Montana Advance Sheets A Weekly Compendium of Court Rulings of: Montana Supreme Court [pp 1-15] State Trial Courts [pp 16-35] Federal Trial Courts [pp 36-46] Friday, March 12, 2021 ______MONTANA SUPREME COURT

CONTENTS

Non-citeable Criminal Montana Supreme Court 2021 MT 59N STATE OF MONTANA, Montana Supreme Court 2021 MT 63N STATE OF MONTANA, Plaintiff and Appellee, v. DANIEL TODD Collins, Defendant and Plaintiff and Appellee, v. QUINTON RAND Sederdahl, Defendant and Appellant. Decided: March 9, 2021. Case No.: DA 19-0643. APPEAL Appellant. Decided: March 9, 2021. Case No.: DA 18-0393. APPEAL FROM: District Court of the Third Judicial District, In and For the FROM: District Court of the Eleventh Judicial District, In and For the County of Anaconda-Deer Lodge, Cause No. DC-18-121 Honorable Ray County of Flathead, Cause No. DC-17-205(C) Honorable Heidi J. J. Dayton, Presiding Judge Ulbricht, Presiding Judge Baker, J...... 1 McGrath, C.J...... 6 Montana Supreme Court 2021 MT 62N RONALD Latray, Petitioner Mental Commitment/Family/DN and Appellant, v. STATE OF MONTANA, Respondent and Appellee. Montana Supreme Court 2021 MT 58N IN THE MATTER OF THE Decided: March 9, 2021. Case No.: DA 20-0131. APPEAL FROM: MENTAL HEALTH OF: A.O., Respondent and Appellant. Decided: District Court of the Thirteenth Judicial District, In and For the County March 9, 2021. Case No.: DA 19-0141. APPEAL FROM: District Court of Yellowstone, Cause No. DV 19-985 Honorable Rod Souza, Presiding of the Eleventh Judicial District, In and For the County of Flathead, Judge Cause No. DI-16-054(A) Honorable Amy Eddy, Presiding Judge McGrath, C.J...... 3 Baker, J...... 7 Montana Supreme Court 2021 MT 61N DAVID W. Nelson, Petitioner Montana Supreme Court 2021 MT 57N IN THE MATTER OF: S.P., A and Appellant, v. STATE OF MONTANA, Respondent and Appellee. Youth in Need of Care. Decided: March 9, 2021. Case No.: DA 20-0314. Decided: March 9, 2021. Case No.: DA 19-0057. APPEAL FROM: APPEAL FROM: District Court of the Eighth Judicial District, In and District Court of the Third Judicial District, In and For the County of For the County of Cascade, Cause No. DN 17-303 Honorable John W. Powell, Cause No. DV-18-15 Honorable Ray J. Dayton, Presiding Judge Parker, Presiding Judge Sandefur, J...... 3 Gustafson, J...... 9 Montana Supreme Court 2021 MT 64N SHANE PHILLIP Nickerson, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. Decided: March 9, 2021. Case No.: DA 20-0129. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-19-1271 Honorable Heidi J. Ulbricht, Presiding Judge McGrath, C.J...... 5 Citeable Family/DN Montana Supreme Court 2021 MT 60N STATE OF MONTANA, Montana Supreme Court 2021 MT 56 IN THE MATTER OF: K.L.N., A Plaintiff and Appellee, v. ROBERTO Salaman-Garcia, Defendant and Youth in Need of Care. Decided: March 9, 2021. Case No.: DA 20-0315. Appellant. Decided: March 9, 2021. Case No.: DA 20-0161. APPEAL APPEAL FROM: District Court of the Eighth Judicial District, In and FROM: District Court of the Eighth Judicial District, In and For the For the County of Cascade, Cause No. DDN 18-008 Honorable John W. County of Cascade, Cause No. DC 18-504 Honorable John A. Kutzman, Parker, Presiding Judge Presiding Judge Gustafson, J...... 11 Rice, J...... 5

FROM: District Court of the Third Judicial District, In and For the Montana Supreme Court - Non-Citeable County of Anaconda-Deer Lodge, Cause No. DC-18-121 Honorable Ray CRIMINAL J. Dayton, Presiding Judge COUNSEL OF RECORD: For Appellant: Tyson Allen McLean, Kris A. McLean Law Firm, PLLC, Missoula, 1. Montana Supreme Court 2021 MT 59N STATE OF MONTANA, Montana For Appellee: Austin Knudsen, Montana Attorney General, Plaintiff and Appellee, v. DANIEL TODD Collins, Defendant and Tammy K Plubell, Assistant Attorney General, Helena, Montana Ben Appellant. Decided: March 9, 2021. Case No.: DA 19-0643. APPEAL Krakowka, Deer Lodge County Attorney, Anaconda, Montana Submitted

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 1 on Briefs: February 3, 2021. counsel, the District Court violated his constitutional rights. This ! Justice Beth Baker delivered the Opinion of the Court. Court reviews for abuse of discretion a district court's ruling on - ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme a motion to continue trial. State v. Garcia, 2003 MT 211, ¶ 10, Court Internal Operating Rules, this case is decided by 317 Mont. 73, 75 P.3d 313 (citation omitted). "A district court memorandum opinion and shall not be cited and does not serve abuses its discretion when it acts arbitrarily without the as precedent. Its case title, cause number, and disposition shall employment of conscientious judgment or exceeds the bounds of be included in this Court's quarterly list of noncitable cases reason resulting in substantial injustice." State v. Hardground, published in the Pacific Reporter and Montana Reports. 2019 MT 14, ¶ 7, 394 Mont. 104, 433 P.3d 711 (citation ! ¶2 Daniel Todd Collins appeals a jury verdict and judgment finding omitted). A party seeking a continuance must demonstrate a him guilty of two counts of Criminal Child Endangerment in sufficient level of diligence in preparing for trial, and that a violation of § 45-5-628, MCA. Collins argues that the District Court continuance is "in the interests of justice." State v. Duncan, 2008 erred by denying his motion for a continuance to obtain expert MT 148, ¶ 37, 343 Mont. 220, 183 P.3d 111 (citation omitted). witnesses; denying his motion for a continuance to obtain private The District Court determined that Collins had not demonstrated counsel; and denying his motion for a mistrial due to prosecutorial sufficient diligence in attempting to secure either expert witnesses misconduct. He argues that his trial counsel provided ineffective or private counsel. The District Court already had granted Collins assistance on the same issues. We affirm. one continuance to pursue an expert. Collins did not present the - ¶3 On November 2, 2018, Montana Highway Patrol Trooper District Court with the names of any prospective experts or have Joseph Fowler arrested Collins on suspicion of driving under the an estimate of the costs associated with retaining any such influence of alcohol. Because there were two minors in the experts. Further, Collins did not provide any medical vehicle, the State charged Collins with two counts of Criminal documentation or affidavit evidencing that he indeed suffers from Child Endangerment in violation of § 45-5-628, MCA, along his claimed eye and liver disorders in the first place, making any with several other misdemeanor violations. Trial was set for April defense based on those disorders pure speculation. Collins's 22, 2019. At the final pretrial conference on April 3, the District counsel represented the nature of the request was just to "have Court granted Collins a continuance of trial, over the State's time to [] locate the expert and try and flush [sic] it out." Collins objection, to pursue the possibility of obtaining a medical or has not met his burden on appeal to demonstrate that the District other expert witness to explain a problem with Collins's eyes to Court abused its discretion when it refused to continue the trial. rebut the State's evidence of Collins's poor performance on the - ¶7 For similar reasons, the District Court did not abuse its Horizontal Gaze Nystagmus ("HGN") test. The court set the trial discretion in denying Collins's motion for a continuance to for late June. About twenty days before the scheduled jury trial, attempt to retain private counsel. Collins had a conversation with Collins again moved for a continuance so that he could save a private attorney just five days before trial and did not make his enough money to hire potentially two expert witnesses: one to request until the morning of voir dire. Collins did not discuss examine the previously discussed issue with Collins's eyes that with private counsel the costs associated with any possible he claimed affected his performance on the HGN test and another representation, and there was no agreement that the prospective to testify on a potential medical issue with his liver, which he private counsel would or could actually represent Collins if the claimed affected detection of his blood alcohol levels. The Office trial were continued. As it stood, Collins had a public defender of Public Defender had denied Collins funds for these potential familiar with his case and ready to go to trial that day. Finally, experts. Collins presented no evidence of any existing diagnosis Collins did not know what private counsel's retainer would be, for either condition and had neither retained nor found any and the District Court reasonably doubted Collins's asserted experts to perform any examinations. The District Court ability to pay based on his indigent status. Given the expressed skepticism at the practicality of Collins being able to uncertainties and the timing of his request on the morning of secure the funds for two experts and found the reasons for the trial, Collins has not met his burden to show that he displayed motion "wispy at best." The District Court denied Collins's diligence in seeking private counsel or that a continuance was motion for a continuance. needed to further "the interests of justice." The District Court did - ¶4 Collins's trial commenced on June 24, 2019. The morning of not abuse its discretion by denying the motion. trial, Collins pleaded guilty to the misdemeanor charges, leaving - ¶8 Collins next argues that the prosecutor committed misconduct only the two Criminal Child Endangerment charges for the jury. when he left his notes on the juror's chair, and the District Court Prior to voir dire, Collins again moved the court to continue his should have granted a mistrial based upon that misconduct. We trial, this time so he could retain private counsel in place of his review for abuse of discretion a district court's ruling on a public defender. Collins provided the District Court with the motion for mistrial. State v. White, 2008 MT 129, ¶ 8, 343 number of a Missoula-based attorney with whom he had Mont. 66, 184 P.3d 1008 (citation omitted). "A district court's consulted; the District Court called the Missoula attorney. The decision to grant or deny a motion for mistrial must be based on attorney stated that about five days prior to trial he had a whether the defendant has been denied a fair and impartial trial." conversation with Collins and told him that representation may State v. Bollman, 2012 MT 49, ¶ 33, 364 Mont. 265, 272 P.3d be possible if the trial was continued. The attorney told the 650 (citation omitted). The District Court noticed a juror reading District Court, however, that he considered Collins only a from something midway through Trooper Fowler's testimony. At prospective client and they had never discussed any substantive that point the court immediately called a recess and brought the facts or the cost of any representation, nor had they signed any matter to the attention of both parties in chambers. Once the agreement. After the call ended, Collins informed the District prosecutor admitted the juror was reading from his trial notes, Court that he had the money to retain the private attorney but the District Court stated the juror would be replaced with the had not told the attorney that because they "never got that far alternate. Further, the District Court questioned the juror, who into the conversation." The District Court denied the motion and represented numerous times that he was the only one with access proceeded with trial. to the notes and that no other juror had asked about them. There - ¶5 The State called Trooper Fowler as its first witness. About was no evidence that any other juror saw or read the trial notes. halfway through his direct examination, the parties went into The District Court based its decision on its conscientious chambers to discuss an issue regarding a juror. The juror had judgment that no further jury contamination occurred, and there come into possession of the prosecutor's notes on Trooper is no evidence suggesting any injustice that denied Collins a fair Fowler's anticipated testimony. The prosecutor represented that and impartial trial. The District Court did not abuse its discretion he had been helping court staff tape down an extension cord in denying Collins's motion for a mistrial. during the lunch break and must have inadvertently left his - ¶9 Because we conclude that the State's inadvertent action did examination notes on the juror's chair. The District Court not deny Collins a fair and impartial trial, Collins cannot meet accepted the explanation as an honest mistake and called the his burden to demonstrate prosecutorial misconduct. See Clausell juror in for questioning. The juror stated that he was the only v. State, 2005 MT 33, ¶ 11, 326 Mont. 63, 106 P.3d 1175 person to see the notes, and no other juror had asked him about (citation omitted) ("Misconduct by a prosecutor may form the them. The juror acknowledged that the notes contained the State's basis for granting a new trial where the prosecutor's actions have examination questions and that some of Trooper Fowler's answers deprived the defendant of a fair and impartial trial."). were not exactly the same as what the State anticipated. The - ¶10 Finally, Collins argues he received ineffective assistance of court dismissed the juror, replacing him with the alternate. counsel when his defense counsel failed to secure an expert Collins moved for a mistrial, which the District Court denied. witness and failed to move the District Court to question the The jury found Collins guilty of both counts of Criminal Child remaining jurors on whether they had seen or considered the Endangerment. State's notes. Ineffective assistance of counsel claims are mixed - ¶6 Collins first argues that by denying his requests for questions of law and fact that this Court reviews de novo. State continuance to secure expert witnesses and to retain private v. Ugalde, 2013 MT 308, ¶ 28, 372 Mont. 234, 311 P.3d 772

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 2 (citation omitted). The record demonstrates that Collins's public that applying these sentencing statutes to consider his prior defender took reasonable actions to acquire an expert witness by convictions raises ex post facto concerns. requesting funds from the Office of Public Defender and by - ¶6 LaTray's arguments here constitute purely legal contentions moving the District Court to continue the trial so that Collins that could have been raised on direct appeal. Grounds for relief could save up funds for one. The record is also clear, however, that could reasonably have been raised on direct appeal may not that the public defenders' office denied the request and that be raised, considered, or decided in postconviction proceedings. Collins personally did not have available funds for an expert. Section 46-21-105(2), MCA; see Sanders v. State, 2004 MT 374, Defense counsel took reasonable steps to acquire expert witnesses ¶ 14, 325 Mont. 59, 103 P.3d 1053. LaTray's claims are not under the circumstances, and his lack of success does not based on material that is outside of the record, such as claims of constitute deficient performance. discovery of new evidence or ineffective assistance of counsel. - ¶11 We conclude further that defense counsel did not render Because LaTray's arguments could have been raised on direct deficient performance when he did not move the District Court appeal, we do not consider them in the context of a PCR to question the jury on whether other members were exposed to proceeding here. Though the District Court denied LaTray's PCR the prosecutor's trial notes. The dismissed juror repeatedly and petition on the merits, we need not retrace the District Court's adamantly stated that he alone handled or read the notes and that specific rationale to uphold its ultimately correct result. State v. no other juror asked about what they were. Considering the Betterman, 2015 MT 39, ¶ 11, 378 Mont. 182, 342 P.3d 971. juror's statements, there are valid tactical and strategic reasons - ¶7 Finally, LaTray's proposed amendment to his brief argues that why defense counsel would not want to draw the jury's attention he should have been entitled to the benefit of a 2017 revision to to the matter any further. See generally Garding v. State, 2020 the definition of a PFO during sentencing. See § 46-1-202(18), MT 163, ¶ 16, 400 Mont. 296, 466 P.3d 501 (this Court MCA (2017) (requiring defendant be convicted of at least one indulges in a "strong presumption that counsel's conduct falls sexual or violent felony to be eligible for PFO status); 2017 within the wide range of reasonable professional assistance"); Mont. Laws ch. 321, § 44 (providing that the amendment applies Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, only to offenses committed after June 30, 2017). However, this 2065 (1984) (the wide range of reasonable professional assistance argument was not raised in LaTray's PCR petition below. We do includes "sound trial strategy" decisions made by defense not address arguments raised for the first time on appeal, counsel). including in PCR proceedings. Griffin v. State, 2003 MT 267, ¶ - ¶12 We have determined to decide this case pursuant to Section 15, 317 Mont. 457, 77 P.3d 545. Therefore, we do not reach the I, Paragraph 3(c) of our Internal Operating Rules, which provides merits of LaTray's argument here. for memorandum opinions. In the opinion of the Court, the case - ¶8 We have determined to decide this case pursuant to Section presents a question controlled by settled law or by the clear I, Paragraph 3(c) of our Internal Operating Rules, which provides application of applicable standards of review. The judgment is for memorandum opinions. In the opinion of the Court, the case affirmed. presents a question controlled by settled law. - /S/ BETH BAKER - ¶9 Affirmed. - We Concur: - /S/ MIKE McGRATH - /S/ MIKE McGRATH /S/ INGRID GUSTAFSON /S/ DIRK M. - We Concur: SANDEFUR /S/ JIM RICE - /S/ LAURIE McKINNON /S/ BETH BAKER /S/ DIRK M. SANDEFUR /S/ INGRID GUSTAFSON 2. Montana Supreme Court 2021 MT 62N RONALD Latray, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. 3. Montana Supreme Court 2021 MT 61N DAVID W. Nelson, Petitioner Decided: March 9, 2021. Case No.: DA 20-0131. APPEAL FROM: and Appellant, v. STATE OF MONTANA, Respondent and Appellee. District Court of the Thirteenth Judicial District, In and For the County Decided: March 9, 2021. Case No.: DA 19-0057. APPEAL FROM: of Yellowstone, Cause No. DV 19-985 Honorable Rod Souza, Presiding District Court of the Third Judicial District, In and For the County of Judge COUNSEL OF RECORD: For Appellant: Ronald O. LaTray, Powell, Cause No. DV-18-15 Honorable Ray J. Dayton, Presiding Judge Self-Represented, Shelby, Montana For Appellee: Austin Knudsen, COUNSEL OF RECORD: For Appellant: David Wayne Nelson, Montana Attorney General, Michael P. Dougherty, Assistant Attorney Self-represented, Deer Lodge, Montana For Appellee: Austin Knudsen, General, Helena, Montana Scott D. Twito, Yellowstone County Attorney, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Billings, Montana Submitted on Briefs: February 10, 2021. Helena, Montana Kathryn McEnery, Powell County Attorney, Deer ! Chief Justice Mike McGrath delivered the Opinion of the Court. Lodge, Montana Submitted on Briefs: November 12, 2020. - ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme ! Justice Dirk Sandefur delivered the Opinion of the Court. Court Internal Operating Rules, this case is decided by - ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme memorandum opinion and shall not be cited and does not serve Court Internal Operating Rules, we decide this case by as precedent. Its case title, cause number, and disposition shall memorandum opinion. It shall not be cited and does not serve as be included in this Court's quarterly list of noncitable cases precedent. The case title, cause number, and disposition shall be published in the Pacific Reporter and Montana Reports. included in our quarterly list of noncitable cases published in the ! ¶2 Ronald LaTray appeals from a January 30, 2020 District Court Pacific Reporter and Montana Reports. order denying his petition for postconviction relief. We affirm. ! ¶2 David Wayne Nelson appeals the January 2019 judgment of the - ¶3 In March 2015, Ronald LaTray (LaTray) was arrested and Montana Third Judicial District Court, Powell County, denying his charged with felony Driving Under the Influence (DUI), to which petition for postconviction relief from his 2017 conviction on two he subsequently filed a plea of nolo contendere. State v. LaTray, counts of Deliberate Homicide. We affirm. No. DA 17-0417, 2018 MT 305N, ¶ 2, 2018 Mont. LEXIS 432. - ¶3 In 2015, the State charged Nelson with felony Theft, two The conviction was subsequently upheld on appeal. LaTray, ¶¶ counts of Deliberate Homicide, and two counts of felony 8, 10. LaTray filed a petition for postconviction relief (PCR) on Obstructing Justice based on allegations that he stole seventeen July 18, 2019, alleging that the sentencing court lacked the 100-ounce silver bars belonging to Gregory Giannonatti, later statutory authority to sentence him as a persistent felony offender murdered Mr. Giannonatti and his mother (Beverly) when (PFO) based on his 1999 and 2009 DUI convictions. The District confronted about the theft, and then concealed their bodies and Court denied LaTray's petition on the merits and this appeal the other evidence of the crimes to avoid arrest and prosecution. followed. Subsequently, LaTray filed a document entitled The subsequent investigation further revealed that, at Nelson's "AMENDMENT TO APPELLANT BRIEF: ADDITIONAL request, his wife subsequently re-painted the bathroom where the ISSUE." murders occurred, and withdrew the proceeds of his sale of the - ¶4 We review a district court's denial of a PCR petition by stolen silver ($26,000) from a joint account for delivery to him. determining whether the findings of fact are clearly erroneous The Powell County Sheriff recommended no charges against the and whether the conclusions of law are correct. Lacey v. State, wife, however, based on his view that the investigation indicated 2017 MT 18, ¶ 13, 386 Mont. 204, 389 P.3d 233. that she did so without knowledge of Nelson's crimes. - ¶5 LaTray argues on appeal that the District Court erred in - ¶4 After initial denials following his arrest, Nelson eventually interpretating LaTray's 1999 and 2009 DUI convictions as prior confessed that he had indeed stolen the silver bars, murdered the felonies designating him a PFO under Montana law because they mother and son, and concealed the evidence as charged. He were each a "fourth or subsequent conviction" for DUI. See § emphatically asserted, however, that his wife had no knowledge 61-8-714(4), MCA (1995) ("On the fourth or subsequent of or involvement in any of his crimes. While incarcerated after conviction [for driving under the influence of alcohol or drugs], confessing, Nelson asked to speak with the Sheriff on several the person is guilty of a felony offense."); § 61-8-731(1), MCA occasions out of concern for his wife to verify that the State (1997) ("On the fourth or subsequent conviction under 61-8-714 would not prosecute her and to re-emphasize that she had no . . . the person is guilty of a felony."). Similarly, LaTray argues knowledge of or involvement in his crimes. Unprompted, Nelson

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 3 told the Sheriff that he would not plead guilty if the State was has no adequate remedy of appeal and who claims" that his going to prosecute his wife. The Sheriff then passed on Nelson's conviction occurred in violation of the constitution of the United statements to the County Attorney. States, State of Montana, or Montana law may file a verified - ¶5 By correspondence to Nelson's counsel in February 2016, the petition "to vacate[] [or] set aside" the conviction. Sections County Attorney tendered an initial plea offer proposing that 46-21-101(1) and -103, MCA. However, the petitioner has the Nelson plead guilty to both homicides and the theft in return for burden of showing the asserted illegality by a preponderance of dismissal of the obstruction charges and a State recommendation the evidence under the applicable law. Heath v. State, 2009 MT for life sentences on the homicides, 10 years on the theft, and no 7, ¶ 16, 348 Mont. 361, 202 P.3d 118; Ellenburg v. Chase, 2004 State recommendation as to whether the sentences would run MT 66, ¶ 12, 320 Mont. 315, 87 P.3d 473; State v. Cobell, consecutively or concurrently. Based on the available 2004 MT 46, ¶ 12, 320 Mont. 122, 86 P.3d 20. Upon ordering investigative information, the offer further stated that: a state response and consideration of the parties' factual - [the State] would [also] agree not to pursue potential showings, the court may either grant the petition or dismiss for contemplated charges against [Nelson's wife] for Accessory failure to state a claim entitling the petitioner to relief. Section to the Theft [regarding] her withdrawal of the funds from the 46-21-201(1)(a), MCA; Herman v. State, 2006 MT 7, ¶¶ 15 and bank, [and] Obstructing Justice [regarding the] painting [of] 41-45, 330 Mont. 267, 127 P.3d 422; Ellenburg, ¶¶ 11-12. The the bathroom. standard of review of a denial of postconviction relief is whether - Nelson did not accept the State's initial offer. the lower court's conclusions of law are correct and whether the - ¶6 However, in September 2016, Nelson accepted a later offer predicate findings of fact are clearly erroneous in the light most from the State calling for him to plead guilty to the homicides favorable to the conviction. Whitlow v. State, 2008 MT 140, ¶ in return for dismissal of the theft and obstructing charges and 9, 343 Mont. 90, 183 P.3d 861; In re Jones, 176 Mont. 412, a State recommendation for concurrent life sentences on the 415, 578 P.2d 1150, 1152 (1978). Whether the lower court homicides with no recommendation for a parole restriction. correctly dismissed a postconviction IAC claim presents a mixed Unlike the initial plea offer, the September 2016 agreement did question of law and fact reviewed de novo. Whitlow, ¶ 9; State not include the non-prosecution of Nelson's wife as part of the v. Turner, 2000 MT 270, ¶ 47, 302 Mont. 69, 12 P.3d 934. See stated contract consideration. The written agreement, and also Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. concurrently executed written acknowledgement of waiver of 2052, 2070 (1984). rights, clearly and comprehensively stated and acknowledged - ¶10 Nelson first asserts that the express 30-year parole restriction Nelson's unequivocal understanding of the full complement of his constituted a breach of the plea agreement. However, it is beyond trial rights, the waiver effect of his contemplated guilty plea genuine material dispute that the State recommended concurrent (including, inter alia, waiver of the right to appeal[1]), as well as life sentences on the homicides as agreed, without the parties, terms, and effect of the agreement (including the recommendation for a court-imposed parole restriction. At most, right to withdraw his plea prior to sentencing if the court was the State noted and acknowledged that, pursuant to § inclined to deviate from the agreement). The change of plea 46-23-201(4), MCA, the agreed life sentences under § 45- documents further included express assertions by Nelson that the 5-102(2), MCA, included inherent 30-year parole restrictions as agreement was limited to its express terms with no other a matter of law. In addition to the fact that the court was not a promises or inducements, that he entered into it voluntarily party to the plea agreement, it is further beyond genuine material without threat or coercion, and that he had adequate opportunity dispute that Nelson was fully aware of the inherent statutory to consult with his counsel and was satisfied with the parole restriction and, upon consultation with counsel, concurred representation received. At the change of plea hearing on without objection that the express restriction contemplated by the September 6, 2016, Nelson appeared with counsel, made similar court did not constitute a material deviation from the State's comprehensive acknowledgments and representations upon agreed sentencing recommendation. Aside from the fact that the colloquy with court and counsel, and then pled guilty to the State had no part in it, Nelson has further failed to demonstrate charged homicides. that the express 30-year parole restriction in any event denied - ¶7 Prior to sentencing, both parties filed sentencing memoranda him the benefit of his bargain with the State. We hold that the recommending that the court sentence Nelson in accordance with District Court correctly concluded that the express 30-year parole the terms of the plea agreement. However, both memoranda restriction did not constitute a breach of the plea agreement. noted and acknowledged that life sentences under § 45-5-102(2), - ¶11 Nelson next asserts that his guilty plea was involuntarily MCA, inherently include a 30-year parole eligibility restriction as coerced by State threats to prosecute his wife. However, it is a matter of law, regardless of the lack of an express parole beyond genuine material dispute based on the express language restriction in the sentence imposed by the court. See § of the plea agreement, Nelson's accompanying written 46-23-201(4), MCA. At sentencing in March 2017, both parties acknowledgement of waiver of rights, and his express statements recommended concurrent life sentences on the homicides in on colloquy at the change of plea hearing that his guilty plea accordance with the plea agreement, with acknowledgment that was not coerced or induced by any State threat or promise to they necessarily included inherent 30-year parole eligibility refrain from prosecuting his wife. While the State's initial plea restrictions as a matter of law. However, in response to the stated offer included non-prosecution of Nelson's wife as part of the victims' family concern for assurance that Nelson not be eligible stated consideration, it is beyond genuine material dispute on the for earlier parole, the District Court indicated its inclination to factual record that the State included that term in the initial offer impose an express 30-year parole restriction on the concurrent only at Nelson's urging, rather than on the State's independent life sentences and thus inquired of defense counsel as to whether volition. It is further beyond genuine material dispute that Nelson the express parole restriction would constitute a material did not accept the State's initial offer and that, in the subsequent deviation from the terms of the plea agreement in light of the plea agreement documents and on the record at the change of redundant restriction imposed as an inherent matter of law by § plea hearing, he later twice expressly and unequivocally stated 46-23-201(4), MCA. Upon consultation, Nelson responded and disclaimed that he was not in any way threatened or coerced through counsel that it would not. The District Court thus to plead guilty and was not induced to plead guilty by any sentenced him to serve concurrent life terms on the deliberate promise other than as expressly provided in the plea agreement. homicides, with express 30-year parole restrictions on each. Aside from cursory assertion, Nelson has made no supported Nelson did not appeal. factual showing to the contrary. We hold that the District Court - ¶8 However, in February 2018, he filed a pro se petition for correctly found and concluded that his guilty plea was not postconviction relief alleging that his 2017 conviction and coerced or otherwise induced by any State threat or promise sentence were invalid because: (1) the express 30-year parole regarding a potential prosecution of his wife. restriction constituted a breach of the plea agreement; (2) his - ¶12 Nelson finally asserts that he received IAC based on the guilty plea was involuntarily coerced by State threats to prosecute failure of counsel to preserve his right to appeal the express his wife based on her after-the-fact involvement in his crimes; 30-year parole restriction. The Sixth and Fourteenth Amendments and (3) he received ineffective assistance of counsel (IAC) based to United States Constitution, and Article II, Section 24, of the on counsel's failure to preserve his right to appeal the express Montana Constitution, similarly guarantee the criminally accused 30-year parole restriction. The District Court ordered a State the right to effective assistance of counsel. Whitlow, ¶ 10; State response and further ordered Nelson's counsel to respond to the v. McElveen, 168 Mont. 500, 501-03, 544 P.2d 820, 821-22 IAC claim pursuant to In re Petition of Gillham, 216 Mont. 279, (1975); Strickland, 466 U.S. at 686, 104 S. Ct. at 2063 (citing 704 P.2d 1019 (1985). In January 2019, upon consideration of McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, the facts of record, the District Court denied the petition. Nelson 1449 (1970)). However, the performance of counsel is ineffective appeals pro se. only if both constitutionally deficient and prejudicial. State v. - ¶9 A person convicted "of an offense in a court of record who Herrman, 2003 MT 149, ¶ 17, 316 Mont. 198, 70 P.3d 738.

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 4 Performance of counsel was constitutionally deficient only if it raised in Nickerson's other filings, including his direct appeal. On "fell below an objective standard of reasonableness measured [by] February 14, 2020, Nickerson filed a petition for a writ of prevailing professional norms" under the totality of the habeas corpus with this Court. Nickerson's petition was denied circumstances. Whitlow, ¶ 20. Accord Strickland, 466 U.S. at on March 10, 2020. Nickerson now appeals the District Court's 688-89, 104 S. Ct. at 2065. In turn, a deficient performance was denial of his petition for PCR. prejudicial only upon a showing of a reasonable probability that ! ¶6 Nickerson argues on appeal that although his petition for PCR the outcome would have been different but for the deficient was time barred, his request for further DNA testing constituted new performance. Ariegwe v. State, 2012 MT 166, ¶¶ 15-16, 365 evidence. Nickerson argues that his trial was fundamentally unfair Mont. 505, 285 P.3d 424; Heath, ¶ 17; Strickland, 466 U.S. at and requests that he be granted a new trial. 687, 104 S. Ct. at 2064. The performance of counsel is presumed - ¶7 We review a district court's denial of a petition for PCR to constitutionally effective and IAC claimants bear the heavy determine whether its findings are clearly erroneous and whether burden of overcoming the presumption. Whitlow, ¶¶ 20-21; it correctly interpreted the law. Ellenburg v. Chase, 2004 MT 66, Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. ¶ 10, 320 Mont. 315, 87 P.3d 473. - ¶13 It is beyond genuine material dispute on the factual record - ¶8 Petitions for PCR must be based on more than mere here that Nelson: (1) knowingly and voluntarily waived is right conclusory allegations. Ellenburg, ¶ 16. The petition must to appeal by pleading guilty; (2) knowingly and voluntarily pled "identify all facts supporting grounds for relief set forth in the guilty; and (3) concurred with counsel at sentencing that the petition and have attached affidavits, records, or other evidence express 30-year parole restriction contemplated by the court did establishing the existence of those facts." Section not constitute a material deviation from the plea agreement in 46-21-104(1)(c), MCA. Under § 46-21-105(2), MCA, grounds for light of the redundant 30-year restriction imposed as a matter of relief that were or could have reasonably been raised on direct law. As to prejudice, it is further beyond genuine material appeal may not be raised in PCR proceedings. Claims for PCR dispute that Nelson at no time requested that counsel attempt an "may be filed at any time within 1 year of the date that the appeal. Nor has he demonstrated any likelihood of success had conviction becomes final." Section 46-21-102(1), MCA. If there he pursued such an appeal, or that he would have is an allegation of newly discovered evidence, contemporaneously sought to withdraw his plea but for the - "A claim that alleges the existence of newly discovered alleged deficient performance of counsel. Nelson has thus made evidence that, if proved and viewed in light of the evidence no factual or legal showing sufficient to satisfy either essential as a whole would establish that the petitioner did not engage element of an IAC claim. We hold that the District Court in the criminal conduct for which the petitioner was correctly rejected the IAC claim regarding the right to appeal. convicted, may be raised in a petition filed within 1 year of - ¶14 We hold that the District Court correctly denied Nelson's the date on which the conviction becomes final or the date postconviction relief petition in toto. We decide this case by on which the petitioner discovers, or reasonably should have memorandum opinion pursuant to Section I, Paragraph 3(c) of discovered, the existence of the evidence, whichever is later." our Internal Operating Rules. Affirmed. - Section 46-21-102(2), MCA (emphasis added). - /S/ DIRK M. SANDEFUR - ¶9 Nickerson's petition for PCR was, and is, time barred because - We concur: he had until July 18, 2012, to file his petition. Instead, he filed - /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ his petition for PCR over eight years after his conviction became BETH BAKER /S/ INGRID GUSTAFSON final. In his memo supporting the petition for PCR, Nickerson - [1] The agreement expressly noted, however, that the waiver alleged that he had newly discovered evidence proving his of the right to appeal did not include waiver of the right to innocence. He did not provide the court with any new evidence, appeal based on a challenge of the voluntariness of the plea. but instead argued that the State failed to produce the evidence. Moreover, the argument regarding evidence that Nickerson 4. Montana Supreme Court 2021 MT 64N SHANE PHILLIP Nickerson, believes the State was required to provide could have reasonably Petitioner and Appellant, v. STATE OF MONTANA, Respondent and been made in his direct appeal. As Nickerson did not provide Appellee. Decided: March 9, 2021. Case No.: DA 20-0129. APPEAL any newly discovered evidence, his petition for PCR remains FROM: District Court of the Eleventh Judicial District, In and For the time barred by § 46-21-102, MCA. County of Flathead, Cause No. DV-19-1271 Honorable Heidi J. Ulbricht, - ¶10 We have determined to decide this case pursuant to Section Presiding Judge COUNSEL OF RECORD: For Appellant: Shane Phillip I, Paragraph 3(c) of our Internal Operating Rules, which provides Nickerson, Self-Represented, Deer Lodge, Montana For Appellee: Austin for memorandum opinions. In the opinion of the Court, the case Knudsen, Montana Attorney General, C. Mark Fowler, Assistant Attorney presents a question controlled by settled law or by the clear General, Helena, Montana Travis R. Ahner, Flathead County Attorney, application of applicable standards of review. Caitlin Overland, Deputy County Attorney, Kalispell, Montana Submitted - ¶11 Affirmed. on Briefs: December 2, 2020. - /S/ MIKE McGRATH ! Chief Justice Mike McGrath delivered the Opinion of the Court. - We Concur: - ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme - /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ Court Internal Operating Rules, this case is decided by BETH BAKER /S/ INGRID GUSTAFSON memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall 5. Montana Supreme Court 2021 MT 60N STATE OF MONTANA, be included in this Court's quarterly list of noncitable cases Plaintiff and Appellee, v. ROBERTO Salaman-Garcia, Defendant and published in the Pacific Reporter and Montana Reports. Appellant. Decided: March 9, 2021. Case No.: DA 20-0161. APPEAL - ¶2 On October 4, 2009, Shane Phillip Nickerson was found FROM: District Court of the Eighth Judicial District, In and For the guilty by a jury of sexual assault, aggravated assault, criminal County of Cascade, Cause No. DC 18-504 Honorable John A. Kutzman, endangerment, and assault on a minor. Presiding Judge COUNSEL OF RECORD: For Appellant: Carl B. - ¶3 Nickerson was sentenced to Montana State Prison for a term Jensen, Attorney at Law, Great Falls, Montana For Appellee: Austin of 50 years for sexual assault. He was also sentenced to the Knudsen, Montana Attorney General, C. Mark Fowler, Assistant Attorney following concurrent terms: 20 years for aggravated assault, 10 General, Helena, Montana Joshua A. Racki, Cascade County Attorney, years for criminal endangerment, and five years for assault on a Susan L. Weber, Deputy County Attorney, Great Falls, Montana minor. Nickerson appealed his conviction alleging that the State Submitted on Briefs: February 17, 2021. failed to prove an essential element of the assault on a minor ! Justice Jim Rice delivered the Opinion of the Court. charge. Nickerson also asserted a claim of ineffective assistance - ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme of counsel (IAC). State v. Nickerson, DA 10-0259, 2011 MT Court Internal Operating Rules, this case is decided by 85N, 2011 Mont. LEXIS 116. memorandum opinion and shall not be cited and does not serve - ¶4 On April 20, 2011, we remanded the case to the District as precedent. Its case title, cause number, and disposition shall Court with instructions to strike Nickerson's conviction of assault be included in this Court's quarterly list of noncitable cases on a minor and the associated sentence. We held that Nickerson's published in the Pacific Reporter and Montana Reports. claim of IAC was without merit. ! ¶2 Roberto Salaman-Garcia was a carnival ride operator who was - ¶5 On November 18, 2019, Nickerson filed a petition for convicted after jury trial of two counts of felony sexual assault and postconviction relief (PCR) arguing malicious prosecution, that two counts of misdemeanor sexual assault for sexually touching his trial attorney was ineffective, and that exculpatory evidence females, both adult and minor, while buckling them into seats on an was not properly examined. On December 30, 2019, the District amusement ride at the 2018 State Fair in Great Falls. He challenges Court dismissed Nickerson's petition. The court held that the District Court's denial of his motions to dismiss for lack of Nickerson's petition for PCR was time barred, and that the speedy trial and for a new trial. petition did not raise grounds for relief that could not have been - ¶3 After law enforcement received complaints from the victims,

