text:
    STATE OF MONTANA, Plaintiff, vs. Wayne Walksnice, Defendant.
    NO. 12185
    DECISION
    DATED this 2nd day of December, 1996.
   On July 31, 1996, it was the judgment of the Court that Wayne Walksnice be and is hereby committed to the Department of Corrections for a term of ten (10) years for the offense of Felony Assault, for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is the recommendation of the Court that the defendant be considered for placement in the pre-release center in Billings, Montana, and the defendant shall successfully complete all the alcohol programs at the center. It is also recommended to the Department of Corrections that as conditions of any parole or early release the defendant shall abide by conditions and provisions as stated in the July 31, 1996 judgment. That, however, five (5) years of defendant’s sentence is hereby suspended on the terms and conditions as stated in the July 31,1996 judgment. Defendant shall receive credit for time served at Missoula County Jail from June 7,1996, through date of sentencing, July 31,1996, in the amount of fifty-five (55) days.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition shall be dismissed with prejudice.

Done in open Court this 14th day of November, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. Korey Peter Walter, Defendant.
    NO. DC 96-04
    DECISION
   On June 28, 1996, it was the judgment of the Court that Korey Peter Walter is guilty of one (1) count of Negligent Homicide, a felony in violation of 45-5-104, MCA, and of one (1) Count of Criminal Endangerment, a felony in violation of45-5-207 MCA by his plea. That Korey Peter Walter shall receive a ten (10) year sentence on the count of Negligent Homicide, a ten (10) year sentence on the count of Criminal Endangerment, with these sentences to run consecutively to each other and in addition as a result of the use of a dangerous weapon as provided by 46-18-221 MCA a Ten (10) year sentence with Eight (8) years suspended to run consecutively to the sentences set forth above. The defendant shall receive credit on the sentences set forth above for time served in the custody of Anaconda-Deer Lodge County and the juvenile detention facility of Forty-Seven (47) days and for One hundred seventy-seven (177) days of house arrest with electronic monitoring. Pursuant to 41-5-208(8) MCA the defendant must be committed to the Department of Corrections for service of the sentences set forth above. It is the recommendation of the Court that the defendant Korey Peter Walter be placed in the Montana State Prison for further psychological evaluation and classification. The Court further recommends that despite the length of this sentence and if the staff at the Montana State Prison and the Department of Corrections deem it advisable, that the defendant be placed at the Department of Corrections Boot Camp for entry and completion of that program. The Court further and specifically recommends that the defendant complete the Anger Management, Criminal Thinking Errors Program at the Boot Camp. If the defendant Korey Peter Walter successfully completes the Boot Camp, the Court recommends that the defendant be placed in an appropriate transition program or pre-release center. If the defendant successfully completes this phase of his incarceration, the Court recommends that the defendant be placed in an Intensive Supervision Program for as long as deemed appropriate by the Department of Corrections. Tb accomplish the goals of this sentence, which are the rehabilitation of the defendant and the protection of society, the Court hereby Orders that pursuant to 46-18-202(2) MCA that the defendant shall not be eligible for parole consideration for a period of five (5) years from the date of this judgment.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by attorney Wade J. DaHood. The state was represented by Ed Beaudette, Deer Lodge County Attorney.

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

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

DATED this 2nd day of December, 1996.

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

Done in open Court this 14th day of November, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank attorney Wade J. DaHood for representing Korey Walter in this matter and also Deer Lodge County Attorney Ed Beaudette for representing the State.


author: JUSTICE LEAPHART

text:
    CITY OF BILLINGS, STATE OF MONTANA, Plaintiff and Respondent, v. JAMES VIRL SMITH, Defendant and Appellant.
    No. 95-346.
    Submitted on Briefs January 9, 1997.
    Decided February 6, 1997.
    54 St.Rep. 96.
    281 Mont. 133.
    932 P.2d 1058.

      For Appellant: James V. Smith, Pro Se, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Ass’t Attorney General, Helena; Mary Jane Rnisely, City Attorney’s Office, Billings.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

James Smith appeals from the June 14, 1995 Judgment of the Thirteenth Judicial District Court, Yellowstone County, convicting him and sentencing him to sixty days in jail and payment of fines and costs for driving while under the influence of alcohol, driving with no proof of vehicle insurance, and failure to carry vehicle registration. We reverse and remand.

We consider the following issue on appeal:

Did the District Court err in failing to adequately inquire into Smith’s complaints of ineffective assistance of counsel?

Factual and Procedural Background

On November 2, 1993, a Billings Police Officer stopped Smith for speeding. Upon suspicion that Smith was intoxicated, the officer conducted several field sobriety tests. The officer testified that Smith had difficulty following the instructions and performing the tests. Smith failed to produce the vehicle registration or proof of insurance upon request. Smith was arrested and transported to the Yellowstone Detention Center, where a videotaped interview was conducted.

In two separate proceedings initiated in the Billings City Court, Smith was charged with and convicted of driving while under the influence, in violation of § 61-8-401, MCA, and driving with no proof of vehicle insurance, in violation of § 61-6-301, MCA, and failure to carry vehicle registration, in violation of § 61-3-322, MCA. Smith appealed both City Court judgments to the District Court. The District Court consolidated the appeals.

Smith filed a financial statement and request for appointment of counsel, and the District Court appointed the Yellowstone public defender’s office to represent Smith. Trial de novo was set for February 21, 1995. Before trial, Smith’s counsel filed a motion to continue the trial, and the District Court reset the trial.

A jury trial was held on June 6, 1995. Several times during the course of the trial, Smith asked the court for a continuance so that he could get a different attorney, stating that he did not feel his court-appointed attorney was prepared or representing his best interests. The court denied Smith’s requests. The jury returned verdicts of guilty on all three charges and the court sentenced Smith to sixty days in jail for the DUI charge, with all but three days suspended on certain conditions which included payment of jury costs incurred in the City Court and District Court trials. The court sentenced Smith to pay certain fines and surcharges for the convictions of driving with no vehicle insurance and failure to carry vehicle registration.

Standard of Review

We have held that motions for continuance are addressed to the discretion of the district court and are reviewed on appeal for abuse of discretion. Section 46-13-202, MCA; State v. Haskins (1992), 255 Mont. 202, 207, 841 P.2d 542, 545 (citing State v. LaPier (1990), 242 Mont. 335, 790 P.2d 983). Likewise, it is within the sound discretion of the trial court to rule on the substitution of counsel and we will not overturn a decision absent a showing of an abuse of discretion. State v. Morrison (1993), 257 Mont. 282, 284, 848 P.2d 514, 516; State v. Martz (1988), 233 Mont. 136, 139, 760 P.2d 65, 67.

Issue

Did the District Court err in failing to adequately inquire into Smith’s complaints of ineffective assistance of counsel?

Smith alleges that the District Court erred in failing to hold a hearing on his complaints of ineffective assistance of counsel. The Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee a criminal defendant the right to the assistance of counsel. The right to counsel is fundamental and applies with equal force to all persons, regardless of their ability to compensate an attorney. State v. Enright (1988), 233 Mont. 225, 228, 758 P.2d 779, 781 (citing Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799). The assistance must be effective in order to give true meaning to that right and to the right to a fair trial. See Enright, 758 P.2d at 781 (citing State v. McElveen (1975), 168 Mont. 500, 503, 544 P.2d 820, 821-22).

A defendant is entitled to a hearing on the issue of ineffective assistance of counsel where the defendant presents a “seemingly substantial complaint” about effective assistance. If the defendant presents a “seemingly substantial complaint” the court should hold a hearing on the request for substitution of counsel. Kills On Top v. State (1996), [279 Mont. 384], 928 P.2d 182, 190; State v. Weaver (1996), 276 Mont. 505, 511, 917 P.2d 437, 441; State v. Finley (1996), 276 Mont. 126, 143, 915 P.2d 208, 218; Morrison, 848 P.2d at 516.

We have held that the threshold issue in determining whether a “substantial complaint” exists is “not whether counsel was ineffective, but whether the District Court erred in failing to make an adequate inquiry into [a defendant’s] claim of ineffective assistance of counsel.” Weaver, 917 P.2d at 441. In determining if the defendant presented a seemingly substantial complaint about counsel, “it follows that the district court must make an adequate inquiry into the defendant’s complaints.” Finley, 915 P.2d at 219.

In those cases where this Court has found a district court’s inquiry into a defendant’s complaints about counsel adequate, the district court considered the defendant’s factual complaints together with counsel’s specific explanations addressing the complaints. State v. Craig (1995), 274 Mont. 140, 906 P.2d 683; Morrison, 848 P.2d 514.

In Craig, this Court found that the district court had adequately-inquired into the defendant’s complaints by considering Craig’s complaints together with counsel’s explanation of the attorney-client relationship. Craig’s lack of cooperation with counsel, his failure to allege any facts in support of his motion, and the specific explanation by Craig’s counsel concerning Craig’s allegations supported the district court’s finding that no hearing was warranted on Craig’s effective assistance of counsel complaint. Craig, 906 P.2d at 689-90.

In Morrison, the defendant wrote a letter to the judge four months before trial expressing his concern that counsel had not yet contacted him. Morrison, 848 P.2d at 516. The judge contacted counsel and requested that he speak to the defendant. The defendant made no further complaints until sentencing. Morrison, 848 P.2d at 516. Upon the defendant’s complaint at the sentencing hearing, the court questioned counsel who recounted to the court specific discussions he had had with the defendant. Morrison, 848 P.2d at 516. The substance of the discussion convinced the district court that there had not been a breakdown of communication between attorney and client. Relying on counsel’s comments and the fact that the defendant failed to reiterate his complaints at trial, the district court held that the defendant’s complaints did not warrant a hearing. This Court held that the district court adequately inquired into Morrison’s complaints. Morrison, 848 P.2d at 517.

