author: JUSTICE GRAY

text:
    IN RE THE MARRIAGE OF HILDA BINSFIELD, Petitioner and Respondent, and NICHOLAS HENRY BINSFIELD, Respondent and Appellant.
    No. 94-215.
    Submitted on Briefs October 28, 1994.
    Decided January 19, 1995.
    52 St.Rep. 16.
    269 Mont. 336.
    888 P.2d 889.

      For Appellant: Don A. Labar and Royce A. McCarty, Jr., Church, Harris, Johnson & Williams, Great Falls.
    For Respondent: E. Lee LeVeque, Conklin, Nybo, LeVeque & Murphy, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

Nicholas H. Binsfield (Nicholas) appeals from the findings of fact, conclusions of law, and decree entered by the Eighth Judicial District Court, Cascade County, dissolving his marriage to Hilda Binsfield (Hilda). We affirm.

We consider the following issues on appeal:

1. Did the District Court err in denying Nicholas’ motion to compel Hilda to submit to a psychological examination?

2. Did the District Court err in making an equal distribution of the marital assets?

3. Did the District Court err in awarding Hilda an in-kind distribution of real property?

Nicholas and Hilda were married on September 1,1956, in Power, Montana. Prior to the marriage, Nicholas purchased a one-half interest in his family’s farm a few miles south of Great Falls on the Missouri River; his brother owned the other one-half interest in the farm. Their father retained a life estate in the farm. In the early 1940s, Nicholas had purchased approximately 480 acres of land adjacent to the family farm for $2,000.

Hilda lived in Germany and Switzerland before immigrating to the United States in 1955. While in Europe, Hilda had a son, Anton Giger, and was married for a period of time.

When Nicholas and Hilda married, Hilda moved onto the family farm and her son Anton moved to California. Hilda and Nicholas lived on the farm with Nicholas’ brother and father. Nicholas farmed full-time, and Hilda performed the duties of a homemaker for the three men. Nicholas’ father died in 1963; his brother died in 1970.

At the time of the dissolution, Nicholas was 83 years old and Hilda was 81 years old. Nicholas owned nearly 800 acres of land including all 320 acres of the family farm. The 800 acres had an appraised value of $546,000. In addition, he held bonds, savings accounts, and other income-producing property worth approximately $578,656. All of these assets were held solely in Nicholas’ name. At the time of dissolution, Hilda possessed just over $1,400 in three bank accounts. She received about $260 per month in social security benefits and approximately $390 per month in pensions from the German and Swiss governments for work performed in those countries prior to her immigration to the United States.

Early in 1993, Hilda was diagnosed as having a brain tumor. She testified that she was concerned she would not survive. She asked Nicholas to provide farm land for her son Anton. Hilda testified that Nicholas replied that Anton could work on the land, but would never own any of it. This refusal prompted Hilda’s interest in seeking a dissolution. The Mayo Clinic in Rochester, Minnesota, successfully treated Hilda’s tumor.

After returning from the Mayo Clinic, Hilda filed a petition for dissolution. Nicholas responded, denying that there were irreconcilable differences between the parties and asserting that Hilda lacked the mental capacity to petition for dissolution. Nicholas requested that Hilda’s petition be dismissed or, in the alternative, that the property and debts of the parties be equitably divided.

On December 1, 1993, Nicholas moved for an order to show cause why Hilda should not be compelled under Rule 35(a), M.R.Civ.P., to submit to a psychological examination. The District Court held a hearing and denied Nicholas’ request. We denied Nicholas’ subsequent application for a writ of supervisory control on the issue.

After a bench trial, the District Court entered a “bare” decree of dissolution because Hilda’s counsel was concerned that none of the marital property was in her name and that one of the parties might die before the decree of dissolution was entered. On February 24,1994, the court entered its findings of fact, conclusions of law, and decree.

The District Court evenly divided future crop and annuity payments and awarded Nicholas and Hilda personal property worth $13,395 and $2,685, respectively. Nicholas received the farmstead and five acres worth $30,000, and the court ordered the remainder of the farm property, worth $516,000, divided evenly between the parties. The division was to be accomplished by Nicholas dividing the remaining acres into two parcels of approximately equal size and value and permitting Hilda to choose the parcel she preferred. To account for the disproportionate amount of personal and real property Nicholas received, the court awarded Hilda investments worth $309,683; Nicholas was awarded investments worth $268,973. The assets each party received totalled approximately $626,902. Nicholas appeals.

Did the District Court err in denying Nicholas’ motion to compel Hilda to submit to a psychological examination?

Nicholas moved the court to compel Hilda to submit to a psychological examination pursuant to Rule 35(a), M.R.Civ.P., which states in relevant part:

When the mental or physical condition (including the blood group) of a party ••• is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner .... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

The language of the rule is discretionary. It authorizes, but does not require, a district court to order a party to submit to a psychological examination when the parly’s mental condition is in controversy and good cause is shown. We will not reverse a court’s discretionary determinations absent an abuse of discretion. In re Marriage of Rada (1994), 263 Mont. 402, 405, 869 P.2d 254, 255.

We previously have interpreted Rule 35(a) in the context of criminal cases in which a defendant sought to compel a victim to submit to a physical or psychological examination. In those circumstances, we consistently held that Rule 35(a) was not applicable because the victim was not a party to the proceeding. See State v. Little (1993), 260 Mont. 460, 468, 861 P.2d 154, 159; State v. Goodwin (1991), 249 Mont. 1, 18-19, 813 P.2d 953, 964; State v. Gilpin (1988), 232 Mont. 56, 67, 756 P.2d 445, 451; State v. Liddell (1984), 211 Mont. 180, 191, 685 P.2d 918, 924. Those cases provide no authority for, or guidance in, resolving the issue presently before us.

The United States Supreme Court interpreted Rule 35(a) of the Federal Rules of Civil Procedure, upon which Montana’s Rule 35(a) is based, in Schlagenhauf v. Holder (1964), 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152. In that case, a party filed suit based on an accident between a bus and a tractor-trailer. One of the parties alleged that the driver of the bus was neither physically nor mentally fit to drive a bus at the time of the accident. The party moved to compel the bus driver to submit to various physical and mental examinations pursuant to Rule 35(a), F.R.Civ.P.

In vacating the lower court’s order allowing the examinations, the Supreme Court focused on the rule’s “in controversy” and “good cause” language. It noted that the “in controversy” and “good cause” requirements:

are not met by mere conclusory allegations of the pleadings — nor by mere relevance to the case — but require an affirmative showing by the movant that each condition as to which examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.... Rule 35, therefore, requires discriminating application by the trial judge, who must decide, as an initial matter in every case, whether the party requesting a mental or physical examination or examinations has adequately demonstrated the existence of the Rule’s requirements of “in controversy’ and “good cause” ....

Schlagenhauf, 379 U.S. at 118-19, 85 S.Ct. at 243.

In the present case, Nicholas submitted several affidavits and presented witnesses at a hearing regarding the possible necessity of a psychological evaluation. He testified that Hilda’s petition for dissolution was unexpected and unusual. Based on a review of Hilda’s medical records, a psychologist testifying for Nicholas stated that Hilda “may” lack the mental capacity to make her own decisions and that it would be difficult to determine her capacity via an interview or question and answer format. The psychologist had never met or talked to Hilda; nor was his testimony relating to her possibly deficient mental capacity based on any personal observation of her. Hilda testified on her own behalf at the hearing. After listening to Hilda’s testimony, the District Court stated:

I’ve been observing Mrs. Binsfield ever since we’ve been in court here. I must admit now, based upon her testimony here, both on cross and on direct, there’s really little doubt in my mind but what this lady is competent. She knows what she’s doing.

Later, the court added: “I’m satisfied after having heard this lady [Hilda] that she does know what [she is] doing.”