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 5 Salaman-Garcia was arrested on July 30, 2018.[1] At the in favor of the State, with the State's 189-day delay being arraignment on August 22, trial on the charges was set for institutional, and the remaining 105 days being attributable to October 22. On August 29, Salaman-Garcia's defense counsel Salaman-Garcia. For the reasons set forth above, the court moved to extend the motions deadline, and on August 31, moved weighed Factor Three and Factor Four in favor of the State, to continue the trial date, stating additional time would be concluding there was no prejudice to Salaman-Garcia and that needed for discovery and filing of pre-trial motions. The motion the balancing of the factors clearly required denial of the motion. was granted and the trial date was vacated. On December 24, - ¶9 A couple weeks after the trial, the State learned that Officer and again in February 2019, the State requested the District Steven Fox, who had testified in Salaman-Garcia's trial, was Court to set a new trial date. On February 19, 2019, the trial was being investigated for making a false statement on an insurance reset for May 20, 2019, at which time the trial was ultimately claim. The State disclosed the information to the defense and conducted. On April 8, defense counsel moved for dismissal on District Court. Salaman-Garcia filed a motion for a new trial, speedy trial grounds. The District Court conducted a hearing on arguing, "[b]ased on the fact the officer in question had a May 3, and entered its findings of fact and conclusions of law pending investigation that could impeach his testimony that was denying the motion on May 12. The District Court compared the not disclosed, the interests of justice require that the Defendant delay experienced in this case with other cases decided by this be granted a new trial." The State objected, arguing that Fox's Court, applied the Ariegwe[2] factors, and reasoned that "the role in the investigation and trial was minor, and he had spoken 294-day pretrial delay in this case was essentially unavoidable" to only one of the victims. The District Court conducted a and did not violate Salaman-Garcia's right to a speedy trial. hearing on the motion, and after hearing the evidence, ruled from - ¶4 A couple weeks after Salaman-Garcia's trial, the State learned the bench: of an internal investigation concerning an officer who had - [W]e had some law enforcement witnesses, who in my mind testified at the trial, and advised Salaman-Garcia's counsel and from where I was sitting during the trial, were basically the District Court. Salaman-Garcia filed a motion for new trial extras in this case. And I remember thinking while Deputy on June 24, 2019, and the District Court conducted a Fox was testifying, "Why did they even call this guy?" And Brady/Giglio[3] hearing on the motion. At the close of the he's the only witness that the State has a problem with now. hearing, the District Court denied the motion from the bench. And I cannot say that if [defense counsel] had had this Salaman-Garcia appeals. information to impeach him with during the trial that there - ¶5 A speedy trial violation presents a question of constitutional is a reasonable probability that the outcome would have been law, which we review de novo to determine whether the court different. Neither can I say in the words of the Reinert case, correctly interpreted and applied the law. State v. Stewart, 2017 which is an exposition of the Brady standard, "that the MT 32, ¶ 6, 386 Mont. 315, 389 P.3d 1009 (citation omitted). likelihood of a different result is great enough to undermine We review the factual findings underlying a speedy trial analysis confidence in the outcome of the trial." If they had this kind for clear error. Stewart, ¶ 6 (citation omitted). "This Court of evidence about Detective Cunningham, we'd be having a exercises plenary review over constitutional questions, including different discussion. . . . But this evidence impeaches the Brady violations." State v. Fillion, 2020 MT 283, ¶ 6, 402 testimony of somebody who I regard as no more than a bit Mont. 84, 475 P.3d 725 (citation omitted). player in the trial, and that means it doesn't undermine my - ¶6 The right to a speedy trial is guaranteed by the United States confidence in the outcome. So the motion is denied. Constitution and the Montana Constitution. Reviewing courts - ¶10 "The scope of required disclosure is limited to exculpatory must analyze speedy trial motions by balancing four factors: (1) evidence and any other constitutionally material evidence tending the length of the delay; (2) the reason for the delay; (3) the to show that a prosecution witness is unreliable, biased, has an accused's assertion of his right to a speedy trial; and (4) the interest or motive to testify falsely, or has a character for prejudice to the accused as a result of the delay. Ariegwe, ¶ 20. untruthfulness." City of Bozeman v. McCarthy, 2019 MT 209, ¶ No single factor is dispositive and each must be considered 14, 397 Mont. 134, 447 P.3d 1048 (citation omitted). under the totality of the relevant circumstances. Ariegwe, ¶ 112. "Nonexculpatory information is constitutionally material only if The delay threshold to trigger a speedy trial analysis is 200 days. nondisclosure would be reasonably likely to ‘undermine Arigewe, ¶ 41. Here, under the first factor, the total length of confidence' in the fairness of the trial or sentencing determination delay was 294 days, making a speedy trial analysis necessary. under the totality of the circumstances." McCarthy, ¶ 14 (citation - ¶7 Under the second factor, the District Court determined the omitted). Non-exculpatory impeachment evidence is 84-day delay to the first trial setting was institutional delay. constitutionally material "only where the subject witness provides Regarding the 210-day delay to the second and final trial setting, the key ‘evidence linking the defendant(s) to the crime, or where the District Court ruled the delay "resulted from a combination the likely impact on the witness's credibility would . . . of [defense counsel's] request to continue the October 22 setting undermine[] a critical element of the prosecution's case. '" and docket congestion." Regarding the latter, the District Court McCarthy, ¶ 14 (citation omitted). explained: - ¶11 We have determined to decide this case pursuant to Section - [T]he Eighth Judicial District is extraordinarily congested. I, Paragraph 3(c) of our Internal Operating Rules, which provides This Court typically has 10 to 15 criminal jury trials set for memorandum opinions. This appeal presents questions every other Monday, and sometimes for several consecutive regarding speedy trial and disclosure that are controlled by weeks at a time. Only three courtrooms with jury boxes and settled law, which the District Court correctly applied in denying a fourth with no jury box are available to accommodate the the motions. competing demands of four district court judges and a - ¶12 Affirmed. standing master[.] - /S/ JIM RICE - The District Court held that "[t]he only reasonable method the - We concur: Court can conceive of to capture this joint responsibility for the - /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH delay is to apportion it equally between the two sides," citing BAKER /S/ DIRK M. SANDEFUR State v. Couture, 2010 MT 201, ¶ 93, 357 Mont. 398, 240 P.3d - [1] In its findings, the District Court noted that 987, and designated the State's portion of the delay as Salaman-Garcia had been arrested, released, and rearrested institutional, weighing less heavily against the State. "as more complaining witnesses came forward," but that July Salaman-Garcia does not challenge this apportionment on appeal. 30, 2018, was the earliest arrest date it could find in the - ¶8 Under the third factor, the District Court assessed all of record. In any event, the parties do not dispute the District Salaman-Garcia's requests of record, including his request for a Court's calculation of 294 total days of delay in the continuance, and concluded that "the totality of the entire record proceeding. . . . does not indicate persistent manifestations of desire or - [2] State v. Ariegwe, 2007 MT 204, 338 Mont. 442, 167 efforts to be brought to trial earlier than Mr. Salaman-Garcia has P.3d 815. been." Regarding the considerations of prejudice under the fourth - [3] Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, factor, the District Court did not find the conditions of 1196-97 (1963); Giglio v. United States, 405 U.S. 150, Salaman-Garcia's incarceration to be oppressive, found "no basis 154-55, 92 S. Ct. 763, 766 (1972). to apportion his claimed anxiety to delay rather than the prospect of facing 4 counts of Sexual Assault," and no proof that the 6. Montana Supreme Court 2021 MT 63N STATE OF MONTANA, delay had impaired any witness recollection. Balancing the Plaintiff and Appellee, v. QUINTON RAND Sederdahl, Defendant factors, the District Court held that the First Factor, length of and Appellant. Decided: March 9, 2021. Case No.: DA 18-0393. delay, weighed slightly in Salaman-Garcia's favor, but that the APPEAL FROM: District Court of the Eleventh Judicial District, In and amount of delay was not unusual in that jurisdiction, especially For the County of Flathead, Cause No. DC-17-205(C) Honorable Heidi in a serious felony case. The court held that Factor Two weighed J. Ulbricht, Presiding Judge COUNSEL OF RECORD: For Appellant:

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 6 Chad Wright, Appellate Defender, Danny Tenenbaum, Assistant Appellate Sederdahl had swerved because he was intoxicated, merely Defender, Helena, Montana For Appellee: Austin Knudsen, Montana distracted, or perhaps even trying to avoid deer. While it is Attorney General, Michael P. Dougherty, Assistant Attorney General, certainly possible to imagine ways in which Sederdahl might Helena, Montana Travis R. Ahner, Flathead County Attorney, Kalispell, have acted without the requisite intent, the evidence presented at Montana Submitted on Briefs: February 3, 2021. trial, viewed in the light most favorable to the prosecution, could ! Chief Justice Mike McGrath delivered the Opinion of the Court. allow a rational trier of fact to conclude beyond a reasonable - ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme doubt that Sederdahl had indeed acted knowingly. Court Internal Operating Rules, this case is decided by - ¶10 We have determined to decide this case pursuant to Section memorandum opinion and shall not be cited and does not serve I, Paragraph 3(c) of our Internal Operating Rules, which provides as precedent. Its case title, cause number, and disposition shall for memorandum opinions. In the opinion of the Court, the case be included in this Court's quarterly list of noncitable cases presents a question controlled by settled law or by the clear published in the Pacific Reporter and Montana Reports. application of applicable standards of review. ! ¶2 Quinton Rand Sederdahl appeals from his February 8, 2018 - ¶11 Affirmed. conviction following a bench trial of the offense of Criminal - /S/ MIKE McGRATH Endangerment, a felony, under § 45-5-207(1), MCA. We affirm. - We Concur: - ¶3 Around 1:00 a.m. on April 5, 2017, Flathead County Deputy - /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ Sheriff Mandi Perry (Perry) was on patrol driving northbound BETH BAKER /S/ JIM RICE near Lakeside on what she described as a mountainous section of Highway 93 bounded by a rock wall on one side and a 300-foot embankment on the other. Perry observed an oncoming FAMILY - DN vehicle—driven by Quinton Rand Sederdahl (Sederdahl)—swerve MENTAL COMMITMENT from the southbound lane into her northbound lane, causing another northbound vehicle approximately 200 yards ahead of 7. Montana Supreme Court 2021 MT 58N IN THE MATTER OF THE Perry to brake and swerve in response. Perry testified that she MENTAL HEALTH OF: A.O., Respondent and Appellant. Decided: was not sure whether Sederdahl was distracted or intoxicated and March 9, 2021. Case No.: DA 19-0141. APPEAL FROM: District Court could not rule out the possibility that Sederdahl might have been of the Eleventh Judicial District, In and For the County of Flathead, attempting to avoid wildlife. The oncoming vehicle then swerved Cause No. DI-16-054(A) Honorable Amy Eddy, Presiding Judge into the northbound lane a second time, going far enough into COUNSEL OF RECORD: For Appellant: Chad Wright, Appellate Perry's lane that it kicked up dust on the shoulder of the Defender, Kristen L. Peterson, Assistant Appellate Defender, Helena, northbound lane. Perry testified that she braked and "grabbed Montana For Appellee: Austin Knudsen, Montana Attorney General, onto [the steering] wheel and said a last prayer," believing that Damon Martin, Assistant Attorney General, Helena, Montana Travis R. neither she nor the other driver would survive. Sederdahl Ahner, Flathead County Attorney, Anne Lawrence, Deputy County swerved back across the road and continued south, missing Perry. Attorney, Kalispell, Montana Submitted on Briefs: January 27, 2021. - ¶4 Perry testified that she had never been so frightened in her ! Justice Beth Baker delivered the Opinion of the Court. life and that she spent approximately thirty seconds—her voice - ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme shaking while radioing dispatch and trying to steady her hands Court Internal Operating Rules, this case is decided by to grab onto the steering wheel—attempting to compose herself memorandum opinion and shall not be cited and does not serve before turning around to pursue the other driver. Perry caught up as precedent. Its case title, cause number, and disposition shall to Sederdahl and, though Sederdahl did not initially yield to be included in this Court's quarterly list of noncitable cases Perry's lights, siren, and blasting airhorn, she was eventually able published in the Pacific Reporter and Montana Reports. to conduct a traffic stop. After performing multiple field sobriety ! ¶2 Appellant A.O. appeals an Eleventh Judicial District Court order tests, Perry arrested Sederdahl, who was subsequently charged committing him to the Montana State Hospital for a period not to with Driving Under the Influence of Alcohol, a misdemeanor, in exceed ninety days and authorizing the administration of involuntary violation of § 61-8-401(1), MCA, and Criminal Endangerment, medication for the purposes of transport. We affirm. a felony, under § 45-5-207(1), MCA. - ¶3 On January 9, 2019, A.O. created a disturbance at a Kalispell - ¶5 At the close of evidence during trial, Sederdahl moved for a Costco store, requiring law enforcement intervention. Law judgment of acquittal on the Criminal Endangerment charge, enforcement transported A.O. to a local emergency room, but arguing that the State had presented insufficient evidence to find once hospital staff determined A.O. did not meet the that Sederdahl had acted knowingly. The District Court denied requirements for an involuntary hold, they released him. That the motion. Sederdahl was found guilty on both charges. same day, after his release, A.O. got into an argument with his Sederdahl appeals the District Court's denial of his motion for girlfriend and became aggressive towards his roommates, acquittal for Criminal Endangerment. resulting in another law enforcement visit and another trip to the - ¶6 This Court reviews the denial of a motion to dismiss for emergency room. insufficient evidence de novo. State v. Cybulski, 2009 MT 70, ¶ - ¶4 A.O.'s brother-in-law, Willie, informed the Certified Mental 42, 349 Mont. 429, 204 P.3d 7 (citation omitted). We view the Health Person ("MHP") evaluating A.O. in the emergency room evidence in the light most favorable to the prosecution, that A.O. has a long history of Bipolar Disorder and has determining whether there is sufficient evidence for a rational previously been hospitalized about a dozen times. Willie stated trier of fact to find the elements of the crime had been proven that A.O. threw out his medications the previous day, claiming beyond a reasonable doubt. Cybulski, ¶ 42 (citation omitted). "Jesus is my therapist now," and that he "can't wait to be with - ¶7 On appeal, Sederdahl argues that the State failed to Jesus." Willie was unable to confirm or deny if A.O. meant these demonstrate that he had acted "knowingly." Under § 45-5-207(1), statements to indicate suicidal ideation but told the MHP they MCA, a person is guilty of Criminal Endangerment when the worried him. Importantly, Willie indicated that A.O. has had person "knowingly engages in conduct that creates a substantial similar manic episodes before and that A.O. "[is] going to get risk of death or serious bodily injury to another." Furthermore, violent" and may eventually black out. "[t]he existence of a mental state may be inferred from the acts - ¶5 The MHP attempted to speak with A.O., who confirmed he of the accused and the facts and circumstances connected with is manic depressive but said "that cross has been lifted" and that the offense." Section 45-2-103(3), MCA. Moreover, lack of his mania is no longer a burden. When the MHP told A.O. he awareness because of voluntary intoxication may not be taken was being evaluated for an involuntary hold, however, A.O. into account when considering whether a particular mental state stiffened, stating he would "take [the] hospital" should he be exists under Montana's criminal codes. Cybulski, ¶ 43 (citing § held against his will. He then began breathing heavily and stared 45-2-203, MCA). down the MHP, who left out of concern for her safety. As the - ¶8 Here, the State presented evidence that Sederdahl twice MHP left the room, A.O. stood up and screamed, "this is my crossed in front of oncoming traffic on a road bounded by a wall hospital." and a steep embankment, causing Perry to believe that her death - ¶6 Based in part on the MHP's report, on January 10, Pathways was imminent. A rational finder of fact could infer from these Treatment Center admitted A.O. on an emergency detention hold. acts and the attendant circumstances that Sederdahl knew his At Pathways, A.O. demonstrated increasing paranoia and actions would create a substantial risk of death or serious bodily "hyper-religiosity." A.O. soon became violent and started injury to Perry or others. The most reasonable alternative, that pounding on the walls and windows of a nurse's station. He also Sederdahl did not know he was putting others in danger because threatened to kill "every person he saw" and said that he would he was intoxicated, is not a proper consideration under § die trying to kill anyone who touched him. A.O. eventually broke 45-2-203, MCA. the nurse's station window and attempted to crawl through it. - ¶9 Sederdahl points out that Perry was initially unsure if Security and law enforcement responded—it took five officers,

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 7 three security guards, and the use of a taser to finally restrain noted that law enforcement refused to transport A.O. unless he A.O. was medicated and that the court cannot order involuntary - ¶7 The next day, Friday, January 11, the Flathead County medication prior to an adjudication and disposition. The District Attorney's Office filed a petition to involuntarily commit A.O. Court therefore ordered A.O.'s commitment to the Montana State Notably, the petition stated the county attorney could not find an Hospital for a period not to exceed ninety days and authorized appropriate person to serve as court-appointed "friend of [the] involuntary medication for the purposes of transport. respondent" ("Friend"). See §§ 53-21-102(8), 53-21-122(2)(b), - ¶12 On appeal, A.O. argues that the District Court erred in MCA. The District Court set an initial appearance for the concluding A.O.'s right to be present at his commitment hearing following Monday, January 14, and an adjudicatory hearing for was validly waived and in holding the adjudication hearing on January 17. At the initial appearance, A.O. appeared remotely the same day as A.O.'s initial appearance. "Due process claims from Pathways with his court-appointed attorney alongside him. in involuntary civil commitment cases are subject to plenary While being advised of his rights, A.O. became "very agitated" review"; we examine the civil commitment order to determine if and started "screaming at the judge" and his counsel. Fearing for the "district court's findings of fact are clearly erroneous and its her safety, A.O.'s counsel left the room and waived the remainder conclusions of law are correct." In re S.D., 2018 MT 176, ¶ 8, of the initial appearance, though counsel apparently stayed in 392 Mont. 116, 422 P.3d 122 (citations omitted). contact with the District Court. Before the proceedings - ¶13 A.O.'s counsel did not object to any of the District Court's concluded, the State moved to have A.O. transported to the actions. We generally do not address issues raised for the first Montana State Hospital pending the adjudicatory hearing. The time on appeal; but due to the nature of involuntary commitment State represented that Dr. Todd Shumard, A.O.'s attending proceedings, we may use plain error review to address psychiatrist at Pathways, agreed with the transportation plan. unpreserved issues. See In re M.K.S., 2015 MT 146, ¶ 13, 379 A.O.'s counsel did not object, and the District Court granted the Mont. 293, 350 P.3d 27. A.O. thus has the burden to motion. demonstrate (1) that the alleged error implicates a fundamental - ¶8 A few hours after the initial appearance, however, the State right and (2) that failure to review the alleged error would result filed a motion requesting an expedited adjudicatory hearing and in "a manifest miscarriage of justice, may leave unsettled the the involuntary administration of medication for A.O.'s safe question of the fundamental fairness of the trial or proceedings, transport. The State's reason for requesting the expedited hearing or may compromise the integrity of the judicial process." In re was that law enforcement refused to transport A.O. to the M.K.S., ¶¶ 13-14 (citations omitted). Under the second prong of Montana State Hospital without sedation, and Dr. Shumard did this test, we "weigh the risk of depriving an individual's liberty not feel that Pathways—or any other community placement—had against the probable values of the procedure in question." In re the necessary facilities to safely hold A.O. in his manic state. B.H., 2018 MT 282, ¶ 17, 393 Mont. 352, 430 P.3d 1006 The District Court granted the motion and held the adjudicatory (quoting In re M.K.S., ¶ 18). "When a procedural error results hearing the afternoon of January 14, mere hours after A.O.'s in no substantial prejudice to the party, the error is de minimis initial appearance. A.O. was not present at the hearing, either in and does not affect [the] individual's liberty interest." In re B.H., person or via video; the record indicates his presence was waived ¶ 17 (quoting In re M.K.S., ¶ 18); see also In re Mental Health by counsel beforehand. of O.R.B., 2008 MT 301, ¶ 30, 345 Mont. 516, 191 P.3d 482; - ¶9 At the adjudicatory hearing, Dr. Shumard testified that A.O.'s In re Mental Health of A.S.B., 2008 MT 82, ¶ 36, 342 Mont. continued aggressiveness and agitation regarding the legal 169, 180 P.3d 625. proceedings made it unsafe for Pathways staff to personally - ¶14 "We have consistently emphasized that our civil commitment interact with him; that because of his manic state, A.O. had slept laws are to be strictly adhered to." In re M.K.S., ¶ 16 (citation only about three hours over the past three days; that A.O. omitted). "The statutes authorizing involuntary commitment are consistently displayed delusional thinking, including "grandiose to be applied to ensure that the government does not invade an [] religious themes" such as "being the creator [and] destroyer of individual's freedom or liberty without due notice, cause and worlds or people"; and that A.O.'s violent outbursts rendered process." In re M.K.S., ¶ 16 (internal quotation and citation community placement dangerous to both A.O. and others. Dr. omitted). We have, however, declined to reverse for lack of strict Shumard believed bringing A.O. to the courthouse would compliance with these statutes where we conclude that the seriously affect his mental state and his safety. In Dr. Shumard's second prong of the plain error review standard is not met. In re opinion, placement at the Montana State Hospital was the only B.H., ¶ 20 (citing In re M.K.S., ¶ 24). viable option available. Placement there would ensure not only - ¶15 A.O. contends that, because he was not appointed a Friend the safety of the public and hospital workers but of A.O. as pursuant to § 53-21-122(2)(b), MCA, the District Court erred in well—A.O. continued to be violent and in his manic state did concluding a valid waiver of his physical presence at the not have the necessary cues to take care of or feed himself. Dr. adjudicatory hearing under § 53-21-119(2), MCA, existed. Shumard expressed that immediate commitment was necessary Section 53-21-119(2), MCA, in relevant part reads: because he did "not doubt [A.O.] will do damage to anyone else - (2) The right of the respondent to be physically present at a if [A.O.] is able to lay [] hands on them" and that based on his hearing may also be waived by the respondent's attorney and observations and statements from A.O.'s family, A.O.'s condition the [Friend] with the concurrence of the professional person is likely to deteriorate further and would improve only with and the judge upon a finding supported by facts that: medication. - (a) (i) the presence of the respondent at the hearing - ¶10 Kimberly Olson, a licensed clinical professional counselor, would be likely to seriously adversely affect the also testified regarding her interactions with and observations of respondent's mental condition; and A.O.; her testimony corroborated Dr. Shumard's observations and - (ii) an alternative location for the hearing in surroundings placement recommendations. On cross-examination by A.O.'s familiar to the respondent would not prevent the adverse attorney, Olson agreed that waiving A.O.'s presence at the effects on the respondent's mental condition. hearing was in his best interest. A.O.'s counsel did not ask either - ¶16 The record is clear that the District Court did not appoint witness any other questions and called no witnesses on A.O.'s A.O. a Friend, and therefore the District Court erred in behalf. No Friend for A.O. was either present at the hearing or concluding A.O.'s right to be physically present at the appointed by the Court. After Olson's testimony, the State adjudicatory hearing was properly waived under § 53-21-119(2), recommended that A.O. be transported to Montana State Hospital MCA. A.O.'s attorney, however, waived his appearance, and for commitment; A.O.'s counsel did not challenge the State's multiple medical professionals and the District Court all recommendation and left the decision up to the court's discretion. concurred, based on findings supported by the record, that § - ¶11 The District Court found that A.O. suffers from a serious 53-21-119(2)(a), MCA's, conditions were met. Our review of the mental disorder, Bipolar Disorder, and that because of that record leads us to conclude that A.O.'s due process rights were disorder A.O. is unable to provide for his basic needs and safety. not substantially prejudiced by the absence of a Friend. Given his Further, the District Court found that because of his disorder medical history, Dr. Shumard's testimony, and the severe and A.O. has already caused self-injury or injury to others, and there obvious threat he posed to himself and others, there is no is an imminent continued risk of further injury either to A.O. or reasonable probability that any appointed Friend acting in good to others. The court finally found that A.O.'s mental disorder will faith would have pushed for A.O. to be present at the predictably deteriorate if he does not receive adequate treatment. adjudicatory hearing. In this case, therefore, the procedural value The District Court acknowledged that pursuant to § of having a Friend assent to the waiver of physical presence is 53-21-122(2)(a), MCA, an adjudicatory hearing "may not be held minimal; any error by the District Court was de minimis and on the same day as the initial appearance," but it reasoned that does not affect A.O.'s liberty interest. See In re B.H., ¶¶ 22-23; the word "may" instead of "shall" allowed some discretion given In re M.K.S., ¶¶ 20-23. the exigent circumstances present. The District Court finally - ¶17 A.O. next argues that the District Court plainly erred when

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 8 it held the adjudication hearing on the same day as his initial Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, appearance. Section 53-21-122(2)(a), MCA, reads in relevant part Montana Joshua A. Racki, Cascade County Attorney, Matthew S. that "[t]he judge shall . . . set a date and time for the hearing on Robertson, Deputy County Attorney, Great Falls, Montana Submitted on the petition [for involuntary commitment] that may not be on the Briefs: January 20, 2021. same day as the initial appearance." Before the State moved for ! Justice Ingrid Gustafson delivered the Opinion of the Court. an expedited adjudicatory hearing, law enforcement represented - ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme that, despite the District Court's order, they would not transport Court Internal Operating Rules, this case is decided by A.O. to the Montana State Hospital without the use of memorandum opinion and shall not be cited and does not serve involuntary sedative medication. Attached to the State's motion as precedent. Its case title, cause number, and disposition shall was a letter from Dr. Shumard, stating that due to A.O.'s be included in this Court's quarterly list of noncitable cases condition A.O. was a continuing threat to himself and others, published in the Pacific Reporter and Montana Reports. could not safely remain at Pathways, and required medication to ! ¶2 W.P. (Father) and K.S. (Mother) are the natural parents of S.P. return to a functioning level. A.O.'s counsel did not object to the The Eighth Judicial District Court, Cascade County, terminated their motion and agreed that it was not safe for A.O. to remain at parental rights to S.P. in its May 18, 2020 Order Granting Permanent Pathways until the originally scheduled January 17 hearing. Legal Custody, Termination of Parental Rights with Right to Consent - ¶18 We do not accept the District Court's reasoning that the to Adoption. Mother and Father each appeal, raising separate word "may" in § 53-21-122(2)(a), MCA, provides some level of issues.[1] We affirm the termination of Mother's and Father's parental judicial discretion when it says the court "may not" hold the rights to S.P. hearings on the same day. On the record before us, however, we - ¶3 Mother and Father were no longer in a relationship by the cannot conclude that the District Court's error substantially time of the Department of Public Health and Human Services, prejudiced A.O. The uncontroverted testimony of medical Child and Family Services Division (Department) involvement. professionals indicates that without medication, A.O.'s condition Mother has cognitive and developmental delays stemming from would continue to deteriorate. A.O. already had made threats on Fetal Alcohol Spectrum Disorder (FASD). The Department the life of Pathways staff; breaking and attempting to crawl removed S.P. from Mother's care on August 31, 2017, after a through the nursing station window demonstrated a dangerous failed Protection Plan, placing her with Mother's adoptive father level of sincerity to those threats. Seven guards and law and his wife. The Department alleged Mother failed to provide enforcement officers and the use of a taser were required to for S.P's basic needs and exposed S.P. to domestic violence, restrain A.O. His manic state resulted in an average of one hour extremely unsanitary health conditions, and inappropriate of sleep per day, and he was refusing to eat or take voluntary caregivers. Mother and Father stipulated S.P. was a Youth in medication. Finally, A.O. was unable to safely or effectively Need of Care. Father did not seek placement of S.P. with him. communicate or interact with the District Court, his counsel, or In its order adjudicating S.P., the District Court also granted Pathways staff. TLC to the Department for a period of six months. Neither - ¶19 These facts indicate that A.O.'s then-existing mental parent objected. condition would not have allowed a more effective defense to the - ¶4 The Department proposed treatment plans for both Mother commitment petition by the passage of time between his initial and Father. Mother stipulated to her treatment plan on December appearance and adjudicatory hearing. On the contrary, there is 5, 2017. Father sought multiple continuances of the hearing on substantial evidence that A.O. had little to no awareness of his objections to his treatment plan. He ultimately stipulated to a own health or safety at the time and posed a dangerous risk to treatment plan on December 3, 2018. The Department moved to himself and to others absent medication—which he refused to extend TLC on June 4, 2018. In the accompanying affidavit, the voluntarily take. As the District Court correctly observed, the CPS explained Father was not considered for placement due to only statute allowing an order for involuntary medication is in a history of violent assaults in at least three states and a current, the provisions for post-trial disposition. Section 53-21-127(6), unresolved Partner or Family Member Assault (PFMA) charge MCA. Further, it is unlikely A.O.'s counsel could have rendered against Mother when S.P. was present. Mother and Father any other effective aid through additional evaluations or stipulated to the extension of TLC. consultation with A.O. due to his violent outbursts and inability - ¶5 On August 28, 2018, Father filed a motion to dismiss with to effectively communicate. Holding the adjudicatory hearing at custody of S.P. granted to him, arguing he was the non-custodial, a later date had little value when it was clear that his manic non-offending parent. After a continuance, a hearing on Father's condition would not improve without medication. Weighing the motion to dismiss was held on December 3, 2018. By this time, risk of depriving A.O. of his liberty against the "probable value" Father was incarcerated in federal prison in Georgia on assault of the prohibition against a same-day adjudication hearing, In re charges. Father's counsel withdrew the motion to dismiss and B.H., ¶ 17, we conclude that delaying the hearing would not stipulated to the treatment plan. The court extended TLC again have made a substantive difference in A.O.'s ability to defend but on June 4, 2019, pursuant to the parents' stipulation. The would have posed a very real risk of additional harm, both to Department filed for termination of Mother's and Father's parental A.O. and to others. We therefore conclude that the District rights under § 41-3-609(1)(f), MCA, on August 19, 2019. The Court's error did not affect A.O.'s substantial liberty interest. See initial termination hearing took place on September 24, 2019. In re B.H., ¶¶ 22-23; In re M.K.S., ¶¶ 20-23. Mother's treatment providers, Andrea Savage, LCPC, LMFT, - ¶20 We have determined to decide this case pursuant to Section CTF-CBT, and Angela Meyers, LCPC, LAC, testified. Both I, Paragraph 3(c) of our Internal Operating Rules, which provides providers explained they had prior experience working with for memorandum opinions. This appeal presents no constitutional individuals with FASD. Savage testified she provided Mother issues, no issues of first impression, and does not establish new with Parent Child Interaction Therapy (PCIT) for over two years. precedent or modify existing precedent. Despite the irregularities She opined Mother had not been successful in building parenting present, a review of the record and of the District Court's actions skills through PCIT. Savage testified Mother had strong nurturing leaves us with the firm conviction that A.O. was not subjected skills but was unable to provide basic structure and predictability to a manifest miscarriage of justice and that the proceedings were for her children. Meyers testified Mother reported improvements fundamentally fair and did not undermine the integrity of the in her relationships, but Mother had minimal coping skills and judicial process. The District Court's order committing A.O. to would be overwhelmed if the children were returned to her care. the Montana State Hospital for a period not to exceed ninety Meyers agreed it could have been beneficial to Mother to have days and authorizing the administration of involuntary medication seen her more often. is affirmed. - ¶6 On December 9, 2019, Mother filed a Motion for Court - /S/ BETH BAKER Ordered Alternative Dispute Resolution. In the accompanying - We Concur: brief, Mother argued the court should order the parties to - /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ DIRK mediate a potential guardianship because the Department would M. SANDEFUR /S/ INGRID GUSTAFSON not be able to meet its burden to show it provided Mother with active efforts.[2] Mother argued the Department failed to provide 8. Montana Supreme Court 2021 MT 57N IN THE MATTER OF: S.P., her with reasonable accommodations under the Americans with A Youth in Need of Care. Decided: March 9, 2021. Case No.: DA Disabilities Act (ADA) and Section 504 of the Rehabilitation Act 20-0314. APPEAL FROM: District Court of the Eighth Judicial District, of 1973 and failed to provide her with active efforts under In and For the County of Cascade, Cause No. DN 17-303 Honorable ICWA because she had not been offered services or a parenting John W. Parker, Presiding Judge COUNSEL OF RECORD: For assessment specifically tailored to treat FASD. The Department Appellant: Tracy Labin Rhodes, Labin Rhodes Law, PLLC, Missoula, responded Mother's treatment plan took her disability into Montana (for Father) Kelly M. Driscoll, Driscoll Hathaway Law Group, account and her services were tailored to her disability. The Missoula, Montana (for Mother) For Appellee: Austin Knudsen, Montana Department opposed mediation because it had already considered

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 9 guardianship, but concluded adoption was more appropriate. The proposed treatment plan and then repeatedly sought continuances court declined to order mediation. After multiple continuances, of the hearing on his objections to the proposed treatment plan, the termination hearing concluded on May 1, 2020. CPS Teresa extending the hearing out for over a year. It was not until Father Larson and CPS Supervisor Kami Stone testified Mother's was incarcerated that his counsel stipulated to the treatment plan treatment plan had not been successful as she still lacked at the same hearing at which he withdrew Father's motion to parenting skills despite engaging in PCIT and counseling for over dismiss the case. Further, the Department notified the court of its two years. They further testified Father had not completed his concerns regarding Father in its first petition for an extension of treatment plan and was uncooperative with the Department. TLC in June 2018. Given Father's stipulation to adjudication and Mother testified on her own behalf. She testified she asked the lack of objection to the initial grant of TLC to the Department Department if there was anything else she could do to reunify or the Department's placement of the child with the maternal with her children and the Department told her no. Mother's grandfather,[4] it makes sense this was the first point in the case husband, her adoptive mother, and a friend also testified in at which the Department's concerns about Father were before the support of Mother being able to safely parent. Father did not call court. While Father is correct the Department's initial petition any witnesses on his behalf. At the end of the hearing, the cited only its concerns with Mother as the reason for removing District Court explained it would take Mother's disability into the child, the record in this case shows Father neither wanted or account when making its determinations, relying on In re J.B.K., sought immediate placement of the Child with him, nor objected 2004 MT 202, ¶ 30, 322 Mont. 286, 95 P.3d 699. The District to the Department's initial placement decision, nor was unclear Court terminated Mother's and Father's parental rights pursuant why the Department had not placed the child with him upon to § 41-3-609(1)(f), MCA. removal from Mother. This Court "will not put a district court in - ¶7 This Court reviews a district court's findings of facts for clear error for an action to which the appealing party acquiesced or error and conclusions of law for correctness. In re B.H., 2020 actively participated." In re A.A., 2005 MT 119, ¶ 26, 327 Mont. MT 4, ¶ 26, 398 Mont. 275, 456 P.3d 233. If the court's 127, 112 P.3d 993. Father failed to preserve this issue for appeal findings of fact are not clearly erroneous and if the court's and under the facts of this case, there was no violation of conclusions of law are correct, we will not reverse a district Father's due process rights. court's decision to terminate parental rights unless we determine - ¶12 Turning to Father's challenge that his treatment plan was not the district court abused its discretion. In re B.H., ¶ 26. Father appropriate, we note Father ultimately stipulated to his treatment - ¶8 Father first argues the District Court erred in not applying the plan and did not raise any objections with the District Court Indian Child Welfare Act (ICWA) to S.P.'s case from the outset. regarding the plan after it was adopted by the court. He thus He also argues he was deprived of due process when the court waived any objection to his treatment plan on appeal. See In re terminated his parental rights when no allegations of abuse and T.S., 2013 MT 274, ¶ 27, 372 Mont. 79, 310 P.3d 538. Finally, neglect of S.P. were made against him. Finally, Father argues his we reject Father's contention the District Court erred in treatment plan was inappropriate and the District Court erred in terminating his parental rights based on abandonment. It is clear terminating Father's rights on the basis of abandonment. from the District Court's order terminating Father's parental rights - ¶9 Father argues the District Court failed to inquire at any the District Court terminated Father's rights under § hearing whether the parties had reason to know S.P. was an 41-3-609(1)(f), MCA, for failure to successfully complete his Indian child. The record is void of any suggestion S.P. or either treatment plan and his unlikelihood to change in a reasonable of her parents had any tribal affiliation. None of the factors listed time. The District Court did not abuse its discretion in in 25 C.F.R. § 23.107(c) indicating a court has a "reason to terminating Father's parental rights. Mother know" a child is an Indian child are relevant here. See also In - ¶13 Mother argues the Department failed to comply with the re S.R., 2019 MT 47, ¶ 20, 394 Mont. 362, 436 P.3d 696; In re ADA, failed to provide reasonable efforts to reunify her with J.J.C., 2018 MT 317, ¶¶ 17-18, 394 Mont. 35, 432 P.3d 149. S.P., and presented insufficient evidence to support the District Neither the Department nor the District Court ever had reason to Court's conclusion Mother was unlikely to change within a know S.P. was an Indian child and Father does not assert S.P. reasonable amount of time. to be an Indian child. The directive in 25 C.F.R. § 23.107(b) to - ¶14 While we agree with Mother the ADA applies to dependent treat the case as an ICWA case thus does not apply and the neglect cases, as we discuss more fully in the companion case, District Court did not err in failing to apply ICWA to any of the In re K.L.N., ¶¶ 24-26, the requirements that a treatment plan be proceedings regarding S.P. appropriate and for the Department to provide reasonable efforts - ¶10 Father maintains the court violated his due process rights to reunify the family are commensurate with the ADA's when his parental rights were terminated when the Department reasonable accommodation requirement. A district court need not never alleged he abused or neglected S.P. and did not include make specific findings under the ADA when terminating parental concerns about Father in its initial Petition filed with the court. rights. If the Department fails to take into account a parent's Father argues the Department should have considered him as the limitations or disabilities and make reasonable accommodations first placement option for S.P. as the noncustodial and therefor, then it has not developed an appropriate treatment plan non-offending parent and moved to dismiss the case, citing In re or provided reasonable efforts to reunite the family. Mother does E.Y.R., 2019 MT 189, 396 Mont. 515, 446 P.3d 1117, and In not challenge whether her treatment plan was appropriate on re B.H. appeal. - ¶11 This argument does not hold up under the facts of this case. - ¶15 As we have explained previously, failure to provide Father stipulated to adjudication of S.P. as a YINC. When the reasonable efforts can prevent the District Court from District Court also awarded TLC to the Department in its order determining a parent is unlikely to change in a reasonable time. adjudicating S.P. a YINC, Father did not object and never raised See In re C.M., 2019 MT 227, ¶ 22, 397 Mont. 275, 449 P.3d the issue with the court. The Department is authorized to 806. Mother alleges the Department failed to provide her with determine the appropriate placement of a child alleged to be or reasonable reunification efforts and thus the Department failed to adjudicated as a YINC, unless a party objects and moves for a carry its burden of establishing the criteria under § contested placement hearing with the Court. Section 41-3-440, 41-3-609(1)(f)(ii), MCA, that her conduct was unlikely to change MCA. Rather than object to S.P.'s placement, Father's counsel in a reasonable time. Specifically, Mother argues the Department specifically stated at the October 2017 show cause hearing and (1) failed to provide her with sufficient access to PCIT, the February 2018 hearing Father was not seeking placement of individual therapy, and in-home services; and (2) failed to S.P. with him. In fact, Father did not challenge the Department's provide Mother with meaningful visitation opportunities. Mother placement of S.P. with her maternal grandfather until he filed his never raised issues with the services she was provided, sought motion to dismiss the case on August 28, 2018— a year after changes to her treatment plan or services, or brought issues with S.P. had been removed. By the time the court held a hearing on visitation to the District Court's attention. At status hearings, Father's motion to dismiss, Father was incarcerated in federal Mother's counsel reported Mother was doing well and prison in Georgia and his counsel withdrew the motion. Further, progressing. Mother's December 9, 2019 Motion for Court the record shows the Department expressed its concerns about Ordered Alternative Dispute Resolution did not seek the placing S.P. with Father at its first meeting with him, provision of additional services or reasonable accommodations highlighting his prior assault convictions in other states and the for Mother, but rather sought an order from the court for the unresolved PFMA case involving Mother in Montana.[3] The parties to engage in mediation to discuss guardianship rather than Department immediately requested Father submit to an termination of her parental rights. The only additional service assessment for domestic violence and anger management to Mother identified in that motion was an evaluation by a alleviate its documented concerns, in addition to seeking a neuropsychologist. But as the Department pointed out in its brief court-ordered treatment plan for Father. Father refused to in opposition, Mother's FASD was already taken into account in voluntarily participate in the assessments and objected to the her treatment plan and the services offered by the Department