If a district court fails to address a defendant’s complaints regarding effectiveness of counsel, the court may place a defendant in the untenable position of choosing between proceeding with ineffective counsel or proceeding pro se. “Such a set of options is in essence no choice at all.” Craig, 906 P.2d at 689 (citing Enright, 758 P.2d at 782).

This Court has found reversible error where a district court fails to make an initial inquiry into a defendant’s complaints about counsel. In Enright, this Court held that it was reversible error for the district court to fail to question defendant about her complaints concerning counsel before allowing her to proceed pro se. This error, in effect, deprived Enright of the opportunity to make a meaningful choice to proceed pro se. Enright, 758 P.2d at 782.

In another case, this Court found the lower court record “devoid of any indication that the court made even a cursory inquiry into [the defendant’s] complaints about his counsel’s representation.” Weaver, 917 P.2d at 441. The district court had not considered or ruled upon the defendant’s motion to “relieve” counsel; rather the court indicated that Weaver could pursue his allegations through habeas corpus proceedings. Weaver, 917 P.2d at 441. We remanded the case so that the district court could make an adequate inquiry into Weaver’s allegations and determine if he had presented substantial complaints.

Finally, in Finley, we held that in determining whether Finley presented substantial complaints about the effectiveness of his counsel, the district court should have inquired into the complaints and made “some sort of a critical analysis at the time the motion was filed.” Finley, 915 P.2d at 219.

Finley complained about his counsel in a motion for change of venue, listing several factual reasons to support his allegations. Finley, 915 P.2d at 218. The district court denied Finley’s motion without a hearing. After trial, in which Finley was found guilty of burglary and sexual intercourse without consent, Finley wrote a letter to the county attorney’s office alleging that his counsel was ineffective, that counsel refused to discuss terms of an appeal and refused to speak with him at all. Finley, 915 P.2d at 212. After the State moved the district court for a hearing on the ineffective assistance claim, the court held a post-trial hearing in which it found that Finley’s counsel had rendered effective assistance. Finley, 915 P.2d at 212.

In a post-conviction petition Finley alleged that the district court erred in failing to conduct a hearing on his complaints of ineffective assistance alleged in his motion to change venue. The State argued that the district court’s duty to grant a hearing on substantial complaints of ineffective assistance of counsel extended only to motions for substitution of counsel. Finley, 915 P.2d at 218. It reasoned that because Finley’s pro se motion sought a change of venue, not dismissal or substitution of counsel, the court need not consider the necessity of a hearing on the ineffective assistance of counsel complaint. This Court held that “’[t]he legal effect of any court-filed paper — be it a motion, a pleading or some other instrument — is to be measured by its content rather than by the author-provided title.’” Finley, 915 P.2d at 218 (quoting Hulsey v. Mid-America Preferred Insurance Co. (Okla. 1989), 777 P.2d 932, 936 n.14). We found that the substance of Finley’s motion for change of venue indicated that he was in fact complaining about the assistance of counsel. Because the substance of the motion was a complaint of ineffective assistance of counsel it was necessary that the district court inquire into the validity of his complaints. Finley, 915 P.2d at 218. We held that the district court failed to make an initial determination of whether Finley presented substantial complaints and, therefore, that the court erred. Finley, 915 P.2d at 219. The error was held to be harmless because the district court conducted a post-trial hearing on Finley’s complaints regarding his counsel’s representation. Finley, 915 P.2d at 219.

Smith, like Finley, did not denominate his motion a “Request for Substitution of Counsel.” However, as we said in Finley, a court-filed paper should be measured by its content rather than by its title. Finley, 915 P.2d at 218. Likewise, Smith’s motion for a continuance should be considered for its content rather than for its form. In this case, Smith asked for a continuance for the express purpose of finding new counsel because his present counsel was not familiar with the case. This request must be viewed as a complaint of ineffective assistance of counsel which requires an adequate inquiry by the district court.

The transcript reveals that Smith made more than conclusory allegations regarding his dissatisfaction with counsel. The court, however, cut him off without any inquiry into the allegations and gave him a choice between keeping his second court-appointed counsel and representing himself.

Smith expressed his concerns immediately after the judge made his opening remarks to the jury.

THE DEFENDANT:... I still feel Mr. English does not represent my best interests, nor do I believe I am ready to defend myself. ... I tried to contact several attorneys yesterday, ... I would like to ... ask for a continuance so that I might find counsel.
THE COURT: Mr. Smith, your request for a continuance is denied.... You do not get a choice of an attorney, unless you choose to retain one yourself.
THE DEFENDANT: That is what I would like to do.... [W]e had a falling out yesterday. He calls me the day before the trial and is going to start to prepare for it.

After opening statements Smith again complained about counsel.

THE DEFENDANT:... From his opening statements I can see that I know more about this than he does.
MR. ENGLISH: Your Honor, may the record reflect I have consulted with Mr. Smith on two prior occasions. ... I have adequately prepared for this case. I’m prepared for trial. Mr. Smith might have a difference of opinion as to what this case should be about and how it should be handled, but as his attorney, I’m going to handle it the way I see fit. ...
THE COURT: [After again giving Smith the choice of having English represent him or having English serve as stand-by counsel and Smith represent himself:]
Those are your two choices. How would you like to proceed?
THE DEFENDANT: By the opening statement he said I refused—
THE COURT: Mr. Smith, I don’t want to get into the opening statement. Do you want Mr. English to represent you in this case?
THE DEFENDANT: As I stated, I do not want him to represent me. I don’t feel I’m capable representing myself. I do know more about this than he does. If he watched the movie he would know that I didn’t refuse. He is saying the same thing she said.
THE COURT: Do you chose to represent yourself?
THE DEFENDANT: No, Your Honor. I would like to request a continuance so I may get a lawyer.

Contrary to the State’s claim that “[d] efendant was afforded several opportunities to discuss his complaints about Mr. English with the district court,” the transcript reveals that the court did not allow Smith to substantiate his allegations that counsel was ill-prepared for the trial. Although counsel apparently convinced the court that he was not rendering ineffective assistance of counsel, the court did not allow Smith to elaborate on his complaints nor did it inquire into Smith’s factual complaints regarding counsel’s lack of knowledge of the case.

In prior decisions in which we held that an attorney's response to a defendant’s complaints about counsel satisfied the court’s inquiry, the attorney recited specific facts addressing the complaints revealing that there was adequate communication between the áttomey and the defendant and that the attorney otherwise was effectively representing the defendant. Here, the court did not allow Smith to express his specific complaints and counsel’s assurances that he was prepared were not adequate to rebut Smith’s complaint that counsel was not familiar with the case and had not even watched the videotaped interview conducted by the police. Absent an initial inquiry into the complaints the court could not have determined whether Smith’s complaints were “substantial” enough to warrant a hearing.

Conclusion

We hold that the District Court failed to adequately inquire into Smith’s complaints about ineffective assistance of counsel and thereby foreclosed Smith’s opportunity for a hearing on the matter. It is necessary, therefore, to remand this case to the District Court so that it can make an adequate inquiry into Smith’s allegations and determine whether he had substantial complaints. If the court determines that Smith had substantial complaints, the court will proceed accordingly and conduct a hearing to determine the validity of Smith’s complaints. If the court ultimately finds that Smith was denied effective assistance of counsel, the judgments and sentences against him are vacated, including the impositions of fines and costs, and a new trial is ordered. See Weaver, 917 P.2d at 441-42. If, on the other hand, the court determines that Smith has not presented seemingly substantial complaints or, that upon a hearing, he was not denied effective assistance of counsel, then the judgment and conviction are affirmed, subject to Smith’s right to appeal the District Court’s determinations on remand.

In the event the conviction is affirmed, that portion of the sentence imposing costs related to the proceedings in Justice Court is reversed. Section 46-17-311(1), MCA, provides that “all cases on appeal from a justices or city court must be tried anew in the district court ....” In other words, an appeal to a district court for a trial de novo begins a new proceeding against the defendant. In appeals to the District Court, only costs in connection with the District Court proceeding may be imposed as part of a sentence. Section 46-18-201(l)(b), MCA; § 46-18-232, MCA. We hold that the costs associated with the Justice Court proceedings were not costs incurred in connection with the District Court proceedings against Smith and therefore, the imposition of such costs was an improper exercise of the District Court’s sentencing authority which must be reversed in the event the conviction is affirmed.

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


text:
    STATE OF MONTANA, Plaintiff, vs. Steven D. Wilson, Defendant.
    NO. CDC 88-62
    DECISION
    DATED this 2nd day of December, 1996.
   On January 2, 1996, it was ordered and decreed that for the offense of Aggravated Assault, a felony, in violation of Section 45-5-202(1), MCA, occurring April 1,1988, the defendant is sentenced to Montana State Prison for a period often years. The defendant is granted 35 days’ credit for time served prior to sentencing. It is recommended that while at Montana State Prison the defendant be required to complete chemical dependency counseling, anger management, criminal thinking errors, and all other programs felt appropriate prior to any type of parole release. It is further recommended that prior to being released into community supervision, the defendant process out through a pre-release center in which he will be allowed to benefit from structured mental health and chemical dependency interventions that will help facilitate a gradual reintegration back into the community. At any time the defendant is released back into a community setting, it is recommended that conditions be mandated as stated in the January 2, 1996 judgment.

