text:
    DANIEL J. SCHUMACKER and MARIE B. SCHUMACKER, Plaintiffs and Appellants, v. MERIDIAN OIL CO., SLAWSON OIL CO., COWRY ENTERPRISES, INC., PARAFFIN SERVICES, INC., and KEN OLSEN, Defendants and Respondents.
    No. 97-282.
    Submitted on Briefs November 20, 1997.
    Rehearing Denied May 7, 1998.
    Decided April 14, 1998.
    1998 MT 79.
    55 St.Rep. 338.
    956 P.2d 1370.
    288 Mont. 217.

      For Appellants: Robert L. Johnson, Attorney at Law, Lewistown; Richard W. Heineman, Attorney at Law, Wibaux.
    For Respondents: John G. Crist; Crist Law Firm, Billings (for Meridian Oil); John D. Alexander; Ugrin, Alexander, Zadick & Higgins, Great Falls (for Slawson Exploration); Jacque W. Best; Habedank, Cumming, Best & Savage, Sidney (for Cowry Enterprises, Inc.); Calvin J. Stacey, Kevin M. Funyak; Stacey & Walen Law Firm, Billings (for Paraffin Services and Ken Olsen).
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Daniel J. Schumacker and Marie B. Schumacker (the Schumackers) appeal from the judgment entered by the Seventh Judicial District Court, Richland County, on its order granting the summary judgment motions of Meridian Oil Co., Slawson Oil Co., Cowry Enterprises, Inc., Paraffin Services, Inc., and Ken Olsen (collectively, the Defendants). We affirm.

¶2 The Schumackers raise the following issues on appeal:

¶3 1. Did the District Court err in granting summary judgment to the Defendants on the basis that the Schumackers failed to present any evidence on an essential element of civil conspiracy?

¶4 2. Did the District Court err in granting summary judgment to Paraffin Services, Inc. and Ken Olsen on the basis of the exclusivity provision contained in the Workers’ Compensation Act?

BACKGROUND

¶5 Daniel Schumacker (Daniel) worked as a mechanic for Paraffin Services, Inc. (Paraffin) during the summer of 1994. Paraffin is a licensed trucking company primarily engaged in transporting fluids from oil wells to various disposal points. Production water, one of the fluids transported by Paraffin, is water from wells that may be contaminated by hydrocarbons or hydrogen sulfate gases; when the water is contaminated, it is highly flammable. If contaminated production water has been transported in a tank, the tank must be steamed or flushed with carbon monoxide to remove any flammable contaminants before any welding can be done. If the tank is not specially cleaned, welding on the tank can cause an explosion.

¶6 In June of 1994, the United States Department of Transportation Federal Highway Administration ordered Paraffin to ensure that all hazardous material be accompanied by a proper shipping paper and transported only in cargo tanks authorized for the transport of hazardous material. Paraffin also was required to determine the flash points of any hazardous materials it hauled and to properly mark and placard the tanks carrying hazardous material.

¶7 On July 24, 1994, Paraffin’s tank-trailer number 103 (Unit #103) was used to transport fluids from wells owned by Cowry Enterprises, Inc. (Cowry), Meridian Oil Co. (Meridian), and Slawson Oil Co. (Slawson). The next day, Daniel checked the driver’s log, which indicated that Unit #103 required welding. Before beginning the repair, Daniel asked Ken Olsen (Olsen), his immediate supervisor and the president of Paraffin, what had been transported in Unit #103 on the previous day. Olsen responded that only water had been transported. Daniel began to weld and an explosion occurred. He was seriously injured and received workers’ compensation benefits for the injuries he sustained in the explosion.

¶8 On July 24, 1995, Daniel filed a complaint against the Defendants alleging that the Defendants conspired to illegally transport hazardous material and that Paraffin and Olsen had wrongfully discharged him. Several of the Defendants moved to dismiss and one moved, in the alternative, for a more definite statement. The District Court denied the motions to dismiss, but ordered Daniel to submit a more definite statement. In response, Daniel filed his “More Definite Statement as to the Allegations of Conspiracy” in October of 1996.

¶9 The District Court subsequently entered a scheduling order requiring Daniel to file any amendments to his pleadings by Decernber 1, 1996. The order expressly provided that later amendments could be made only with the court’s permission.

¶10 The Schumackers filed an amended complaint adding Daniel’s wife, Marie Schumacker, as a plaintiff a nd a loss of consortium claim against all the Defendants. The wrongful discharge claim was deleted. Slawson answered the amended complaint and the remaining defendants again moved for a more definite statement. The Schumackers responded that the Defendants were well aware of their legal theory and the District Court did not rule on the motion for a more definite statement.

¶11 The Defendants subsequently moved for summary judgment on the basis that the Schumackers had presented no evidence on the meeting of the minds element of civil conspiracy. They relied on portions of Daniel’s deposition, which had been filed with the court, and on Daniel’s responses to interrogatories. In the alternative, Paraffin and Olsen also sought summary judgment premised on the exclusivity provision of the Workers’ Compensation Act (WCA) and Olsen submitted an affidavit in support of that portion of his and Paraffin’s motion. The Schumackers filed briefs in opposition to the motions for summary judgment and a supporting affidavit from Daniel.

¶12 The Schumackers also filed — and then formally withdrew — a conditional motion to further amend their complaint. They subsequently filed a “more definite statement” of their claim which, for the first time, mentioned negligence with regard to the Defendants and which specifically asserted the applicability of the doctrine of res ipsa loquitur. The Schumackers requested the District Court to deem their amended complaint amended again in accordance with their “more definite statement.”

¶13 The District Court granted the Defendants’ motions for summary judgment and, in a separate order, denied the Schumackers’ request to deem their complaint amended. Judgment was entered accordingly and the Schumackers appeal from the District Court’s grant of summary judgment to the Defendants.

STANDARD OF REVIEW

¶14 “Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.” Ash Grove Cement Co. v. Jefferson County (1997), 283 Mont. 486, 491, 943 P.2d 85, 88; Rule 56(c), M.R.Civ.P. We review an order granting summary judgment de novo, applying the same Rule 56(c), M.R.Civ.P., criteria applied by the district court. Ash Grove Cement Co., 943 P.2d at 88 (citation omitted).

¶15 “[I]f the moving party establishes that one element of a cause of action lacks any genuine issue of material fact and the non-moving party does not come forward with proof that a genuine issue does exist, summary judgment is proper.” Wiley v. City of Glendive (1995), 272 Mont. 213, 216, 900 P.2d 310, 312 (citation omitted). The party opposing summary judgment cannot rely on mere allegations in the pleadings, but must present its evidence raising genuine issues of material fact in the form of affidavits or other sworn testimony. Klock v. Town of Cascade (1997), [284 Mont. 167], 943 P.2d 1262, 1266 (citation omitted). While we must resolve any inferences drawn from the factual record in favor of the party opposing summary judgment (Hatch v. State Dept. of Highways (1994), 269 Mont. 188, 193, 887 P.2d 729, 732 (citation omitted)), “mere denial, speculation, or conclusory statements” are insufficient to raise a genuine issue of material fact. Klock, 943 P.2d at 1266 (citation omitted).

DISCUSSION

¶ 16 1. Did the District Court err in granting the Defendants’ motions for summary judgment on the basis that the Schumackers failed to present any evidence on an essential element of civil conspiracy?

¶17 In granting the Defendants summary judgment on the Schumackers’ civil conspiracy claim, the District Court concluded that the Schumackers had failed to produce any evidence on the meeting of the minds element of civil conspiracy and, therefore, no genuine issue of material fact existed on that necessary element of the conspiracy claim. The Schumackers argue that direct evidence on the meeting of the minds element of conspiracy is not necessary and that their circumstantial evidence on that element is sufficient to raise a genuine issue of material fact.

¶18 The elements of a civil conspiracy are “(1) [t]wo or more persons, and for this purpose, a corporation is a person; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.” Simmons Oil Corp. v. Holly Corp. (1993), 258 Mont. 79, 91, 852 P.2d 523, 530 (citation omitted). Moreover, it is not the conspiracy itself that gives rise to the cause of action; it is the torts committed or the wrong done in furtherance of a civil conspiracy that do so. Duffy v. Butte Teachers’ Union Number 332, AFL-CIO (1975), 168 Mont. 246, 251, 541 P.2d 1199, 1202 (citation omitted).

¶19 The gist of the Schumackers’ conspiracy claim is that the Defendants conspired to maximize profits and undercut legitimate transportation by knowingly causing hazardous substances to be transported in unsuitable containers. Acknowledging that a meeting ofthe minds is an essential element requiring proof, the Schumackers contend that there is direct evidence of a meeting of the minds for “every act of transport.” The meeting of the minds element, however, requires a meeting of the minds on the unlawful object or course of action (see Simmons Oil, 852 P.2d at 530) which, in this case, is the unlawful transportation of hazardous substances in unsuitable containers. In this regard, the Schumackers concede that they presented no direct evidence of a meeting of the minds regarding the unlawful method of transportation, but argue that strong circumstantial evidence supports an inference sufficient to withstand summary judgment that there was a meeting of the minds as to the method of transportation.

