author: JUSTICE HUNT JUSTICE TRIEWEILER JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. JAMES G. BRUMMER, Defendant and Respondent.
    No. 97-097.

    Submitted on Briefs July 23, 1997.
    Decided January 22, 1998.
    1998 MT 11.
    55 St.Rep. 30.
    287 Mont. 168.
    953 P.2d 250.

      JUSTICE TRIEWEILER specially concurs.
    JUSTICE NELSON dissents, joined by CHIEF JUSTICE TURNAGE and JUSTICE GRAY.
    For Appellant: Brant S. Light, Cascade County Attorney, Julie Macek, Jeffrey D. Mora, Dirk M. Sandefur, Deputy County Attorneys, Great Falls.
    For Respondent: Scott A. Albers, Chief Public Defender, Cascade County, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Defendant-Respondent James G. Brummer (Brummer) was charged by information with Sexual Intercourse Without Consent, Aggravated Kidnaping, and Assault. A jury trial was held in the Eighth Judicial District Court, Cascade County, in which Brummer was acquitted of the offenses charged, but found guilty of Kidnaping, a lesser included offense of Aggravated Kidnaping. After the jury’s verdict, but before entering judgment, the District Court, on its own initiative, notified the parties of its intent to order a new trial. Although neither party had made a motion for a new trial, the District Court conducted a hearing on the matter, and ordered a new trial sua sponte. The State of Montana (State) appeals that order. We affirm.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court have authority under § 46-16-702, MCA, to grant a new trial sua sponte?

¶4 2. If so, did the District Court abuse its discretion in ordering a new trial in the interest of justice?

BACKGROUND

The Alleged Offenses

¶5 Most of the facts of this case are disputed. Tina Music (Music) and Jamie McKnight (McKnight) are two long-time friends who lived together with their boyfriends in Great Falls, Montana. On November 27,1995, Music, McKnight, and two male friends, who were not their boyfriends, went out for an evening of socializing. After visiting other bars, the four ended up at Spoon’s Saloon for more drinks and a game of pool. At Spoon’s, McKnight recognized Brummer, who was a prior acquaintance of both McKnight and Music. McKnight knew Brummer as her boyfriend’s former employer, and Music knew Brummer as the owner of the CasCo building, where she had previously rented a wedding chapel. The CasCo building, formerly the Columbus Hospital, had been remodeled into apartment housing, a small convenience store, a restaurant, and a chapel used for weddings and reunions.

¶6 At Spoon’s, Brummer was playing video keno and winning a substantial amount of money when McKnight approached him. During their conversation which lasted several minutes, McKnight reintroduced Music to Brummer, and asked him if he wanted to “party.” Brummer testified that upon McKnight’s introduction, Music stated, “This is my woman, but I want a man tonight,” and that Music and McKnight kissed. Music and McKnight denied making this statement and denied kissing each other.

¶7 Brummer testified that both McKnight and Music knew about his substantial winnings while he was playing keno. He testified that while the women were standing next to him at the keno machine, either McKnight, or Music, or both, made comments similar to “Why can’t we ever win like that?” He also testified that McKnight said, “You’re going to screw around and lose it all. Check it out.” However, McKnight testified that although she stood next to Brummer during their conversation, she was unaware of his substantial winnings. Similarly, Music testified that she was not aware of Brummer’s winnings until later when Brummer cashed out his ticket and she heard the bartender exclaim, “We have a big winner.” Music testified that she knew Brummer was the winner, but did not know how much money he had won.

¶8 In response to McKnight’s question regarding a party, Brummer indicated that he would like to party and invited both McKnight and Music to his living quarters in the CasCo building. Brummer asked McKnight whether she and Music had a ride to which they replied that they did. The two male friends that had accompanied the women were waiting for them outside in the car, apparently unaware of what they were doing. McKnight and Music then went into the bathroom and discussed whether they should go with Brummer. When the women came out of the bathroom, they discovered that their male friends had left the bar without them. The women then asked Brummer for a ride and he agreed. Brummer cashed out his keno ticket for $940.00 and the three left the bar at 2:00 a.m. headed for the CasCo building.

¶9 On the way to the CasCo building, McKnight, Music, and Brummer spoke about Brummer’s marital problems. Brummer testified that the conversation also included the topic of sex. He testified that McKnight stated, “What do you think of my friend? What do you think of Tina? Isn’t she exciting? Everybody in town wants her.” Brummer also testified that both women represented to him that there were no men in their lives. McKnight and Music denied making these statements.

¶10 Once the three arrived at the CasCo building, Brummer showed the women to a room he was using as a bedroom on the second floor. The door to the room had no handle or knob, so Brummer used a screwdriver to open it. McKnight and Music testified that when the door was shut, it was “locked,” and that the screwdriver was required to unlock the door. However, Brummer testified that the door was never locked. Brummer stated that although the door was missing a knob or handle, one could open the door by lifting a little latch within the mechanism. Although Brummer used a screwdriver to lift the latch, he testified that a person could also use his finger.

¶11 Once in the bedroom, McKnight told Brummer she wanted a drink. Brummer led the two women to a closet in the chapel where he stored liquor. McKnight chose what she wanted and the three returned to the bedroom. Then McKnight wanted soda to drink with the liquor. Brummer had a key to the small convenience store located on the first floor of the building. McKnight testified that Brummer gave her and Music the key and that they went down to the store by themselves, took some beverages and vitamins, and returned to the bedroom upstairs. However, Brummer testified that he accompanied the women to the store, unlocked the door, allowed them to get some beverages, and paid for the beverages with store credit. The women chose seven cans of 7-Up and two containers of orange juice totaling $4.70. Brummer testified that on his credit slip, he subtracted the cost of the beverages from his balance of $22.40, and indicated a new balance of $17.20. At trial, Brummer produced the credit slip showing this written computation and the date of the night in question. Brummer also testified that on the way to the store, the two women engaged in a kiss intended to be provocative, but described by Brummer as “disgusting.” Brummer testified that after getting the beverages, he accompanied the women back to his room.

¶12 At the room, Brummer fixed McKnight a drink and asked the women if they wanted to get high. They replied yes and Brummer gave them cocaine to snort. The women also took cocaine orally. Brummer took cocaine via self-injection. McKnight put one of the lines of Cocaine in a small cellophane to take home, but did not tell Brummer about it.

¶13 The bathroom was located a few feet down the hall from Brummer’s bedroom. McKnight testified that she went to the bathroom twice with Music and once or twice alone. The first time McKnight and Music went to the bathroom, Brummer opened the door for them with the screwdriver. McKnight told Brummer she was uncomfortable having the door “locked.” McKnight testified that thereafter, Brummer left the door open, and she could come and go freely. Brummer’s testimony on this point corroborates that of McKnight. However, Music testified that Brummer did not leave the door open, because on McKnight’s third time to the bathroom, Brummer “unlocked” the door for her to go, but told Music she had to wait until McKnight’s return before he would let her go.

¶14 McKnight testified that when she and Music returned from their second bathroom break, Brummer, fully clothed, began rubbing against her legs and chest. She stated that she told him to stop and left for the bathroom again. McKnight stated that upon returning from the bathroom, Brummer resumed rubbing against her and tried to force her head down into his lap. McKnight stated that she pushed him away and told him she had to visit the bathroom. She testified that she opened the door herself, and that instead of going to the bathroom, she left the building. When asked why she left the building, McKnight stated that she felt uncomfortable with Brummer’s advances, and had seen the butt of a gun near the bed. McKnight testified that throughout this ordeal, until she left the room, Brummer left Music alone. She also testified that Brummer was clothed while she was in the room.

¶15 For the most part, Music’s testimony corroborated that of McKnight, but there exist some significant discrepancies. Contrary to McKnight, Music testified that Brummer was wearing only his underwear and socks when he began fondling McKnight. Also contrary to McKnight, Music stated that when McKnight left the room for the last time under the pretense of going to the bathroom, she did not let herself out. Rather, Brummer opened the door for her.

¶16 Brummer’s account of what transpired in the room differs significantly from that of the two women. He testified that when the women returned from the bathroom, they began to “entertain” him. Specifically, he stated that the women engaged in a “strip-tease” dance whereby Music danced while McKnight removed Music’s clothing. Brummer testified that during this dance, McKnight said, “What do you think of my friend? Isn’t she beautiful?” and “You’re going to have to take care of us.” Brummer testified that he then asked, “What are you talking about? A couple hundred dollars? If that’s what you are talking about, no problem,” to which McKnight replied that money was what she was talking about.

¶17 Brummer testified that Music eventually wore only her blue panties, and that both she and McKnight began disrobing him. Brummer stated that he and Music then began dancing and necking when he noticed McKnight sitting on the- heater right next to his pants. Brummer stated that he “knew what [McKnight] was trying to do,” so he picked up his pants, and put them in the corner close to the bed. He then asked Music whether McKnight would leave them alone. Brummer testified that he and Music resumed necking and were about to engage in sexual intercourse when McKnight began to give him oral sex. He testified that she did this several times, and that each time, he and Music told her to stop. Brummer testified that then McKnight told them to turn around on the bed. Once turned around, Brummer’s pants were farthest from his head. Brummer testified that McKnight began to engage in oral sex again, but that the next thing he knew she was gone, and he saw that his pants had been moved. Brummer testified that when McKnight was performing oral sex, she reached around to his pants and stole his keys and money, including the $940.00 in keno winnings.

¶18 McKnight testified that once she left the room, she waited outside for Music to join her. Five to ten minutes went by and Music did not show, so McKnight went and called a cab. The cab took McKnight to her male friend’s house, located one block away from the Sheriff’s office, where she retrieved her purse, keys, and truck. McKnight drove home and discovered a message on her answering machine from Brummer. When McKnight discovered that Music had not yet come home, she called 9-1-1. McKnight admitted that she passed up three opportunities to call 9-1-1 before arriving home.