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 10 and further evaluation of her disability was not needed. The Youth in Need of Care (YINC) without applying the Indian Child Department had set up PCIT with Savage, a therapist experienced Welfare Act (ICWA). in working with parents with FASD. When Savage suggested - ¶2 We affirm the termination of Mother's parental rights to Mother should also be in individual counseling, the Department K.L.N. set up counseling with Meyers, who also had experience working ! PROCEDURAL AND FACTUAL BACKGROUND with parents with FASD. Nothing in the record shows Meyers or - ¶3 The Department has a long history with Mother. Her parental Savage ever made additional recommendations to the Department rights to her first child were terminated in 2013 based on her about the provision of services or Mother requested inability to meet an infant's needs. Mother has cognitive and accommodations in those services and the Department denied developmental delays stemming from Fetal Alcohol Spectrum those recommendations or requested accommodations. The Disorder (FASD). Mother's adoptive father (Grandfather) is District Court considered the testimony of Mother's therapists, the Mother's guardian and conservator. In 2016, the Department child protection specialists, Mother, and Mother's proponents. began receiving reports during Mother's pregnancy with S.P., This Court will not reweigh this evidence. Sufficient evidence detailing concerns about Mother's ability to care for an infant and supported the District Court's determination Mother was unlikely her significant other's anger issues. After S.P.'s birth, the to change in a reasonable period of time. The District Court did Department began receiving reports Mother was unable to care not abuse its discretion in terminating Mother's parental rights to for the infant, exposed S.P. to domestic violence, failed to S.P. provide S.P. with food and water, exposed her to unsanitary - ¶16 We have determined to decide this case pursuant to Section conditions, refused to return home and slept on the street with I, Paragraph 3(c) of our Internal Operating Rules, which provides S.P. without proper clothing to protect S.P. from heat and insect for memorandum opinions. In the opinion of the Court, the case bites, failed to change S.P.'s diaper for long periods of time, and presents a question controlled by settled law or by the clear left S.P. in the care of known child sex offenders. The application of applicable standards of review. The District Court Department put a Protection Plan in place with S.P. remaining did not abuse its discretion. Affirmed. in Mother's custody and Grandfather and his wife (Grandparents) - /S/ INGRID GUSTAFSON serving as Safety Resources. The Department also referred - We concur: Mother to Andrea Savage, LCPC, LMFT, CTF-CBT for - /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH Theraplay and Parent Child Interaction Therapy (PCIT). Savage BAKER /S/ DIRK M. SANDEFUR completed her first parenting assessment of Mother in 2017. - [1] Mother also appeals from the termination of her parental Despite this intervention, Mother continued to expose S.P. to rights to her other child, K.L.N., which the District Court known sex offenders and the Department removed S.P. from terminated in the same May 18, 2020 Order. We originally Mother's care on August 31, 2017, placing her with consolidated these cases at Mother's request on July 22, Grandparents. Following Mother's stipulation that S.P. was a 2020. After Mother's briefing was completed in the case, YINC, the court adjudicated S.P. as a YINC and granted TLC to Father moved to unconsolidate the cases on December 30, the Department on October 27, 2017. Mother stipulated to her 2020, explaining he is not a party to the proceedings treatment plan on December 5, 2017. regarding K.L.N. as he is the birthfather of S.P. and not - ¶4 K.L.N. was born in early 2018 and the Department removed K.L.N. We granted Father's motion and unconsolidated the her from Mother's care shortly after her birth, citing Mother's cases on that same day. We address the termination of inability to care for an infant and the ongoing dependent neglect Mother's rights to K.L.N. in a separate, published opinion, In case with S.P. K.L.N.'s birthfather reported he is affiliated with re K.L.N., 2021 MT 56, ___ Mont. ___, ___ P.3d ___. the Quinault Indian Nation (Tribe) and K.L.N. is an Indian Child - [2] Mother's brief applies ICWA's "active efforts" under ICWA.[2] The Department sent notice of the proceedings requirement. to the Tribe and sought confirmation of K.L.N.'s membership - [3] These prior convictions and charges for assault and status. The Tribe did not respond and did not participate in the PFMA are clearly "objective, demonstrable circumstances proceedings. The adjudication hearing was continued several indicative of an imminent safety threat to the child." In re times. On August 14, 2018, upon Mother's stipulation, the court E.Y.R., ¶ 29. ultimately adjudicated K.L.N. a YINC, granted TLC to the - [4] Unlike in In re E.Y.R. and In re B.H., upon which Department, and ordered Mother to comply with the same Father relies, Father does not allege—and the record would treatment plan ordered in S.P.'s case. A Qualified Expert Witness not support—Father's counsel was ineffective for failing to (QEW) did not testify at the hearing and the court did not make make these objections. the additional findings or apply the heightened evidentiary standards required under ICWA in its order. - ¶5 After working with Mother for over a year, Savage completed Montana Supreme Court - Citeable a second parenting assessment in September 2018 and concluded FAMILY - DN Mother's cognitive capacities to independently parent her children remained unchanged. Savage did not believe Mother was able to 9. Montana Supreme Court 2021 MT 56 IN THE MATTER OF: make safe decisions for her children due to her poor judgment K.L.N., A Youth in Need of Care. Decided: March 9, 2021. Case No.: and impulse control and "does not present as ever going to be DA 20-0315. APPEAL FROM: District Court of the Eighth Judicial able to raise [S.P. and K.L.N.] on her own." Savage District, In and For the County of Cascade, Cause No. DDN 18-008 recommended Mother engage in individual counseling to address Honorable John W. Parker, Presiding Judge COUNSEL OF RECORD: domestic violence patterns and to assist with cognitive For Appellant: Kelly M. Driscoll, Driscoll Hathaway Law Group, understanding of herself. Mother started individual counseling Missoula, Montana (for Mother) For Appellee: Austin Knudsen, Montana with Angela Meyers, LCPC, LAC, in January 2019 based on Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Savage's recommendation. Meyers reported to the Department she Montana Joshua A. Racki, Cascade County Attorney, Matthew S. was concerned about Mother's protective capacities as a parent. Robertson, Deputy County Attorney, Great Falls, Montana Submitted on Briefs: January 20, 2021. - ¶6 Following a hearing on June 4, 2019, the court extended TLC ! Justice Ingrid Gustafson delivered the Opinion of the Court. pursuant to Mother's stipulation. The Department petitioned to - ¶1 K.S. (Mother) appeals from the termination of her parental terminate Mother's parental rights under § 41-3-609(1)(f), MCA, rights to her child K.L.N.[1] The Eighth Judicial District Court, on August 19, 2019. The Department sent notice of the Cascade County, terminated Mother's rights to her child pursuant termination proceedings to the Tribe. The court held a status to § 41-3-609(1)(f), MCA, in its Order Granting Permanent Legal hearing on September 3, 2019, and confirmed the termination Custody, Termination of Parental Rights with Right to Consent hearing would go forward on September 24, 2019. Mother's to Adoption on May 18, 2020. On appeal Mother raises the counsel reported for the first time Mother objected to placement following issues: of the children with Grandparents, but he had not sought a ! 1. Whether the Department of Public Health and Human Services, contested placement hearing because he had "yet to find a way Child and Family Services Division (Department) and District Court to effectively argue" Mother's objections under § 41-3-440, failed to comply with the statutory requirements of the Americans MCA. The Guardian Ad Litem (GAL) filed her report on with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213, September 19, 2019. The GAL opined it would be in the best and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 interest of the children "to remain with their grandparents and (Section 504); continue their relationship with their mother should [Mother's] ! 2. Whether the District Court erred when it terminated Mother's parental rights be terminated." parental rights under § 41-3-609, MCA, and 25 U.S.C. § 1912; and - ¶7 The initial termination hearing took place on September 24, ! 3. Whether the District Court erred when it adjudicated K.L.N. as a 2019. Mother asked for a one-month continuance to allow the

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 11 parties to discuss a possible guardianship, based on the GAL's - ¶11 After several more continuances, the court held the second opinion Mother should still be involved in the children's lives termination hearing on May 1, 2020. Anna Fisher testified as a even if her parental rights are terminated. The Department asked QEW. She had reviewed the case file and testified if the children to put on testimony from Savage and Meyers. Mother did not were returned to Mother's care, they would suffer serious object. emotional or physical damage. CPS Teresa Larson explained a - ¶8 Savage was aware of Mother's disability and had worked with trial home visit with Mother was not implemented because parents with FASD previously and testified about how FASD can Mother had not made sufficient progress with her parenting impact a person's ability to parent. Savage opined parents with skills. Larson explained Mother's parenting skills remained FASD can parent with support around them, but they struggle to limited and neither Savage nor Meyers believed Mother would sustain the level of attention and care a parent must provide in be able to improve. Kami Stone, the supervising CPS, opined the long term. Parents with FASD would need consistent Mother's treatment plan was not successful because neither monitoring and support, such as in-home services multiple times Savage nor Meyers believed that Mother was capable of safely a week to reinforce parental skills, ensure safety, and teach the parenting her children full time or that she could gain sufficient parent how to interact appropriately with his or her child. Savage skills to do so. provided supervised visitation and PCIT to Mother for over two - ¶12 Mother testified on her own behalf. Mother testified about years. Savage had completed two parenting evaluations of her ability to meet the daily essential requirements of parenthood, Mother. She explained she had evaluated Mother using 21 such as cooking, cleaning, and laundry. Mother testified she had specific tasks to assess Mother's ability to engage, challenge, found stable housing a year prior, but no one from the nurture, and provide structure for a child. Savage testified she Department had visited her home to ensure it was safe for had worked with Mother to build parenting skills through PCIT children. Mother testified she never missed visitation with her since 2017, but Mother had not been successful. Savage children unless she was sick. She had voluntarily enrolled in and explained the standards of PCIT do not recommend daily completed the Circle of Security parenting class. Mother testified sessions and call for one-hour increments so as not to overwhelm the Department had not clearly communicated to her what she the parent. Savage explained the quality of time spent together needed to do to reunite with her children and she had asked is more important than the quantity of time for developing the multiple times if there was anything more she could do and they parent-child bond. Savage testified that while Mother had strong told her no. Mother also called her husband, her adoptive nurturing instincts, she was unable to provide basic structure and mother, and a friend to testify on her behalf. All three testified predictability for her children. Savage explained visits were in support of Mother being able to safely parent. moved from the Department to Grandparent's home because - ¶13 At the end of the hearing, the court stated it would take K.L.N. became dysregulated when alone with Mother and Mother Mother's disability into account in making its determinations, was unable to calm her. Savage opined reuniting the children relying on In re J.B.K., 2004 MT 202, ¶ 30, 322 Mont. 286, 95 with Mother would place the children at serious risk of P.3d 699. The District Court issued its written order terminating emotional harm. Mother's parental rights to K.L.N. on May 18, 2020, making the - ¶9 Meyers testified she worked with Mother over a prolonged additional findings and using the heightened evidentiary standards period and Mother never missed an appointment. Meyers agreed required by ICWA. The District Court found Mother was Mother was developmentally delayed, likely stemming from unlikely to change within a reasonable time based on the FASD. Meyers worked with Mother on issues related to domestic testimony of Savage and "mother's inability to establish a bond violence and protective capacity, forming and maintaining healthy with the children, her inability to appropriately respond to the relationships, and chemical dependency. Meyers testified that children, and her inability to parent the children." based on Mother's self-reporting, Mother had made improvements ! STANDARD OF REVIEW in her relationships, but Meyers continued to have concerns with - ¶14 We review a district court's decision to terminate a person's Mother's impulsiveness and poor judgment in entering into a new parental rights for an abuse of discretion under both Title 41, relationship while trying to reunite with her children. Mother had chapter 3, MCA, and ICWA. In re M.T., 2020 MT 262, ¶ 16, made improvements with attending to her own emotional needs, 401 Mont. 518, 474 P.3d 820. This Court reviews a district but Mother had minimal coping skills. Meyers opined it would court's findings of facts for clear error and conclusions of law for be overwhelming to return the children to Mother's care. Meyers correctness. In re B.H., 2020 MT 4, ¶ 26, 398 Mont. 275, 456 testified she had experience working with individuals with FASD. P.3d 233. If the court's findings of fact are not clearly erroneous She explained individuals with FASD need a lot of repetition to and if the court's conclusions of law are correct, we will not change their behaviors. Meyers agreed it could have been reverse a district court's decision to terminate parental rights beneficial to Mother to have seen her more often. unless we determine the district court abused its discretion. In re - ¶10 The court held another status hearing on December 3, 2019, B.H., ¶ 26. at which the Department confirmed it was still moving forward ! DISCUSSION with termination of Mother's parental rights. At the hearing, - ¶15 Mother challenges the termination of her parental rights Mother's counsel asked for the court to order mediation between under both state and federal law. We begin by laying out the the parties under § 41-3-422(12), MCA, to discuss a possible applicable state and federal statutes at issue in this case and then guardianship. The court ordered briefing from the parties on the turn to the issues raised by Mother on appeal. issue. After the hearing, Mother filed a Motion for Court ! Applicable State Law for Terminating Parental Rights Ordered Alternative Dispute Resolution on December 9, 2019, - ¶16 A district court may terminate parental rights, if it with an accompanying brief. In the brief, Mother argued the determines a child has been adjudicated as a YINC, the parent court should order the parties to participate in mediation because failed to successfully complete an appropriate treatment plan, and the Department would not be able to meet its burden to show it the conduct or condition rendering the parent unfit is unlikely to provided Mother with active efforts before terminating her change within a reasonable time. Section 41-3-609(1)(f), MCA. parental rights. Mother argued the Department failed to provide - ¶17 We have repeatedly explained a treatment plan must "take[] her with reasonable accommodations under the ADA and Section into consideration the particular problems facing both the parent 504 and failed to provide her with active efforts under ICWA and the child." In re A.N., 2000 MT 35, ¶ 27, 298 Mont. 237, because she had not been offered services or parenting 995 P.2d 427; see also In re D.B., 2007 MT 246, ¶ 34, 339 assessment specifically tailored to treat FASD. The Department Mont. 240 168 P.3d 691. The Department "has a duty to act in filed its response on December 20, 2019, arguing Mother's good faith in developing and executing a treatment plan to treatment plan already took her disability into account and the preserve the parent-child relationship and the family unit." In re Department provided Mother with active efforts through tailored D.B., ¶ 33. "In the case of a disabled parent, an appropriate services. The Department opposed the motion for mediation treatment plan considers the parent's disability and is customized because the Department had already considered guardianship, but to meet those particular needs." In re X.M., 2018 MT 264, ¶ 19, ultimately concluded adoption was more appropriate and noted 393 Mont. 210, 429 P.3d 920 (citing In re D.B., ¶ 34). Grandparents expressed a disinterest in guardianship and wanted - ¶18 Under state law, the Department must provide reasonable adoption. The District Court denied Mother's motion to order efforts to reunify families that have been separated by the State. mediation between the parties. The GAL filed a second report on See § 41-3-423(1), MCA. Reasonable efforts require the December 24, 2019. The GAL observed Mother loves her provision of services "reasonably designed to address the parent's children and does well at visits with them but is distrustful of treatment and other needs precluding the parent from safely Grandparents' intentions and they are distrustful of her parenting parenting." In re R.L., 2019 MT 267, ¶ 22, 397 Mont. 507, 452 skills. The GAL supported a guardianship with Grandparents, but P.3d 890. Among other things, reasonable efforts include the recommended Mother and Grandparents pursue counseling to "development of individual written case plans specifying state address the concerns between them. efforts to reunify families" and the "provision of services

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 12 pursuant to a case plan." Section 41-3-423(1), MCA. While not application to dependent neglect proceedings. See In re M.H., a separate termination standard that requires the district court to 2006 MT 208, 333 Mont. 286, 143 P.3d 103; In re J.B.K., 2004 make a specific finding regarding the provision of reasonable MT 202, 322 Mont. 286, 95 P.3d 699. efforts, the district court should consider whether reasonable - ¶25 "[S]ervices, programs, [and] activities of a public entity" efforts provided by the Department have been unable to encompasses most actions of public entities directed to the rehabilitate the parent when determining the likelihood that a general public, and this includes the Department's involvement parent's conduct or condition will change in a reasonable time with families in dependent neglect cases. See 42 U.S.C. §§ under § 41-3-609(1)(f)(ii), MCA. See In re R.J.F., 2019 MT 113, 12101(b)(1) and 12132. We agree with numerous other courts the ¶ 26, 395 Mont. 454, 443 P.3d 387. A district court's ADA requires the Department to make reasonable "conclusion that a parent is unlikely to change could be called accommodations for those individuals with disabilities in the into question if the Department failed to make reasonable efforts reunification services and programs it provides.[3] We conclude, to assist the parent." In re C.M., 2019 MT 227, ¶ 22, 397 Mont. however, the ADA requirements to provide reasonable 275, 449 P.3d 806. Requirements of ICWA accommodations are consistent with—and generally subsumed - ¶19 Under ICWA, the criteria for termination under § within—the requirements of Title 41, chapter 3, MCA, to provide 41-3-609(1)(f), MCA, must be supported by evidence beyond a reasonable efforts and to develop an appropriate treatment plan. reasonable doubt. See In re L.A.G., 2018 MT 255, ¶ 22, 393 See In re D.B., ¶ 34 ("[T]reatment plans must be customized to Mont. 146, 429 P.3d 629; see also 25 U.S.C. 1912(f); § meet the needs of disabled parents."); In re D.B., ¶ 37 ("Where 41-3-422(5)(b), MCA. The court must also make additional a parent suffers from a disability, [the Department] has a special findings required by ICWA. Unlike the requirement for duty to assist him or her in prioritizing and scheduling tasks."); reasonable efforts under state law, ICWA requires the district In re R.L., ¶ 22 ("Engaging in reasonable efforts requires the court to make a specific finding "that active efforts have been development and implementation of voluntary services and/or a made to provide remedial services and rehabilitative programs treatment plan reasonably designed to address the parent's designed to prevent the breakup of the Indian family and that treatment and other needs precluding the parent from safely these efforts have proved unsuccessful." 25 U.S.C. § 1912(d) parenting."). In other words, if the Department fails to take into (emphasis added). In addition, the district court must determine account a parent's limitations or disabilities and make reasonable the continued custody of the child by the parent is "likely to accommodations, then it did not develop an appropriate treatment result in serious emotional or physical damage to the child." 25 plan or make reasonable efforts[4] to reunite the family.[5] The U.S.C. § 1912(f). This determination must be supported by ADA does not require the district court to make additional evidence beyond a reasonable doubt, including the testimony of findings under the ADA during dependent neglect proceedings.[6] a QEW. 25 U.S.C. § 1912(f). Rather, the District Court must consider accommodation for the ! Requirements of the ADA and Section 504 parent's disability in making findings required under Title 41, - ¶20 A stated purpose of Congress in enacting the ADA is "to chapter 3, MCA, during the pendency of the dependent neglect provide a clear and comprehensive national mandate for the case. See In re D.B., ¶ 34 ("Where the case involves a disabled elimination of discrimination against individuals with disabilities." parent or child, it is especially important to determine whether 42 U.S.C. § 12101(b)(1); see also Pa. Dep't of Corr. v. Yeskey, the plan ‘takes into consideration the particular problems facing 524 U.S. 206, 212, 118 S. Ct. 1952, 1956 (1998) (discussing the both the parent and the child.'" (quoting In re A.N., ¶ 27)); In re broad scope of the ADA and explaining "the fact that a statute J.B.K., ¶ 28. can be applied in situations not expressly anticipated by Congress - ¶26 Questions of whether the Department has complied with the does not demonstrate ambiguity. It demonstrates breadth." statutory requirements of the ADA and Section 504 are (internal quotation omitted)). Title II of the ADA prohibits a intertwined with whether the Department has fulfilled its duties public entity from discriminating against a qualified individual under Title 41, chapter 3.[7] Because the statutes governing with disabilities in the provision or operations of public services, dependent neglect cases require individualized treatment plans programs, or activities. See 42 U.S.C. § 12132. Specifically, 42 and reasonable efforts to provide services that must accommodate U.S.C. § 12132 provides "no qualified individual with a the issues facing the parent and child, such as the parent's disability shall, by reason of such disability, be excluded from disability, meeting the requirements of the state statutes participation in or be denied the benefits of the services, necessarily requires the Department to have complied with the programs, or activities of a public entity, or be subjected to requirements of the ADA. The District Court need not make discrimination by such entity." The term "public entity" includes specific findings under the ADA and Section 504 when State and local government, as well as "any department, agency, terminating parental rights. special purpose district, or other instrumentality" of State or local ! ¶27 2. Whether the District Court erred when it terminated Mother's government. 42 U.S.C. § 12131(1). A qualified individual with parental rights under § 41-3-609, MCA, and 25 U.S.C. § 1912. a disability is - ¶28 Mother challenges whether she received active efforts to - an individual with a disability who, with or without provide remedial services and rehabilitative programs designed to reasonable modifications to rules, policies, or practices, the prevent the breakup of her family as required under 25 U.S.C. § removal of architectural, communication, or transportation 1912(d). Mother alleges two specific failures to reasonably barriers, or the provision of auxiliary aids and services, meets accommodate her disability under the requirements of the ADA, the essential eligibility requirements for the receipt of which she maintains demonstrates a lack of active efforts on the services or the participation in programs or activities part of the Department: (1) insufficient visitation opportunities provided by a public entity. with the children; and (2) insufficient access to services such as - 42 U.S.C. § 12131(2). Section 504 applies the same requirements PCIT and individual therapy. Mother thus argues the District to entities that receive federal funding. 29 U.S.C. § 794(a). Court also erred in finding the condition rendering her unfit was - ¶21 To avoid discrimination on the basis of disability, the ADA unlikely to change in a reasonable time under § and Section 504 require public entities to make reasonable 41-3-609(1)(f)(ii), MCA, because the Department failed to accommodations for qualified individuals with disabilities, "unless provide her with active efforts to reunite with K.L.N. Mother the public entity can demonstrate that making the modifications further contends the Department presented insufficient evidence would fundamentally alter the nature of the service, program, or for the District Court to conclude she was unlikely to change activity." 28 C.F.R. § 35.130(b)(7). within a reasonable time or her continued custody of K.L.N. ! ¶22 1. Whether the Department and District Court failed to comply would likely result in serious emotional or physical damage to with the statutory requirements of the ADA and Section 504. K.L.N. under 25 U.S.C. § 1912(f). Mother does not challenge - ¶23 The parties do not dispute Mother has a disability under the the appropriateness of her treatment plan on appeal or the ADA. On appeal, Mother and the Amicus Disability Rights District Court's conclusion the plan was unsuccessful.[8] Montana raise the issue whether and how the ADA applies to - ¶29 While Mother highlights the testimony of her two providers dependent neglect cases in Montana. Mother argues the at the termination hearing, opining additional and more frequent Department failed to provide her with reasonable counseling sessions could benefit someone with FASD, she accommodations in the services it provided to her as required points to no time in the record where she asked for or her under the ADA and the District Court erred in failing to apply providers recommended the Department to approve additional the ADA when terminating her parental rights. therapy sessions and the Department denied the request.[9] At - ¶24 This Court has not directly addressed the application of the status hearings, her counsel reported Mother was doing well and ADA in termination of parental rights proceedings. We progressing. At these hearings, Mother did not seek the court's previously have held the requirements of the ADA to provide aid in receiving additional services to help her in gaining the reasonable accommodations were met by the Department's skills needed to safely parent her children. The Department set provision of services without determining the scope of the ADA's Mother up with service providers experienced in working with

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 13 parents with FASD and their needs. When Savage suggested - ¶36 The District Court did not err in terminating Mother's rights Mother engage in individual counseling, the Department set up under state and federal law. individual counseling with Meyers. At the termination hearing, ! CONCLUSION these providers testified Mother was not currently capable of - ¶37 The District Court is affirmed. safely parenting K.L.N. on her own and did not think she would - /S/ INGRID GUSTAFSON be able to gain such capacity to care for K.L.N. in the long term, - We concur: even with more frequent services or services extended for a - /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH longer period. On appeal, Mother argues the Department should BAKER /S/ DIRK M. SANDEFUR have provided additional sessions with her therapists and allowed - [1] Mother also appeals from the termination of her parental her more time to attempt to gain the capacity to safely parent rights to her other child, S.P., which the District Court K.L.N. on her own. terminated in the same May 18, 2020 Order. We originally - ¶30 The Department provided Mother with services that took her consolidated these cases at Mother's request on July 22, disability into account over a lengthy period of time. Based on 2020. After Mother's briefing was completed, S.P.'s the testimony from her providers, there are no accommodations birthfather moved to unconsolidate the cases on December of more or increased frequency that could result in Mother 30, 2020, explaining he is not a party to the proceedings gaining and retaining the requisite parenting skills to meet the regarding K.L.N. as he is the birthfather of S.P. and not daily needs of K.L.N. on a long-term basis. The ADA requires K.L.N. We granted Father's motion and unconsolidated the the Department to provide reasonable accommodations and state cases on that same day. We address the termination of statute requires the court to consider whether the parent is likely Mother's rights to S.P. in a separate, unpublished opinion, In to change in a reasonable time. The Department provided Mother re S.P., No. DA 20-0314. with services that took her disability into account. The court then - [2] The District Court terminated the parental rights of appropriately took Mother's "concerns and disabilities into K.L.N.'s birthfather in the same May 18, 2020 Order. He did account" in analyzing the statutory requirements and reaching its not appeal the termination of his parental rights. decision to terminate Mother's parental rights. After considering - [3] See, e.g., Lucy J. v. Dep't of Health & Social Servs., 244 all the testimony presented, the Court did not err in concluding P.3d 1099, 1115-16 (Alaska 2010); In re S.K., 440 P.3d the Department provided Mother with active efforts and the 1240, 1247-48 (Colo. Ct. App. 2019); In re Elijah C., 165 conduct or condition preventing Mother from safely parenting her A.3d 1149, 1164-66 (Conn. 2017); In re H.C., 187 A.3d child would not change in a reasonable time. 1254, 1265 (D.C. 2018); Adoption of Gregory, 747 N.E.2d - ¶31 Sufficient evidence also supported the District Court's 120, 126 (Mass. 2001); In re Hicks/Brown, 893 N.W.2d 637, finding K.L.N. would likely suffer serious emotional or physical 640 (Mich. 2017); In re K.C., 362 P.3d 1248, 1252 (Utah damage if returned to Mother's care. In addition to Savage's 2015). testimony Mother was not able to safely parent K.L.N., the - [4] Or active efforts under ICWA, 25 U.S.C. § 1912(d). District Court also relied on the testimony from the QEW, who - [5] In their technical assistance to state agencies on the ADA specifically testified K.L.N. would likely suffer serious emotional in dependent neglect proceedings, the U.S. Department of or physical damage if returned to Mother's care. Health and Human Services and U.S. Department of Justice ! ¶32 3. Whether the District Court erred when it adjudicated K.L.N. explain: as a YINC without applying ICWA. - Agencies should take steps to ensure, for example, that - ¶33 Mother argues the District Court failed to comply with the investigators, social workers, supervisors, and others base minimum requirements of ICWA when adjudicating K.L.N. as a their assessments of and decisions regarding individuals YINC and then relied on that improper adjudication to fulfill the with disabilities on actual facts that pertain to the criteria for termination. She maintains these failures require individual person, and not on assumptions, invalidation of the termination of her parental rights to K.L.N. generalizations, fears, or stereotypes about disabilities and - ¶34 When a party seeks to place an Indian child in foster care how they might manifest. The child welfare agency's or terminate parental rights, ICWA mandates a higher burden of obligation to ensure individualized assessments applies at proof and two additional statutory criteria: active efforts and a the outset and throughout any involvement that an determination the continued custody of the child by the parent is individual with a disability has with the child welfare likely to result in serious emotional or physical damage to the system. child supported by testimony from a QEW. 25 U.S.C. § - U.S. Dep't of Health & Human Servs. & U.S. Dep't of 1912(d)-(f). Under ICWA "any parent . . . from whose custody Justice, Protecting the Rights of Parents and Prospective such [Indian] child was removed . . . may petition any court of Parents with Disabilities: Technical Assistance for State and competent jurisdiction to invalidate such action upon a showing Local Child Welfare Agencies and Courts under Title II of that such action violated any provision of section [1911, 1912, the Americans with Disabilities Act and Section 504 of the and 1913] of this title." 25 U.S.C. § 1914. ICWA does not Rehabilitation Act (Aug. 2015), https://perma.cc/H3WE-JZ3R. require invalidation of the action, but rather "[u]pon a showing This dovetails with the requirements of Title 41, chapter 3, that an action for foster-care placement or termination of parental MCA, to provide reasonable efforts and to develop an rights violated any provision of 25 U.S.C. 1911, 1912, or 1913, appropriate treatment plan and our precedence in this regard. the court must determine whether it is appropriate to invalidate In re D.B., ¶ 37; In re R.L., ¶ 22. the action." 25 C.F.R. § 23.137(b). Thus "alleged violations of - [6] The technical assistance from the U.S. Department of [ICWA] in the temporary custody proceedings would not require Health and Human Services and U.S. Department of Justice invalidation of the permanent custody proceedings." In re explains the ADA does not require separate findings from a M.E.M., 209 Mont. 192, 195, 679 P.2d 1241, 1243 (1984). district court, rather: - ¶35 The District Court granted TLC to the Department without - Given the responsibilities of agencies discussed above, testimony from a QEW and did not rely on the clear and we also recommend that courts consider whether parents convincing evidence standard in its adjudication as required by and prospective parents with disabilities have been 25 U.S.C. § 1912(e). This Court must therefore determine afforded an equal opportunity to attain reunification, whether it is appropriate to invalidate the permanent custody including whether they have been provided with proceedings based on these failures as Mother contends. Under appropriate services and supports and other reasonable the facts of this case, we determine it is not. Mother stipulated modifications to enable them to participate fully and to adjudication of K.L.N. as a YINC and to TLC. At no point meaningfully in family preservation efforts. Additionally, during the proceedings before the District Court did she object we suggest that courts consider whether any reasonable to the adjudication proceedings or the grant of TLC to the modifications are necessary and should be made for Department. In fact, Mother stipulated to the extension of TLC. parents with disabilities. We also recommend that courts At the termination hearing, the Department presented testimony consider evidence concerning the manner in which the from a QEW that returning K.L.N. to Mother's care would result use of adaptive equipment or supportive services may in serious emotional or physical damage to K.L.N. The court enable a parent with disabilities to carry out the then determined, based on evidence beyond a reasonable doubt, responsibilities of parenting. the Department provided active efforts to Mother and returning - U.S. Dep't of Health & Human Servs. & U.S. Dep't of K.L.N. to Mother's care would likely result in serious emotional Justice, Protecting the Rights of Parents and Prospective or physical damage to the child. While the District Court did rely Parents with Disabilities: Technical Assistance for State and on the previous adjudication to fulfill the criteria for termination, Local Child Welfare Agencies and Courts under Title II of we do not believe the prior violations require the invalidation of the Americans with Disabilities Act and Section 504 of the the permanent custody proceedings under the facts of this case. Rehabilitation Act (Aug. 2015), perma.cc/H3WE-JZ3R.

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 14 - [7] The ADA also provides a parent with additional remedies if the Department is violating the requirements of the ADA, such as filing suit in federal court or filing a complaint with the U.S. Department of Justice or U.S. Department of Health and Human Services. See 42 U.S.C. § 12133; 28 C.F.R. § 35.170. - [8] Amicus Disability Rights Montana argued in its brief that Mother's treatment plan was not appropriate. An amicus generally cannot raise an issue not raised by the parties. Reichert v. State, 2012 MT 111, ¶¶ 25-26, 365 Mont. 92, 278 P.3d 455. - [9] Mother argues the Department opposed her efforts to obtain further assistance and reasonable accommodations when it opposed her December 9, 2019 Motion for Court Ordered Alternative Dispute Resolution, filed after termination proceedings had begun. This motion did not seek additional services for Mother. Rather, it sought an order from the court mandating mediation between the parties to discuss a guardianship. Mother contended the court should order mediation because the Department could not meet its burden to show it provided her with active efforts before terminating her parental rights. Mother alleged the Department failed to provide active efforts under ICWA and reasonable accommodations under the ADA and Section 504 because she had "not been offered services or parenting assessments specifically tailored to treat" her FASD "through the help of neuropsychologists or people specifically specialized to treat" FASD. As the Department pointed out in its response, Mother's treatment plan and services already took her known disability into account and it was providing active efforts. The District Court declined to order mediation between the parties. At the May 1, 2020 termination hearing, the District Court determined there was no "evidentiary basis to consider guardianship in this case" and guardianship would be contrary to the children's best interests.

3/12/2021 Montana Advance Sheets - Supreme Court Rulings [pp. 1-15] Page 15 Montana Advance Sheets A Weekly Compendium of Court Rulings of:

Montana Supreme Court [pp 1-15] State Trial Courts [pp 16-35] Federal Trial Courts [pp 36-46] Friday, March 12, 2021 ______STATE TRIAL COURTS

CONTENTS

Evidence/Discovery Montana Fourth Judicial District Court, Missoula County NISSA Montana Twenty-first Judicial District Court, Ravalli County, Hon. ASCENCIO AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, James A. Haynes, District Judge. STATE OF MONTANA, Plaintiff vs. v. ORION INTERNATIONAL CORPORATION, Defendant. Dept. No. JODY JAKE POPE, Defendant Cause No. DC 2013-195. Department 1. Cause No. DV-15-1000. November 19, 2018. No. 2. Jennifer Streano, Regional Deputy Pubic Defender ("Attorney [Ascencio-] Order on Cross-discovery Motions and Plaintiff’s Rule Streano"), represents Defendant Jody Jake Pope ("Pope"). Thorin Geist, 56(f) Request Deputy Ravalli County Attorney ("Attorney Geist"), represents the Hon. Leslie Halligan, District Court Judge ...... 16 Plaintiff State of Montana ("State"). [Pope-] SANCTION ORDER ON REMAND Criminal Hon. James A Haynes, District Judge...... 24 Montana Fourth Judicial District Court, Missoula County STATE OF MONTANA, Plaintiff, vs. EMMANUEL F. GOMEZ, Defendant. Cause Employment No. DC-16-17. December 19, 2016. Montana Fourth Judicial District Court, Missoula County MARK [Gomez-] Order On Motion To Admit Defense Expert Testimony On PLAKORUS, Plaintiff, vs. THE UNIVERSITY OF MONTANA, a unit State Of Mind of the Montana University System, Defendant. Dept. 3. Cause No. DV- Hon. Karen S. Townsend, District Judge ...... 17 19-434. [Plakorus-] ORDER GRANTING DEFENDANT'S MOTION TO Montana Fourth Judicial District Court, Missoula County STATE OF DISMISS PURSUANT TO MONT. R. CIV. P. 12(b)(1) MONTANA, Plaintiff, vs. EMMANUEL F. GOMEZ, Defendant. Dept. Hon. John W. Larson, District Judge ...... 29 4 Cause No. DC-16-17. December 13, 2016. [Gomez-] Order on Motion to Dismiss Count II or Sever Contracts/Business Litigation Hon. Karen S. Townsend, District Judge...... 18 Montana Fifth Judicial District Court, Madison County MICHAEL SNOW, GREG C. BRANCH FAMILY LIMITED PARTNERSHIP, A.C. Montana Fourth Judicial District Court, Missoula County. STATE OF and LINDA MARKKULA (Trustees of the Arlin Trust), SPANO MONTANA, Plaintiff, vs. EMMANUEL F. GOMEZ, Defendant. Dept. YELLOWSTONE HOLDINGS LIMITED PARTNERSHIP, ROBERT 4 Cause No. DC-16-17. P. and KATHARINE M. WATSON and BANKERS FINANCIAL [Gomez-] Order on Motion to Suppress Statement Given on CORPORATION, Plaintiffs, vs. GREG LeMOND, JORGE V. JASSON, 12/28/15. SACIA B. MORRIS (as Trustee of the Morris Joint Revocable Trust of Karen S. Townsend, District Judge ...... 21 1998 dated December 29, 1998), SACIA B. MORRIS (in her individual capacity), and SACIA ENTERPRISES, INC., a Wisconsin corporation, Montana Fourth Judicial District Court, Missoula County STATE OF Defendants. Cause No. DV-29-2009-96. MONTANA, Plaintiff, vs. EMMANUEL F. GOMEZ, Defendant. Cause [Snow-] Order On Motions For Summary Judgment No. DC-16-17. January 24, 2017. Hon. Luke Berger, District Judge ...... 31 [Gomez-] Order on Victim's Meth Use and Character Evidence of Witnesses Hon. Karen S. Townsend, District Judge ...... 23

motions. Defendant’s Motion for a Protective Order seeks an DISCOVERY order prohibiting Plaintiff from contacting the non-parties EVIDENCE potentially identifiable in the confidential records that the Court has compelled Defendant to provide to Plaintiff. This motion 10. Montana Fourth Judicial District Court, Missoula County NISSA essentially seeks clarification of the Court’s instruction that the ASCENCIO AND ALL OTHERS SIMILARLY SITUATED, records “be held in the strictest confidence,” given in its June 8, Plaintiffs, v. ORION INTERNATIONAL CORPORATION, 2018 Order on Plaintiff’s Motion to Compel Discovery. On the Defendant. Dept. No. 1. Cause No. DV-15-1000. November 19, other hand, Plaintiff’s Motion to Compel, Order of Contempt and 2018. Sanctions, Internal Brief in Support seeks an order compelling ! [Ascensio-] Order on Cross-discovery Motions and Plaintiff’s Rule Defendant to produce unredacted records and sanctioning 56(f) Request Defendant for not having done so already. ! Hon. Leslie Halligan, District Court Judge - Because it is relevant to discovery and the present questions, the - This matter comes before the Court on competing discovery Court also finds it appropriate to address the extension sought by