¶20 Circumstantial evidence is evidence which tends to establish one fact by proving another and which, while not conclusively establishing the first fact, affords an inference of its existence. Section 26-1-102(1), MCA. We have not previously addressed whether circumstantial evidence may be used to establish the meeting of the minds element of civil conspiracy. We repeatedly have held, however, that circumstantial evidence may be used to prove the agreement element of a criminal conspiracy. See, e.g., State v. Stever (1987), 225 Mont. 336, 342, 732 P.2d 853, 857 (citations omitted); State v. Fitzpatrick (1977), 174 Mont. 174, 184, 569 P.2d 383, 391 (citations omitted); State v. Alton (1961), 139 Mont. 479, 503-04, 365 P.2d 527, 539 (citations omitted).

¶21 Moreover, other states have allowed the use of circumstantial evidence to establish the meeting of the minds element of a civil conspiracy due to the difficulty in obtaining direct evidence on that element. See, e.g., Four R Cattle Co. v. Mullins (Neb. 1997), 570 N.W.2d 813, 818 (citation omitted); Adam v. Mt. Pleasant Bank & Trust Co. (Iowa 1986), 387 N.W.2d 771, 773 (citation omitted); Beverly v. McCullick (Kan. 1973), 505 P.2d 624, 633 (citation omitted); Shows v. Silver Shield Mining and Milling Company (Colo. 1962), 375 P.2d 522, 524. Because direct evidence of the meeting of the minds is typically in the possession and control of the alleged conspirators and, therefore, difficult — if not impossible — to obtain, we hold that circumstantial evidence may be used to establish the meeting of the minds element of a civil conspiracy.

¶22 The Schumackers argue that they raised a genuine issue of material fact on the meeting of the minds element of civil conspiracy by circumstantial evidence. Specifically, they contend that the following evidence supports an inference that there was a meeting of the minds among the Defendants to transport production fluid illegally: Paraffin transported production water in Unit #103 from wells operated by Cowry, Meridian, and Slawson on the day before the explosion; Unit #103 was unmarked and unsuitable for transporting production fluid and, therefore, transporting production fluid in Unit #103 was illegal; and, in addition, signs at wells operated by Cowry and Meridian warn of the presence of flammable substances.

¶23 This evidence does not support an inference that there was a meeting of the minds to transport production fluid illegally. The evidence may be sufficient to indicate that Paraffin unlawfully transported a hazardous substance in an unsuitable container, but that is not the claim set forth against the Defendants in the Schumackers’ complaint. The fact that Paraffin transported fluids from wells owned and operated by Cowry, Meridian, and Slawson establishes only that they were customers of Paraffin; it is insufficient to create an inference that they knew of, agreed to, or promoted any illegal transportation of hazardous material by Paraffin. We conclude that the Schumackers’ circumstantial evidence is insufficient to raise a genuine issue of material fact on the essential meeting of the minds element of their civil conspiracy claim.

¶24 Perhaps anticipating our adverse decision on their conspiracy claim, the Schumackers contend that, even if their civil conspiracy claim fails, they should be permitted to proceed to trial on the issue of negligence. The Defendants respond that the Schumackers did not plead negligence claims in their initial or amended complaint and should not be permitted to add such a claim now. We agree.

¶25 Although the Schumackers argue that they pleaded a negligence claim from the outset, their initial complaint alleges only civil conspiracy and wrongful discharge. The amended complaint alleges only civil conspiracy and loss of consortium. The record does not reflect any effort by the Schumackers to state a negligence-based claim until after the Defendants had moved for summary judgment and the time for amendments of right had long since passed.

¶26 We previously have held that “[ljitigants should be allowed to change legal theories after a motion for summary judgment has been filed only in extraordinary cases.” Peuse v. Malkuch (1996), 275 Mont. 221, 228, 911 P.2d 1153, 1157. No extraordinary circumstances exist in this case that would justify permitting the Schumackers to change their legal theory after the motions for summary judgment had been filed. Moreover, the Schumackers filed and then withdrew a motion to further amend their complaint and did not raise as an issue on appeal the District Court’s denial of their tardy and indirect effort to “amend” via their “more definite statement.” Therefore, we decline to further address the Schumackers’ contentions regarding negligence.

¶27 We hold that the District Court did not err in granting summary judgment in favor of the Defendants on the basis that the Schumackers failed to present any evidence on an essential element of civil conspiracy.

¶28 2. Did the District Court err in granting summary judgment to Paraffin and Olsen on the basis of the exclusivity provision contained in the WCA?

¶29 In addition to granting Paraffin and Olsen’s motion for summary judgment on the civil conspiracy claim, as discussed above, the District Court also granted their motion for summary judgment on the basis of the exclusivity provision in the WCA. The Schumackers contend that the District Court erred in determining facts, rather than merely determining whether genuine issues of material fact existed in this regard.

¶30 Our conclusion above, that the District Court did not err in granting summary judgment to the Defendants on the civil conspiracy claim, is dispositive as to all Defendants. As a result, we need not address the District Court’s alternative basis for granting summary judgment to Paraffin and Olsen.

¶31 Affirmed.

JUSTICES HUNT, REGNIER, TRIEWEILER and LEAPHART concur.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    NORTHWEST COLLECTORS, INC., Plaintiff and Respondent, v. THOMAS IAN VANORIO, Defendant and Appellant.
    No. 98-015.
    Submitted on Briefs March 13, 1998.
    Decided April 14, 1998.
    1998 MT 80.
    55 St.Rep. 342.
    956 P.2d 1375.
    288 Mont. 225.
    For Appellant: Thomas Ian Vanorio (pro se), Florence.
    For Respondents: Samuel M. Warren, St. Peter and Warren, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 The Twenty-First Judicial District Court, Ravalli County, dismissed Thomas Ian Vanorio’s appeal of a judgment from Ravalli County Justice Court as untimely. Vanorio now appeals that order of dismissal to this Court. We affirm.

¶2 The issue is whether the time allowed to appeal a justice court judgment to district court under § 25-33-102, MCA, is extended by three days under Rule 6 of the Montana Justice and City Court Rules of Civil Procedure (M. J.C.C.R.Civ.P), which provides for three days’ additional time after service by mail.

¶3 On July 28, 1997, Northwest Collectors, Inc., obtained a judgment in the Ravalli County Justice Court against Vanorio for a debt and an associated collection fee. On September 2,1997, Vanorio filed an appeal of that judgment to the District Court. In November 1997, the District Court granted the motion of Northwest Collectors to dismiss the appeal on grounds of untimeliness.

¶4 Section 25-33-102, MCA, provides:

Any party dissatisfied with the judgment rendered in a civil action in a city or justice’s court may appeal therefrom to the district court of the county at any time within 30 days after the rendition of the judgment.

In this case, Vanorio filed his appeal in tbe District Court thirty-five days after judgment was rendered in Justice Court.

¶5 Vanorio argues that his notice of appeal was timely because of the additional time allowed under Rule 6C, M.J.C.C.R.Civ.P.:

Whenever a party has the right or is required to do an act or take a proceeding within a prescribed period after service of a notice or other paper and the notice or other paper is served by mail, 3 days must be added to the prescribed period.

Vanorio argues that the time for filing his notice of appeal was extended under this rule to thirty-three days after the judgment, or until Saturday, August 30, 1997. He then points out that under Rule 6A, M.J.C.C.R.Civ.P., when a deadline falls on a Saturday, Sunday, or legal holiday, the deadline is extended to the next day. In this case, the next day was a Sunday and the next weekday, Monday, September 1, was a legal holiday. Vanorio maintains, therefore, that his appeal filed on Tuesday, September 2, 1997, was timely.

¶6 As Northwest Collectors points out, this Court has previously rejected the argument raised by Vanorio. In Grimes Motors, Inc. v. Nasciemento (1990), 244 Mont. 147, 796 P.2d 576, the district court dismissed as untimely an appeal from a justice court judgment filed thirty-two days after the judgment was rendered. Appellant Nasciemento argued that the time allowed for appeal should be extended under the rules allowing additional time after service by mail. This Court reasoned as follows:

As indicated above, §§ 25-33-101 and 25-33-102, MCA, exclusively govern the time for filing the notice of appeal from justice court to district court.
The time for appeal in this case commenced with the “rendition” of the judgment of the justice court as provided in § 25-33-102, MCA. Because appellant filed his notice of appeal 32 days after judgment was rendered, the District Court properly dismissed appellant’s appeal.

Grimes Motors, 244 Mont. at 150, 796 P.2d at 578.

¶7 Under § 25-33-102, MCA, the time for filing an appeal does not run from the date of service of a notice of the judgment — it runs from the date of rendition of the judgment. Rule 6C, M. J.C.C.R.Civ.P, operates to extend the time allowed “[wjhenever a party has the right or is required to do an act or take a proceeding within a prescribed period after service of a notice or other paper.” (Emphasis added.) The rule does not extend the time allowed by statute when that time begins to run upon rendition of the judgment instead of upon service of a notice or other paper.

¶8 Vanorio relies upon State v. Schindler (1994), 268 Mont. 489, 886 P.2d 978, and State v. Price (1995), 271 Mont. 409, 897 P.2d 1084, arguing that Grimes Motors has been overruled by those cases. The time for appeal of a criminal matter from justice court to district court is governed by § 46-17-311, MCA: “within 10 days after a judgment is rendered.” In Schindler and Price, this Court held that Rule 21, M.U.R.J.C.C., which provides that “[wjhen the period of time prescribed or allowed is ten days or less, intermediate Saturdays, Sundays, and legal holidays shall be excluded,” applied to extend the time for filing criminal appeals from justice court to district court.