On November 15,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Kristina Guest, legal intern of the Montana Defender Project. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition shall be dismissed with prejudice.

Done in open Court this 15th day of November, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


author: JUSTICE HUNT

text:
    IN RE THE ESTATE OF LOU E. HILL, Deceased.
    No. 96-235.
    Submitted on Briefs November 21, 1996.
    Rehearing Denied March 6, 1997.
    Decided February 6, 1997.
    54 St.Rep. 101.
    281 Mont. 142.
    931 P.2d 1320.

      For Appellant: Duncan A. Peete, Moulton, Bellingham, Longo & Mather, Billings.
    For Respondent: Mark D. Parker, Nicole A. Temkin, Parker Law Firm, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Louanne Woodford (Louanne) appeals the decision of the Sixteenth Judicial District Court, Garfield County, holding that two disputed bank accounts were the property of Lou E. Hill’s probate estate, and further holding that Lou E. Hill (Hill) had not intended to leave the disputed accounts to Louanne as his joint tenant with right of survivorship. We reverse and remand.

ISSUES

The following issues are presented on appeal:

1. Did the District Court err in concluding that the disputed bank accounts were assets of Hill’s probate estate and not joint accounts with rights of survivorship between Hill and Louanne?

2. Did the District Court err in concluding that the Inventory and Appraisement of Hill’s estate constituted a judicial admission by Louanne that the disputed accounts were assets of Hill’s probate estate?

FACTS

In 1984, Hill opened a joint checking account with his wife, Margaret, at the Garfield County Bank. After Margaret died in 1985, Hill executed a new signature card for the account with his daughter, Louanne. The new signature card was signed by both Hill and Louanne as authorized signatories and listed the account as a joint account with right of survivorship. Also in 1985, Hill and Louanne opened a second checking account at the First National Bank in Miles City. The signature card for this account also was signed by both of them and indicated the account was a “joint” one.

Louanne testified that the accounts were for her father’s use during his lifetime. She farther testified that her father told her that, in the event of his death, she should pay his immediate expenses from these accounts and then do as she pleased with the balance of the money.

In December 1990, Hill died testate in Garfield County. His daughter, Louanne, and his son, Phil Hill (Phil) were named by his will as co-personal representatives. Phil and Louanne were also the major beneficiaries of Hill’s will. After Hill’s death, Louanne closed the Garfield County Bank joint account and deposited the remaining funds into an individual account. She also executed a new signature card at the First National Bank in Miles City, changing the joint checking account at that bank to an individual account as well.

During preparations for the probating of Hill’s estate, a dispute arose regarding how the two bank accounts should be treated. The attorney handling the estate notified Louanne and Phil that he needed to know whether the accounts were estate property or Louanne’s property. The treatment of the accounts dictated whether they would be included in the estate’s inventory or not. Louanne contended that her right of survivorship meant the funds in the accounts belonged to her, not to the estate. Phil contended that Hill had not intended to gift Louanne with the accounts prior to his death and, therefore, the accounts were properly included as part of Hill’s estate.

The attorney presented the parties with copies of the estate inventory which did not include the accounts as part of the estate. At some point, the attorney redrafted the inventory and moved the accounts from the joint property schedule to the estate property schedule. Both Phil and Louanne initialed the changes and signed the inventory, which was subsequently filed with the District Court.

Phil then petitioned the District Court for an accounting of the location and use of the accounts, which he contended were estate property. In response, Louanne moved to dismiss Phil’s petition, asserting that the accounts were originally jointly owned by her and her father and, since his death, were owned by her alone. She therefore asserted that the estate was not entitled to an accounting regarding the accounts. After a hearing, the District Court concluded that the nature of the accounts was ambiguous, justifying an inquiry into Hill’s actual intent. It further concluded that Louanne’s name was placed on the accounts for convenience’s sake only, and that the accounts were estate property. Louanne appeals.

STANDARD OF REVIEW

This Court reviews a district court’s findings of fact to determine whether they are clearly erroneous. In re Estate of Parini v. Montana Dept. of Revenue (1996), [279 Mont. 85], 926 P.2d 741, 743 (citing Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906). This Court reviews a district court’s conclusions of law to determine whether the court’s interpretation of the law was correct. Parini, 926 P.2d at 743 (citing Stratemeyer v. Lincoln County (1996), 276 Mont. 67, 79, 915 P.2d 175, 182).

As a general rule, construction and interpretation of written agreements is a question of law for the cotut to decide. Klawitter v. Dettman (1994), 268 Mont. 275, 281, 886 P.2d 416, 420 (citing First Security Bank of Anaconda v. Vander Pas (1991), 250 Mont. 148, 152-53, 818 P.2d 384, 387). Likewise, it is a question of law whether ambiguity exists in a written agreement. Klawitter, 886 P.2d at 420 (citing Audit Services, Inc. v. Systad (1992), 252 Mont. 62, 65, 826 P.2d 549, 551).

DISCUSSION

1. Did the District Court err in concluding that the disputed bank accounts were assets of Hill’s probate estate and not joint accounts with rights of survivorship between Hill and Louanne?

The disposition of the disputed bank accounts in this case depends on how the accounts are classified, whether as joint tenancies with rights of survivorship; as tenancies in common; or as personal accounts of Lou E. Hill. The District Court concluded the accounts were the personal property of Lou E. Hill and, therefore, became part of his estate upon his death.

The creation of a joint tenancy (or joint interest) with right of survivorship is governed by statute. Section 70-1-307, MCA, provides:

A joint interest is one owned by several persons in equal shares by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy or when granted or devised to executors or trustees as joint tenants.

Under the plain language of the above statute, a right of survivorship may only be created by the inclusion of an express declaration indicating the parties’ intent to create it. A tenancy in common is also statutorily defined:

Every interest created in favor of several persons in their own right, including husband and wife, is an interest in common unless acquired by them in partnership for partnership purposes or unless declared in its creation to be a joint interest, as provided in 70-1-307, MCA.

Section 70-1-314, MCA.

When the classification of a bank account is in dispute, the court first looks at the signature card accompanying the account in order to resolve the problem. Casagranda v. Donahue (1978), 178 Mont. 479, 483, 585 P.2d 1286, 1289 (citing State Board of Equalization v. Cole (1948), 122 Mont. 9, 195 P.2d 989). The court must then determine whether the signature card complies with the statutory requirements, set out above, for creating a joint tenancy with right of survivorship or a tenancy in common. Estate of Lahren (1994), 268 Mont. 284, 286, 886 P.2d 412, 413.

a. The Garfield County Bank account.

The signature card for the Garfield County Bank account lists the account in the name of Lou E. Hill alone. However, both Hill and Louanne signed as authorized signatories and the account is denominated as a “joint” account. In addition, the Garfield County Bank signature card explicitly set forth a paragraph describing the account as a “joint account, with right of survivorship.” Both Hill and Louanne again signed the signature card below this paragraph, acknowledging that they had read and understood it.

The District Court, however, focused on the fact that the account was listed in the name of Lou E. Hill alone and, on that basis, determined that the signature card was ambiguous. As noted above, the determination of whether an agreement is ambiguous is a question of law which this Court reviews for correctness. Klawitter, 886 P.2d at 420. Given the statutory parameters for the creation of a joint tenancy with right of survivorship, we conclude that the District Court’s determination of ambiguity was incorrect.

Section 70-1-307, MCA, requires an express declaration of the intent to create a joint tenancy. The Garfield County Bank signature card expressly declared that the account created was a joint tenancy with right of survivorship. Both Hill and Louanne signed the signature card below the paragraph setting forth this declaration. In so doing, they both indicated that they understood and agreed that the account should carry a right of survivorship. The language used could hardly be clearer, and the failure of the bank to list the account in both their names cannot overcome it. Since the signature card followed the statutorily mandated procedure for creating a joint tenancy with right of survivorship, there was nothing left for the court to construe. Therefore, the District Court’s determination of ownership of the Garfield County Bank account is reversed.

b. The First National Bank of Miles City account.

Like the Garfield County Bank account signature card, the First National Bank of Miles City signature card was marked as a “joint” account. But unlike the other account’s signature card, the signature card for the First National Bank of Miles City account carried the names of both Hill and Louanne. And, unlike the other account, the Miles City account lacked any specific language indicating that the account was a joint tenancy with right of survivorship. The only indication of intent is found in the checking of the box next to the word “joint.” Based on the lack of any other indication on the signature card regarding how the account should be treated, the District Court determined the card was ambiguous, justifying an inquiry into the actual intent of the decedent when the account was opened.

However, as noted above, § 70-1-314, MCA, expressly provides that “[e]very interest created in favor of several persons in their own right ... is an interest in common” if it is not a partnership asset or a joint tenancy with right of survivorship. No one argues that the disputed bank account was established as a partnership asset, and the account cannot be a joint tenancy because the necessary “express declaration” is lacking. Therefore, the interest is a tenancy in common. The District Court’s acceptance of parol evidence to discern Hill’s intent does not take into account the existence of this statute, which, if applied, conclusively settles the issue of ownership.