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 16 Plaintiff pursuant to Rule 56(f) of the Montana Rules of Civil testimony from Dr. Laura Kirsch regarding the Defendant's "state Procedure, requested in her November 1, 2018 Response to a of mind" as evidence at the trial as an explanation for his actions motion for partial summary judgment recently filed by Defendant. after Charlie Wyrick was stabbed in the residence that they - The Court has considered the briefing by the parties in support shared. The actions of the Defendant are that he failed to seek of and in opposition to these two motions and has considered the medical help, cleaned up the residence and his truck in an Court’s prior orders and other material in the record. The Court attempt to remove her blood, put Ms. Wyrick in his truck, drove notes that it received no reply brief from Plaintiff in support of her to Pattee Canyon and dumped her body down a hillside in her Motion to Compel, and the time for her to file one has an effort to prevent law enforcement from finding the body. passed. The Court finds the briefing adequate for its present - The State plans to argue that these actions demonstrate decisions. Having reviewed the record before it, the Court rules consciousness of guilt for the offense of Deliberate Homicide. as follows: The Defendant seeks to allow Dr. Kirsch to offer an alternative ! ORDERS explanation for these actions based on her evaluation of the - (1) The Court GRANTS Defendant’s Motion for a Protective Defendant over a series of months in this past year. This Order. Plaintiff, her counsel, or any agents of either are evaluation consisted of several interviews with the Defendant, prohibited from contacting the non-parties who are the subjects administration of certain psychological tests, review of court and of the background checks whose records Defendant must provide discovery documents, and discussion with collateral sources. Her to Plaintiff. purported testimony would be that "his efforts to avoid detection - When the Court ordered Defendant to produce those records, in and cover up the incident appear impulsive and illogical, which its June 8, 2017 Order, it was with the understanding that is also consistent with someone acting out of fear, panic, and Plaintiff needed these records to help determine whether shock as opposed to someone with deliberate, malicious Defendant’s provision of obsolete information in one of her intentions." background checks was willful or just negligent. The Court - The State opposes the testimony. The State argues that Mont. presumed that Plaintiff intended to analyze the records for Code Ann. § 46-14-213(2) and Montana Supreme Court opinions patterns, perhaps to argue that a consistent practice of including in State v. Santos, 273 Mont. 125,902 P.2d 510 (1995) and State obsolete information would evidence willful behavior. The Court v. Hoffman, 2003 MT 26,314 Mont, 155,64 P .3d 1013 prohibit is persuaded that that Plaintiff’s counsel intends to use the such testimony because it is testimony on the requisite mental records for much more than this. state. - Defendant’s Motion argues that Plaintiff or her counsel want to ! RELEVANT FACTUAL MATTERS use the records to contact the subjects of the background checks - The Court has previously issued an Order on the Defendant's – presumably to learn if they were injured and thus find more Motion to Dismiss Count II or in the alternative to Sever Count plaintiffs. Plaintiff’s response to the motion does not refute this II for trial that contained a lengthy recitation of the facts as argument. Indeed, the response asserts that the records are “of alleged by the State in its Affidavit for Leave to File an virtually no use without the subject’s personal information.” The Information on December 14, 2016. Those facts will not be response fails to explain Plaintiff’s intended use or why the repeated. The following additional facts relevant to this issue are background check subjects’ personal information is needed to spelled out below. support Plaintiff’s narrow claim or that it will lead to - Dr. Laura Kirsch has been retained by the defense in this case discoverable information that is relevant to her claim. Plaintiff’s and asked to conduct an evaluation of the Defendant to address response raises significant concerns from the viewpoint of the "his mental state at the time of his alleged offenses due to his Court. traumatic childhood and his reported struggle with depression - The Court took a risk in opening the discovery as it did in its and substance abuse". She was also asked to conduct a "violence June 8 Order. When an individual allows an employer to conduct risk assessment" to assess his "potential for violence." Dr. Kirsch a background check on them, the person has a reasonable privacy conducted four interviews with the Defendant on Aprill9, 2016, expectation that the resulting report, with all the information that April27, 2016, May 19, 2016, and July 14, 2016 that lasted a it may reveal, will not be handed over to random strangers. total of approximately 4 hours. She administered a series of When the Court ordered the disclosure of the reports, it was with psychological tests on July 14, 2016 including the MMPI-2-RF, the expectation that the parties saw the remaining issues at stake the Beck Depression Inventory-II, and the Beck Anxiety in this case to be narrow and limited. This case is about whether Inventory, as well as the HistoricalClinical Risk-20, Version 3. Defendant injured Plaintiff and whether its inclusion of obsolete She reviewed court documents including the original complaint, information in her background check was negligent or willful. It the Affidavit for Leave to File the Information and the is not about anyone else. The Court sees no reason why Plaintiff Information, the Defendant's two statements given to Missoula needs to know the personal information of the non-parties in City Police on 12/24/15 and 12/28115. She reviewed the Post- Defendant’s records. Plaintiff’s demand for that information Mortem examination of Ms. Wyrick dated 3/31/16. She had a suggests that she intends to exploit the Court’s trust, at least as telephone conversation with the Defendant's former girlfriend. the Court understood what it was ordering produced. If She reviewed the Defendant's mental health treatment records Defendant wishes to redact non-parties’ personal information in from the Missoula County Detention Facility and spoke with its production of the records, it may do so. Theresa Williams the Mental Health provider. She reviewed the - (2) The Court DENIES Plaintiff’s Motion to Compel and Defendant's criminal record and consulted with his defense Request for Sanctions. Defendant’s opposition to production of counsel, Lisa B. Kauffman. She completed her written report on the information sought by Plaintiff was substantially justified. July 22, 2016. During her evaluation, she obtained a history from - (3) The Court awards no parties their attorney’s fees or costs the Defendant that included information concerning his early arising from the motions adjudicated by this Order. childhood and developmental history, his educational history, his - (4) The Court GRANTS Plaintiff’s request for a Rule 56(f) occupational history, his relationship history, his medical history, extension to conduct discovery to allow time to depose the his substance abuse history, his psychiatric history, and his principals of Defendant, or other discovery as necessary. Plaintiff criminal history. Some of this information, although not all, was must respond to Defendant’s pending motion for partial summary checked with collateral contacts. She diagnosed him with Major judgment no later than 42 days from the date of this Order. Depressive Disorder, Severe, Single episode, with anxious - DATED this 19th day of November, 2018. distress, Persistent Depressive Disorder (Dysthymia), Early onset, - Leslie Halligan with intermittent major depressive episodes, with current episode, - District Court Judge moderate, Stimulant Use Disorder, Amphetamine-type substance, - cc: Bradley Luck, Esq. / Tessa Keller, Esq. Moderate, in early remission in a controlled environment; and - Christopher Froines, Esq. Cannabis Use Disorder, Mild, in early remission, in a controlled environment. She states that "Together, his depression and drug abuse caused him to behave uncharacteristically and, in my CRIMINAL opinion influenced his actions on 12/21115." She offers the further opinion: 11. Montana Fourth Judicial District Court, Missoula County - ... Mr. Gomez was suffering from numerous severe symptoms STATE OF MONTANA, Plaintiff, vs. EMMANUEL F. GOMEZ, of depression around the time of his alleged offense, which Defendant. Cause No. DC-16-17. December 19, 2016. he was unsuccessfully managing with methamphetamine and ! [Gomez-] Order On Motion To Admit Defense Expert Testimony On marijuana. While I cannot speak to Mr. Gomez's criminal State Of Mind responsibility for Ms. Wyrick's death, his reports about his ! Hon. Karen S. Townsend, District Judge actions in the aftermath suggest that he was in shock and - Defendant has filed a Motion in Limine to Admit certain expert panicked immediately after her death. As a result, he acted

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 17 in an illogical manner, mostly out offear, which was likely the ultimate issue and prohibited by the statute and court exaggerated as a result of his impaired judgment due to interpretations. depression, paranoia and drug use. In general, individuals - The Court also notes that based on her report, Dr. Kirsch has who are depressed have difficulty seeing an experience in a concluded that the death of Ms. Wyrick was an accident. She realistic manner. They make overly negative interpretations appears to have reached this conclusion based on her interviews of events, and then act accordingly. His depression and with the Defendant wherein he told her about the events. It is paranoia likely caused him to see her accidental death as clearly not proper for Dr. Kirsch to be able to recite the indicative of his wrong-doing (an "it's all my fault" Defendant's version of the events during her testimony or to mentality), in addition to heightening his fear that the opine that Ms. Wyrick's death was. an accident. As the Montana authorities would blame him and he would be charged with Supreme Court said in State v. VanDyken, 242 Mont. 415, 791 her murder. This is evident in his reports that he (sic) most P.2d 1350 (1990): of his thinking was focused on fearing that he would be - A psychiatrist or a psychologist of course cannot be made a blamed for her death, and he avoided taking her to the conduit for testifying in court as to any and all out-of-court hospital and took steps to reduce the possibility that her body statements made. would be discovered as a result. His efforts to avoid - 242 Mont. 429-430, quoting from State v. Schreuder(Vtah 1986) detection and cover-up the incident appear impulsive and 726 P.2d 1215, 1225. illogical, which is also consistent with someone acting out of - Not only can Dr. Kirsch not be used as a conduit to get the fear, panic, and shock as opposed to someone with Defendant's statements about the events leading up to the deliberate, malicious intentions. Overall, it is my opinion that stabbing of Ms. Wyrick before the jury, it is likely not proper for Mr. Gomez's severe depression and generally paranoid her to offer an opinion that the death was an accident. Dr. worldview, exacerbated by his methamphetamine use at the Kirsch does not state the basis of her opinion that Ms. Wyrick's time, caused him to panic and then cover up the accident, death was an accident, but merely recites that as a fact. It is instead of seeking help. unclear to this Court whether Dr. Kirsch would be qualified to ! LEGAL REASONING offer such an opinion that the death was an accident from - In this case, the Defendant has not filed notice that he intends to information other than the Defendant's statements since her rely on a mental disease or disorder defense that as a result of training is as a psychologist and not as an accident a mental disease or disorder he was unable to form the necessary reconstructionist or medical examiner. It is proper for her to intent to commit the offense of deliberate homicide. It appears testify as to her psychological diagnoses of the Defendant, the from the briefing submitted in this case that the Defendant claims result of his psychological testing, and even to offer statements that the stab wound inflicted on Ms. Wyrick was the result of an such as: "In general, individuals who are depressed have accident and that his actions following the infliction of the knife difficulty seeing an experience in a realistic manner. They make wound of cleaning up, driving her to Pattee Canyon, leaving her overly negative interpretations of events, and then act where her body was concealed, failing to seek medical help or accordingly." contact the police were not part and parcel of causing her death ! CONCLUSION and/or demonstrative of consciousness of guilt. - The Defendant's motion in limine is GRANTED IN PART and - The admission of psychiatric or psychological testimony at trial DENIED IN PART. Dr. Kirsch may present testimony at the trial is governed by Mont. Code Ann.§ 46-14-213 (2). Pursuant to concerning her evaluation of the Defendant, her diagnoses of the that statute, the licensed clinical psychologist, such as Dr. Kirsch, Defendant, his results on the psychological tests she - may make a statement as to the nature of the examination administered, and general testimony about how individuals who and the medical or psychological diagnosis of the mental have these diagnoses behave. However, her opinion that his condition of the defendant. The expert may make any efforts to avoid detection and cover-up the incident were not explanation reasonably serving to clarify the expert's "deliberate, malicious intentions" is improper. because it goes to examination and diagnosis, and the expert may be cross- the ultimate issue to be decided by the jury---whether he acted examined as to any matter bearing on the expert's with purpose or knowledge. It is likewise not proper for her to competency or credibility or the validity of the expert's recite the Defendant's version of the facts that lead up to the examination or medical or psychological diagnosis. stabbing or its aftermath. - However, the expert - Since Dr. Kirsch will be able to testify about certain issues, the - may not offer an opinion to the jury on the ultimate issue of State's Motion for access to all of Dr. Kirsch's materials used in whether the defendant did or did not have a particular state the preparation of her repmi and the opportunity to interview her of mind that is an element of the offense charged. is GRANTED. Those materials should be supplied no later than - The Montana Supreme Court has considered this statute in December 23, 2016. Should the State believe that fmiher motions previous cases. Both the State and the Defendant have relied on in limine are necessary regarding Dr. Kirsch's testimony, the State v. Santos, supra. wherein the Court found that it was error State shall file the Motion no later than December 26, 2016, the for an expert to testify that a Defendant actually possessed the Defendant shall file a response no later than January 3, 2017, requisite mental state at the time of the offense was committed, and the State shall file any reply no later than January 9, 2017. but that it was proper to allow testimony concerning the - DATED this 19th day of December, 2016. Defendant's capacity to form the particular mental state required - Karen S. Townsend, District Judge to prove the offense. The Court again looked at the statute in - cc: Missoula County Attorney's Office, (Pabst/Kilby) State v. Hoffman, supra. and concluded that it was not error to - Office of the Public Defender (Kauffman) prohibit an expert from testifying that the Defendant was unable - Brian C. Smith, Esq. to control himself when he shook his infant son. The Hoffman court concluded that such testimony violated the prohibition of 12. Montana Fourth Judicial District Court, Missoula County STATE the statute because it was to the ultimate issue. The Defendant OF MONTANA, Plaintiff, vs. EMMANUEL F. GOMEZ, seeks to distinguish Dr. Kirsch's opinions of the post stabbing Defendant. Dept. 4 Cause No. DC-16-17. December 13, 2016. behavior of the Defendant from those of the expert in Hoffman. ! [Gomez-] Order on Motion to Dismiss Count Ii or Sever Dr. Kirsch's bottom line conclusion that: ! Hon. KAREN S. TOWNSEND, District Judge - His efforts to avoid detection and cover-up the incident - Defendant has filed a Motion to Dismiss Count II of the appear impulsive and illogical, which is also consistent with Information or in the alternative, sever Count II for trial. Count someone acting out of fear, panic and shock as opposed to II charges the Defendant with one count of Partner/Family someone with deliberate, malicious intentions. Member Assault committed against Charlie Wyrick over the time - Such an opinion is really just another way of saying, despite her period of January 1, 2015-December 20, 2015 as part of a disclaimer that she "cannot speak to Mr. Gomez's criminal continuing course of conduct. Count I of the Information charges responsibility," that he did not act with purpose or knowledge. the Defendant with Deliberate Homicide for causing the death of It is not an opinion about the Defendant's capacity to have the Charlie Wyrick on December 21, 2015. Defendant asserts that the necessary intent. It is an opinion that he did not have such charging language of Count II is not specific enough and does intent. It is very similar to the opinion that the Court found not give him adequate notice of his alleged wrongdoing. improper and violative of the statute in Santos, supra. when Dr. Alternatively, the Defendant argues that if the charge is not Stratford was asked by the prosecutor whether such conduct of dismissed, Count II should be severed from Count I because the the Defendant "amounted to a conscious object to carry out Defendant would be denied a fair trial on the homicide count if particular actions?" Just as the Santos court concluded that this the alleged acts of domestic violence inflicted on Ms. Wyrick by opinion went to the ultimate issue of criminal intent to commit the Defendant in the year leading up to her death are heard by the offense oftheft, Dr. Kirsch's conclusion is also an opinion on the jury.

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 18 - The State has responded that Count II is properly charged, and "peel" out of the driveway. The roommate's girlfriend stated when read together with the Affidavit for Leave to File and it looked like Gomez was holding a person down in the back Information, provides sufficient notice to the Defendant to allow seat. The roommate observed fresh blood on the front steps him to prepare a defense. The State further asserts that the time and blood in the snow right beside where the door of the and place of the offense has been stated as definitely as possible Yukon was in the driveway. Missoula Police recovered the under the circumstances of this case. Further, the State asserts blood on the front steps. that Count II should not be severed from Count I because the - Missoula Police located Gomez. Gomez did not bring up two counts are of the same or similar character and the joinder Charlie at that time. It was not until Detective Stacy Lear does not prohibit the Defendant from having a fair trial. Neither stated that she was trying to locate Charlie that Gomez stated party has requested a hearing on this motion. he had "texted" Charlie and she left his residence on foot ! RELEVANT FACTS after she got mad at him. He did not state when Charlie left. - In this case, the Defendant is charged with two offenses: Count Gomez presented with a large bulge and bruising on his right 1: Deliberate Homicide and Count II: Partner or Family Member hand. He stated he had broken his hand a month ago when Assault-first offense. The allegation in Count I is that "on or Charlie "dropped the hood on it." about the 21st day of December, 2015, the above-named - Missoula Police spoke with a close friend of Charlie. Several Defendant purposely or knowingly caused the death of Charlie months ago, Charlie texted this friend and told her that she, Wyrick, a human being." The allegation in Count II is that "on Charlie, was terrified of Gomez. She stated he would take or about January 1, 2015 - December 20, 2015, as a continuing her to the woods and threaten to kill her. Charlie was so course of conduct, the above-named Defendant purposely or afraid that she went to stay with this friend in Helena for a knowingly caused reasonable apprehension of bodily injury week. When the friend was away for the weekend, Gomez and/or bodily injury to Charlie Wyrick, a partner, by kicking her, came and got Charlie and took her back to Missoula. Charlie kneeing her, hitting her, strangling her, pulling her hair out told this friend that Gomez would not let Charlie leave the and/or pushing her." house, he would stalk her by following her. - The Affidavit for Leave to File this Information contains the - Missoula Police spoke with another close friend of Charlie. following facts: She last saw Charlie on December 8, 2015. At that time, - On December 24, 2015, the Missoula City Police Department Charlie told her friend that if she ever went missing, people received a request for a welfare check on 26-year old Charlie should look in the Pattee Canyon area. Charlie stated that Wyrick. An officer met with one of Charlie's co-workers, Gomez takes her to Pattee Canyon and beats her there. Dillon Moore and his mother. Dillon stated he worked with Missoula Police applied for and received a search warrant to Charlie at Pattee Creek Market, in Missoula. On December search the address at Whitaker. Inside the garage they located 16, 2015 Charlie told Dillon she had been assaulted by her a GMC Yukon, registered to Gomez. Inside the Yukon, boyfriend Emmanuel Gomez. Dillon reported that he had police located blood on the center console. The blood looked personally observed Charlie, on multiple occasions, to come as if it flowed down to the back seat. In the back seat, where to work with bruising and other injuries. On that same day, the blood would have continued to flow, part of the carpet Charlie's manager transported Charlie to Community Medical on the flooring had been cut out. The car looked as if it had Center, where she was treated for bruised ribs and bruising been recently scrubbed. on the right side of her neck. She also presented with a - Police also found cleaning supplies inside Gomez's house. ligature mark around her neck. She informed the nurse that Towels used to clean were located in Gomez's bathroom. In her boyfriend beat her up and she did not wish to report it a vehicle registered to Gomez they found a receipt for at that time. Her brother reportedly picked her up from the cleaning supplies. The cleaning supplies were purchased on hospital when she was discharged. December 22, 2015. - On Saturday, December 19, 2015, at work, Charlie handed - Missoula police applied for a warrant to search Gomez's cell a hand-written note to Dillon, who made the report of her phone. They found web history from December 22, 2015, disappearance. The note stated that if Charlie went missing, including articles on homicides in Missoula, Montana DOJ he should contact law enforcement and request they search missing persons, and U-Haul reservations. Missoula police her house. That same day, Charlie told Dillon that Gomez also received GPS coordinates for locations of the cellphone told her he was going to kill her if she "pissed him off' any dating back to Monday, December 21st at 5pm. Gomez's cell more. Charlie was scheduled to work on December 21, 22, phone was in the area of a tower in Pattee Canyon at 23 and 24. She did not show up for any of these shifts, nor approximately 5:00 pm on Monday, December 21, 2015, did she call to report her absence. which was the last day anyone heard from Charlie. - Dillon attempted to contact Charlie several times. She did not - Missoula police, Missoula County Sheriffs Department, The respond. On December 24, 2015, Dillon and his mother, United States Forest Service and Missoula County Search Sherie Harguess, went to Charlie's home on the 200 block of and Rescue searched Pattee Canyon along the Deer Creek Whitaker in Missoula County. Sherie went to the door and drainage on December 27, 2015. At 11:00, Charlie Wyrick spoke with Gomez. Gomez stated Charlie had left with her was located by the team. She was deceased. It appeared that brother and was never coming back. she had been pushed off the edge of the road and landed - Missoula Police contacted both of Charlie's brothers. One about 50 feet off of the road. There was significant blood in brother had not spoken with her since the day he picked her the snow at the roadside and under her body. up from Community Medical Center. The other brother stated - An autopsy showed that Charlie had died from being the last time he saw Charlie was on the evening of Sunday, stabbed. The injury went through her ribs and punctured a December 20, 2015. Charlie came to his house with a black lung, causing significant internal bleeding. Her body was duffel bag full of her belongings. She told him that she was covered with bruises and she had an injury to her head. leaving Gomez. She told him that she still needed to return - The continuing investigation, led by Missoula Police to the residence on Whitaker to get the rest of her Detective Stacy Lear, revealed that Charlie had been dating belongings. She stayed the night with her brother, but when Defendant for approximately one year. The relationship was he woke up in the morning, Charlie was not there. She had fraught with severe domestic abuse. Defendant repeatedly left her cell phone at his home. Missoula Police did a injured Charlie and then would blame her for losing his welfare check at the home on Whitaker and were unable to temper. She tried to leave and break up with him on more locate Charlie. than one occasion. Coworkers, friends and family all tried to - Missoula Police spoke with one of Gomez and Charlie's help her throughout the year. Charlie told Dillon Moore, a roommates. The roommate was sleeping on the morning of co-worker, that there was a long history of domestic violence December 21, 2015 and at some point between 9 and 11 am, between her and Defendant in which she was the victim. the roommate heard screaming. The roommate's room is Dillon recalled frequently seeing bruises and other injuries on directly below Gomez's room. The roommate stated he had Charlie. Dillon tried to get her to go to a shelter. heard Charlie and Gomez fight in the past. He stated when - Dillon said that Defendant would come into the store when he heard the fighting, he would hear loud thuds. He said this Charlie was working just to watch her. He would get angry scream was unlike anything he had heard from Charlie. He if she talked too long to male co-workers. Charlie told Dillon and his girlfriend got out of bed and got dressed. They went that she wasn't "allowed to talk to any of the guys working up to Gomez's room to confront Gomez. When the roommate on shift unless it's specifically and shortly work-related." got to Gomez's room, no one answered the door. The Defendant also told Charlie when to take her breaks, even if roommate's girlfriend called him into the common area where she wasn't supposed to take a break. Defendant would come the roommate saw the GMC Yukon belonging to Gomez into the store or wait in the parking lot and Charlie would

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 19 go with him. Charlie declined, Karen called the hospital and described the - Dillon said that about two months after Charlie had been abuse Charlie was suffering at the hands of her boyfriend. working at the store, she came to work with a bald spot on - Later that day, Defendant messaged Charlie "Charlie, I know the top of her head. About a week later she came to work I've hurt you really bad but please forgive me and please with a black eye. Then there were two more times when message me back I'm begging you just message me please." Charlie had new bald spots; one more black eye and finally - On December 17, 2015, Charlie came back to work and told the hospitalization on December 16. Karen that she and Defendant had reconciled and were back - Charlie's cousin, Summer Johnson, lives in Great Falls and together. When asked if she was safe, Charlie said "I'm okay told Detective Lear that she was aware that Defendant was as long as there are other people in the house-I'll just keep abusive to Charlie during their approximate one-year my mouth shut." She told Dillon Moore that Defendant had relationship. Summer said Charlie was not able to talk to too broken her ribs a few months previously and this time he re- many people. When Charlie wrote to Summer she would say, broke the same ribs by kneeing her and kicking her in the "I have to talk to you at this time because he's not around, chest. he's jealous." - On December 19, 2015, Charlie gave Dillon the note. She - Summer said that Defendant was a meth user and "scary told him that she had told a social worker at the hospital that guy." Once she said Defendant pulled Charlie away from her Defendant had been making "daily death threats" and "hitting child and the father of her child. her constantly." Dillon talked to Charlie about Safe Harbor - September 1, 2015, was the last time Summer had contact programs and domestic violence shelters in Missoula. Charlie with Charlie. Charlie sent Summer a Face book message said she was planning on leaving Defendant for good after stating, "Hey, I've been dealing with a lot of mental physical Christmas. Dillon asked her to memorize his phone number abuse, I moved back to Helena cuz he tried to. Kill me more because she wasn't allowed to have numbers in her phone than a handful of times." Summer replied, "Oh my god and Defendant regularly checked her messages. Charlie pls pls tell me ur away from him." Charlie replied - On December 20, according to Steve Weare, Charlie came in saying "Yes, I'm in Helena." After that, Summer learned that to work but "struggled the whole time." After work, Charlie Charlie went back to Defendant and Summer could no longer packed several belongings and stayed the night with her get Charlie to contact her. brother, determined to leave Defendant. - Around that same time, Charlie texted her best friend - The next morning, December 21, Defendant came and picked Kimmie Mulcare, who lives in Helena and was "frantic," her up from her brothers. He brought her back to the house saying she was "scared of this Emmanuel guy she was where he stabbed her. seeing, like, terrified." Charlie told Kimmie that Defendant ! LEGAL REASONING had been taking her into the woods and threatening to kill ! Should the charge in Count II be dismissed because the charging her. Charlie later described the relationship as abusive and language is not sufficient to give the Defendant adequate notice of said she was "scared to leave." Finally, Charlie asked his alleged wrongdoings? Kimmie to come get her in Missoula. Charlie told Kimmie - Mont. Code Ann. §46-11-40 1 provides: that Defendant was stalking her by following her and asked - Form of charge. (1) The charge must be in writing and in the Kimmie to park at a nearby gas station so Charlie could walk name of the state or the appropriate county or municipality over to avoid having Defendant follow them and learn where and must specify the court in which the charge is filed. The Kimmie lives in Helena. charge must be a plain, concise, and definite statement of the - Kimmie came to Missoula the very next day and picked offense charged, including the name of the offense, whether Charlie up at the gas station as arranged. Charlie told the offense is a misdemeanor or felony, the name of the Kimmie that Defendant was "crazy," that he wouldn't let her person charged and the time and place for the offense as leave the house, and that he would follow her even when all definitely as can be determined. she was doing was going to the gas station. Charlie said - In this case, Defendant challenges the fact that the charge does there were times when Defendant would make her go to not specify when the acts constituting the PFMA charge took work and she would have to sit in his car all day while he place, but rather alleges that the offense took place over the time worked so that he could keep an eye on her. period of January 1-December 20, 2015. Defendant asserts that - Charlie told Kimmie two or three separate times that what such charging language may interfere with his due process rights scared her the most was when she would tell a petty lie, and fair trial guarantees. The Montana Supreme Court has such as denying that a male friend had said hello to her to discussed such a challenge on several prior occasions. In State avoid Defendant getting jealous, Defendant would take her v. Riley, 199 Mont. 413, 649 P.2d 1273 (1982), the Defendant into the woods and tell her he was going to kill her. She argued that the charging language that alleged acts occurring over told Kimmie there was lots of"choking, punching, throwing two years prior to the death of the young child failed to "state her around," and that Defendant was strangling her to the the time and place of the offense "as definitely as can be done." point she couldn't breathe anymore and thought she was The Court's response was: going to die. She said he strangled her "numerous" times. - We consider this allegation without merit. The law does not - Charlie stayed with Kimmie for about a week in Helena. require that the time and place be stated with impossible When Kimmie was out of town, Defendant came to Helena, precision; it merely requires that they be stated as definitely picked up Charlie and brought her back to Missoula but left as possible under the circumstances of the case, unless time all of her warm clothes and belongings behind. Kimmie is a "material ingredient of the offense." See State v. thought they had been dating approximately 7 months. Heaston, 109 Mont. At 307, 97 P. 2d at 332. Here, the - Christopher Eckhoff moved into the house where Defendant Information alleges a continuing course of abuse conduct and Charlie were living in Missoula around June, 2015. towards James Gill, beginning when his family joined the Christopher described Defendant's relationship with Charlie River of Life Tabernacle group and culminating with the as "volatile" and said he could often hear "swearing, fighting, boy's death on January 9, 1981. When such a continuing loud thuds, yelling at each other ... " He said that almost course of conduct is alleged, further specificity is not daily Defendant would "blow up on her" with his voice required. State v. House, (1971 ), 260 Or. 138, 489 P.2d raised, while Charlie would have a normal or quiet voice in 381, 384. response. - Riley, at 422. - Charlie started working at Pattee Creek Market in October, - The Court reached a similar conclusion and cited Riley, supra., 2015. On October 26, 2015, Charlie left work early to go to in State v. Clark, 209 Mont. 473,682 P.2d 1339 (1984). In the hospital because Defendant had assaulted her earlier, Clark, the Defendant was charged with eight counts of Sexual causing a concussion. She didn't return to work until October Intercourse without Consent ofhis step-daughter. Originally the 30th. She later told Karen she had just fallen down some charges listed specific days of the offense, but later the Amended stairs. Around Halloween, co-worker Steven Weare saw Information listed the charges as "week of' or "sometime during abrasions and marks on Charlie's neck and obvious bald the week of __ through __ ." The Defendant had originally filed spots on her head, as well as a bruise on her right cheek. an alibi defense, and later asserted that because he had filed an - Around December 16, Charlie's manager, Karen Fairclough alibi defense, that made time a material element and thus the took Charlie to Community Medical Center to have her amended information failed. The Supreme Court disagreed, and injured ribs examined. Charlie was in obvious pain having a approved the charging language, stating: 'The law does not, hard time working. Charlie said Defendant had kneed her in however, demand impossible precision." the side, reinjuring a previous rib fracture. Karen pleaded - In State v. D.B.S., 216 Mont. 234, 700 P.2d 630 (1985), in an with Charlie to tell the hospital staff what happened. When incest case again charging a continuing course of conduct over

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 20 a ten-month period, the Court said: "The statute [46-11-401 evidence supporting the PFMA count could come into the trial M.C.A.] does not require the exact time, date, month, or even on the Deliberate Homicide count as 404(b) or transaction year to be specified." Later, the Court says: "The fact that the evidence. Failure to sever the counts does not prohibit the victim cannot set a date for the crime should not be fatal to the Defendant from proceeding to enter a guilty plea to the PFMA State's case, thus making the defendant, virtually immune from charge and then asserting that the evidence supporting the PFMA prosecution." count should not be admitted in the Deliberate Homicide trial - Finally, in State v. Little, 260 Mont. 460, 861 P.2d 154 (1993), because it would violate Mont. R. Evid. 404(b). the Court again looked at this issue, reviewed these earlier - The State has addressed the 404(b) issue in its response that the holdings and reaffirmed them and said: evidence from the PFMA count could be admissible in the - In determining whether the dates are alleged with sufficient Deliberate Homicide trial because the evidence would meet one particularity in these situations, we review whether 1) time is of the exceptions of Mont. Code Ann.§ 404(b) such as to rebut a material ingredient in the offense, and 2) whether a a claim of absence of mistake or accident, to demonstrate motive continuing course of conduct is alleged. or intent, or to demonstrate knowledge. The State also argues - The Court restated the holding in D.B.S. that "when a continuing that the evidence of PFMA would be admissible in the course of conduct is alleged, further specificity in the information Deliberate Homicide trial if the counts were severed as is not required." The Defendant has not raised in his challenge transaction evidence. The Defendant has also discussed the any matter that would make time a material element, therefore potential admissibility of the evidence of PFMA in the Deliberate the charging language is sufficient, particularly when combined Homicide trial and has argued that such evidence would not be with the facts contained in the Affidavit to give the Defendant admissible. sufficient notice to allow him to defend the charges in Count II. - The Court does not conclude that the Defendant has met his - The Defendant argues that the State is relying in cases involving burden of proof of showing that evidence of PFMA would be child victims who have difficulty in pinpointing time and place, barred from the trial of the Deliberate Homicide case if the and those cases cannot be solid precedent for this case since the counts are not severed. Thus, the potential prejudice prong of case does not involve a child victim. Although it is true that inadmissible evidence has not been proved by the Defendant. In many of these cases do involve child victims, the Riley case is this case, the Court finds that the joinder of the two offenses is a homicide case and relied on testimony from a variety of adults proper. These two charges are inherently linked. about the treatment of the child victim by the River of Life - Defendant's argument on potential prejudice does not claim that group. Secondly, the victim of Count II is deceased. Thus, she he will be prejudiced with joinder of these two counts because cannot set a date for these acts. As the Court said in D.B.S., that he wants to testify on one count but not the other, or because should not be fatal to the State's case. proof on one of the charges would not be admissible if the trials - Defendant's motion to dismiss is DENIED. were separate. The remaining prong is the "bad person" ! 2. Should Count II be severed from Count I? argument. - Defendant seeks to sever the Partner/Family Member Assault - The Montana Supreme Court addressed this prong in its decision count from the Deliberate Homicide count at the upcoming trial of State v. Freshment, 2002 MT 61,309 Mont. 154, 43 P.3d 968. if the Count is not dismissed. Defendant asserts that by being In that case, the Court said: forced to go to trial on both counts he will be unfairly - prejudice is more difficult to demonstrate and will not be prejudiced because when taken together they could become found when the charges are few and the evidence is distinct, unfairly prejudicial in the jury's mind, considering him to be a because there is no reason to assume a jury will be confused bad person. The State responds that joinder of these two counts and unable to keep the evidence separate (citing cases). is proper and permissible because they are "of the same or - Id. ¶ 26. similar character or are based on the same transactions connected - As the State has argued, the Defendant in this case has not met together or constituting parts of a common scheme or plan" his burden to show prejudice in this case. quoting the language of Mont. Code Ann. § 46-11-404(1). The - For the above reasons, the Motion to Sever the Counts is State asserts that since the PFMA charge involves the same DENIED. victim as does the Deliberate Homicide charge and the PFMA - DATED this 13th day of December, 2016. Karen S. Townsend, charge describes a continuing course of conduct by the District Judge Defendant against his victim. The State argues that the two - cc: Missoula County Attorney's Office (Pabst) charges center in the same places, the victim's home and/or - Office of the Public Defender (Kauffman) Brian C. Smith, Esq. Pattee Canyon, the injuries from the PFMA are similar to the injuries found on the victim after her death, the time frame is 13. Montana Fourth Judicial District Court, Missoula County. small, and thus the two charges are clearly related. STATE OF MONTANA, Plaintiff, vs. EMMANUEL F. GOMEZ, - The Montana Supreme Court has long held that whether or not Defendant. Dept. 4 Cause No. DC-16-17. to sever counts for trial is a matter of judicial discretion, that ! Karen S. Townsend, District Judge there is a preference for joint trials as a matter of judicial ! [Gomez-] Order on Motion to Suppress Statement Given on 12/28/15 economy, the administration of justice, the reduction in the - This matter comes before the Court on the Defendant's Motion congestion of trial dockets, the conservation of judicial time the to Suppress the statement he gave to Detectives Stacy Lear and reduction of burden on citizens who serve on juries, and the Katie Peterson on December 28, 2015. Defendant alleges that on avoidance of the necessity of recalling witnesses who would December 24, 2015 when Detective Lear attempted an interview otherwise have to testify only once. See, e.g. State v. Martin, 279 at the Missoula City Police Department, he invoked his right to Mont. 185, 926 P.2d 1380 (1996); State v. Turner, 262 Mont. counsel. When she returned on December 28, 2015 after the 39, 864 P.2d 235 (1993); State v. Campbell, 189 Mont. 107, 615 body of Charlie Wyrick had been discovered, she questioned him P.2d 190 (1980). When the Court is ruling on a motion to again before he had been given an opportunity to consult with sever, the Court must first determine if the joinder of the counts counsel and without ensuring that an attorney was present. is proper and then if so, whether severance is necessary to Defendant alleges that such police initiated questioning even on prevent prejudice to the Defendant. State v. Richards, 27 4 Mont. another matter is a violation of Edwards v. Arizona, 451 U.S. 180, 906 P .2d 222 (1995). The burden of showing prejudice 477 (1981). Defendant also alleges that the statement should be rests on the Defendant and it is not sufficient that the defendant suppressed because he was not brought before a magistrate for prove some prejudice or that a better chance of acquittal exists 92 hours after his arrest. if separate trials are held. Rather, the Defendant must show - The State has asserted that the Defendant's statement was prejudice so great as to prevent a fair trial. Id. Three types of voluntary because it was given after he waived his Miranda potential prejudice are to be considered: 1) a jury considers a rights and that the police had the authority to reinitiate person facing multiple charges to be a bad person and tends to questioning on the homicide case pursuant to Michigan v. accumulate evidence against him until it finds him guilty of Moseley, 423 U.S. 96 (1973). The State also asserts that the something; 2) prejudice may occur when proof of guilt on one Defendant was brought before a magistrate within a reasonable count is used to convict of a second count even though if the time in light of the holiday closing of the courts and further, a trials were separate that proof would be inadmissible; 3) if the magistrate did make a probable cause determination within 48 defendant wishes to testify as to one count against him, but not hours of his arrest. all counts. Id. - The parties have not requested an evidentiary hearing in this - Defendant suggests that judicial economy will be served if the case, but have agreed that the Court may review the transcripts matters are severed because he could then plead guilty to the of and the audio recordings of the two statements in chambers. charge, thus eliminating the need for a separate trial, and the The Court has done so. Court would then be left with deciding whether or not the ! RELEVANT FACTS