¶19 Music testified that upon discovering McKnight’s absence, Brummer became angry and cursed McKnight. Music stated that Brummer locked her in the room while he attempted to track down McKnight. Music testified that when Brummer returned shortly thereafter, he grabbed her by the arm, took her into the hallway, and locked her in a closet. Music began pounding on the door. Music stated that after five minutes, Brummer returned, opened the door, put the side of a gun next to her head and told her to be quiet. Music testified that Brummer locked her in the closet again, but that Brummer eventually returned and took Music to the basement boiler room. Music testified that then Brummer pushed her to the filthy, dusty ground and raped her. Music stated that Brummer then took her back to a room on the second floor, injected cocaine, and raped her again. Music testified that she begged him to let her go. She stated that finally he let her go, and she ran home. At trial, Music produced white panties and jeans she allegedly wore on the night in question. However, Music could not explain to the cross-examiner why her clothing was not filthy, or dusty, like the floor where she was allegedly raped.

¶20 Again, Brummer testified to a different turn of events. He agreed that upon discovering McKnight’s absence and his pants laying on the floor, he immediately went to go look for McKnight on foot. However, he testified that when he left, he was in a hurry and left the door wide open. Brummer stated that he was gone for about fifteen minutes and that Music could have left the room at any time. Brummer was unsuccessful in locating McKnight.

¶21 When Brummer returned to the CasCo building, he discussed with Music the stolen money and keys. Brummer testified that Music told him she believed McKnight would steal his keys, but not his money. Music told Brummer that McKnight had several times before stolen keys from people with the intent to rob them later. Brummer testified he then asked Music for McKnight’s address and telephone number, but that Music refused to give him the information. Brummer stated he then walked Music to the elevator and told her he was going to call the police. Brummer testified that Music, fearful of being charged with a narcotics violation, said, “I’ll do anything. But don’t call the police.” Brummer testified that Music eventually gave him the information, and offered to go and get his keys and money from McKnight if he would lend her his van. Brummer refused. Again, Music said she would do anything if he did not involve the police. Brummer testified that Music then agreed to go into a closet and wait while he attempted to locate McKnight by car.

¶22 Brummer testified he drove to McKnight’s house, but saw no tire tracks or footprints in the snow around the house. He then drove back to the CasCo building. At the CasCo building, Brummer went to the closet, heard Music pounding on the door, and let her out. Brummer testified that at that point, “It was over... I was exhausted.” He stated that Music was relieved he had decided not to involve the police. Brummer testified that he told Music to pick up McKnight’s coat and cigarettes and that he would drive her home.

¶23 Brummer stated that on their way out of the building, he decided to go down to the boiler room. Brummer testified it was his practice to conserve energy by turning down the heat on weekends when his commercial tenants did not do business. Thus, Brummer stated, he wanted to go down to the boiler room to make sure the boiler had water in it and the timer was set correctly for Monday morning. Brummer testified that Music accompanied him to the basement, kissed him affectionately, and told him that she was romantically interested in him. Brummer stated that he began to have romantic feelings for Music too. Brummer testified that Music was scared to be alone in the basement and wanted to go with him to the boiler room. Brummer testified that despite his warnings that the boiler room was filthy and dangerous, Music insisted on going. Brummer took Music with him to the boiler room. He testified that aside from checking the boiler and the timer, and showing Music the incinerator, nothing else happened in the boiler room.

¶24 Upon returning from the boiler room, Brummer made a phone call to McKnight and left a message on the answering machine, stating that he wanted his money back. Brummer testified that he and Music then went to the bathroom, and then into a small room with a bed and twice engaged in consensual sexual intercourse. Brummer testified that there was an old, clipless gun laying on the window sill of the bathroom, but that he told Music it did not work. Brummer stated he never picked up the gun, and never threatened Music with the gun.

¶25 Brummer testified that after having sex with Music, he drove her home in his van. Officers Stimac and Thatcher testified that when they responded to the CasCo building, they saw Music and Brummer walking with a normal expression, no sign of trouble between them, no disheveled clothing, and no sign of fright. Brummer testified that on the way to Music’s home, he and Music talked about going on a cruise together someday. Brummer testified that Music told him she was tired of the guys she had been dating and was romantically interested in him. Brummer testified that Music requested to be dropped off a block from her home, and that when he did so, she kissed him and told him she’d have his money and keys to him the next day. Nothing happened the next day. Brummer testified that he called McKnight twice and asked for his money back, to which she allegedly responded, “Brummer, this is a two-way street... You raped that girl. And you’re in big trouble.”

The Trial

¶26 On November 28,1995, Brummer was charged by information with Sexual Intercourse Without Consent, Aggravated Kidnaping, and Assault, all of which are felony offenses. Brummer pleaded not guilty to all three charges and a jury trial was set for October 22-31, 1996. During pre-trial preparations, the District Court ordered the State and Brummer to submit jury instructions in accordance with the court’s standard “10-7-4 time line.” Under this time line, the State was required to serve its proposed jury instructions ten days before trial, Brummer was required to serve his proposed instructions seven days before trial, and any rebuttal was to be made four days before trial. At this time, the court also ordered that absent a showing of good cause for failing to provide an instruction prior to trial, no instruction would be given which was not presented prior to trial.

¶27 On October 11, 1996, in compliance with the 10-7-4 time line, the State submitted its 29 proposed jury instructions for the three offenses charged. The State did not include any instructions for lesser included offenses. Given the State’s omission of lesser included offense instructions, and the court’s firm order regarding instructions, Brummer assumed the State was proceeding on an “all-or-nothing” strategy. Likewise, Brummer adopted the same all-or-nothing strategy for his defense, and, as a result, did not offer a lesser included offense instruction.

¶28 At trial, after the close of the evidence, the court held an informal, off-the-record conference to discuss the proposed instructions. At that time, the State offered an instruction on Kidnaping, a lesser included offense of Aggravated Kidnaping. Brummer objected on the ground that the lesser included instruction was without good cause and improper under the court’s pre-trial order. The next day, the court held a formal, on-the-record instruction settlement conference. Again, the State offered the lesser included offense instruction and Brummer objected on several grounds, one of which included that he would be prejudiced by such a late request. Brummer argued that having shown no good cause for failing to offer the lesser included instruction at the pre-trial stage, the State should not be allowed to change its theory after the defense had already presented its case in reliance on the State’s original theory. Despite Brummer’s objection, the court gave the Kidnaping instruction. At that time, neither Brummer nor the court had researched lesser included offenses. Therefore, an instruction on the still lesser included offense of misdemeanor Unlawful Restraint was not given.

¶29 On October 30, 1996, the jury acquitted Brummer of all offenses charged, but found him guilty of the lesser included offense of Kidnaping. Two days later, the court, on its own initiative, notified the parties of its intent to order a new trial. On November 8, 1996, the court held a hearing on the matter. Over the State’s objections, the court ordered a new trial, sua sponte, based on its conclusions that (1) the State’s offer of a lesser included instruction at the close of the evidence unfairly prejudiced the defendant, and (2) the court erred in failing to instruct the jury, sua sponte, on the lesser included offense of misdemeanor Unlawful Restraint. The State appeals that order.

DISCUSSION

Issue 1

¶30 Did the District Court have authority under § 46-16-702, MCA, to grant a new trial sua sponte?

¶31 This issue presents a question of statutory interpretation which is reviewed as a question of law. State v. Bell (1996), 277 Mont. 482, 486, 923 P.2d 524, 526. Thus, we determine whether the District Court’s interpretation of law was correct. Bell, 923 P.2d at 526.

¶32 In Montana, the statute under which a new trial may be granted is § 46-16-702, MCA, which provides:

Motion for a new trial. (1) Following a verdict or finding of guilty, the court may grant the defendant a new trial if required in the interest of justice.
(2) The motion for a new trial must be in writing and must specify the grounds for a new trial. The motion must be filed by the defendant within 30 days following a verdict or finding of guilty and be served upon the prosecution.
(3) On hearing the motion for a new trial, if justified by law and the weight of the evidence, the court may:
(a) deny the motion;
(b) grant a new trial; or
(c) modify or change the verdict or finding by finding the defendant guilty of a lesser included offense or finding the defendant not guilty.

¶33 The State argues that the District Court erred in granting a new trial, sua sponte, because under the plain language of § 46-16-702, MCA, the District Court has no authority to grant a new trial sua sponte. The State points to subsections (2) and (3) of the statute, and contends that the words “the motion,” and “the motion must be filed by the defendant” specifically mandate that before a court may grant a new trial, the defense must make a proper request. As further support for its argument, the State cites the following two canons of statutory construction: (1) § 1-2-101, MCA, which provides that “where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all;” and (2) § 1-2-102, MCA, which provides that “a particular intent will control a general one that is inconsistent with it.” Based on these canons, the State summarily argues that a court has no authority under § 46-16-702, MCA, to grant a new trial in the absence of a proper defense motion.

¶34 Brummer argues that the State’s position ignores the plain language of subsection (1) of § 46-16-702, MCA. He argues that subsection (1) specifically authorizes a court to grant a new trial, sua sponte, when required in the interest of justice. Brummer also cites Baxter v. Archie Cochrane Motors, Inc. (1995), 271 Mont. 286, 287-88, 895 P.2d 631, 632, for the long-standing rule that “[t]he decision to grant or deny a new trial is within the sound discretion of the trial judge and will not be disturbed absent ... abuse of that discretion.” Finally, Brummer argues that the State’s narrow interpretation of § 46-16-702, MCA, is inconsistent with § 46-1-103, MCA, the statute outlining the general purposes and construction of the rules of criminal procedure. That statute provides:

Scope-purpose-construction. (1) This title governs the practice and procedure in all criminal proceedings in the courts of Montana except where provision for a different procedure is specifically provided by law.
(2) This title is intended to provide for the just determination of every criminal proceeding. The purposes of this title are to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay.
(3) Any irregularity in a proceeding specified by this title that does not affect the substantial rights of the accused must be disregarded.

Brummer contends that the District Court’s granting of a new trial sua sponte was consistent with the Montana Legislature’s stated goals of simplicity, fairness, and elimination of unnecessary expense and delay.