Applying the Schlagenhauf standard here, it is clear that Nicholas relied on speculative and conclusory testimony by a psychologist who had no personal knowledge of Hilda or her mental capacity. He made no affirmative showing that Hilda’s mental capacity was genuinely in controversy. See Schlagenhauf, 379 U.S. at 118, 85 S.Ct. at 242-43. We conclude that such evidence is wholly inadequate to meet Nicholas’ initial burden of establishing the existence of the “in controversy” and “good cause” requirements of Rule 35(a), M.R.CÍV.P.

Nicholas relies on In re Marriage of Tesch (1982), 199 Mont. 240, 648 P.2d 293, in support of his argument that the court should have ordered a psychological examination. His reliance is misplaced.

In Marriage ofTesch, the husband obtained a default dissolution from his wife, who was almost totally incapacitated by multiple sclerosis. At the hearing prior to entry of the default judgment, both the husband and his attorney informed the court that they believed the wife was competent; neither the wife nor a representative of the wife was present. After the district court entered the default dissolution, the wife moved to set aside the judgment. The district court denied the wife’s motion. We reversed on appeal, noting that:

[t]he wife is totally disabled by multiple sclerosis. Such a disability, in itself, might warrant the setting aside of the default judgment. Here, however, other circumstances also support the setting aside of the judgment. Nothing on the record addresses the question of the wife’s competency or her voluntary relinquishment of her interests in the farm. ... We emphasize that the crucial problem with this case is that nowhere are the desires of the wife on record.

Marriage ofTesch, 648 P.2d at 296-97.

Here, unlike in Marriage of Tesch, the District Court held a separate hearing to determine the merits of Nicholas’ motion to require Hilda to submit to a psychological examination. As a result, the record before the trial court and this Court does address the question of Hilda’s mental capacity and desires. Indeed, Hilda testified on her own behalf, providing the court the ability to determine whether Hilda’s mental capacity was genuinely in controversy and whether good cause was established to compel her to submit to a psychological examination. Noting that none of the marital property was in her name and that Nicholas had informed her that Anton would not receive any of the farm land, Hilda voiced her concerns that she would die without providing for her son Anton. Hilda adequately informed the court of her desires and demonstrated her mental capacity to the court’s satisfaction. We hold that the District Court did not abuse its discretion in denying Nicholas’ motion to compel Hilda to submit to a psychological examination.

Did the District Court err in making an equal distribution of the marital assets?

The distribution of the marital estate is controlled by § 40-4-202, MCA, which provides in relevant part:

(1) In a proceeding for dissolution of a marriage ... the court, without regard to marital misconduct, shall ... finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both ....

This statute vests the district court with broad discretion to apportion the marital estate in a manner which is equitable to each party under the circumstances. In re Marriage of Zander (1993), 262 Mont. 215, 221, 864 P.2d 1225, 1229. When a district court’s findings of fact regarding marital property distribution are not clearly erroneous, and when substantial credible evidence supports the findings and judgment, we will not alter a district court’s marital property division absent an abuse of discretion. In re Marriage of Maedje (1994), 263 Mont. 262, 265-66, 868 P.2d 580, 583 (citations omitted).

Nicholas argues that an equal division of the marital assets is inequitable in this case. His position is based on assertions that he brought most of the assets into the marriage with him; the District Court did not trace several of his “E Series” savings bonds as premarital assets; some of the savings bonds are in both his and his sister’s names; the court incorrectly valued a pickup and trailer; and the court failed to consider Hilda’s dissipation of the marital estate.

At the time of the parties’ marriage, Nicholas owned approximately 480 acres of land in his own name and a one-half interest in his father’s 320 acre farm, with his father retaining a life estate. During the marriage, he inherited another portion of the farm and money with which he acquired the remainder. Nicholas testified that he had other assets prior to his marriage; his testimony was vague, however, regarding the value of these assets.

When dividing property acquired prior to the marriage or through inheritance, a district court must consider the contributions of the other spouse, including the nonmonetary contribution of a homemaker, the extent to which such contributions facilitated the maintenance of the such property, and whether the property division serves as an alternative to maintenance arrangements. See § 40-4-202(1), MCA. Here, it is apparent from the District Court’s extensive findings of fact that Hilda’s contributions as a homemaker and general farmhand substantially contributed to the maintenance of the property that Nicholas brought into and acquired during the marriage. The District Court made a separate finding addressing dozens of household and farm-related tasks Hilda routinely performed during the 37-year marriage. In addition, Hilda was not awarded maintenance in the dissolution. We conclude that the District Court did not abuse its discretion by including the properties Nicholas brought into the marriage and inherited during the marriage in the marital estate.

With regard to the Series E savings bonds, Nicholas testified that he believed all of the bonds were purchased prior to his marriage. However, the only documentary evidence regarding the bonds was the accounting of Nicholas’ brother’s estate. Based on that accounting, the District Court found that only 3 of 10 bonds in Nicholas’ and his brother’s names were purchased in 1943 and the remainder were purchased after 1956, the year Nicholas and Hilda married. The three premarital bonds owned by Nicholas had a value of only $550.32 sixteen years after the marriage, and no evidence of their value at or around the time of the parties’ marriage was introduced.

The District Court properly could have separated the value of these premarital assets only where sufficient evidence was presented to trace the assets and their value to a time before the marriage. See In re Marriage of Miller (1989), 238 Mont. 197, 203-04, 777 P.2d 319,324. No such evidence was presented here. We conclude that the District Court’s findings regarding the bonds were not clearly erroneous.

We decline to address Nicholas’ argument that the court erred in distributing the value of bonds which included his sister as an alternate payee. Nicholas did not object to the inclusion of the bonds in the marital estate on this basis in the District Court. We will not entertain issues raised for the first time on appeal. In re Marriage of Prescott (1993), 259 Mont. 293, 299, 856 P.2d 229, 232-33.

Nicholas also contends that the court erred in valuing a pickup truck and a trailer. At trial, Nicholas testified that the value of the truck was $3,800 and the value of the trailer was $1,500. Hilda’s son Anton testified that he believed the truck was worth about $6,000 and the trailer worth $2,500. The court used Anton’s valuation for the truck and Nicholas’ valuation for the trailer. We conclude that there was sufficient evidence to support the District Court’s valuation of the pickup truck and the trailer.

Nicholas further argues that the court erred by failing to include some of Hilda’s assets in the marital estate. These assets were the monies contained in three bank accounts totaling $1,424.70 at the time of the dissolution hearing. While the District Court did err in failing to make findings regarding the $1,424.70, we conclude that the error was harmless in the context of the District Court’s equal distribution of a marital estate valued at more than $1.2 million.

Finally, Nicholas contends that the division of the marital estate is inequitable because the District Court did not consider Hilda’s dissipation of the marital estate. Nicholas argues that Hilda’s failure to save her pension money and alleged gifts of money to Anton’s father constituted dissipation of the value of the marital estate to an extent that the District Court was compelled to take into account in distributing the marital assets. We disagree.

We have stated that any finding of dissipation must be supported by substantial evidence. In re Marriage of Stewart (1988), 232 Mont. 40, 43, 757 P.2d 765, 767. In the present case, Hilda testified that she used her pension money for household items and gave some money to her son Anton. She denied that she had given any money to Anton’s father. In addition, Hilda was inordinately frugal throughout the marriage and this frugality aided in the acquisition and preservation of marital assets. We conclude that the District Court did not err in failing to find that Hilda dissipated the marital estaté.

We hold that the District Court did not err in making an equal distribution of the marital assets.

Did the District Court err in awarding Hilda an in-kind distribution of real property?

The District Cotut awarded the family home and the five acres upon which it sits to Nicholas. The court also awarded each of the parties one-half of the remaining real property acreage. The court adopted a method of division whereby Nicholas was to divide the property in half, excluding the five-acre homestead, and Hilda was to choose one of the parcels. Where substantial credible evidence supports a district court’s findings and judgment distributing a marital estate, this Court will not alter that decision absent an abuse of discretion. Marriage of Maedje, 868 P.2d at 583.