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 21 - This Court has previously laid out the basic facts of this case in time, the individual must have the opportunity to confer with its previous ruling on the Defendant's Motion to Dismiss and/or the attorney and to have him present during any subsequent Sever and those facts will not be repeated here. The following questioning. If the individual cannot obtain an attorney and additional facts relevant to these issues are as follows. he indicates that he wants one before speaking to police, they - On Thursday afternoon, December 24, 2015 Missoula City Police must respect his decision to remain silent. officers arrived at Defendant's residence with a search warrant - An individual being advised of his or her rights has the option seeking to check on the welfare of Charlie Wyrick. As officers to waive these rights and agree to speak to law enforcement were serving the warrant, the Defendant was seen leaving the without an attorney present. The waiver must be free and residence. Officers stopped his vehicle at 1:13 PM. After officers voluntary and not coerced by law enforcement or the result of concluded that Charlie was not at the residence, the Defendant improper promises made by law enforcement. An individual can was taken to the Missoula City Police Department where he was also decide to exercise these rights. There are two basic ways to interviewed by Detective Stacey Lear. Detective Lear began her exercise these rights. One is by telling the law enforcement interview at 2:39 PM. After asking several questions to determine officer that the person wishes to remain silent and not speak to whether or not the Defendant was under the influence of any them. The other is by telling the law enforcement officer that the substance Detective Lear presented the Defendant with the person wishes to speak with a lawyer. Once an individual tells standard Missoula City Police Department written copy of his law enforcement one of those two things, questioning must cease Miranda rights and then read each right to him. The Defendant because the individual has exercised his Fifth Amendment rights. indicated that he understood each of those rights. He was then - In this case, there is no question that the Defendant was in asked "Having those rights in mind do you wish to talk to me custody during his initial interview with Detective Lear and now?" His response was: "No, I need a lawyer." After some during his second interview with Detective Lear. There is also no additional exchange about his physical and mental health, his question that the Defendant was interrogated. There is also no cell phone and his desire to get the phone number of his mother, question that the Defendant clearly stated during the first Detective Lear ended the interview at 2:47PM. The Defendant interview that he wanted to consult a lawyer. Finally, there is no was arrested for Partner Family Member Assault by Missoula question that the second interview of the Defendant was initiated County Deputy Sheriff John Leonard at 4:54 PM and transported by the police after Ms. Wyrick's body had been discovered, and to the Missoula County Detention Center where he was booked after police had gathered substantial evidence implicating the into jail starting at 5:00PM. Defendant in her death and no lawyer was present. There is also - Missoula Deputy County Attorney Jordan Kilby prepared a no question that in the second interview, the Defendant was Complaint for Justice Court charging the Defendant with Partner advised of his rights both with a written copy and orally and that Family Member Assault on December 24, 2015. In addition to he waived those rights and agreed to speak with the two the Complaint, Ms. Kilby prepared an Affidavit of Probable Detectives. This Court finds that this waiver of his rights was a Cause. Both documents were submitted to Justice Court and on voluntary waiver. Saturday, December 26, 2015, Justice of the Peace Karen Orzech - Finding that the waiver of rights was voluntary does not, found that there was probable cause for the charge at 2:44 PM. however, answer the question of whether or not the statement is The Defendant did not, however, make an appearance before admissible. The State asserts that the holding in the 1975 case of Judge Orzech that day. Michigan v. Moseley, 423 U.S. 96 (1975) is authority for - On Sunday morning, December 27, 2015, Ms. Wyrick's frozen introduction of the statement. The Defendant asserts that the body on top of frozen pools of blood was found at the bottom holding in the 1981 case of Edwards v. Arizona, supra, is of a very steep embankment by law enforcement officers. Frozen authority for suppression. In Moseley, the Defendant was in pools of blood were also found above the embankment on the custody as a suspect in two robberies that had taken place in edge of the road. Detectives immediately concluded that the case Detroit, MI. A detective with the Detroit Police Department they had been investigating had been transformed into a homicide Armed Robbery Section advised Moseley of his Miranda and investigation. Detective Stacey Lear accompanied by Detective Moseley told the detective he did not want to answer any Katie Petersen went to the Missoula County Detention Center on questions about the robberies. The Armed Robbery detective Monday, December 28, 2015 in an attempt to interview the immediately ceased his questioning and then completed the Defendant after the discovery of Ms. Wyrick's body. They necessary arrest paperwork. At no time did the Defendant ask for advised him that they were there to talk about a new a lawyer. Later that evening, a Detroit Homicide detective got investigation after finding Ms. Wyrick's body. Once again, Mosely out of his jail cell for questioning about the fatal Detective Lear gave the Defendant the Missoula City Police shooting during a holdup attempt of a different bar. Although he Department printed form with the Miranda rights. He again had not been arrested on those charges, this new detective also indicated that he understood his rights and this time when he advised Moseley of his Miranda rights using a printed form and was asked "Having your rights in mind, do you wish to talk to also advising him of the rights orally. Mosely signed the form. me now?" His response was: "A little bit." Detective Lear then Initially he denied any involvement in the shooting, but after stated: being told that another had confessed to the crime and implicated - That's perfectly fine 'cause here's the thing. This says you can Moseley as the shooter, Mosely made a statement implicating answer some questions and not others, so if you change your himself in the homicide. The interrogation lasted about 15 mind all you have to say is I want to stop talking. Or I want minutes and at no time did Moseley ask for a lawyer. The Court a lawyer. Thank you. Tell me what happened? concluded that the Miranda case did not prohibit the re-initiation - Later that day at 2:30PM, the Defendant appeared before Judge of police questioning about a different matter if the person had Orzech on the regularly scheduled appearances for those in exercised his right to remain silent. The State argues that the custody. Montana Supreme Court case. State v. Morrisey, 2009 MT 201, ! LEGAL ANALYSIS 351 Mont. 144, 214 P.3d 708 adopted Moseley. ! Should the Defendant's statement given while he was in custody on - By contrast, the Edwards v. Arizona, supra case decided in 1981 December 28, 2015 be suppressed? held that if a person makes a clear.statement that he wants to - Ever since 1966, it has been the law that if an individual is speak to a lawyer, police cannot reinitiate questioning until an subjected to custodial interrogation, the individual must be attorney is present even about another matter. In this case, the advised of certain rights known as Miranda rights before second questioning was initiated by the same detective who questioning. Miranda v. Arizona, 384 U.S. 436 (1966). These conducted the initial questioning and heard the Defendant clearly rights include the right to have an attorney, the right to have an state that he wanted to speak with a lawyer. As the Defendant attorney appointed by the court if the person cannot afford to points out, in State v. Morrisey, in a footnote, the Court's hire an attorney, the right to remain silent, the fact that anything opinion noted: said can and will be used against him or her in court, and the - In contrast, if the person asks for an attorney, (i.e. invokes right to stop talking at any time and speak to a lawyer if the his Fifth Amendment right to counsel under Miranda) then person decides to speak at that time. This advice must be given the interrogation must stop and the person is not subject to to an individual if the person is in custody and ifthere is further interrogation until counsel has been made available to interrogation. The United States Supreme Court in its Miranda him. opinion held that the Fifth Amendment to the United States - For this reason, the Court concludes that the Defendant's second Constitution required the advice of these rights. Failure to give statement cannot be used in the State's case in chief. However, such advice is fatal to the admission of any statement made by the Court does conclude that the second statement was given the Defendant. The Miranda opinion also states: voluntarily and therefore is appropriate to use as impeachment in - If the individual states that he wants an attorney, the the trial should Defendant testify differently at trial. See e.g. interrogation must cease until an attorney is present. At that Harris v. New York, 401 U.S. 222 (1970), Oregon v. Hass, 420

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 22 U.S. 714 (1975), followed by the Montana Supreme Court in Townsend Thu, Jan 05 2017 03:31:37 PM this Com1 that this State v. Cartwright, 200 Mont. 91, 650 P.2d 758 (1982). second statement was given voluntarily. ! II. Should the second statement be suppressed because the Defendant ! ORDER was not brought before a magistrate until 97 hours after his arrest on - Defendant's Motion to Suppress the statement given on December the Partner Family Member Assault charge? 28, 2015 to Detectives Stacey Lear and Katie Peterson is - Defendant also seeks suppression of the statement with an GRANTED for use during the State's case in chief because it argument that there was a violation of his right to an initial was obtained in violation of Edwards v. Arizona, supra. appearance without unnecessary delay. Defendant argues that Defendant's Motion to Suppress that statement because of an Mont. Code Ann§ 46-7-101 mandates that "a person arrested, unnecessary delay in his initial appearance is DENIED. whether with or without a warrant must be taken without - DATED this 5th day of January, 2017. cc: Missoula County unnecessary delay before the nearest and most accessible judge Attorney's Office (Pabst/Kilby) Office of the Public Defender for an initial appearance." Defendant further argues that he could (Kauffman) Brian C. Smith, Esq. have had such an appearance on Thursday afternoon December 24th after he was taken to the Missoula City Police Station and 14. Montana Fourth Judicial District Court, Missoula County advised the detective that he wanted a lawyer, or at a minimum STATE OF MONTANA, Plaintiff, vs. EMMANUEL F. GOMEZ, have made an appearance before the Municipal Court Judge who Defendant. Cause No. DC-16-17. January 24, 2017. conducted jail court for those charged with city offenses on ! [Gomez-] Order on Victim's Meth Use and Character Evidence of Saturday, December 26th. Witnesses - The State argues that the requirements of that statute were met ! Hon. Karen S. Townsend, District Judge as Defendant was arrested at 4:54PM on Thursday, December - This matter comes before the Court on Motions in Limine filed 24th, after a charge of Partner Family Member Assault was by both the State of Montana and the Defendant concerning the prepared for filing in the Justice Court, too late for an ability to introduce evidence of Ms. Wyrick's use of appearance that day. The State further argues that Friday, methamphetamine at trial and the State's Motion seeking an December 25th was a legal holiday so no courts were operating Order prohibiting the Defendant from introducing improper so no initial appearances could be conducted, and that the Justice character and/or criminal history information of certain state's Court also did not conduct any hearings over the weekend where witnesses into evidence. The Defendant argues he has a due defendants could be seen, although the Justice of the Peace did process right to present a complete defense, and that evidence review the Affidavit of Probable Cause filed in support of the that Ms. Wyrick had a trace amount of methamphetamine in her Partner Family Member Assault charge and determined at system discovered at autopsy and that she allegedly had a history 2:44PM that there was probable cause to support that charge. of use of methamphetamine and in fact was addicted to The State also argues that Defendant was seen as the first case methamphetamine and such addiction explains her absence from on Monday, December 281h at 2:30 PM. work, her lateness to work, her lost hair, her bruises, her lost - This Court does not conclude that there has been a violation of weight, etc. Defendant further seeks to introduce evidence of Mont. Code Ann § 46-7-101. There are certain duties incumbent claimed violence on the part of Ms. Wyrick, her prostitution, the upon the judge at an initial appearance. One of those duties is to fact that she had more than one sexual partner, and her use of "inform the defendant of the charge or charges against the marijuana and "benzos." Defendant argues that such evidence is defendant" Mont. Code Ann§ 46-7-102 (a). Thus, an initial a pertinent character trait that is admissible under Mont. R. Evid. appearance requires the preparation of and filing of a complaint 404. The Defendant also seeks to introduce evidence of Jared so that the Defendant can be advised of the charges against him Goodman's conviction(s) for drug trafficking, and his in and out or her. In this case, when the Defendant chose to exercise his of custody dates in 2015 to show Ms. Wyrick's "meth using rights and request a lawyer at 2:47PM on December 24th, the lifestyle." Finally, the Defendant seeks to introduce evidence State had to be given a reasonable amount of time to prepare the concerning David Weik who apparently has made contact with charging documents. It is clear from the exhibits that the the State and may testify as to conversations he had with the complaint and Affidavit were prepared on that same day. Defendant concerning Ms. Wyrick's death. The Defendant asserts Although the Defendant was in custody, he was not formally that his criminal history, information on pending cases, plea arrested until 4:54 PM, too late for an appearance that day. The agreements, and sentencing orders are relevant to his credibility. delay until Monday was not a deliberate attempt by the State to - The State opposes the introduction of any evidence about Ms. avoid the requirements of the statute, but a result of the holiday Wyrick's supposed meth use arguing that it is not a pertinent and weekend. l-Ie did make his appearance on the first business character trait under Mont. R. Evid. 404 because the Defendant day after his arrest. is not claiming self- defense in this case, but rather accident. The - This case is not like the case cited by Defendant, State v. Benbo, State refers the Court to the Montana case, State v. Hardman, 174 Mont. 252, 570 P.2d 894 (1977) where statements made by 2012 MT 70, 364 Mont. 361,276 P.3d 839 which held that when the Defendant after his arrest before his initial appearance were the defense was accident, statements made by the victim prior to suppressed. In that case, the Defendant was arrested on a warrant the shooting were not relevant, although they could have been from Cascade County in Blaine County by Great Falls police relevant if the defense was self-defense. Hardman also concluded officers on August 20th, was then driven to Billings to recover that the defendant could not impeach the State's witnesses that certain stolen weapons, was then driven back to Great Falls and the victim was a "good guy" with evidence that the victim had arrived there on August 21st. The opinion states that the Court used methamphetamine and was on probation. The Hardman record does not reflect whether or not he ever had an initial Court concluded that such evidence has limited probative value appearance in Great Falls. His Cascade County case was and the danger of unfair prejudice and confusion of the issues is dismissed on September 3rd and he was then charged in Blaine high. Hardman at ¶ 22. The State has also argued that the County on October 16th and statements made by the Defendant evidence of Ms. Wyrick being addicted to meth is weak. Her co- to the Great Falls officers while they were driving to Billings workers and friends have apparently not said so. Her behavior as were admitted in evidence at his trial. The Supreme Court described by these individuals appears to be "timid, quiet, concluded that the delay in initial appearance was unreasonable subservient, and introverted." Although there was a trace of and reversed his Blaine County conviction and suppressed his methamphetamine in her system at autopsy, the amount was statements made. minimal. The Defendant has offered no evidence that a person - Two issues in Benbo are of significance to this case. First, is a with that amount of meth in their system is likely to be reference to an earlier Montana Supreme Court case, Cline v. aggressive toward others, or more accident prone. Further, State, 113 Mont. 475, 129 P.2d 89 (1942) that held "it was not although the Defendant has presented this Court with a transcript unreasonable as a matter of law to wait until ordinary working of a deposition of Ms. Wyrick's brother, Charles Wyrick, in hours before providing an initial appearance." Here, the period which he does state that Ms. Wyrick had used methamphetamine of delay between the Defendant's arrest and his initial appearance during the time that she was with the Defendant, he also stated were not the "ordinary working hours" of the Justice Court. that her methamphetamine use did not make her particularly Second, when an issue of suppression is raised, the Benbo Court aggressive or violent and that at most, she might yell and that he held that the Defendant had the burden of proof showing the really saw no difference in her demeanor when she was using delay in getting an initial appearance was unreasonable. This meth and not using meth. This Court finds that evidence of Ms. Court concludes that the Defendant has not met that burden and Wyrick's meth use is barred by Mont. R. Evid. 404 and 403. It thus, the second statement is not involuntary solely as a result of is improper character evidence because it is not a pertinent trait the delay between his arrest and initial appearance. In fact, both of character, and its probative value is substantially outweighed the transcript of the second statement and the recording make by the danger of unfair prejudice. clear to Electronically Signed By: Hon. Judge Karen S. - The Defendant raises one additional matter in its brief filed on

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 23 January 22, 2017. The Defendant asked the Court to consider the September 12, 2013 hit-and-run incident had fractured Myers' left holding in State v. Colburn, 2016 MT 41, 382 Mont. 223, 388 tenth rib. (TR 278-280). P.3d 258 wherein a criminal defendant's convictions on incest, - This matter is before the Court because the Montana Supreme sexual intercourse without consent, and sexual assault were Court, in State v. Pope, 2017 MI 12, ¶1-¶15, 386 Mont. 194, reversed and remanded for a new trial because the Court 387 P.3d 870, determined the that State had abused the criminal concluded that the District Judge had mechanically applied the discovery process when it did not provide Pope with a copy of Rape Shield statute to prohibit certain evidence about the child the State's June 23, 2014 videotaped interview (the "Prosecution victim from reaching the jury. The Court concluded that some Interview") of Myer. Pope,¶¶ 22-27. The Ravalli County balancing of the Defendant's right to present a defense and the Attorney's Office had refused Attorney Streano's direct request to victim's rights was needed if "the proffered evidence is not examine the Prosecution Interview, which was in the State's files. merely speculative or unsupported." The Coburn Court concluded Pope, ¶¶ 8-9. The State, represented by the Montana Attorney that even evidence that is not speculative or unsupported could General's Office, Ravalli County Attorney William E. Fulbright still be barred by Mont. R. Evid. 401 (not relevant), or 403 ("Attorney Fulbright"), and Attorney Geist, conceded before the (danger of confusing the issues or unfair prejudice). Here the Montana Supreme Court that the State was required to produce evidence that because of heavy meth use she was the aggressor the Prosecution Interview upon Pope's request. Pope,¶ 20. is speculative and not really supported by the results ofthe Nonetheless, the Montana Supreme Court explained that the plain toxicology screen at autopsy nor her brother's statements that her language of § 46-15-322(a)(l), MCA mandates the State to use was "heavy", nor by the Defendant's theory of the case which disclose all statements of witnesses that may be called in the is her death is a result of an accident. Therefore, the Coburn State's case in chief and that such statements are not protected as decision is of no help to the Defendant. work product: - Defendant also seeks to introduce evidence of the criminal - Section 46-15-322, MCA, provides "the prosecutor shall record, drug trafficking, and custody status of Ms. Wyrick's make available to the defendant for examination and former boyfriend, Jared Goodman, and seems to wish to reproduction the following material and information within categorize him as her "gang husband." This evidence is barred by the prosecutor's possession or control ... the names, Mont. R. Evid. 609, and is improper character evidence under addresses, and statements of all persons whom the prosecutor Mont. R. Evid. 608 because it is not probative of truth or may call as witnesses in the case in chief." Section 46-15- veracity. 322(l)(a), MCA (emphasis added). Parties have a statutory - Defendant also seeks to introduce evidence of criminal history, "continuing duty to disclose" ... Section 46-15-327, MCA. A custody status, any plea bargains or benefits received and related "statement" is defined as" ... (b) a video or audio recording matters of a purported State's witness, Dave Weik. The Defendant of a person's communications or a transcript of the represents that Ms. Weik wrote a letter to one of the deputy communications ... " Section 46-1-202(26), MCA (emphasis county attomeys describing a conversation that he and the added) ... Defendant had concerning the death of Ms. Wyrick. The - ... [T]he plain language of subsections (1)(a) through (d) and Defendant further argues that ifWeik testifies that it is (2)(a) through (c), ·· obligates the state to disclose all permissible to challenge his testimony on grounds of credibility material and information listed whether exculpatory or and bias based on any benefits he may have received. The State inculpatory ... has responded that he has received no benefits, that he did not - Moreover, witness statements are not within the scope of get a plea agreement, but rather was convicted after a jury trial, work product protected from disclosure under § 46-15-324, that he was not interviewed by the police' until after his trial was MCA, because § 46-15-322(l)(a), MCA, explicitly requires over and he was sentenced, and that they have opposed his production of all witness statements. release on parole. - Pope,¶¶ 21-24 (emphasis in original). - The Court agrees that if he had been offered or received certain - The Montana Supreme Court stated that the purpose of benefits in the form of a plea agreement, or dismissal of charges, Montana's discovery statutes is to "enhance the search for truth;" or a sentence consideration by the State, then certain inquiry into "the policy behind § 46-15-322, MCA is to provide notice and his criminal history and these benefits would be proper because prevent surprise"; and that in criminal cases, discovery serves "to such inquiry could relate to his truth or veracity. However, at provide adequate information for informed pleas, expedite trials, this point, the Court needs additional information before it can minimize surprise, afford opportunity for effective cross- determine if such benefits were received by Mr. Weik. Therefore, examination, and meet the requirements of due process." Pope, at this point, such inquiry is DENIED as prohibited by Mont. R. ¶ 22 (internal citations omitted). Evid. 609 and 608. However, pending receipt of the Defendant's - The Montana Supreme Court, citing § 46-15-329, MCA, has requested discovery, and the defense interview of Mr. Weik after directed that this Court "determine the appropriate sanctions for Hon. Judge Karen S. Townsend Tue, Jan 24 2017 02:55:09 PM the State's discovery abuse." Pope, ¶27. Here, where the Montana he is transpmied to Missoula, Defendant has the right to renew Supreme Court has found that the State failed to comply with § this motion. 46-15-322(a), MCA, this Court: may impose any sanction tlrat it - DATED this 24th day of January, 2017. finds just under the circumstances, including but not limited to: - Karen S. Townsend, District Judge - (1) ordering disclosure of the information not previously - cc: Missoula County Attorney's Office (Pabst/Kilby) disclosed; - Office of the Public Defender (Kauffman) - (2) granting a continuance; - Brian C. Smith, Esq. - (3) holding a witness, party, or cotmsel in contempt for an intentional violation; 15. MONTANA TWENTY-FIRST JUDICIAL DISTRICT COURT, - (4) precluding· a party from calling a witness, offering RAVALLI COUNTY, Hon. James A. Haynes, District Judge. STATE evidence, or raising a defense not disclosed; or OF MONTANA, Plaintiff vs. JODY JAKE POPE, Defendant Cause - (5) declaring a mistrial when necessary to prevent a No. DC 2013-195. Department No. 2. Jennifer Streano, Regional miscarriage of justice. Deputy Pubic Defender ("Attorney Streano"), represents Defendant - Pope,¶ 25, quoting § 46-15-329, MCA (emphasis added). Jody Jake Pope ("Pope"). Thorin Geist, Deputy Ravalli County - In making this determination, the Court is to "'consider the Attorney ("Attorney Geist"), represents the Plaintiff State of Montana reason why the disclosure was not made, whether noncompliance ("State"). was willful, the amount of prejudice to the opposing party, and ! SANCTION ORDER ON REMAND other relevant circumstances.'" Pope, ¶ 25, quoting State v. ! A. PROCEDURALBACKGROUND Waters, 228 Mont. 490, 495, 743 P.2d 617, 621 (1987). - Pope is currently serving 20 years in prison, with 10 years - To comply with the Montana Supreme Court's direction, this suspended, for assault with a weapon. In June 2014, a jury in Court set, and the parties agreed to, a briefmg schedule followed this Court unanimously determined that nine months earlier, on by an evidentiary hearing to allow the Court to determine which September 12, 2013, Pope had driven a van across U.S. Highway sanction would be just under the circumstances. (Doc. # 122). 93 and struck - intentionally - the victim in this case, Susan - In his briefs in support of a sanction, Pope asserts that the State's Myers ("Myers"). At trial, Jay Duce ("Duce") had testified refusal to produce the Prosecution Interview was willful and credibly that he had witnessed Pope drive his grey Ford van based upon a "complete misstatement of the law." Pope contends across the highway and strike Myers. Duce, who called 911 to that the State's discovery abuse (a) prejudiced his ability to cross- report a hit-and-run, further testified that he had attempted to examine Myers and (b) prejudiced his ability to acquire other waive down Pope as Myers lay injured on the side of the witnesses to challenge Myers' character for truthfulness. Pope highway, but Pope had sped away. Amanda Morey, M.D. ("Dr. argues that consistent with the goal of enhancing the search for Morey"), stated at trial, in unrefuted medical testimony, that the truth, some sanction, up to and including the declaration of a

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 24 mistrial, is appropriate. (Doc. # 127). his intense and prohibited influence, Myers began to affirmatively - In its briefing, the State concedes that its failure to provide the assert that Pope had not struck her with his Ford van. According Prosecution Interview was willful. However, the State contends to Myers' account, Attorney Streano led her to believe that if she that its willfulness was based upon "a reasonable[,] but mistaken wrote a letter to the Court recanting, she would not have to do understanding of the law." The State further argues that Myers' a recorded interview. Prosecution Interview @ 10:51:00 - testimony did not surprise Pope and that Pope suffered no actual 10:52:25; 11:07:25-11:09:47. On either Pope's or Attorney prejudice (that is, the State's discovery abuse did not harm Pope). Streano's prompting, Meyers sent the following letter dated The State opposes the imposition of any sanction. January 29, 2014 to the district court, claiming that Pope had not - After the parties briefed the issue, they stipulated that no hit her with his van: evidentiary hearing was necessary. (Doc.# 136). - DC 13195 Dept. 2 - Accordingly, after review and consideration of the evidence in - District Court the record, the parties' briefs, and the documents the parties - Haines [sic] attached to their briefs, the Court determines to impose a - 1-29-2014 financial sanction as being the just sanction under the - To Whom it may concern circumstances: the State shall reimburse the Office of the Public - I am asking for the no contact order between Jody Pope and Defender ("OPD") for its time and effort expended in the Pope myself Susan Myers be lifted. He did not hit me with his appeal and sanction process. Although the State's actions were van. He is my friend and I do not fear him. He has been willful and unreasonable, they were based upon an unreasonable their [sic] for me in the past and helped me with my medical error rooted in extreme carelessness, not an intent to subvert the issues. I have sesures [sic] and mental health issues. I have discovery process. Although the State's failure to disclose the medication. He has kept me on track with my Doctors Prosecution Interview may have impacted the tone of Pope's apointments [sic] and meetings in the past cross examination of Myers, it could not have reasonably - Susan Myers surprised him. Pope - in violation of this Court's order and - (Doc.# 32). inconsistent with the search for truth underlying the discovery - According to Myers, Attorney Streano read a draft of Myers' process - engineered the inconsistencies in Myers' testimony Jetter before Myers submitted it to the Court, and indicated it through his contact with her. The State's failure to disclose was was okay; yet, Attorney Streano still had Myers provide a harmless to the outcome of the trial because Duce and Dr. Morey recorded interview. Prosecution Interview @ 10:51:00-10:52:25; testified strongly and credibly with respect to the material facts 11:07:25-11:09:47. in this cause. Therefore, the declaration of a mistrial would not - On January 29, 2014, Myers, in a recorded interview with be just. Nonetheless, despite the Court's experience that the State Attorney Streano, recanted her story that Pope came at her with has upheld high professional standards overall in the past, the his van. 1 Court remains concerned that the State continues to assert thai - On February 14, 2014, Myers called 911 to report that Pope had its mistake was reasonable and that it may have exceeded the been choking her. (Doc.# 44). On February 15, 2014, Myers' scope of its discovery obligations. This intransigence particularly mother reported to the Ravalli County Sheriffs Office that Pope concerns the Court, in light of the County Attorney's personal was at her residence drinking and had a big black rifle with him. involvement in the analysis of the issue during trial and his (Doc. # 44). decades plus of experience as an criminal prosecutor in the - On February 18,2014, Myers' mother informed the Ravalli Ravalli County Attorney's Office. Therefore, the Court determines County Sheriffs office that Myers was living with Pope and had that a financial sanction is appropriate to ensure that the State been living with Pope for at least a month. (Doc.# 44). complies with discovery in all cases, even those - such as the - On March 4, 2014, the State again arrested Pope. (Doc.# 47). one here - in which such compliance is harmless or likely to be - On March 10,2014, apparently necessitated by Pope's re-arrest, harmless with respect to the outcome at trial. Attorney Streano recorded another interview with Myers. (Def. ! B. BACKGROUND CIRCUMSTANCES, REASONS, AND Exh H). 2 EXTENT OF PREJUDICE - On March 13, 2014, Pope appeared before the Court and did not ! B.l. The Course of Pope's Documented, Prohibited Contact With contest that he had violated the order prohibiting him from (I) Myers to Alter Her Testimony contacting Myers and (2) drinking. (Doc.# 52). - The circumstances in this case reveal that Pope, in violation of - [FOOTNOTE 1] Attorney Streano disclosed the recorded court order, used his power over Myers to engineer the interview to the State. inconsistencies in her statements and that Pope and his counsel - [FOOTNOTE 2] 2 Attorney Streano disclosed this second were aware or should have been aware of the wax and wane of recorded interview in the State. the illicit power Pope held over Myers throughout the course of - For the remainder of the period pending trial, Pope stayed in jail. this cause. At some point during this time, Myers, as she testified at trial, - Pope and Myers were involved in an intimate relationship. In the ceased being involved with Pope because she had "moved on State's Motion for Leave to File Information and Affidavit in with my life." (TR318). Also, Myers began a relationship with Support (Doc. #1), the State declared that Myers had declined to a new boyfriend. Id. Prior to her cross examination of Myers, make a statement at the hospital, saying that she had orders of Attorney Streano knew Myers had moved on to a new protection in the past that had not helped her. However, relationship. (TR 317-318; 327). according to the affidavit, a nurse told the investigating officers - On or around June 19, 2014, the State subpoenaed Myers to that Myers had related that the van driver intentionally hit her. appear at the June 23-25, 2014 trial at 1:00 p.m. (Doc. # 88.10), (Doc. #1). On September 16, 2013, after Pope's arrest, Ravalli "under penalty of law."' On or around June 20, 2014, Pope, County Justice Court Judge Robin Clute ordered him to have no through Attorney Streano, subpoenaed Myers to appear at the contact with Myers (Doc. #8); (TR 338-40). trial on June 23, 2014 at 9:00 a.m., informing her in bolded and - On September 26, 2013, Pope disobeyed Judge Clute's no contact capitalized letters, "DISOBEDIENCE CAN BE PUNISHED AS order by calling Myers from jaiL (TR 323; Exh. 29). In the CONTEMPT." (Doc.# 88.20). The subpoenas upset Myers, who recording of the call later played for the jury, he told her that he felt tricked by both the State and Pope. (TR 335). According to loved her and said he would never hurt her, in a clear attempt Myers, she did not want to testifY. (TR 335). to cause her to question her experience of the event. (TR 323; ! 8.2. The Prosecution Interview in the Context of Trial Exh. 29). Confronted with Pope's attempt to manipulate her while - The circumstances in this case reveal that the Prosecution he was separated from her while confined to jail, Myers resisted, Interview was insignificant in the context of the trial because it pressing him to acknowledge that he had tried to harm her: was obtained late in the process, the inconsistencies in Myers' - "What the hell were you thinking?" statements within it were not new, and the state had a strong - "You were going straight at me and tried to f-ing run me case based on Duce's compelling eyewitness and Dr. Morey's over." expert medical testimony. - "You did that" - According to Attorney Streano, on June 23, 2013- the morning - Id. of the first day of trial - Myers called Attorney Streano at 8:30 - On October 3, 2013, this Court, Judge Haynes presiding, adopted a.m.; Myers was concerned she needed to be at the trial at 9:00 the justice court's conditions of release order, including the no a.m. under Attorney Streano's subpoena. (TR 402). Attorney contact order. (Doc. # 8). Streano told Myers she did not need to be at the courthouse at - Subsequently, Pope left the detention center, having posted bond 9:00 a.m. (TR 402). Myers informed Attorney Streano that she on December 5, 2013. In violation of the Court's no contact had another order, Pope began living with Myers. - [FOOTNOTE 3] The State provided the Ravalli County Sheriff's - On January 29,2014, while still living with Pope and subject to Office with a subpoena for Myers on May 22, 2014; however,

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 25 when Deputy Wofford attempted service on May 27, 2014, the opening statement. On the morning of the second day of trial, address was vacant. The subpoena was returned unserved. (Doc. Detective Jase Basnaw, who stated that as a former trooper for # 68). the Montana Highway Patrol he had investigated an average of - subpoena that said 1:30 p.m. and wanted to know which time 160 traffic accidents a year for about five years, testified that on she should use. (TR 402). Attorney Streano told Myers she could impact in a vehicular crash, shoes generally remain in the not predict when the State would call Myers. (TR 402). location where the person is struck. (TR 176). According to Attorney Streano, Myers proposed showing up at - Later that morning, Duce gave compelling and credible eye 12:30 p.m. so that "we can figure out when she's going to be witness testimony that Pope had intentionally struck Myers with called." (TR 402). Attorney Streano agreed that Myers could his van. Duce stated he had seen the van impact Myers, called meet her at her office at 12:30 p.m. (TR 403). Therefore, it 911, and then found Myers' shoes. (TR 195, 197, 199, 20 1). appears that as of 8:30 a.m. on June 23, 2013, Myers had no Her shoes were just over the fog line, not in the traffic lane. (TR intention of going to the Ravalli County Attorney's Office before 201-2; Ex. 9 & 11). Prior to Duce's testimony, two eyewitnesses 12:30 p.m. that day. A little after 8:41 a.m. that morning, during who were driving on the highway, had credibly corroborated key the final pretrial conference, the Court addressed the issue of the details of his account. (TR 165-180). Duce said he saw the grey State's delivery of late discovery, stating that the usual remedy van "came across the lanes of traffic ... at a pretty aggressive for late disclosure of witnesses or evidence is a continuance on angle ... going at the pedestrian ... going directly at the a showing that it's required. (TR 8). Attorney Streano confirmed individuaL" (TR 193). He saw "a side blow" between the van there was no need for a continuance. (TR 9). and the pedestrian. (TR 196). After the impact, Duce saw the van - From 10:04 a.m. until the Court's recess at 11:51 a.m. on the accelerate away, while Myers lay at the side of the road. (TR first day of trial, Attorney Streano and Attorney Geist selected 196). Duce stated that he honked and pointed at the gray van's the jury. (Doc. # 89). driver. The driver - Pope - drove away. (TR 197). - At some point that morning no later than 11:29 a.m., Myers - Q. (Attorney Streano): He didn't have any reaction to you; arrived at the Ravalli County Courthouse and found her way to correct? the Ravalli County Attorney's Office. Prosecution Interview (date - A. (Jay Duce): Yeah. It was really surprising. time stamp showing 10:29 a.m., but contemporaneous interview - Q. So [Pope] didn't have any reaction to you; correct? audio indicating the time stamp was off by one hour). There is - A. I saw [Pope] slightly turn his head toward me, but he no indication in the record that the Ravalli County Attorney's never made eye contact. I mean I'm just across the center Office knew Myers would arrive at its office that morning or that median from him, and I'm honking and pointing, and I can't it used subterfuge to entice her to arrive. The State's briefing really get a reaction. only clarifies the issue slightly, stating, "on the first day of trial, - (TR 218). former Ravalli County Criminal Investigator James Hulme met - Duce stated that he had concluded the impact was intentional. with the victim, Susan Myers, to assist her in being ready for (TR 200; 222). He testified he had made this determination as testifying at trial." (Doc.# 130). In view of the record, the Court the hit-and-run events unfolded in front of him. (TR 223). concludes Myers arrived at the Ravalli County Attorney Office - Later that morning, Dr. Morey credibly testified that the principally for the purpose of determining when the State might September 12, 20 13 incident had fractured Myers' left tenth rib. call her to testify that day and/or because she felt unprepared to (TR 278-280). The morning record further reflects that Myers testify as a State's witness. As jury selection advanced, the State's provided the health care providers at St. Patrick's Hospital no investigator videotaped Myers in an interview, thereby obtaining history of any pre-existing injury to any of her other ribs (TR the Prosecution Interview. 266, 280), information that was available to Pope prior to the - During the post-jury selection recess, Attorney Geist learned that trial. Myers was in his office, that Myers was supposed to meet with - At 1:20 p.m. on the second day of trial, Attorney Geist informed Attorney Streano at 12:30 p.m., and that Myers did not want to the Court for the first time that the State had recorded the meet with Attorney Streano. (TR 395). Attorney Geist called Prosecution Interview the previous day, that Attorney Streano had Attorney Streano on or around 12:30 p.m. (TR 402) and requested that she be allowed to view the Prosecution Interview, informed her that her witness was at the Ravalli County and that the State would object to Attorney Streano viewing the Attorney's Office and that Myers did not want to talk to Attorney Prosecution Interview. (TR 307-314). Attorney Geist stated: Streano. (TR 395). Attorney Geist inquired whether Attorney - I don't believe the rules, particularly 46-15-322, requires me Streano wanted to talk to Myers and offered that they could "go to tum anything over that is inculpatory. I think it's only up and talk to the judge." (TR 395). Attorney Streano told exculpatory material. Attorney Geist that she did not need to talk to Myers. (TR 395; - (TR 307). 396). While Attorney Streano later represented to the Court that - Attorney Streano responded: she had no indication that she needed to re-interview Myers at - Ms. Myers is a State's witness, and I think the discovery that time (TR 403), she did have notice - from the State - that requires that the State turns over all statements made by the Myers did not want to talk to her. The State, however, did not witness ... disclose that it had videotaped Myers in an interview that - (TR 308). morning. The record is unclear with respect to when Attorney - After considerable back and forth, Mr. Geist further represented Geist learned of the Prosecution Interview, but the State does not that the issue had been reviewed by County Attorney Fulbright: contend Attorney Geist was unaware of the Prosecution Interview - Your Honor, when I got out of court yesterday, I then at the time he phoned Attorney Streano. reviewed that video. It's about an hour and a half. At that - In the Prosecution Interview, Myers returned to the statement point I did not see any exculpatory material in that. I didn't consistent with the jail call and her discussion with the hospital believe it my obligation to disclose it, or I didn't believe I nurse - that Pope had driven straight at her with his van. Also had an obligation to turn it over at that point. I did speak in the Prosecution Interview, Myers characterized her with the county attorney about that. He concurred. interpretation of Attorney Streano's prior interactions with her as - I would agree that if the state intended to use that video as providing her with thinly veiled advice on what to say at trial: an exhibit, absolutely, it would have to be turned over. But - [the Defendant's attorney] always says, she always says, um, I made the decision not to use that piece of evidence. I'm not giving you advice, I'm not telling you what to say, - (TR 313-314). she tries to put that out there so that when she's giving me - At that time, in contrast with her earlier statement to Attorney advice, telling me what to say, she's telling me that she's not. Geist that she thought she had no reason to talk with Myers (and - Prosecution Interview@ 10:51:00- 10:52:25; 11:07:25-11:09:47. therefore she had no reason to take up the issue with the Court), - From 1:38-1:50 pm. that day (Doc.# 89) and outside of Myers' Attorney Streano argued that Myers had been unavailable to her. presence, Attorney Streano gave an opening statement that (TR 316). The Court pointed out that Attorney Streano had not painted a picture of Myers as "suffering from a mental illness," brought the matter to his attention or he would have made Myers "extremely emotional," and "grossly intoxicated" on alcohol, available to her. (TR 316). benzodiazepines and marijuana. Attorney Streano's statement - After the Court erroneously agreed with the State with respect to suggested to the jury that Duce would provide testimony that" ... the disclosure, 4 Myers testified. (Doc. #95). Myers told the jury: it appeared the van was pulling over to pick [Myers] up" and "[Pope] tried to hit me with the van." (TR 318). Myers agreed that "[Myers] had stepped into- crossed the fog line and into the she told a different - incorrect - story to Attorney Streano, to the road towards the van." (TR 108). Although Attorney Streano State's investigator, and to the Court in the January 29, 2014 listed both Myers' January 29, 2014 and the March 10, 2014 letter. Myers stated that she told the incorrect story "because recorded interviews with Attorney Streano as trial exhibits (Doc. [Pope] asked me to do it." (TR 326). #62), Attorney Streano did not refer to these interviews in Pope's - [FOOTNOTE 4] This Court certainly bears independent