¶35 We hold that under § 46-16-702, MCA, the District Court had authority to order a new trial sua sponte. However, while we agree with Brummer’s ultimate position, we do not agree with most of his underlying analysis. First, in our view, the language of § 46-16-702, MCA, is anything but plain. While the parties here have advanced the “plain language” argument as support for their respective positions, they have focused only on the language of particular subsections of § 46-16-702, MCA, rather than on the language of the statute as a whole. The fact that subsections (1), (2), and (3) of the statute contain plain language individually, does not necessarily mean that the statute as a whole is plain. Indeed, here we have a situation where subsections (2) and (3) speak of “the motion” as if it were required, yet subsection (1) seems to authorize a court to order a new trial on its own motion. The statute does not specifically require a proper defense motion, but it also does not specifically authorize a court to order a new trial without a proper defense motion. Thus, it appears that § 46-16-702, MCA, is ambiguous.

¶36 Second, Brummer’s reliance on Baxter is misplaced. Baxter was a civil case in which we interpreted Rule 59(e), of Montana’s civil code, not § 46-16-702 of the criminal code, which is at issue in this case. Baxter, 895 P.2d at 633. In Baxter, a trial court’s authority to order a new trial sua sponte was never at issue because Rule 59(e), M.R.Civ.P., specifically provides a trial court with that authority. Rather, at issue in Baxter was simply whether the court erred in not giving the parties notice and an opportunity to be heard regarding the court’s order for a new trial sua sponte. Moreover, the above rule quoted from Baxter expresses a standard of review of a court’s decision to grant a new trial; it does not answer the question whether a court has the power to grant a new trial sua sponte.

¶37 Because the issue is one of first impression in Montana, and because the plain language analysis fails to adequately resolve the question, we look elsewhere for guidance.

¶38 Generally, courts of common law jurisdiction have, by virtue of their inherent powers, authority to set aside a verdict and grant a new trial, unless such authority is restricted or withheld by statute. See 23A C.J.S. New Trial § 1427. This authority embodies “the equitable concept that neither a wronged litigant nor society itself can afford to be without some means to remedy a palpable miscarriage of justice.” See 58 Am Jur 2d New Trial § 11. For criminal cases, most courts, if not all, are authorized by statute to grant new trials, and the statute serves to define the limits on the scope of their authority to grant new trials. See 23A C.J.S. New Trial § 1427.

¶39 Under the Federal Rules of Criminal Procedure, Rule 33 provides that “[t]he court on motion of a defendant may grant a new trial... in the interest of justice.” (Emphasis added.) On the basis of this statute, federal courts have held that a trial judge is without authority to order a new trial, sua sponte. See United States v. Green (D.C. Cir. 1969), 414 F.2d 1174, 1175.

¶40 Similarly, under the California Penal Code, § 1181 provides that “[w]hen a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial ....” (Emphasis added.) In People v. Rothrock (Cal.1936), 63 P.2d 807, 808-09, the California Court of Appeals held that under § 1181, a trial court is without authority to order a new trial on its own motion.

¶41 In contrast, Rule 33 of the Colorado Rules of Criminal Procedure provides:

(a) The party claiming error in the trial of any case may move the trial court for a new trial or other relief.
(c) The court may grant a defendant a new trial if required in the interest of justice. The motion for a new trial shall be in writing....

The Supreme Court of Colorado held that a trial court may order a new trial sua sponte if required in the interest of justice. Lowe v. People (Colo. 1925), 234 P. 169, 172-73.

¶42 Similarly, the Pennsylvania Rules of Criminal Procedure, Rule 1405(B) provides that “[u]nder extraordinary circumstances, when the interests of justice require, the trial judge may, before sentencing, hear an oral motion ... for a new trial.” The Superior Court of Pennsylvania has held:

If a trial court determines that the process has been unfair or prejudicial, even where the prejudice arises as the result of actions by the court, it may, sua sponte, grant a new trial in the interest of justice.

Commonwealth v. Riley (Penn. 1994), 643 A.2d 1090, 1093.

¶43 Also, § 15-17-5 of Alabama’s Code of Criminal Procedure provides:

On motion filed within 30 days from entry of judgment, a new trial may be granted for the following grounds: (1) Irregularity in the proceedings of the court, jury, or state or any order of court or abuse of discretion by which the defendant was prevented from having a fair trial [.]

In interpreting the statute, the Alabama Court of Appeals held:

[IJnsofar as the parties litigant are concerned, a motion for a new trial must be in writing. A court itself of course possesses the inherent right to ex mero motu grant new trials when the ends of justice so demand if such action is timely taken.

Pendley v. State (Ala. Ct. App. 1951), 53 So.2d 811, 813.

¶44 Finally, § 99-17-47 of the Mississippi Code Annotated provides that “[e]very new trial granted shall be on such terms as the court shall direct.” In deciding whether a trial court could set aside a verdict and order a new trial on its own motion, the Mississippi Supreme Court recognized a court’s inherent power to grant new trials on its own motion and held:

The attention of the court has been called to no authority in this State, either constitutional, statutory, or judicial decision, which prohibits a trial judge, on his own motion, from setting aside a verdict and awarding a new trial in a criminal case where he is convinced that prejudicial error had been committed, or that the verdict was not supported by the evidence.

Sanders v. State (Miss. 1961), 125 So. 2d 923, 926.

¶45 Turning to the instant case, we believe that § 46-16-702, MCA, is more similar to the statutes of Colorado, Pennsylvania, Alabama, and Mississippi, than to the federal or California statutes. Unlike the federal and California statutes, Montana’s statute, § 46-16-702, MCA, does not specifically withhold the inherent power of the trial court to grant a new trial sua sponte. Like Sanders, our attention has not been called to, nor has our research revealed, any authority in this state, constitutional, statutory, or judicial decision, which usurps the inherent power of the trial court to set aside a verdict and order a new trial, sua sponte, in the interest of justice.

¶46 In construing § 46-16-702, MCA, we cannot ignore an elementary rule of statutory construction:

[T]he office of the judge is simply to ascertain or declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

Section 1-2-101, MCA. Thus, absent a lawful enactment by the Montana Legislature withholding the trial court’s inherent power to grant a new trial sua sponte, the court’s power stands. Under this construction, all subsections of § 46-16-702, MCA, are given effect: so far as the defendant is concerned, he may move for a new trial, and if he so moves, his motion must be in writing and filed within 30 days of the verdict or finding of guilty; however, the right of the defendant to move for a new trial does not affect the court’s inherent power to order a new trial sua sponte when required in the interest of justice.

¶47 We also note that our construction of § 46-16-702, MCA, is consistent with the purposes and construction of the rules of criminal procedure as stated by the Montana Legislature: “to provide for the just determination of every criminal proceeding ... [and] to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay.” Section 46-1-103, MCA.

Issue 2

¶48 Given the District Court’s authority to grant a new trial sua sponte, did the District Court abuse its discretion in exercising that authority and ordering a new trial in the interest of justice?

¶49 The standard of review of a district court’s decision to grant or deny a new trial is whether the court abused its discretion. State v. Swan (1996), 279 Mont. 483, 487-88, 928 P.2d 933, 936.

¶50 The State argues that the court abused its discretion in granting a new trial because its decision to do so was based on an erroneous conclusion of law. The State points to the court’s November 1, 1996 Order notifying the parties of its intent to grant a new trial on the ground that the court failed to give an instruction, sua sponte, on misdemeanor Unlawful Restraint, a lesser included offense of Aggravated Kidnaping. The State correctly notes that under § 46-16-607, MCA, and the Commission Comments thereunder, a defendant is entitled to a lesser included offense instruction only when there is a proper request by one of the parties. The State argues that because § 46-16-607, MCA, precludes a court from giving a lesser included offense instruction sua sponte, the court’s conclusion that it should have done so was an erroneous conclusion of law and, therefore, an improper basis for granting a new trial.

¶51 Brummer counters that the State has missed the true character of the court’s basis for granting a new trial. He argues that the court’s basis for granting a new trial was a sense of injustice on the grand scale. As support for his argument, Brummer quotes at length from the transcript of the hearing in which the court gave more detailed reasons for granting a new trial:

There was no question of the intent of the two women in this case ... to commit felony theft, as far as the court was concerned, based on the evidence.
Both Music and the defendant said there was sexual intercourse. Both were seen together by two witnesses in a position that didn’t involve force. And for that reason, I think the unlawful restraint should have been given.... [T]he net effect is — that’s really disturbing me, is he’s been confined ten months and under the gun for over a year, and he’s looking at another felony charge [kidnaping], which is selective or discriminatory prosecution ....
The overall feeling on it is, I think from an innate sense of justice, he’s entitled to a new trial on this issue with respect to whether they [the jury] think less than half an hour in [the small closet is] an offense that calls for not less than two years in the Montana state prison, no more than ten, versus a misdemeanor of six months and $500.00 ....
[Y]ou haven’t forgotten the fact they [the jury] got rid of three main charges and they were hung up on kidnaping with respect to what is lawful authority. [T]he overall effect of it bothered me.
So I guess my feelings on this go to an innate sense of justice or at least an innate sense of injustice. I am going to grant the motion as I intended to.

The hearing transcript makes clear that the District Court’s perception that it erred in not giving the instruction on Unlawful Restraint was but one factor among many leading to its “innate sense of injustice.” The District Court was quite vocal about its disdain for the State’s “selective prosecution,” in waiting until the close of the evidence to add the lesser charge of Kidnaping. Also, it appears the court feared the possible situation of the jury not having the option of an Unlawful Restraint conviction, and convicting Brummer of Kidnaping simply because it was a better option than outright acquittal. Had the court allowed the defense time to research and prepare the instruction on Unlawful Restraint, the jury may have had an option more supportable by the facts.