Nicholas correctly relies on In re Marriage of Glass (1985), 215 Mont. 248, 258, 697 P.2d 96, 102, for the proposition that Montana’s policy in favor of keeping a family farm intact may be considered in distributing marital property after it has been allocated. No authority is cited, however, and we have located none, in support of the proposition that a family farm must be retained intact.

Here, the District Court did not maintain the unity of the family farm. Under the circumstances before us — where Hilda lived on the farm for 37 years, is 81 years old and expressed her desire to remain on the farm — we cannot conclude that the District Court abused its discretion in ordering that the farm be divided.

In addition, we previously have approved a method of dividing a family ranch in a dissolution proceeding similar to that used by the District Court here. In re Marriage of Hancock (1987), 226 Mont. 383, 736 P.2d 101. In Marriage of Hancock, we stated that “[t]he method employed by the lower court will generally result in an equal division. The party drawing the dividing line is essentially forced to make an equal partition. Otherwise, he risks receiving the smaller parcel left after the other party chooses.” Marriage of Hancock, 736 P.2d at 102. We hold that the District Court did not err in awarding Hilda an in-kind distribution of real property.

Affirmed.

JUSTICES HUNT, TRIEWEILER, NELSON and WEBER concur.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL HAROLD ROSS, Defendant and Appellant.
    No. 94-192.
    Submitted on Briefs December 8, 1994.
    Decided January 24, 1995.
    52 St.Rep. 22.
    269 Mont. 347.
    889 P.2d 161.

      For Appellant: Craig Shannon, Public Defender’s Office, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Patricia Jordan, Assistant Attorney General, Helena; Robert L. Deschamps, EH, County Attorney; Betty Wing, Deputy County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Michael Harold Ross (Ross) appeals his conviction of intimidation, in violation of § 45-5-203, MCA, in the Fourth Judicial District Court, Missoula County. We affirm.

The issues are:

1. Is § 45-5-203, MCA, unconstitutionally overbroad on its face?

2. Is § 45-5-203, MCA, unconstitutional as applied to Ross?

3. Did the District Court err in instructing the jury concerning the term “threat” as used in § 45-5-203, MCA?

4. Is there sufficient evidence to support the jury verdict?

5. Did the District Court err in denying Ross’s proposed jury instruction on stalking as a lesser included offense?

6. Did the District Court err in denying Ross’s motion to bifurcate the trial and deliberate element #1 and element #3 of § 45-5-203, MCA, separately?

Ross is a resident of Missoula, Montana. Ross disagrees with abortion and is an outspoken “right to life” advocate. Between February 16 and April 9,1993, Ross sent a series of letters to Dr. Susan Wicklund. Wicklund owns and operates Mountain Country Women’s Clinic, a medical clinic in Bozeman, Montana. Part of Wicklund’s medical practice includes performing abortions.

Ross sent Wicklund in excess of sixty letters in 1993. The letters described, in graphic terms, an abortion procedure. Ross referred to Wicklund as “mass murderer,” “butcher,” and “ethnic cleanser.” He continually told Wicklund that he would shut her down or die faying. Ross stated that Wicklund should be torn limb from limb, have her head crushed, and that she should suffer all the pain and torture she had inflicted on defenseless babies.

The day after the 1993 murder of Dr. Gunn, a Florida physician who performed abortions, Ross sent Wicklund a letter stating: “Too bad about Dr. Gunn in Florida. I wonder, could it happen in Bozeman? I wonder ....” Then, shortly after the 1993 fire at the Blue Mountain Clinic, a women’s health care facility in Missoula, Montana, Ross wrote a letter stating:

Isn’t that just horrible how someone torched Blue Mountain Clinic in Missoula? Isn’t that awful? Tsk. Tsk. Do you think it could happen in Bozeman? Do you think such a horrible thing could happen in Bozeman? What do you think? One thing is for sure: WE WILL SHUT YOU DOWN.

Wicklund testified that she experienced great fear and anxiety as a result of these letters. She employed a security guard to patrol the clinic and act as her personal escort. She purchased a bullet-proof vest and a handgun. She experienced mood swings and became increasingly upset upon the receipt of each subsequent letter. She changed her daily routine and was afraid to appear in public.

Other clinic employees testified to the change in Wicklund’s demeanor. These employees observed Wicklund’s behavior before and after receiving the letters from Ross. They testified that the letters upset Wicklund very much. She would often wait until the end of the day to read the letters because they were so disturbing. One clinic employee testified that “[Wicklund] would get red in the face and her eyes would start to water. [The letters] were very clearly upsetting to her. It was almost as if she would stop breathing after she read them.” The employees testified that the entire atmosphere at the clinic worsened after Wicklund began receiving the letters from Ross.

Ross did not try to conceal his identity. He signed all the letters and subsequently admitted that he wrote them. Prior to being charged, he voluntarily answered questions for Missoula law enforcement officers. The letters were the sole source of contact between Ross and Wicklund.

On April 16,1993, the Missoula County Attorney filed an Information charging Ross with intimidation, in violation of § 45-5-203, MCA. Ross pled not guilty. On November 5,1993, Ross was found guilty of intimidation following a trial by jury. He was given the maximum statutory sentence of ten years in the Montana State Prison and designated a dangerous offender. Ross appeals his conviction.

Issue 1

Is § 45-5-203, MCA, unconstitutionally overbroad on its face?

Ross claims that § 45-5-203, MCA, is overbroad on its face and therefore in violation of the United States Constitution. Ross argues that, regardless of how this statute is applied to him, the statute could be applied to prohibit a variety of protected speech in violation of the First Amendment. He claims that since the statute could potentially prohibit protected speech as well as unprotected speech, it is over-broad on its face.

At the outset, we note that statutes are presumed to be constitutional and we adopt statutory construction which renders them constitutional rather than a construction which renders them invalid. Montana Automobile Association v. Greely (1981), 193 Mont. 378, 382, 632 P.2d 300, 303. Statutes should be read as a whole and should be construed by this Court to further, rather than to frustrate, the legislature’s intent. McClanathan v. Smith (1980), 186 Mont. 56, 61-62, 606 P.2d 507, 510.

Generally, an individual cannot challenge the constitutionality of a statute unless he or she claims that his or her rights have been personally violated. This is because one must have standing to bring a case before the court. One exception to the standing requirement is that an individual may challenge a statute’s constitutionality on the grounds that it violates the free speech provision of the First Amendment to the United States Constitution. Broadrick v. Oklahoma (1973), 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830. In Broadrick, the United States Supreme Court stated:

[F] acial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from “pure speech” toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe, [citation omitted.] To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.

Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917. Broadrick dealt with expressive conduct which is protected under the First Amendment. The requirement that the overbreadth of a statute must be real and substantial has subsequently been applied to statutes regulating pure speech, as well. New York v. Ferber (1982), 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113.

When the overbreadth of a statute is not substantial and real, the statute is not unconstitutional on its face, but/rather unconstitutional application of the statute should be dealt wiih on a case-by-case basis. Ferber, 458 U.S. at 772, 102 S.Ct. at 3362. A statute which on its face appears to be overbroad may still be held constitutional if it is given alimited construction by the appellate court. Ferber, 458 U.S. at 769,102 S.Ct. at 3361.

In State v. Lilburn (1994), 265 Mont. 258, 875 P.2d 1036, cert. denied, _ U.S. _, 115 S.Ct. 726, 130 L.Ed.2d 630 (1995), 63 U.S.L.W. 3514 (1995), we adopted the United States Supreme Court’s overbreadth analysis in determining that Montana’s Hunter Harassment statute was constitutional. In Lilburn, we stated:

Lilburn contends that there are a significant number of situations where the law could be applied in an unconstitutional manner and urges the Court to “use our imagination to think of the various ways the statute might be applied against speech or expressive conduct.” However, the test is not whether hypothetical remote situations exist, but whether there is a significant possibility that the law will be unconstitutionally applied. Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918.