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 26 responsibility for failing to carefully examine and analyze the order." plain wording in 46-15-322(l)(a) and 46-15-327, MCA. The - [Footnote 5] Lesko, ¶11, citing State v. Matt, 245 Mont. 208, Court read the plain language of § 46-15-322(l)(b), MCA 212-13, 799 P.2d 1085, 1088 (1990). regarding defendants' statements aloud in open Court and then - into its daily responsibilities. These responsibilities include the asked the parties if there was similar language about statements correct interpretation and application of the State's discovery for witnesses. (TR 308). Attorney Geist responded incorrectly obligations under Montana's criminal code. Unfortunately, the that there was no such language about statements regarding State's urging of a "reasonable but mistaken" justification witnesses. (TR 309). Attorney Streano did not clarify that § 46- suggests the past and continued existence of the perfect 15-322(1)(a), MCA does in fact contain similar plain language primordial soup to yield a pervasive, prolonged, pattern of regarding witness statements. wrongfully withholding evidence in criminal prosecutions based - During cross-examination, Myers clarified she was "just on substandard practice. Indeed, the State's positions imply that intoxicated" (rather than grossly · intoxicated) on September 12, the Ravalli County Attorney's Office continues to believe it could 2013, she had ingested no benzodiazepine that day, and that she have entirely and properly withheld disclosure of the existence only had said her bi-polar mental illness was acting up "to try to of the Prosecution Interview simply because Defendant Pope filed help [Pope]." (TR 333). Myers confirmed she was on the side of no formal, generic discovery request. Moreover, the State's the road; she "wasn't in the road" when Pope struck her with this positions suggest that the State in fact exceeded its legal and van. (TR 331). professional obligations by disclosing the existence of the - Later that afternoon, Detective Jase Basnaw testified that Pope Prosecution Interview at all. Therefore, the Court determines that had contact with Myers in violation of the no contact order. (TR a sanction is necessary to correct the discovery abuse. The Court 337-339). The State played the September 26, 2013 jail phone will calibrate its sanction so that the State will take the necessary call at that time. (TR 339). steps to internalize Pope and comply with its criminal discovery ! B.3. The Reasons for the State's Non-Disclosure obligations. - Attorney Fulbright is a seasoned prosecutor, who had more than ! B.4. The Extent of Prejudice to Pope a decade of experience as a prosecutor in the Ravalli County - Defendant Pope contends that the State's discovery abuse (a) Attorney's Office at the time of Pope's trial. Attorney Geist is an prejudiced his ability to cross-examine Myers and (b) prejudiced experienced courtroom attorney, who had approximately two his ability to acquire other witnesses to challenge Myers' years of experience as a prosecutor with the Ravalli County character for truthfulness. The Court determines that the State's Attorney's Office at the time of Pope's trial. Attorney Geist failure to disclose did not prejudice Pope's ability to cross- represented to the Court that he had consulted with Attorney examine Myers or to acquire other witnesses. Moreover, the Fulbright, who had concurred with his assessment regarding the failure to disclose did not change the outcome of Pope's trial. refusal to disclose the Prosecution Interview. (TR 314). As the ! B.4.a. Cross-Examination Montana Supreme Court pointed out in Pope, the plain language - Pope asserts his attorney was unable to effectively cross-examine in § 46-15-322, MCA required the State to disclose the Myers because the state did not disclose the Prosecution videotaped interviews of all of the State's witnesses. The Court Interview. Had a timely disclosure occurred, Pope asserts his agrees with Pope that there is no rational explanation that attorney would have known of Myers' unfavorable testimony, seasoned prosecutors failed to recognize that the Prosecution would have been prepared for Myers' statement that Pope struck Interview needed to be disclosed. As experienced prosecutors, her with the van, would have known that Myers felt "tricked," they ought to have reviewed the statute to confirm their position and would have had an "opportunity to review and clarify ... on pain of sanctions, and then, as Pope argues, conceded the with Ms. Myers." (Doc. #127, pp. 10-11). Pope claims to have point (Doc. #127, p.9). As discussed above, the Attorney been specifically blind-sided by Myers' testimony that she felt General's Office made precisely such a concession on appeal. Attorney Streano had "tricked" her. Myers testified both parties Instead, at the time of trial, Attorney Geist represented to the tricked her. Attorney Streano initiated this line of questioning. Court that the issue had been thoroughly reviewed and - as Pope - Q. (Attorney Streano:) And you were upset when you were accurately notes - thereby made "a complete misstatement of the subpoenaed to testifY, is that right? law." Nonetheless, every professional is capable of making a - A. (Susan Myers:) Yes. mistake, even an irrational one. Of key importance, when - Q. And you felt like they tricked you? determining whether to impose a sanction on such irrational - A. Yes. I thought you tricked me too. behavior, is whether the irrational mistake was an aberrant lapse - (TR 336). not likely to recur or rooted in factors that make recurrence - Pope, without citing the specific portion of the trial transcript, likely without the imposition of sanctions. also points to Myers' testimony regarding previous rib fractures - In the case at bar, the Court is troubled that these experienced "which left the inference to the jury that Pope caused these prosecutors continue to argue - even after being listed as co- injuries .. .. " (Doc.# 127 p. 12) The Court's review of the counsel on the appeal- (1) that their office held a "reasonable, transcript shows a potential "ribs" reference to have been raised but mistaken" understanding of the law (Doc. #130, p.5) and (2) during the State's direct examination: that their office "was under no obligation to provide the video- - Q. (Attorney Geist): And do you remember going to the recording - or even inform the Defendant it existed - until it was hospital in September oflast year? requested the second day of trial." (Doc. #130, p.l2). - A. (Susan Myers): Yes. - These positions are not reasonable, particularly in light ofthe - Q. Was that on September the 12th, 2013? plain language of both § 46-15- 322(l)(a), MCA and Pope.5 - A. I think so. Therefore, the Court has no evidence that the Ravalli County - Q. Okay. And do you remember what hospital you were at? Attorney's Office has recognized its error, taken a rigorous look - A. St. Pat's. at the cause of that error, and incorporated Pope - Q. Okay. That's in Missoula? - [FOOTNOTE 5] In support of the position that the State had no - A. Yes. obligation to disclose even the existence of the Prosecution - Q. Do you remember what your injuries were? Interview, the State cites City of Missoula v. Lesko, 2003 MT - A. My ribs. 177, 316 Mont. 401, 73 P.3d 166. (Doc. #130, p.11). The State's - Q. You had a fractured rib? premise for this proposition - based upon Lesko - is Pope never - A. Yes. filed a formal generic discovery request at or before the omnibus - Q. Had you hurt your ribs previously? hearing. This argument is not reasonable. Here, the State and - A. Yes. Pope fully exchanged discoverable information through the first - Q. Okay. Had that injury healed? day of trial. The State filed numerous State's Notice of - A. Yes. Compliance with Discovery (Docs. # I 5, 28, 34, 42, 54, 73, 75, - (TR 318). 84, 86) in this cause prior to its acquisition of the Prosecution - The State counters that Pope had notice of the material facts that Interview; these notices explicitly recognized the State's would have impacted Myers' cross-examination and therefore the continuing obligation to disclose. Pope reiterated that continuing State did not cause Pope surprise. obligation. Pope, ¶21. Moreover, Lesko is wholly inapplicable - The Court agrees with the State that Pope had knowledge of here because it merely stands for the proposition that a criminal sufficient facts to effectively cross examine Myers. Attorney defense attorney's failure to exercise the right to examine the Streano knew the contents of the September 26, 2013 phone call prosecutor's files: in which Myers stated that Pope was "going straight at me ... " - [Footnote 5] "cannot form a basis to support [the The State had characterized the Prosecution Interview as non- defendant's] contentions that the State willfully suppressed exculpatory; therefore, Attorney Streano knew the Prosecution evidence or refused to abide by the trial court's discovery Interview was not consistent with her own recorded interviews

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 27 with Myers. Attorney Streano knew Myers was upset at being goals of ascertaining the truth, preventing surprise, and the subpoenaed for trial and knew that Attorney Streano had orderly progress of criminal proceedings. subpoenaed her. Andrea Streano knew that her own recorded - The other listed, but nonexclusive, sanctions in§ 46-15-329, interviews with Myers occurred when Pope, who had a MCA are not appropriate because the time for their imposition documented history of alleged domestic violence incidents passed with the conclusion of the trial court proceedings. involving Myers, had violated a court order by being in recent Therefore, the Court. must explore other sanctions possibilities, and prolonged contact with Myers. Attorney Streano knew that such Court-directed monitoring or a financial sanction. If the Myers was emotional. Andrea Streano knew that Myers had appropriate sanction contains a fmancial component, the Court formed a new romantic attachment. Moreover, Attorney Streano additionally considers the financial resources of the Ravalli had spoken with Myers the morning of the trial. Attorney Geist County Attorney's Office. The sanctioned party has the burden to had alerted Attorney Streano to the need to involve the Court to show financial inability to pay. Gaskell v. Weir, 10 F.3d 626, further interview Myers around 12:30 p.m. on the first day of 629, (9'" Cir. 1993). Here, other than a mistrial, Pope has not trial and Attorney Streano did not request the Court's assistance. proposed that the Court consider any sanction in particular. - With respect to Myers' testimony that she felt tricked by the - With respect to Court-directed monitoring, the Court has State's subpoena, Attorney Streano introduced the topic, knowing considered whether it might require the Ravalli County Attorney Myers was anxious about being subpoenaed to testify and that to review all pending criminal files and certify to the Court in Attorney Streano had also subpoenaed her. Myers' statement each case that the Ravalli County Attorney's Office is in full about her feeling "tricked" by both camps was predictable. The compliance with Pope in each case. However, the Court is not statement was also insignificant, given both (1) the unrefuted in the best position to assess the quality of any such review evidence that Pope had assaulted Myers with the van, causing because of its limited role in overseeing the criminal discovery her injury and (2) Pope's defense strategy of highlighting Myers' process. Therefore, the Court will leave it to defense counsel in emotional instability. those cases to raise any issues under Pope before the Court. - Similarly, the Court finds no inference adverse to Pope in the - Defense counsel vigilance and action, however, is not a sufficient "ribs" reference. Pope received adequate medical records remedy where the State continues to insist that its mistake in disclosure prior to trial. Pope could have used these records to interpreting and representing the contents of § 46-18-322, MCA impeach Myers' testimony. Pope could have also used these was "reasonable" and now argues that it did not have a records to resolve any confusion that existed with respect to her continuing duty to disclose that it had interviewed Myers. The tenth rib and some earlier, other, now-healed rib injury. State's unreasonable, mistaken belief negatively affected the - The Court agrees with Pope that Attorney Streano may have administration of the criminal justice system. The State's current changed the tone of Myers' cross examination if the State had view of its continuing duty to disclose could prevent defense provided the Prosecution Interview on the first day of trial. Pope counsel from being able to assess whether the State is currently may have more emphatically highlighted Myers' inconsistent committing other discovery abuses. stories. Nonetheless, the jury had compelling independent - Therefore, the Court considers financial sanctions. Here, the evidence that Pope had engineered these inconsistencies. Ravalli County Attorney's Office has made no showing of an Moreover, the State could have, on re-direct, highlighted the inability to pay. The Ravalli County Attorney's Office appears to influences Pope exerted to cause Myers to create these be in a position to pay any financial sanction that accounts for conflicting stories. Therefore, the Court concludes that the State's the costs the State's discovery abuse has imposed upon the discovery abuse did not prejudice Pope's crossexamination of justice system in this case. The Court accepts that the credibility Myers. and professionalism of the Ravalli County Attorney's Office, and ! B.4.b. Character for Truthfulness of the attorneys in the office, has, at least in the past, run at an - Pope claims that if the State had timely provided the Prosecution overall exceedingly high level. Therefore, an appropriate financial Interview, he could have acquired other witnesses to challenge sanction should alert the Ravalli County Attorney's Office of the Myers' character for truthfulness· in particular Myers' mother. imminent need to alter its current practice course, while (Doc. #127, p.l3). As the State points out, Myers herself underlining the costs that the Ravalli County Attorney's Office admitted her untruthfulness. has imposed on others. The State's discovery abuse has imposed - Pope points to no specific "untruthfulness" testimony other costs on this Court, the Montana Supreme Court, and OPD. In witnesses could have provided. Pope's assertion that he could view of the Court's own error, however, the Court will sanction have called Myers' mother is questionable. The Court is the Ravalli County Attorney's Office only for the amount unpersuaded that Pope could have called Myers' mother or that necessary to financially reimburse OPD for the time and effort her testimony would have been made a material difference in the expended between the filing of Pope's Notice of Appeal (See outcome ofthe trial. In February 2014, Myers' mother had Doc.# 112) on November 18, 2014 and the issuance of this informed law enforcement that Pope violated the no contact and Sanction Order on Remand. OPD should file an affidavit of the no alcohol conditions of his release. Even if Myers' mother financial reimbursement amount claimed. 6 The Court's purpose testified with respect to Myers' already obvious untruthful here is not to reward or enrich OPD, but to cause the Ravalli behavior, she could have been subject to cross-examination about County Attorney's Office to modifY its behavior by having to whether Myers' current statements were consistent with Myers' bear the most predictable costs of its unreasonable mistake. It is mother's February 2014 reports to law enforcement. Therefore, just to provide OPD with the financial benefit of this sanction the Court concludes that the State's failure to provide the because the Court's order will require OPD to accurately Prosecution Interview did not prejudice Pope in the acquisition undertake additional tasks to vindicate the system's interest in a of additional witnesses. functioning criminal discovery process. ! B.4.c. The Trial Outcome - The Court must also consider whether a financial sanction, such - As discussed above, the State had a compelling case against as the State's payment ofthc amounts in Condition 13 .h in the Pope for assault without Myers' testimony and that strong case Judgment (Doc. # 1 07), would be just under the circumstances. did not depend upon the jury determining that Myers was a In Pope, the Montana Supreme Court declined to consider an truthful witness. Moreover, the jury "rejected the most serious issue Pope had appealed with respect to Condition 13.h, pending charge against Pope, attempted deliberate homicide." See Pope, this Court's determination of an appropriate sanction on remand. '1!35 (Rice, J., dissenting, joined by McGrath, J. and Baker, J.). Pope,¶ 29. Condition 13 .h states that Pope pay the following: Therefore, the State's failure to produce the Prosecution Interview - h. The Defendant shall pay costs of legal fees and expenses was harmless in that it did not affect the outcome of the trial to defined in §25-10-201, MCA, plus costs of jury service, Pope's detriment. prosecution, and pretrial, probation, or community service ! C. THE APPROPRIATE SANCTION supervision or $100 per felony case or $50 per misdemeanor - Although the State's failure to disclose did not prejudice Pope's case, whichever is greater. (§46-18-232, MCA) case presentation or trial outcome, the Court must still fashion a - Here again, the Court looks at the extent that the State's sanction appropriate in light of the State's willful, irrational, discovery abuse affected Pope, the State's willfulness and reasons, unreasonable, and still unacknowledged discovery abuse. and the circumstances surrounding the discovery abuse. As - A mistrial in this case is inappropriate in light of the lack of discussed above, the State's clear, willful, and unreasonable prejudice to Pope. It is also inappropriate in light of Pope's own mistake caused Pope no actual prejudice. Pope's unclean hands- his illicit contact and control over a State's - [FOOTNOTE 6] The State (Ravalli County Attorney's Office) witness while this case was pending, which contact caused has a right to a reasonableness hearing regarding the amount inconsistencies in her conversations with counsel and her OPD claims. testimony. Pope's violation of the no contact order with Myers, - decision to appeal this matter has brought the error to the a crime victim, served to impede, not facilitate the discovery attention of the Court and provided a mechanism to address the

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 28 State's discovery abuse. That is a clear achievement few people - [5] In support of the position that the State had no experience. However, the purpose of a discovery sanction is not obligation to disclose even the existence of the Prosecution to individually benefit its proponent. Rather, consistent with the Interview, the State cites City of Missoula v. Lesko, 2003 purpose of discovery, the Court seeks to enhance the search for MT 177, 316 Mont. 401, 73 P.3d 166. (Doc. #130, p.11). truth. Accordingly, the Court will not award a financial sanction The State's premise for this proposition - based upon Lesko - in Pope's favor where he engineered inconsistencies in a is Pope never filed a formal generic discovery request at or domestic violence victim's testimony by violating a no contact before the omnibus hearing. This argument is not reasonable. order, leading to a predictable last minute scramble during trial. Here, the State and Pope fully exchanged discoverable To do otherwise would minimize his role in this cause in information through the first day of trial. The State filed subverting the discovery process through his illicit control over numerous State's Notice of Compliance with Discovery the victim. (Docs. # I 5, 28, 34, 42, 54, 73, 75, 84, 86) in this cause ! D. CONCLUSION prior to its acquisition of the Prosecution Interview; these - The State committed a clear, willful, and unreasonable mistake notices explicitly recognized the State's continuing obligation that did not harm Pope's defense. The Montana Supreme Court to disclose. Pope reiterated that continuing obligation. Pope, identified this mistake as discovery abuse and directed this Court ¶21. Moreover, Lesko is wholly inapplicable here because it to impose an appropriate sanction. Because the mistake did not merely stands for the proposition that a criminal defense harm Pope and because Pope bears responsibility for engineering attorney's failure to exercise the right to examine the the inconsistencies in the victim's testimony, a mistrial is not prosecutor's files: appropriate. However, the burden the State imposed on the - "cannot form a basis to support [the defendant's] justice system, when joined with the State's insistence that its contentions that the State willfully suppressed mistake was reasonable and suggestion it did not even need to evidence or refused to abide by the trial court's disclose the Prosecution Interview, make the imposition of a discovery order." financial sanction necessary. Such a financial sanction is - Lesko, ¶11, citing State v. Matt, 245 Mont. 208, 212-13, 799 calculated to cause the State to internalize the Pope decision and P.2d 1085, 1088 (1990). thereby fulfill its discovery obligations by underlining the - [6] The State (Ravalli County Attorney's Office) has a right predictable costs the State's discovery abuse inflicted on the to a reasonableness hearing regarding the amount OPD justice system. The Ravalli County Attorney's Office should be claims. sanctioned to reimburse OPD for their time and effort expended in the Pope appeal and sanctions process. - cc: EMPLOYMENT ! ORDER - NOW THEREFORE, IT IS ORDERED 16. Montana Fourth Judicial District Court, Missoula County - I. The purpose of the discovery statutes is to enhance the search MARK PLAKORUS, Plaintiff, vs. THE UNIVERSITY OF for the truth. In the Pope case, the State willfully failed to MONTANA, a unit of the Montana University System, Defendant. disclose the Prosecution Interview, inflicting costs on the justice Dept. 3. Cause No. DV-19-434. system. This failure warrants imposition of an appropriate ! [Plakorus-] ORDER GRANTING DEFENDANT'S MOTION TO sanction, just under the circumstances. The discovery abuse, DISMISS PURSUANT TO MONT. R. CIV. P. 12(b)(1) however, was harmless to Pope, who the jury found guilty of ! Hon. John W. Larson, District Judge Assault With a Weapon and Driving While License Suspended - Before the Court is Defendant's Motion to Dismiss Pursuant to or Revoked. (Doc. #94). Contrary to the search for truth, Pope Mont. R. Civ. P. 12(b)(1). Plaintiff has also requested an engineered the inconsistencies in the witnesses's testimony. opportunity for hearing on Defendant's Motion to Dismiss on Nonetheless, the State continues to insist that its mistake was October 1, 2019. The Court declines to consider matters outside reasonable, failing to internalize the Montana Supreme Court's of the Amended Complaint at this time, and will not convert the decision in Pope. motion to one for summary judgment pursuant to Mont. R. Civ. - 2. The sanction just under these circumstances is financial. The P. 12(d). As such, the Court does not find hearing necessary at Ravalli County Attorney's Office SHALL PAY the Office of the this time. Public Defender ("OPD") a sum of money which represents ! Background OPD's fees, costs, time and effort expended in this cause from - The Court finds the facts pertinent to this motion as alleged in November 18, 2014 to the date of this Sanction Order on the Amended Complaint as the following. In 2011, Defendant Remand. OPD shall file an affidavit of fees and costs on or University of Montana hired Plaintiff to serve as its Head before July 24, 2017. The Ravalli County Attorney's Office shall Women's Soccer Coach. In or about 2017, one or more players thereafter have fourteen (14) days from the day of filing to complained to Defendant that Plaintiff text messaged too often inform the Court of whether it stipulates to the amount, or and/or too late at night. In response, Defendant's Title IX office disputes the amount and requests a reasonableness hearing. If a and coordinator initiated a "climate survey." The Title IX climate reasonableness hearing is requested, the parties are directed to survey concluded the complaint against Plaintiff lacked merit. As review Plath v. Schonrock, 2003 MT 21, ¶36, 314 Mont. 101, 64 part of its response, Defendant reviewed Plaintiff's cell phone P.3d 984 for the guidelines the Court will consider at the records. In auditing Plaintiff's cell phone records, Defendant hearing. claimed some of the phone numbers Plaintiff sent or received - DATED this 6th day of July, 2017. text messages or phone calls were with people who were - Thorin Geist, Esq; associated with escort services in Las Vegas. On January 29, - William Fulbrigt 2018, Defendant notified Plaintiff it would not renew Plaintiff's - Jennifer Streano, Esq. employment contract that was set to expire approximately five - [1] Attorney Streano disclosed the recorded interview to the months later. State. - On February 2, 2018, the Missoulian published an article entitled - [2] Attorney Streano disclosed this second recorded interview "UM women's success coach fired after text to Vegas escort in the State. services surface." Additional articles published locally and - [3] The State provided the Ravalli County Sheriff's Office nationally included information from Plaintiff's personnel file and with a subpoena for Myers on May 22, 2014; however, when concerning his exit from UM's employment, including copies of Deputy Wofford attempted service on May 27, 2014, the Plaintiff's phone records to the media. Plaintiff eventually address was vacant. The subpoena was returned unserved. obtained employment in Idaho and his new employment is not (Doc. # 68). in his preferred career. On April 29, 2019, Plaintiff filed a - [4] This Court certainly bears independent responsibility for Complaint, alleging three counts: (1) violation of privacy failing to carefully examine and analyze the plain wording in pursuant to Montana Constitution Article II, Section 10, (2) 46-15-322(l)(a) and 46-15-327, MCA. The Court read the defamation, and (3) breach of contract. On August 7, 2019, plain language of § 46-15-322(l)(b), MCA regarding Plaintiff filed an Amended Complaint alleging the following defendants' statements aloud in open Court and then asked counts: (1) violation of Montana Constitution Article II, Section the parties if there was similar language about statements for 10, (2) defamation, (3) tortious interference, (4) negligence, and witnesses. (TR 308). Attorney Geist responded incorrectly (5) invasion of privacy. Defendant contends that the Amended that there was no such language about statements regarding Complaint should be dismissed because Plaintiff did not exhaust witnesses. (TR 309). Attorney Streano did not clarify that § his grievance remedy as required by Mont. Code Ann. § 18-1- 46-15-322(1)(a), MCA does in fact contain similar plain 402, and the statute of limitations ran before he filed suit. In language regarding witness statements. reply briefing, Defendant argues that the Amended Complaint

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 29 should also be dismissed under the alternative basis of Mont. R. wrongdoing and Defendant simply elected not to award him any Civ. P. 12(b)(6). further contracts. Plaintiff argues that Defendant's acts would ! Standards have consisted of torts regardless of whether they were - Mont. R. Civ. P. 12(b)(1) requires the Court to dismiss a committed against an employee or a non-employee member of complaint where it lacks subject matter jurisdiction over the the public. issues therein. The Court may consider facts outside the - Mont. Code Ann.§ 18-1-402(2) provides: pleadings when reviewing a jurisdictional motion to dismiss - Whenever any contracting agency of the state of Montana under this rule. Harrington v. Energy West Inc., 2015 MT 233, provides a procedure for the settlement of any question or 1J 9, 380 Mont. 298, 356 P.3d 441. Mont. R. Civ. P. 12(b)(6) dispute arising between the contractor and the agency, the requires a complaint be dismissed where a plaintiff has failed "to contractor, before proceeding to bring an action in court state a claim upon which relief can be granted." Granting the under the provisions of this part, shall resort to the procedure motion is required when "the plaintiff would not be entitled to within the time specified in the contract or, if a time is not relief based on any set of facts that could be proven to support specified, within 90 days after the question or dispute has the claim." Plouffe v. State, 2003 MT 62, 1J8, 314 Mont. 413, arisen, provided: (1) in a case in which a settlement 66 P.3d 316. In considering the motion, all facts pled in the procedure is provided by the contracting agency, all actions complaint must be taken in the light most favorable to the authorized under this section must be commenced within 1 plaintiff. Id. year after a final decision has been rendered pursuant to the ! Discussion settlement procedure; and (2) in a case in which a settlement - Defendant argues that Plaintiff's Amended Complaint should be procedure is not provided by the contracting agency, the dismissed in its entirety with prejudice, since this Court is action must be commenced by the contractor within 1 year without jurisdiction to consider it. Defendant contends that Mont. after the cause of action has arisen. Code Ann. § 18-1-402 requires that before any filing in district - The Court must "look to the gravamen of the action rather than court, procedures pursuant to the contract must be followed and relying on the label given to the claim by the plaintiff' to precludes the cause of action where a party fails first to follow determine whether it sounds in tort or contract. N. Mont. Hosp. settlement procedures as required by the contract. Defendant v. Knight, 248 Mont. ¶ 314, 811 P.2d 1276 (1991). The Montana argues that even ignoring the dispute resolution procedures, Supreme Court has acknowledged the sometimes there is a thin Plaintiff failed to file his Complaint within the applicable one- distinction drawn between whether an action is grounded in tort year statute of limitations period for contract actions against the or a contract. "Generally, the test of distinction seems to be that State. Defendant contends that Plaintiff's entire Amended if the claim is based on a breach of specific terms of the contract Complaint is premised on the fact that employment information without any reference to the legal duties implied by law upon the protected by his employment contract, which sets forth the terms relationship created thereby, the action is in contract; whereas, if and conditions of his employment, was published. As such, there is a contract for services which places the parties in such Defendant's contend that Plaintiff's suit is governed by his relation to each other that in an attempt to perform the promised employment contract. service, a duty imposed by law as a result of the contractual - As an initial matter, Plaintiff claims that grievance exhaustion is relationship is breached, then the gravamen of the action is the an affirmative defense, not a matter of subject matter breach of the legal duty rather than a breach of the contract, and jurisdictional prerequisite. Plaintiff requests the Court deny so is a tort." Billings Clinic v. Peat Marwick Main & Co., 244 Defendant's motion to dismiss and not consider Defendant's Mont. 324, ¶ 338, 797 P.2d 899 (1990). attachments to its motion or, if the Court is inclined to consider - In Thiel v. Taurus Drilling Ltd. (1985), 218 Mont. 201, 710 P.2d them, covert the motion to dismiss into a motion for summary 33, the Montana Supreme Court held that under certain judgment and delay its consideration to allow for Plaintiff to circumstances, potential liability in tort may coexist with liability engage in discovery. Plaintiff argues that Defendant seeks to in contract, when the facts warrant either form of action. The characterize Plaintiff's tort and constitutional claims raised in his general rule applied to situations falling within the twilight zone first Amended Complaint as public contractor claims against the of contract and tort law is that doubt must be resolved in favor State; however, Plaintiff contends he is not asserting a breach of of an action based upon contract. Id. at 210. Separate tort contract claim. Plaintiff contends that when facts warrant either liability depends on whether the breaching party violated a legal a tort or contract claim, an injured party has the right to elect duty that would exist in the absence of a contract. Boise Cascade which form of action he will pursue. Corp. Air v. Edwards Jet Corp., 183 Mont. at 392, 600 P.2d at 1813-82 (citing Battista v. Ctr., 2008 MT 283, ¶ 49, 345 Mont. 336, 190 P.3d 1111 Lebanon Trotting Assn., 538 F.2d 111 (6th Cir. 1976)). (quotation omitted). Plaintiff argues that whether or not - Plaintiff's Amended Complaint sets forth five counts. Count I of Defendant's conduct consisted of a breach of contract subject to the Plaintiff's Amended Complaint asserts that his right to UM's grievance procedures for breach of the employment privacy was violated under Montana Constitution Article II, agreement, Plaintiff enjoys a right to elect to pursue other causes Section 10, through the publication of his employment of action for the same set of wrongful acts. See Dewey v. information. See Plaintiff's First Amended Complaint, ¶ 38. Stringer, 2014 0MT 136, 8, 375 Mont. 176, 325 P.3d 1236. For Count II asserts he was defamed through disclosure of phone example, Plaintiff argues he enjoys a right to privacy independent records to the media which allegedly showed he used University of any contract he had with Defendant. See Mont. Const. Art. II, of Montana resources to seek escorts in Las Vegas, and the § 10. Plaintiff also argues he enjoys the benefit of his duty of publishing was done "with the intent to besmirch Plakorus's care independent of any contract he ever had with Defendant. character and destroy his career." Id., ¶ 39-48. Plaintiff's Mont. Code Ann. § 28-1-201. Plaintiff argues that whether or Amended Complaint Count III asserts tortious interference, not the facts at issue would sustain contract claims is irrelevant, causing damage to Plaintiff's ability to obtain employment in his since Plaintiff has elected to pursue solely tort and constitutional chosen field. Id., ¶¶ 49-53. Plaintiff's Amended Complaint Count claims. Plaintiff argues that the causes of action he complains of IV asserts negligence, alleging Defendant breached its duty of would not have been subject to Defendant's grievance procedure ordinary care in handling and maintaining confidential, private even if he were a current employee because they do not relate to information about Plaintiff. /d., ¶¶ 54-58. Plaintiff's Amended the terms and conditions of his employment contract, but to Complaint V asserts invasion of privacy because the matters Defendant's unauthorized publication of unverified, scandalizing publicized were of a kind that: (a) would be highly offensive to information to the public. See Klein v. State, ex. Rel. Dept. of a reasonable person; and (b) were not of legitimate concern to Corrections, 2008 MT 189, ¶ 30-31, 343 Mont. 520, 185 P.3d the public. Id., ¶¶ 59-63. 986 (quotation excluded). Plaintiff contends that where tort - Plaintiff acknowledges that his work was "committed to claims are not "rooted" in the contractual relationship between complying with UM policies and procedures." Amended the parties, the employer cannot have "carte blanche to treat [the Complaint, ¶ 10. The gravamen of Plaintiff's Amended Complaint plaintiff] in any manner it sees fit, and then require her to submit consist of the terms and conditions of his employment, including any and all grievances to arbitration simply because she is an the documents within Plaintiff's personnel file, investigation into employee." See Klein v. State, ex. Rel. Dept. of Corrections, Plaintiff's work (Complaint, ¶¶ 12-16), and investigation into 2008 MT 189, ¶¶ 30-31, 343 Mont. 520, 185 P.3d 986. Plaintiff Plaintiff's University-issued cell phone (Complaint, ¶¶ 17 -23). contends that the torts Defendant committed are not "rooted" in The auditing of Plaintiff's University supplied cell phone and the the contract, do not arise from it, and are independent of public dissemination of information from Plaintiff's cell phone Plaintiff's status as a former employee. Plaintiff further argues use and his employment status/history are the essence of that Defendant did not invoke any term of its contract or allege Plaintiffs' claims and directly relate to Plaintiff's contractual Plaintiff violated the contract when it defamed him. Plaintiff relationship with Defendant. contends that he was not disciplined by Defendant for any - As such, the Court finds that in regard to Count I, the University

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 30 owed no specific duty to Plaintiff with regard to Plaintiff's agreements (hereinafter, the "Operating Agreements"). Pls.'s privacy except based upon a duty set forth in Plaintiff's contract Compl, ¶ 25, Oct. 29, 2009; Defs. 'sAm. Ans., ¶ 25, Nov. 22, of employment. As to Count II, Plaintiff's allegations arise from 2017. The Operating Agreements were adopted June 22, 1999, contractual obligations governing his employment information. As by the Blixseth Group, Inc. n/k/a BLX Group, Inc. ("BGI"), the to Count III, Count IV, and Count V, the facts giving rise to the initial sole member and appointed manager of the Yellowstone purported mishandling of employment information is pursuant to LLCs. Pls.'s Compl., ¶ 27; Defs.'s Am. Ans., ¶ 27; Defs.'s Exh. the terms of Plaintiff's contract with Defendant. The Court finds 1, at 3, Defs.'s 2nd Mot. Part. Summ. J., Mar. 6, 2018. The that Plaintiff alleges no duty separate from duties under his Operating Agreements were later amended on August 30, 1999. employment contract, and the Plaintiff's Amended Complaint Pls.'s Compl., ¶ 26; Defs.'s Am. Ans., ¶ 26. The amendment to sounds in contract. the Operating Agreements created two classes of members of the - The publications occurred on February 1, 2018. Amended Yellowstone LLCs: Class A Members and Class B Members. Complaint, ¶ 28. The Complaint in this matter was filed on April Pls.'s Compl., ¶¶ 32-33; Defs.'s Am. Ans., ¶¶ 32-33; Defs.'s Exh. 29, 2019. The filing date is more than one year after the alleged 2, at I, Defs.'s 2nd Mot. Part. Summ. J. The Plaintiffs and the breach occurred and regardless of Plaintiff's failure to follow any Defendants were Class B Members. Pls.'s Compl., ¶¶ 22-23; grievance procedure, Plaintiff failed to timely file his Complaint Defs.'s Am. Ans. ¶¶ 22_:_23; Defs.'s Exh. 3---:{J, Defs.'s 2"d under Mont. Code Ann. § 18-1-402(2). Mot. Part. Summ. J. Timothy Blixseth, a BGI member and - IT IS HEREBY ORDERED that Defendant's Motion to Dismiss founder of the Yellowstone Club resort community located in is GRANTED. Madison County, Montana, was the sole Class A Member. Pls.'s - DATED this 11th day of December, 2019. Compl., ¶ 27; Defs.'s Am. Ans., ¶ 27; Defs.'s Exh. 3, at I, Defs.'s - John W. LARSON, District Judge 2nd Mot. Part. Summ. J. - Copies of the foregoing were sent to: Quentin M. Rhoades, Esq. - On October 29, 2009, the Plaintiffs commenced this action Kristin Bannigan, Esg. Rhoades, Siefert & Erickson 430 Ryman against the Defendants alleging several claims related to the Missoula, MT 59802 Operating Agreements, including breach of contract, violation of - Attorneys for Plaintiff statutory duties and common law breach of fiduciary duty, and - Quinlan L. O'Connor, Esq. Risk Management & Tort Defense wrongful distributions. The Plaintiffs' Complaint alleges the Division P.O. Box 200124 Helena, MT 59620-0124 Defendants received improper distributions as a result of the - Attorney for Defendant settlement of an earlier lawsuit, "LeMond 1." See LeMond, et al. v. Blixseth Group, Inc., et al., Case No. DV-29-2006-26 (Mont. 5th Jud. Dist. Ct., May 31, 2006). Pls.'s Compl., ¶¶ 41- CONTRACTS 53. The Defendants initiated LeMond 1 in 2006 against BGI, BUSINESS LITIGATION Yellowstone Club World, LLC, and Timothy Blixseth and his wife, Edra. The Yellowstone LLCs were also involved in federal 17. Montana Fifth Judicial District Court, Madison County bankruptcy litigation in which the Plaintiffs filed an adversary MICHAEL SNOW, GREG C. BRANCH FAMILY LIMITED proceeding in March 2009. See Case No. 08-61570-11-RBK; PARTNERSHIP, A.C. and LINDA MARKKULA (Trustees of the Adversary No. 09-00031-RBK, Defs.'s Exh. 3, 1st Mot. Part. Arlin Trust), SPANO YELLOWSTONE HOLDINGS LIMITED Summ. J., Jan. 1, 2018. PARTNERSHIP, ROBERT P. and KATHARINE M. WATSON - In November 2012, the Defendants moved to dismiss the and BANKERS FINANCIAL CORPORATION, Plaintiffs, vs. Plaintiffs' complaint. The Court considered the Defendants' GREG LeMOND, JORGE V. JASSON, SACIA B. MORRIS (as argument that the Plaintiffs lack standing to make claims for Trustee of the Morris Joint Revocable Trust of 1998 dated wrongful distribution. See Defs. 's Br. Supp. Mot. Dism., at 3. December 29, 1998), SACIA B. MORRIS (in her individual However, the Court determined such an argument was more capacity), and SACIA ENTERPRISES, INC., a Wisconsin appropriate for a motion for summary judgment, and denied the corporation, Defendants. Cause No. DV-29-2009-96. Defendants' motion to dismiss in part. See Ord. Mot. Dismiss, ! [Snow-] Order On Motions For Summary Judgment Aug. 6, 2013. ! Hon. Luke Berger, District Judge - On August 20, 2013, the Defendants answered the complaint and - This matter comes before the Court on Defendants Greg asserted various counterclaims which were later amended with LeMond, Jorge V. Jasson, David L. Morris, Sacia B. Morris, and leave of Court. Defs.'s Am. Ans., at 19. The parties stipulated to Sacia Enterprises, Inc.'s (collectively, the "Defendants") four a stay of litigation on September 3, 2014 pending the outcome separately filed motions for partial summary judgment and of the bankruptcy case. The stay was vacated in August 2017 on Plaintiffs Michael Snow, Greg C. Branch Family Limited Plaintiffs' unopposed motion. These motions followed. Partnership, A.C. and Linda Markkula (Trustees of the Arlin ! DISCUSSION Trust), Spano Yellowstone Holdings Limited Partnership, Robert - Summary judgment is properly granted "if the pleadings, ihe P. and Katharine M. Watson, and Bankers Financial discovery and disclosure materials on file, and any affidavits Corporation's (collectively, the "Plaintiffs") Motion for Summary show that there is no genuine issue as to any material fact and Judgment on Defendants' Counterclaims. The Defendants' first that the movant is entitled to judgment as a matter oflaw." Mont. motion was filed January 1, 2018. The Defendants' second and R. Civ. P. 56(c)(3). Whether a fact is "material" is determined by third motions were filed March 6, 2018. The Defendants' fourth the elements of the substantive cause of action or defenses at motion was filed May 25,2018. The Plaintiffs' motion was filed issue. Br~adwater Dev., L.L.C. v. Nelson, 2009 MT 317, ¶·5, May 25, 2018. 352 Mont. 401,408, 219 P.3d492, 499 (citing Arnold v. - Counsel of record for the parties appeared for a hearing on the Yellowstone Mountain Club, LLC, 2004 MT 284, ¶ 15, 323 motions on October 15, 2018. The Plaintiffs are represented by Mont. 295,298, 100 P.3d 137, 140; Anderson v. Liberty Lobby, Ronald A. Bender and Sean M. Morris of Worden Thane, P.C. Inc., 477 U.S. 242,248 (1986)). "A dispute is genuine if the in Missoula, Montana, and Joseph W. Anthony and Mary L. evidence is such that a reasonable fact-finder could return a Knoblauch of the firm Anthon Ostlund Baer & Louwagie P.A. verdict for the nonmoving party." Broadwater, ¶ 15 (citing in Minneapolis, Minnesota. The Defendants are represented by Anderson, 477 U.S. at 248). Robert K. Baldwin and Trent M. Gardner of Goetz, Baldwin & - "The purpose of summary judgment is to dispose of those actions Geddes, P.C. in Bozeman, Montana. which do not raise genuine issues of material fact and to - At the hearing and again in a written stipulation filed with the eliminate the expense and burden of unnecessary trials." Hajenga Court, both parties represented they had reached a stipulation on v. Schwein, 2007 MT 80, ¶ 11, 336 Mont. 507, 510, 155 P.3d the Defendants' Fourth Motion for Partial Summary Judgment on 1241, 1243. The Montana Supreme Court has repeatedly Counts 3 and 4 of the Complaint (Breach of Statutory Duties). recognized summary judgment as an "extreme remedy," and The Plaintiffs requested dismissal of Counts 3 and 4 of the should thus "never be substituted for a trial if a material factual Complaint with prejudice and a denial of the Defendants' Fourth controversy exists." Hajenga, ¶ 11 (quoting Lee v. USAA Cas. Motion for Partial Summary Judgment as moot. See Min. Entr., Ins. Co., 2001 MT 59, ¶¶ 24, 25, 304 Mont. 356, 362,22 P.3d Oct. 15, 2018; Stip. Dism., Oct. 29, 2018. The remaining 631, 636). See also Sands v. Town of West Yellowstone, 2007 motions, having been fully briefed and heard by the Court, are MT 110, ¶16, 337 Mont. 209, 213, 158 P.2d 432, 435. now ready for decision. The Court addresses each motion in turn. Therefore, the party seeking summary judgment has the initial ! BACKGROUND burden of establishing the absence of genuine issues of material - This motion arises from litigation involving the members of the fact and entitlement to judgment as a matter of law. Gonzales v. Yellowstone Mountain Club, LLC and Yellowstone Development Walchuk, 2002 MT 262, ¶ 9, 312 Mont. 240, 243, 59 P.3d 377, Company, LLC (hereinafter the "Yellowstone LLCs"). The 379 (2002) (citing Bruner v. Yellowstone County, 272 Mont. Yellowstone LLCs were governed by nearly identical operating 261, 264, 900 P.2d 901, 903 (1995)). Once this burden is met,