¶9 This case involves application of a different statute than the one at issue in Schindler and Price, and a different rule of procedure alleged to extend the time allowed under that statute. Importantly, the procedural rule for extension of time which was applied in Schindler and Price was not limited to periods prescribed to act after service of a notice or other papers, as is the extension of time for mailing under Rule 6C, M. J.C.C.R.Civ.P. We conclude that Schindler and Price neither control in this case nor overrule Grimes Motors.

¶10 Vanorio has not established that his time for filing a notice of appeal from justice court was extended beyond thirty days after rendition of the judgment, or Wednesday, August 27, 1997. We therefore affirm the judgment of the District Court.

JUSTICES GRAY, LEAPHART, HUNT and REGNIER concur.


author: JUSTICE REGNIER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PATRICK LANCIONE, Defendant and Appellant.
    No. 97-042.
    Submitted on Briefs January 30, 1998.
    Decided April 14, 1998.
    1998 MT 84.
    55 St.Rep. 344.
    956 P.2d 1358.
    288 Mont. 228.

      For Appellant: Larry Jent; Williams, Jent & Dockins; Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General; Helena; Marty Lambert, Gallatin County Attorney; Bozeman.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 Patrick Lancione was charged by information on June 7, 1996, with the offense of criminal endangerment, a felony, in violation of § 45-5-207, MCA. Lancione was tried by a jury in the Eighteenth Judicial District Court, Gallatin County, and found guilty. Lancione appeals from the sentence and the judgment of the District Court. We affirm.

¶2 The following issues are presented on appeal:

¶3 1. Did the District Court abuse its discretion in admitting evidence of Lancione’s behavior immediately prior to the crime?

¶4 2. Is § 45-5-207, MCA, defining the offense of criminal endangerment, unconstitutionally vague on its face or as applied to Lancione?

¶5 3. Did the District Court err in instructing the jury on the mental state necessary to prove criminal endangerment?

¶6 4. Was sufficient evidence presented at trial to convict Lancione of criminal endangerment?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 Patrick Lancione was a licensed real estate agent for Yogi Khalsa Realty Company, located in Bozeman, Montana. The company was owned by Yogi Khalsa, a licensed broker. Their business relationship, which began in 1993, had deteriorated by September 1995. On September 5, 1995, Khalsa asked Lancione to find another broker to work for.

¶8 On June 7, 1996, Khalsa walked into Lancione’s office and requested certain documents. This request lead to an argument about the sharing of a commission from the sale of a real estate listing. Khalsa testified that Lancione grabbed him, threw him against a wall, and shoved him out the door. Khalsa left Lancione’s office and returned to his office. He then decided to leave the building. He walked out into the hallway to leave and was blocked by Lancione.

¶9 According to Khalsa, Lancione closely followed him down the hallway and pursued him down five flights of stairs. At the last full flight of stairs, above a door to the lobby, Khalsa recalls Lancione saying, ‘You’ll never make it to the street.” The last thing Khalsa remembers is going through the door with Lancione right behind him. Khalsa regained consciousness lying on the floor in a pool of blood in front of the elevator about ten to twelve feet from the door.

¶10 According to Lancione’s testimony, as he exited the door at the bottom of the stairwell, Khalsa tried to reach back and slam the door on him. Lancione then accidentally tripped into Khalsa and they both tumbled down the stairs.

¶11 On September 26, 1995, Lancione was charged by information in the Eighteenth Judicial District Court, Gallatin County, with the felony offense of criminal endangerment pursuant to § 45-5-207, MCA. Lancione was tried by a jury on August 19-21,1996, and found guilty.

¶12 On September 12, 1996, Lancione moved for a new trial. He alleged that § 45-5-207, MCA, is unconstitutional on its face and as it is applied to him in this case. He further alleged that the District Court erred in allowing certain character evidence to be admitted and that the evidence was insufficient as a matter of law to sustain the verdict. On December 9, 1996, the District Court denied the motion for a new trial.

¶13 On December 12, 1996, the District Court deferred sentencing Lancione for a period of six years. As a condition for the six-year deferred sentence, the court ordered Lancione to serve ninety days in the Gallatin County Detention Center. Lancione was also ordered to pay restitution in the amount of $8,629.40. Lancione now appeals the sentence and the judgment of the District Court.

ISSUE 1

¶14 Did the District Court abuse its discretion in admitting evidence of Lancione’s behavior immediately prior to the crime?

¶15 At trial, the State offered the testimony of Colleen Kinnear regarding Lancione’s behavior when she saw him on the street less than fifteen minutes before Khalsa was injured. Kinnear, an acquaintance of Lancione, testified that she observed Lancione across the street on a corner walking toward her. She stated that Lancione was normally a neat and snappy dresser. However, on the day of the incident, she testified that:

[Lancione] was less well groomed, his hair was not particularly combed, looked like it needed a cut. [He] [h]ad on sloppy, baggy pants, unpressed white shirt, just different from his normal appearance on a work day.

¶16 She then testified that as they were crossing the street from opposite corners, “he walked very slow, sort of deliberately slow.” At the time, she testified that there was a delivery truck waiting to make a turn. When they met in the middle of the street, she testified that Lancione told her “Let’s walk real slow. Let’s piss the truck driver off.”

¶17 Lancione argues that the District Court abused its discretion by not excluding the testimony of Kinnear. At trial, Lancione objected to Kinnear’s testimony, arguing that the admission of her testimony was not relevant under Rule 401, M.R.Evid., that it was character evidence prohibited by Rule 404(a), M.R.Evid., and that it was prejudicial pursuant to Rule 403, M.R.Evid. In his motion for a new trial and on appeal, Lancione again argued that the District Court erred in admitting Kinnear’s testimony on the same three grounds. However, in his motion for a new trial, Lancione, for the first time, raised Rule 404(b), M.R.Evid., as a basis to reverse the District Court.

¶18 The State counters that the introduced evidence was not evidence of a trait of character. Instead, the State contends that it was evidence of a specific event showing Lancione’s res gestae, or hostile state of mind, fifteen minutes before Khalsa was found injured. Furthermore, the State contends that this Court should not consider Lancione’s argument based on Rule 404(b), M.R.Evid., because he failed to object to the admission of Kinnear’s testimony on this basis at trial.

¶19 In its order denying Lancione’s motion for a new trial, the District Court concluded that because the crime of criminal endangerment involves the defendant’s state of mind, the State was entitled to introduce this evidence concerning Lancione’s state of mind fifteen minutes before the crime was committed. Furthermore, the court stated that Kinnear’s testimony was brief, approximately ten minutes out of a three-day trial, and was not unduly prejudicial.

¶20 The standard of review for 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.

¶21 We conclude that the admission of Kinnear’s testimony was an abuse of discretion by the District Court. Kinnear’s testimony does not directly relate to the incident between Lancione and Khalsa. Instead, the testimony is used to portray Lancione’s actions toward the truck driver as evidence of his intent to knowingly cause harm to Khalsa fifteen minutes later. We conclude that the testimony was not relevant under Rule 401, M.R.Evid., and was therefore inadmissible.

¶22 Although we conclude that the testimony was inadmissible, we must now determine whether that error was prejudicial, thereby requiring reversal of the conviction. Section 46-20-701, MCA, states, in relevant part, that “a cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial.” When prejudice is alleged in a criminal case, the prejudice will not be presumed, rather, it must be established from the record that a substantial right was denied. State v. Wells (1983), 202 Mont. 337, 349, 658 P.2d 381, 388. From the record, we must determine whether there is a reasonable possibility that the inadmissible evidence might have contributed to a conviction. State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1109. In Bower, we noted that when assessing the potentially prejudicial effect of an error, we examine the totality of the circumstances in which the error occurred. If the issue involves inadmissible evidence, we will not evaluate the evidence in isolation because that would risk magnifying the error beyond the impact it had on the verdict. Bower, 254 Mont. at 6, 833 P.2d at 1109.

¶23 With these principles in mind, and after a thorough review of the transcript, we conclude that admitting Kinnear’s testimony did not constitute prejudicial error. At trial, the State’s evidence clearly demonstrated that the working relationship between Lancione and Khalsa had deteriorated to the point where Khalsa asked Lancione to leave. The evidence also showed that Khalsa’s request lead to the incident on the stairs with Lancione following Khalsa down the stairs and threatening him. Khalsa then ended up injured at the bottom of the stairs. The incident related by Kimiear on the street fifteen minutes before is entirely unrelated to the facts which gave rise to the criminal charge. We agree with the District Court’s conclusion that Kinnear’s testimony was not unduly prejudicial and was brief in relation to the other evidence that the State presented at trial.

¶24 Without reaching the merits of the State’s res gestae argument, we conclude that even though the District Court abused its discretion by allowing the admission of Kinnear’s testimony, under the totality of the circumstances, it was not prejudicial error.

ISSUE 2

¶25 Is § 45-5-207, MCA, defining the offense of criminal endangerment, void because of vagueness on its face or as applied to Lancione?

¶26 Lancione argues that § 45-5-207, MCA, is unconstitutional for vagueness, both on its face and as applied to him. He suggests that this Court should reexamine its opinion in State v. Crisp (1991), 249 Mont. 199, 814 P.2d 981, because the criminal endangerment statute is so broad that it is susceptible to arbitrary and discriminatory enforcement.