Lilburn, 875 P.2d at 1043. In finding the Hunter Harassment statute constitutional, we went on to conclude that “whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations where the statute is assertedly being applied unconstitutionally.” Lilburn, 875 P.2d at 1044.

In 1983 the United States Ninth Circuit Court of Appeals held the 1981 version of § 45-5-203, MCA, unconstitutionally overbroad in Wurtz v. Risley (9th Cir. 1983), 719 P.2d 1438. The Ninth Circuit determined that the statute as it existed at that time was unconstitutionally overbroad in that, absent a limiting construction by the Montana Supreme Court, it did not require that the threat be made in such a way that the victim would reasonably fear that the threat would be carried out. Wurtz, 719 F.2d at 1441. The Ninth Circuit also found subsection (c), a threat to without lawful authority “commit any criminal offense,” to be overbroad in that it could reasonably be applied to many very minor, victimless crimes. Wurtz, 719 F.2d at 1442.

In 1985 the Montana Legislature, in direct response to the Wurtz decision, amended § 45-5-203, MCA, as follows:

A person commits the offense of intimidation when, with the purpose to cause another to perform or to omit the performance of any act, he communicates to another, under circumstances which reasonably tend to produce a fear that it will be carried out, a threat to perform without lawful authority any of the following acts:
(a) inflict physical harm on the person threatened or any other person or on property;
(b) subject any person to physical confinement or restraint; or
(c) commit any criminal -offense felony.
(d) -aecu30-any person of an offense?
(e) expose any person to hatred, contempt, or ridicule; or
(f) -take aetion as-a public official-agadnst anyone or-anytlmag^ withhold official action,- er-eause-such action or withholding?

The 1985 Legislature severely limited what types of threats would constitute intimidation and under what circumstances such threats must be made.

Ross argues that while these amendments were a step in the right direction, they did not completely cure the constitutional infirmities in the statute. Ross insists that the problems the Wurtz court found with subsection (c), that a defendant could be convicted of felony intimidation for merely threatening to perform a misdemeanor, still exist in subsection (a). He claims that a defendant can be convicted of felony intimidation under subsection (a) for threatening to perform a misdemeanor assault. This argument is based on the fact that subsection (a) uses the term “physical harm” rather than “serious bodily injury” as set out in the felony assault statute. Physical harm could include such minor injuries as those punishable by misdemeanor assault. Ross argues that to punish the threat to commit an act more severely than the act itself has a chilling effect on speech about which the Wurtz court was concerned.

We find Ross’s argument unpersuasive. The Wurtz court was concerned that the threat to commit minor victimless crimes could be punishable as felonies under § 45-5-203(l)(c), MCA. The United States Ninth Circuit Court of Appeals stated:

[I]t was the breadth of this provision, applying as it does to minor crimes without victims, that caused a federal court to strike down an identical statute in Landry v. Daley, 280 F.Supp 938, 964 (N.D.Ill.1968) (three judge court), rev’d on other grounds sub nom. Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971)
[Section 203(l)(c)] would also apply to the citizen who tells city council members that if they fail to lower parking fees she will park without putting a coin in the meter. Threats of sit-ins, marches in the street, mass picketing and other such activities are frequently threats to commit acts prohibited by law.

Wurtz, 719 F.2d at 1442. The examples set out in Wurtz are distinguishable from the hypotheticals proposed by Ross.

Subsection (a), by its very terms, proscribes threatening to commit a crime which has a victim. Ross has not provided compelling examples of how subsection (a) could chill protected speech, as it merely prohibits one from threatening to “inflict physical harm.” Such speech is rarely, if ever, protected. Landry, 280 F.Supp. at 963-64 (concluding that similar language in an Illinois statute was neither vague nor overbroad).

Ross has failed to show substantial and real overbreadth, when compared to the statute’s plainly legitimate sweep. See Lilburn, 875 P.2d at 1043. Ross has provided no compelling examples of how § 45-5-203, MCA, can be applied unconstitutionally. Conversely, § 45-5-203, MCA, clearly has a wide variety of constitutional applications. We conclude that § 45-5-203(l)(a), MCA, is not unconstitutionally overbroad and any purported unconstitutional application of this section should be addressed on a case-by-case basis.

Issue 2

Is § 45-5-203, MCA, unconstitutional as applied to Ross?

Ross claims that § 45-5-203, MCA, is unconstitutional as applied to him. He argues that the letters he wrote to Wicklund were not communicated under circumstances which reasonably tended to produce fear that any threats would be carried out. The amended version of § 45-5-203, MCA, requires that threats be made under such circumstances.

The prosecution presented evidence elaborating on the hostile and dangerous nature of the abortion debate raging in this country. Wicklund testified that she was aware of the violence which surrounds the abortion issue. She was aware of the burning of the Blue Mountain Clinic in Missoula, Montana, the murder of Dr. Gunn in Florida and other acts of violence allegedly performed by “pro-life” activists. She testified that she was personally the victim of previous violent altercations.

The letters from Ross were written expressly for the purpose of persuading Wicklund to stop performing abortions. Ross continually stated, “[w]e will shut you down.” Ross stated that Wicklund should be tom limb from limb and suffer a variety of other horrible injuries.

Ross’s letters became the most threatening when he referred Wicklund to other acts of violence purportedly carried out in the name of the “pro-life” movement. Ross wrote to Wicklund, “[t]oo bad about Dr. Gunn in Florida. I wonder, could it happen in Bozeman? I wonder ....” Then, in a subsequent letter he wrote:

Isn’t that just horrible how someone torched Blue Mountain Clinic in Missoula? Isn’t that awful? Tsk. Tsk. Do you think it could happen in Bozeman? Do you think such a horrible thing could happen in Bozeman? What do you think? One thing is for sure: WE WILL SHUT YOU DOWN.

In the context of the abortion debate in this country, with which Ross and Wicklund were both clearly familiar, these letters constitute threats communicated under circumstances which reasonably tended to produce fear that they would be carried out.

Ross’s letters expressed more than his political or moral opposition to abortion. The majority of the letters were directed at Wicklund personally. They were written to frighten her. We discussed similarly threatening speech in State v. Lance (1986), 222 Mont. 92, 721 P.2d 1258, and concluded that the State had a substantial interest in protecting society from such speech while the benefits derived from such speech were minuscule. Lance, 721 P.2d at 1266. We went on to state:

This type of speech is so inimical to society and plays such a minimal part in the exposition of ideas that the State may constitutionally prohibit it. An individual cannot be permitted to terrorize members of the public through threats, and then claim protection from prosecution under the First Amendment. Freedom of speech was never meant to be stretched to the point where more injury is done to society as a whole than good.

Lance, 721 P.2d at 1267.

The totality of Ross’s letters, taken in the context in which they were written, constitute threats to commit homicide and arson. We conclude § 45-5-203, MCA, is constitutional as applied to Ross as his letters were not protected speech under the First Amendment.

Issue 3

Did the District Court err in instructing the jury concerning the term “threat” as used in § 45-5-203, MCA?

Ross claims that the District Court erred by refusing his proposed jury instructions A-l and A-10 while accepting the prosecution’s proposed jury instruction J. Ross claims that the instructions given by the District Cotut combined and blurred two distinct elements of § 45-5-203, MCA, ultimately confusing the jury’s deliberation.

We review jury instructions in a criminal case to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734, 737. The district court is given broad discretion in instructing the jury and while the defendant is entitled to have instructions on his theory of the case, he or she is not entitled to an instruction concerning every nuance of his or her argument. State v. Webb (1992), 252 Mont. 248, 828 P.2d 1351.

Ross’s proposed jury instruction A-l read as follows:

In determining whether Mr. Ross, in fact, communicated a threat, the question is not whether one could reasonably interpret Mr. Ross’ letters as threats. Rather, the question is whether the letters on their face and in the context in which they were conveyed, in fact, constitute true, unambiguous, unconditional and specific threats. “Threatening” language is not necessarily punishable.

