill Hooks. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

Done in open Court this 19th day of February, 1998.

DATED this 12th day of March, 1998.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton

The Sentence Review Board wishes to thank Attorney Bill Hooks for representing Albert D. Bartlett in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Curtis J. Christianson, Defendant.
    NO. BDC 96-282
    DECISION
   On October 9,1997, it was ordered, adjudged and decreed that for the offense of Mitigated Deliberate Homicide, a felony, the defendant is sentenced to Montana State Prison for forty (40) years with ten (10) years suspended upon conditions as set forth in the October 9,1997 judgment. The defendant is designated ineligible for parole. The suspended portion of defendant’s sentence has conditions which are stated in the October 9,1997 judgment. The defendant is granted 59 days’ credit for time served prior to sentencing (September 24,1996 - November 22,1996).

On February 20, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by Attorney Ed Sheehy. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that this case be remanded to Judge Sherlock, 1st Judicial District, Lewis & Clark County, for inclusion in the judgement stating reasons why the defendant be declared ineligible for parole or participation in a supervised release program pursuant to 46-18-202 (2).

Done in open Court this 20th day of February, 1998.

DATED this 12th day of March, 1998.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Sentence Review Board wishes to thank Attorney Ed Sheehy for representing Curtis Christianson in this matter.


author: JUSTICE LEAPHART JUSTICE GRAY,

text:
    TOWN PUMP, INC., a Montana corporation, and TOWN PUMP OF HARDIN, INC., a Montana corporation, Petitioners and Appellants, v. BOARD OF ADJUSTMENT OF THE CITY OF RED LODGE, MONTANA, Respondent and Respondent.
    No. 97-715.
    Submitted on Briefs October 1, 1998.
    Rehearing Denied December 30, 1998.
    Decided December 3, 1998.
    1998 MT 294.
    55 St.Rep. 1205.
    292 Mont. 6.
    971 P.2d 349.

      For Appellants: L. B. Cozzens; Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
    For Respondent: Gary R. Thomas; Thomas Law Office, Red Lodge.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellants Town Pump and Town Pump of Hardin (Town Pump) appeal from the judgment of the 13th Judicial District Court, Carbon County, holding that Town Pump’s appeal from the decision of the Board of Adjustment was moot because the City of Red Lodge’s Development Code had a permissible retroactive effect.

¶2 We affirm.

¶3 In determining whether the District Court erred, we consider the following issues:

¶4 1. Whether the retroactive application of the Development Code resulted in a denial of Town Pump’s constitutional right to due process.

¶5 2. Whether the State of Montana has preempted Red Lodge’s regulation of the sale of alcohol.

Standard of Review

¶6 In reviewing a district court’s conclusions of law, we determine whether the district court’s interpretation of law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. In reviewing a district court’s findings of fact, we determine whether there is clear error. Steer, Inc., 245 Mont. at 474, 803 P.2d at 603.

Factual and Procedural Background

¶7 Town Pump entered into two agreements to purchase real property (the property). The second of the agreements was dated September 13, 1994. Under the agreements, the owner of the property, Trillium Corporation, was required to obtain subdivision approval from the City of Red Lodge (Red Lodge) in order to convey the property to Town Pump. Town Pump intended to build and operate a gas station, convenience store, and casino, and to sell beer and wine for consumption in the casino. While Town Pump awaited approval for the subdivision of Trillium’s property, the property was rezoned as “commercial highway.”

¶8 With the property rezoned as commercial highway, Town Pump could operate a gas station and convenience store but had to obtain a “special exception” from Red Lodge’s Board of Adjustment (the Board) in order to sell beer and wine for on-premises consumption. Acting as agents for Trillium, Town Pump filed an application for a special exception (the beer and wine application) with the zoning officer for the City of Red Lodge, Jerry Ballard (Ballard) on September 29, 1994. Ballard forwarded the beer and wine application to the Board. The Board met to consider the beer and wine application but apparently took no action.

¶9 In March, 1995 preliminary approval for the subdivision of the Trillium property was granted, and Ballard again forwarded Town Pump’s application to the Board. On April 18,1995 a public hearing was held on the beer and wine application. At the conclusion of the hearing, the Board unanimously denied the beer and wine application. Before the hearing, however, at least one member of the Board conducted an ex parte telephone survey of Red Lodge citizens and talked with acquaintances to learn their opinions about the beer and wine application. The Board member did not disclose the survey or its results to Town Pump and based his decision, at least in part, on the information he obtained. The Board’s chairman asked the public for a show of hands by everyone opposed to the beer and wine application. Some Board members voted negatively because members of the public opposed the beer and wine application.

¶10 In May, 1995 Town Pump brought suit against the Board, appealing the Board’s denial of Town Pump’s application. An evidentiary hearing was delayed repeatedly. A trial date of December 12, 1995 was vacated because the parties agreed that a continuance would facilitate resolution of some legal issues. On December 21, 1995 Red Lodge adopted a master plan. Trial was set for October, 1996 but was continued, first to December, 1996, and then to April, 1997. Finally, the trial was reset for May, 1997. Meanwhile, Red Lodge adopted an amended Development Code (the Development Code) as an interim ordinance in April, 1997 and adopted it as a permanent ordinance in May, 1997.