¶27 In Crisp, the defendant argued that § 45-5-207, MCA, was vague on its face because it does not require a specific intent to cause the risk and that the phrase “substantial risk of death” was not defined by statute. This Court upheld the statute as constitutional for two reasons. First, a plain reading of the statute establishes that the State must prove that a defendant acted knowingly. Crisp, 249 Mont. at 203, 814 P.2d at 983. Second, the fact that the statute does not define the phrase “substantial risk of death” does not render the statute facially vague because the term warns a person of ordinary intelligence that if he engages in conduct that could result in a real possibility of loss or injury he could be found guilty of the crime of criminal endangerment. Crisp, 249 Mont. at 204, 814 P.2d at 984.

¶28 To raise a constitutional challenge to a statute for vagueness, Lancione must have standing. When a challenge to a statute based on vagueness is raised, this Court must first determine whether the enactment reaches any constitutionally protected conduct. State v. Lilburn (1994), 265 Mont. 258, 270, 875 P.2d 1036, 1044. Next, “if the challenged statute is reasonably clear in its application to the conduct of the person bringing the challenge, it cannot be stricken on its face for vagueness.” Lilburn, 265 Mont. at 270, 875 P.2d at 1044 (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 494-95, 102 S. Ct. 1186, 1190-91, 71 L. Ed. 2d 362, 369). “One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy (1974), 417 U.S. 733, 756, 94 S. Ct. 2547, 2562, 41 L. Ed. 2d 439, 458.

¶29 We first conclude that the conduct proscribed by the statute does not interfere with any constitutional rights of a person or any conduct that is constitutionally protected. The purpose of the statute is to punish behavior by one person that “creates a substantial risk of death or serious bodily injury to another.” Section 45-5-207, MCA.

¶30 Next, we conclude that § 45-5-207, MCA, clearly applies to Lancione’s conduct. In this case, the jury determined that Lancione knowingly caused serious injury to Khalsa. The evidence that was presented was consistent with the State’s theory that Lancione either pushed or threw Khasla from behind, causing him to fall down the stairs. On that basis, we conclude that Lancione does not have standing to bring a facial vaguesness or an as applied challenge to § 45-5-207, MCA.

¶31 Therefore, we hold that Lancione does not have standing to challenge § 45-5-207, MCA, for vagueness on its face or as it applies to him in this case.

ISSUE 3

¶32 Did the District Court properly deny Lancione’s motion for a directed verdict?

¶33 At the close of evidence, Lancione moved for a directed verdict based on the grounds that the State failed to prove that he knowingly subjected Khalsa to a risk of death or serious bodily injury. The District Court denied the motion.

¶34 A district court’s decision to grant or deny a motion for a directed verdict lies within its sound discretion and will not be overturned absent an abuse of that discretion. State v. Romannose (1997), 281 Mont. 84, 88, 931 P.2d 1304, 1307. “We review a trial court’s denial of a motion for a directed verdict to determine 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.” Romannose, 281 Mont. at 88, 931 P.2d at 1307.

¶35 Lancione argues that the State failed to prove that Lancione caused Khalsa’s injuries. Lancione contends that there was insufficient evidence offered to prove that he knowingly subjected Khalsa to a risk of death or serious bodily injury and, therefore, the District Court should have granted his motion for a directed verdict. The State responds that it presented sufficient evidence to withstand Lancione’s motion for a directed verdict.

¶36 Lancione’s main contention is that Khalsa admitted that he never saw, heard, or felt Lancione push him. Lancione asserts that Khalsa merely concludes that Lancione caused his injury because he was simply behind him. Therefore, the jury was left to speculate as to how Khalsa’s injuries occurred.

¶37 As the State points out, circumstantial evidence alone is sufficient to obtain a conviction. State v. Buckingham (1989), 240 Mont. 252, 260, 783 P.2d 1331, 1337. Circumstantial evidence must only be of such a “quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt,” and all the facts and circumstances must be considered collectively. State v. Weaver (1981), 195 Mont. 481, 637 P.2d 23.

¶38 The record shows that Khalsa testified that Lancione threatened him and told him he would not make it to the street. He also testified that as Lancione was closely following him down the stairs and that, although he does not remember any body contact between him and Lancione, he could not have landed at the bottom of the stairs if he had merely tripped. The evidence also showed that Khalsa was found in a pool of blood at the foot of the stairs, having traveled a distance farther than that resulting from a mere misstep. In fact, Lancione, himself, testified that there was physical contact between him and Khalsa on the stairway. Also, another witness testified to the confrontation in the hallway between Khalsa and Lancione just before Khalsa was injured. Furthermore, the court allowed the jury to view the scene of the incident and draw its own conclusions from the testimony offered.

¶39 We conclude that the State presented sufficient evidence to support the conviction. The circumstantial evidence was such that a jury could infer that Lancione caused Khalsa to fall down the stairs. Thus, we conclude that the District Court did not abuse its discretion in denying Lancione’s motion for directed verdict.

ISSUE 4

¶40 Did the District Court err in instructing the jury on the mental state of knowingly?

¶41 Lancione contends that the District Court erred in instructing the jury on the mental state of knowingly based on this Court’s decision in State v. Lambert (1996), 280 Mont. 231, 929 P.2d 846. In this case, the definition given by the court was that “a person acts knowingly when he is aware of the circumstances that his conduct constitutes a crime.” The definition of knowingly as established by this Court in Lambert provides that

the ‘knowingly’ element of criminal endangerment contemplates a defendant’s awareness of the high probability that the conduct in which he is engaging, whatever that conduct may be, will cause a substantial risk of death or serious bodily injury to another.

Lambert, 280 Mont. at 237, 929 P.2d at 850.

¶42 However, this Court notes that Lancione failed to object to any of the jury instructions during settlement of instructions before the case was turned over to the jury. Furthermore, Lancione did not raise an argument regarding the jury instructions in his motion for a new trial or other relief with the District Court.

¶43 Upon review of Lancione’s memorandum in support of his motion for a new trial or other alternative relief and the transcript of the District Court hearing held April 21, 1996, we conclude that Lancione did not raise any objections to the jury instructions. Therefore, because this argument is raised for the first time on appeal, we will not address it. Rasmussen v. Lee (1996), 276 Mont. 84, 88, 916 P.2d 98, 100.

¶44 Affirmed.

JUSTICES HUNT, NELSON, TRIEWEILER and LEAPHART concur.


author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    ROBERT G. STEELE, Plaintiff and Appellant, v. DANIEL B. McGREGOR, JOSEPH V. MARONICK, and six unnamed members of the State Bar of Montana in their individual capacities, Defendants and Respondents.
    No. 97-084.
    Submitted on Briefs June 19, 1997.
    Decided April 14, 1998.
    1998 MT 85.
    55 St.Rep. 349.
    956 P.2d 1364.
    288 Mont. 238.

      For Appellant: Robert G. Steele, pro se, Missoula.
    For Respondents: Paul D. Johnson, Assistant Attorney General, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Robert G. Steele (Steele) appeals from the order and judgment of the First Judicial District Court, Lewis and Clark County, dismissing his complaint brought under 42 U.S.C. § 1983 (§ 1983) for failure to state a claim upon which relief can be granted. We affirm.

¶2 The dispositive issue on appeal is whether Joseph Maronick and Daniel McGregor are entitled to judicial or quasi-judicial immunity.

BACKGROUND

¶3 Steele’s complaint alleges the following facts, which we accept as true for purposes of this opinion. Steele is a certified public accountant (CPA) who has been licensed to practice that profession in Montana since 1970. After Steele was denied admission to the State Bar of Montana (State Bar) in 1992, he co-founded an organization called “Montanans for Due Process” through which he is attempting to expose the purportedly corrupt practices of the State Bar. Montanans for Due Process sponsored an initiative entitled “Access to Justice” which proposed to amend the Montana Constitution to eliminate attorney licensing requirements and allow any person to represent another person in civil and criminal court proceedings.

¶4 Steele further alleges that, in 1995, he represented Neville Log Homes (Log Homes) at a prehearing conference in a case involving unemployment insurance taxes before Montana Department of Labor and Industry (DOL) hearing examiner Bernadine E. Warren. Shortly thereafter, Daniel McGregor (McGregor), a DOL attorney, sent a letter to the Montana Supreme Court’s Commission on Unauthorized Practice of Law — with copies to Steele, the State Bar, and the Montana Supreme Court — advising of his concern that Steele was practicing law without a license. McGregor also advised Steele that, as a licensed attorney, he was precluded from assisting Steele in activities which constituted the unauthorized practice of law.

¶5 Steele had represented numerous clients in administrative hearings during his career as a CPA and had been involved in hearings where other nonattorneys had represented clients. After McGregor raised the issue, Steele discussed his representation of Log Homes at the upcoming substantive hearing with three DOL hearing examiners, including Joseph Maronick (Maronick). All three advised that the DOL routinely permits CPAs to represent clients at DOL hearings.

¶6 In the meantime, Log Homes’ unemployment insurance tax case was transferred to hearing examiner Maronick. McGregor moved to preclude Steele from representing any party to the contested case proceeding because Steele was not an attorney and Maronick granted the motion. Nancy Neville, who is not an attorney, subsequently represented Log Homes at the hearing.

¶7 Steele filed his civil rights action for damages under § 1983 in the Fourth Judicial District Court, Missoula County, in May of 1996. He contended therein that the actions of Maronick and McGregor (collectively, the Named Defendants) violated his rights to due process, equal protection and free speech. Steele also asserted that the N amed Defendants, together with six unnamed members of the State Bar (Unnamed Members), conspired to deprive him of his constitutional rights for unspecified personal gain and to retaliate against him for his political views. The Unnamed Members were never named or served.