¶52 The State argues that even though the court violated its pre-trial order in allowing the State’s Kidnaping instruction, the violation was not so prejudicial as to call into question the interests of justice. We disagree. The following facts are undisputed: (1) both parties to this action knew about and agreed to a “10-7-4 time line” for the pre-trial submission of jury instructions; (2) both parties understood that after the pre-trial submission deadline, no party would be allowed to submit instructions absent a showing of good cause for not submitting them pre-trial; (3) the State’s instructions included no lesser included offense instructions; (4) the defense planned its entire trial strategy in reliance on the State’s apparent all-ormothing strategy; (5) at trial, after the close of the evidence, the court violated its pre-trial order by allowing the State to submit a lesser included offense instruction on Kidnaping, even though the State had not shown why it could not have submitted the instruction pre-trial; and (6) the court did not give the defense time to research, prepare, and offer its own lesser included offense instruction on Unlawful Restraint.

¶53 Brummer reasonably relied upon the State’s all-or-nothing strategy, as evidenced by its charging document and submitted jury instructions. It was not until the close of the evidence at trial that the State added the new charge of Kidnaping. The court believed that under these circumstances, Brummer’s ability to mount an adequate defense was severely prejudiced. This, combined with the overwhelmingly contradictory witness testimony, and the court’s fear that the jury was deprived of a third option more supportable by the facts, leads us to conclude that the interests of justice demand a new trial. We hold that the District Court did not abuse its discretion.

¶54 Affirmed.

JUSTICES TRIEWEILER, REGNIER and LEAPHART concur.

JUSTICE TRIEWEILER

specially concurs:

¶55 I concur with all that is said in the majority opinion. I write in response to the dissent to the opinion.

¶56 If followed, the approach advocated by the dissent would lead to absurd results. For example, pursuant to § 46-16-702, MCA, the defendant had 30 days from the date of the jury’s verdict within which to move for a new trial. He presumably would have done so since he obj ected to the instruction which served as the basis for his conviction and has defended the District Court’s decision to grant a new trial, both in the District Court and on appeal. However, he did not have the opportunity to do so because two days following the jury’s verdict the District Court indicated its intention to grant the new trial without a motion and in fact did so less than two weeks after the jury’s verdict.

¶57 If the dissent’s interpretation of § 46-16-702, MCA, was followed, Brummer would be denied a new trial even though he was entitled to one on the merits, simply because the District Court acted before he had an opportunity to make his own motion.

¶58 In the alternative, the dissent would have us vacate the District Court’s order granting a new trial based on the conclusion that the court had no inherent authority to do so. We would then have to remand to the District Court; reinstate the status quo at the time the District Court acted; and, give the defendant the opportunity to move for the same relief that he has already been provided. The court would presumably arrive at the same result, following which the State could file the same appeal, following which we would arrive at the same conclusion on the merits.

¶59 The dissent’s approach would clearly exalt form over substance and fly in the face of § 46-1-103, MCA, which requires that criminal proceedings be resolved in a manner that avoids “unjustifiable expense and delay.” I cannot agree with that approach. Therefore, for these reasons in addition to those set forth in the majority opinion, I concur with the majority’s conclusions.

JUSTICE NELSON

dissents.

¶60 I dissent from the Court’s decision on Issue 1; accordingly, I would neither reach nor address Issue 2.

¶61 I cannot agree that § 46-16-702, MCA, is ambiguous. To the contrary, when the three subsections of this statute are read together, it is perfectly clear that the trial court has no authority to order a new trial in a criminal case absent a timely, written motion by the defendant. The Court’s analysis and interpretation of this statute are legally insupportable.

¶62 Section 46-16-702, MCA, provides:

Motion for a new trial. (1) Following a verdict or finding of guilty, the court may grant the defendant a new trial if required in the interest of justice.
(2) The motion for a new trial must be in writing and must specify the grounds for a new trial. The motion must be filed by the defendant within 30 days following a verdict or finding of guilty and be served upon the prosecution.
(3) On hearing the motion for a new trial, if justified by law and the weight of the evidence the court may:
(a) deny the motion;
(b) grant a new trial; or
(c) modify or change the verdict or finding by finding the defendant guilty of a lesser included offense or finding the defendant not guilty.

¶63 It is evident from even a cursory reading of this plain and unambiguous language that, for the statute to make any sense as a whole, subsection (1) must be read in conjunction with subsections (2) and (3). Subsections (2) and (3) refer to “the motion for a new trial.” Obviously, “the motion” is what authorizes the corut to grant a new trial under subsection (1). Only by ignoring basic English syntax and grammar can one reach the conclusion that subsections (2) and (3) stand alone; without subsection (1), “the motion” has no antecedent reference. The majority is flat wrong in reading subsection (1) apart from the requirements of subsections (2) and (3) of § 46-16-702, MCA. As even the title of the statute indicates, the three subsections are bound integrally to the defendant’s motion.

¶64 Moreover, contrary to the majority opinion, subsection (1) contains no explicit or implicit grant of authority to the trial court to order a new trial sua sponte. First, under our code of criminal procedure, where the legislature has determined to give the district court power to act on its “own motion,” it has plainly provided this authority by explicit statutory language. See, for example: §§ 46-8-115(1); 46-9-108(2); 46-11-701(2); 46-13-202(2); 46-13-401(1); 46-14-222; 46-16-403; 46-16-604; 46-18-247(1); 46-19-202(3); 46-21-105(1); and 46-23-506(4), MCA. Just as clearly, had the legislature chosen to grant the district court the authority to order a new criminal trial on the court’s own motion, it would have explicitly set out that power in § 46-16-702, MCA. In point of fact, the legislature did not grant the district court the power to order a new trial under § 46-16-702(1), MCA, absent a predicate defense motion timely filed, and, given the aforementioned scheme of our criminal procedure code, it is improper that we here presume the existence of such a power from the non-existence of language specifically authorizing it. Indeed, we must infer exactly the opposite.

¶65 Second, finding no explicit language in § 46-16-702, MCA, to support its determination that the District Court can grant a new trial sua sponte, the majority states in summary fashion that the court has “inherent” power to order a new trial. Notably, it cites no Montana statutory or constitutional authority in support of this conclusion, conceding, as it must, that none exists.

¶66 Rather, the Court advances the novel proposition that unless the legislature specifically prohibits a court from exercising a certain power (or, in the words of the majority, unless the legislature “usurps” the court’s power) then the court has “inherent” authority to act. This rationale turns our entire code of criminal procedure on its head. This code is based upon legislative direction as to how the court is to proceed and what the tribunal is authorized or directed to do at various stages of a criminal investigation and prosecution. The code of criminal procedure is not premised upon the concept that the court, drawing on some undefined reservoir of “inherent” power, can act in any way it chooses subject only to legislative limitation of those choices.

¶67 While certainly a court may exercise those powers inherent in or that derive from powers which are specifically granted by the constitution or by statute, that is a far different and much narrower concept than what is being declared here — i.e., that a court’s power to act is limited only to the extent that the legislature passes a specific law prohibiting the act. Aside from the fact that the majority cites no authority for this sweeping concept of “inherent” power, what authority exists is not even consistent with this view.

¶68 In Clark v. Dussault (1994), 265 Mont. 479, 878 P.2d 239, we observed that the concept of inherent power is codified at § 3-1-113, MCA, “which provides that when jurisdiction is conferred on a court or judicial officer, all the means necessary for the exercise of that jurisdiction are also given.” Clark, 878 P.2d at 243. Based upon long-standing precedent, we then went on to point out that a court’s exercise of this inherent power is limited to situations where “established methods fail or an emergency arises.” Clark, 878 P.2d at 243 (citations omitted).

¶69 Indeed, before embracing this expansive view of of inherent power, the majority would do well to recall our statement in State v. Bonner (1950), 123 Mont. 414, 214 P.2d 747:

Judicial power as contra-distinguished from the power of the law has no existence. Judicial power is exercised by means of courts which are the mere creations and instruments of the law, and independent of the law the courts have no existence. The law precedes the courts. The law governs the courts. Thus it is the function of the courts to expound and administer law in those causes properly brought before them in course of legal procedure.

Bennett, 214 P.2d at 753.

¶70 The majority’s perverse and unsupported notion that a court inherently can exercise any power not specifically prohibited by the legislature aside, the fact is that, in the matter at issue, the legislature has established the method by which a new trial can be granted by a court in a criminal case. And, as pointed out above, this method— set forth in § 46-16-702, MCA — unambiguously requires that the request for a new trial come from the defendant by written motion filed within a time certain. The legislature having, thus, clearly established the law (and absent the law being unconstitutional), neither the district court nor this Court may imply authority in excess of that conferred by the statute on the basis of some amorphous and ill-defined concept of “inherent” power.

¶71 Finally, the majority’s citation to secondary authorities, to the statutes and decisions of other jurisdictions (none of which involve language remotely akin to § 46-16-702, MCA), and to § 46-1-103, MCA, (a statute which, as to the specific issue here, is meaningless in its generality), only points up how far afield the Court has had to travel in its attempt to justify a statutory construction that finds no support in the plain language of the statute itself.

¶72 Indeed, while the majority criticizes the State for not focusing on the entirety of § 46-16-702, MCA, it is not the State, but this Court which tears apart the fabric of the statute so as to construct from whole cloth an interpretation justifying the trial court’s patently unauthorized ruling. In doing so, the majority wholly ignores the most fundamental rule of statutory construction:

Role of the judge — preference to construction giving each provision meaning. In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

Section 1-2-101, MCA. It is ironic, indeed, that the Court cites this same statute as authority for its opinion, for in violation of § 1-2-101, MCA, the majority has inserted into § 46-16-702, MCA, a provision allowing the district court to order a new trial sua sponte and it has failed to read subsections (1), (2) and (3) of § 46-16-702, MCA, pari materia. Worse, it has accomplished this feat by manufacturing ambiguity in § 46-16-702, MCA, where absolutely none exists.

¶73 As to Justice Trieweiler’s concurrence, while he makes a valid point about the trial court effectively preempting Brummer’s ability to move for a new trial under § 46-16-702, MCA, we have already established a precedent, limited in scope, which deals with this sort of problem. In State v. Barrack (1994), 267 Mont. 154, 882 P.2d 1028, we dealt with a situation where the defendant filed an untimely motion for a new trial and the district court, treating this motion as a petition for post-conviction relief, heard and eventually denied the motion. On appeal the State argued that the court erred in considering the untimely new trial motion and that it should simply have been summarily denied. Barrack, 882 P.2d at 1031. We agreed that the defendant’s motion was untimely and that the trial court erred in treating it as a petition for post-conviction relief. Notwithstanding, we ruled that because of the court’s improper treatment of this motion, Barrack was effectively lulled into curtailing any effort to directly appeal his case, and, thus, technically forfeited his right to appellate review. On these unique facts and because of the court’s error prejudicing the defendant’s right to pursue a statutory remedy, we affirmed the court’s decision to rule on the merits of Barrack’s untimely new trial motion. Barrack, 882 P.2d 1031-32.