¶11 The Development Code addressed issues, such as drive-through facilities and key lock systems for dispensing petroleum products, that had been brought to the attention of Red Lodge after the Board began its review of Town Pump’s proposed development. Moreover, the Development Code required conditional use permits instead of special exceptions for on-premises consumption of alcohol. The Development Code further stated:

Retroactive Application. This code is made expressly retroactive and shall apply to all applications for sign permits, building permits, zoning variances, zoning special exceptions, zoning changes, and all other applications for building and land use permits, land divisions, development activity, land use activity, and land use changes which have been received by the city and not granted as of the effective date of this code.

¶12 A trial without jury was held in May, 1997 and the District Court issued findings of fact and conclusions of law in November, 1997.

¶13 The District Court made the following conclusions of law. Red Lodge had authority to declare that the Development Code applied to all pending applications for special exceptions. Town Pump did not obtain a vested interest in the beer and wine application or in having the beer and wine application determined under the ordinances of Red Lodge as they existed when Town Pump filed its application. Red Lodge’s application of the Development Code to the beer and wine application did not violate the due process requirements of the United States Constitution or those set forth in Article II, Section 17 of the Montana Constitution. The validity of the Development Code “was not before the Court.” Finally, the District Court concluded that the Development Code rendered Town Pump’s application and its appeal from the decision of the Board moot, and denied Town Pump’s petition for writ of certiorari.

Discussion

¶14 1. Whether the retroactive application of the Development Code resulted in a denial of Town Pump’s constitutional right to due process.

¶15 Town Pump contends that the District Court erred in holding that Red Lodge’s adoption of the Development Code rendered moot the beer and wine application and Town Pump’s appeal from the Board’s denial of the beer and wine application. Town Pump argues that by arbitrarily and illegally denying the beer and wine application, the Board violated Town Pump’s right to substantive due process in the administration of the zoning ordinance. Further, by enacting a retroactive Development Code, the Board denied Town Pump’s right to appeal and exonerated itself for its wrongdoing.

¶16 Town Pump also argues that it had in effect a “passed” transaction, comprising a series of events including the beer and wine application, the Board’s illegal and arbitrary conduct in denying it, and Town Pump’s appeal of the Board’s decision, and that the passed transaction was protected under Montana’s Constitution, Article XIII, Section 1, Clause 3. Article XIII, Section 1, Clause 3 provides that “[t]he legislature shall pass no law retrospective in its operations which imposes on the people a new liability in respect to transactions or considerations already passed.” Thus, Town Pump argues that the Development Code should not be retroactively applied because it impairs Town Pump’s vested interest and burdens Town Pump’s “passed” transaction.

¶17 In addition, Town Pump argues that because it met the criteria for a special exception under the old zoning procedures, the Board was required to grant the special exception. Town Pump argues that the Board acted in bad faith in delaying the trial in the District Court and that the Board attempted to delay Town Pump’s project. Finally, Town Pump asserts that it is a victim of discriminatory zoning, that some amendments to the Development Code targeted Town Pump’s project. Town Pump contends that the Board should be barred by principles of estoppel and equity from retroactively applying the Development Code.

¶18 The Board responds that the retroactive effect of the Development Code has not resulted in a denial of due process for Town Pump because Town Pump had neither a vested interest in the beer and wine application nor a “passed” transaction. The Board also argues that retroactive application of the Development Code is not barred by principles of equity or estoppel because Town Pump failed to offer any evidence at trial that the Board attempted to delay the permit process or the trial.

¶19 We first consider whether the retroactive effect of the Development Code violates Town Pump’s substantive right to due process. In Cosgriffe v. Cosgriffe, this Court addressed whether a childhood sexual abuse statute of limitations with retroactive effect violated the due process requirements of Montana’s Constitution or of the Fourteenth Amendment of the United States Constitution. Cosgriffe v. Cosgriffe (1993), 262 Mont. 175, 864 P.2d 776. The statute of limitations in Cosgriffe revived previously barred claims of childhood sexual abuse by the respondent’s daughter. The Court in Cosgriffe adopted a three-part test for determining whether a statute has exceeded the restraints imposed upon it by substantive due process:

[T]he restraints on legislation imposed by substantive due process as a source of constitutional protection for interests not specifically identified by explicit constitutional language could be summarized in a three-part formula: the legislation must: (a) seek to achieve a legitimate governmental purpose; (b) use means that are rationally related thereto; and (c) be neither arbitrary nor unreasonable in its effects.

Cosgriffe, 262 Mont. at 179, 864 P.2d at 778. The Cosgriffe Court concluded that the respondent did not have a vested interest in the previously applicable statute of limitations. Cosgriffe, 262 Mont. at 180, 864 P.2d at 779.

