author: JUSTICE LEAPHART

text:
    IN RE THE MATTER OF KAREN GREEN, Petitioner, Counterclaim Defendant, and Respondent, v. EMIL J. GREMAUX, Respondent, Third-Party Plaintiff, Counterclaimant, and Appellant, v. JACK R. STONE, Third-Party Defendant and Respondent.
    No. 97-058.
    Submitted on Briefs June 19, 1997.
    Decided October 7, 1997.
    54 St.Rep. 1029.
    945 P.2d 903.
    285 Mont. 31.

      For Appellant: James L. Stogsdill, Attorney at Law, Lewistown.
    For Respondents: Mariah Eastman, Attorney at Law, Lewistown (for Karen Green); George N. McCabe; Jardine, Stephenson, Blewett & Weaver, Great Falls (for Jack Stone).
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Appellant, Emil J. Gremaux (Gremaux) appeals from the December 10, 1996 order of the Montana Tenth Judicial District Court, Fergus County, dismissing his third-party complaint against Respondent Jack R. Stone (Stone). We affirm.

We address the following issues on appeal:

1) In a suit for partition of property owned by Respondent Karen Green (Green) and Gremaux as cotenants, is Stone, the grantee of Green’s interest in a separate parcel originally owned by Green and Gremaux, a necessary party?

2) Did attorney Stone violate the prohibition of champerty codified at § 37-61-408, MCA, by purchasing an interest in land owned by his client Green knowing that Green and her cotenant, Gremaux, had been unable to agree to terms for the sale or lease of her interest?

Factual and Procedural Background

Gremaux and Green, who are brother and sister, inherited two tracts of land from their father, Edward C. Gremaux. The two tracts were part of Edward Gremaux’s farm and ranch operation. The Gremaux family home, farm buildings, and other improvements are located on the first tract of land, which is 138 acres. The second tract, 1,636 acres, is located about fifteen miles from the first tract and is primarily range land. Upon their father’s death, Gremaux and Green each became the owner of an undivided fifty percent interest in the two tracts subject to a life estate in favor of their mother, Edith Gremaux. Edith leased both tracts to Gremaux until her death in 1995, and he continues to use the property.

After their mother’s death, Gremaux offered Green $150,000 for her interest in both tracts of land, a figure Gremaux states is the average of two professional appraisals he obtained. However, Green refused the offer, claiming it is far below the appraisal she obtained. Green’s appraisers determined that the fair market value of the 138 acre tract is $180,000 and that the fair market value of the 1,636 acre tract is $345,000.

Soon after, Green’s attorney, Stone, wrote a letter to Gremaux informing him that Green was not interested in renewing the lease agreement on the two tracts. A few months later, Stone again wrote Gremaux on behalf of Green rejecting Gremaux’s $150,000 offer and informing him that while Green refused to sell her interest in the 138 acres, slie would sell her portion of the large tract for $200,000. Gremaux refused this offer, and negotiations ceased.

Green then sold her fifty percent interest in the 138 acre tract to Stone for $103,500. Stone subsequently offered Gremaux $103,500 for his interest in the 138 acre tract. The very same day, Stone wrote a letter to Gremaux on behalf of Green proposing a physical partition of the 1,636 acre tract. Gremaux refused both offers and countered with an offer to lease Stone’s interest in the small tract. Stone responded that he would not lease his interest to Gremaux while they held the property as cotenants, but that if Gremaux would agree to a physical partition of the 138 acre tract, Stone would then consider leasing his half to Gremaux.

On June 28, 1996, Green petitioned the Tenth Judicial District Court for a division by sale of the 1,636 acre tract in which she had retained an interest. Gremaux filed an answer and third-party complaint requesting that the court permit the joinder of Stone as a third-party defendant and partition both tracts of land in the same action. Gremaux’s third-party complaint also alleged that Stone had violated § 37-61-408, MCA (prohibiting champerty), by purchasing his client’s interest in the 138 acre tract.

Stone filed a motion to dismiss the third-party complaint and attached an affidavit of Green. In his supporting brief, Stone argued that Gremaux’s complaint failed to state a claim for relief under § 37-61-408, MCA. Stone further argued that he is not a necessary or proper party to the partition action under Rule 19, M.R.Civ.R, nor can he be brought in under Rule 14, M.R.Civ.R In his opposing brief, Gremaux argued that Green prejudiced him by conveying her interest to Stone and that Stone is a necessary party to the action because, unless he is joined, the parties could incur double, multiple or otherwise inconsistent obligations.

The District Court heard arguments on the motion to dismiss. Neither party presented evidence but because Stone had attached an affidavit to his motion, the District Court considered it as a motion for summary judgment. The District Court found that Stone did not purchase the property with the intent to bring suit and, therefore, did not violate § 37-61-408, MCA. The District Court also held that Stone was not a necessary party to the action because Montana law did not prohibit Green from conveying her interest in the 138 acre tract to Stone. The District Court granted Stone’s motion and dismissed Gremaux’s third-party complaint.

Review of District Court’s Grant of Summary Judgment

The District Court in this case properly converted Stone’s motion to dismiss to a motion for summary judgment. Under Rule 12(c), M.R.Civ.R, if “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.” Here, Stone attached an affidavit to his motion, thus putting Gremaux on notice that the court should properly convert Stone’s motion to dismiss to a summary judgment motion. Gremaux was given reasonable opportunity in his response to the motion and at oral argument to present material issues of fact and did not. Thus, we determine the District Court properly considered the motion as one for summary judgment and will review its decision accordingly.

We review a district court’s grant of summary judgment de novo. Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156. Therefore, we review the record to determine whether material issues of fact exist and whether the movant is entitled to judgment as a matter of law pursuant to Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.

Discussion

1. In a suit for partition of property owned by Green and Gremaux as cotenants, is Stone, the grantee of Green’s interest in a separate parcel originally owned by Green and Gremaux, a necessary party?

In its order dismissing the third-party complaint, the District Court held that under Montana law, Green had the right to convey her interest in the 138 acre tract of land to Stone. While the District Court correctly concluded that Stone is not a necessary party to this action, its order failed to address the appropriate issue. The question is not whether Green could legally convey her interest to Stone, but rather whether the two tracts must be partitioned together and, thus, whether Stone is a necessary party to the partition action. We determine that this issue is best addressed by looking at Rule 19, M.R.Civ.P.

Rule 19(a)(1), M.R.Civ.P., states that a person shall be joined as a party in an action if “in the person’s absence complete relief cannot be accorded among those already parties .’’Although Gremaux did not specifically analyze this case under Rule 19, he argues that by partitioning the two tracts in separate actions, the District Court will deprive him of the opportunity to obtain the highest overall sale value for his interest in the land. Gremaux asks us to hold that all of the lands of the original cotenancy must be included in this partition action to ensure that his rights are not prejudiced by Green’s conveying the 138 acre tract to Stone.

In support of his argument, Gremaux cites cases from Illinois, Kansas, Wisconsin, and Mississippi, all decided in the late 1800s or early 1900s. See Shoup v. Cummins (Ill. 1929), 166 N.E. 118; Woodward v. Santee River Cypress Lumber Co. (S.C. 1905), 52 S.E. 733; Hazen v. Webb (Kan. 1902), 68 P. 1096; Grady v. Cannon (Wis. 1896), 66 N.W. 808; Baird v. Jackson (1881), 98 Ill. 78. None of the cited authority persuades this Court to hold, as a matter of law, that all tracts of an original cotenancy must be partitioned in one action. On the contrary, the most recent of the cited authorities supports a holding that it is within the trial court’s discretion to determine whether prejudice would result by allowing separate partition actions.

In Shoup, 166 N.E. at 121, the court held that joint partition was not required because the tracts of land involved were never held in cotenancy together. However, the court did state, in dicta, that to prevent one cotenant from prejudicing another by conveying his interest in the common property, the grantee should be included in an action for partition of the original cotenancy property as a cotenant of the entire property. Shoup, 166 N.E. at 122. Thus, the Shoup court’s purpose in requiring partition of all of the lands in one action was to prevent one cotenant from prejudicing another by conveying one portion of the cotenancy property. In Baird, 98 Ill. at 78, the court recognized that whether the parties are properly joined in a partition action has always been a matter for the district court’s discretion and that each particular case must, to some extent, depend on its own facts. Thus, both of these cases suggest that the purpose of joinder is to prevent prejudice to those already parties and that this determination is best left to the discretion of the trial court.