¶74 The same procedure could — and should — be followed here. It would be a simple matter for the majority to rule that, because the District Court wrongfully preempted Brummer’s right to move for a new trial by ordering a new trial, sua sponte, the Court would address the merits of whether a new trial should have been granted or not (presuming that the defendant would have moved for one himself). Barrack is authority for doing precisely that. Were we to follow that approach in the case at bar, there would be no need to engage in misreading the statute, in finding ambiguity where none exists, and in granting trial courts power that they do not have. There would, in short, be no need to throw out the baby with the bath water, as the majority has done here.

¶75 I would hold that, under § 46-16-702, MCA, a district court may not grant a motion for new trial in a criminal case absent a timely, written motion by the defendant. I dissent from the Court’s failure to do so.

CHIEF JUSTICE TURNAGE and JUSTICE GRAY concur in the foregoing dissent.


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN BAISCH, Defendant and Appellant.
    No. 96-044.
    Submitted on Briefs January 8, 1998.
    Decided January 30, 1998.
    1998 MT 12.
    55 St.Rep. 41.
    287 Mont. 191.
    953 P.2d 1070.

      For Appellant: William F. Hooks, Appellate Defender, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General, Helena; Gerald J. Navratil, Dawson County Attorney, Glendive.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 John Baisch (Baisch) appeals from the decision of the Seventh Judicial District Court, Dawson County, revoking his suspended sentence based on violations of his probation and sentencing him to seven years to be served at the Montana State Prison. We affirm.

¶2 Baisch was charged with aggravated assault following an altercation that occurred at the Dawson Community College on March 19, 1994. Baisch pled guilty to that offense pursuant to an Acknowledgment of Waiver of Rights and Plea of Guilty with the State of Montana (State). The District Court ordered a deferred imposition of Baisch’s six-year sentence and imposed conditions of probation. Among other conditions, Baisch was ordered to remain law abiding, to undergo a psychological examination, and to complete his Graduate Equivalency Diploma (GED) within one year.

¶3 On May 8, 1995, Baisch’s probation officer conducted an intervention hearing regarding several alleged violations of probation. Thereafter, Baisch pled guilty to the offense of unlawful transaction with minors, and the State filed a petition to revoke Baisch’s deferred sentence. Following a hearing on the petition, the District Court found that Baisch had violated several conditions of probation, revoked the deferred sentence and imposed a suspended sentence of seven years. The suspended sentence also imposed the conditions that Baisch remain law abiding, obtain psychological evaluations and complete his GED. Although the record reveals that Baisch had trouble meeting the psychological evaluation and GED conditions of his probation, it was not until the events of September 13, 1995 occurred that the State again petitioned for the revocation of Baisch’s probation.

¶4 Baisch’s probation officer, John Hodge (Hodge) received a letter from Baisch’s adult basic education instructor indicating that Baisch was not meeting appointments and that she no longer desired to work with Baisch on fulfilling his GED requirements. As a result, Hodge contacted Baisch and requested that Baisch meet with him on September 13,1995. Hodge explained that his purpose in meeting with Baisch was to find out why Baisch was not cooperating with his instructor in fiilfilling his GED requirements and to instruct Baisch to cooperate.

¶5 However, Hodge testified that when he explained to Baisch why he had called the meeting, Baisch “immediately became agitated, claiming he did not have an appointment with [his adult basic education instructor], therefore he broke no appointment.” Hodge further testified that as the conversation progressed, Baisch became more agitated and began using ford language, “at which time [Baisch] stood up and said something to the effect that [Hodge] was the fault of this problem, that [Hodge] was the reason he was in trouble, and [Baisch] could jump across that desk and hit [Hodge].” As a result of Baisch’s conduct, Hodge informed Baisch that he was arresting him and calling the police to transport Baisch to the jail.

¶6 Hodge testified that as soon as he hung up the phone, Baisch swept his arm across Hodge’s desk knocking items onto the floor, then Baisch stomped out of the room and headed out of the office. Baisch explained that he simply needed to cool off in an area away from Hodge and intended to wait for the police to arrest him in the hallway; however, Hodge thought Baisch was going to leave so he followed Baisch with a can of capsicum spray. When Baisch stopped, Hodge put his hand on Baisch’s shoulder and instructed him to come back. Hodge stated that when Baisch turned around he had his hand in a fist as though he was going to hit Hodge so Hodge sprayed him with the capsicum spray and led Baisch back to his office.

¶7 When the police arrived, Baisch was still expressing anger. One officer heard Baisch threaten Hodge, while the other claimed he saw Baisch “lunge” toward Hodge. The officers took custody of Baisch and charged him with assault and criminal mischief in city court; however, those charges were dismissed without prejudice due to a defect in language. Despite dismissal of the charges, the State petitioned to revoke Baisch’s suspended sentence asserting three alleged violations of probation: 1) Baisch was charged with criminal mischief and assault after becoming disorderly in the probation office; 2) Baisch failed to keep scheduled appointments for mental health counseling; and 3) Baisch had not fulfilled the GED condition of probation. The District Court concluded that Baisch violated Court Rule #2 and State Rule #8 by failing to conduct himself as a good citizen, revoked Baisch’s suspended sentence, and sentenced him to the Montana State Prison for a term of seven years. Baisch presents two issues for appeal:

¶8 1) Did the District Court abuse its discretion in revoking Baisch’s suspended sentence?

¶9 2) Did the District Court abuse its discretion in imposing a seven-year prison sentence?

I

¶10 The standard of review for revocation of a suspended sentence is whether the district court abused its discretion. State v. Butler (1995), 272 Mont. 286, 289, 900 P.2d 908, 910; State v. Docken (1995), 274 Mont. 296, 298, 908 P.2d 213, 214. So long as the district court is satisfied that the conduct of the probationer has not been what he agreed it would be when he was given liberty, this Court will not overturn a district court’s decision to revoke a suspended sentence. Butler, 900 P.2d at 910. However, the State must prove by a preponderance of the evidence that the probationer has violated the terms or conditions of the suspended sentence. Section 46-18-203, MCA.

¶11 Baisch argues that the State failed to show by a preponderance of the evidence that Baisch violated a condition of probation and therefore the District Court abused its discretion in revoking Baisch’s suspended sentence. The State asserts, however, that the record supports the District Court’s decision that Baisch violated the conditions of probation; therefore, the District Court appropriately revoked the suspended sentence.

¶12 It is important to note that Baisch does not contest the fact that the events of September 13, 1995 occurred. In fact, Baisch’s statement of the facts is nearly identical to that offered by the State. What Baisch does claim, however, is that his disorderly conduct was the result of an undue amount of stress resulting from his work and his attempts to fulfill the conditions of probation while taking care of his family. Baisch asserts that he was “pulled in any number of directions” in his attempts to meet the many obligations imposed on him and “[w]hile his conduct toward Hodge may have been inappropriate, it was the result of the stress brought on by these factors.”

¶13 The State argues that Baisch’s initial difficulties with the law stemmed from his inability to control his rage and his resulting aggravated assault against an individual at Dawson Community College. Having failed to receive treatment for his intermittent explosive disorder, Baisch exhibited his rage again by threatening his probation officer. The State further argues that Baisch’s conduct was clearly a violation of his probation conditions.

¶14 Despite the dismissal of Baisch’s assault and criminal mischief charges, the facts offered by Baisch and the State support a finding by the District Court that Baisch violated Court Rule #2 and State Rule #8 by failing to conduct himself as a good citizen. We hold that the District Court did not abuse its discretion in revoking Baisch’s suspended sentence.

II

¶15 Upon finding that a condition of probation has been violated, the district court has discretion to continue the suspended sentence without a change in conditions, continue the suspended sentence with modified or additional terms and conditions, or revoke the suspended sentence and require the defendant to serve either the sentence imposed or any lesser sentence. Section 46-18-203(7), MCA. This Court reviews the district court’s sentencing decision for abuse of discretion. State v. Hurlbert (1988), 232 Mont. 115, 123, 756 P.2d 1110, 1115. Furthermore, on appeal, this Court will only review sentences for their legality. We will not review sentences for mere inequity or disparity; that task is left to the Sentence Review Division. State v. Ford (1996), 278 Mont. 353, 363, 926 P.2d 245, 251.

¶16 Baisch does not assert that his sentence is illegal. Baisch argues only that the factors described above, namely the stress caused by meeting his obligations, caused his disorderly conduct and therefore “the totality of the circumstances confronting Baisch demonstrate that imposing the full seven year sentence ... was an abuse of discretion.” Essentially, Baisch argues that the District Court imposed a harsher sentence than it should have. This argument is appropriately presented to the Sentence Review Division. We conclude that the District Court did not abuse its discretion in imposing Baisch’s full seven year sentence.

JUSTICES NELSON, REGNIER, HUNT and TRIEWEILER concur.


text:
    DONNA REEVES, Plaintiff and Appellant, v. DAIRY QUEEN, INC., and BARBER FOOD SERVICE CO., INC., Defendants and Respondents.
    No. 97-165
    Submitted on Briefs December 11, 1997.
    Decided January 30, 1998.
    1998 MT 13.
    55 St.Rep. 44.
    287 Mont. 196.
    953 P.2d 703.