¶20 Thus, we apply Cosgriffe1 s three-part test to determine whether the retroactive effect of the Development Code exceeds the restraints imposed by substantive due process. We conclude first that the Development Code had a legitimate purpose and, second, that its means were reasonably related to that purpose. Cosgriffe, 262 Mont. at 179, 864 P.2d at 778. The District Court interpreted Cosgriffe’s third prong, that legislation be “neither arbitrary nor unreasonable in its effects,” to mean that a retroactive law is unreasonable and arbitrary in its effects when it affects or destroys “vested interests.” Cosgriffe, 262 Mont. at 179, 864 P.2d at 778. However, in Wallace v. Montana Dept. of Fish, Wildlife & Parks (1995), 269 Mont. 364, 889 P.2d 817, this Court concluded:

A retroactive law is defined as one “which takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions already passed.”... Any such imposition on a vested right or past transaction is sufficient to constitute an impermissible retroactive application of a statute.

Wallace, 269 Mont. at 367-68, 889 P.2d at 819-20 (citations omitted). Thus, under the third prong of Cosgriffe, we consider not only whether Town Pump had a vested right but whether there was a passed or “past” transaction that the Development Code burdened. ¶21 This Court has not previously defined “vested interest.” We have determined, however, when a party does not have a vested interest. See, e.g., Femling v. Montana State University (1986), 220 Mont. 133, 713 P.2d 996; Wallace, 269 Mont. 364, 889 P.2d 817. Plaintiff Femling, a veteran, applied for employment with Montana State University (MSU) under a statute that gave absolute hiring preference to veterans. Femling brought suit after MSU rejected him for the position. One day after he filed suit, however, the veterans’ preference statute was retroactively repealed. The Court in Femling determined that “for substantive due process protections to apply, Femling’s claim to the absolute preference must be a vested right.”Femling, 220 Mont. at 137, 713 P.2d at 998. The Femling Court concluded that “a veteran does not have a reliance interest in the veterans’ preference unless and until it is actually received.” Femling, 220 Mont. at 137, 713 P.2d at 998 (emphasis added) (citation omitted).

¶22 In Wallace, the Wallaces obtained a license for a game farm from the Department of Fish, Wildlife and Parks (the Department). The Wallaces subsequently applied for and received expansion licenses for their game farm. Recognizing that a pending bill would revise the game farm licensing statutes, the Wallaces submitted a game farm expansion application. Before the Department was required to act upon the Wallaces’ application, the bill was enacted. The Department denied their expansion application under the new game farm licensing statute, § 87-4-409(3), MCA (1993). This Court held in Wallace that “the Wallaces’ mere submission of an application for expansion of their game farm did not vest in them a right to issuance of the license as of the date the application was submitted.” Wallace, 269 Mont. at 368, 889 P.2d at 820.

¶23 In accord with our decisions in Wallace and Femling, we hold that Town Pump did not have a vested interest in the beer and wine application. Like the Wallaces, Town Pump did not gain a vested interest merely because it submitted the beer and wine application before the adoption of the Development Code. Compare Femling, 220 Mont. at 137, 713 P.2d at 998 (holding Femling had no “reliance interest in the veterans’ preference unless and until it is actually received”).

¶24 The District Court determined, and we agree, that the general rule appears to be that applications for building permits may be denied based on zoning regulations enacted after the applications are made. Town Pump argues, however, that if this Court follows the general rule, the rule should be limited to cases where a zoning ordinance was pending when an application was filed. A small number of states thus limit the general rule. See Ronald F. Chase, Annotation, Retroactive Effect of Zoning Regulation, In Absence of Saving Clause, on Pending Application for Building Permit, 50 A.L.R.3d 596 (1973). We decline to limit the general rule to instances when a zoning ordinance is pending.

¶25 We conclude that the general rule should apply in the present case, and we note the general rule accordingly:

In most jurisdictions it is clear that, as a general rule, the denial of an application for a building permit may be based on a zoning regulation enacted or becoming effective after the application was made, or to state the rule conversely, a zoning regulation may be retroactively applied to deny an application for a building permit, even though the permit could have been lawfully issued at the time of application.

Chase, 50 A.L.R.3d 596,607. See, e.g., Town of Stephens City v. Russell (Va. 1991), 399 S.E.2d 814 (holding developer did not have a vested right to construct apartments on his property when he failed to obtain permit before zoning was amended); Winiker Realty, Inc. v. Zoning Board of Appeals of Millis (Mass. 1972), 285 N.E.2d 452 (holding application for multi-unit dwellings controlled by subsequent amendment to zoning by-law); Najarian Realty Corp. v. Zoning Board of Review (R.I.1965), 208 A.2d 528 (holding application for gas station controlled by later amendment to zoning ordinance).