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 31 the nonmoving party "must present material and substantial distribution in violation of . .. the operating agreement . . . evidence, rather than mere conclusory or speculative statements, is personally liable to the limited liability company, but not to raise a genuine·issue of material fact." Id. to other persons, for the amount of the distribution that ! The Defendants' Motion for Partial Summary Judgment on Counts exceeds what could have been distributed without violating One and Five of the Complaint (Wrongful Distributions) 35-8-604 or the articles of organization or the operating - The Defendants' first motion for summary judgment concerns agreement if it is established that the member or manager did Counts One and Five of the Plaintiffs' Complaint. The Plaintiffs not perform the member's or manager's duties in compliance base Counts 1 and 5 of their Complaint on Article 7 of the with 35-8-310. Operating Agreement and Mont. Code Ann. §§ 35-8-606 and - (2) A member of a manager-who knew a distribution was 605, alleging the Defendants' settlement money from LeMond I made in violation of. .. the operating agreement is personally constitutes distributions to which Plaintiffs are entitled to a pro liable to the company, but only to the extent that the rata share. Pls.'s Compl., ¶¶ 54-59, 69-71. The Defendants argue distribution received by that member exceeded the amount the Plaintiffs lack standing to pursue both claims. Defs.'s Br. that could have properly been paid to that member under Resp. 1st Mot. Part. Summ. J., at 7. [Mont. Code Ann. §]35-8-604. - In general, "standing to sue refers to a party's right to make a - (emphasis added). legal claim or seek judicial enforcement of a duty or right." In - Similarly, Mont. Code Ann. § 35-8-606 provides a member re B. F., 2004 MT 61, ¶ 15, 320 Mont. 261, 265, 87 P.3d 427, entitled to receive a distribution is granted "the status of and is 430 (quoting Black's Law Dictionary (7th Ed. 1999)). Standing entitled to all remedies available to a creditor of the limited is a threshold justiciability requirement. Ballas v. Missoula City liability company with respect to the distribution." (emphasis Ed. of Adjustment, 2007 MT 299, ¶ 14, 340 Mont. 56, 59, 172 added). A "distribution" is defined by the LLC Act as a "transfer P.3d 1232, 1235 (citing Bowen v. McDonald, 276 Mont. 193, of money, property, or other benefit to a member in that 201, 915 P.2d 201, 206 (1996)). Without it, a court cannot grant member's capacity as a member of a limited liability" company relief because a justiciable controversy does not exist. Id. (citing or to a transferee of a member's distributional interest." Mont. Powder River County v. State, 2002 MT 259, ¶ 101, 312 Mont. Code Ann. § 35-8-102(9). A "distributional interest" is further 198, 229, 60 P.3d 357, 379). Two criteria must be met to defined as "all of a member's interest in the distributions of a establish standing: "(1) the complaining party must clearly allege limited liability company." Mont. Code Ann.§ 35-8-102(10). past, present, or threatened injury to a property or civil right; and - Both Mont. Code Ann. §§ 35-8-605 and 606 clearly prescribe (2) the alleged injury must be distinguishable from the injury to liability for distributions made in violation of an operating the public generally, but the injury need not be exclusive to the agreement in favor of the company itself, but not liability to complaining party." G1yczan v. State, 283 Mont. 433, 442--43, other members. Although the Plaintiffs base their wrongful 942 P.2d 112, 118 (1997) (citing Helena Parents v. Lewis & distribution claims on Mont. Code Ann. §§ 35-8-605 and 606, Clark Cty., 277 Mont. 367, 371, 922 P.2d 1140, 1142 (1996)). they attempt to circumvent the statutes' plain language by Standing, like other issues of justiciability, is a question of law, employing Mont. Code Ann. § 35-8-410 to argue their claims are Reichert v. State, 2012 MT 111, ¶ 20, 356 Mont. 92, 100, 278 based on their rights under the Operating Agreements. Pls.'s P.3d 455, 462. Mem. Opp., at 12, Jan. 30, 2018. Such an attempt is improper - The Montana Limited Liability Company Act (hereinafter, the under the rules of statutory construction by which this Court is "LLC Act"), adopted in 1993, grants members of an LLC certain bound. statutory rights for which they have standing to pursue. White v. - The rules of statutory construction require the Court construe a Longley, 2010 MT 254, ¶ 34, 358 Mont. 268, 244 P.3d 753, statute "according to its plain meaning and if the language is 760. Specifically, Mont. Code Ann. § 35-8-410 provides an LLC clear and unambiguous then no further interpretation is required." member may pursue an individual claim to enforce the member's In re Estate of Engellant, 2017 MT 100, ¶ 11, 387 Mont. 313, rights under the LLC's operating agreement, the member's rights 316, 400 P.3d 218, 220. When an ambiguity exists, the rules of under the LLC Act, or the rights and interests "arising statutory construction require the court to simply "ascertain and independently of the member's relationship to the company," such declare what is in terms or in substance contained therein, not to as personal injuries or damage to the member's property caused insert what has been omitted or to omit what has been inserted." by another member. See Mont. Code Ann.§ 35-8-410(l)(a)-{c); Mont. Code Ann. § 1-2-101. A court must read and interpret the Official Comment to Mont. Code Ann.§ 35-8-410. The purpose statute as a whole "without isolating specific terms from the of Mont. Code Ann. § 35-8-410 is to allow "members access to context in which they are used by the legislature." Mashek v. the courts to resolve claims against the company and other Dep't of Pub. HHS, 2016 MT 86, ¶ 10, 383 Mont. 168, 171, members, leaving broad judicial discretion to fashion appropriate 369 P.3d 348, 350 (citing MC, Inc. v. Cascade City-County Bd. legal remedies." Official Comment to Mont. Code Ann.§ 35-8- of Health, 2015 MT 52, ¶ 14, 378 Mont. 267, 270, 343 P.3d 410. A member is defined by the LLC Act as a "person who has 1208, 1211). been admitted to membership in a limited liability company" in - Count 5 is easily disposed of under these principles. The plain accordance with Mont. Code Ann. § 35-8-703, and "who has not language of Mont. Code Ann. § 35-8-605, which Count 5 is dissociated from the limited liability company." Mont. Code Ann. based, provides a member or manager who votes for or assents § 35-8-1 02(21 ). An LLC member is distinct from the LLC to a wrongful distribution or knew a wrongful distribution was itself, thus enjoying a "corporate-styled liability shield" from made in violation of the operating agreement is "personally claims made against the LLC. White, ¶ 34 (citing Joerger v. liable to the limited liability company." Mont. Code Ann. § 35-8- Reiner, 2005 MT !55, ¶ 20, 327 Mont. 424, 429, 114 P.3d 1028, 605(1), (2) (emphasis added). Thus, a member has no individual 1032). remedy for a wrongful distribution under this statute. The only - Here, Count 1 of the Plaintiffs' Complaint alleges breach of circumstance in which Mont. Code Ann. § 35-8-605 provides for contract based on a violation of Article 7 of the Operating such an individual remedy is when a member knowingly receives Agreements, which is titled, "ALLOCATION OF INCOME AND an unlawful distribution, or when the member has already been LOSS, AND PROVISIONS FOR DISTRIBUTION." Ordinarily, found liable for receiving a wrongful distribution and later seeks a claim for breach of contract based on an LLC's operating "contribution" from other members and managers who also voted agreement is authorized under Mont Code Ann. § 35-8-410(1)(a). or assented to the same distribution. Official Comments to Mont. An LLC's operating agreement is specifically defined as an Code Ann. § 35-8-605(1), (2). A member may also later seek "agreement, including amendments, as to the conduct of the "recoupment" from other members who received the wrongful business and affairs of a limited liability company and the distribution, but "only if they accepted payments knowing they relations among the members, managers, and the company that were unlawful." Id. This is not the case here. As such, the is binding upon all of the members." Mont. Code Ann.§ 35-8- Plaintiffs do not have standing to individually pursue a statutory 102(23). An LLC's operating agreement will generally control violation of Mont. Code Ann. § 35-8-605. over the default rules provided by the LLC Act. See Mont. Code - Count 1 of the Plaintiffs' Complaint is also easily disposed of Ann.§ 35-8-109. here. Count I seeks remedies under Mont. Code Ann.§ 35-8-606 - Here, however, the Plaintiffs seek relief for their breach of for a breach of the Operating Agreements' distribution provisions contract claim under Mont. Code Ann. § 35-8-606, one of the of Article 7. However, Mont. Code Ann. § 35-8-606 plainly two statutes that specifically govern wrongful distribution claims. provides a member entitled to receive a distribution is afforded Pls.'s Compl., ¶ 58. The other statute, Mont. Code Ann. § 35-8- "the status of and is entitled to all remedies available to a 605, is the statute in which Plaintiffs base Count 5 of their creditor of the limited liability company with respect to the Complaint. Pls.'s Compl., ¶ 70. distribution." (emphasis added). Nothing in the statute authorizes - Mont. Code Ann. § 35-8-605 provides, in relevant part, a member to recover against another member. Thus, the - (1) a member or manager who votes for or assents to a Plaintiffs have no standing to pursue a claim against the

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 32 Defendants under Mont. Code Ann. § 25-8-606. 59, ¶ 30, 320 Mont. 229, 237, 92 P.3d 1148, 1153; Klawitter v. - The Plaintiffs' contention Mont. Code Ann. § 35-8-410 grants Dettmann, 268 Mont. 275, 281, 886 P.2d 416, 420 (1994)). them standing to pursue both Counts 1 and 5 is uncompelling. While the interpretation of an ambiguous term "involves Mont. Code Ann. § 35-8-410 generally authorizes a member to determining a question of fact regarding the intent of the parties pursue various claims to vindicate that member's individual to the contract," the initial determination of whether the rights, but no substantive rights exist under the statute. Instead, ambiguity exists is a question of law for the court to decide. the right to distributions for which the Plaintiffs seek to recover Krajacich, ¶ 19 (citing King Resources, ¶ 21). is specifically governed by Mont. Code Ann. §§ 35-8-605 and - "An ambiguity exists where the language of a contract, as a 606, both of which preclude an individual member from whole, reasonably is subject to two different interpretations." recovering against another member for wrongful distributions. Wurl v. Polson Sch. Dist. No. 23, 20016 MT 8, ¶ 17, 330 Mont. Accordingly, Mont. Code Ann. § 35-8-410 does not grant the 282, 288, 127 P.3d 436, 442 (citing State ex rel Montana DOT Plaintiffs' standing to pursue their wrongful distribution claims. v. Asbeck, 2003 MT 337, ¶ 18, 318 Mont. 431, 435, 80 P.3d - The Defendants have shown no material factual dispute exists as 1272, 1274; King Resources, ¶ 21). "An ambiguity's existence to Count I and Count 5 of the Plaintiffs' Complaint, and are must be determined on an objective basis." Krajacich, ¶ 19 therefore_entitled to summary judgment as a matter of law on (citing Richards, 1 26). If an ambiguity exists, extrinsic evidence both counts. may be used at trial to allow the trier of fact to determine the ! The Defendants' Second Motion for Partial Summary Judgment re: parties' intent in entering into the contract. Baker Rev. Trust, ¶ Voting Rights (Count 2 Breach of Contract) 55; Carelli v. Hall, 279 Mont. 202, 209, 926 P.2d 756, 761 - The Defendants' second motion for summary judgment concerns (1996) (citing Audit Services, Inc. v. Systad, 252 Mont. 62, 65, Count 2 of the Complaint for Breach of Contract. The Plaintiffs 826 P.2d 549, 551 (1992)). See also Mont. Code Ann. § 1-4- have claimed the Defendants breached the Operating Agreements 102 ("For the proper construction of an instrument, the by transferring their membership interests and obtaining a large circumstances under which it was made, including the situation settlement in LeMond I without the Plaintiffs' consent, a right the of the subject of the instrument and of the parties to it, may also Plaintiffs contend is expressly granted to them by the Operating be shown so that the judge is placed in the position of those Agreements. Pls.'s Resp. Br. to Def.'s 2nd Mot. Part. Summ. J., whose language the judge is to interpret."). Extrinsic evidence is at 2, Mar. 26, 2018. The Defendants counter the plain language not barred by the parol evidence rule when an extrinsic of the Operating Agreements does not allow for such a right. ambiguity exists. Mont. Code. Ann. § 28-2-905(2). Def.'s 2nd Mot. Summ. J., at 2, Mar. 6. 2018. - Extrinsic evidence may be admissible if it is objective, meaning - An LLC's operating agreement is subject to the general principles it is "evidence that can be supplied by disinterested third parties, of contract law. See Mont. Code Ann. § 28-2-101 ("A contract such as custom or usage of the trade." Baker Revoc. Trust, ¶ 53 is an agreement to do or not to do a certain thing."); Mont. Code (quoting Home Ins. Co. v. Chicago and Northwestern Transp. Ann. § 35-8-102(23) ('"Operating agreement' means an Co., 56 F.3d 763,768 (71h Cir. 1995)). Conversely, subjective agreement, including amendments, as to the conduct of the evidence of an ambiguity is "the testimony of the parties business and affairs of a limited liability company and the themselves as to what they believe the contract means, which is relations among the members, managers, and the company that invariably self-serving, inherently difficult to verify, and thus, is binding upon all of the members."). See also Ratliff v. Cochise inadmissible." Id. Mere disagreement between the parties as to Agric. Props., LLC (In re Ratliff), 2010 Bankr. LEXIS 5046, *21 the interpretation of the contract does not automatically create an (B.A.P. 9th Cir. Oct. 13, 2010) (citing 1 Larry E. Ribstein & ambiguity. Krajacich, ¶ 19 (citing Richards, ¶ 26). Robert R. Keatinge, Limited Liability Companies, § 4:16 (2010), - The Defendants assert the Operating Agreements makes no rev'd in part, aff'd in part, 490 Fed. Appx. 896 (9th Cir. 2012) distinction between voting rights and consent rights. Def.'s ("Operating agreements are construed according to the general Second Mot. Part. Sum. J., at 2, Mar. 6, 2018. According to the principles of contract law."). The general principles of contract Defendants, Class A Members are the only members who may law require a court to interpret a contract so as to "give effect to vote, thus Class B Members such as Plaintiffs do not have voting the mutual intention of the parties as it existed at the time of rights and their consent, which has the same effect as voting, was contracting, so far as the same is ascertainable and lawful." not required to transfer their membership interests. Def.'s Second Krajacich v. Great Falls Clinic, LLP, 2012 MT 82, ¶ 13, 364 Mot. Part. Sum. J., at 3-4. Mont. 455, 459, 276 P.3d 922, 926 (citing Corporate Air v. - The Court disagrees. Sections 2.1.1, 3.6.1, and 3.6.2 of the First Edwards Jet Ctr. Mont. Inc., 2008 MT 283, ¶ 30, 345 Mont. Amendment to the Operating Agreement address voting rights. 336, 348, 190 P.3d 1111, 1120). See also Mont. Code Ann. § The clear and unambiguous terms of these sections, considered 28-3-301. Contract interpretation and construction is a question together, create a limited right for Class B Members to consent of law. Id. to certain votes. See Def.'s Exh. 2, Def.'s 2nd Mot. Part. Summ. - With respect to written contracts, the court must apply the J. Section 2.1.1 creates the two classes of company membership language as written, consistent with the parties' intentions. See and defines the general voting rights of each class, stating, in Krajacich, ¶ 13; Mary J. Baker Revocable Trust v. Cenex relevant part, "There shall be two classes of Members in the Harvest St., 2007 MT 159, ¶ 19, 338 Mont. 41, 50, 164 P.3d Company, Class A and Class B. Class A Members shall have 851, 857. See also Mont. Code Ann. § 28-3-303. The court does voting rights; Class B Members shall not, subject to paragraph not have authority to insert or omit provisions of a contract 3.6.2 .... " (emphasis added). The voting requirements for Class where its terms are unambiguous. King Resources, Inc. v. Oliver, A Members is set forth by Section 3.6.1, which provides, "On 2002 MT 301, ¶ 21, 313 Mont. 17, 22, 59 P.3d 1172, 1277. each matter requiring action, approval or consent by the "The whole of a contract is to be taken together so as to give Members, each Class A Member shall be entitled to vote the effect to every part if reasonably practicable, each clause helping Member's Units." This section further provides, "Only Class A to interpret the other." Krajacich, ¶ 13 (citing Richards v. JTL Members may vote, subject to the restrictions set forth in Group, Inc., 2009 MT 173, ¶ 14, 350 Mont. 516, 521, 212 P.3d paragraph 3.6.2..." Def.'s . Exh. 2, at 2, Def.'s 2nd Mot. Part. 264, 269). A court cannot "isolate certain phrases of the Summ. J. (emphasis added). instrument to garner the intent of the parties," but instead must - Section 3.6.2 thus acts as a limitation on Class A Members' "grasp the instrument by its four comers and in light of the entire voting rights. This section states, "Class A Members may not instrument." Id. (citing Rumph v. Dale Edwards, Inc., 183 Mont. vote to decrease the ownership percentage interest of any Class 359, 368, 600 P.2d 163, 168 (1979)). "Particular clauses of a B Member or substantially and materially alter the Class B rights contract are subordinate to its general intent." Id. (quoting Mont. or the business purpose of the Company without a two-thirds Code Ann. § 28-3-307). Any terms inconsistent with the consent of Class B Members." Def.'s Exh. 2, at 2, Def. 's 2nd contract's "general nature" or the parties' "primary intention" must Mot. Part. Summ. J. (emphasis added). The Class A Members' be rejected. Id. (citing Mont. Code Ann. § 28-3-503; Rumph, voting rights are conditioned upon the Class B Members' 183 Mont. at 369). A term of the contract is generally interpreted consent. The plain language of Section 3.6.2 confers upon Class in its "ordinary and popular sense" unless the parties "use the B Members a distinct right to consent to Class A Members' words in a technical sense or unless the parties give a special votes, not generally, but within the specific context of decreasing meaning to them by usage." Dollar Plus Stores, Inc. v R- the Class B Members' ownership percentage interest. Montana Assocs., L.P., 2009 MT 164, ¶ 17, 350 Mont. 476, - The Defendants' construction of the Operating Agreements 479, 209 P.3d 216, 219 (citing Mont. Code Ann. § 28-3-501). essentially ignores the limiting language present in both Section - When a court cannot apply the contract's language as written 2.1.1 and Section 3.6.1. Such a reading renders Section 3.6.2 because of an ambiguity, a factual determination must be made meaningless, which violates the requirement the clauses of as to the parties' intent in entering into the contract. Baker contract must be read together as a whole, each clause being Revoc. Trust, ¶ 21 (citing In re Marriage of Mease, 2004 MT given effect and helping to interpret the other. See Krajacich, ¶

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 33 13 (citing Richards, ¶ 14); Mont. Code Ann. § 28-2-202. acceptance or retention of the benefit under circumstances that - The Court is not convinced the Plaintiffs' consent rights under would render it inequitable for the other to retain the benefit the Operating Agreements are as broad as the Plaintiffs suggest, without compensating the first party for the value of the benefit." however. The Plaintiffs have asserted Sections 8.1 and 9.1 of the Associated Mgmt., ¶ 65 (citing N. Cheyenne Tribe v. Roman Operating Agreements also grant them consent rights with respect Catholic Church ex rel. Great Falls/Billings Dioceses, 2013 MT to the transfer of ownership interests and withdrawal from the 24, ¶¶ 33, 36, 368 Mont. 330, 338-39, 296 P.3d 450, 456-57). Yellowstone LLCs. Pls.'s Resp. Br. Defs.'s 2nd Mot. Part. Summ. Unjust enrichment does not necessarily require proof of a J., at 16; Pls.'s Compl., ¶ 35. This assertion is the basis for wrongful act or conduct on the part of the defendant. Associated Count 2 of the Plaintiffs' complaint for breach of contract. Pls.'s Mgmt., ¶ 65. Compl., ¶¶ 35, 60-----62. Sections 8.1 and 9.1 of the Operating - Recovery under a theory of unjust enrichment is generally only Agreements were not amended or replaced by the First available absent a valid contract. See Ryffel Family P'ship v. Amendment; these provisions originally governed at the time Alpine Country Constr., Inc., 2016 MT 350, ¶ 33, 386 Mont. only one class of membership-and one member--of the 165, 176, 386 P.3d 971, 980. The only exception to this rule is Yellowstone LLCs existed. See Def.'s Exh. 1, 2, Def.'s 2nd Mot. when "a party renders a valuable performance or confers a Part. Summ. J. benefit upon another under a contract that is invalid, voidable, or - Section 3.6, the original provision governing voting when only otherwise ineffective to regulate the parties' obligations." one membership class existed, was replaced by Sections 3.6.1 Associated Mgmt., ¶ 67 (citing Restatement (Third) of Restitution and 3.6.2 of the First Amendment. These provisions created the § 2(2) cmt. c; Robertus v. Candee, 2005 Mont. 403, 407, 670 Class B Members' right to consent to Class A Member votes in P.2d 540, 541-42 (1983); Restatement (Second) of Contracts §§ the event such votes would be passed to decrease Class B 283 cmt. c and 373-77 (1981)). membership interest. The First Amendment is silent, however, on - Although Montana law clearly precludes recovery for both unjust whether the consent rights available to Class B Members under enriclnnent and breach of valid contract, Montana Rule of Civil Sections 3.6.1 and 3.6.2 are also available under Sections 8.1 Procedure 8(d)(3) does permit, as the Plaintiffs assert, a party to and 9.1, which address transfer of ownership interests and plead "as many separate claims 'or defenses as it has, regardless withdrawal from the company. Both Sections 8.1 and 9.1 broadly of consistency." See Ryffel Family P'ship, ¶ 33. However, in refer to "all Members." Section 8.1 states "Each Member agrees Associated Management, the Montana Supreme Court recently not to withdraw from the Company without the consent of all held an unjust enrichment claim could only proceed other Members." Def.'s Exh. 1, at 8, Def.'s 2nd Mot. Part. simultaneously with a breach of contract claim if the contract's Summ. J. (emphasis added). Similarly, Section 9.1 states, in validity is questioned. See Associated Mgmt., ¶ 67. The plaintiff relevant part, "Except as provided in this paragraph, neither in Associated Management had pled anticipatory breach of an record title nor beneficial ownership of an interest, or the right express contract and sought declaratory relief. Id., ¶ 14. The of any Assignee, may be transferred without the prior written defendant answered the complaint and asserted various consent of all Members." Def.'s Exh. 1, at 9, Def.'s 2nd Mot. affirmative defenses and counterclaims, including breach of Part. Summ. J. (emphasis added). contract and unjust enrichment. Id., ¶ 15. The defendant then - Despite the Plaintiffs' assertion the Operating Agreements always moved for summary judgment on the validity of the contract. Id., contemplated multiple members, it is unclear whether the intent ¶ 17. The district court granted the motion, finding the contract of the parties at the time the First Amendment to the Operating valid and enforceable. Id. Later, the plaintiff moved for summary Agreements was executed was to include both Class A and Class judgment on the defendant's unjust enrichment counterclaim, B Members in the term "all Members" found in Sections 8.1 and which the district court granted. Id., ¶ 23. The parties cross- 9.1. This term thus gives rise to an ambiguity in the Operating appealed, and the Montana Supreme Court affirmed. Id., ¶ 1. The Agreements. The presence of this ambiguity prevents the Court Court first affirmed the district court's decision determining the from concluding on summary judgment the consent rights contract was valid, and then concluded summary disposition ofthe available to Class B Members under Sections 3.6.1 and 3.6.2 are unjust enrichment claim was proper under the circumstances of expanded to include the rights under Sections 8.1 and 9.1. the case because unjust enrichment did not apply "where a valid Although extrinsic evidence might aid the Court in resolving this and enforceable contract comprehensively govern[ed] the parties' ambiguity at this juncture, neither party has advanced any that respective rights." Id., ¶¶ 17, 67-68. sheds light on the parties' intent with respect to Class B - This case is similar, where both parties agree the Operating Members' consent rights when drafting the First Amendment to Agreements were valid governing documents at the time the the Operating Agreements. Yellowstone LLCs existed. Although the Defendants do challenge - Because the ambiguity cannot be resolved by applying the the present validity of the Operating Agreements in their applicable rules of contract construction and the intent of the affirmative defenses, they do so only as a result of the parties at the time of contracting remains unclear, the Defendants' Bankruptcy Court's Reorganization Plan[1]; there are simply no motion for partial summary judgment must be denied. allegations from either of the parties in this case that attempt to ! The Defendants' Third Motion for Partial Summary Judgment, Count invalidate the Operating Agreements as the controlling documents 8 (Unjust Enrichment) of the parties' rights with respect to the Yellowstone LLCs. - The Defendants also move for partial summary judgment on Therefore, unjust enrichment does not apply and the Plaintiffs are Count 8 of the Plaintiffs' Complaint for Unjust Enrichment. The not entitled to maintain such a claim as an alternative theory of Defendants argue the Plaintiffs are not entitled to pursue their recovery at trial. The Defendants' motion for summary judgment unjust enrichment claim beyond the pleading stage of litigation should be granted. because the parties do not dispute an express contract exists ! The Plaintiffs' Motion for Summary Judgment on Defendants' between the parties. Def.'s 3rd Mot. Summ. J., at 6, Mar. 6, Counterclaims 2018. The Plaintiffs counter their unjust enrichment claim may - The Defendants have pleaded counterclaims for abuse of process be pursued at trial because Montana Rule of Civil Procedure and punitive damages. Def.'s Am. Ans., Nov. 22, 2017. The 8(d)(3) allows for alternative pleading. Pls.'s Resp. Br. Def.'s 3rd Plaintiffs seek summary judgment in their favor on both claims. Mot. Part. Summ. J., at 5, Mar. 26, 2018. The Court addresses each in turn. - The Court begins by discussing Montana unjust enrichment law. ! Abuse of Process "Unjust enrichment is an obligation created when there is an - Abuse of process is a tort which occurs when a defendant uses absence of a contract between the parties." Bank of Am., N.A. the legal process "beyond its intended purpose" and coerces the v. Alexander, 2017 MT 31, ¶ 27, 386 Mont. 305, 313, 389 P.3d plaintiff "to do some collateral thing which the plaintiff could not 1020, 1026. Sometimes referred to as a contract implied in law, be legally and regularly compelled to do." Judd v. Burlington unjust enrichment is an equitable doctrine intended to prevent a Northern & Santa Fe Ry., 2008 MT 181, ¶ 24, 343 Mont. 416, party from "benefiting from his or her wrongful acts." Alexander, 421, 186 P.3d 214, 217 (citing Seltzer v. Morton, 2007 MT 62, ¶ 27; See also Estate of Pruyn v. Axmen Propane, Inc., 2009 ¶57, 336 Mont. 225, 245, 154 P.3d 561, 580; Brault v. Smith, MT 448, ¶ 63; 354 Mont. 208, 223, 223 P.3d 845, 858 (citing 209 Mont. 21, 29, 679 P.2d 236, 240 (1984)). To prevail on an Maxted v. Barrett, 198 Mont. 81, 87, 643 P.2d 1161, 1164 abuse of process claim, a claimant must show two elements: "(1) (1982)). See also Associated Mgmt. Servs. v. Ruff, 2018 MT an ulterior purpose and (2) a willful act in the use of the process 182, ¶ 64, 392 Mont. 139, 167,424 P.3d 571 ("Unjust not proper in the regular conduct of the proceeding." Id. (citing enrichment is an equitable claim for restitution to prevent or Seltzer, ¶ 57) (emphasis added). Summary judgment on an abuse remedy inequitable gain by another."). of process claim is proper where a movant raises no genuine - Unjust enrichment permits recovery when a plaintiff shows: "(1) issue of material fact as to both elements. Seipel v. Olympic a benefit conferred on one party by another; (2) the other's Coast lnvs., 2008 MT 237, ¶ 20, 344 Mont. 415, 420-21, 188 appreciation or knowledge of the benefit; and (3) the other's P.3d 1027, 1031. "Pressing valid legal claims to their regular

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 34 conclusion, even with an ulterior motive, does not by itself - Dated this 19th day of November 2018. constitute abuse of process." See Brault, 209 Mont. at 29. - Luke Berger, District Judge - The Plaintiffs argue summary judgment is proper because there - CERTIFICATE OF SERVICE . This is to certify that the is no evidence in the record showing the Plaintiffs have misused foregoing was duly served by mail, fax or email upon the parties or abused the legal process by filing the present lawsuit. Pls.'s or their attorneys of record at their last known address. Done Memo. Supp. Mot. Summ. J., at 14, May 25, 2018. The this 19 day of November, 2018. Karen J. Miller, Clerk. Defendants counter the Plaintiffs have filed "baseless legal - [1] The Defendants' Amended Answer states the following claims" with the ulterior purpose of obtaining money from the affirmative defense: "Termination of Rights: All of Plaintiffs' Defendants which was not owed. Def.'s Resp. Opp. Summ. J., at claims are premised on rights allegedly afforded pursuant to 5, Jul. 2, 2018. In support, the Defendants advance significant the Operating Agreements of the Yellowstone LLCs. Pursuant evidence showing the Plaintiffs engaged in conduct similar to to the Reorganization Plan, confirmed by the Bankruptcy that of which they now complain by negotiating separately with Court, the Operating Agreements and all rights thereunder are the Blixseths to sell their shares, refused to join the Defendants terminated. Thus, Plaintiffs' rights to pursue their claims are in the previous related litigation, LeMond I, as well as excerpts terminated." Def.'s Am. Ans., at 16, Nov. 22, 2017. of Plaintiff Peter Spano's deposition in which Spano states he did not believe Class B Members had voting or consent rights under the Operating Agreements. Depo. Peter Spano, 31:11-34:2, Mar. 6, 2018, Def.'s Exh. 1, Def.'s Resp. Opp. Summ. J. - The Montana Supreme Court addressed this exact issue in Seipel. The plaintiff in Seipel had sued a defendant corporation for abuse of process in state district court, alleging the defendant abused the legal process by filing a previous federal action with the ulterior motive of extracting money from the plaintiff without a valid claim. ld., ¶ 21. The defendant sought and was granted summary judgment on the claim, and the plaintiff appealed. Id., ¶¶ 8, 21. The Montana Supreme Court reversed the district court's summary judgment order, concluding the affidavit of the plaintiffs attorney in the prior federal lawsuit supported the plaintiffs abuse of process claim. Id., ¶¶ 21-25. The attorney's affidavit and attached exhibits related significant facts showing the defendants corporation had admitted, among other things, it sustained no damages and had no authority to file the prior federal suit. Id., ¶ 23. These facts, the Court determined, supported the plaintiffs allegations the defendant had no valid legal claim against it and knew it when it filed the federal action against the plaintiff. Id. Relying on Seltzer, the Court observed a defendant is not entitled to summary judgment "where the record establishes that an abuse-of-process plaintiff based his claim on the defendant's purpose in bringing the prior suit, as well as the conduct of utilizing the suit as an instrument of coercion." Id., ¶ 25 (citing Seltzer, ¶¶ 57--60). - This is the essence of the Defendants' claim here. The Defendants have raised triable issues of fact concerning the Plaintiffs' knowledge and intent in filing this present action which cannot be resolved on a motion for summary judgment. The Plaintiffs' summary judgment motion on this claim should be denied. ! Punitive Damages - The Plaintiffs also seek summary judgment on the Defendants' punitive damages claim. Punitive damages are available on the predicate tortious abuse of process claim if the Defendants can show by clear and convincing evidence the Plaintiffs acted with actual fraud or actual malice. See Mont. Code Ann. § 27-1-220; Mont. Code Ann.§ 27-1-221. At the summary judgment phase, a party opposing summary judgment on punitive damages is not required to show a defendant's actions constituted actual fraud or actual malice; rather, the party must show a genuine dispute exists with regard to the allegation. See Hagen v. Down Chemical Co., 261 Mont. 487, 497, 863 P.2d 413, 420 (1993). - Here, genuine issues of material fact exist regarding whether the Plaintiffs' intent in initiating the present lawsuit constituted an abuse of process and created a high probability of causing Defendants financial injury. The Plaintiffs' motion for summary judgment must be denied. - For the foregoing reasons, - IT IS HEREBY ORDERED as follows: - I. The Defendants' Motion for Partial Summary Judgment on Counts One and Five of the Complaint (Wrongful Distributions) is GRANTED. - 2. The Defendants' Second Motion for Partial Summary Judgment re: Voting Rights (Count 2-Breach of Contract) is DENIED. - 3. The Defendants' Third Motion for Partial Summary Judgment, Count 8 (Unjust Enrichment) is GRANTED. - 4. Upon stipulation of the parties, Counts 3 and 4 of the Complaint are dismissed WITH PREJUDICE. The Defendants' Fourth Motion for Partial Summary Judgment on Counts 3 and.4 of the Complaint (Breach of Statutory Duties) is therefore DENIED AS MOOT. - 5. The Plaintiffs' Motion for Summary Judgment on Defendants' Counterclaims is DENIED. - 6. The Clerk of Court will please file this Order and distribute a copy to the parties.

3/12/2019 Montana Advance Sheets - State Trial Court Rulings [pp. 16-35] Page 35 Montana Advance Sheets A Weekly Compendium of Court Rulings of:

Montana Supreme Court [pp 1-15] State Trial Courts [pp 16-35] Federal Trial Courts [pp 36-46] Friday, March 12, 2021 ______FEDERAL TRIAL COURTS

Motions/Procedure Eagleman.BM 3/02 Personal Jurisdiction ATTORNEYS: State Farm Mann.JJ 3/03 Writs/Remedies.. . . 36 Weeks.BM 3/02 Venue/Courts. . . . . 40 Fees, Appointments. 43 .TJC 2/26 Piegan.JJ 3/03 Kelly.BM 3/01 Wing.BM 3/02 Russell.BM 3/01 Crazy Mtns.TJC 2/26 Crim: Schedules, Rocha.DLC 3/03 Discovery Smith.SPW 3/04 Drange.SPW 2/26 Crazy Mtns.TJC 2/26 Dismissals, Misc. . . 44 Campagna.SPW 2/26 Evidence...... 36 Zlahn.SPW 2/26 Natural Resources Civil: Schedules, Paris.SPW 3/01 Stookey.SPW 3/01 Employment...... 39 Environment...... 41 Dismissals, Misc. . . 44 Vishal.JJ 3/01 Moe.KLD 2/26 Eaton.SPW 3/01 Crazy Mtns.TJC 2/26 Carter.JJ 3/01 Pederson.SPW 3/02 Criminal...... 36 Government ...... 40 S o c i a l S e c u r i t y Marquis Cattle Co Zanes.JJ 3/02 McDermott.BM 3/01 Hill.SPW 3/04 Disability...... 41 .JJ 3/01 Garcia.DLC 3/03 Three Fingers Pulst.JJ 2/26 Lawler.DWM 3/02 Igoe.BM 3/03 .SPW 3/01 Red Lodge Ale .SPW 2/26

PROCEDURE ! ORDER ! SUSAN P. WATTERS, District Judge. JURISDICTION - Upon the Defendant's Unopposed Motion for Leave to File Document Under Seal (Doc. 32), and for good cause shown, REMEDIES - IT IS HEREBY ORDERED that the motion is GRANTED. The Clerk of Court shall file the lodged document under seal.

20. Moe v. GEICO INDEMNITY CO., Dist. Court, D. Montana 2021 18. STEPHEN P. Kelly, Plaintiff, v. THE CHURCH OF JESUS BRANDON L. MOE, individually and on behalf of all individuals CHRIST OF LATTER-DAY SAINTS, a Utah Corporation; of the class similarly situated, Plaintiffs, v. GEICO INDEMNITY KYLE SPENCER, in his official capacity; and ALAN HANSEN, CO., and JOHN DOES I-XX, Defendants. No. CV in his official capacity, Defendants. No. CV 20-56-BU-BMM. 19-23-BU-BMM-KLD. United States District Court, D. Montana, United States District Court, D. Montana, Butte Division. March 1, Butte Division. February 26, 2021. 2021. ORDER ORDER ADOPTING FINDINGS AND RECOMMENDATIONS ! ! ! KATHLEEN L. DeSOTO, Magistrate Judge. ! BRIAN MORRIS, Chief District Judge. - Plaintiff has filed an unopposed motion for leave to file under - Plaintiff Stephen P. Kelly (Kelly) has filed this action pro se. seal a brief in support of a motion for partial summary judgment, Doc. 2. Kelly alleges that the Defendants have refused to confidential exhibits, and related deposition testimony. terminate his membership in The Church of Jesus Christ of - Pursuant to the Joint Stipulated Confidentiality Protective Order Latter-Day Saints, and have deprived him of his official church (Doc. 31) entered in this case, any party wishing to file any records. Id. at 15-16. Kelly seeks declaratory relief, injunctive document under seal must make the appropriate showing of good relief and damages. Id. at 2. Kelly has invoked this Court's cause or compelling reasons as delineated in Ground Zero Center diversity jurisdiction under 28 U.S.C. § 1332. Id. at 5. for Non-Violent Action v. United States Department of the Navy, - United States Magistrate Judge John T. Johnston issued a 860 F.3d 1244, 1261 (9th Cir. 2017) (requiring a showing of Findings and Recommendations on January 22, 2021. Doc. 10. compelling reasons to seal documents attached to dispositive Judge Johnston determined that Kelly had failed to plead motions and other filings relating to the merits of a case) and diversity jurisdiction properly. Id. at 2. Kelly did not file Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, objections to Judge Johnston's Findings and Recommendations. 1097 (9th Cir. 2016) (requiring only a showing of good cause to Instead, Kelly filed an Amended Complaint resolving the seal documents related to a non-dispositive motion or a motion deficiencies of the original complaint. Doc. 12. unrelated to the merits of a case). - IT IS HEREBY ORDERED: - Plaintiff's motion for leave to file under seal concerns documents - 1. Judge Johnston's Findings and Recommendations (Doc. 10) are attached to a dispositive motion. Therefore, Plaintiff must provide ADOPTED in full. compelling reasons to seal the documents. (Doc. 84.) Although Plaintiff mentions the documents contain confidential information, DISCOVERY this reason alone and unsupported is not compelling. Accordingly. EVIDENCE - IT IS ORDERED that Plaintiff's motion is DENIED without prejudice. Plaintiff is granted leave to refile his motion to include 19. UNITED STATES OF AMERICA, v. LAURIE ANN Stookey, compelling reasons to seal the documents requested. Defendant. No. CR 20-100-BLG-SPW. United States District Court, D. Montana, Billings Division. March 1, 2021.