¶8 The Named Defendants moved to dismiss Steele’s complaint for failure to state a claim upon which relief could be granted and for a change of venue. Venue was changed to the First Judicial District Court, Lewis and Clark County. The District Court granted the Named Defendants’ motion to dismiss for failure to state a claim, concluding that Steele did not allege the violation of a federally protected right which could provide the basis for a § 1983 action, and dismissed Steele’s complaint accordingly. Steele appeals.

STANDARD OF REVIEW

¶9 “Rule 12(b)(6), M.R.Civ.P., motions to dismiss are viewed with disfavor and a complaint should be dismissed only if the allegations in the complaint clearly demonstrate that the plaintiff does not have a claim.” Kleinhesselink v. Chevron, U.S.A. (1996), 277 Mont. 158, 161, 920 P.2d 108, 110 (citations omitted). In considering a motion to dismiss, “the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.” Hollister v. Forsythe (1996), 277 Mont. 23, 26, 918 P.2d 665, 667 (citations omitted).

¶10 The District Court’s determination that Steele’s complaint failed to state a claim upon which relief can be granted is a conclusion of law. See Hollister, 918 P.2d at 667. We review a district court’s conclusion of law to determine whether the interpretation of the law is correct. Hollister, 918 P.2d at 667 (citation omitted).

DISCUSSION

¶11 Are Maronick and McGregor entitled to judicial or quasi-judicial immunity?

¶12 Steele contends on appeal that the District Court erred in dismissing his complaint because the complaint alleged the violation by Maronick and McGregor of three federally protected rights — due process, equal protection and free speech — and, therefore, properly stated claims under § 1983. The Named Defendants contend, on the other hand, that the District Court’s dismissal should be affirmed without regard to whether Steele’s complaint sufficiently alleges the violation of a federally protected right because they are entitled to absolute judicial or quasi-judicial immunity. They advanced these immunities in the District Court but that court dismissed on the grounds set forth above and did not reach the immunity issues.

¶13 For the reasons discussed below, we conclude that Maronick and McGregor are entitled to absolute judicial and quasi-judicial immunity, respectively, from Steele’s § 1983 action for damages. Since absolute immunity is a complete bar to Steele’s action, this issue is dispositive without regard to the technical sufficiency of Steele’s allegations to state a § 1983 claim. As a result, because the issue was timely raised in the District Court and provides a proper basis for affirming the result reached by the District Court (see State v. Parker, 1998 MT 6, ¶ 20, [287 Mont. 151], 953 P.2d 692, 696 (citation omitted)), we need not address Steele’s assertions of error.

¶14 We begin by observing that federal immunity principles apply in § 1983 actions. In analyzing immunity in the context of a violation of federal constitutional rights, the Supreme Court has stated that “[t]o create a system in which the Bill of Rights monitors more closely the conduct of state officials than it does that of federal officials is to stand the constitutional design on its head.” Butz v. Economou (1978), 438 U.S. 478, 504, 98 S.Ct. 2894, 2909, 57 L.Ed.2d 895, 914. Therefore, no distinction should be made for immunity purposes between a suit brought against a state official under § 1983 and a suit against a federal official brought directly under the Constitution. Butz, 438 U.S. at 504, 98 S.Ct. at 2909.

¶15 In addressing immunity questions, the Supreme Court applies a functional approach. Forrester v. White (1988), 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98 L.Ed.2d 555, 563. This approach examines the nature of the functions with which a particular official or class of officials has been lawfully entrusted, seeking to evaluate the “effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.” Forrester, 484 U.S. at 224, 108 S.Ct. at 542.

a. Judicial Immunity

¶16 Judicial immunity provides judges with absolute immunity from suit for civil damages for acts performed in their judicial capacities. Dellenbach v. Letsinger (7th Cir. 1989), 889 F.2d 755, 758. Judges are immune due to the nature of their responsibilities rather than their location in the government. Butz, 438 U.S. at 511, 98 S.Ct. at 2913. This immunity results from the independence judges need to make decisions in matters involving such things as monetary and liberty interests without fear of reprisal from dissatisfied litigants. See Butz, 438 U.S. at 509, 98 S.Ct. at 2912. Moreover, “[t]he essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action.” Mitchell v. Forsyth (1985), 472 U.S. 511, 525, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411, 424 (citations omitted). Simply stated, absolute immunity is immunity from suit rather than a mere defense to liability. Dellenbach, 889 F.2d at 758 (citation omitted).

¶17 In Butz, the United States Department of Agriculture (the Department) issued an administrative complaint against a corporation which was a registered commodity futures commission merchant. The complaint alleged that the corporation had failed to satisfy the minimum financial requirements established by the Department and sought to revoke or suspend the corporation’s registration. Butz, 438 U.S. at 481, 98 S.Ct. at 2897. After additional investigation, an amended complaint was issued and a hearing was held before the Department’s chief hearing officer, who recommended sustaining the complaint. Butz, 438 U.S. at 481, 98 S.Ct. at 2898. The corporation subsequently filed a § 1983 suit in federal district court naming the chief hearing officer and others involved in the investigation, issuance, and review of the complaint as defendants. Butz, 438 U.S. at 481-82, 98 S.Ct. at 2898.

¶18 The Supreme Court observed that the “conflicts which federal hearing examiners seek to resolve are every bit as fractious as those which come to court[,]” often resulting in post-adjudication disappointment and associated venting by the losing party similar to those which follow adverse judicial determinations. Butz, 438 U.S. at 513, 98 S.Ct. at 2914 (citation omitted). It also observed that federal administrative law provides many of the same safeguards as are available in the judicial process, such as the adversarial nature of the proceedings, the insulation of the trier of fact from political influence, and the requirement that each party have the opportunity to present oral and documentary evidence. Butz, 438 U.S. at 513, 98 S.Ct. at 2914 (citations omitted). Moreover, the Supreme Court noted that both the role and the powers of a modern federal hearing examiner-to rule on motions, issue subpoenas, regulate the course of the proceeding and make decisions via findings of fact and conclusions of law-are functionally comparable to those of a judge. Butz, 438 U.S. at 513, 98 S.Ct. at 2914 (citation omitted). For those reasons, the Supreme Court ultimately held that federal hearing examiners performing agency adjudicatory functions are entitled to absolute immunity from liability for damages for their judicial acts. Butz, 438 U.S. at 514, 98 S.Ct. at 2915.

¶19 The Supreme Court’s reasoning in Butz is equally appropriate in the present case involving DOL hearing examiner Maronick. The proceedings before state hearing examiners are adversarial in nature. See § 2-4-102(4), MCA. In addition, state hearing examiners generally have the power to issue subpoenas, regulate the course of hearings, and provide for the taking of depositions. Section 2-4-611(3), MCA. They also have the authority to render or recommend decisions and must issue findings of fact and conclusions of law in support of their decisions. See §§ 2-4-611, 2-4-614(1)(f), and 2-4-623, MCA; see also § 39-51-2402 and 39-51-2403, MCA. Furthermore, the DOL’s hearing examiners or appeals referees must be impartial, salaried employees. Section 39-51-305, MCA. We conclude, therefore, that the DOL’s hearing examiners perform adjudicatory functions comparable to those performed by judges under similar safeguards. As a result, we further conclude that those hearing examiners are entitled to absolute judicial immunity when acting in their adjudicatory capacities. The question remains whether Maronick was acting in an adjudicatory capacity when he ruled on McGregor’s motion to preclude Steele from representing Log Homes in the contested administrative hearing.

¶20 It cannot be disputed that ruling on a motion in a proceeding to adjudicate legal rights and liabilities is a judicial function whether it is performed by a judge in court or a hearing examiner in a contested administrative proceeding. Nor can it be disputed that Maronick’s act of ruling on a pending motion was within the authority granted him under § 2-4-611(3), MCA, to regulate the course of the proceedings before him. That Maronick enforced § 37-61-201, MCA, against Steele, but not against other CPAs, does not change the fundamental judicial nature of Maronick’s action in ruling on McGregor’s motion. Judicial immunity “is dependent on the challenged conduct being an official judicial act within [the judge’s] statutory jurisdiction, broadly construed.” Dennis v. Sparks (1980), 449 U.S. 24, 29, 101 S.Ct. 183, 187, 66 L.Ed.2d 185, 190 (citations omitted). It is not dependent on acting correctly. Indeed, a person acting in a judicial capacity will not be deprived of immunity because he or she acted maliciously, mistakenly, or in excess of authority. See Stump v. Sparkman (1978), 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331, 339 (citation omitted).

¶21 Steele argues, however, that Maronick’s action of precluding him from representing clients was a legislative, rather than a judicial, action and, as a result, that Maronick is not entitled to judicial immunity. He relies on Supreme Court of Va. v. Consumers Union (1980), 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641, but his reliance is misplaced.

¶22 In Consumers Union, the Supreme Court addressed whether the Virginia Supreme Court (Virginia Court) and its chief justice were immune from suit in a § 1983 action “challenging the Virginia Court’s disciplinary rules governing the conduct of attorneys....” Consumers Union, 446 U.S. at 721, 100 S.Ct. at 1969. The Supreme Court concluded, inter alia, that judicial immunity was not available because the attorney disciplinary rules were propounded in the Virginia Court’s legislative — rather than adjudicative — capacity. Consumers Union, 446 U.S. at 731, 100 S.Ct. at 1974.