This conclusion is supported by this Court’s decisions In re Estate of Shaw (1993), 259 Mont. 117, 855 P.2d 105, and Lahren, 886 P.2d 412. In Shaw, this Court acknowledged that the various earlier decisions in this area were to some extent inconsistent. We therefore stated:

Without attempting to reconcile all of the various cases dealing with the creation of joint tenancies that have come before this Court, we hold as follows:
1. The creation of a joint tenancy (same as [a] joint interest) in property is by Montana statute. Sections 70-1-307 and 70-1-314, MCA, mandate that if parties want to create a joint tenancy (same as [a] joint interest) in property, they must make an express declaration that they intend to create a joint tenancy or joint interest. Simply using words such as “or” or “and/or” without expressly using the words “joint tenancy,” “j oint tenancy with right of survivorship,” or “joint interest” will not suffice to create a joint tenancy, absent a specific statute to the contrary.
2. In the event the parties do not expressly declare that the ownership interest created in the instrument of title or transfer is a joint tenancy or joint interest or a partnership interest, then a tenancy in common or interest in common will be created.

Shaw, 855 P.2d at 111. See also Lahren, 886 P.2d at 413.

In determining that an inquiry into the decedent’s actual intent was warranted, the District Court relied on Seman v. Lewis (1992), 252 Mont. 508, 830 P.2d 1294. While noting the applicability of § 70-1-307, MCA, this Court in Seman overlooked the secondary applicability of § 70-1-314, MCA, which mandates that an interest held by more than one person, if it is not a partnership asset or a joint tenancy with right of survivorship, must be deemed a tenancy in common. To the extent that the authorization of the use of extrinsic evidence in Seman contradicts the dictates of § 70-1-314, MCA, Seman is overruled.

Since Hill and Louanne created a joint interest in the Miles City bank account which is not a joint tenancy with right of survivorship or a partnership asset, the account must be construed as a tenancy in common. Section 70-1-314, MCA. As such, each holder of an interest in the account is entitled to a proportional share of its proceeds. Therefore, the estate inherits Hill’s one-half interest as his successor, while Louanne retains her one-half share.

2. Did the District Court err in concluding that the Inventory and Appraisement of Hill’s estate constituted a judicial admission by Louanne that the disputed accounts were assets of Hill’s probate estate?

As a second basis for determining that the disputed accounts should be included in the estate, the District Court noted that Louanne herself had acquiesced to such a result when she allowed the accounts to be listed as estate property on the estate inventory, which she then initialed. The District Court concluded that the signing and filing of the estate inventory was a judicial admission by Louanne that the accounts were estate property. The court deemed Louanne to be bound by this judicial admission, barring her from later arguing that the accounts were not estate property. For her part, Louanne contends that she did not understand the legal consequences of moving the accounts from one schedule to another within the estate inventory. She asserts that she believed at the time that the change was made for tax purposes only and that it would not affect her claimed ownership of the accounts.

A “judicial admission” is “an express waiver made in court by a party or his attorney conceding for the purposes of trial the truth of some alleged fact.” Kohne v. Yost (1991), 250 Mont. 109, 112, 818 P.2d 360, 362. (See also Black’s Law Dictionary 48 (6th ed. 1990): “Judicial admissions are those made in court by a person’s attorney for the purpose of being used as a substitute for the regular legal evidence of the facts at the trial.”) This Court, however, has stated that judicial admissions need not necessarily be made in court. Rather,

[¡judicial admissions may occur at any point during the litigation process. They may arise during discovery, pleadings, opening statements, direct and cross-examination, as well as closing arguments.

Kohne, 818 P.2d at 362 (citation omitted).

In this case, however, the initialing and signing of the inventory was not done in the course of litigation but, rather, in the course of probate. The events which in this case gave rise to litigation must not be confused with the litigation itself; they are two separate and distinct events. Therefore, Louanne’s initialing of the estate inventory cannot be considered a judicial admission because it did not occur during the course of litigation.

There is, however, a statutorily-created conclusive presumption which Phil argues may be applicable. Section 26-1-601, MCA, provides in part:

The following presumptions are conclusive ... (1) the truth of a declaration, act, or omission of a party, as against that party in any litigation arising out of such declaration, act, or omission, whenever he has, by such declaration, act, or omission, intentionally led another to believe a particular thing true and to act upon such belief.

Section 26-1-601(1), MCA. This is “the statutory codification of the doctrine of equitable estoppel.” Belehumeur v. Dawson (D.Mont.1964), 229 F.Supp. 78, 86. Unlike the case law regarding judicial admissions, the codified version of the equitable estoppel doctrine does not require that the declaration, act, or omission occur during litigation. Instead, it requires only that litigation arise out of the declaration, act, or omission. Equitable estoppel, however, involves far more than the mere existence of a declaration, act, or omission which gives rise to litigation.

Equitable estoppel requires the proof of six separate elements:

1) There must be conduct, acts, language or silence by the estopped party amounting to a representation or concealment of facts;
2) these facts must be known to the estopped party at the time of the conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to the estopped party;
3) the truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time they were acted upon;
4) the conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under circumstances that it is both natural and probable that it will be acted upon;
5) the conduct must be relied upon by the other party; and
6) the other party must in fact act upon it in such a manner as to change the other party’s position for the worse.

Bache v. Owens (1996), [280 Mont. 106], 929 P.2d 217, 221 (citing Ducham v. Tuma (1994), 265 Mont. 436, 441, 877 P.2d 1002, 1006). Furthermore, “equitable estoppel is not favored and will be sustained only upon clear and convincing evidence.” Bache, 829 P.2d at 221 (quoting Ducham, 877 P.2d at 1006).

In this case, Phil argues that estoppel is appropriate to prevent Louanne from claiming the disputed accounts as her own, given that she formerly allowed their inclusion in her father’s probate estate. Equitable estoppel cannot apply, however, because Phil, acting on behalf of the estate, failed to prove each and all of the necessary elements. In particular, Phil has not shown that the estate relied on Louanne’s representation to its detriment. In addressing this element, Phil claims a detriment arising from his agreement to pay one-half of the estate taxes if Louanne included the accounts in the estate. This does not translate into a detriment to the estate, however. If the disputed accounts are excluded, the estate taxes will be reduced accordingly. Phil, as personal representative and as an heir, may well have an obligation to allocate the taxes due on the estate and to pay some portion thereof. This obligation, however, is not dependent on the issue of which specific assets are or are not included in the estate.

Phil also raises on appeal the applicability of the doctrine of judicial estoppel. He acknowledges, however, that he “did not plead or attempt to prove judicial estoppel” at the hearing before the District Court. It is well settled that this Court will not hear an issue which is raised for the first time on appeal. Rasmussen v. Lee (1996), 276 Mont. 84, 88, 916 P.2d 98, 100 (citation omitted). We therefore decline to address the possible applicability of this separate but related doctrine.

Reversed and remanded for proceedings consistent with this opinion.

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


author: JUSTICE LEAPHART JUSTICE NELSON JUSTICE GRAY,

text:
    TAMI KAPTEIN, a minor child, by and through her parents KATHY KAPTEIN and MARVIN KAPTEIN, Plaintiffs and Appellants, v. CONRAD SCHOOL DISTRICT, STATE OF MONTANA, Defendant and Respondent.
    No. 96-490.
    Submitted on Briefs January 16, 1997.
    Decided February 6, 1997.
    54 St.Rep. 106.
    281 Mont. 152.
    931 P.2d 1311.

      For Appellants: Cameron Ferguson; Hartelius, Ferguson, Baker & Kazda, Great Falls.
    For Respondent: Ronald F. Waterman and Catherine M. Swift; Gough, Shanahan, Johnson & Waterman, Helena.
    For Amicus: Janice Frankino Doggett, Attorney at Law, Helena (for Montana School Boards Association); Elizabeth A. Kaleva, Attorney at Law, Helena (for School Administrators of Montana); Dennis Moreen, Attorney at Law, Helena (for Montana Education Association); Geralyn Driscoll, Attorney at Law, Helena (for Office of Public Instruction); Jock O. Anderson, Attorney at Law, Helena (for Montana High School Association).
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Kathy and Marvin Kaptein (Kapteins) are residents and taxpayers in Conrad, Montana. In October of 1995, the Kapteins filed suit in the Ninth Judicial District Court, Pondera County, asking the court to enter a judgment requiring that the Conrad School District Board of Trustees allow their 7th grade daughter, Tami, to participate in the public school sports programs. Tami was, and is, a student at the Conrad Christian School. The private school in which Tami is enrolled offers ski days and arranges for basketball practices and an intramural game. The Conrad area offers some additional athletic programs which Tami participates in, for example, soccer and softball. In addition, Tami seeks to play on the public school athletic teams for social purposes related to friendship and team camaraderie. Tami participated in the public school girls’ sports program during the 1994-95 school year. This participation was without the approval of the Superintendent or the Board of Trustees. Her participation in the public school program was terminated upon discovery by the Board of Trustees. The Board of Trustees refused to allow Tami to further participate in the public school sports programs since the Board’s policy limited participation to students enrolled full time in public school. The Kapteins contend that the school’s policy is unconstitutional under the provisions of Article X, Section 1 of the Montana Constitution. On November 20, 1995 the District Court issued a preliminary injunction which allowed Tami to play 7th grade volleyball. Subsequently, both parties moved for summary judgment. The District Court upheld the constitutionality of the Board’s policy, granted summary judgment for the Conrad School District and dissolved the preliminary injunction. The Kapteins then sought an injunction pending appeal under Rule 40, Montana Rules of Appellate Procedure, which this Court denied. We affirm the District Court’s grant of summary judgment.