“There is no precise formula for determining whether a particular non-party is necessary to an action, consequently the determination is heavily influenced by the facts and circumstances of each case” Mohl v. Johnson (1996), 275 Mont. 167, 171, 911 P.2d 217, 220. This Court has held:

While a party should be joined if his presence is deemed necessary for the according of complete relief, it must be noted that complete relief refers to relief as between the persons already parties, and not as between a party and the absent person whose joinder is sought. Nor is joinder necessary where, although certain forms of relief are unavailable due to a party’s absence, meaningful relief can still be provided.

Mohl, 911 P.2d at 220. We recognize there may be cases in which partitioning all of the lands of the original cotenancy in one action may be necessary to avoid prejudice and afford the parties complete relief; however, this is not such a situation. In looking at the pleadings and supporting documents, we conclude that joining Stone and partitioning both tracts in the same action is not necessary to provide the parties meaningful relief.

Gremaux argues that the value of the two tracts is linked to their joint use and that unless they are partitioned together, he will receive no “consideration for the value that one tract lends the other.” The District Court noted at oral argument that “to accept that argument ... [the court] would have to make a finding that because these two parcels of land, even though they are separate and distinct parcels, ... were operated so closely together that one of them couldn’t be partitioned equitably without the other being partitioned.” Like this Court, the District Court was reluctant to apply a rule of law that would prohibit landowners from “parition[ing] anything without partitioning everything.”

While historically these two tracts were used together, the facts presented in Green’s affidavit do not support the argument that partitioning the tracts separately will decrease their value. Rather, these facts lead to a contrary conclusion. It is undisputed that Gremaux offered Green $150,000 for her one-half interest in both tracts, approximately $169 per acre. Green refused this offer and sold her half interest in the 138 acre tract alone for $103,000, approximately $1,493 per acre. Thus, Green received from Stone a per acre price of more than eight times that offered her by Gremaux. Further, the two tracts are not adjacent, but rather are located fifteen miles apart. Thus, there is no basis for concluding that Gremaux will be prejudiced or unable to obtain complete relief if the two tracts are not partitioned in one action.

Gremaux also argues that Stone is a necessary party under Rule 19(a)(2) because if the two tracts of land are not partitioned in the same action, he could incur double, multiple, or inconsistent obligations. Rule 19(a)(2) requires a person to be joined if that person:

claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

Rule 19(a)(2), M.R.Civ.P. (emphasis added). By focusing solely on the question of whether joining Stone is necessary to prevent double, multiple, or inconsistent obligations, Gremaux ignores the first of the two prerequisites to necessary joinder under Rule 19(a)(2). Clearly, for this rule to apply, the person who is sought to be joined as a party must first claim an interest in the action. Here, Stone does not claim an interest in the partition of the 1,636 acre tract and, therefore, is not a necessary party under Rule 19(a)(2), M.R.Civ.P. We hold that the District Court was correct in concluding that Stone’s joinder is not required as a matter of law.

2) Did attorney Stone violate the prohibition of champerty codified at § 37-61-408, MCA, by purchasing an interest in land owned by his client Green knowing that Green and her cotenant, Gremaux, had been unable to agree to terms for the sale or lease of her interest?

Gremaux also alleges that Stone committed champerty by purchasing Green’s one-half interest in the 138 acre tract with knowledge of the dispute between Green and Gremaux. At common law, a non-party who agreed to pay the expenses of a party’s suit in return for a portion of the recovery was guilty of the crime of champerty. State ex rel. Oklahoma Bar Ass’n v. Smolen (Okla. 1992), 837 P.2d 894, 897. Champerty was prohibited to prevent attorneys from stirring up litigation or from becoming involved in a lawsuit solely for personal economic benefit. Smolen, 837 P.2d at 897. Today, the common law prohibition of champerty is codified at § 37-61-408, MCA. This section states, in relevant part:

(1) An attorney and counselor must not directly or indirectly buy or be in any manner interested in buying a bond, promissory note, bill of exchange, book debt, or other thing in action with the intent and for the purpose of bringing an action thereon.
(2) An attorney and counselor must not, by himself or by or in the name of another person, either before or after action brought, promise or give or procure to be promised or given a valuable consideration to any person as an inducement to placing or in consideration of having placed in his hands or in the hands of another person a demand of any kind for the purpose of bringing an action thereon.

Section 37-61-408, MCA.

Since its enactment, this Court has had few opportunities to apply this statute. We did address the question of champerty in Lussy v. Bennett (1984), 214 Mont. 301, 692 P.2d 1232, and Gremaux contends that our holding in Lussy controls here. In Lussy, Henry and Dyane Lussy built a house on Lot A. Subsequently, realizing that their house encroached upon the adjacent land, Lot B, the Lussys purchased Lot B as well. Lussy, 692 P.2d at 1234. The Lussys executed a trust deed on Lot A with Defendant First Federal Savings and Loan as beneficiary. The trust deed did not mention Lot B or the house thereon. After First Federal foreclosed the trust deed, the Lussys, joined by Henry’s brother Richard, an attorney, filed a pro se complaint in the district court to remove the “trespassing house” that encroached on their land, Lot B. Lussy, 692 P.2d at 1235.

After the district court found that Henry was the only proper party to the action, Henry conveyed his interest in Lot B to Richard, making Richard the real party in interest and giving him the right to bring the suit on his own behalf. Lussy, 692 P.2d at 1235. Richard filed another complaint, but the district court dismissed the case as champertous and frivolous. Lussy, 692 P.2d at 1235-36. This Court upheld the district court, and essential to our holding was the fact that Richard admitted that he acquired title to Lot B solely for the purpose of bringing an action and dividing the proceeds among his remaining family members. Lussy, 692 P.2d at 1235.

Gremaux argues that, as in Lussy, this dispute centers around two pieces of property that have been traditionally used together and that Green and Gremaux were involved in a dispute involving the land before Stone purchased Green’s interest in the 138 acre tract. Because Stone purchased “his client’s interest with a full understanding of the animosity between Gremaux and Green,” Gremaux asks us to hold that he purchased a demand with an intent to bring an action thereon. We determine that this is not the type of transaction § 37-61-408, MCA, was meant to prohibit.

Section 37-61-408, MCA, is designed to prevent attorneys from bringing or becoming involved in litigation for their personal economic benefit. In Lussy, Richard bought the land from his brother after the district court found that he was not a proper party to the action. Lussy, 692 P.2d at 1235. Richard admitted that he had acquired an interest in the land so that he could refile the action and share in the proceeds of the litigation. In this case, the District Court found no evidence that Stone purchased Green’s interest with the intent of bringing an action against Gremaux. At the time of the transfer, no litigation had been filed, and until Stone was brought into the present suit, he was not a party to any litigation relating to the property he purchased from Green. We agree with the District Court’s conclusion that, as a matter of law, Gremaux’s third-party complaint failed to state a claim under § 37-61-408, MCA.

Based on the foregoing, we affirm the decision of the District Court.

JUSTICES GRAY, REGNIER, NELSON and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES A. WEIS, Defendant and Appellant.
    No. 97-211.
    Submitted on Briefs September 17, 1997.
    Decided October 7, 1997.
    54 St.Rep. 1034.
    945 P.2d 900.
    285 Mont. 41.

      For Appellant: John A. Lence, Kalispell.
    For Respondent: Joseph P. Mazurek, Attorney General, Carol E. Schmidt, Assistant Attorney General, Helena; Thomas J. Esch, Flathead County Attorney, Ed Corrigan, Deputy Flathead County Attorney, Kalispell.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal by Charles A. Weis from his conviction, following a bench trial, de novo in the Eleventh Judicial District Court, Flathead County, of driving while under the influence of alcohol in violation of § 61-8-401(1), MCA (1993). Given Weis’s concession that he was under the influence of alcohol while driving or in actual physical control of his vehicle, the only issue before the District Court, and now before this Court on appeal, involves whether Boulder Lane, on which Weis was driving at the time of his offense, is a “way of this state open to the public” within the meaning of § 61-8-401(1), MCA (1993) and § 61-8-101(1), MCA. The trial court concluded that it was. We agree and, accordingly, affirm.

Background

The parties stipulated to the facts which, insofar as pertinent here, we summarize as follows. On September 1, 1994, at about 9:30 p.m., Weis drove his vehicle from a residence located on Boulder Lane which he had been visiting. At the time, he was under the influence of alcohol and was in actual physical control of his vehicle. Prior to reaching the point where Boulder Lane intersects with Karrow Avenue, a paved, two-lane public road maintained by the county, Weis determined that he was too drunk to drive. He attempted to turn his vehicle around, but in doing so, drove off of Boulder Lane and into an adjacent fence and shed.