¶23 Here, Maronick was not promulgating, or attempting to promulgate, attorney disciplinary rules when he ruled on McGregor’s motion to preclude. Those rules have been promulgated by this Court. Maronick was simply ruling on the merits of a pending motion as a matter of law and, as discussed above, ruling on a motion is a judicial function. Thus, the Consumers Union conclusion on which Steele relies has no application in the present case.

¶24 We hold that Maronick is entitled to absolute judicial immunity from suit for civil damages for the act of ruling on McGregor’s motion to preclude Steele from representing Log Homes.

b. Quasi-judicial Immunity

¶25 The doctrine of immunity evolved to protect not only judges, but also certain participants in the judicial process whose functions are closely associated with those of judicial officers. See Butz, 438 U.S. at 509-10, 98 S.Ct. at 2912-13. Indeed, grand jurors and prosecutors have been extended absolute immunity as “quasi-judicial officers” because their judgments are functionally comparable to those made by judges. The immunity they receive is termed quasi-judicial immunity. Butz, 438 U.S. at 512, 98 S.Ct. at 2913 (citation omitted).

¶26 Quasi-judicial immunity is the same absolute immunity from suit as judicial immunity; it is not a mere defense to liability. Dellenbach, 889 F.2d at 758 (citation omitted). Like judicial immunity, quasi-judicial immunity benefits the public — not the person being sued — by ensuring that quasi-judicial officers exercise their functions unfettered by fear of legal consequences; also like judicial immunity, quasi-judicial immunity extends only to acts within the scope of the actor’s jurisdiction and with the authorization of law. See Turner v. American Bar Ass’n (N.D. Tex. 1975), 407 F.Supp. 451, 482 (citation omitted). To be protected by quasi-judicial immunity, the person asserting the immunity must have acted in a quasi-judicial capacity. See Anderson v. Boyd (9th Cir. 1983), 714 F.2d 906, 909.

¶27 The Named Defendants assert that DOL attorney McGregor is an officer of the court who merely discharged his duty under the Montana Rules of Professional Conduct in notifying the hearing examiner that Steele was practicing law without a license. As a result, they argue that McGregor is entitled to absolute quasi-judicial immunity. We agree.

¶28 Article VII, Section 2(3) of the Montana Constitution expressly authorizes this Court to make rules governing the conduct of attorneys in this state. Indeed, we have interpreted that provision as vesting this Court with the exclusive authority to make such rules regulating attorneys, who are officers of the court. Harlen v. City of Helena (1984), 208 Mont. 45, 49-50, 676 P.2d 191, 193 (citations omitted). We exercised that constitutional authority by issuing our Order Adopting Rules of Professional Conduct in Cause No. 84-303 on June 6, 1985. Our order specifically made the Montana Rules of Professional Conduct (M.R.Prof’l Conduct) applicable to all members of the State Bar, which includes all persons admitted to the practice of law in Montana. See In re Unified Bar of Montana (1975), 165 Mont. 1, 2-3, 530 P.2d 765, 765.

¶29 Rule 5.5(b), M.R.Prof’l Conduct, prohibits an attorney from assisting “a person who is not a member the bar in the performance of activity that constitutes the unauthorized practice of law.” McGregor is an attorney subject to the Rules of Professional Conduct. It was McGregor’s opinion that Steele’s representation of Log Homes at the DOL hearing would constitute the practice of law by Steele, who is not an attorney. Thus, as McGregor saw it, such representation by Steele would constitute the “unauthorized practice of law” as that phrase is used in Rule 5.5(b), M.R.Prof’l Conduct.

¶30 Under these circumstances, attorney McGregor was required by Rule 5.5(b) to refrain from assisting Steele in what McGregor perceived to be the unauthorized practice of law. He met that court-ordered obligation by moving to preclude Steele’s representation of Log Homes. His motion was within his jurisdiction as a lawyer and authorized by our order promulgating the conduct rules and, specifically, by Rule 5.5(b), M.R.Prof’l Conduct. We conclude that McGregor was acting as an officer of the court when he moved to preclude Steele from representing Log Homes and, therefore, that his motion was a quasi-judicial act carrying out this Court’s order and directives in an area within our exclusive purview. To conclude otherwise would produce the anomalous and untenable result of subjecting an attorney acting in direct response to an order of this Court to legal consequences. We hold, therefore, that McGregor is entitled to absolute quasi-judicial immunity from suit for civil damages for his action in moving to preclude Steele from representing clients in DOL proceedings.

¶31 Because Maronick and McGregor are entitled to judicial and quasi-judicial immunity, respectively, we hold that the District Court did not err in dismissing Steele’s complaint for failure to state a claim upon which relief could be granted.

¶32 Affirmed.

JUSTICES NELSON, HUNT and REGNIER concur.

JUSTICE TRIEWEILER

specially concurring.

¶33 I concur with the majority’s conclusion that defendant Joseph V. Maronick is entitled to judicial immunity from liability for the acts complained of by the plaintiff, Robert G. Steele. However, I disagree that judicial or quasi-judicial immunity applies to defendant Daniel R McGregor who was merely a state attorney acting in a non-judicial, adversarial capacity when he moved to have Robert B. Steele disqualified from representing Neville Log Homes.

¶34 I do, however, specially concur with the result of the majority opinion. I conclude that McGregor was entitled to qualified immunity pursuant to Harlow v. Fitzgerald (1982), 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396. In this case, based on rules of this Court pertaining to unauthorized practice of law, and based on advice from the Commission on the Unauthorized Practice of Law, McGregor could reasonably assume there was an ethical basis for challenging Steele’s representation, even though other non-lawyers had been permitted to represent clients in the same proceedings in the past. Pursuant to Harlow, government employees are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. I conclude that the allegations in this case are insufficient under the circumstances in this case to establish that McGregor violated clearly established statutory or constitutional rights about which a reasonable person would have known.

¶35 For these reasons, I would affirm the judgment of the District Court, and specially concur with the majority opinion.


author: JUSTICE LEAPHART

text:
    RANDY SMITH, Petitioner and Appellant, v. BOARD OF HORSE RACING, Respondent and Respondent.
    No. 97-699.
    Submitted on Briefs March 26, 1998.
    Decided April 30, 1998.
    1998 MT 91.
    55 St.Rep. 363.
    956 P.2d 752.
    288 Mont. 249.
    For Appellant: Peter Michael Meloy; Meloy & Morrison, Helena.
    For Respondent: Carol Grell, Special Assistant Attorney General, Department of Commerce, Board of Horse Racing, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Randy Smith (Randy) appeals from the decision of the First Judicial District Court, Lewis and Clark County, affirming the decision of the Board of Horse Racing (Board). Randy asserts that Rule 8.22.302, ARM, which requires that the Board defer to a steward’s decision disqualifying a racehorse, deprives him of due process. The District Court held that Randy failed to make an affirmative showing that he was denied due process and affirmed the decision of the Board. We reverse.

Background

¶2 Mickey’s Hot Sauce, a thoroughbred race horse owned and trained by Randy, entered and ran as the number 1 horse in a feature race at the Budweiser Derby held at the Montana State Fair. This race was a “stakes race” which requires each participant to pay a series of fees to enter the race. The payments are distributed among the top finishers in the race. Mickey’s Hot Sauce came in first in the eleventh race, but was disqualified following the protests of the trainers of the number 6 and number 7 horses. The protesting trainers contended that when Mickey’s Hot Sauce was approaching the final turn heading into the stretch, the horse moved to the rail without having sufficient room. This move caused the jockeys of the number 6 and number 7 horses to “check” or pull back on their horses.

¶3 When a protest is filed, the stewards are vested with authority to rule on the protest by reviewing video tape replays of the race. This process occurs immediately after the race so that winning wagers can be paid. The State Fair race track has three camera stations, a “head-on” view at the starting gate, a “backside” view behind the gate, and a “pan view” from the top of the grandstand which simulates the view observed by the racing fans. For some unexplained reason, the “head-on” and “backside” views were not available for the eleventh race. The stewards viewed the “pan view” replay which showed a parallel view of the horses at the time of the alleged interference by Mickey’s Hot Sauce. The stewards, after viewing the tape and without consulting with Randy, determined that Mickey’s Hot Sauce obstructed the other horses and disqualified Mickey’s Hot Sauce. As a result, Randy lost the first place purse.

¶4 In the event an owner is dissatisfied with the stewards’ ruling, he may appeal the decision to the Board. Randy appealed the stewards’ decision. The Board held an en banc hearing pursuant to the contested case provisions of the Montana Administrative Procedure Act. The Board determined that Rule 8.22.302, ARM, precluded it from substituting its judgment for that of the stewards on questions of fact and voted to affirm the stewards’ decision. Randy appealed the Board’s decision to the District Court asserting that his due process rights had been violated by the Board’s deference to the stewards’ decision. The District Court found that, since Randy was allowed meaningful participation in the Board hearing he was not deprived of due process. The District Court affirmed the decision of the Board. Randy appeals the District Court’s decision to this Court. Randy presents one issue on appeal: Did the Board of Horse Racing deprive Randy of due process by deferring to the stewards’ decision pursuant to Rule 8.22.302, ARM?

Discussion

¶5 This Court’s standard for reviewing a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. The District Court concluded that Randy was allowed meaningful participation in the case and thus was not denied due process. We review this conclusion to determine whether the District Court properly interpreted Montana’s constitutional guarantee to due process.