DISCUSSION

The Kapteins based their constitutional argument on Article X, Section 1, of the Montana Constitution, which states:

It is the goal of the people to establish a system of education which will develop the full educational potential of each person. Equality of educational opportunity is guaranteed to each person of the state.

Citing our decision in State, ex rel., Bartmess v. Board of Trustees (1986), 223 Mont. 269, 726 P.2d 801, Kapteins contend that Tami has a constitutionally protected right to participate in public school extracurricular activities and that this Court should apply a middle-tier analysis in balancing Tami’s right to participate against the governmental interests to be served by infringing that right. The School District takes the position that middle-tier analysis is not appropriate in this case and, even if middle-tier analysis were applied, the school’s educational interests in permitting only students enrolled in the school district to participate in school-sponsored extracurricular activities outweighs any right that Tami may have to participate.

Our review of cases from other jurisdictions reveals no decisions, federal or state, which recognize a constitutional right of a nonenrolled student to participate in a public school sports program.

The United States Constitution, unlike the Montana Constitution, does not explicitly or implicitly guarantee a right to education. San Antonio Indep. School Dist. v. Rodriguez (1973), 411 U.S. 1, 35, 93 S.Ct. 1278, 1297-98, 36 L.Ed.2d 16. In keeping with the Rodriguez precedent, the federal courts have applied a rational relationship test to claims that private school students have been unconstitutionally excluded from participating in public school extracurricular activities. In Denis J. O’Connell High School v. Virginia High School League (1978), 581 F.2d 81, a parochial school sought admission to the Virginia High School League which regulates and governs all athletic, literary and debating contests between the public high schools in the state of Virginia. The private school contended that, in restricting membership to public high schools, the League, and thus the state, was violating equal protection. The Fourth Circuit held that, since there was no fundamental right or suspect classification involved, the classification would be subject to the rational relationship test. Denis J. O’Connell High School, 581 F.2d at 84. The court held that the classification was rationally related to the League’s policy of limiting student transfers to defined geographic areas and of discouraging the recruiting of students for purposes of athletic competition. Since private schools in Virginia suffer no geographic limitation with respect to the areas from which they may draw students, the court held that admission of private schools into the League would undermine that policy. Denis J. O’Connell High School, 581 F.2d at 84-87 Accord Valencia v. Blue Hen Conference (D. Del. 1979), 476 F.Supp. 809, 826 (holding that the public high school association’s exclusion of private schools was supported by legitimate interests in preventing athletic recruiting and maintaining a competitive balance among schools within the association).

We note the following three decisions from foreign jurisdictions which address the question of whether a nonenrolled student has a right under state law to participate in public school courses or extracurricular activities.

In Swanson v. Guthrie Independent School Dist. No. I-1, et al. (D. Okla. 1996), 942 F.Supp. 511, parents who were home schooling their daughter sought permission from the board of education to have their daughter attend the public school on a part-time basis. The board denied the request and adopted a policy that required all students enrolling in the Guthrie Public Schools to do so on a full-time basis. Swanson, 942 F.Supp. at 512. The parents challenged the policy on various grounds including a contention that the policy violated the child’s constitutional right to attend public schools and her right to a free public education under the Oklahoma Constitution which provides constitutional guarantees of a “system of public schools ... open to all of the children of the state” as well as a “system of free public schools wherein all the children of the state may be educated.” Swanson, 942 F.Supp. at 514. The court acknowledged that under Oklahoma law, home schooling is considered an alternative education option. The court concluded, however, that the parents were seeking to “judicially abrogate the equivalency requirement for home schooling and replace it with an absolute right to use public schools to supplement the home school education. [Citation omitted.] This the Court will not do.” Swanson, 942 F.Supp. at 515. In rejecting the parents’ contention that the Oklahoma Constitution gave them the right to choose public school courses on a piecemeal basis, the court said:

Plaintiffs have failed to provide any evidence that defendants have deprived Annie of her right to a free public education. Annie has always been and continues to be entitled to a free public education. Nor have Plaintiffs provided any support for their contention that they may “pick and choose” what courses Annie will take in the public schools. Oklahoma law is clear that the local boards of education have the power to “[m]aintain and operate a complete public school system of such character as the board of education shall deem best suited to the needs of the school district.” Okla.Stat.Ann.tit. 70 § 5- 117(A)(3) (West Supp. 1995-96). The Oklahoma Legislature has also vested the State Board of Education with the authority to determine curricular standards for public schools. See Okla.Stat.Ann.tit. 70 § 11-103.6 (West Supp. 1995-96) (“By February 1,1991, the State Board of Education shall adopt curricular standards for instruction of students in the public schools of this state that are to be implemented not later than the 1993-94 school year.”). In light of existing Oklahoma law, the Court finds Plaintiffs’ reliance on School Board, District No. 18 of Garvin County v. Thompson, 24 Okla. 1, 103 P. 578 (1909) is misplaced. [Footnote omitted.] The Court also declines to adopt Plaintiffs’ strained interpretation of Oklahoma law to create a right to a free part-time public education.

Swanson, 942 F.Supp. at 514.

In Thomas v. Allegany County Board of Education (Md.Ct.Spec.App. 1982), 443 A.2d 622, 626, the appellate court applied heightened scrutiny to the claims of private school students who requested to participate in an all-county music program offered to full-time students enrolled in the public schools. The court applied the “compelling state interest” test to determine whether the board’s rule limiting participation to school district enrollees violated the equal protection clauses of the state or federal constitution. Thomas, 443 A.2d at 626-27. The court utilized the heightened scrutiny test because the private school students claimed that their exclusion infringed upon their freedom of religion under the free exercise clause of the First Amendment. The court concluded that the school district had satisfied the compelling state interest test in view of the “de minimi burden on the appellant’s freedom of religion and the legitimate interest in avoiding administrative inefficiency.” Thomas, 443 A.2d at 626.

Although the administrative impact of a decision mandating the participation of the private students into this public school program appears to us to be trivial, the precedent as it affects the broader spectrum of school administration is of a far more deleterious nature. With the opening of such “Pandora’s box”, there would be no device to preclude, for example, a private school having difficulty securing a qualified chemistry teacher from unilaterally deciding to transport the entire student body to a nearby public school for their chemistry education. The potential for administrative disruption is obvious. Thus, while we may agree that little if any administrative hardship would inure to the Board in permitting these three students to participate in the All-County Band, it is not for this Court to hold that the Board must admit them, in view of the broader implications involved. We think the school administrators and not courts, should decide how much administrative disruption is too much.

Thomas, 443 A.2d at 625-26.

The plaintiffs in Thomas also argued that, since the Maryland Constitution guaranteed “a thorough and efficient System of Free Public Schools ...” that they, as school-age children, were entitled not merely to be admitted to the public schools, but to any part or portion of the public school system which they choose. Thomas, 443 A.2d at 627. The court rejected this contention in view of the unreasonable burden such construction would place on the efficient administration of the public school system. The court recognized that if the legislature or school board wished to permit participation by parochial students, the court saw no impediment but did not think it was for any court to mandate the admission of those students. Thomas, 443 A.2d at 627.

Kapteins cite to the Michigan decision in Snyder v. Charlotte Public School District, Eaton County (Mich. 1984), 365 N.W.2d 151. In Snyder, the Michigan Supreme Court held that a private school student was entitled to enroll in a public grade school band course. In Snyder, the Michigan Supreme Court specifically declined to rule on the basis of constitutional arguments, relying instead upon a 60-year history of such sharing between public and private schools in Michigan and an interpretation of Michigan statutory law which permitted the “sharing” of school programs. Snyder, 365 N.W.2d at 157. In recognition of the potential problem acknowledged by the Maryland court in Thomas, i.e. private school students picking and choosing among various core academic courses, the Michigan court limited its decision to certain nonessential elective courses like band, art and shop. Snyder, 365 N.W.2d at 161-62.

Kapteins suggest that we should decide this case solely upon the basis of Tami’s right to participate in extracurricular activities; that we should not consider any “worse case scenarios,” and that we can, as the Michigan court did, narrowly craft a decision recognizing a right to participate only in certain nonacademic activities such as sports, shop, band and art. Given that Kapteins are asserting a constitutional right to the “full educational potential of each person” under Article X, Section 1, of the Montana Constitution, Tami’s appeal cannot be decided in such a vacuum. If Tami’s right to participate in extracurricular activities outweighs the School District’s interest in limiting participation to enrolled students, then Tami will not be the only nonenrolled person entitled to partake of the public school programs. Home-schoolers, dropouts and adults would have a right equal to that of private school students such as Tami Kaptein to participate in school programs on a part-time or piecemeal basis. Furthermore, as recognized by the Maryland court in the Thomas decision, there would be nothing preventing a private school from unilaterally deciding to transport its entire student body to the public school for purposes of taking an academic course such as computer science. Thomas, 443 A.2d at 626.

Having reviewed some of the relevant decisions from elsewhere around the country, we turn to a discussion of two Montana decisions which address a student’s right to participate in extracurricular activities: Moran v. School District #7 Yellowstone County (D. Mont. 1972), 350 F.Supp. 1180 and State, ex rel., Bartmess v. Board of Trustees (1986), 223 Mont. 269, 726 P.2d 801.