¶26 The dissent argues that we have misconstrued not only the general rule but the status of the application. The dissent maintains that the general rule only applies to “pending” applications and that Town Pump’s application, having been denied, was no longer “pending.” The District Court described the application as pending, no doubt, because Town Pump had appealed the decision of the Board. Regardless how the District Court characterized the application, however, the Development Code expressly provides that it shall apply “to all applications . .. not granted as of the effective date of the Code.” Clearly, Town Pump’s application had not been granted as of the effective date. Contrary to the dissent’s interpretation of the general rule, moreover, the general rule does not provide that a zoning ordinance can only be given retroactive effect when an application has been submitted but a zoning board has not yet ruled upon the application. The dissent has misconstrued the analysis that underlies the general rule: the issue is whether an applicant has a vested interest in the application when it is submitted. The general rule would be divested of logic if it meant that an application can be subjected to retroactive zoning laws only until the moment that it is denied, and that thereafter the application is clothed in the impervious armature of vested rights. What the dissent really appears to contend is that Town Pump had a vested right in having the beer and wine application determined under the applicable regulations at the time it submitted the beer and wine application. For this novel doctrine of vested rights, the dissent offers no authority and no rationale.

¶27 One notable exception to the general rule arises through equitable considerations. Some courts have declined to apply a new zoning rule to an application made under existing zoning provisions when the applicant has substantially changed his position in reliance on the existing zoning, or on the probability of a permit being issued. See, e.g., Morris v. Postma (N. J. 1964), 196 A.2d 792; Sagittarius, Inc. v. Village of Arlington Heights (Ill. App. Ct. 1980), 413 N.E.2d 90; Board of Supervisors v. Medical Structures, Inc. (Va. 1972), 192 S.E.2d 799. Because Town Pump has not argued that it substantially changed its position in reliance upon the old zoning provisions, we do not address whether this exception should be recognized in the present case.

¶28 We consider next whether Town Pump had a passed transaction. Town Pump asserts that it had a passed transaction that comprised events including the beer and wine application, the Board’s conduct in denying the beer and wine application, and Town Pump’s appeal of the Board’s decision. In Wallace, this Court defined transaction as “ ‘an act or agreement, or several acts or agreements having some connection with each other, in which more than one person is concerned, and by which the legal relations of such persons between themselves are altered.’ ” Wallace, 269 Mont. at 370, 889 P.2d at 821 (citation omitted). Town Pump argues in essence that retroactive application of the Development Code has imposed new liabilities on Town Pump’s “passed” transactions. Town Pump argues further that by amending the Development Code, the Board changed its legal relationship with Town Pump. Town Pump fails, however, to articulate either its legal relationship with the Board or how the legal relationship changed.

¶29 Moreover, in Wallace, this Court held that “[t]he mere submission of a license application, although an act by the Wallaces, cannot be said to alter the legal relationship between them and the Department.” Wallace, 269 Mont. at 371, 889 P.2d at 821. Further, the Court in Wallace determined that the Department’s review of the Wallaces’ application under the new statute “did not impose a new duty, obligation, or disability with respect to a transaction already passed.” Wallace, 269 Mont. at 371, 889 P.2d at 821. We conclude that Town Pump did not have a “passed” transaction with the Board and thatthe Board’s amendment ofthe Development Code did not change a ‘legal” relationship between the Board and Town Pump.

¶30 Thus, under the third prong of Cosgriffe, we conclude that the Development Code was “neither arbitrary nor unreasonable in its effects”: the Development Code did not impair or burden a vested interest or passed transaction held by Town Pump. Cosgriffe, 262 Mont. at 179, 864 P.2d at 778. We hold that the retroactive effect of the Development Code has not denied Town Pump’s constitutional right to due process.

¶31 Town Pump’s argument that the Board should be estopped from applying the Development Code because it acted in bad faith is without merit. The District Court concluded:

The foregoing Findings of Fact disclose that, while this case was postponed a number of times amounting to a total of approximately 18 months between the date that it was first set for trial and the date it was in fact tried, the Petitioner consented to or did not object to all but the last postponement.... Petitioner in this case is in no position to complain because it did not resist the continuances which resulted in the much [sic] of the delay in the trial of the case.

We agree.

¶32 Town Pump argues that in giving the Development Code retroactive effect, the Board attempted to deny Town Pump its statutory and constitutional rights of appeal. However, Town Pump has exercised its rights to appeal: it appealed the decision of the Board, and it appealed the decision of the District Court. Town Pump’s argument is without merit.

¶33 Town Pump argues further that it is the victim of discriminatory zoning, that many of the amendments to the Development Code, including its retroactive provision, were directed at Town Pump. However, Town Pump has made no showing that the amendments were not intended to promote the public interest. This argument is also without merit.

¶34 Finally, Town Pump contends that if this Court determines that the Development Code has a permissible retroactive effect, any town will be free to exculpate itself from wrongdoing through the enactment of exculpatory retroactive laws. We disagree. As previously discussed, a retroactively applied law may not exceed the limits imposed by substantive due process. Because our holding that the Development Code does not have an impermissible retroactive effect is dispositive, we do not address the issues that Town Pump has raised concerning grants of special exceptions and the conduct ofthe Board. ¶35 2. Whether the State of Montana has preempted Red Lodge’s regulation of the sale of alcohol.