The District Court refused this instruction because it found that the phrase “in fact, constitute true, unambiguous, unconditional and specific threats” was not proper. This language was dicta from a federal case interpreting a federal statute and has not been adopted in Montana. In response to Ross’s argument that this was a proper instruction, the District Court stated:

No, sir, that is not. That is dicta. That is not the law. ... That is based on a federal statute, [Counsel]. That has nothing to do with Lance when they talk about it.

The District Court also refused Ross’s proposed jury instruction A-10, which states:

In determining whether Mr. Ross intended to communicate a “true threat,” you must apply an objective standard and determine whether on its face and on the circumstances in which it is made, the speech is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.
In other words, you must consider what he said and where he said it, the circumstances in which it was said.

In place of Ross’s proposed instructions A-l and A-10, the court instructed the jury as follows:

In determining whether Mr. Ross intended to communicate a threat, the question is not whether one could reasonably interpret Mr. Ross’ letters as threats. Rather, the question is whether the letters on their face and in the context in which they were conveyed, in fact, constitute true threats. “Threatening” language is not necessarily punishable.
Implicit in the word “threat,” as used in the intimidation statute, is a requirement that it be communicated under circumstances which reasonably tend to produce a fear that the threat will be carried out.
Only serious expressions of an intention to take a hostage, murder, inflict serious injuries on persons or property, or commit a felony, for the purpose of accomplishing some end constitute a threat punishable under the statute.
The question of intention is to be decided on the basis of an objective standard, and whether a statement constitutes a true threat is to be determined by the trier of fact, you the jury.

Ross contends that this instruction confuses what constitutes a “true threat,” which must be determined by an objective standard, with whether or not the threat was communicated under circumstances which reasonably tend to produce fear, which must be determined by a subjective standard. We disagree. The instruction given by the District Court, when viewed in light of all the other instructions, was a correct statement of law. The jury was instructed on the elements and requirements necessary for language to be a “true threat.” The jury was also instructed on the requirement that the threats be communicated in a manner which reasonably tends to produce fear in the victim. The fact that these two concepts were addressed in the same jury instruction does not render the instruction unduly confusing or misleading.

Ross also argues that the District Court erred in denying his proposed instruction A-10 because he believes the jury should have been instructed that, for Ross’s letters to be considered “true threats,” Ross must have intended to carry out these threats. Again, Ross has misinterpreted Montana law. A “true threat” must be communicated under circumstances which reasonably tend to produce fear that the threat will be carried out. Lance, 721 P.2d at 1266; § 45-5-203, MCA. Under § 45-5-203, MCA, it does not matter whether or not the accused actually intended to carry out the threat, only that the threat is communicated in such a way that the victim reasonably fears that the threat will be carried out. The only intent required is that the accused made the threat for “the purpose to cause another to perform or to omit the performance of any act.” Section 45-5-203, MCA.

In interpreting a federal intimidation statute, the United States Ninth Circuit Court of Appeals stated:

It also can make no difference whether the threatener intends to carry out the threat. [Citation omitted.] The argument that if there is no intent to carry through, the threat is a pure exercise in freedom of speech is purely verbal and misconceives the nature of threats. When making a threat one hopes not to have to carry it out; one hopes that the threat itself will be efficacious. Most threats, indeed, are bluffs. But if the bluff succeeds in intimidating the threatened person... it ought to be punished.... And a bluff has no more to do with the marketplace of ideas than a serious threat.

United States v. Valasquez (7th Cir. 1985), 772 F.2d 1348, 1357, cert. denied, 475 U.S. 1021, 106 S.Ct. 1211, 89 L.Ed.2d 323 (1986).

We conclude that it is not necessary that the accused intend to carry out the threat; rather, it is only necessary that the threat was made for the purpose to cause another to perform or omit the performance of an act. We hold that the District Court properly instructed the jury concerning interpretation and application of § 45-5-203, MCA.

Issue 4

Is there sufficient evidence to support the jury verdict?

Ross claims that there was insufficient evidence to support the jury’s verdict of guilty. The standard of review of the sufficiency of the evidence to sustain a criminal conviction is whether, after reviewing 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. State v. Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318.

Ross’s insufficient evidence argument is an expansion of his argument above, in essence that, since he never intended to carry out his threats, the threats were not “true threats” and therefore the statutory elements of § 45-5-203, MCA, were not met. He insists the intent to carry out the threat must be proven. Ross claims that in Lance this Court “explicitly adopted this objective intent requirement to be a part of each and every prosecution under the subject statute.”

Ross’s interpretation of Lance is derived from the following passage:

[O]nly serious expressions of an intention to take a hostage, murder, inflict serious injuries on persons or property, or commit a felony, for the purpose of accomplishing some end constitute a threat punishable under the statute. However, the question of intention is to be decided on the basis of an objective standard, United States v. Kelner (2d Cir. 1976), 534 F.2d 1020 ....

Lance, 721 P.2d at 1267. From this quote Ross argues that this Court has “explicitly adopted” the entire intent requirement found in Kelner. Counsel has mischaracterized our holding in Lance. Nowhere in Lance did we make proof of the accused’s intent to carry out the threat a prerequisite to a conviction under § 45-5-203, MCA. As previously stated, the only state of mind required under § 45-5-203, MCA, is that the threat be made for the purpose to cause another to perform or omit performance of an act. There is no indication the legislature intended to require proof of the accused’s intent to carry out the threat.

We conclude that the prosecution presented sufficient evidence that Ross communicated “true threats” under circumstances which reasonably tended to produce fear in Wicklund that the threats would be carried out and the threats were communicated for the purpose to cause Wicklund to omit the performance of an act — specifically, performing abortions. A rationale trier of fact could have found these elements beyond a reasonable doubt.

Issue 5

Did the District Court err in denying Ross’s proposed jury instruction on stalking as a lesser included offense?

Ross argues that he was entitled to an instruction on stalking as a lesser included offense. Montana’s stalking statute, § 45-5-220, MCA, went into effect on April 9,1993. Ross sent fifty-nine letters to Wicklund before April 9,1993. Ross sent three letters to Wicklund on April 9, 1993. These three letters were admitted into evidence. Ross claims the three letters sent on April 9, 1993, provided sufficient evidence by which a rational trier of fact could have found him guilty of stalking. Ross therefore claims stalking is a lesser included offense to intimidation and the jury should have been so instructed.

In State v. Ostwald (1979), 180 Mont. 530, 591 P.2d 646, this Court stated that a criminal defendant “is entitled to instructions on lesser included offenses if any evidence exists in the record which would permit the jury to rationally find him guilty of a lesser offense and acquit him of a greater.” Ostwald, 591 P.2d at 651.

Fifty-nine of the sixty-two letters which constitute the intimidation charge in this case were written before the stalking statute became law. Included in these fifty-nine were the two most incriminating letters, the letter referring to the murder of Dr. Gunn in Florida and the letter referring to the burning of the Blue Mountain Clinic in Missoula. Since the gravamen of the offense occurred prior to enactment of the stalking statute, Ross was not entitled to an instruction concerning stalking as a lesser included offense. It bears emphasizing with respect to our decision that we are not here determining that the offense of stalking either is or is not a lesser included offense of the offense of intimidation. That issue remains to be decided in some future case and controversy.

Issue 6

Did the District Court err in denying Ross’s motion to bifurcate the trial and deliberate element #1 and element #3 of § 45-5-203, MCA, separately?

Ross argues that the District Court erred by allowing issue #1, whether the letters constituted “true threats,” and issue #3, whether the threats were communicated in such a way that they reasonably produced fear that the threats would be carried out, to be tried together. Ross offered to concede issue #3 and admit that Wicklund subjectively suffered fear and anxiety due to the letters. By doing this, he wished to exclude all evidence concerning Wicklund’s fear and focus solely on whether or not the letters on their face constituted “true threats.”