In 1972, the United States District Court for the District of Montana was presented with an issue as to whether a public school could, pursuant to school policy, prohibit a student from participating in extracurricular activities because the student was married. Moran, 350 F.Supp. at 1181-82. Moran argued that, in violation of the equal protection clause, the policy discriminated against married persons without any reasonable basis. The school district argued that the policy was justified as it helped discourage teenage marriages and helped those students who did marry to achieve academic success. Moran, 350 F.Supp. at 1183. The court rejected these rationales, stating:

There is no legislative authority for school board action in the area of matrimony. What married persons do with their time outside of school and how they discharge their matrimonial responsibilities is outside the statutory authority of the school board.

Moran, 350 F.Supp. at 1186. Judge Murray then went on to point out that if encouraging academic success of married students is the stated goal, that goal could be achieved in a nondiscriminatory fashion by tying participation in extracurricular activities to academic performance for all students, not just married students.

Further, a simple requirement that those unable to keep up academic work may not participate in extracurricular activities would have the same effect as limiting married students to academic work if the extra activities are the cause of the academic failure but this of course would be in no way discriminatory. This simple and easy method of ensuring that participation in extracurricular activities by any student is not done at the expense of his academic work dramatizes the prejudicial and invidious effects of the Board’s rule.

Moran, 350 F.Supp. at 1186.

For the above reasons, the federal district court issued a preliminary injunction restraining the board from enforcing its rule excluding married students. Moran, 350 F.Supp. at 1187.

Fourteen years later, the Helena School District adopted the very policy envisioned in Moran. That is, the Helena District integrated academic performance and extracurricular activity when, for purposes of furthering academic achievement, it adopted a policy requiring that no student (regardless of marital status) could participate in extracurricular activities unless he or she maintained a 2.0 grade point average. Bartmess, 726 P.2d at 802. The relators in Bartmess argued that the right to participate in extracurricular activities was a fundamental right and challenged the 2.0 rule as being a denial of equal protection and equal educational opportunity. Bartmess, 726 P.2d at 802. Without addressing the question of whether education itself is a fundamental right, we held that participation in extracurricular activities was not a fundamental right; that the claim warranted a middle-tier analysis and that the 2.0 rule did not violate either the equal protection clause or the equal educational opportunity clause found in Article X, Section 1, of the Montana Constitution. Bartmess, 726 P.2d at 804-805.

We determine that Kapteins’ claim of a right to participate, like the relators in Bartmess, must be analyzed under a middle-tier analysis. We recognized in Bartmess that a student’s right to participate in extracurricular activities, although not a fundamental right, is “clearly subject to constitutional protection.” Bartmess, 726 P.2d at 805. Under a middle-tier analysis there must be a “balancing of the rights infringed and the governmental interest to be served by such infringement.” Butte Community Union v. Lewis (1986), 219 Mont. 426, 434, 712 P.2d 1309, 1314. Thus, in the present context, the right to participate must be balanced against the School District’s interests in restricting participation to students enrolled in the public school system. Consistent with the middle-tier analysis conducted in Bart-mess, we must first determine whether the classification based upon enrolled students is reasonable. We then examine whether the governmental interest in making this classification based upon enrollment is more important than Tami Kaptein’s interest in participating in existing extracurricular activities.

As to the “reasonableness” of classifying students based upon whether they are enrolled in the public school system, we note that Article X of the Montana Constitution places a heavy emphasis on the concept of an educational “system.” Article X, Section 1(1), states that it is the goal of the people to “establish a system of education which will develop the full educational potential of each person.” Article X, Section 1(3), provides: “The legislature shall provide a basic system of free quality public elementary and secondary schools.” Article X, Section 9(1), creates a state board of education responsible for planning and evaluating programs for the state’s “educational systems.”

Article X, Section 9(3), creates a board of public education “to exercise general supervision over the public school system....” Given this heavy emphasis on the creation, supervision and quality of the state’s educational “system,” we hold that the School District’s classification of students based upon whether they are enrolled in the public school “system” is entirely reasonable.

We must then examine the School District’s interest in making this classification and weigh that interest against Tami Kaptein’s interest in participating.

The School District has set forth an extensive list of “educational reasons” for its policy of restricting participation to enrolled students. We will not delve into the particulars of that list other than to note that the primary “educational reason” propounded by the School District is that of providing a unified program in which required academic courses, elective courses and extracurricular activities are “integrated” so as to complement each other. The Board takes the position that the integrating of the academic and extracurricular activities does not lend itself to participation by nonenrolled students. This rationale finds ample support in our decision in Bartmess. In Bartmess, Helena School District No. 1 chose to adopt a policy whereby students in the system needed to maintain a 2.0 or “C” grade average for the preceding nine weeks in order to participate in extracurricular activities. The 2.0 standard was a higher standard than the 1.0 average needed to graduate from high school and was not based upon any scientific or statistical studies showing academic improvement as a result of such a policy. Bartmess, 726 P.2d at 802. Although the label “integrating” was not used to characterize the policy in Bartmess, the Helena School District was, in effect, “integrating” the athletic/extra-curricular program with the academic program. That is, the Helena School District made a policy decision that participation in extracurricular activities was tied to academic performance. In upholding this integrated approach, we stated:

We are not able to conclude, as the relators urge, that an opportunity to participate in extracurricular activities is more important than the achievement of average academic performance. We conclude that the government interests in developing the full educational potential of each person and providing a basic system of quality public education by the enactment of the 2.0 rule outweigh the students’ interest in participating in existing extracurricular activities.

Bartmess, 726 P.2d at 805.

In the present case, we are likewise unable to conclude that a private school student’s interest in participating in extracurricular activities is more important than the School District’s policy decision that, in order to effectively integrate academics and extracurricular activities, it needs to restrict participation to those students who are enrolled in the public school system.

Accordingly, we affirm the decision of the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and TRIEWEILER concur.

JUSTICE NELSON

specially concurs.

I concur in our analysis and in the result of our decision, and I have, accordingly, signed our opinion. I write separately only to set forth my position on two points, one of which is mentioned in our opinion.

First, in the context of the narrow legal question that was at issue in State, ex rel., Bartmess v. Board of Trustees (1986), 223 Mont. 269, 726 P.2d 801, and in the context of the legal issue here, I agree that a student’s participation in extracurricular school activities is not a fundamental right and that using middle tier analysis is justified. We have correctly so limited our analysis to those facts.

Beyond the narrow issues addressed in Bartmess and in the instant case, however, I do not want my agreement with our opinion to be read as any sort of concession that a Montanan’s rights under Article X, Section 1, of the Montana Constitution, to equal educational opportunity and to “a basic system of free quality public elementary and secondary” education are anything but fundamental rights.

As our opinion points out, Montanans, uniquely, are constitutionally guaranteed important equal public education rights. Moreover, the legislature is obligated by our constitution to provide the mechanism that will enable each person in this State to exercise those rights to effectuate the goal of the people of this state “to establish a system of education which will develop the full educational potential of each person.” Art. X, Sec. 1, Mont.Const.

In that context, and as to those rights, I believe that such rights are, indeed, fundamental. In truth, when one considers the obvious fact that, without a quality education, a person’s ability to exercise his or her other constitutional rights is severely circumscribed, then it becomes readily apparent just how fundamental the educational rights set forth in Article X, Section 1, really are. In our modem, technological, information-oriented society one’s constitutional right to seek gainful employment, to vote, to express one’s views, to pursue life’s basic necessities, to acquire and possess property and to seek safety, health and happiness, all, in a very real sense, depend upon a person’s education. And these are but just a few of the constitutional rights which Montanans enjoy. Simply put, educational rights are fundamental because they are rights without which other constitutional rights would have little meaning. See Butte Community Union v. Lewis (1986), 219 Mont. 426, 430, 712 P.2d 1309, 1311-13.

Second, as to the precise question at issue in the instant case, I would also conclude that Article X, Section 6, of the Montana Constitution prevents a public school district from allowing sectarian school students to participate in district activities. This provision of Montana’s Constitution provides:

Aid prohibited to sectarian schools. (1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination. (Emphasis added).

Article X, Section 6, which was carried over from our 1889 Constitution, represents the Constitutional Convention’s strong and continuing belief in the necessity to maintain Montana’s public school systems apart from any entanglements with private sectarian schools and to guard against the diversion of public resources to sectarian school purposes. As Delegate Burkhardt stated:

The primary and significant advantage secured by the present provision is the unequivocal support it provides for a strong public school system. The traditional separation between church and state, an important part of the American social framework, has also become a fundamental principle of American education. The growth of a strong, universal, and free educational system in the United States has been due in part to its exclusively public character. ... Any diversion of funds or effort from the public school system would tend to weaken that system in favor of schools established for private or religious purposes.

Montana Constitutional Convention, verbatim transcript, March 11, 1972, Vol. VI at pages 2008-09.

If Tami is allowed to participate in the public school sports programs, it is clear to me that the School District will be providing aid, either directly or indirectly, to the Conrad Christian School in violation of this express prohibition of Montana’s Constitution. This is so because sectarian schools derive their operating funds, for the most part, from tuition or church resources. To the extent that a sectarian school determines that it cannot afford, for example, a volleyball program, or a chemistry lab, or a band from these private sources, such schools can shift the financial burden of such programs to the public treasury by sending sectarian school students to the public school volleyball program, chemistry lab or band. In short, the public school district ends up effectively subsidizing the sectarian school’s educational program. This is precisely what Article X, Section 6, prohibits — indirect aid to sectarian schools.