¶36 Town Pump, argues that under § 16-1-101(2), MCA, Montana has “entire control” over the sale of alcoholic beverages. Therefore, the State of Montana (Montana) has preempted both the old zoning provisions and the Development Code’s regulation of the sale of alcohol. Town Pump contends further that in State v. Haswell, this Court determined that Montana had preempted the sale of alcoholic beverages. State v. Haswell (1966), 147 Mont. 492, 414 P.2d 652. Town Pump also argues that under § 16-3-309, MCA, the only power delegated to a municipality is the ability to define areas within its limits where alcoholic beverages may be sold. Town Pump concludes that discretion “to determine the suitability of premises within the same zone and to review the impact on surrounding areas is vested in the state of Montana.” Town Pump argues further that it properly preserved the issue of preemption and that the Board failed to preserve the issue that as a self-governing entity, Red Lodge’s regulation of the sale of alcohol has not been preempted by Montana.

¶37 The Board’s response may be summarized as follows: Town Pump has failed to preserve the issue of preemption for review, because Town Pump challenged the adoption of the old zoning ordinance but not that of the Development Code. In the alternative, even if Town Pump properly preserved the issue of preemption, Montana’s alcohol and beverage laws have not preempted either the old zoning ordinance or the Development Code. Red Lodge is self-governing and under Article XI, Section 6, of the Montana Constitution, as such it may “exercise any power not prohibited by this constitution, law, or charter.” Art. XI, Sec. 6, Mont. Const. Montana has not prohibited Red Lodge from regulating the sale of alcohol. Moreover, § 7-1-106, MCA, provides that “[e]very reasonable doubt as to the existence of a local government power or authority shall be resolved in favor of the existence of that power or authority.”

¶38 The Board also argues that the Development Code is consistent with Montana’s regulations. Section 7-1-113, MCA, provides in pertinent part:

Consistency with state regulation required. (1) A local government with self-government powers is prohibited the exercise of any power in a marnier inconsistent with state law or administrative regulation in any area affirmatively subjected by law to state regulation or control.
(2) The exercise of a power is inconsistent with state law or regulation if it establishes standards or requirements which are lower or less stringent than those imposed by state law or regulation.

Section 7-1-113, MCA (emphasis added). Red Lodge’s regulation of the sale of alcohol is consistent with and stricter than Montana’s regulations. Finally, under § 16-4-203(2)(b)(iv), MCA, Montana may consider whether a proposed retail location for alcohol is consistent with local zoning. The Board contends that this statutory provision is additional evidence that the State of Montana has not preempted the Development Code.

¶39 As threshold issues, we determine that Town Pump preserved for appeal the issue of preemption and that the Board is entitled to argue in response that Red Lodge is a self-governing city. First, the issue of preemption logically encompasses both the old zoning ordinance and the Development Code, and the record establishes that Town Pump made the general argument that the State has preempted regulation of the sale of alcohol. Second, in its post-trial brief, the Board impliedly raised the argument that Red Lodge has self-governing powers when it considered whether the regulation of on-premises consumption of alcohol is permitted by a statute or by “a city’s general zoning powers.” Thus, Town Pump and the Board have sufficiently preserved for appeal, respectively, the preemption issue and the argument that Red Lodge has self-governing powers.

¶40 We hold that Montana’s alcoholic beverage laws have not preempted Red Lodge’s regulation of the sale of alcohol. Red Lodge’s regulation of the sale of alcohol is consistent with but more stringent than Montana’s regulation of alcohol. Under § l@=4-203(2)(b)(iv), MCA, moreover, Montana may consider whether a proposed retail location for alcohol is consistent with local zoning. We conclude that Montana’s statutory framework for the regulation of alcohol clearly contemplates that cities will impose local zoning that regulates the sale of alcohol.

¶41 In light of our holding that Montana has not preempted Red Lodge’s regulation of alcohol, we review our conclusion in Haswell that Montana has preempted regulation of the sale of alcohol. Haswell was decided before the 1972 Montana Constitution. As this Court held in D & F Sanitation Service v. City of Billings, before the 1972 Constitution, “[cjities had only those powers expressly given them by the legislature.” D & F Sanitation Service v. City of Billings (1986), 219 Mont. 437, 444, 713 P.2d 977, 981 (citations omitted). The Court in D & F Sanitation then interpreted Article XI, Section 6, as set forth in the 1972 Montana Constitution: “ ‘Under the shared powers concept, the assumption is that local government possesses the power, unless it has been specifically denied.’ ”D & F Sanitation Service, 219 Mont. at 445, 713 P.2d at 982. We conclude that Montana has not specifically denied Red Lodge’s power to regulate the sale of alcohol. Accordingly, we overrule Haswell to the extent that it is inconsistent with our holding in the present case.

¶42 Affirmed.

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

JUSTICE GRAY,

dissenting.

¶43 I respectfully dissent from the Court’s opinion that the retroactive application of the Development Code did not impair or burden a vested interest held by Town Pump and its corresponding determination that the District Court did not err in concluding that Town Pump’s appeal of the Board of Adjustment’s decision was moot because the Development Code had a permissible retroactive effect. In my view, the Development Code is not applicable to Town Pump’s original application for a special exception, by its very terms. Moreover, any attempt to so apply it constitutes an impermissible retroactive application which denies Town Pump’s rights to due process under both the United States Constitution and the Montana Constitution. The Court’s erroneous decision permits local governments to change the rules after the fact in order to insulate themselves from pending judicial review of actions alleged to be arbitrary, capricious and illegal. In effect, our decision allows local governments to simply legislate themselves out of litigation. Such a decision will hardly improve the distrust with which ever-larger segments of Montana’s population view their governments.