We will riot overturn a trial court’s discretionary ruling absent an abuse of discretion. In Montana Rail Link v. Byard (1993), 260 Mont. 331, 860 P.2d 121, we stated, “[t]he standard of abuse of discretion is applied to discretionary rulings, such as trial administration issues, post-trial motions and similar rulings.” Montana Rail Link, 860 P.2d at 125 (emphasis added). In this case the jury was continually made aware of the distinctions between the various elements the prosecution was required to prove. The jury was properly instructed concerning the applicable law.

The District Court determined that the prosecution should be permitted to present relevant, probative evidence to establish each and every element of the offense charged. There is no evidence that the jury was “confused” by the prosecution’s presentation of evidence concerning the various elements of the offense. We conclude that it was well within the District Court’s discretion to refuse to bifurcate the trial.

Based on our holdings above, we affirm the decision of the District Court.

JUSTICES HUNT, TRIEWEILER, NELSON and WEBER concur.

       The preamble to the 1985 bill which amended § 45-5-203, MCA, clearly indicates that the amendments were made in order to rectify the constitutional shortcomings of the statute. The preamble states, in part:
      WHEREAS, the language in section 45-5-203, MCA, is not narrowly drawn to punish only those threats that have a reasonable tendency to produce or instill fear in the victim, which threats traditionally have been punishable; and
      WHEREAS, in Wurtz v. Risley, 719 F.2d 1438 (9th Cir. 1983), the U.S. Ninth Circuit Court of Appeals held that subsection 45-5-203(l)(c), MCA, is aimed at “pure speech” rather than conduct; has an overbreadth that is real and substantial in relation to the statute’s legitimate sweep; has a chilling effect forbidden by the first amendment of the U.S. Constitution; and, in the absence of any narrowing construction or tightly drawn language, is void on its face for overbreadth; and
      WHEREAS, in its holding in Wurtz v. Risley, the court said that the statutory language of subsection 45-5-203(l)(c), MCA applied so broadly to threats of minor infractions, threats not reasonably likely to induce a belief that the threats would be carried out, and threats unrelated to any induced or threatened action, that a great deal of protected speech was brought within the statute; and
      WHEREAS, the court in Wurtz v. Risley did not address the issue of overbreadth in the remainder of section 45-5-203, MCA, but in its dicta said that a threat must be distinguished from what is constitutionally protected speech, and that threats punishable without violation of the first amendment must contain the reasonable tendency that the threat will produce or instill in the victim fear that the threat will be carried out; and
      WHEREAS, section 45-5-203, MCAmay contain language that defines elements of the offense of intimidation so that the statute applies too broadly or infringes on protected speech.
      THEREFORE, the Legislature of the State of Montana finds it appropriate to amend section 45-5-203, MCA.

       Underlined text was added and interlineated text was deleted from 45-5-203, MCA, by the 1985 Montana Legislature.

       The District Court also instructed the jury concerning an “objective” standard of review and other limitations and qualifications of what constitutes a “true threat.”


text:
    LEN WALLACE and PAMELA WALLACE, d/b/a BIG VELVET RANCH, Applicants and Appellants, -vs-THE MONTANA DEPARTMENT OF FISH, WILDLIFE AND PARKS and PATRICK J. GRAHAM, DIRECTOR, Respondents and Respondents.
    No. 94-087.
    Submitted on Briefs October 28, 1994.
    Decided January 24, 1995.
    52 St.Rep. 30.
    269 Mont. 364.
    889 P.2d 817.

      For Appellant: Ward Swanser; Moulton, Bellingham, Longo & Mather, Billings.
    For Respondents: Robert N. Lane and Beate Galda, Montana Department of Fish, Wildlife and Parks, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Len and Pamela Wallace (Wallaces), doing business as the Big Velvet Ranch, appeal from the findings, conclusions, and judgment of the Twenty-First Judicial District Court, Ravalli County, denying their application for a writ of mandamus directing the Montana Department of Fish, Wildlife, and Parks (Department) to issue a license for expansion of their game farm. We affirm.

Early in 1992, the Wallaces obtained a license from the Department for the operation of a 160-acre game farm located in Ravalli County, Montana. Over the next year, the Wallaces applied for, and received, expansion licenses for approximately 1,904 additional acres.

In early 1993, the Wallaces became aware that House Bill 338, containing extensive revisions of the game farm licensing statutes, had been introduced in the Montana legislature. They submitted an expansion application to add 2,600 acres to their game farm on March 15,1993; the Department received the application on March 22,1993. Before the Department was required to act on the application, House Bill 338 was approved and became effective on April 12,1993. Section 18, Chap. 315, 1993 Mont. Laws 982. The Department notified the Wallaces that their application would be subject to the amended game farm licensing procedure.

The Wallaces demanded that the Department review the application and issue the license under the law in effect on the date the application was submitted. The Department denied the Wallaces’ request and refused to issue the license under § 87-4-409, MCA (1991); it imposed the requirements of § 87-4-409, MCA(1993), on the Wallaces’ application.

The Wallaces then applied to the District Court for a writ of mandamus directing the Department to issue the game farm license pursuant to the 1991 version of the statute. The District Court issued the writ, directing the Department to issue the license or, in the alternative, to appear and show cause why it had not done so. Following a hearing, the District Court issued findings of fact, conclusions of law, and a judgment quashing the writ and denying the Wallaces’ application for a writ of mandamus. The Wallaces appeal. Additional facts are included in our discussion of the issues.

As amended by the 1993 legislature, the game farm licensing statutes imposed different obligations on both license applicants and the Department. Section 87-4-409(3), MCA (1993), provides the Department 120 days, rather than sixty days, to notify an applicant of its proposed decision on an application. Section 3, Chap. 315, 1993 Mont. Laws 974. In addition, the Department is now authorized to determine that an environmental impact statement is required with regard to an application; in that event, the Department has an additional 180 days within which to act on the application. Section 3, Chap. 315, 1993 Mont. Laws 974. The legislature also amended § 87-4-411, MCA, to increase the initial license fee from $100 to $200. Section 5, Chap. 315,1993 Mont. Laws 976.

It is undisputed that § 87-4-409, MCA (1993), was not expressly declared to be retroactive and, as a result, that the District Court correctly concluded that it was not, by its terms, a retroactive law. See § 1-2-109, MCA. The dispositive issue before us is whether the District Court erred in concluding that subjecting the Wallaces’ expansion license application to § 87-4-409, MCA (1993), did not constitute an impermissible retroactive application of that statute. We review a district court’s conclusions of law to determine whether they are correct. Saint Vincent Hosp. v. Blue Cross (1993), 261 Mont. 56, 60, 862 P.2d 6, 8.

Aretroactive 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.” Saint Vincent Hosp., 862 P.2d at 9; citing City of Harlem v. State Highway Comm’n (1967), 149 Mont. 281, 284, 425 P.2d 718, 720. Any such imposition on a vested right or past transaction is sufficient to constitute an impermissible retroactive application of a statute. See Thayer v. Hicks (1990), 243 Mont. 138, 157, 793 P.2d 784, 796.

A. Did the Wallaces have a vested right to receive a game farm license by virtue of submitting an application prior to the effective date of the 1993 amendments to § 87-4-409, MCA?

The evidence presented to the District Court characterized the pre-amendment game farm application process as a “formality” and established that the Wallaces were qualified applicants under § 87-4-409, MCA (1991); licensure pursuant to that statute had previously been a virtual certainty. Based on that evidence, the Wallaces argue that they acquired a vested right to approval of their license application on submission of that application and that the Department’s review under the provisions of § 87-4-409, MCA (1993), constituted an impermissible retroactive application of that statute.