      For Appellant: Scott L. Anderson, Dean D. Chisholm; Kaplan Law Offices, Columbia Falls.
    For Respondents: Randall A. Snyder; Snyder Law Office, Bigfork.
    For Amici Curiae: Timothy C. Kelly, Special Assistant Attorney General, Chris Fotopulos, Attorney at Law, Helena (for Montana Human Rights Commission); Mary Gallagher, Attorney at Law, Montana Advocacy Program, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellant Donna Reeves (Reeves) appeals from the order of the Eleventh Judicial District Court, Flathead County, granting summary judgment for Respondents Dairy Queen, Inc. (Dairy Queen) and Barber Food Service Co., Inc. We reverse.

¶2 Reeves raises the following issues:

¶3 1. Did the District Court err in granting summary judgment on Reeves’ claim that she was terminated in violation of § 49-4-101, MCA?

¶4 2. Did the District Court err in granting summary judgment on Reeves’ claim that Dairy Queen failed to provide reasonable accommodation?

Factual and Procedural Background

¶5 Reeves was hired by Dairy Queen on January 1, 1990, to work in its Columbia Falls restaurant. She was hired and supervised by Bill Barber (Barber), general manager and majority owner of Barber Food Service Co., Inc., which owns Dairy Queen. Reeves worked for Dairy Queen for five years and was regarded as an excellent employee. She received pay raises and was eventually promoted to kitchen manager.

¶6 In the early 1980s, Reeves was diagnosed with high blood pressure. As a result of her high blood pressure, Reeves suffers severe headaches, shortness of breath, heat sensitivity, and flushing. During March 1994, two of Reeves co-workers informed Barber that Reeves had experienced dizziness while climbing atop a table to reach an item in the kitchen. Barber had also noticed that at times, after performing simple tasks, Reeves became out of breath and flushed. Barber stated in his deposition that he “could tell she was not doing well health-wise.” '

¶7 On April 19,1994, Dairy Queen fired Reeves. Afew months later, Barber gave Reeves the following reference letter:

This April (1994) we had to terminate Donna Reeves employment at the Columbia Falls Dairy Queen due to health reasons. Donna worked here for 5k2 years and was an excellent employee, but we felt that it was for her own well being that we let her go. Without going into great detail, it was a combination ofhaving high blood pressure and working in a position as a fast order cook working under conditions of pressure, stress and heat. We could see her health deteriorating and I decided this would be best for Donna.

Barber never spoke to Reeves about her medical condition or discussed the possibility of treatment for her illness or other accommodations. Barber made no attempt to speak to Reeves’ doctor, review her medical records, or investigate her medical condition.

¶8 On October 14,1994, Reeves filed a complaint with the Montana Human Rights Commission (MHRC), alleging that she was discriminated against because of high blood pressure and other health problems. The MHRC issued a “right to sue letter,” and Reeves filed suit in the District Court. In her complaint, Reeves alleged that Dairy Queen had fired her in violation of the Montana Human Rights Act, §§ 49-1-101 through 49-4-511, MCA, (the Act) and the Wrongful Discharge from Employment Act, §§ 39-2-901 through -915, MCA. Dairy Queen moved to dismiss the wrongful discharge claim and for summary judgment on the disability discrimination claim.

¶9 On March 10, 1997, the District Court issued an order holding that Reeves’ wrongful discharge claim was barred by the one-year statute of limitations. Reeves does not appeal from that decision. The District Court also granted summary judgment on the discrimination claim. The court held that, as a person suffering from high blood pressure, Reeves did not qualify as a member of a protected class under the Act. The court found that Dairy Queen had a legitimate, business reason for firing Reeves — that Reeves’ high blood pressure had caused her work performance to deteriorate and had caused her to become a serious safety threat to herself and co-workers. The District Court also held that Dairy Queen could not reasonably have accommodated Reeves.

Discussion

I. Standard of Proof

¶10 Reeves asks this Court to adopt a new standard of proof for disability discrimination cases in which the claim may be proven through direct, rather than circumstantial, evidence. Reeves, joined by amici curiae Montana Advocacy Program and the MHRC, argues that the test currently employed by this Court is unnecessarily complicated in cases such as this, where the parties do not dispute the reason that the plaintiff was fired, but only whether such action constitutes illegal discrimination.

¶11 The parties state that this Court’s decision in Hafner v. Conoco, Inc. (1994), 268 Mont. 396, 886 P.2d 947, sets forth the current law of disability discrimination in Montana. In Hafner, the plaintiff claimed that Conoco had violated the Act by discriminating against him based on his disability, an arthritic knee. Hafner, 886 P.2d at 950. The parties filed cross-motions for summary judgment, and the district court granted summary judgment in favor of Conoco. Hafner, 886 P.2d at 950.

¶12 This Court applied the three-step proof mechanism first articulated by the Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Hafner, 886 P.2d at 950. Under this test, a person alleging discrimination must first demonstrate a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the plaintiff proves a prima facie case by a preponderance of evidence, the burden shifts to the employer to rebut the presumption of discrimination by producing a legitimate, non-discriminatory reason for the action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Lastly, the plaintiff may prove that the employer’s proffered reason is only pretext for discrimination; that is, that the reason is untrue and that the real reason is discriminatory. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. Applying the McDonnell Douglas test, this Court held that the district court erred in finding that Hafiier had failed to establish a prima facie case and that though Conoco had set forth a legitimate non-discriminatory reason for not hiring Hafiier, Hafiier had established a genuine issue of material fact regarding whether Conoco’s reason was pretext. Hafner, 886 P.2d at 953.

¶13 Since Hafner, this Court has decided Heiat v. Eastern Montana College (1996), 275 Mont. 322, 912 P.2d 787, in which we developed a different summary judgment standard of proof to be used in sex discrimination cases brought under Title VII. We noted that when a motion for summary judgment is made by the defendant in a discrimination case, the McDonnell Douglas order of proof and shifting of burdens places the nonmoving plaintiff “in the peculiar position of having to prove her case to survive the defendant’s motion.” Heiat, 912 P.2d at 792-93. Thus, we set forth what we believed to be a more appropriate analysis: (1) the plaintiff must allege a prima facie case of discrimination in the complaint; (2) the employer seeking summary judgment must then come forward with a legitimate, nondiscriminatory reason for its action; and (3) if the employer sets forth such a reason, the plaintiff must then produce evidence that establishes a prima facie case, as well as evidence which raises an inference that the employer’s proffered reason is pretextual. Heiat, 912 P.2d at 793.

¶14 Although both parties cited Heiat, neither applied the Heiat summary judgment analysis to the facts of this case. Rather, both stated that Hafner represents the current law of disability discrimination in Montana, apparently assuming that the Heiat analysis is confined to cases brought under Title VII. To the contrary, the summary judgment burdens of proof discussed in Heiat apply in all types of discrimination cases regardless of whether the claims are based on federal or state law.

¶15 Having clarified the confusion arising from Hafner and Heiat, we now confine the three-part summary judgment test set forth in Heiat to those cases in which discriminatory intent can only be proven by circumstantial evidence (cases that require the McDonnell Douglas shifting burden analysis at trial). In cases involving direct evidence, such as this one, we adopt the following test used by an increasing number of federal courts.

¶16 Direct evidence cases are ones in which the parties do not dispute the reason for the employer’s action, but only whether such action is illegal discrimination. In such cases, several courts have found that the McDonnell Douglas test is inappropriate and unduly confusing:

[T]he [McDonnell Douglas] test is inappropriate for cases in which the employer acknowledges that it relied upon the plaintiff’s handicap in making its employment decision. The McDonnell Douglas burden shifting approach is unnecessary because the issue of the employer’s intent, the issue for which McDonnell Douglas was designed, has been admitted by the defendant in such cases, and the plaintiff has direct evidence of discrimination on the basis of his or her disability. Assuming that the plaintiff in such a case is in fact statutorily “disabled,” the determinative disputed issue in the case will not be the employer’s “intent,” but instead in most cases will be whether the employee is “otherwise qualified,” with or without reasonable accommodation, to perform the job, a factual dispute capable of resolution through traditional methods of proof.

Monette v. Electronic Data Systems Corp. (6th Cir. 1996), 90 F.3d 1173, 1182 (citations omitted); see also Healey v. Southwood Psychiatric Hosp. (3rd Cir. 1996), 78 F.3d 128; E.E.O.C. v. Alton Packaging Corp. (11th Cir. 1990), 901 F.2d 920. Thus, these courts have adopted new standards of proof in such cases for both summary judgment and trial.

¶17 At trial, if the plaintiff has established a prima facie case of unlawful discrimination with direct evidence, the employer must prove by a preponderance of the evidence that an unlawful motive played no role in the challenged action or that the direct evidence of discrimination is not credible and is unworthy of belief. See E.E.O.C., 901 F.2d at 925; Rule 24.9.610, ARM. Federal courts have also begun applying the traditional summary judgment principles to direct evidence discrimination cases, thus requiring the moving party to establish that no material issues of fact exist and that the movant is entitled to judgment as a matter of law. Healey, 78 F.3d at 130; Rule 56, Fed.R.Civ.P.

¶18 The Montana Administrative Rules has incorporated this simpler method of proof for direct evidence discrimination cases. Rule 24.9.610(5), ARM. We agree that it is unduly confusing to apply the three-step McDonnell Douglas test, or the Heiat analysis for summary judgment, in cases in which the plaintiff presents direct evidence of discrimination. When both parties agree on the employer’s articulated reason for firing the plaintiff and the only contested issue is whether the employer’s action is illegal, it is illogical to require the plaintiff to prove that the articulated reason is pretextual. Thus, in direct evidence discrimination cases, we adopt the standard set forth in Rule 24.9.610(5), ARM, as the correct burden of proof at trial, and we employ the traditional proof requirements in motions for summary judgment. Accordingly, in a motion for summary judgment brought by an employer, the employer has the burden of showing that no issues of material fact remain and that the plaintiff cannot prove a prima facie case of discrimination as a matter of law.

¶19 In this case, the District Court found that “[a] discussion of pretext here is largely superfluous as there is no genuine dispute as to the grounds for the discharge.” Barber’s letter stated quite succinctly the reasons why Dairy Queen chose to fire Reeves: “Without going into great detail, it was a combination of having high blood pressure and working in a position as a fast order cook working under conditions of pressure, stress and heat. We could see her health deteriorating and I decided this would be best for Donna.” Because Reeves attempts to prove her claim for discrimination with direct evidence, we apply the above-stated direct evidence standards of proof in reviewing the District Court’s grant of summary judgment. We review a district court’s grant of summary judgment de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785.