¶44 The pertinent facts are that Town Pump properly applied for a special exception under zoning regulations then in effect. The Board took no action for approximately 6 months and then denied the application based on factors which appear, at very least, to have been arbitrary and outside the scope of the applicable regulations. Town Pump timely sought judicial review of the Board’s allegedly arbitrary, capricious and illegal conduct in May of 1995, seeking the District Court’s reversal of the Board’s denial of its application and the court’s grant of the special exception. A trial finally occurred in May of1997. In the meantime, Red Lodge had adopted the Development Code, which required a conditional use permit rather than a special exception for on-premises consumption of alcohol. The Development Code also provided that it was “expressly retroactive and shall apply to all applications ... which have been received by the city and not granted as of the effective date of this code.”

¶45 On the basis of the Development Code, the Board contended that Town Pump’s appeal was moot. The District Court agreed, concluding that Red Lodge had authority to declare that the Development Code applied to all pending applications for special exceptions. The Court also permits application of the Development Code. While I agree that the city could declare the Development Code applicable to all pending applications, I disagree that the Development Code is applicable to Town Pump’s application for a special exception and I further disagree with the Court’s rationale in determining that Town Pump’s constitutional rights to due process were not violated by application of the Development Code.

¶46 First, the language of the Development Code itself renders it applicable to applications which havé been received and not granted as of its effective date. Like the District Court, I view the clear terms of the Development Code as rendering it applicable to “pending applications.” The fundamental flaw in the Court’s analysis is its inability to recognize that Town Pump’s application was not “pending” at the time the Development Code was enacted. Town Pump’s application had, in fact, been denied two years prior to enactment of that Code. Thus, since the Development Code was inapplicable to Town Pump’s application for a special exception by its terms, it is not necessary to proceed with a retroactivity analysis at all. Absent the applicability of the Development Code, it is clear that Town Pump was entitled to proceed with judicial review of the Board’s denial of its application.

¶47 The Court proceeds with a retroactivity analysis based on its misunderstanding of the applicability of the Development Code in the first instance, and that analysis continues to be flawed at every stage by its failure to grasp the completed nature of the Board’s action on Town Pump’s application. I will highlight only a few of my disagreements with the Court’s analysis.

¶48 First, it is my view that the Development Code is impermissibly retroactive because it impaired Town Pump’s vested rights. Town Pump had a vested right in having the application granted or denied in accordance with regulations applicable at the time of the Board’s action. Indeed, the Board acted under the then-existing zoning regulations and denied Town Pump’s application. At that point, Town Pump had a vested interest in having its claim that the Board acted arbitrarily, capriciously and illegally under existing regulations reviewed by a court of law. The Development Code, which constituted a new set of regulations, was not enacted until two years after the Board’s action and Town Pump’s request for judicial review. Clearly, applying the Development Code to Town Pump’s application meets our definition of a retroactive law in that it “takes away or impairs vested rights.” See Wallace, 269 Mont. at 367, 889 P.2d at 819 (citations omitted).

¶49 Moreover, the Court’s reliance on Wallace in support of its conclusion that Town Pump’s vested rights were not impaired is altogether misplaced. There, the Wallaces submitted their game farm expansion application under the then-current game farm licensing statutes, but a new statute was enacted prior to the time the Department was required to act on the application. The Department denied the application under the new statute and we properly held that the Wallaces’ mere submission of an application did not vest in them a right to issuance of the license under the laws in existence on the date the application was submitted. Wallace, 269 Mont. at 368, 889 P.2d at 820.

¶50 Here, unlike the situation in Wallace, the regulations applicable to Town Pump’s application for a special exception at the time the application was submitted remained applicable at the time the Board denied Town Pump’s application. There was no change in applicable regulations between the time Town Pump submitted its application and the time the Board acted upon it, as occurred in Wallace. Indeed, the change in regulations in this case did not occur until two years after the Board denied Town Pump’s application and Town Pump sought judicial review. Wallace is inapplicable here.

¶51 Likewise, the Court misreads and, thereafter, misapplies the “general rule” regarding whether applications may be denied based on regulations enacted after the applications are made. That general rule is inapplicable here for the same reasons Wallace does not apply. The general rule, as stated by the Court, is that an application may be denied based on a regulation enacted or becoming effective after the application is made. The plain meaning of the general rule — as scrutiny of the A.L.R. Annotation on which the Court relies establishes — is that, when a regulation is adopted or amended during the pendency of an application, the newer regulation can be applied. Indeed, that was the situation before us in Wallace, but it is not the situation before us in the present case. The general rule simply does not state that an amended regulation can be applied after an application has been denied and during the time that denial is being challenged in a court of law.