Boulder Lane is a privately owned, one-lane, gravel right of way approximately 3/10 of a mile long located near Whitefish, Montana. It begins at Karrow Avenue and dead ends at each of the three residences it services. The only access to or from Boulder Lane is via Karrow Avenue. Flathead County does not maintain Boulder Lane; all maintenance and snow removal is performed by the residents. There are no barriers, signs, or obstacles, such as gates, private property signs, or keep-out signs which limit access by the public to Boulder Lane or that would indicate that the lane is private. Boulder Lane is displayed in the Official Flathead County Road Atlas and in MAPS Flathead Valley Detail Map Pages and Street Index, both commercial atlases.

Furthermore, trial testimony revealed that Boulder Lane is marked with a privately-placed sign, albeit with faded lettering, and that this lane is often used by members of the public who are lost, who are simply curious or who have a purpose for going to the residences which are served by the lane.

Discussion

The facts in this case are either stipulated or, at least, not the subject of legitimate dispute. Accordingly, we review the District Court’s conclusion that Boulder Lane is a “way of this state open to the public” as one of law, involving the interpretation of the statutes at issue. In this respect our review is plenary. State v. Brander (1996), 280 Mont. 148, 150, 930 P.2d 31, 33 (citing State v. Schnittgen (1996), 277 Mont. 291, 295, 922 P.2d 500 503).

Montana’s DUI statute, § 61-8-401, MCA (1993), provides, in pertinent part:

(1) It is unlawful and punishable as provided in 61-8-714 and 61-8-723 for any person who is under the influence of:
(a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public; [Emphasis added].

Weis maintains that he is not guilty of DUI because he was operating his vehicle, not on a way of this state open to the public, but, rather, in a private driveway. We disagree.

While it is clear that Boulder Lane is privately owned and maintained, neither our statutes nor our interpretive case law require that a “way of this state open to the public” be defined so narrowly as to include only those ways or places for travel which are legally dedicated to the public use. Indeed, § 61-8-101(1), MCA, defines the statutory phrase “ways of this state open to the public” to mean:

any highway, road, alley, lane, parking area, or other public or private place adapted and fitted for public travel that is in common use by the public. [Emphasis added].

In interpreting this section of Montana’s code, our prior cases have included private places fitted or adapted for public travel within the reach of this definition. In City of Billings v. Peete (1986), 224 Mont. 158, 729 P.2d 1268, we held that the parking garage of the Northern Hotel in Billings was a way of this state open to the public within this statutory definition notwithstanding that access to the garage could be obtained only via one ramp and only upon obtaining a ticket from the attendant and payment of a fee. Peete, 729 P.2d at 1269. We concluded that this paved hotel parking garage was covered by §§ 61-8-101(1) and 61-8-401(1)(a), MCA, because the facility had a history of use by the public, because the public was encouraged to use the facility and because the garage was fitted for public travel and in common use by the public. Peete, 729 P.2d at 1270-71.

InPeeie, we cited the legislative history of § 61-8-101(1), MCA, and two decisions of the Washington Supreme Court which interpreted the Seattle city ordinance on which § 61-8-101(1), MCA, was modeled. See City of Seattle v. Wright (Wash. 1967), 433 P.2d 906 (private, paved thoroughfare owned by the Union Pacific Railroad but used regularly by local residents for parking and access to homes and by commercial vehicles, fit within the ordinance definition as its surface was similar to nearby public thoroughfares and the only restriction on use was a 10 mile-per-hour speed limit); City of Seattle v. Tolliver (Wash. 1982), 641 P.2d 719 (ordinance definition included a private parking lot located at a major intersection because of its easy access to adjoining streets and its history of use by bar patrons).

Similarly, in Santee v. State, Dept. of Justice, Motor Vehicle Div. (1994), 267 Mont. 304, 883 P.2d 829, we held that the American Bank parking lot in Livingston was a way of this state open to the public because it was fitted for public travel and in common use by the public. Santee, 883 P.2d at 833. We reached this conclusion on the basis of evidence which demonstrated that the lot, located in the middle of the active Livingston business district, was commonly used by members of the public patronizing nearby taverns and despite the fact that the lot was accessible only by an alley and was posted with signs stating that it was private and that violators would be towed. We, again, cited Tolliver as instructive. Santee, 883 P.2d at 833.

As to the case at bar, the fact that Boulder Lane is located on private easements, is privately maintained, and is of limited use is not dispositive. This lane provides access to three residences from a paved county road. Boulder Lane is a gravel, one-lane roadway and, as such, it is fitted and adapted for public travel. In fact, members of the public who are lost, curious or who have a purpose in going to the residences often use this lane in common with the residents who own and maintain it. Indeed, Weis, a member of the public, was using the road for travel on a visit to one of the private residences at the time he committed his offense. Moreover, the public is not impeded, restricted or prohibited in any way from traveling on Boulder Lane.

While Weis argues that those who use Boulder Lane are either there by invitation or are trespassing, the evidence at trial does not bear out this contention. Persons who are not invitees of the residents of Boulder Lane often use the roadway and the lane is not posted. See § 45-6-201, MCA. More importantly, however, whether the residents served by Boulder Lane consented to its use or not, the fact is that the lane, though private, is adapted and fitted for public travel and is in common use by the public. Section 61-8-101(1), MCA; Peete, 729 P.2d at 1270-71; Santee, 883 P.2d at 833.

Based upon the foregoing statutory and decisional authority and in light of the stipulated facts and the evidence produced at trial as discussed above, we hold that the District Court properly concluded that Boulder Lane is a “way of this state open to the public” within the definition of § 61-8-101(1), MCA. Accordingly, having driven his vehicle upon the ways of this state open to the public while under the influence of alcohol in violation of § 61-8-401(1)(a), MCA (1993), Weis was properly convicted of DUI.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PAUL WOODS, Defendant and Appellant.
    No. 95-340.
    Heard April 11, 1997.
    Submitted April 22, 1997.
    Decided October 9, 1997.
    54 St.Rep. 1036.
    945 P.2d 918.
    285 Mont. 46.

      For Appellant: Lonnie J. Olson (argued), Allen Smith, Jr. (argued), and Brenda K. Elias, Montana Advocacy Program, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; John Paulson (argued), Assistant Attorney General, Helena; Valerie D. Wilson, County Attorney, Boulder.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Paul Woods appeals from an order of the Fifth Judicial District Court, Jefferson County, denying his petition for release from the Montana State Hospital. We affirm.

The issue on appeal is whether the District Court properly denied Woods’ petition for release from the Montana State Hospital.

In 1974, a criminal information was filed in the District Court against Woods, who was then thirty-five years old. The information charged Woods with felony sexual assault, alleging that he had knowingly subjected several young boys to sexual contact without consent by committing fellatio on one of them and by having others pose nude so that he could photograph them engaging in actual or feigned homosexual activities.

At his counsel’s request, Woods was committed to the Montana State Hospital at Warm Springs, Montana, for a psychiatric examination. The examining physicians gave Woods diagnoses of borderline mental retardation and “other sexual deviation,” and noted that he had poor judgment and poor impulse control. In their opinion, Woods did not have the capacity to understand the proceedings against him, and he was not able to assist in his own defense.

After the State Hospital filed its report, Woods moved for acquittal on the criminal charge against him on grounds of mental disease or defect, pursuant to §§ 95-507 and -508, R.C.M. (1947). The District Court entered judgment acquitting Woods of the charge against him and committed him to the custody of the superintendent of the Montana State Hospital.

Seven years later, the superintendent of the State Hospital petitioned the District Court for Woods’ conditional release. The court ordered that Woods be conditionally released from the State Hospital for up to five years, under a gradual community reentry program. It later ordered that Woods be examined by several professionals, including Dr. William D. Stratford. Stratford’s report affirmed Woods’ prior diagnoses of mild mental retardation and sexual deviancy. Stratford further commented:

One of the most alarming things about Mr. Woods is that he can justify his pedophilic behavior. He does, with a little coaxing, believe and reiterates that this conduct is fine and that there is nothing wrong with it. Regardless of whether other people catch him or not, that is their concern but he feels perfectly justified in doing what he alleges that their parents also do with them. He believes that their parents also take pictures of them in the nude and that he is doing nothing more than that.

As a result of his clinical evaluation, Stratford concluded that he “definitely would not support any consideration of community placement or a gradual release system for Mr. Woods at this time or in the foreseeable future.”