II. Application of the Standard to Reeves’ Claims

¶20 A. Did the District Court err in granting summary judgment as to Reeves’ claim that she was terminated in violation of § 49-4-101, MCA?

¶21 To prevail on its motion for summary judgment, Dairy Queen has the burden of showing that no issues of material fact remain and that Reeves cannot prove a prima facie case of discrimination as a matter of law. Under the Act,

[i]t is unlawful to discriminate, in hiring or employment, against a person because of the person’s physical disability. There is no discrimination when the nature or extent of the disability reasonably precludes the performance of the particular employment or when the particular employment may subject the person with a disability or that person’s fellow employees to physical harm.

Section 49-4-101, MCA. Thus, to establish a prima facie case of discrimination, Reeves must show: (1) she belonged to a protected class; (2) she was otherwise qualified for continued employment and her employment did not subject her or others to physical harm; and (3) Dairy Queen denied her continued employment because of her disability. See Hafner, 886 P.2d at 950; §§ 49-4-101 and 49-2-303(l)(a), MCA.

1. Member of a Protected Class

¶22 At the time of her discharge, Reeves suffered from high blood pressure and, as a result, experienced spells of dizziness, shortness of breath, bloodshot eyes, and flushing. To prove a prima facie case of discrimination, Reeves must show that because she suffers from high blood pressure, she is disabled and thus entitled to the protections of the Act. Hafner, 886 P.2d at 950. The District Court found that because Montana law has not established high blood pressure as a disability, Reeves is not entitled to protection under the Act. However, Reeves and the amici curiae argue that whether someone is disabled is an issue of fact that must be determined on a case-by-case basis.

¶23 Under the Act, a physical disability is defined as either “a physical or mental impairment that substantially limits one or more of a person’s major life activities” or “a condition regarded as such an impairment.” Section 49-2-101(19)(a), MCA. Reeves argues that she is disabled under either definition. Because the Act is patterned after the federal Rehabilitation Act of 1973, this Court often looks to federal case law in interpreting its provisions. Hafner, 886 P.2d at 950-51; McCann v. Trustees, Dodson School Dist. (1991), 249 Mont. 362, 364, 816 P.2d 435, 437. Any physiological disorder or condition affecting the respiratory or cardiovascular systems is among the types of physical impairments included in federal disability discrimination laws. 29 C.F.R. § 1630.2(h)(1). Neither party disputes that Reeves suffers from high blood pressure, a condition affecting her cardiovascular system, and that therefore she has a physical impairment under the Act.

¶24 A physical impairment is only considered a disability under the Act if the condition “substantially limits one or more of a person’s major life activities.” Section 49-2-10K 19)(a)(i), MCA. Federal regulation defines “major life activities” as “functions such as caringfor oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working,” and this list is not exhaustive. 29 C.F.R. § 1630.2(f). For example, sitting, standing, lifting, and reaching may also be considered major life activities. S. Rep. No. 116, at 21 (1989).

¶25 Under federal law, the determination of whether an individual is substantially limited in a major life activity is one that must be made on a case-by-case basis. As noted in the Equal Employment Opportunity Commission (EEOC) Interpretive Guidelines:

The ADA [Americans with Disabilities Act] and this part, like the Rehabilitation Act of 1973, do not attempt a “laundry list” of impairments that are “disabilities.” The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual.

EEOC Interpretive Guidelines, 29 C.F.R. § 1630.2(j), App. at B-9 (1995). Because “the same types of impairments often vary in severity and often restrict different people to different degrees or in different ways,” consideration of factors such as the nature, severity, expected duration, and permanent or long-term impact of the impairment is required. EEOC Interpretive Guidelines, 29 C.F.R. § 1630.2(j) (1995); 29 C.F.R. § 1630.2(j)(2).

¶26 We agree with Reeves that determining whether a person is disabled necessarily requires a factual determination about whether, and to what extent, a person is limited in his or her performance of a major life activity. The District Court held that because “[n]o statute, administrative rule, or any precedent within Montana has previously established high blood pressure as a physical disability,” Reeves is not disabled. However, a person is not disabled simply because the condition from which he or she suffers is found on a judicially or legislatively created list of disabilities. Medical advances, the discovery of new medical conditions and the improved understanding of old ones, renders the formation of such a list of disabilities impracticable, if not impossible. To require all diseases to be labeled as disabling or nondisabling would deny to persons with newly discovered or misunderstood diseases the protections provided by the Act until a court or legislature could reach the issue.

¶27 Further, a physical impairment that substantially limits one person’s major life activities may not so limit another person suffering from the same impairment. For example, high blood pressure (hypertension) can be diagnosed as slightly, moderately, or seriously elevated. In some cases, high blood pressure can be controlled by medication; however, at its most severe, it can be a life-threatening disease. To include or exclude high blood pressure in the definition of disability as a matter of law, without consideration of its impact on the individual, either includes in the definition the very large number of people who suffer from only slightly elevated blood pressure or excludes persons who suffer from the disease in its most severe form.

¶28 Thus, we hold that whether a person is disabled under the Act cannot be decided as a matter of law, but rather requires a factual determination to be made on a case-by-case basis. In this case, there is ample evidence to create an issue of fact regarding whether Reeves is disabled. The record contains evidence that Reeves is limited in her ability to walk, perform manual tasks, breathe, and work. Co-workers have testified that Reeves nearly fainted in the kitchen while attempting to grasp an item out of her reach. Barber testified that Reeves could not do “much work” without becoming flushed and out-of-breath. Reeves suffers from dizziness, ear-ringing, and severe headaches.

¶29 Further, this Court has held that under the ADA, “a person is substantially limited if he or she experiences difficulties in securing, retaining, or advancing in employment.” Martinell v. Montana Power Co. (1994), 268 Mont. 292, 310, 886 P.2d 421, 432. Because of Reeves’ high blood pressure, Dairy Queen “felt that it was for her own well being that we let her go.” Obviously, this is proof that Reeves’ condition made it difficult for her to retain her 5V2 year employment with Dairy Queen.

¶30 A person is entitled to the protections of the Act not only if he or she suffers from a substantially limiting impairment, but also if he or she suffers from “a condition regarded as such an impairment.” Section 49-2-101(19)(a)(iii), MCA. Congress added the “regarded as” provision to the ADA to recognize that individuals have historically suffered discrimination “resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.” 42 U.S.C. § 12101(a)(7). High blood pressure is an example of such a perceived disability:

[S]uppose that an employee has controlled high blood pressure that is not substantially limiting. If an employer reassigns the individual to less strenuous work because of unsubstantiated fears that the individual will suffer a heart attack if he or she continues to perform strenuous work, the employer would be regarding the individual as disabled.

EEOC Interpretive Guidelines, 29 C.F.R. § 1630.2(1) (1995).

¶31 In his letter, Barber acknowledged that “it was a combination of having high blood pressure and working in a position as a fast order cook working under conditions of pressure, stress and heat” that caused Dairy Queen to fire Reeves. This letter alone is enough to create a fact issue as to whether Dairy Queen regarded Reeves as disabled. Thus, we determine that issues of fact exist regarding whether Reeves is disabled or was regarded as such by Dairy Queen.

¶32 2. Qualified for Continued Employment

¶33 To prove her prima facie case, Reeves must establish that she was otherwise qualified for continued employment. The District Court found that “her symptoms of high blood pressure (not the fact of high blood pressure itself) affected [Reeves’] work performance and constituted a clear and present danger to herself and others.” We first note that the distinction made by the District Court between the symptoms of high blood pressure and the disease itself is false. Symptoms are merely the outward and subjective signs of an impairment, Webster’s Ninth New Collegiate Dictionary 1196 (9th ed. 1986), and it is no more legal to discriminate against one who exhibits the symptoms of a disease than to discriminate against one who suffers from the disease itself.

¶34 The testimony in the record is that in her 51/2 years at Daily Queen, Reeves was regarded as an “excellent” employee. She was never reprimanded, and her co-workers testified that she was good at her job. Dairy Queen presented no evidence that Reeves could not perform any aspect of her job as kitchen manager. Thus, we determine that whether Reeves is otherwise qualified is still a disputed issue of fact.

¶35 Under the Act, a disabled employee may be discharged “when thé particular employment may subject the person with a disability or that person’s fellow employees to physical harm.” Section 49-4-101, MCA. Here, the finding that Reeves’ continued employment with Dairy Queen increased the risk of harm to her and to others appears to be based primarily on one incident in which Reeves almost fainted and fell from a countertop. Barber never attempted to talk with Reeves or her doctor about the seriousness of her condition specifically or to learn the effects of high blood pressure generally. Rather, Dairy Queen apparently fired Reeves based on a misdirected and uninformed conclusion that it would be “best for Donna.” As amicus curiae MHRC noted, “[t]he benign or well-intended violation of another’s civil rights can be as successful in denying equal opportunities and fall participation for the disabled ... as an act born of malice or prejudice. Misguided concern may explain why Reeves lost her job, but it does not provide a legal justification for the defendant’s actions.” We hold that Dairy Queen has not met its burden of showing that no material issues of fact remain regarding whether Reeves was otherwise qualified for continued employment.

¶36 3. Disability Caused Termination

¶37 Under § 49-2-303, MCA, it is an unlawful discriminatory practice for an employer to refuse employment to a person because of physical disability. Proof of this element includes “proof that there is a causal connection between adverse action by the [employer] and the [employee’s] membership in a protected class.” Rule 24.9.610(2)(b)(v), ARM. The District Court found that Reeves offered no facts to suggest that Dairy Queen’s motive was to discriminate against Reeves. As stated in section I, the parties do not dispute that Dairy Queen fired Reeves because of her high blood pressure. However, we hold that the District Court erred in holding, as a matter of law, that this action was not illegal discrimination.

¶38 Therefore, we hold that the District Court erred in granting summary judgment as to Reeves’ claim that she was discriminated against in violation of § 49-4-101, MCA.