¶6 Rule 8.22.302, ARM, provides that “[o]n review of a stewards’ decision disqualifying a horse in a race, the board shall not substitute its judgment for (second guess) that of the stewards as to the weight of the evidence on questions of fact.” State steward Bob Bird, who appeared at the Board hearing, reviewed the video tape and the stewards’ decision that Mickey’s Hot Sauce interfered with the number 6 and number 7 horses in the far turn of the eleventh race. In contrast, Randy testified that Mickey’s Hot Sauce was running in a straight pattern, maintained his path and did not interfere with the other horses. The Board’s findings of fact and conclusions of law indicate that pursuant to Rule 8.22.302’s requirement that, as to questions of fact, the Board not substitute its judgment for that of the stewards, the Board was required to accept the stewards’ findings as to the facts of the race over the testimony of Randy. As a result, the Board affirmed the decision of the stewards to disqualify Mickey’s Hot Sauce.

¶7 The District Court determined that Randy “was allowed meaningful participation in the case” because he was allowed to testify and cross-examine the steward. The District Court further determined that Randy had the burden of showing that the procedure used by the Board somehow violated his rights and concluded that Randy failed to make an affirmative showing that he was deprived of due process.

¶8 Randy argues that it was not the “procedure” used by the Board at the hearing, but rather, the Board’s interpretation of Rule 8.22.302, ARM, as requiring deference to the stewards’ determination of the facts that deprived him of due process. In other words, Randy argues that since the issue of whether Mickey’s Hot Sauce interfered with the other horses was one of fact, and since Rule 8.22.302, ARM, requires that the Board defer to the stewards’ determination on questions of fact, there was no point in having a Board hearing and allowing Randy to present evidence because, in accordance with the Rule, the evidence necessarily fell on deaf ears. By that point, the decision was a fait accompli.

¶9 Moreover, Randy asserts that he should have been allowed to discuss the decision with the stewards on the day of the race. The trainers of the number 6 and number 7 horses were allowed to present their arguments to the stewards, but Randy, who was disqualified, was not even contacted or given an opportunity to present his argument before the stewards made their decision. Thus, Randy argues that he was not given a meaningful opportunity to be heard on the day of the race when the stewards made their decision or at the hearing when the Board simply deferred to the decision of the stewards. Randy, owner of “Mickey’s Hot Sauce,” cites Mick Jagger and the Rolling Stones for the proposition that “You can’t always get what you want, But if you try sometimes you just might find You’ll get what you needl” Although it is somewhat daunting to contemplate the needs of a steed named “Mickey’s Hot Sauce,” for purposes of this appeal we presume that what he needs is a hearing.

¶10 The State argues that Randy was accorded due process of law in that he was allowed to appeal, was given proper notice of the hearing including the date, time, and place of the hearing and fully participated in the process at the Board level. Accordingly, the State contends that the District Court correctly affirmed the Board.

¶11 The State’s position, however, fails to consider the fact that Randy was denied any opportunity to be heard by the persons making the final decision on the facts, i.e., the stewards. The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” Connell v. State, Dept. of Social Services (1997), 280 Mont. 491, 496, 930 P.2d 88, 91; Small v. McRae (1982), 200 Mont. 497, 506, 651 P.2d 982, 987. Due process is not a fixed concept as the State would have us believe, “rather, is one which must be tailored to each situation in such a way that it meets the needs and protects the interests of the various parties involved.” Small, 651 P.2d at 988. Furthermore, “due process mandates that an administrative hearing will constitute a fair trial, conducted in accordance with fundamental principles of fair play and applicable procedural standards established by law.” Connell, 930 P.2d at 91 (citation omitted).

¶12 We determine that the stewards’ failure to contact Randy regarding their decision the day of the race denied Randy an opportunity to be heard. Moreover, the Board’s deference to the stewards’ determination of the facts, although in accordance with Rule 8.22.302, ARM, resulted in a hearing which violated fundamental principles of fair play Rule 8.22.302’s requirement that the Board defer to the stewards on questions of fact is unconstitutional as applied to a situation such as this where the stewards made their factual determination without affording both sides an opportunity to be heard. Such deference is only appropriate if the stewards have weighed the factual contentions of both sides of the dispute. When, as here, the stewards have not given both sides an opportunity to be heard, the Board should not defer to the stewards. Rather, it should conduct a de novo hearing and make its own findings of fact. Ultimately, there is no guarantee that Randy will get what he “wants.” If not, he, like Mick Jagger, will be lamenting “I can’t get no satisfaction.” Although due process does not guarantee “satisfaction,” it does guarantee that he be allowed a chance to make out a case for satisfaction. We reverse the decision of the District Court and remand this matter to the Board for a de novo administrative hearing.

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


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL C. HEGG, Defendant and Appellant.
    No. 97-217.
    Submitted on Briefs February 18, 1998.
    Decided April 30, 1998.
    1998 MT 100.
    55 St.Rep. 391.
    956 P.2d 754.
    288 Mont. 254.

      For Appellant: Matthew J. Wald; Attorney at Law; Miles City.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin, Assistant Attorney General; Helena; Garry P. Bunke, Custer County Attorney; Miles City.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 The defendant, Michael C. Hegg, was charged in the District Court for the Sixteenth Judicial District in Custer County with multiple drug-related offenses, including criminal forfeiture. After the State presented its case at trial, Hegg moved to dismiss the criminal forfeiture charge. The District Court denied the motion, and the jury convicted Hegg of all counts. Hegg appeals the denial of his motion to dismiss. We reverse in part the judgment of the District Court.

¶2 The sole issue on appeal is whether the District Court erred when it held that there was sufficient evidence for the jury to have found beyond a reasonable doubt that Hegg owned or possessed property subject to criminal forfeiture and denied Hegg’s motion to dismiss.

FACTUAL BACKGROUND

¶3 On July 21, 1995, Montana law enforcement officers searched Michael Hegg’s house in Miles City. The warrant pursuant to which they did so had been obtained in reliance on a statement from another individual that Hegg supplied her with drugs.

¶4 The officers found and seized quantities of marijuana, methamphetamine, and hashish. In addition, they seized $7897 in cash, numerous loaded guns, a coin collection, a safe, and three scales. They arrested Hegg that same day.

¶5 On August 21,1995, Hegg was charged by information with four counts of felony criminal possession with intent to sell, pursuant to § 45-9-103, MCA, one count of misdemeanor criminal possession of drug paraphernalia, pursuant to § 45-10-103, MCA, and one count of felony criminal forfeiture, pursuant to § 45-9-206, MCA. Two counts of felony criminal possession with intent to sell were eventually dropped in an amended information. The criminal forfeiture count alleged that Hegg “knowingly possessed, owned, used, or attempted to use property that is subject to criminal forfeiture that was used to facilitate a violation of 45-9-103, and/or intended for use in manufacturing, preparing, cultivating, compounding, processing, delivering, importing, or exporting a dangerous drug in violation of 45-9-103, and/or used as a container for money, raw materials, products, equipment.” It then listed each item of property, including the cash, coins, scales, safe, and guns.

¶6 A three-day jury trial was held in January 1996. The State presented five witnesses, including three officers who were present when Hegg’s house was searched and his property seized, a forensic chemist from the State Crime Lab, and the individual whom Hegg had supplied with drugs. At the close of their testimony, Hegg moved to dismiss the count that he criminally possessed and intended to sell the marijuana found in his possession, based on his assertion that the State had failed to establish that he intended to sell it, and the criminal forfeiture count, based on his assertion that the State failed to connect the property to the drug violations. The District Court denied the motions; however, it deemed the safe and coin collection withdrawn from the items to be forfeited. Hegg presented no witnesses.

¶7 The jury was given a special verdict form that listed each item of property subject to forfeiture. The jury found Hegg guilty of all counts, and determined by the special verdict that every item listed should be forfeited. The District Court sentenced Hegg to ten years for each felony offense, and six months for the misdemeanor offense, all of which were to run concurrently. In addition, the property was ordered forfeited to the State.

DISCUSSION

¶8 Did the District Court err when it held that there was sufficient evidence for the jury to have found beyond a reasonable doubt that Hegg owned or possessed property subject to criminal forfeiture and denied Hegg’s motion to dismiss?

¶9 Pursuant to § 46-16-403, MCA, a district court may, at the close of the State’s case and after a motion from the defendant, dismiss charges against the defendant if the evidence is insufficient to support a conviction. See § 46-16-403, MCA. We review a district court’s refusal to grant a defendant’s motion to dismiss 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. Mum mey (1994), 264 Mont. 272, 276, 871 P.2d 868, 870. Our review is the same as when we consider whether sufficient evidence exists to support a conviction. See State v. Ahmed (1996), 278 Mont. 200, 206, 924 P.2d 679, 683; State v. Richards (1995), 274 Mont. 180, 184, 906 P.2d 222, 224.

¶10 Hegg concedes that there was sufficient evidence to support his conviction of all counts other than criminal forfeiture. Regarding the forfeiture count, however, he asserts that the State failed to present any evidence that the property had been used or that he intended that it be used in a manner that would violate § 45-9-206, MCA, and that the limited circumstantial evidence before the jury was insufficient to satisfy the requirement of a statutory connection between the property and illegal drug activity.