¶52 Finally, the cases from other jurisdictions cited by the Court in support of its application of the general rule — that is, Town of Stephens City, Winiker Realty, Inc., and Najarian Realty Corp. — also are inapplicable because each involves a Wallace-type situation rather than the situation before us in the present case. In Town of Stephens City, for example, the Virginia Supreme Court held that a developer had no vested right in the zoning classification which existed at the time he submitted his subdivision plat application where the zoning ordinance was amended during the pendency of the developer’s application and before action was taken or required to be taken on the application. See Town of Stephens City, 399 S.E.2d at 816. Similarly, in Winiker Realty, Inc., the application for a special permit was filed on April 23,1968, the applicable zoning by-law was amended on June 24,1968, to prohibit the use sought by the applicant, and the application for a special permit was denied on July 19, 1968. Under those facts, the Supreme Judicial Court of Massachusetts held that the application was controlled by the amended by-law. Winiker Realty, Inc., 285 N.E.2d at 452-53. Finally, inNajarian Realty Corp., the hearing on an application for a special permit for a gas station was held on September 8,1964, under the same zoning ordinance in effect at the time the application was filed. On September 24, 1964, however, the zoning ordinance was amended to eliminate the availability of a special permit for a gas station and, thereafter, the application was denied under the amended zoning ordinance. The Rhode Island Supreme Court held that the amendment applied because the decision-making entity still had the power to act on the application at the time of the amendment. Najarian Realty Corp., 208 A.2d at 529-30. All of these cases involved situations where the amendment was made before the decision-making body acted or was required to act. None involved the situation before us here, where the Development Code was not enacted until some two years after the Board had denied Town Pump’s application under the earlier zoning regulations and Town Pump had sought judicial review.

¶53 It is clear that Town Pump had a vested interest in having its case fully and finally resolved under the zoning regulations which existed throughout the time of both its application for a special exception and the Board’s denial of the application, and that this vested interest continued through judicial review of the Board’s decision. For that reason, I dissent from the Court’s failure to hold that Town Pump’s constitutional rights to due process have been violated by the retroactive application of the Development Code to moot Town Pump’s judicial challenge to the Board’s action.

JUSTICE NELSON joins in the foregoing dissent of JUSTICE GRAY.


text:
    STATE OF MONTANA Plaintiff, vs. Coby Christensen, Defendant.
    NO. DC 96-2640
    DECISION
   On October 23,1997, Coby Christensen was in fact guilty of the following offenses: a. Sexual Intercourse Without Consent (45-5-503, MCA); b. Sexual Abuse of Children (45-5-625)(l)(b), MCA); c. Sexual Assault (45-5-502(3), MCA); d. Incest (45-5-507(1), MCA); For his conviction of the four felony offenses as herein set out, the Court now imposes its: For his conviction of Sexual Intercourse without Consent, he is sentenced to the custody of the Department of Corrections for a term of thirty (30) years with ten (10) suspended. For his conviction of Sexual Abuse of Children, he is sentenced to the custody of the Department of Corrections for a term of thirty (30) years with ten (10) suspended. For his conviction of Sexual Assault, he is sentenced to the custody of the Department of Corrections for a term of thirty (30) years with ten (10) suspended. For his conviction of Incest, he is sentenced to the custody of the Department of Corrections for a term of thirty (30) years with ten (10) suspended. The four imposed sentences shall run concurrently, and it is the strong recommendation of the Court that the Department make every effort to place the defendant in an appropriate pre-release program to address the sexual problems set forth in the psychological evaluation. Defendant shall be entitled to a credit of 166 days which he served in jail pending disposition of the charges, but he is not to be eligible for parole until he has successfully completed a sex offender program. If and when the defendant becomes eligible for parole under the terms of this sentence, conditions of parole shall include what is stated in the October 23, 1997 judgment.

Done in open Court this 19th day of February, 1998.

DATED this 12th day of March, 1998.

On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by Attorney Vince Kozakiewicz. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed with the modification that the defendant complete phase I and II of the Sex Offender Treatment Program in the prison before he is eligible for parole.

Reasons for the amendment are because of the assumption that the defendant would likely be placed in an out-patient program because it was omitted from the District Court sentence. The board believes the defendant is a danger to young children by his own statements in the pre-sentence investigation, by his prior conduct both as a juvenile and as stated in Judge Davis’s judgment. The protection of society and children mandates that the defendant receive at least Phase I and II in the prison before being released.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Sentence Review Board wishes to thank Attorney Vince Kozakiewicz for representing Coby Christensen in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Gordon I. Conrad, Defendant.
    NO. 3553
    DECISION
    Done in open Court this 20th day of February, 1998.
    DATED this 12th day of March, 1998.
   OnNovember 14,1997, it was the judgment ofthe court that defendant’s suspended imposition of sentence for the felony offense of Sexual Assault is hereby revoked and it is ordered that the defendant, Gordon Iverson Conrad, serve ten (10) years at the Montana State Prison, at Deer Lodge, Montana, with one (1) year credit of the suspended sentence. Further, defendant is to complete Phase I and II of the Sex Offender Program before becoming eligible for parole.