“A license is a grant by a government authority or agency of the right to engage in conduct that would be improper without such a grant. The conferment of a license... is merely a privilege ....”4 Stein, Mitchell, Mezines, Administrative law, § 41.01 (1994); West-Mont Community Care v. Board of Health (1985), 217 Mont. 178, 182, 703 P.2d 850, 852. The Wallaces clearly are not entitled to operate a game farm on their property without first obtaining a license from the Department, and obtaining a license requires compliance with applicable statutory criteria. Section 87-4-407(1), MCA; see State ex rel. Dep’t of Health and Env. Sci. v. Green (1987), 227 Mont. 299, 303-04, 739 P.2d 469, 472-73. Similarly, in making a decision on a license application, the Department is required to act in accordance with the statutes circumscribing its powers. See Peterson v. Livestock Comm’n (1947), 120 Mont. 140, 147, 181 P.2d 152, 156. As a general rule, the Department’s decision on a license application must be based on the law in effect at the time of that decision despite the fact that the law may have changed. Ziffrin, Inc. v. United States (1943), 318 U.S. 73, 78, 63 S.Ct. 465, 469, 87 L.Ed. 621, 625-26; see also, Wilson v. State Highway Comm’n (1962), 140 Mont. 253, 257, 370 P.2d 486, 488.

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. Section 87-4-409, MCA (1991), is captioned “Application for license-limitations on issuance;” subsection (3) of the statute authorizes the Department to review, and either grant or deny, an application within sixty days. Thus, the license was a privilege to which the Wallaces were not entitled until such time as the Department acted on the application. The statutory review process and time period had not been completed prior to the effective date of the amended statute.

Nor does the parties’ agreement that license approval under § 87-4-409, MCA (1991), was “virtually automatic” alter the fact that receipt of a game farm license was not certain until the Department acted pursuant to the statute. In addition, we note that an environmental assessment prepared during the Department’s review of one of the Wallaces’ prior expansion applications indicated that further expansion could detrimentally impact winter game animal habitat and a migration corridor. Based on that history and the Department’s clear authority under § 87-4-409, MCA (1991), to deny an application, issuance of a license cannot be said to have been a certainty. We conclude, therefore, that the Wallaces’ mere submission of a completed application did not result in a vested right to issuance of a license under § 87-4-409, MCA (1991).

The Wallaces cite no authority for their assertions that they had a vested right to receive a license under the terms of § 87-4-409, MCA (1991), or that Department review of their application pursuant to § 87-4-409, MCA (1993), otherwise impaired their vested rights and, indeed, our decision here is in accord with prior decisions addressing retroactive application of statutes. In Saint Vincent Hosp., Blue Cross/Blue Shield and Deaconess Medical Center entered into an exclusive contract under the Preferred Provider Act (Act). Saint Vincent Hospital subsequently sought to become a party to that contract pursuant to an amendment to the Act. We determined that applying the amended Act to the existing contract would be an impermissible retroactive application of that law because it would divest contractually negotiated rights to an exclusive contract, as well as provide access to contractually confidential information. Saint Vincent Hosp., 862 P.2d at 9. Similarly, we determined in City of Harlem that application of a new statute requiring the Highway Commission to gain a municipality’s consent before constructing a highway by-pass of that municipality impaired the Highway Commission’s vested rights under various contracts. City of Harlem, 425 P.2d at 720.

Unlike the vested contractual rights at stake in Saint Vincent Hosp. and City of Harlem, the present case involves the mere submission of an application for a game farm license. The Wallaces’ only vested rights are in the game farm license and expansion licenses received prior to the effective date of § 87-4-409, MCA (1993). Those rights are not impacted in any way by the 1993 amendments or the license application at issue here.

B. Did the statutory amendments authorizing the Department to require an environmental impact statement, increasing the initial license fee, and expanding the time frame for review create a new obligation, impose a new duty, or attach a new disability with respect to past transactions between the Department and the Wallaces?

Approximately 100 days after receiving the Wallaces’ application, the Department informed the Wallaces pursuant to § 87-4-409(3), MCA, that an environmental impact statement was required and requested a $25,000 deposit to initiate the study. Because of the need for the environmental impact statement, the Department also informed the Wallaces that § 87-4-409(3), MCA (1993), provided it with an additional 180 days to complete the evaluation of the application. The Wallaces argue that the deposit to fund an environmental impact statement, the expanded time period for departmental review, and the license fee increase created new obligations, duties, and disabilities which should not be applied retroactively.

As set forth above, creation of a new obligation, imposition of a new duty, or attachment of a new disability in respect to transactions already passed renders a law impermissibly retroactive. Saint Vincent Hosp., 862 P.2d at 9. A transaction is defined 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.” Black’s Law Dictionary 1496 (6th ed. 1990).

The transaction involved in Saint Vincent Hosp. was a contract which had been in effect for approximately one year before the amendment of the Act. With respect to that contract, we determined that application of the amended statute would obligate Blue Cross to offer an exclusive agreement to a party with whom it did not intend to contract and impose a disability on Blue Cross because the contract permitted Deaconess to terminate the agreement if Blue Cross entered into a similar agreement with another medical provider. Saint Vincent Hosp., 862 P.2d at 9. Thus, applying the amended Act to the existing contract would attach both a new obligation and a new disability to a past transaction and constitute an impermissible retroactive application of the statute.

Here, the Wallaces are not a party to any transaction which would be altered as a result of the Department subjecting their expansion license application to § 87-4-409, MCA (1993). While applying § 87-4-409, MCA (1993), to an existing game farm license possessed by the Wallaces arguably would constitute an impermissible imposition of new obligations and disabilities to a transaction already passed, no such effort occurred here. The 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. We conclude, therefore, that subjecting the Wallaces’ pending license application to § 87-4-409, MCA (1993), did not impose a new duty, obligation, or disability with respect to a transaction already passed.

We conclude that the Department properly subjected the Wallaces’ game farm application to the provisions of § 87-4-409, MCA (1993). We hold, therefore, that the District Court properly concluded that application of § 87-4-409, MCA (1993), did not impair the Wallaces’ vested rights or create a new obligation, duty, or disability with respect to a past transaction and, thus, did not constitute an impermissible retroactive application of that statute.

The Wallaces argue separately that the Department violated its own internal policies by not issuing them a license within sixty days of submission of a completed application. This argument is without merit. The Department policy simply mirrored the sixty-day review requirement contained in § 87-4-409(3), MCA (1991), explicitly stating that “[t]he department is required by statute to either issue or deny a game farm license within 60 days of receiving a completed application.” Moreover, a memorandum relied on by the Wallaces specified that the procedures outlined therein governed the review process until “final action on pending game farm legislation.” Once the amended statute became effective and applicable, administrative policies which implemented prior statutory requirements must necessarily give way to the new controlling law. We conclude that the Department did not violate its internal policy by subjecting the Wallaces’ application to the provisions of § 87-4-409(3), MCA (1993).

The Wallaces also make a passing assertion that the District Court failed to properly consider and make findings of fact regarding certain evidence. A district court’s findings of fact must be supported by substantial evidence, which is the amount of relevant evidence a reasonable mind might accept as adequate to support a conclusion. Accounts Management Corp. v. Lyman Ranch (1987), 230 Mont. 35, 40-41, 748 P.2d 919, 923. We decline to address this argument since it is clear that, for the most part, the facts and evidence asserted by the Wallaces in this regard are irrelevant in that they relate to findings which may have been appropriate had we concluded that the pre-amendment version of § 87-4-409, MCA, was applicable here.

Given our resolution of the issues above, it is clear that the District Court did not err in denying the Wallaces’ application for a writ of mandamus. A writ of mandamus is appropriate where a party seeks performance of a clear legal duty by the party against whom the writ is issued. State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201, 203. We review a district court’s grant or denial of a writ of mandamus for abuse of discretion. Neuhausen, 833 P.2d at 203.

Here, the Department properly subjected the Wallaces’ expansion license application to the provisions of § 87-4-409, MCA (1993), and, as a result, mandamus is not available. We hold, therefore, that the District Court did not abuse its discretion in denying the Wallaces’ application for a writ of mandamus.

Affirmed.