¶11 Section 45-9-206, MCA, states:

(1) A person commits the offense of use or possession of property subject to criminal forfeiture if the person knowingly possesses, owns, uses, or attempts to use property that is subject to criminal forfeiture under this section. A person convicted of the offense of use or possession of property subject to criminal forfeiture shall be imprisoned in the state prison for a term not to exceed 10 years. Upon conviction, the property subject to criminal forfeiture is forfeited to the state and must be disposed of in accordance with the provisions of 44-12-205 and 44-12-206.
(2) The following property is subject to criminal forfeiture under this section:
(a) money, raw materials, products, equipment, and other property of any kind that is used or intended for use in manufacturing, preparing, cultivating, compounding, processing, delivering, importing, or exporting a dangerous drug in violation of 45-9-101, 45-9-103, or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101, 45-9-103, or 45-9-110;
(b) property used or intended for use as a container for property enumerated in subsection (2)(a);
(d) books, records, research products and materials, formulas, microfilm, tapes, and data used or intended for use in connection with a violation of 45-9-101, 45-9-103, or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101, 45-9-103, or 45-9-110;
(e) (i) everything of value furnished or intended to be furnished in exchange for a dangerous drug in violation of45-9-101,45-9-103, or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101, 45-9-103, or 45-9-110; and
(ii) all proceeds traceable to such an exchange;
(f) money, negotiable instruments, securities, and weapons used or intended to be used to facilitate a violation of45-9-101,45-9-103, or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101, 45-9-103, or 45-9-110;
(g) personal property constituting or derived from proceeds obtained directly or indirectly from a violation of 45-9-101, 45-9-103, or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101, 45-9-103, or 45-9-110; and
(3) A conveyance is not subject to criminal forfeiture under this section unless the owner or other person in charge of the conveyance knowingly used the conveyance to violate or knowingly consented to its use for the purpose of violating 45-9-101, 45-9-103, or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101, 45-9-103, or 45-9-110.
(5) Property subject to criminal forfeiture under this section may be seized under the following circumstances:
(a) A peace officer who has probable cause to make an arrest for a violation of 45-9-101, 45-9-103, or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101, 45-9-103, or 45-9-110 may seize a conveyance obtained with proceeds of the violation or used to facilitate the violation and shall immediately deliver the conveyance to the peace officer’s law enforcement agency, to be held as evidence until a criminal forfeiture is declared or release ordered.
(b) Property subject to criminal forfeiture under this section may be seized by a peace officer under a search warrant issued by a court having jurisdiction over the property.

This Court has not yet addressed the applicability of the statute and the State’s burden pursuant to it.

¶12 The State contends here that the mere proximity of the guns, cash, and scales to Hegg’s illegal drugs is sufficient evidence to prove that he used or possessed the items for one of the prohibited purposes. The State concedes that the evidence is circumstantial and that the jury was forced to infer from the items’ presence in the house and its knowledge of the drug trade that the guns, cash, and scales facilitated Hegg’s illegal drug operation in violation of § 45-9-206, MCA.

¶13 It is well-established that circumstantial evidence is sufficient to prove any element of an offense and/or to sustain a conviction. See State v. Treible (1996), 275 Mont. 59, 63, 910 P.2d 237, 239; State v. Mergenthaler (1994), 263 Mont. 198, 204, 868 P.2d 560, 563. It is also well-established that the State must establish each and every element of an offense by proof beyond a reasonable doubt. See State v. Fuller (1994), 266 Mont. 420, 422, 880 P.2d 1340, 1342. We have stated that a jury cannot convict a defendant on the basis of his guilt beyond a reasonable doubt where the evidence only supports a strong probability, a justifiable suspicion, or a shrewd conjecture that he is guilty. See State v. Armstrong (1980), 189 Mont. 407, 413, 616 P.2d 341, 345.

¶14 The amended information alleged, pursuant to the forfeiture statute, that Hegg knowingly possessed, owned, used, or attempted to use property that facilitated his illegal drug activity. The extent of the State’s proof that the property facilitated the illegal drug activity was evidence that the items were either in the house or in Hegg’s immediate possession. We decline, however, to affirm a criminal forfeiture conviction based on what amounts to no more than a justifiable suspicion. The statute does not allow the State to convict a defendant and seize his property without showing that the property was used to facilitate or derived from illegal drug activity. Here, the necessary proof has not been presented.

¶15 None of the witnesses suggested, for example, that the guns were used to protect his illegal operation or to aid in his delivery of illegal drugs, or that the cash that was confiscated from his person was traceable to illegal drug sales, or that the scales reflected the presence of dangerous drugs. They testified only that multiple loaded guns were found throughout the house, that the cash was secured in lockboxes in his house and on his person, and that the scales were located near drugs and drug paraphernalia. We conclude that the State’s suggestion of guilt by association is insufficient to establish beyond a reasonable doubt that a statutory connection exists between the property and the drug activity.

¶16 We recognize that guns, ammunition, cash, and scales might, in fact, be used in connection with an illegal drug operation. However, they are also common items which many Montanans possess and use for lawful purposes. Here, the record reflects that Hegg was employed and that he did not generally use bank accounts. It also reflects that the kind of scales discovered in Hegg’s house are used to prepare ammunition or in work with gemstones, both of which were also found in Hegg’s home. Finally, the record suggests that the majority of the weapons were found in Hegg’s bedroom.

¶17 We recognize that matters of witness credibility and fact-finding are ultimately within the province of the jury. See State v. Harper (1997), [284 Mont. 185], 943 P.2d 1255, 1257. But if the evidence, even when viewed most favorably toward the State, supports no more than a strong probability or a justifiable suspicion, a jury cannot find guilt beyond a reasonable doubt and there is insufficient evidence for a conviction. See Armstrong, 189 Mont. at 413, 616 P.2d at 345.

¶ 18 In order for the State to criminally convict a citizen and deprive him of his property pursuant to § 45-9-206, MCA, we hold that it must establish, whether by direct or circumstantial evidence, a more substantial connection between such common items as the ones at issue here and illegal drug activity than merely their proximity to one another in a residence.

¶19 Our decision is compelled by the well-established principle that the State bears the burden of proving each element of a criminal offense beyond a reasonable doubt. See Fuller, 266 Mont. at 422, 880 P.2d at 1342. As applied to the forfeiture offense charged, that principle requires that the State must prove not only that property has the required statutory connection to illegal drug activity, but that each specific item of property seized is subject to forfeiture.

¶20 The history of § 45-9-206, MCA, clearly reflects that when the Legislature considered the statute, it anticipated that proof beyond a reasonable doubt would be necessary for conviction or forfeiture. See Criminal Forfeiture: Hearing on S.B. 229 Before the House Judiciary Comm., 54th Legislature 24 (March 6, 1995) (statement of Marty Lambert, Gallatin County Attorney); Criminal Forfeiture: Hearing on S.B. 229 Before the Senate Judiciary Comm., 54th Legislature 24 (January 30, 1995) (statement of Karen Townsend, Deputy County Attorney, Missoula County).

¶21 Prior to the criminal forfeiture statute, a defendant’s drug-related property could only be forfeited pursuant to §§ 44-12-101 to -206, MCA, which authorize forfeiture based on a probable cause standard and place the burden on the defendant to rebut the presumption of forfeiture. It is well-established that a reasonable doubt standard creates a greater burden for the State than a probable cause standard. See, e.g., United States v. 316 Units of Mun. Sec. in the Name of Efrain Gonzalez (S.D.N.Y. 1989), 725 F. Supp. 172, 175-76 (because the reasonable doubt burden of proof in criminal cases is greater than the probable cause burden in civil cases, a criminal acquittal has no collateral estoppel effect on the government’s ability to seek civil forfeiture for the same conduct that formed the basis of the criminal allegations). In fact, § 45-9-206, MCA, was enacted to allow the State to seek forfeiture of drug-related property criminally and avoid any challenge to the civil forfeiture statute based on double jeopardy. Accordingly, we recognize the State’s increased burden of proof.

¶22 We acknowledge that the circumstantial evidence in certain cases may be sufficient to prove beyond a reasonable doubt that a connection exists between an item of property and illegal drug activity. However, we conclude that the kind and amount of circumstantial evidence offered in this case is insufficient as a matter of law to warrant the jury’s finding of guilt beyond a reasonable doubt. Were we to conclude otherwise and hold that the State need only identify the presence of certain items in a house to support a jury finding that the property was subject to forfeiture, we would essentially eliminate the increased burden and heightened standard of proof in § 45-9-206, MCA, and permit a jury to convict a defendant based purely on its own speculation as to what kinds of property might facilitate or be the proceeds of illegal drug activity.

¶23 Even on appeal, the State’s argument that there was sufficient evidence to connect the property to illegal drug activity is based not on any legal authority or evidence regarding the specific items’ use in drug activity, but rather on conjecture about how Hegg’s “ramshackle crank house” makes inevitable the conclusion that he must have used the items for drug activity. We specifically reject the State’s assertion that “[t]here is no rational explanation for the [property] except that Hegg used these items in connection with his drug trade.” Even if we view the evidence in a light most favorable to the State, we disagree with this overstatement of the facts. More importantly, our criminal system puts the burden on the State to prove that the items were used in an illegal manner; it is not Hegg’s burden to show that they were used for a lawful purpose.

¶24 Accordingly, we conclude that the jury could not have rationally found beyond a reasonable doubt that the items satisfied the statutory requirements of § 45-9-206, MCA, and constituted property subject to criminal forfeiture. The District Court erred when it denied Hegg’s motion to dismiss on the basis that there was insufficient evidence for a jury to find beyond a reasonable doubt that Hegg’s property was subject to criminal forfeiture.

¶25 We reverse in part the judgment of the District Court and order that it dismiss the criminal forfeiture charge against Hegg. Pursuant to our holding, we also order the State to return the property seized from Hegg.

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