Woods continued to live at the State Hospital after Stratford’s report was filed. Several times each year, the court granted motions by members of Woods’ family that he be released to their custody for visits of up to a few weeks at a time.

In 1994, Woods filed a petition for unconditional release from the State Hospital. He attached to his petition a 1993 psychiatric evaluation by Dr. Ardean Moore, whose diagnoses of Woods were pedophilia, in remission; borderline intellectual functioning; and passive-aggressive personality. Moore opined that Woods “does not present a substantial risk or a serious threat of serious bodily injury or death to himself or others.” Stating that Woods “is not seriously mentally ill and has not shown dangerousness for some time,” Moore recommended that he be considered for discharge.

The District Court appointed counsel to represent Woods and ordered Dr. Timothy J. Casey, a Ph.D. psychologist, to conduct a mental examination of him. In his subsequent report, Casey noted that while Woods had enjoyed a rather open environment within the State Hospital, questions had been raised about his capacity to function within the community. Casey stated that Woods is in “enormous” denial and “has consistently denied the presence of any problems and consequently has been resistive to treatment programs designed to address his needs. ... Since he denies any problems of a sexual nature, he is unsuitable for a sex offender program.” According to Casey, Woods’ enormous denial and rationalization for his behavior are exemplified by his statements that his victims’parents asked him to photograph the children in the nude because they were poor and could not afford a camera. Casey opined that Woods was not a suitable candidate for conditional release from the State Hospital.

The District Court next held a hearing on Woods’ petition, at which it admitted into evidence the reports of Moore and Casey and heard the arguments and recommendations of counsel. At the hearing, the county attorney drew the court’s attention to a letter the court had received and placed in the court file in 1994, from Woods’ three sisters. The letter described a 1993 incident in which Woods, on a visit to one of his sisters and her family, told his ten-year-old nephew that “good friends will even take their clothes off, if they are good friends.” In the letter, Woods’ sisters expressed their opposition to and concern about the consequences of any release of Woods from the State Hospital.

The court entered written findings and conclusions setting forth the history of the case. It concluded that Woods continued to suffer from a mental disorder, disease, or defect which caused him to present a substantial risk of serious bodily injury or imminent threat of physical injury to other persons, particularly young children. The court denied Woods’ petition for release.

Woods appealed to this Court. After briefing had been completed, we remanded for further proceedings to obtain expert opinions on whether Woods’ condition and behaviors constitute a “mental disease or defect that causes the person to present a substantial risk of serious bodily injury or death to the person or others ... or a substantial risk of substantial property damage,” as required for continued commitment under § 46-14-302, MCA.

At a second evidentiary hearing in June 1996, the District Court heard testimony by Casey, who had reexamined Woods in January 1996 following this Court’s remand order, and by a clinical psychologist, Dr. Judy Bowman, who was on Woods’ treatment team at the State Hospital. Bowman testified that Woods’ treatment team concurred in the opinion that he continued to suffer from the same mental disease or defect that had caused him to be committed to the State Hospital in the first place. She opined that it would not be appropriate to place Woods in a less restrictive setting until he has had treatment for pedophilia — which has been offered but he has refused — and that he presented a substantial risk of reoffense if he were discharged without treatment. Casey testified that his findings as a result of his examinations of Woods were that there was essentially no change in Woods’ condition from 1974 to the present time and, in his opinion, Woods presented a risk of reoffense.

Woods presented the testimony of one of his friends, with whom he proposed to live upon his release from the State Hospital. The friend, who had himself been diagnosed as a pedophile, offered to share his home in Billings, Montana, with Woods.

Following the second hearing, the District Court again concluded that Woods continued to suffer from a mental disease or defect and constituted a substantial and imminent risk for further sexual offenses. The court denied the petition for release from the State Hospital. The record was then returned to this Court for the resumption of this appeal.

Discussion

Did the District Court properly deny Woods’ petition for release from the Montana State Hospital?

Woods relies upon Foucha v. Louisiana (1992), 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437, in arguing that constitutional due process and equal protection guarantees require the State to prove that he is both mentally ill and dangerous in order for his commitment to stand. He maintains that these requirements were not met.

In Foucha, Terry Foucha challenged the Louisiana statutes under which he was committed to a psychiatric hospital after being found not guilty of criminal offenses by reason of insanity. Foucha was diagnosed as having an antisocial personality, an untreatable condition not classed as a mental disease. He claimed that Louisiana’s statutes denied him due process of law and equal protection, because they allowed a person acquitted by reason of insanity to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness.

The State of Louisiana did not claim that Foucha was mentally ill, but instead argued for his continued confinement under a statutory provision permitting confinement based upon dangerousness alone. Additionally, the statutory scheme placed the burden on the defendant to prove that he was not dangerous. In reaching its decision, the Supreme Court upheld the rule that “the acquittee may be held as long as he is both mentally ill and dangerous, but no longer.” Foucha, 504 U.S. at 77, 112 S.Ct. at 1784. The Court reversed a lower court order returning Foucha to a mental institution, and held that the burden of proving the grounds of insanity and dangerousness must be upon the State and that proof must be by clear and convincing evidence. Foucha, 504 U.S. at 86, 112 S.Ct. at 1788-89.

Montana’s statutory procedures for cases involving issues of mental disease or defect of a criminal defendant have been amended since Foucha. Commitment of a person to the custody of the Department of Public Health and Human Services after a finding of not guilty by reason of lack of mental state is subject to an annual treatment review. Section 46-14-301(5), MCA. Such a person may be discharged when

the person no longer suffers from a mental disease or defect that causes the person to present a substantial risk of serious bodily injury or death to the person or others, a substantial risk of an imminent threat of physical injury to the person or others, or a substantial risk of substantial property damage [.]

Section 46-14-302(1), MCA. The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or other antisocial behavior. Section 46-14-101, MCA.

Application for discharge or release may be made by the director of the institution to which the person was committed, the director of the Department of Public Health and Human Services, or the person committed. Section 46-14-302(1) and (2), MCA. Upon application for release, the court must appoint a psychiatrist or licensed clinical psychologist to examine the person and report as to the person’s mental condition. Section 46-14-302(3), MCA. The committed person also has the right to secure a professional person of his choice to examine him and testify on his behalf. Section-46-14-302(4), MCA.

If the court is not satisfied from the report of the appointed psychiatrist or clinical psychologist that the committed person may be released because he no longer suffers from a mental disease or defect causing him to present a substantial risk of serious bodily injury or death to himself or others, the court must order a hearing on the issue. Section 46-14-302(6), MCA. The burden is upon the State to prove by clear and convincing evidence that the person

may not be safely discharged or released because the person continues to suffer from a mental disease or defect that causes the person to present a substantial risk of:
(i) serious bodily injury or death to the person or others;
(ii) an imminent threat of physical injury to the person or others;
or
(iii) substantial property damage.

Section 46-14-302(6)(b), MCA.

Woods does not challenge the facial constitutionality of the Montana statutes concerning commitment of persons found not guilty due to lack of mental state. He does contend, initially, that his right to due process was violated by this Court’s authorization of a second hearing in this matter. He contends that the State failed in its burden of proof at the first hearing and should not have been given a second opportunity to prove its case.

This argument was considered and rejected when this Court denied Woods’ petition for rehearing on this Court’s remand order. Under the doctrine of law of the case, a prior decision of this Court resolving a particular issue between the same parties in the same case is binding and cannot be relitigated. State v. Black (1990), 245 Mont. 39, 44, 798 P.2d 530, 533. We hold that this Court’s previous resolution of the issue concerning the second hearing remains binding.

The dissent nevertheless insists that the second hearing ordered by this Court represented a denial of Woods’right to due process. This Court has noted that the fundamental requirements for due process are notice and an opportunity for hearing appropriate to the case. Matter of Adoption of K.L.J.K. (1986), 224 Mont. 418, 421, 730 P.2d 1135, 1137. These fundamental requirements were satisfied by the proceedings here, including this Court’s remand order. Woods was given adequate notice and opportunity to challenge the State’s evidence and present his own evidence concerning his mental condition and dangerousness. The supplemental proceedings herein were an expansion on the hearing on the petition rather than a second or separate hearing. The remand order afforded due process to Woods by requiring the District Court to reconsider its findings, which were adverse to the application for discharge, on the statutory requirement of “mental disease or defect” in the light of expert testimony directed specifically to that issue.