¶39 B. Did the District Court err in granting summary judgment on Reeves’ claim that Dairy Queen failed to provide reasonable accommodation?

¶40 Reeves also claims that the District Court erred in granting summary judgment as to her claim that Dairy Queen failed to provide reasonable accommodations. Montana law requires employers to reasonably accommodate their employees if the employees are disabled or are regarded as such, unless the accommodation would impose an undue hardship on the employer or endanger the health and safety of any person. Section 49-2-102(19)(b), MCA.

¶41 The District Court found that it was undisputed that Dairy Queen is a fast food restaurant with hot equipment that cannot be moved, changed, or made safe. The court found that Reeves’ job required her to work in this environment and stated:

[Dairy Queen] had no other position or duty for [Reeves] to occupy or assume. It is physically impossible to make the Columbia Falls Dairy Queen kitchen into something that it is not. For anyone experiencing symptoms of high blood pressure, this kitchen is an inherently dangerous place in which to work and cannot be made more safe .... Here, accommodation isn’t merely an undue hardship upon employer, it is a physical impossibility.

¶42 However, Reeves argues that Dairy Queen never seriously contemplated any accommodation and that Dairy Queen could, in fact, have accommodated her. Reeves argues further that if Dairy Queen believed that accommodation could not be made without undue hardship or danger, it had a duty to investigate. We agree. Montana regulations provide:

[independent assessment of the risk of substantial harm is evaluation by the employer of the probability and severity of potential injury in the circumstances, taking into account all relevant information regarding the work and medical history of the person with the disability before taking the adverse employment action in question.

Rule 24.9.606(8), ARM. Dairy Queen never spoke with Reeves or her physician about her condition or what could be done to ensure her safety. In fact, Reeves’ doctor testified that when controlled with proper medication, Reeves’ condition posed no threat at all. Further, in his deposition, Barber testified to the following:

Q: So it [Reeves’ high blood pressure] wouldn’t have been any problem if she would have taken her medication?
A: No, it would not have been a problem.
Q: Did you offer that opportunity? Did you sit down with her and say Donna, I need you to take your medication or else you’re going to get terminated?
A: No....

Clearly, this testimony presents an issue of fact as to whether a reasonable accommodation was available.

¶43 Dairy Queen argues that it did not attempt to accommodate Reeves because she did not request any accommodation. While the burden of requesting accommodation is generally on the employee, in this case, Reeves was not given the opportunity to make such a request. She was not informed until she was fired that her disability posed a threat to her continued employment at Dairy Queen, at which point it was too late to request accommodation. We hold that the District Court erred in granting summary judgment on Reeves’ claim that Dairy Queen failed to provide reasonable accommodations.

Conclusion

¶44 Donna Reeves’ five-year employment with Dairy Queen was brought to an abrupt halt when Dairy Queen determined, because Reeves suffered from high blood pressure, that it would be best for everyone if she was let go. We hold that whether Reeves is entitled to the protections of the Montana Human Rights Act, whether her continued employment posed a direct threat to her health and safely and to that of others, and whether Dairy Queen could have done anything to accommodate her are issues of fact that Reeves is entitled to have resolved at trial.

¶45 Based on the foregoing, we reverse the decision of the District Court and remand for further proceedings consistent with this Opinion.

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


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL HAYES, Defendant and Appellant.
    No. 97-369.
    Submitted on Briefs January 15, 1998.
    Decided January 30, 1998.
    1998 MT 14.
    55 St.Rep. 51.
    287 Mont. 210.
    953 P.2d 700.

      For Appellant: Brad L. Amdorfer, Arndorfer Law Firm, Billings.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney; Shawn P. Cosgrove, Deputy Yellowstone County Attorney, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Michael Hayes (Hayes) appeals from the judgment entered by the Thirteenth Judicial District Court, Yellowstone County, on his conviction of the offense of driving under the influence of alcohol (DUI), coiltending that the District Court erred in denying his motion to dismiss for lack of a speedy trial in the Yellowstone County Justice Court. We affirm.

¶2 The sole issue on appeal is whether the District Court erred in denying Hayes’ motion to dismiss for lack of a speedy trial in the Justice Court based on its interpretation of § 46-13-401(2), MCA.

BACKGROUND

¶3 Hayes was charged with DUI in the Justice Court. He pleaded not guilty on May 28,1996, and trial was set for November 27, 1996. On the day before trial, Hayes moved to dismiss for lack of a speedy trial. He argued that the 6-month period for trial of a misdemeanor charge set forth in § 46-13-401(2), MCA, should be calculated as 180 days and, under such a calculation, his right to a speedy trial had been violated. The Justice Court denied the motion, tried Hayes in absentia, found him guilty of DUI and entered sentence and judgment.

¶4 Hayes timely appealed to the District Court and moved to dismiss for lack of a speedy trial in the Justice Court. After briefing, the District Court denied the motion. Hayes subsequently pleaded guilty to the DUI charge, reserving his right to appeal the speedy trial issue. The District Court entered judgment and Hayes appeals.

DISCUSSION

¶5 Did the District Court err in denying Hayes’ motion to dismiss for lack of a speedy trial in Justice Court?

¶6 The District Court rejected Hayes’ argument that the statutory speedy trial period should be interpreted to mean 180 calendar days, concluding that the “6 months” set forth in § 46-13-401(2), MCA, means that a misdemeanor charge generally must be tried within 6 months. On that basis, it denied Hayes’ motion to dismiss for lack of a speedy trial.

¶7 Whether a defendant’s speedy trial rights have been violated is a question of law. We review a district court’s conclusion of law to determine whether the interpretation of the law is correct. State v. Keating (1997), [285 Mont. 463], 949 P.2d 251, 256 (citation omitted).

¶8 Under § 46-13-401(2), MCA, a misdemeanor charge ordinarily must be dismissed if “not brought to trial within 6 months” after the entry of a plea. We previously have held that the statutory 6-month period begins to run on the day following the event which triggers the running of the time limitation and expires 6 months later. See State v. Belgarde (1990), 244 Mont. 500, 507, 798 P.2d 539, 544 (citing State v. Ronningen (1984), 213 Mont. 358, 691 P.2d 1348). Applying that interpretation to the facts of this case, the 6-month time period began to run on May 29,1996 — the day after Hayes pleaded not guilty — and expired November 29, 1996 — 6 months later. Hayes’ trial was scheduled for, and held on, November 27, 1996, and, as such, the trial was timely for purposes of § 46-13-401(2), MCA.

¶9 Hayes argues, however, that Belgarde and Ronningen did not specifically focus on the definition of “6 months” as that time period is set forth in § 46-13-401(2), MCA. He suggests that other cases refer to a precise number of days, rather than 6 months, and contends that those cases support his “more logical” position that 6 months means 180 days, calculated as 6 months containing 30 days each. His arguments are not persuasive.

¶10 It is technically accurate to say that we did not specifically focus on the meaning of the “6 months” language contained in § 46-13-401(2), MCA, in Belgarde or Ronningen. The reason, however, is relatively clear. We interpret statutes by declaring what is contained therein; we do not insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA. Section 46-13-401(2), MCA, says “6 months.” It does not say 180 days or 6 months of 30 days each, and we may not delete the language used and substitute other language. Given the number of statutes in which the legislature has chosen to state a time period in days rather than in months, it is abundantly clear that, when the legislature desires to do so, it is aware of how to accomplish that goal. See, e.g., §§ 46-13-110, 46-14-202, and 46-15-323, MCA.

¶ 11 Moreover, we interpret statutes according to the plain meaning of the language used. State v. Gatts (1996), 279 Mont. 42, 47, 928 P.2d 114, 117 (citation omitted). Black’s Law Dictionary 1007 (6th ed. 1990) defines “month” as “calendar month [;]” it clarifies that “month” means the time from any day of a month in the calendar to the corresponding day of the next month. Thus, for example, 1 month would be from the 29th day of May to the 29th day of June. Correspondingly, 6 months would be from the 29th day of May to the 29th day of November. We conclude that the “6 months” language in § 46-13-401(2), MCA, means 6 calendar months.

¶12 Nor are the cases on which Hayes relies of any help to him here. As discussed above, we have not heretofore technically defined the meaning of “6 months” as contained in § 46-13-401(2), MCA. Therefore, any earlier discussion of § 46-13-401(2), MCA, in terms of number of days is superseded by our conclusion above that 6 months means 6 calendar months. Moreover, the only § 46-13-401(2), MCA, case to which Hayes cites in this regard is State v. Nelson (1991), 251 Mont. 139, 822 P.2d 1086. There, while we observed that 142 days had elapsed between the arrest and the original trial date in the justice court, our holding was that “the State has met its burden of showing why Nelson was not tried in Justice Court within the six months allowed under [the statute] .’’Nelson, 822 P.2d at 1088. Nelson is not authority for defining the statutory period as being comprised of a certain number of days. The remainder of the speedy trial cases advanced by Hayes involved speedy trial issues in the district courts, rather than in the justice courts, and we analyze those cases under the 4-part speedy trial test set forth by the United States Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101, 112-13, not the 6-month statutory period. See, e.g., State v. Bartnes (1988), 234 Mont. 522, 527, 764 P.2d 1271, 1274. ¶ 13 Finally, we note — and reject — Hayes’ argument that it is “more logical” that the statutory “6 months” means 180 days, calculated as 6 30-day months, than that it means 6 calendar months. The Gregorian calendar commonly used in the United States and Montana contains 12 calendar months of unequal numbers of days. Only 4 of those months — September, April, June and November — contain 30 days. Seven other months contain 31 days, and February contains either 28 or 29 days depending on which year it is in. Given that only one-third of the calendar months in the year contains 30 days, there is little “logic” in Hayes’ argument that 6 months means 180 days calculated as 6 30-day months.

¶ 14 The District Court having correctly concluded that the “6 months” contained in § 46-13-401(2), MCA, means 6 months and not 180 days, we hold that the District Court did not err in denying Hayes’ motion to dismiss for lack of a speedy trial.

¶15 Affirmed.

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