Moreover, Montana’s constitutional prohibition against aid to sectarian schools is even stronger than the federal government’s. The former expressly prohibits either direct or indirect aid, while the latter prohibits aid which is found to be “direct.” See, e.g., Sloan v. Lemon (1973), 413 U.S. 825, 832, 93 S.Ct. 2982, 2987, 37 L.Ed.2d 939, 945, reh’g denied 414 U.S. 881, 94 S.Ct. 30, 38 L.Ed.2d 128 (tuition subsidies to parents of parochial students struck down) and Meek v. Pittenger (1975), 421 U.S. 349, 363, 95 S.Ct. 1753, 1762-63, 44 L.Ed.2d 217, 230, reh’g denied 422 U.S. 1049, 95 S.Ct. 2668, 45 L.Ed.2d 702 (direct loan of instructional materials has effect of advancing religion), and compare State ex rel. Chambers v. School District No. 10 (1970), 155 Mont. 422, 472 P.2d 1013 (Article XI, Section 8, of Montana’s 1889 Constitution, the predecessor of Article X, Section 6, prevents the busing of parochial students even though busing was permissible under the federal constitution).

Accordingly, while I concur fully in our analysis and in our opinion, I am also convinced that Montana’s Constitution expressly prohibits what Tami and the Conrad Christian School hoped to accomplish in this litigation. The School District may not allow her to participate in its programs unless she enrolls in the public school system.

JUSTICE LEAPHART concurs in the foregoing special concurrence.

JUSTICE GRAY,

concurring in part and dissenting in part.

Notwithstanding my disagreement with the Court’s analysis of the issue before us, I concur in the result the Court reaches. The basis of my disagreement is set forth briefly below, followed by a brief statement of my view regarding the appropriate constitutional basis on which this case should be resolved. In this latter regard, I join in Justice Nelson’s reasoning that Article X, Section 6, of the Montana Constitution clearly prohibits the Conrad School District from allowing Tami to participate in public school sports.

The critical facts of this case are that Tami is enrolled in the Conrad Christian School, a sectarian educational facility; she is not enrolled in the Conrad public school system. Tami seeks to play on public school athletic teams for social purposes and camaraderie. The School District refused to allow her to do so pursuant to its policy limiting participation to students enrolled full time in the public school.

Under these facts, Tami asserts a constitutional right to participate under Article X, Section 1, of the Montana Constitution. The Court relies on Bartmess in concluding that Tami has such a constitutional right. It then applies the Bartmess middle-tier scrutiny and concludes that the School District’s policy decision to restrict participation in extracurricular activities in order to effectively integrate academics and extracurricular activities is more important than Tami’s interest in participating. It holds that the School District’s policy does not violate the Montana Constitution.

While I agree that the policy does not violate the Montana Constitution, it is my view that Bartmess is inapplicable under the facts now before us with regard to both the constitutional right to participate and the resulting application of middle-tier scrutiny. In Bartmess, the challenge to the 2.0 GPA rule for participation in extracurricular activities was asserted by students enrolled full time in the public schools. We held that a public school student’s right to participate in extracurricular activities offered by the public school system in which the student is enrolled is entitled to some degree of constitutional protection.

Unlike in Bartmess, however, the right being asserted by Tami is totally separate and apart from any asserted right to participate in the overall educational system of the School District. She has a right, of course, to attend public schools but has chosen not to do so. Thus, she does not have the same right to participate as the students in Bartmess. I simply do not perceive any tie to Article X, Section 1, of the Montana Constitution such as existed in Bartmess and, as a result, middle-tier scrutiny is not appropriate.

In any event, the Montana Constitution contains a provision which affirmatively precludes the School District from permitting Tami to participate and which, therefore, provides the appropriate basis on which to resolve the present case. That provision — Article X, Section 6, of the Montana Constitution — is discussed in Justice Nelson’s special concurring opinion and needs no further discussion here. I join in that portion of Justice Nelson’s opinion.

Tami advances several cases, including a recent United States Supreme Court case, which she contends establish that no constitutional problems involving separation of church and state arise by allowing her to participate in public school athletics. In particular, she relies on Zobrest v. Catalina Foothills School Dist. (1993), 509 U.S. 1, 13-14, 113 S.Ct. 2462, 2469, 125 L.Ed.2d 1, 14, in which the Supreme Court held that the “no establishment of religion” clause in the First Amendment to the United States Constitution does not bar a public school district from providing a sign language interpreter to accompany a deaf student to classes at a sectarian school where the service was part of a general governmental program. As Justice Nelson points out, however, the First Amendment generally prohibits only direct aid. Article X, Section 6, of the Montana Constitution, on the other hand, prohibits school districts from extending both direct and indirect aid to sectarian schools. Thus, the federal and sister state cases on which Tami relies have no application to the unique and broad proscription contained in the Montana Constitution regarding aid to sectarian schools.

I join the Court in affirming the District Court, although I would accomplish that result under a different analysis.

      . Although Kapteins’ brief contains considerable discussion of their status as taxpayers, they ultimately concede that their daughter either has a constitutional right to participate in extracurricular activities under Article X, Section 1, of the Montana Constitution or she does not, regardless of her parents’ status as taxpayers. Thus we do not treat taxpayer status as relevant to the resolution of this appeal.


author: JUSTICE NELSON

text:
    AGRI WEST, a Montana Partnership, Plaintiff and Respondent, v. KOYAMA FARMS, INC., a Montana corporation, Defendant and Appellant.
    No. 96-067.
    Submitted on Briefs September 5, 1996.
    Rehearing Denied March 20, 1997.
    Decided February 20, 1997.
    54 St.Rep. 118.
    281 Mont. 167.
    933 P.2d 808.

      For Appellant: Charles F. Moses, Moses Law Firm, Billings; Harold G. Stanton, Hardin.
    For Respondent: Robert J. Waller, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the Thirteenth Judicial District Court, Big Horn County. The District Court, after assuming jurisdiction, granted Plaintiff Agri West’s motion for summary judgment and subsequently entered judgment for Agri West, awarding damages. From this judgment, Defendant Koyama Farms, Inc. appeals. We reverse and remand.

The following issues were raised on appeal:

1. Whether the District Court erred in sustaining the jurisdiction of the State District Court where the case between the parties was pending in the Crow Tribal Court?

2. Whether the District Court erred in finding jurisdiction in the State District Court where the subject matter of the action affected office and competent leases on the Crow Indian Reservation?

3. Whether the District Court erred in refusing to recognize the preemption doctrine and that this case was governed by federal statutes and regulations involving the leasing of Indian lands on the Crow Indian Reservation?

4. Whether the District Court erred in actually applying State law to the facts and circumstances of this case?

FACTUAL AND PROCEDURAL BACKGROUND

Agri West, is a Montana partnership engaged in farming operations in Big Horn County, including farming on the Crow Reservation. All Agri West partners are non-Indians. Koyama Farms, Inc. (Koyama) is a Montana corporation with its principal place of business in Big Horn County. Koyama is also engaged in farming operations on the Crow Reservation. All of Koyama’s stockholders are non-Indian.

In August 1990, the Bureau of Indian Affairs (BIA) notified Agri West that Agri West was the high bidder on leases for specific tracts of land within the Crow Reservation and awarded Agri West five-year leases covering the subject allotments commencing October 1, 1990. Pursuant to this notification, Agri West began farming certain Indian trust allotments on the Crow Reservation in the fall of 1990. Agri West paid the rentals and planted a winter crop on the land in October 1990. The BIA prepared the leases and submitted them to Agri West for signature in February 1991. Agri West executed the leases and returned those to the BIA along with payment of the filing fees. During the summer/fall of 1991, Agri West harvested the 1991 winter wheat crop and planted a new crop. Additionally, Agri West paid the annual lease rental on October 1, 1991.

While these farming operations were underway, Agri West’s leasing agent attempted to obtain signed copies of the leases from the BIA. However, the BIA informed Agri West’s leasing agent that the allotments should have been leased as “competent” leases rather than BIA “office” leases. Accordingly, “competent” leases were prepared for signature by the Indian land owners and those owners were contacted to obtain their signatures.

In August 1992, Agri West harvested the 1992 winter wheat crop and planted a new crop in September 1992. In October 1992, one of the Indian landowners came to Agri West’s leasing agent’s office to request payment on the annual lease rental. Agri West’s leasing agent gave the landowner copies of the “competent” leases and advised the land owner that Agri West would pay the rentals when the “competent” leases had been signed and returned. Later in October 1992, Agri West learned that the “competent” leases were executed in favor of Koyama. These leases were dated October 16,1992, with effective dates of December 1, 1992.

Agri West continued to care for its crop throughout the fall of 1992 and the spring of 1993. On July 16, 1993, Koyama filed a civil complaint against Agri West in the Crow Tribal Court requesting an injunction be issued against Agri West. On August 10, 1993, prior to the time Agri West intended to begin harvesting, Koyama obtained an ex parte temporary restraining order from the Crow Tribal Court restraining Agri West from exercising dominion and control over the trust property and from harvesting the crop on that property. Subsequently, Koyama entered the property, harvested the crop and transported it to a storage facility in Big Horn County, off the Crow Reservation, where it remains.

On August 18, 1993, Agri West filed a complaint against Koyama in the Montana Thirteenth Judicial District Court claiming ownership of the 1993 winter wheat crop. On June 14, 1994, the District Court denied Koyama’s motion to dismiss for lack of subject matter jurisdiction. Specifically, the District Court ruled that the state court had jurisdiction and was not preempted by federal law and that the exercise of jurisdiction would not infringe upon the right of the members of the Crow Tribe to make their own laws and be ruled by them. On March 21, 1995, the District Court granted Agri West’s summary judgment, concluding that Agri West was the proper owner of the 1993 crop and that Koyama had converted that crop. On April 17, 1995, Koyama filed an amended complaint in the Crow Tribal Court. Subsequently, the District Court held a hearing concerning Agri West’s damages. After the hearing, the District Court awarded Agri West damages in its judgment dated January 16, 1996. From this judgment, Koyama appeals. We reverse and remand.