Woods’ central argument is that the record supports neither a finding that he is mentally ill nor the finding that he is dangerous, especially by the clear and convincing evidence standard of proof required under Foucha and § 46-14-302, MCA. This Court’s standard of review of findings of fact was set forth in Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287: whether substantial evidence supports the findings, whether the district court misapprehended the effect of the evidence, and whether this Court has a definite and firm conviction that the trial court made a mistake.

First, we consider whether the District Court erred in determining that the State had presented clear and convincing evidence that Woods suffered from a mental disease or defect. As Woods points out, the experts agree that he is not and has never been seriously mentally ill. However, the question under § 46-14-302, MCA, is not whether Woods is seriously mentally ill, but whether he suffers from a mental disease or defect that causes him to present a substantial risk of (1) serious bodily injury or death to himself or others, (2) an imminent threat of physical injury to himself or others, or (3) substantial property damage.

The absence of a constitutional requirement that a person confined be found “mentally ill,” per se, has recently been clarified by the United States Supreme Court in Kansas v. Hendricks (1997), _ U.S. _, 117 S.Ct. 2072, 138 L.Ed.2d 501. In Hendricks, the Court ruled that the Kansas Sexually Violent Predator Act (Kansas Act), Kan. Stat. Ann. § 59-29a01 et seq. (1994), comports with due process requirements and neither runs afoul of double jeopardy principles nor constitutes impermissible ex post facto lawmaking. The Kansas Act establishes a civil commitment procedure for the long-term care and treatment of sexually violent predators, “[a] small but extremely dangerous group” who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to general involuntary civil commitment statutes, but who generally have antisocial personality features which are unamenable to existing mental illness treatment and render them likely to engage in sexually violent behavior. Hendricks, a repeat-offender pedophile, has rejected treatment for his condition on the grounds that “treatment is bull — .” Upon his release from prison, Hendricks was civilly committed to the custody of the Kansas Secretary of Social and Rehabilitation Services as a sexually violent predator.

The Supreme Court noted that the States have always provided, in certain narrow circumstances, for the forcible civil detainment of persons who are unable to control their behavior and who therefore pose a danger to the public health and safety. The Court explained that its earlier cases, including Foucha, have not required States to adopt any particular nomenclature in drafting civil commitment statutes. It noted that legal definitions of words such as “insanity” and “competency” often vary from their psychiatric counterparts. “We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a ‘mental illness’ or ‘mental abnormality.’ ” Hendricks, 117 S.Ct. at 2080. The Court went on to rule that “Hendricks’ diagnosis as a pedophile, which qualifies as a ‘mental abnormality’ under the Act, thus plainly suffices for due process purposes.” Hendricks, 117 S.Ct. at 2081.

Additionally, the fact that a mental condition is in remission does not preclude a finding that the person continues to suffer from the condition and is in need of further detention. In State v. Korell (1986), 222 Mont. 112, 116, 720 P.2d 688, 691, this Court suggested that a mental illness in remission remains a mental illness for purposes of further detention at the State Hospital. That view is in accord with the position taken in other jurisdictions. See Mental Hygiene Legal Services v. Rhodes (N.Y. App. Div. 1994), 606 N.Y.S.2d 834; Bahrenfus v. PSRB (Or. Ct. App. 1993), 862 P.2d 553; State v. Ross (Mo. Ct. App. 1990), 795 S.W.2d 648. In fact, a finding that a mental condition is in remission supports an inference that it still exists.

The term remission means the abatement of the symptoms and signs of a disorder or disease. The abatement may be partial or complete. Physicians use the expression remission to denote amelioration, which even if complete for the time being, does not necessarily imply permanent cure; in fact, the term carries the idea that the amelioration of the symptoms is temporary.

Doe v. Harris (D.C.N.Y. 1980), 495 F.Supp. 1161, 1170 n.36, quoting L. Hinsie & R. J. Campbell, Psychiatric Dictionary 641 (Oxford Univ. Press, N.Y. 1960).

The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) describes pedophilia as a mental disorder. See Diagnostic Code 302.2, American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, D.C., American Psychiatric Association, 1994. Woods argues that pedophilia is excluded from the definition of mental disease or defect under § 46-14-101, MCA, however, because it is manifested only by criminal acts or behaviors. According to the DSM-IV, though, the diagnostic criteria for pedophilia include recurrent, intense, sexually arousing fantasies, sexual urges, or behaviors over a period of six months involving sexual activity with a prepubescent child or children which cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. These diagnostic criteria do not support a conclusion that pedophilia is solely manifested by criminal acts or behaviors, because the diagnostic criteria include manifestations which are not criminal in nature.

In the present case, all of the expert witnesses agreed on the diagnosis of Woods as a pedophile, whether “in remission” or not. It is uncontested that Woods’ pedophilia has not been treated because he has refused to participate in treatment. The District Court found that Woods’ condition remained unchanged from the time of his placement at the State Hospital. In its conclusions of law, the court further referred to its “Minding the Defendant still suffers from a mental disease or defect within the context of § 46-14-302, MCA....” We hold that these findings are supported by clear and convincing evidence and are not clearly erroneous.

We next consider whether the State presented clear and convincing evidence of Woods’ dangerousness, or, in the words of the applicable subsection of the statute, that he presents a substantial risk or serious threat of serious bodily injury to others. Woods cites Moore’s opinion that he does not present a substantial risk or a serious threat of serious bodily injury or death to himself or others. He points out that the District Court did not make a finding concerning Moore’s opinion. Referring to the letter in the court’s file from his sisters, Woods contends that “[a] single reported incident of inappropriate verbal conduct over the years of conditional releases for home visits does not provide the clear and convincing evidence necessary to sustain a finding of dangerousness.”

Casey testified at the second hearing that, “In my opinion, that pedophilia is in remission because of the structure and the restrictions that the environment at the State Hospital impose on him.” In other words, Woods has had very little opportunity to reoffend within the confines of the State Hospital or under the watchful eyes of his family while on visits with them. Both Casey and Bowman testified that, in the absence of treatment for pedophilia, which Woods has refused, it is probable that he will reoffend against children if the opportunity arises.

The District Court noted that Woods’ pedophilia had never been treated because of his continued denial. The court found:

It was the opinion of the professionals at the previous hearing and now, that given the untreated pedophilia, [and] lack of impulse control; an unconditional release would result in an imminent and substantial risk of re-offending.

The court stated that “[t]he Defendant’s refusal of treatment for pedophilia renders him a substantial risk for committing other sexual offenses, particularly to children.”

Does the risk that Woods will reoffend against children constitute a substantial risk of an imminent threat of physical injury to others? While physical injury is not defined in the statutes, it equates in the common parlance to “bodily injury,” which, pursuant to § 45-2-101(5), MCA, includes physical pain and mental illness or impairment.

Casey wrote in his report to the District Court that Woods poses a risk of “psychological injury to young males.” In her letter addendum to her report to the court, Bowman stated that, untreated for pedophilia, Woods presents “a substantial risk of imminent threat of physical injury or emotional injury to others.” We conclude that the court’s finding that unconditional release would result in an imminent and substantial risk of reoffending constitutes a finding that Woods presents a substantial risk of an imminent threat of physical injury to others, that this finding is supported by clear and convincing evidence, and that this finding is not clearly erroneous.

In summary, the District Court’s findings that Woods has a mental disorder or defect which causes him to present a substantial risk of imminent threat of bodily injury to other persons, particularly young children, are supported by clear and convincing evidence and are not clearly erroneous. Woods has not established violation of his right to due process. The court’s order denying Woods an unconditional release from the State Hospital is therefore affirmed.

JUSTICES NELSON, LEAPHART and GRAY concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

In 1974, Paul Woods was acquitted of the charge against him by reason of mental disease or defect and committed to the Montana State Hospital. Section 46-14-303, MCA, provides that a committed person may apply to the district court for release, and that if he does so, the procedure to be followed is that which is set forth at § 46-14-302, MCA.

Section 46-14-302, MCA, provides that after an application for release is made, the court shall appoint at least one person, who is a psychiatrist or psychologist, to examine the person who applies for release and the committed person has a right to an evaluation by a similarly qualified person of his or her choice. If the court is satisfied from the reports that the applicant no longer suffers from a mental disease or defect that causes that person to present a substantial risk of bodily injury, the court shall order the person’s discharge. If it is not so satisfied, it must hold a hearing at which the State has the burden of proving by clear and convincing evidence

whether the person may safely be discharged or released on the grounds that the person no longer suffers from a mental disease or defect that causes the person to present a substantial risk of:
(i) serious bodily injury or death to the person or others;
(ii) an imminent threat of physical injury to the person or others;
or
(iii) substantial property damage.