On February 20, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Sentence Review Board wishes to thank Gordon Iverson Conrad for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Steven Michael Cook, Defendant.
    NO. DC 97-28
    DECISION
    Done in open Court this 20th day of February, 1998.
    DATED this 12th day of March, 1998.
   On October 24,1997, it was ordered, adjudged and decreed that for the offenses of Criminal Endangerment, a Felony, and Aggravated Assault, a Felony, the defendant be sentenced to the Montana Department of Corrections for a period of ten (10) years. It is further ordered that five (5) years of said sentence be suspended upon conditions as stated in the October 24, 1997 judgment. It is further ordered, adjudged and decreed that the defendant be sentenced to six (6) months in the Broadwater County Jail on the charge of Criminal Trespass, a Misdemeanor. It is further ordered, adjudged and decreed that said sentences shall run concurrently. It is further ordered, adjudged and decreed that the defendant be considered for screening and placement in the Boot Camp Program pursuant to Section 53-30-401, MCA, et seq.

On February 20, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be dismissed.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.


text:
    STATE OF MONTANA, Plaintiff, vs. Jerry Paul Forsyth, Defendant.
    NO. DC 80-021
    DECISION
   On June 6,1986, the defendant was found guilty of the offenses of Deliberate Homicide, a felony in violation of 45-5-102(l)(a), M.C.A. The defendant is hereby sentenced to one hundred (100) years in the Montana State Prison for the crime of Deliberate Homicide. For his use of a dangerous weapon in connection with this offense, the defendant is sentenced to an additional ten-year term of imprisonment in the Montana State Prison, said term to run consecutively to the other sentence hereby imposed upon him, pursuant to 46-18-221, M.C.A. The defendant is found and determined to be a “dangerous offender” for purposes of his eventual parole eligibility, pursuant to 46-18-404, M.C.A. The defendant is granted credit for time spent in presentence incarceration while awaiting the disposition of this matter.

On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by Attorney Ann German. The state was represented by Ted Lympus, Prosecuting Attorney and Tom Esch, Flathead County Attorney.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, there is a split decision of the Sentence Review Division. The Honorable Richard Phillips and the Honorable Jeff Langton vote that the sentence be affirmed.

Done in open Court this 19th day of February, 1998.

DATED this 25th day of February, 1998.

Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Honorable Wm. Neis Swandal would amend the sentence whereas the defendant have a parole restriction and that the defendant not be eligible for parole for 30 years. The reasons Judge Swandal would amend the sentence are because of the nature of the crime and the length of time the defendant took to plan and execute the offense. Judge Swandal believes the defendant is a danger to society and there should have been a restriction of 30 years originally.

Chairman, Hon. Wm. Neis Swandal

The Sentence Review Board wishes to thank Attorney Ann German for representing Jerry R Forsyth in this matter and Ted Lympus, Prosecuting Attorney, and Tom Esch, Flathead County Attorney, for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Dale M. Hanson, Defendant.
    NO. DC 94-064
    DECISION
   On July 24,1995, it was the order of this Court that the defendant be sentenced as follows: Count I: Sexual Assault, a Felony, twenty (20) years at the Montana State Prison. Count II: Deviate Sexual Conduct, a Felony, ten (10) years at the Montana State Prison, said terms to run concurrently. If the defendant participates in sex offender treatment at Montana State Prison, he shall not be eligible for parole until completing Phases I and II of the Sexual Offender Treatment Program. If the defendant refuses treatment, or is found to be ineligible for treatment, the defendant shall not be considered eligible for parole until he completes at least one-third of his sentence. The Court further orders that upon his release on parole, the defendant shall comply with conditions as stated in the July 24,1995 judgment. The defendant shall receive credit for 13 days served in pre-sentence incarceration as of April 17, 1995. As required by Section 46-18-254, M.C.A., the defendant is hereby advised of his obligation to register as a sexual offender upon his release from custody. More specifically, under Title 46, Chapter 23, Part 5, of the Montana Code Annotated, the defendant must: 1. Within fourteen (14) days of coming into a County in which he resides or is temporarily domiciled, register with the Chief of Police of the municipality or the Sheriff of the County if he resides in an area other than a municipality; 2. Within ten (10) days of changing residence, give written notification of his new address to the law enforcement agency with whom he last registered. Sections 46-23-504 and 46-23-505, M.C.A. The defendant is further advised that his obligation to register continues for a period of ten (10) years following his release from prison. Failure to comply with this requirement is punishable by a maximum fine of $250.00 and by a maximum term of imprisonment of ninety (90) days. Sections 46-23-506 and 46-23-507, M.C.A. A misdemeanor, failure to comply with this requirement could also result in the revocation of parole and/or probation.

Done in open Court this 19th day of February, 1998.

DATED this 12th day of March, 1998.

On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to Twenty (20) years with ten (10) suspended to Montana State Prison for the offense of Count I: Sexual Assault, a Felony. The sentence for Count II: Deviate Sexual Conduct, a felony, shall remain the same. The sentences shall remain concurrent and all other conditions of the July 24,1995 judgment shall remain the same.

The reason for the amendment is because the defendant has no prior criminal record..

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Sentence Review Board wishes to thank Dale Michael Hanson for representing himself in this matter.