STANDARD OF REVIEW

We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

In this case, the District Court concluded that its assumption of jurisdiction over an action involving a dispute between two non-Indian parties arising out of activities on the Crow Reservation was proper despite the Crow Tribal Court’s previous assertion of jurisdiction over the case. We review this conclusion of law to determine whether the District Court properly interpreted the law governing state/tribal civil jurisdiction.

DISCUSSION

Whether the District Court erred in sustaining the jurisdiction of the State District Court where the case between the parties was pending in the Crow Tribal Court?

We hold that the District Court erred by sustaining jurisdiction in this action when the Crow Tribal Court had previously assumed jurisdiction over the parties and the subject matter of the dispute between Koyama and Agri West, and we reverse the District Court’s legal conclusion to the contrary. Because this issue is dispositive, we will not address the remaining three issues raised on appeal.

On June 14, 1994, the District Court denied Koyama’s motion to dismiss for lack of subject matter jurisdiction. In denying the motion, the District Court addressed the issue “whether tribal court jurisdiction preempts state court jurisdiction in a dispute between two non-Indian parties arising out of activities on Indian lands.” The District Court noted that Montana has never assumed civil jurisdiction over Indian tribes pursuant to 25 U.S.C. § 1322, or any predecessor statute. Furthermore, the court acknowledged that, absent this assumption of jurisdiction, civil jurisdiction over activities on reservation lands involving non-Indians as well as Indians presumptively lies in the tribal court.

To determine whether Agri West had overcome this presumption, the District Court employed the White Mountain Apache Tribe v. Bracker jurisdiction test to determine whether state jurisdiction was proper. See Marriage of Wellman (1993), 258 Mont. 131, 137, 852 P.2d 559, 563 (citing White Mountain Apache Tribe v. Bracker (1980), 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665, 672). After lengthy analysis, the District Court determined that state jurisdiction over this case was not preempted by federal law and did not infringe upon the right of reservation Indians to make their own laws and be ruled by them. Therefore, the District Court concluded that state jurisdiction over this action was proper.

Subsequently, on March 21, 1995, the District Court granted Agri West’s motion for summary judgment, again asserting that state jurisdiction over this case was proper, and holding that Agri West was the owner of the winter wheat crop and that Koyama had converted the crop. Based on this determination, the District Court awarded Agri West damages in its judgment dated January 16, 1996.

Koyama argues that even if this case involved an issue over which the state and tribal courts shared concurrent jurisdiction, the District Court erred by sustaining jurisdiction because an identical case was pending in the Crow Tribal Court. Koyama contends that the first court to exercise concurrent jurisdiction retains jurisdiction to dispose of the entire case. Koyama asserts that the state of Montana has never asserted civil jurisdiction over the Crow tribal lands under 25 U.S.C. § 1322 and 28 U.S.C. § 1360, and, therefore, the Crow Tribal Court has primary and exclusive jurisdiction over this controversy because it involves the leasing of Indian trust property.

Agri West responds that the issue in this case is not who possessed a valid lease for farming certain Indian trust property. Instead, Agri West contends that the controversy simply involves two non-Indians and concerns who is entitled to ownership of the 1993 winter wheat crop, presently located off the Crow Reservation. Agri West asserts that the rule of priority as to questions of concurrent jurisdiction does not apply here because no identity of parties, subject matter or relief exists between the two cases. Furthermore, even if the priority rule was originally applicable, it no longer applied once Koyama removed the crop from the reservation because that act divested the Crow Tribal Court of concurrent jurisdiction. Agri West, therefore, argues that the District Court properly assumed jurisdiction over this action.

We note that Koyama filed a civil complaint against Agri West in the Crow Tribal Court on July 16, 1993, requesting that the Tribal Court enjoin Agri West from exercising any dominion or control over the leased trust property and from harvesting any crop on the property. On August 10,1993, the Crow Tribal Court issued a temporary restraining order and an order to show cause against Agri West. Only after the Crow Tribal Court assumed jurisdiction over this action by issuing the temporary restraining order did Agri West file a complaint against Koyama in the State District Court on August 18, 1993, for resolution of ownership of the crop. In response to this complaint, the District Court assumed jurisdiction despite the Crow Tribal Court’s previous assumption of jurisdiction over this action. After reviewing the record and considering Montana law relating to state/tribal civil jurisdiction, we conclude that the District Court erred by sustaining jurisdiction in this action when the Crow Tribal Court had previously exercised jurisdiction over the action.

It is well settled that Indian tribes retain their inherent sovereign powers until Congress acts to circumscribe such powers. Wellman, 852 P.2d at 562 (citing United States v. Wheeler (1978), 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303, 313). Under Public Law 280, codified at 28 U.S.C. § 1360, Congress authorized state governments to unilaterally assume jurisdiction over civil causes of action to which a tribal member was a party and which arose within the boundaries of an Indian reservation. Subsequently, under the 1968 Indian Civil Rights Act, Congress repealed this authorization to unilaterally assume civil jurisdiction and thereafter required the consent of the majority of adult enrolled tribal members before a state could assume jurisdiction. Wellman, 852 P.2d at 562.

Montana has not assumed civil jurisdiction on the Crow Reservation under Public Law 280 and the Indian Civil Rights Act. See Wellman, 852 P.2d at 562-63. Absent this assumption of jurisdiction, civil jurisdiction over activities of non-Indians as well as Indians on reservation lands lies presumptively in the tribal court. Wellman, 852 P.2d at 563 (citing Fisher v. District Court (1976), 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106). Furthermore, we routinely treat tribal court judgments with the same deference shown decisions of foreign nations, as a matter of comity. Wippert v. Blackfeet Tribe (1982), 201 Mont. 299, 304, 654 P.2d 512, 515 (citing State ex rel. Stewart v. District Court (1980), 187 Mont. 209, 609 P.2d 290; In re Marriage of Limpy (1981), 195 Mont. 314, 636 P.2d 266)(other citations omitted).

In both Stewart and Limpy we applied the doctrine of abstention, as a matter of comity. In Stewart, because the Crow Tribal Code gave the Crow Tribal Court exclusive jurisdiction over dissolution of marriage actions between tribal members residing within the exterior boundaries of the reservation, we held that as a matter of comity we should abstain from asserting jurisdiction over actions of this kind. Stewart, 609 P.2d at 292. By doing so, we hoped to “reduce the ‘inter-governmental friction’ likening the ‘competing interests’ of the State and the tribes to a ‘Pullman type abstention situation.’ ” Stewart, 609 P.2d at 292 (citations omitted).

Subsequently, in Limpy, we again applied the doctrine of abstention as a matter of comity by deferring to a Northern Cheyenne advisory opinion holding that the Northern Cheyenne Tribal Court had exclusive jurisdiction over dissolution of marriage actions between members of the Tribe residing within the Reservation. Limpy, 636 P.2d at 269. In fact, we abstained despite the fact that the Northern Cheyenne Tribal Court had not attempted to exercise jurisdiction over the specific case then on appeal. Rather, we noted that the tribal court had exercised jurisdiction in similar cases which indicated “a disposition to preempt State jurisdiction.” Limpy, 636 P.2d at 269. Furthermore, we could find no policy reason to justify a state courts assumption of jurisdiction to the exclusion of the tribal court. Limpy, 636 P.2d at 269.

The procedural history of the case before us is analogous to that of Stewart and Limpy. As discussed above, when a tribal court asserts jurisdiction over certain causes of action, we defer to that assertion by applying the doctrine of abstention as a matter of comity. If the parties contest the tribal court’s assertion of jurisdiction, then it is appropriate that they raise and litigate that issue in the tribal court. A court has the judicial power to rule on the question of its own jurisdiction. Karr v. Karr (1981), 192 Mont. 388, 407, 628 P.2d 267, 277. We conclude that, in the case at bar, the Crow Tribal Court explicitly asserted jurisdiction over this action by issuing a temporary restraining order against Agri West. Therefore, just as in Stewart and Limpy, abstention as a matter of comity is proper under the procedural history of this case.

Furthermore, we reject Agri West’s argument that, under the procedural history of this case, the Crow Tribal Court lost jurisdiction over Koyama and Agri West when the crop was removed from the Crow Reservation. Koyama initiated this action in the Crow Tribal Court and the Crow Tribal Court responded by assuming jurisdiction and issuing a temporary restraining order against Agri West, preventing AgriWestfrom harvesting the 1993 winter wheat crop. The fact that Koyama harvested this crop on the reservation, but then stored it off the Crow Reservation did not automatically divest the Crow Tribal Court of the jurisdiction whichithad already asserted. Again, if Agri West contests the jurisdiction of the Crow Tribal Court to rule on the ownership of the crop then this jurisdictional issue must be litigated in the court that first asserted jurisdiction — i.e., the Crow Tribal Court — and not in the State courts.

Accordingly, we hold that the District Court erred by sustaining jurisdiction in this action when the Crow Tribal Cotut had previously assumed jurisdiction over the parties and the subject matter of the dispute between Koyama and Agri West.

Reversed and remanded for further proceedings consistent with this opinion.

JUSTICES GRAY, TRIEWEILER and LEAPHART concur.