Section 46-14-302(6)(a), MCA.

Woods applied for release on December 22,1994. In support of his application, he attached the report from Ardean Moore, the staff psychiatrist at Montana State Hospital at Warm Springs. The report is dated December 2, 1993. In the report, she observed that:

Although he uses denial regarding his sexual offenses, he has remained in control of his impulses and has not demonstrated any serious behavioral problems or lapses in judgment and has been able to participate adequately in his treatment plan.

Moore diagnosed “Pedophilia, in Remission” and concluded that:

He does not present a substantial risk or serious threat of serious bodily injury or death to himself or others. He does not present a substantial risk of substantial property damage.
Recommendations: Since Mr. Woods is not seriously mentally ill and has not shown dangerousness for some time, he qualifies for consideration for discharge. At the time of his mental status assessment in October, 1993, he appeared stable and appeared to have reached maximum hospital benefits from a lengthy hospitalization.

The District Court appointed Timothy J. Casey, Ph.D., to evaluate Woods. He did so and issued a report to the court dated January 18, 1995. Dr. Casey also diagnosed pedophilia in remission, but concluded that Woods was not a suitable candidate for release from the hospital because he had no support system within the community. Significantly, however, neither did he make any finding that Woods suffered from a mental disease or defect which caused him to present a substantial risk of harm to himself or others.

Remission is defined in the 25th Edition of Dorland’s Illustrated Medical Dictionary as “a diminution or abatement of the symptoms of a disease; also the period during which such diminution occurs.” Dorland’s Illustrated Medical Dictionary 1343 (25th ed. 1974).

The District Court held a hearing to consider Woods’ application for release on February 17, 1995. The only medical evidence presented was the aforementioned reports from Moore and Casey. In spite of this lack of evidence, the District Court found that:

13. Woods’ mental disorder(s), disease(s) or defect(s) cause him to present a substantial risk of serious bodily injury, or an imminent threat of physical injury to other persons, particularly young children.

For that reason, the District Court denied Woods’ application for release from the Montana State Hospital.

Woods appealed the District Court’s denial of his application to this Court for the reason that the District Court’s critical finding was unsupported by substantial evidence and, therefore, was clearly erroneous. This Court, after review of the record, apparently agreed. On December 12, 1995, the majority issued an order in which it retained jurisdiction but remanded to the District Court for further proceedings. In that order, the majority concluded as follows:

We conclude that neither report addresses the fundamental requirement of § 46-14-302, MCA (1993), that the defendant “no longer suffer[s] from a mental disease or defect,” and that, accordingly, the District Court was without any factual or legal basis on which to determine whether the requirements of this statute had been met.
... [N]either professional person has rendered an opinion on the fundamental requirement of the statute at issue — whether Woods suffers from a mental disease or defect in the context of § 46-14-302, MCA (1993). Under such circumstances, we conclude that the District Court was in no position to determine whether the requirements of § 46-14-302, MCA (1993), were met.

As pointed out by Woods, the statutory framework for consideration of his application for release does not provide for sequential hearings. It provides, in § 46-14-302, MCA, that he is entitled to a hearing at which the State has the burden of proving that he suffers from a mental disease or defect which makes him dangerous to himself or others. If the State does not carry its burden, he is entitled to be released. Section 46-14-302(6)(b), MCA, clearly provides:

A hearing is considered a civil proceeding, and the burden is upon the state to prove by clear and convincing evidence that the person may not be safely discharged or released because the person continues to suffer from a mental disease or defect that causes the person to present a substantial risk of:
(i) serious bodily injury or death to the person or others;
(ii) an imminent threat of physical injury to the person or others;
or
(iii) substantial property damage.

(Emphasis added.)

The State had the opportunity to meet its burden on February 17, 1995, but failed to do so. This Court agreed that the State failed to do so and, accordingly, decided the merits of Woods’ appeal by its order dated December 12, 1995. There is no precedent in a case where the issue is whether the district court’s judgment is supported by substantial evidence for concluding that it is not and then simply remanding to the district court while retaining jurisdiction so that the unsuccessful party can take another shot at it.

I agree with the majority that principles of res judicata and law of the case should apply to our decision. See State v. Smith (1993), 261 Mont. 419, 863 P.2d 1000; State v. Black (1990), 245 Mont. 39, 798 P.2d 530; State v. Van Dyken (1990), 242 Mont. 415, 791 P.2d 1350. However, I disagree with the majority’s determination of what the law of the case is. I conclude that the law of the case is the majority’s decision on December 12,1995, that the State had not proven by clear and convincing evidence that Woods suffered from a mental disease or defect which made him a danger to himself or others.

Although there is no precedent for the procedure followed by the majority in this case, the real danger is that this case becomes precedent for any party who similarly needs a second shot at proving his or her case in the future.

Just think about it. Based on this decision, in every appeal where the losing party raises insufficiency of the evidence as the basis for appeal, and where that argument has merit, if this Court does not like the result, the prevailing party should have the opportunity to present additional evidence at a hearing following remand before we make a final decision regarding the merits of the appeal. No one is guaranteed finality following any trial. The rules regarding burden of proof are meaningless and there is no end to the possible mischief a result-oriented supreme court could accomplish by this procedure.

Finally, § 46-14-302(6)(c), MCA, provides that the court discharge or release the committed person “on conditions that the court determine [s] to be necessary or must be recommitted to the custody of the director of ¡the department of public health and human services.” In other words, if the District Court determined that the State had not proven by clear and convincing evidence that the committed person presents a substantial risk of serious bodily injury or death to himself or others, but had concerns about his adjustment to society, the District Court could have imposed conditions to the release, requiring that Woods be monitored, treated, or supervised to assure the public that further problems will not occur.

For these reasons, I conclude that the State failed to meet its burden at the original hearing held on February 17, 1995. The District Court was clearly erroneous when it found otherwise. The majority erred by remanding this case to the District Court to give the State a second opportunity to prove what it had not proven at the original hearing, and the majority’s prior decision that the State had failed to meet its burden of proof is the law of this case. There is no precedent nor procedural authority for remanding for additional evidence and for entering a contrary decision based on that additional evidence.

I dissent from the majority opinion.

JUSTICES HUNT and REGNIER join in the foregoing dissenting opinion.

      . Hendricks further claimed that his confinement under the Act violated constitutional guarantees against double jeopardy and ex post facto laws. The Court’s conclusion that the Act was nonpunitive, implicating neither retribution nor deterrence and requiring no finding of scienter, negated a prerequisite for, and thus disposed of, those two claims. "Far from any punitive objective, the confinement’s duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormaility no longer causes him to be a threat to others." Hendricks, 117 S.Ct. at 2083.


author: CHIEF JUSTICE TURNAGE JUSTICE GRAY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOE EDWARD CHASTAIN, Defendant and Appellant.
    No. 96-293.
    Submitted on Briefs September 4, 1997.
    Decided October 10, 1997.
    54 St.Rep. 1044.
    947 P.2d 57.
    285 Mont. 61.

      For Appellant: Jeffrey T. Renz, Montana Defender Project, Missoula.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Pamela Collins, Assistant Attorney General, Helena; Robert L. Zimmerman, Deputy County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Joe Edward Chastain was convicted of sexual intercourse without consent and sexual assault, in a jury trial in the Fourth Judicial District Court, Missoula County. He appeals. We reverse.

The dispositive issue is whether Chastain was denied effective assistance of counsel through omissions by his attorney during and as a result of voir dire.

In May 1995, Chastain was arrested on two counts of sexual intercourse without consent and one count of sexual assault. The three complaining witnesses were young female relatives of Chastain. The charges alleged that Chastain digitally fondled one girl’s, and penetrated the other two girls’, vaginal areas during a camping trip in summer 1992.

A two-day jury trial was held on November 7 and 8,1995. The jury found Chastain not guilty of one count of sexual intercourse without consent, but guilty of the other count of sexual intercourse without consent and of sexual assault. Chastain was sentenced to serve forty years at Montana State Prison.

Discussion

Was Chastain denied effective assistance of counsel through omissions by his counsel during and as a result of voir dire?

A criminal defendant is denied effective assistance of counsel if: (1) his counsel’s conduct falls short of the range reasonably demanded in light of the Sixth Amendment to the United States Constitution; and (2) counsel’s failure is prejudicial. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

During voir dire, Chastain’s defense counsel asked prospective jurors whether they had heard about this case. One panelist responded that he had read about the case in the newspaper and that he had strong feelings. At that point, defense counsel asked that this prospective juror be further interviewed in chambers, to which the court agreed. The following colloquy occurred in chambers.