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


text:
    JACK B. GEHRING, Plaintiff and Appellant, v. ALL MEMBERS OF THE STATE OF MONTANA 1993 LEGISLATURE, ALL MEMBERS OF THE MONTANA SUPREME COURT, Chief Justice J. A. Turnage, John C. Harrison, William E. Hunt, Sr., Fred Weber, R. C. McDonough, Karla Gray, Terry N. Trieweiler; GOVERNOR MARC RACICOT and ATTORNEY GENERAL JOSEPH P. MAZUREK, Defendants and Respondents.
    No. 94-166.
    Submitted on Briefs November 16, 1994.
    Decided February 6, 1995.
    52 St.Rep. 34.
    269 Mont. 373.
    889 P.2d 1164.

      For Appellant: Jack B. Gehring, Pro Se, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Deanne L. Sandholm, Assistant Attorney General, Helena; Mike McGrath, County Attorney, Helena.
   HONORABLE JAMES E. PURCELL, District Judge,

delivered the Opinion of the Court.

Jack B. Gehring (Gehring) appeals the decision of the First Judicial District Court, Lewis and Clark County, granting defendant’s motion to dismiss for failure to state a claim upon which relief could be granted. We affirm.

We find the following issues to be dispositive:

1. Did the District Court err in determining that the members of Montana’s Fifty-third Legislature did not violate the 1972 Montana Constitution by fixing their own compensation?

2. Did the District Court err in determining that Gehring’s right to peaceably assemble and petition the government for redress was not violated?

On December 16, 1993, Gehring filed a complaint in the First Judicial District Court, Lewis and Clark County, Montana. He asserted two substantive claims. First, he claims that the 1993 Montana Legislature violated Article V, section 5 of the 1972 Montana Constitution by fixing its own compensation.

Second, Gehring alleges he delivered ‘Notice and Petitions” to Montana’s Governor, House of Representatives, Senate, Clerk of the Supreme Court and Attorney General. Gehring claims that he did not receive any responses from his Notice and Petitions. He therefore argues that all the above named defendants violated his right to peaceably assemble and petition for redress of governmental action as guaranteed by the First Amendment of the United States Constitution and Article II, section 6 of the 1972 Montana Constitution.

On March 10, 1994, the District Court dismissed Gehring’s complaint, finding that he had failed to state a claim upon which relief could be granted. On March 28,1994, Gehring filed a notice of appeal with the Clerk of the Montana Supreme Court. Accompanying his notice of appeal was a request that the sitting Justices of the Montana Supreme Court be disqualified, as they were parties to the subject litigation. On August 25, 1994, Chief Justice Tumage, on behalf of the Montana Supreme Court, issued an order requesting Gehring to show cause why his case should not be dismissed for failure to file an appellate brief. On August 31,1994, Gehring responded that the rules of appellate procedure were unduly complicated and conflicted with the United States and Montana Constitutions and asked that his appeal go forward on the merits of his district court complaint. Gehring also reasserted his request that the sitting Justices of the Montana Supreme Court disqualify themselves.

On September 14, 1994, the Montana Supreme Court issued an order recusing itself and appointing five district court judges: James E. Purcell, Ted L. Mizner, Roy C. Rodeghiero, John W. Larson and Ted O. Lympus, to hear this appeal. On September 27,1994, Gehring requested that two additional judges be appointed to hear this case. On October 6, 1994, we denied Gehring’s request for two additional justices, concluding that this matter was properly classified for decision by a five member panel pursuant to the Internal Operating Rules of the Montana Supreme Court.

We also concluded that Gehring’s original petition was insufficient and did not constitute an Appellant’s Brief as required by the Montana Rules of Appellate Procedure. Gehring subsequently filed an Appellant’s Brief on October 19,1994.

Issue 1

Did the District Court err in determining that the 1993 Montana Legislature did not violate the 1972 Montana Constitution by fixing its own compensation?

Gehring claims that the 1993 legislature established its own compensation in violation of the Montana Constitution. Article V, section 5 of the Montana Constitution states:

Each member of the legislature shall receive compensation for his services and allowances provided by law. No legislature may fix its own compensation.

This section provides that while legislators are to be compensated for their services, no given legislature can establish the amount of its own compensation.

Section 5-2-301, MCA, establishes the legislature’s compensation and expenses. This section reads:

[L]egislators are entitled to a salary commensurate to that of the daily rate of an entry grade 8 classified state employee in effect when the regular session of the legislature in which they serve is convened under 5-2-103 for those days during which the legislature is in session....
Legislators are entitled to $50 a day, 7 days a week, during a legislative session, as reimbursement for expenses incurred in attending a session. Expense payments shall stop when the legislature recesses for more than 3 days and shall resume when the legislature reconvenes.

Section 5-2-301, MCA (1993). In 1991 the Fifty-second Legislature had amended this section, changing the pay scale from grade 8, step two to entry level grade 8. These changes were in full effect when the Fifty-third Legislature began its session.

Each legislative assembly is a distinct and separate entity. Construing a similar clause restricting the power of the legislature to fix its own compensation found in the 1889 Montana Constitution, this Court stated:

We think it is evident that the Constitution fixed the compensation of the members of the first legislative assembly of the State, and conferred upon that body the power to enact appropriate laws for the payment of its successors. Such legislation can be amended at any time, subject to the restrictions that no legislative assembly can pass a law which defines its own compensation.

State ex rel. Harrington v. Kinney (1891), 10 Mont. 410, 412, 25 P. 1022, 1023.

The compensation and expense reimbursement for the Fifty-third Legislature was established by the Fifty-second Legislature. The Fifty-third Legislature did pass laws appropriating money necessary to pay for the cost of the legislative sessions. However, these laws merely made the funds available. The amount of compensation was already fixed. We conclude that the District Court did not err in determining that the Fifty-third Legislature did not fix its own compensation in violation of Article V, section 5 of the Montana Constitution.

Issue 2

Did the District Court err in determining that Gehring’s right to peaceably assemble and petition the government for redress was not violated?

Gehring alleges he sent “Notice and Petitions” to various members of the state government, all of which went unanswered. He claims that since his petitions allegedly fell on deaf ears, his right to petition the government for redress has been violated.

Article II, section 6 of the Montana Constitution and the First Amendment of the United States Constitution both ensure citizens the right to petition the government for redress of grievances. While an individual has a right to petition the government, there is no corresponding right that his petition will be acted upon. In Canfora v. Olds (6th Cir. 1977), 562 F.2d 363, the United States Sixth Circuit Court of Appeals stated, “neither the First Amendment nor elsewhere in the Constitution is there a provision guaranteeing that all petitions for the redress of grievances will meet with success.” Canfora, 562 F.2d at 364. The First Amendment guarantees access to and free participation in the political process, not political success. Republican Party of N.C. v. Martin (4th Cir. 1992), 980 F.2d 943, 960.

We also find the substance of Gehring’s petitions to be without merit. Gehring demanded that the respondents “cease and desist any transaction concerning money ....” He claims the use of paper money is void under Article I, section 10, clause 1 of the United States Constitution which states “no State shall... make any Thing but gold and silver Coin a Tender in Payment of Debts ...” This provision, by its terms, is applicable to the states. However, this provision is not applicable to the federal government. Juilliard v. Greenman (1884), 110 U.S. 421, 447, 4 S.Ct. 122, 129, 28 L.Ed. 204, 211. The legality of paper money has consistently been upheld. Guaranty Trust Co. v. Henwood (1939), 307 U.S. 247, 59 S.Ct. 847, 83 L.Ed. 1266; United States v. Wangrud (9th Cir.), 533 F.2d 495, cert. denied, (1976), 429 U.S. 818, 97 S.Ct. 64, 50 L.Ed.2d 79.

We conclude that the District Court did not err in determining that Gehring’s right to peaceably assemble and petition the government for redress was not violated. We affirm the decision of the District Court.

DISTRICT JUSTICES MIZNER, RODEGHIERO, LARSON and LYMPUS concur.