THE COURT: Let the record reflect the jury is not present.
Q. [BY DEFENSE COUNSEL] I didn’t mean to embarrass you or anything; but, from my trial strategy, you are a vital part of being on the jury or not on the jury, so my question is: You said you had strong feelings about the case?
A. Well, not so much about this case. My little sister was abducted when she was about 16 years old, or actually she was driving a car and somebody jumped in her car. Fortunately she bailed out and he was caught, but I have really strong feelings about what could have happened, and it could taint my judgment.
Q. Okay. It could?
A. Uh-huh.
Q. Um, of course, not favorably against the Defendant, probably—
A. Probably not favorably, no.
Q. Okay. That’s all I needed to know. I just wanted to make sure we were in chambers.
A. I wasn’t going to say anything out there.
THE COURT: Do you have any questions?
[COUNSEL FOR THE STATE]: No.
THE COURT: Thank you, sir.

Defense counsel did not challenge this prospective juror, who served on the jury.

In answer to the same voir dire question from defense counsel, a second member of the jury panel said that she remembered seeing an article about the case in the newspaper, but did not remember reading the article. Defense counsel questioned her as follows:

Q. From what you do remember, how does it affect your duty in this particular case?
A. I don’t really know what to do.
Q. Do you think that what you’ve read would impair your judgment toward my client or towards the State?
A. It’s hard for me to say. I do have—when I read about something like that, I do kind of evoke some strong feelings.

Counsel then asked the prospective juror to verify her name, but he did not further pursue this line of inquiry. Nor did he challenge her as a juror. The woman served on the jury.

A criminal defendant has the right to challenge a prospective juror for cause if that prospective juror “[has] a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of either party.” Section 46-16-115(2)(j), MCA. There is no statutory limit upon the number of challenges for cause which a party may raise. “The purpose of voir dire in a criminal proceeding is to determine the existence of bias and prejudice on the part of prospective jurors and to enable counsel to intelligently exercise his peremptory challenges.” Great Falls Tribune v. District Court (1980), 186 Mont. 433, 440, 608 P.2d 116, 120. In addition to the right to raise challenges for cause, a defendant in a criminal trial is allowed six peremptory challenges to prospective jurors. Section 46-16-116, MCA.

Juror bias may be presumed by reason of potential for substantial emotional involvement as expressed in the record. United States v. Eubanks (9th Cir. 1979), 591 F.2d 513, 517. Moreover:

A court must excuse a prospective juror if actual bias is discovered during voir dire. Bias can be revealed by a juror’s express admission of that fact, but, more frequently, jurors are reluctant to admit actual bias, and the reality of their biased attitudes must be revealed by circumstantial evidence. We agree with the observation in Kiernan v. Van Schaik (3rd Cir. 1965), 347 F.2d 775, 781: “That men will be prone to favor that side of a cause with which they identify themselves either economically, socially, or emotionally is a fundamental fact of human character.”

United States v. Allsup (9th Cir. 1977), 566 F.2d 68, 71.

It is incumbent upon a party to develop information in the record that demonstrates a juror’s bias as to a party or an issue in the case. Defense counsel had a clear duty to ensure Chastain’s right to a fair trial by a panel of impartial jurors.

The principal way in which this right to trial by “indifferent” jurors is secured is through the system of challenges exercised during voir dire. Inhibition of the right to challenge peremptorily or for cause is usually deemed prejudicial error, without a showing of actual prejudice.

Allsup, 566 F.2d at 71.

In this case, the statements of both prospective jurors quoted above demanded, at a minimum, additional inquiry. Both prospective jurors expressed reservations about their ability to judge this case fairly. Yet counsel failed to follow up with additional questions asking whether those prospective jurors could set aside their feelings and render a fair verdict. Nothing in the record explains this failure. Other than counsel’s bare comment that the first prospective juror was “a vital part of being on the jury or not on the jury,” the record does not reflect a tactical decision by defense counsel not to challenge these two jurors. Nor does the record explain counsel’s failure to exclude these two jurors under the peremptory challenges allowed pursuant to § 46-16-116, MCA.

The evidence against Chastain was not so overwhelming that defense counsel’s failure to examine these jurors for cause or to exercise even one for-cause challenge can be viewed as harmless error. Chastain was acquitted on one of the charges of sexual intercourse without consent. There was no physical evidence. Three years passed between the camping trip and when Chastain was arrested and formally charged. The accusations were made by children of a young age. Chastain had never before been accused of similar acts.

Where, as here, defense counsel abandons his client’s right to challenge a juror for no apparent reason, error must be attributed to the lawyer. As stated in Eubanks, 591 F.2d at 517, the presence on the jury of even one juror who could not fairly assess the credibility of the witnesses must be presumed prejudicial. Thus, the two prongs of the Strickland test for ineffective assistance of counsel are met. We hold that, under the circumstances here presented, counsel’s failure to take steps to prevent the presence on the jury of two jurors who may not have been able to fairly serve amounts to ineffective assistance of counsel. Because we reverse Chastain’s conviction on that basis, we need not consider the other issues raised on appeal.

Chastain’s conviction is reversed and this case is remanded for retrial or other further proceedings consistent with this Opinion.

JUSTICES REGNIER, LEAPHART and HUNT concur.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion. As I read it, that opinion strongly suggests that the two jurors at issue successfully could, and should, have been challenged for cause pursuant to the governing statute. The Court also determines that counsel was ineffective in failing to follow up with further inquiry to the two prospective jurors, assumes that bias sufficient to establish grounds for challenges for cause would have been established had additional inquiry been made, and then concludes that Chastain has established the two Strickland prongs necessary for ineffective assistance of counsel. I cannot agree to any of these determinations.

The Court correctly quotes § 46-16-115(2)(j), MCA, in stating that a prospective juror may be challenged for cause if that person has “a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of either party.” In that regard, we have held that “[i]t is only where [prospective jurors] form fixed opinions on the guilt or innocence of the defendant which they would not be able to lay aside and render a verdict based solely on the evidence presented in court that [the prospective jurors] become disqualified as jurors.” Great Falls Tribune v. District Court (1980), 186 Mont. 433, 439-40, 608 P.2d 116, 120. When a challenge for cause is made, it is not automatically granted, but is tried by the district court. See § 46-16-115(1), MCA. Both parties then have an opportunity to make a record with regard to whether grounds for excusing the juror for cause exist.

It is clear that the record as it exists in this case would not — on a stand-alone basis, without more — have supported a successful challenge for cause of either of these two potential jurors. Neither prospective juror indicated a fixed opinion of guilt much less any opinion of guilt which they would have been unable to set aside. The male panelist said that his really strong feelings about what could have happened in his sister’s case “could” taint his judgment in Chastain’s case and evince feelings which would not be favorable to the defendant. The female panelist stated only that she had seen a newspaper article about the case, that she did not remember reading it, and that when she read about “something like that, I do kind of evoke some strong feelings.” On this record, neither of these jurors meets the statutory standard of “a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of [the defendant].”

Moreover, while I agree with the Court that it is the party’s obligation to develop information that demonstrates a juror’s bias as to that party or an issue in the case, the record before us does not support a conclusion that defense counsel did not discharge this obligation here. One must assume that these jurors were, indeed, biased in order to conclude that defense counsel’s performance was deficient here; I am not willing to join the Court in making that assumption. While the Court concludes that defense counsel erroneously abandoned his right to challenge for cause, it is just as likely that, in not following up with these prospective jurors on the basis of their expressed feelings which were almost entirely unrelated to the case at hand, defense counsel was aware of the relatively difficult task of establishing bias under § 46-16-115(2)(j), MCA, and Great Falls Tribune. In my opinion, Chastain has not established that counsel’s performance was deficient and, therefore, I would conclude that he did not meet the first Strickland prong.

Furthermore, while I agree with the Court’s adoption of the Allsup rationale that the presence of a juror who could not fairly assess the credibility of the witnesses must be presumed prejudicial, I submit that the record before us does not establish the presence of such a juror in this case and, as a result, the Allsup rationale is inapplicable. The fact is that the empaneled jury, including both of the jurors at issue in this ineffective assistance of counsel claim, acquitted Chastain of one count of sexual intercourse without consent. That fact alone, in my view, belies any Allsup notion that the case presently before us involves a juror who could not fairly assess the credibility of the witnesses.

Absent such a circumstance in which prejudice properly may be presumed, the burden of establishing prejudice, as required by Strickland, remains on the defendant. The record before us contains substantial evidence in support of the charges against Chastain and he was acquitted of one charge of sexual intercourse without consent. It is my view that, on this record, Chastain has not established prejudice and that, even assuming counsel had a duty to follow up with further inquiry of these potential jurors, the second Strickland, prong is not met.

I would conclude that Chastain has not established ineffective assistance of counsel and, with regard to the second issue he raises, that sufficient evidence supports the jury verdict finding him guilty of one count of sexual intercourse without consent andsexual assault. As a result, I would affirm the District Court.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PEDRO MEDRANO, Defendant and Appellant.
    No. 96-295.
    Submitted on Briefs August 21, 1997.
    Decided October 10, 1997.
    54 St.Rep. 1048.
    945 P.2d 937.
    285 Mont. 69.

      For Appellant: Brad L. Arndorfer, Arndorfer Law Firm, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Carol Schmidt, Assistant Attorney General; Helena; Dennis Paxinos, Yellowstone County Attorney; Dale Mrkich, Deputy County Attorney; Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Pedro Medrano, was charged with aggravated assault by information filed in the District Court for the Thirteenth Judicial District in Yellowstone County. Following trial by jury, he was convicted of the crime charged. Medrano appeals his conviction. We affirm the judgment of the District Court.

There are three issues on appeal:

1. Did the District Court err when it excluded evidence of the victim’s prior conviction?

2. Was there sufficient evidence that Medrano was responsible for the blow which caused the victim serious bodily injury?

3. Did the District Court err when it allowed the jury to consider guilt by accountability?

FACTUAL BACKGROUND

On the evening of June 24,1994, Ronald Jenness and his wife were driving their convertible automobile in downtown Billings; Ronald was the passenger. The Jennesses noticed two men in another vehicle “waving and hollering” at them. The Jennesses continued driving and the second vehicle, which was driven by Thomas Mollering, followed. When the two vehicles stopped alongside each other at a traffic light, Pedro Medrano, the passenger in the second vehicle, got out of the vehicle and approached the Jennesses.

As Medrano approached the vehicle, Ronald Jenness unbuckled his seat belt. Medrano then punched Jenness a number of times. Medrano asserted that he struck Jenness because he believed that Jenness was reaching for a weapon, although no evidence suggested the presence of a weapon. Medrano dragged Jenness from the vehicle, breaking the passenger window in the process, and continued to hit and kick him as he lay on the street. Mollering got out of the second vehicle and also began to hit and kick Jenness. Two other motorists eventually broke up the beating, and Medrano and Mollering fled the scene.

Jenness suffered several cuts and bruises, as well as a ruptured spleen, from the beating. After the Jennesses left the Montana Highway Patrol office, Jenness went to the hospital and that night had emergency surgery to remove his spleen.

On September 1, 1994, the Yellowstone County Attorney filed an information charging Medrano with aggravated assault pursuant to § 45-5-202(1), MCA. At trial, Medrano contended that he was not responsible for Jenness’s ruptured spleen because he did not strike Jenness in that area, and that he acted in self-defense because he believed Jenness had a weapon. After a three-day trial in February 1995, a jury found Medrano guilty of the crime charged.

ISSUE 1

Did the District Court err when it excluded evidence of the victim’s prior conviction?

The standard of review of evidentiary rulings is whether the district court abused its discretion. See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. See Gollehon, 262 Mont. at 301, 864 P.2d at 1263. See also State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067; State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380; State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054.

Medrano contends that he should have been allowed to present evidence of a 1990 roadside incident involving Ronald Jenness, following which Jenness pled guilty to misdemeanor assault after attacking a couple in another vehicle. Prior to this trial, the District Court granted the State’s motion in limine to exclude all evidence of the prior incident as irrelevant. During cross-examination of Jenness, however, the District Court decided “to eliminate the, you know, the granting of the Motion in Limine” and allowed an initial question about the incident before eventually sustaining the State’s objection to the testimony for its lack of foundation.

Nothing in the record suggests that Medrano did not strike Jenness first. Nor is there any indication that Medrano was aware of Jenness’s past violent history at the time of his confrontation with Jenness. Medrano’s self-defense claim was not based on a claim that Jenness was the first aggressor or had a violent nature. His self-defense claim was based on Medrano’s unsubstantiated belief that Jenness had a weapon, and Medrano’s own background and fear of gang violence as a child in California. Without some evidence to indicate the relevance of Jenness’s conviction, we conclude that the District Court did not abuse its discretion when it determined that Jenness’s prior assault was not relevant to Medrano’s self-defense claim or any other defense in this case.

ISSUE 2

Was there sufficient evidence that Medrano was responsible for the blow which caused the victim serious bodily injury?

We review the sufficiency of the evidence to support a jury verdict to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See State v. Licht (1994), 266 Mont. 123, 131, 879 P.2d 670, 675 (citing State v. Lyons (1992), 254 Mont. 360, 363, 838 P.2d 397, 399). See also State v. Mergenthaler (1994), 263 Mont. 198, 203, 868 P.2d 560, 562.

Section 45-5-202(1), MCA, provides that “[a] person commits the offense of aggravated assault if the person purposely or knowingly causes serious bodily injury to another.” Section 45-2-101(64)(a)(ii), MCA, defines serious bodily injury as bodily injury that “creates serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ.”

Based on our review of the record, we conclude that substantial credible evidence supports the jury’s finding that Medrano committed aggravated assault.

Medrano contends that he cannot be guilty of aggravated assault because there was no testimony that he struck Jenness in the area of the spleen. However, an eyewitness to the beating testified that Medrano was kicking and hitting Jenness “[bjetween the neck and the belt, in the mid area.” In addition, the physician who treated Jenness stated that he could not know which of the blows suffered by Jenness — being dragged and dropped from the car or being hit and kicked — either alone or together, caused the injury to the spleen. The weight to be given a witness’s testimony is up to the trier of fact. See State v. Santos (1995), 273 Mont. 125, 131, 902 P.2d 510, 514. We conclude that there was sufficient evidence that a rational trier of fact could have found the essential elements of aggravated assault beyond a reasonable doubt.

ISSUE 3

Did the District Court err when it allowed the jury to consider guilt by accountability?

We have held that the standard of review of jury instructions in criminal cases is “[wjhether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case.” State v. Rothacher (1995), 272 Mont. 303, 306, 901 P.2d 82, 84. See also State v. Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734, 737 (citing State v. Lundblade (1981), 191 Mont. 526, 529-30, 625 P.2d 545, 548).

Section 45-2-302, MCA, provides, in part, that:

A person is legally accountable for the conduct of another when:
(1) having a mental state described by the statute defining the offense, he causes another to perform the conduct, regardless of the legal capacity or mental state of the other person;
(3) either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.

This Court recently discussed the need to plead accountability in State v. Tower (1994), 267 Mont. 63, 881 P.2d 1317 (4-3 decision) (Trieweiler, J., Gray, J., and Hunt, J., dissenting). There we held that the State is not required to set forth a theory of accountability in the information in order to give the defendant fair notice of the nature and cause of the accusation against him. We stated that “[i]n light of the defense’s knowledge of the State’s case, and the consistent history of the law of accountability in Montana, there was every reason to anticipate an accountability instruction.” Tower, 267 Mont. at 68, 881 P.2d at 1320.

Here, Medrano claims surprise and insufficient notice because the State did not raise accountability until trial. Prior to trial, however, Medrano was aware that both he and his co-defendant, Mollering, were being held responsible for Jenness’s injuries. The information set forth the key language of the aggravated assault statute and alleged that both Mollering and Medrano struck Jenness and caused his injuries. In addition, Medrano had knowledge of the State’s case prior to trial. Finally, since Tower, it is clear that accountability may be asserted by the State without having first asserted that basis for liability in the information. Therefore, we conclude that Medrano had fair warning of the charges against him and “every reason to anticipate an accountability instruction.”

Moreover, any surprise to Medrano from an accountability instruction was less likely than in Tower. Medrano clearly hit and kicked Jenness, and the accountability instruction was offered only because no one could be certain about who of the two wrongdoers was guilty of inflicting the critical blow to Jenness’s spleen. The medical testimony could not confirm which of the many impacts suffered by J enness caused his ruptured spleen, and thus, either or both Medrano and Mollering could have been responsible, jointly or individually. In addition, there was separate evidence that Medrano had struck Jenness in the area of the spleen, which gave the jury sufficient grounds on which to convict Medrano independent of the accountability instruction. Accordingly, we conclude that the District Court did not err when it gave a jury instruction on accountability, and we affirm the judgment of the District Court.

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