3/12/2019 Montana Advance Sheets - Federal Court Rulings [pp. 36-46] Page 36 erred in dismissing the petition or that the petitioner should be CRIMINAL allowed to proceed further."). The Court concludes that a certificate of appealability should not issue in this matter. 21. BRETT McDermott, Petitioner, v. LYNN GUYER; ATTORNEY - ORDER GENERAL OF THE STATE OF MONTANA, Respondents. No. - Accordingly, IT IS ORDERED: CV-20-122-GF-BMM-JTJ. United States District Court, D. - 1. McDermott's Petition for Writ of Habeas Corpus (Doc. 1) is Montana, Great Falls Division. March 1, 2021. DISMISSED WITHOUT PREJUDICE as unexhausted. ! ORDER - 2. The Clerk of Court is directed to enter by separate document ! BRIAN MORRIS, Chief District Judge. a judgment in favor of Respondents and against Petitioner. - Brett McDermott, a prisoner proceeding pro se, filed a petition - 3. A certificate of appealability is DENIED. seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). McDermott then sought leave of Court to proceed in 22. UNITED STATES OF AMERICA, Plaintiff, v. ANTOINE forma pauperis. (Doc. 2). United States Magistrate Judge John ROBERT Three Fingers, Defendant. No. CR 20-131-BLG-SPW. Johnston issued an Order with Findings and Recommendations, United States District Court, D. Montana, Billings Division. March in which he granted McDermott's in forma pauperis motion. 1, 2021. (Doc. 4 at 1-2). Judge Johnston recommended that this Court ORDER dismiss McDermott's habeas petition for failure to exhaust his ! ! SUSAN P. WATTERS, District Judge. state court remedies. (Doc. 4 at 2-4). Judge Johnston also - Pursuant to the request of the Bureau of Prisons at the Federal recommended that this Court deny issuance of a certificate of Detention Center-SeaTac for an extension oftime to complete the appealability. (Doc. 4 at 4-5). evaluation and report, and for good cause being shown, - McDermott filed a partial objection to the Findings and - IT IS HEREBY ORDERED that, Recommendations, arguing that the Court should grant a - 1. The facility is granted an extension oftime in which to certificate of appealability. (Doc. 7). McDermott insists that he complete the evaluation and file the final report on Defendant should be allowed to appeal the dismissal of his habeas petition Antoine Robert Three Fingers in order to determine his so that the federal appellate court may consider matters related competency to proceed in this matter. to his state court sentencing. Id. - 2. The FDC-SeaTac shall continue to provide updates to the - This Court reviews de novo those Findings and Court as to the progress of the evaluation study. Recommendations to which a party timely objected. 28 U.S.C. § - 3. The final report shall be filed with the Court, with copies to 636(b)(1). The Court reviews for clear error the portion of the counsel for the Defendant and the Government. Findings and Recommendations to which the party did not - 4. All time from the date of this Order until the date of the specifically object. McDonnell Douglas Corp. v. Commodore Court's determination as to Antoine Robert Three Fingers' Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). competency is excludable under the Speedy Trial Act. 18 U.S.C. - The Court first addresses the dismissal of McDermott's habeas § 3161(h)(1)(A) and (F). petition, as McDermott did not specifically object to Judge - 5. The Clerk of Court is directed to immediately notify the Johnston's recommendation in this regard. The Court reviewed parties and the United States Marshals Service of the entry of Judge Johnston's determination on McDermott's habeas petition this order. and found no error. The Court adopts in full the portion of the Findings and Recommendations that direct McDermott to exhaust his state court remedies before seeking relief in federal court. 23. UNITED STATES OF AMERICA, Plaintiff, v. TYSON KEITH (Doc. 4 at 2-4); see also 28 U.S.C. § 2254(b)(1)(A) (proscribing Eagleman, Defendant. No. CR-20-17-GF-BMM. United States federal courts' granting of habeas corpus writs brought by District Court, D. Montana, Great Falls Division. March 2, 2021. prisoners unless "the applicant has exhausted the remedies ! ORDER available in the courts of the State"). McDermott should seek out ! BRIAN MORRIS, Chief District Judge. those remedies available to him in the state court system before - United States Magistrate Judge John Johnston entered Findings seeking assistance in federal court. Those remedies may include and Recommendations in this matter on February 10, 2021. (Doc. a direct appeal, sentence review, state postconviction relief, or 16.) state habeas review. The Court dismisses McDermott's petition - When a party makes no objections, the Court need not review de without prejudice. Barring other procedural hurdles to federal novo the proposed Findings and Recommendations. Bad Old court relief, McDermott may return to this Court only after he Man v. Arn, 474 U.S. 140, 153-52 (1986). This Court will fully exhausts the claims relative to his current custody in the review Judge Johnston's Findings and Recommendations, state court system. however, for clear error. McDonnell Douglas Corp. v. - The Court reviews de novo Judge Johnston's recommendation Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. against issuing a certificate of appealability. Rule 11(a) of the 1981). Rules Governing § 2254 Proceedings requires a district court to - Judge Johnston conducted a revocation hearing on February 9, "issue or deny a certificate of appealability when it enters a final 2021. (Doc. 11.) The United States accused Eagleman of order adverse to the applicant." The writ of habeas corpus plays violating his conditions of supervised release 1) by failing to a vital role in protecting constitutional rights. Slack v. McDaniel, report for sex offender treatment; 2) by failing to report for 529 U.S. 473, 483 (2000). A court should issue a certificate of substance abuse treatment; 3) by failing to report for substance appealability for those claims in which the petitioner makes "a abuse testing; 4) by failing to report for polygraph testing; and substantial showing of the denial of a constitutional right." 28 5) by failing to notify his probation officer of a change in U.S.C. § 2253(c)(2). A petitioner satisfies the standard if "jurists residence. (Doc. 8.) of reason could disagree with the district court's resolution of - At the revocation hearing, Eagleman admitted that he had [the] constitutional claims" or "conclude the issues presented are violated the conditions of his supervised 1) by failing to report adequate to deserve encouragement to proceed further." Miller-El for sex offender treatment; 2) by failing to report for substance v. Cockrell, 537 U.S. 322, 327 (2003). Where the court abuse treatment; 3) by failing to report for substance abuse dismisses the claim on procedural grounds, the court must also testing; and 4) by failing to report for polygraph testing. The decide whether "jurists of reason would find it debatable whether Court dismissed alleged violation 5 on the government's motion. the district court was correct in its procedural ruling." Gonzalez (Doc. 11.) Judge Johnston found that the violations Eagleman v. Thaler, 565 U.S. 134, 140-41 (2012). admitted proved to be serious and warranted revocation, and - McDermott makes no argument that he was deprived of a recommended that Eagleman receive a custodial sentence of 3 constitutional right, but instead argues against the procedure months, with 57 months of supervised release to follow. (Doc employed in his state court proceedings. The Court cannot make 16.) Eagleman was advised of his right to appeal and his right a determination that McDermott has shown that he was denied to allocute before the undersigned. (Doc. 11.) The violations a constitutional right. The Court dismissed McDermott's habeas prove serious and warrant revocation of Eagleman's supervised petition on procedural grounds, based on available state court release. The Court finds no clear error in Judge Johnston's remedies not yet exhausted by McDermott. The Court determines Findings and Recommendations. that reasonable jurists likely would agree on the correctness of - Accordingly, IT IS ORDERED that Judge Johnston's Findings the Court's procedural ruling. In this circumstance, an appeal of and Recommendations (Doc. 16) are ADOPTED IN FULL. IT IS the Court's decision stands unwarranted. See Slack, 529 U.S. at FURTHER ORDERED that Defendant Tyson Keith Eagleman be 484 ("Where a plain procedural bar is present and the district sentenced to the custody of the United States Bureau of Prisons court is correct to invoke it to dispose of the case, a reasonable for 3 months, with 57 months supervised release to follow. jurist could not conclude either that either that the district court Eagleman should not serve his term of custody at the Federal Correctional Institution in Herlong, California.

3/12/2019 Montana Advance Sheets - Federal Court Rulings [pp. 36-46] Page 37 24. UNITED STATES OF AMERICA, Plaintiff, v. LIONEL LEE Smith, Defendant. No. CR 20-80-BLG-SPW. United States District Weeks, Defendant. No. CR-15-50-GF-BMM. United States District Court, D. Montana, Billings Division March 4, 2021. Court, D. Montana, Great Falls Division. March 2, 2021. ! ORDER SETTING SENTENCING ! ORDER ! SUSAN P. WATTERS, District Judge. ! BRIAN MORRIS, Chief District Judge. - Defendant entered her plea of guilty before U.S. Magistrate - United States Magistrate Judge John Johnston entered Findings Judge Timothy J. Cavan in open court on February 17, 2021. and Recommendations in this matter on February 22, 2021. (Doc. United States Magistrate Judge Timothy J. Cavan entered 54.) Findings and Recommendation in this matter on February 17, - When a party makes no objections, the Court need not review de 2021 (Doc. 41). No objections having been filed within fourteen novo the proposed Findings and Recommendations. Bad Old days thereof, Man v. Arn, 474 U.S. 140, 153-52 (1986). This Court will - IT IS HEREBY ORDERED that Judge Cavan's Findings and review Judge Johnston's Findings and Recommendations, Recommendations (Doc. 41) are ADOPTED IN FULL; however, for clear error. McDonnell Douglas Corp. v. - Therefore, Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. - IT IS HEREBY ORDERED that, 1981). - 1. Sentencing is set for Wednesday, July 21, 2021 at 1:30 p.m., - Judge Johnston conducted a revocation hearing on February 18, in the James F. Battin Courthouse, 2601 Second Avenue North, 2021. (Doc. 51.) The United States accused Weeks of violating Billings, Montana. his conditions of supervised release by using methamphetamine - 2. The United States Probation Office shall conduct a on two separate occasions. (Doc. 45.) presentence investigation and prepare a presentence report. Fed. - At the revocation hearing, Weeks admitted that he had violated R. Crim. P. 32(c), (d); 18 U.S.C. § 3552(a). the conditions of his supervised using methamphetamine on two - 3. The probation officer shall disclose the completed report, separate occasions. (Doc. 51.) Judge Johnston found that the except for recommendations of the probation officer as follows: violation Weeks admitted proved to be serious and warranted two copies to counsel for Defendant, and one copy to counsel for revocation, and recommended that Weeks receive a custodial the government on or before June 7, 2021. The probation officer sentence of 3 months, with 45 months of supervised release to shall not disclose any recommendation made or to be made to follow. He also recommended that Weeks serve the first 60 days the Court. of supervised release in a secure inpatient drug treatment facility - 4. If restitution is mandatory, the probation officer shall discuss as directed by his probation officer. (Doc 54.) Weeks was a payment plan with Defendant and shall make recommendations advised of his right to appeal and his right to allocute before the to the Court concerning interest and a payment schedule. undersigned. (Doc. 51.) The violations prove serious and warrant - 5. Counsel shall attempt in good faith to resolve disputes over revocation of Weeks' supervised release. The Court finds no clear any material in the presentence report. Unresolved objections to error in Judge Johnston's Findings and Recommendations. be relied upon at sentencing shall be presented to the probation - Accordingly, IT IS ORDERED that Judge Johnston's Findings officer on or before June 16, 2021. U.S.S.G. § 6A1.2. If there is and Recommendations (Doc. 54) are ADOPTED IN FULL. IT IS a dispute over any material in the presentence report, counsel FURTHER ORDERED that Defendant Lionel Lee Weeks be shall meet with the probation officer and attempt to resolve sentenced to the custody of the United States Bureau of Prisons disputes informally by diligent good faith effort. Any requests for for 3 months, with 45 months supervised release to follow with extensions of time to present objections to the probation officer the first 60 days of supervised release in a secure inpatient drug must be granted by the Court. Extensions will not be granted treatment facility as directed by his probation officer. absent compelling reasons. Any unresolved objections are expected to be included in the pre-sentence report, not in a 25. UNITED STATES OF AMERICA, Plaintiff, v. JEREMY DAVIS sentencing memorandum. Wing, Defendant. No. CR-19-27-GF-BMM. United States District - 6. The presentence report, in final form, including any unresolved Court, D. Montana, Great Falls Division. March 2, 2021. objections, shall be delivered to the Court and the parties on or ! ORDER before June 30, 2021. ! BRIAN MORRIS, Chief District Judge. - 7. Sentencing memoranda and supporting documents addressing - United States Magistrate Judge John Johnston entered Findings all relevant sentencing issues shall be filed on or before July 7, and Recommendations in this matter on February 10, 2021. (Doc. 2021. Absent good cause shown, sentencing memoranda and 124.) supporting documents filed after July 7, 2021 will not be - When a party makes no objections, the Court need not review de considered in addressing sentencing issues. Failure to timely file novo the proposed Findings and Recommendations. Bad Old sentencing memoranda may result in imposition of sanctions Man v. Arn, 474 U.S. 140, 153-52 (1986). This Court will against counsel. review Judge Johnston's Findings and Recommendations, - 8. Responses to sentencing memoranda shall be filed on or however, for clear error. McDonnell Douglas Corp. v. before July 14, 2021. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. - 9. Reply briefs will not be accepted for filing in sentencing 1981). matters. - Judge Johnston conducted a revocation hearing on February 9, - 10. The Court will resolve objections included in the Addendum 2021. (Doc. 117.) The United States accused Wing of violating to the presentence report at the sentencing hearing in accordance his conditions of supervised release by failing to comply with the with U.S.S.G. § 6A1.3. rules and regulations of the Great Falls Residential Re-Entry - 11. All parties that intend to have witnesses testify at sentencing Center. (Doc. 114.) shall give notice to this Court ten (10) days prior to the - At the revocation hearing, Wing admitted that he had violated sentencing date. the conditions of his supervised by failing to comply with the - 12. Defendant is released under the same terms and conditions rules and regulations of the Great Falls Residential Re-Entry pending sentencing. Center. (Doc. 117.) Judge Johnston found that the violations - The clerk shall promptly notify counsel and the probation office Wing admitted proved to be serious and warranted revocation, of the entry of this Order. and recommended that Wing receive a custodial sentence of 6 months, with 18 months of supervised release to follow. (Doc 27. ROBERT Zlahn, Petitioner, v. PATRICK McTIGHE, 124.) Welch was advised of his right to appeal and his right to ATTORNEY GENERAL OF THE STATE OF MONTANA, allocute before the undersigned. (Doc. 117.) The violations prove Respondent. No. CV 18-158-BLG-SPW. United States District serious and warrant revocation of Wing's supervised release. The Court, D. Montana, Billings Division. February 26, 2021. Court finds no clear error in Judge Johnston's Findings and ! ORDER ADOPTING MAGISTRATE'S FINDINGS AND Recommendations. RECOMMENDATIONS - Accordingly, IT IS ORDERED that Judge Johnston's Findings ! SUSAN P. WATTERS, District Judge. and Recommendations (Doc. 124) are ADOPTED IN FULL. IT - Before the Court are Magistrate Judge Cavan's Findings and IS FURTHER ORDERED that Defendant Jeremy Davis Wing be Recommendations, filed November 12, 2020. (Doc. 13). Judge sentenced to the custody of the United States Bureau of Prisons Cavan recommended that Petitioner Robert Zlahn's amended for 6 months, with 18 months supervised release to follow. Wing petition for writ of habeas corpus be denied. (Id. at 32). will be subject to the same conditions of supervised release Petitioner timely filed an objection to the Recommendation on previously imposed, with the exception that Wing should not be November 27, 2020.[1] (Doc. 15). For the following reasons, the required to reside in a residential re-entry center. Court adopts Judge Cavan's Findings and Recommendations in full. 26. UNITED STATES OF AMERICA, Plaintiff, v. KRISTIN ALISE ! I. STANDARD OF REVIEW

3/12/2019 Montana Advance Sheets - Federal Court Rulings [pp. 36-46] Page 38 - Parties are entitled to de novo review of those portions of Judge Eaton's objection. (Doc. 82). For the following reasons, the Court Cavan's findings and recommendations to which they timely and adopts the Findings and Recommendations in their entirety. properly object. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). ! I. Background The Court may accept, reject, or modify, in whole or in part, - The instant motion arises from Eaton's Fourth Amended those findings and recommendations properly objected to. 28 Complaint, in which he added an additional count (Count VII) U.S.C. § 636(b)(1). "A party makes a proper objection by alleging that Silversmiths "breached their own contract several identifying the parts of the magistrate's disposition that the party times, leading to retaliation and wrongful termination." (Doc. 48 finds objectionable and presenting legal argument and supporting at 20). In support of this allegation, Eaton describes three authority, such that the district court is able to identify the issues sections of the employee handbook and instances where he and the reasons supporting a contrary result." Lance v. believes the handbook's policies were not followed. (Doc. 48 at Salmonson, 2018 WL 4335526, at *1 (D. Mont. Sept. 11, 2018) 21-22). Eaton, in his initial complaints, made wrongful discharge (quoting Montana Shooting Sports Ass'n v. Holder, 2010 WL claims. (See Doc. 2, 5, 12, and 34). Silversmiths moved to 4102940, at *2 (D. Mont. Oct. 18, 2010)). Simply restating the dismiss Count VII under Federal Rule of Civil Procedure party's argument previously made before the magistrate judge is 12(b)(6) for failure to state a claim upon which relief could be not a sufficient objection. Id. granted. (Doc. 54). Silversmiths argued that the Montana - Absent an objection, a court reviews a magistrate's findings and Wrongful Discharge from Employment Act[1] ("WDEA") recommendations for clear error. United States v. Reyna-Tapia, precludes common law breach of contract claims based on that 328 F.3d 1114, 1121 (9th Cir. 2003). Clear error exists if the same discharge, and additionally argues that even if not Court is left with a "definite and firm conviction that a mistake precluded, Eaton failed to allege the existence of an enforceable has been committed." United States v. Syrax, 235 F.3d 422, 427 contract. (Doc. 54 at 9-16). (9th Cir. 2000). - Judge Cavan found that the handbook Eaton alleged formed the ! II. DISCUSSION basis of Count VII did not create a contract and, even if it did, - Petitioner generally states that he objects to the entirety of Judge the WDEA precludes such a claim. (Doc. 79). Judge Cavan Cavan's Findings and contests the Recommendations presented. explained that under Montana law, handbooks distributed after (Doc. 15 at 1). However, Petitioner goes on to specifically hiring are generally not considered a contract because they are identify only one objection: that Judge Cavan erred in usually unilateral and their terms are not bargained for. (Doc. 79 recommending denial of the petition without first affording at 9). Even absent that general rule, the Silversmiths handbook Petitioner an opportunity to amend the petition. (Id. at 2). expressly disclaims the intent to form a contract; the handbook Petitioner fails to mention anywhere in his objections that he has stated that it did not guarantee a fixed term of employment and already been afforded such an opportunity and filed an amended stated it could be changed unilaterally, further demonstrating a petition on October 4, 2019. (Doc. 11). It was this amended lack of intent to bind Silversmiths. (Doc. 79 at 11). Therefore, petition that Judge Cavan made his Findings and Judge Cavan found there cannot be relief for breach of contract Recommendations on. (Doc. 13 at 1). Because Petitioner has when no contract exists. already received an opportunity to file an amended petition and - Next Judge Cavan concluded that the exclusive remedy portion presents no nuanced argument for why a second opportunity is of the WDEA precludes Eaton from asserting common law required, the Court finds this objection meritless. contract claims stemming from his discharge. (Doc. 79 at 14-15). - To the extent Petitioner attempts to broadly object to Judge The WDEA "provides the exclusive remedy for wrongful Cavan's actual Findings and Recommendations, the Court finds discharge from employment." Mont. Code Ann. § 39-2-902. that Petitioner has failed to present proper objections. Petitioner Except as provided in the WDEA, "no claim for discharge may states: "Zlahn Hereby OBJECTS to the Entirety of the November arise from tort or express or implied contract." Mont. Code Ann. 12, 2020 Findings and Recommendations Thus Opposing and § 39-2-913. Judge Cavan found that "none of Eaton's alleged Contesting that his Petition for Writ of Habeas Corpus Should 1) contract claims constitute separate and independent claims which Be denied, 2) Judgment in favor of Respondent and 3) That his could have been asserted in the absence of his discharge." (Doc. (COA) Certificate of Appealability be denied." (Doc. 15 at 1). 79 at 13). In the contract claims Eaton describes in Count VII, While the Court is cognizant that pro se filings are to be he does not claim damages arising from the breach beyond his construed liberally, United States v. Qazi, 975 F.3d 989, 993 termination. Judge Cavan concluded that Count VII failed to (9th Cir. 2020), the Court cannot find that a single sentence state a claim upon which relief could be granted and broadly objecting to Judge Cavan's ultimate recommendations recommended dismissal with prejudice. (Doc. 79 at 15). suffices to identify the findings opposed let alone presents legal ! II. Standard of Review or factual arguments supporting a different outcome. See Lance, - The parties are entitled to de novo review of those findings or 2018 WL 4335526, at *1. The Court is left to review Judge recommendations to which they object. 28 U.S.C. § 636(b)(1). Cavan's Findings and Recommendations for clear error, which the When neither party objects, this Court reviews the Magistrate's Court does not find. Findings and Recommendation for clear error. McDonnell ! III. CONCLUSION Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, - IT IS HEREBY ORDERED that Judge Cavan's Findings and 1313 (9th Cir. 1981). A party makes a proper objection "by Recommendations (Doc. 13) are ADOPTED IN FULL. identifying the parts of the magistrate's disposition that the party - IT IS FURTHER ORDERED that Petitioner's amended petition finds objectionable and presenting legal argument and supporting is DENIED. The Clerk of Court is directed to enter judgment in authority such that the district court is able to identify the issues favor of Respondent. A certificate of appealability is denied. and the reasons supporting a contrary result. Lance v. Salmonson, - [1] Petitioner filed a second document requesting additional 2018 WL 4335526 at *1 (D. Mont. Sept. 11, 2018). time within which to file "an amended petition for why he - Dismissal under Rule 12(b)(6) is proper when the complaint objects and explain." (Doc. 14 at 1). However, Petitioner either "(1) lacks a cognizable legal theory or (2) fails to allege timely filed his objections to Judge Cavan's sufficient facts to support a cognizable legal theory." Zixiang Li Recommendations four days later. Therefore, Petitioner's v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013). To survive a request for additional time is denied as moot. motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 EMPLOYMENT (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court's review of a 12(b)(6) motion is limited 28. ROBERT A. Eaton, Plaintiff, v. MONTANA SILVERSMITHS, to the pleadings and, in limited circumstances, to documents Defendant. No. CV 18-65-BLG-SPW. United States District Court, attached to the pleadings or incorporated by reference. U.S. v. D. Montana, Billings Division. March 1, 2021. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). ! ORDER ADOPTING FINDINGS AND RECOMMENDATIONS ! III. Discussion ! SUSAN P. WATTERS, District Judge. - Eaton, in his objection, requests "reconsideration" of his breach - Before the Court are U.S. Magistrate Judge Cavan's Findings and of contract claim for several reasons. (Doc. 80 at 2). First, Eaton Recommendations (Doc. 79) on Defendant Montana Silversmiths' alleges that there are at least five contracts besides the handbook Partial Motion to Dismiss (Doc. 54) on Count VII of Plaintiff between he and Silversmiths that apparently form the basis for Robert Eaton's Fourth Amended Complaint. (Doc. 48). Judge his claims in Count VII. (Doc. 80 at 3). This seems to be an Cavan recommended that Count VII be dismissed for failure to attempt to circumvent Judge Cavan's finding that the handbook state a claim upon which relief may be granted. (Doc. 79 at 1). could not constitute a contract. The Court will not consider Eaton, representing himself pro se, timely filed an objection. objections other than those relating to Count VII—that is, those (Doc. 80). Montana Silversmiths ("Silversmiths") responded to based off the handbook—because the language in the pleading

3/12/2019 Montana Advance Sheets - Federal Court Rulings [pp. 36-46] Page 39 explicitly states that the claim is based off violations of the reviewing the Findings and Recommendation, this Court does not handbook's policies. To do otherwise would be to stray beyond find that the Magistrate committed clear error. the scope of the Findings and Recommendations and beyond the - IT IS ORDERED that the proposed Findings and pleading standards set by Iqbal and Twombly. The separate Recommendations entered by the United States Magistrate Judge breach of contract theories Eaton alleges for the first time in his (Doc. 14) are ADOPTED IN FULL. objections were not presented in any of his complaints and so - IT IS FURTHER ORDERED that Defendants' Motion to Dismiss the Court will not consider them at this stage. (Doc. 9) is GRANTED in part as to Counts VI and VII, without - Eaton next objects that Judge Cavan incorrectly found that the prejudice, and DENIED in all other respects. handbook did not form a contract. (Doc. 80 at 6-7). Eaton argues that a valid contract, with offer, acceptance, consideration, and legal object, was formed when he signed and followed the COURTS handbook. Eaton does not cite to, and the Court cannot find, any authority or legal argument contrary to Judge Cavan's finding that 30. UNITED STATES OF AMERICA, Plaintiff, v. GEORGIE handbooks that specifically disclaim contractual obligations ELAINE Russell, Defendant. Case No. CR 20-45-GF-BMM. without bargained for terms, and without separate consideration United States District Court, D. Montana, Great Falls Montana. other than that of the employment relationship, do not create March 1, 2021. contractual obligations. The existence of an employment ! O R D E R TR AN S F E RR I N G J U R I S D I C TI O N AN D relationship between Eaton and Silversmiths does not also require CONSOLIDATING PROCEEDINGS that every document signed creates a separate contract, as Eaton ! BRIAN MORRIS, Chief District Judge. suggests. Judge Cavan correctly found that the handbook at issue - Upon Defendant Russell's Unopposed Motion to Transfer did not form a contract. Jurisdiction and Consolidate Proceedings; - Eaton also objects to Judge Cavan's finding that even if a - IT IS HEREBY ORDERED that the pending cases in the Eastern contract existed, it is precluded by the exclusivity portion of the District of Washington, 2:20-CR-12-EFS-1 and WDEA. (Doc. 80 at 6). The WDEA "provides the exclusive 1:16-CR-2006-EFS are transferred to the District of Montana and remedy for wrongful discharge from employment." Mont. Code consolidated for the purpose of sentencing set for March 3, 2021, Ann. § 39-2-902. Except as provided in the WDEA, "no claim at 4:00 p.m. for discharge may arise from tort or express or implied contract." Mont. Code Ann. § 39-2-913. Claims which are unrelated to an 31. JODIE and ANDY Drange, each individually and on behalf of alleged wrongful discharge are not pre-empted, while claims other persons similarly situated, Plaintiffs, v. MOUNTAIN WEST which are inextricably intertwined with a discharge are barred FARM BUREAU MUTUAL INSURANCE COMPANY and under the statute. Beasley v. Semitool, Inc., 853 P.2d 84, 86-87 DOES 1-100, Defendants. No. CV 20-30-BLG-SPW. United States (Mont. 1993). District Court, D. Montana, Billings Division. February 26, 2021. - Eaton once again supplies no legal authority to support his ! ORDER STAYING MOTIONS FOR SUMMARY JUDGMENT AND position that his claims should be viewed as separate from the REQUESTING BRIEFING ON ISSUE OF SUBJECT MATTER wrongful discharge action aside from an uncited quotation for JURISDICTION which the Court cannot find the source. Eaton's statement in his ! SUSAN P. WATTERS, District Judge. Fourth Amended Complaint that Silversmiths breached the - Upon recent review of Defendant Mountain West's Notice of handbook "several times, leading to retaliation and wrongful Removal (Doc. 1), the Court is requesting briefing on whether termination of Mr. Eaton" is fatal to his subsequent argument in subject matter jurisdiction exists to maintain the present action in his objection that the claim is independent. Judge Cavan correctly federal court. Courts "have an independent obligation to determined that, were the handbook a contract, Eaton's claims as determine whether subject-matter jurisdiction exists, even in the pled relating to violations of the handbook are precluded by the absence of a challenge from any party." Arbaugh v. Y&H Corp., WDEA under its exclusivity provision. 546 U.S. 500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil ! IV. Conclusion Co., 526 U.S. 574, 583 (1999)). "A defendant attempting to - For these reasons, the Court ADOPTS in full Judge Cavan's remove a diversity case must show by a preponderance of the Findings and Recommendations. Accordingly, Montana evidence that the amount-in-controversy requirement is satisfied." Silversmith's Motion to Dismiss (Doc. 54) is GRANTED and Gibson v. Chrysler Corp., 261 F.3d 927, 933 (9th Cir. 2001). Count VII of Eaton's Fourth Amended Complaint is DISMISSED That amount in controversy must exceed $75,000, exclusive of WITH PREJUDICE. interests and costs. 28 U.S.C. § 1332(a). - [1] Mont. Code Ann. Sec. 39-2-901, et seq. - Here, Mountain West's Notice of Removal asserts that Plaintiffs' Complaint sets forth a sum exceeding $75,000 on its face. (Doc. 1 at 3). However, the Notice admits that the named plaintiffs' GOVERNMENT (the Dranges) damages total $11,684, exclusive of costs and fees. REGULATORY Mountain West appears to rely on the Complaint's class action allegations to make up the remaining required sum as the Notice TAXATION explains the proposed class will include no less than 1,000 persons with anticipated damages of approximately $1,000 each. 29. COULTER Hill, Plaintiff, v. BIG HORN COUNTY (Id. at 3-4). Mountain West cites to Budget Rent-A-Car, Inc. v. ELEMENTARY SCHOOL DISTRICT 2 (ARROW CREEK Higashiguchi, 109 F.3d 1471, 1474 (9th Cir. 1997), for support ELEMENTARY SCHOOL DISTRICT), BIG HORN COUNTY that "[a] declaratory judgment plaintiff [reaches] the jurisdictional HIGH SCHOOL DISTRICT 3 (PLENTY COUPS HIGH amount by aggregating its multiple claims against a single SCHOOL DISTRICT), SAMPSON DECRANE, MARLA GOES defendant." Yet, Budget was not a class action case and the AHEAD, FANNIE CLIFF, JENNIFER FLATLIP, and EUGENE Ninth Circuit has expressly declined similar arguments to RED STAR, Defendants. No. CV 20-42-BLG-SPW. United States aggregate individual damage claims of unnamed class members District Court, D. Montana, Billings Division. March 4, 2021. in a class action for purposes of satisfying the ! ORDER ADOPTING MAGISTRATE'S FINDINGS AND amount-in-controversy requirement. See Gibson, 261 F.3d at RECOMMENDATIONS 944-45. This seeming contradiction requires clarification. ! SUSAN P. WATTERS, District Judge. Therefore, the Court requests briefing on the issue of whether the - The United States Magistrate Judge filed Findings and present action meets § 1332(a)'s amount-in-controversy Recommendations on February 16, 2021. (Doc. 14). The requirement. Resolution of the parties' pending motions is stayed Magistrate recommended that Defendants' Motion to Dismiss until the Court is satisfied that subject matter jurisdiction exists (Doc. 9) be GRANTED in part as to Counts VI and VII, without for the Court to resolve those outstanding matters. prejudice, and DENIED in all other respects. (Doc. 14 at 31). - IT IS HEREBY ORDERED that the current pending matters in - Pursuant to 28 U.S.C. § 636(b)(1), parties are required to file this case (Docs. 39, 44, and 60) are stayed pending resolution of written objections within 14 days of the filing of the Magistrate's the subject matter jurisdiction question. Briefs on the question Findings and Recommendation. No objections were filed. When must be submitted by the following deadlines: neither party objects, this Court reviews the Magistrate's Findings - 1) Defendant Mountain West shall file their initial brief and Recommendation for clear error. McDonnell Douglas Corp. within fourteen (14) days of the filing of this Order; v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. - 2) Plaintiffs shall file their response brief within fourteen 1981). Clear error exists if the Court is left with a "definite and (14) days of the filing of Mountain West's brief; firm conviction that a mistake has been committed." United - 3) Should they wish to do so, Mountain West shall file a States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). After reply brief within fourteen (14) days of the filing of

3/12/2019 Montana Advance Sheets - Federal Court Rulings [pp. 36-46] Page 40 Plaintiffs' brief. Desrosiers v. Sec. of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988). . ! BURDEN OF PROOF - A claimant is disabled for purposes of the Social Security Act if NATURAL RESOURCES the claimant demonstrates by a preponderance of the evidence ENVIRONMENT that (1) the claimant has a "medically determinable physical or mental impairment which can be expected to result in death or 32. Friends Of The Crazy Mountains, a public land organization, et which has lasted or can be expected to last for a continuous al., Plaintiffs, v. MARY ERICKSON, in her official capacity as period of not less than twelve months;" and (2) the impairment Forest Supervisor for the Custer Gallatin National Forest, et al., or impairments are of such severity that, considering the Defendants. No. CV 19-66-BLG-SPW-TJC. United States District claimant's age, education, and work experience, the claimant is Court, D. Montana, Billings Division. February 26, 2021. not only unable to perform previous work but also cannot ! ORDER "engage in any other kind of substantial gainful work which ! TIMOTHY J. CAVAN, Magistrate Judge. exists in the national economy." Schneider v. Comm'r of the Soc. - The parties' have filed a Joint Motion to Vacate the October 29, Sec. Admin., 223 F.3d 968, 974 (9th Cir. 2000) (citing 42 2020 Scheduling Order. (Docs. 44, 61.) The parties agree that U.S.C. § 1382(a)(3)(A), (B)). since the Court ordered joinder of Defendants M Hanging Lazy - Social Security Administration regulations provide a five-step 3, LLC and Henry Guth Incorporated (Doc. 46), it would be sequential evaluation process to determine disability. Bustamante appropriate to stay the briefing schedule until the pending v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. Second Motion to Complete the Administrative Record (Doc. 51) §§ 404.1520, 416.920. The five steps are: is disposed. (Doc. 61 at 2.) Good cause appearing, - 1. Is the claimant presently working in a substantially gainful - IT IS HEREBY ORDERED that the motion is GRANTED. The activity? If so, the claimant is not disabled within the briefing schedule in the Amended Scheduling Order (Doc. 44) is meaning of the Social Security Act. If not, proceed to step VACATED. The parties shall file a joint, proposed briefing two. See 20 C.F.R. §§ 404.1520(b), 416.920(b). schedule within 14 days after the Court rules on Plaintiffs' - 2. Is the claimant's impairment severe? If so, proceed to step Second Motion to Complete the Administrative Record (Doc. three. If not, the claimant is not disabled. See 20 C.F.R. §§ 51). 404.1520(c), 416.920(c). - 3. Does the impairment "meet or equal" one of a list of specific impairments described in 20 C.F.R. Part 220, SOCIAL SECURITY Appendix 1? If so, the claimant is disabled. If not, proceed DISABILITY to step four. See 20 C.F.R. §§ 404.1520(d), 416.920(d). - 4. Is the claimant able to do any work that he or she has 33. Pulst v. Saul, Dist. Court, D. Montana 2021 DARIN J. PULST, done in the past? If so, the claimant is not disabled. If not, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social proceed to step five. See 20 C.F.R. §§ 404.1520(e), Security, Defendant. Cause No. CV-19-48-GF-JTJ United States 416.920(e). District Court, D. Montana, Great Falls Division. February 26, - 5. Is the claimant able to do any other work? If so, the 2021 claimant is not disabled. If not, the claimant is disabled. See ! ORDER 20 C.F.R. §§ 404.1520(f), 416.920(f). ! JOHN JOHNSTON, Magistrate Judge. - Bustamante, 262 F.3d at 954. The claimant bears the burden of ! INTRODUCTION proof at steps one through four. See id. The Commissioner bears - Plaintiff Darin Pulst ("Pulst" or "Plaintiff") brings this action the burden of proof at step five. See id. under 42 U.S.C. § 405(g) seeking judicial review of an ! BACKGROUND unfavorable decision by the Commissioner of Social Security ! I. THE ALJ'S DETERMINATION ("Commissioner" or "Defendant"). (Docs. 2 & 11). Pulst was - The ALJ followed the 5-step sequential evaluation process in denied disability benefits at the initial and reconsideration levels. evaluating Plaintiff's claim. At step one, the ALJ found that (Doc. 9 at 111, 115). Administrative Law Judge ("ALJ") Michele Plaintiff met the insured status requirements of the Social M. Kelley issued an unfavorable decision on September 19, Security Act through December 31, 2020. (Doc. 9 at 17). The 2018. (Doc. 9 at 11-27). Defendant filed the Administrative ALJ further found that Plaintiff had not engaged in substantial Record on October 8, 2019. (Doc. 9). gainful activity since August 24, 2015. (Doc. 9 at 17). - Plaintiff filed an opening brief on December 5, 2019. (Doc. 11). - At step two, the ALJ found that through the date last insured, He asks the Court either to reverse or remand the decision of the Plaintiff had the following severe impairments: left knee ALJ. (Doc. 11 at 8). Plaintiff's case is fully briefed and ripe for derangement, post status repair of anterior cruciate ligament, the Court's review. (Docs. 11, 15, 16). osteoarthritis of the bilateral shoulders, osteoarthritis of the ! JURISDICTION cervical spine, osteoarthritis of the lumbar spine, and asthma. - The Court has jurisdiction over this action under 42 U.S.C. § (Doc. 9 at 17). 405(g). Venue is proper given that Plaintiff resides in Cascade - At step three, the ALJ found that Plaintiff did not have an County, Montana. 29 U.S.C. § 1391(e)(1); L.R. 1.2(c)(3). impairment or combination of impairments that met or medically ! PROCEDURAL BACKGROUND equaled the severity of one of the listed impairments in 20 - Plaintiff protectively filed a Title II application for a period of C.F.R. pt. 404, subpt. P, app. 1. (Doc. 9 at 18). disability and disability insurance benefits in July 2016, alleging - At step four, the ALJ found that Plaintiff possessed the following disability beginning August 24, 2015. (Doc. 9 at 14). The ALJ residual functional capacity: identified that Plaintiff had severe impairments including left - to perform a range of sedentary and light work as defined in knee derangement, post status repair of anterior cruciate ligament, 20 CFR 404.1567(a) as follows: The claimant is limited to osteoarthritis of the bilateral shoulders, osteoarthritis of the lifting, carrying, pushing and pulling 10 pounds occasionally cervical spine, osteoarthritis of the lumbar spine, and asthma. and less than 10 pounds frequently. The claimant is limited (Doc. 9 at 17). The ALJ further found that Plaintiff maintained to walking and standing about 6 hours in an 8-hour workday. the residual functional capacity to perform light work. (Doc. 9 at The claimant is limited to sitting about 6 hours in an 8-hour 19). The ALJ concluded that Plaintiff was not disabled as workday. The claimant must be able to change positions defined in the social Security Act from august 24, 2015 through during normal breaks and every two hours. The claimant the date of the decision. (Doc. 9 at 27). The Appeals Council cannot reach over should level with the left upper extremity rejected Plaintiff's appeal on May 25, 2019. (Doc. 9 at 1-6). and cannot reach overhead with the right upper extremity. Plaintiff subsequently filed the instant action. (Doc. 1). The claimant is limited to frequently reaching in front and ! STANDARD OF REVIEW laterally with the bilateral upper extremities from the - The Court conducts a limited review in this matter. The Court shoulders, but there is no limitation in reaching or bending may set aside the Commissioner's decision only where the the elbows forward. The claimant is limited to occasionally decision is not supported by substantial evidence or where the pushing and pulling with both upper extremities and the left decision is based on legal error. Bayliss v. Barnhart, 427 F.3d lower extremity. The claimant is limited to frequently 1211, 1214 n.1 (9th Cir. 2005). Substantial evidence is "such handling, fingering and feeling with the non-dominant right relevant evidence as a reasonable mind might accept as adequate upper extremity. The claimant is limited to occasionally to support a conclusion." Richardson v. Perales, 402 U.S. 389, climbing ramps and stairs. The claimant is limited to 401 (1971). Substantial evidence also has been described as occasionally balancing, stooping, and crouching. The claimant "more than a mere scintilla," but "less than a preponderance." cannot climb ladders, ropes or scaffolds. The claimant cannot

3/12/2019 Montana Advance Sheets - Federal Court Rulings [pp. 36-46] Page 41 kneel or crawl. The claimant must avoid concentrated ALJ must set forth interpretations and explain why those exposure to extreme cold, fumes, odors, dusts, gases, poor conclusions, rather than the doctor's, are correct. Reddick, 157 ventilation, vibrations as well as work hazards including F.3d at 725. A non-examining physician's opinion cannot unprotected heights and dangerous machinery. constitute, by itself, substantial evidence that justifies the - (Doc. 9 at 19-20). Based on this residual functional capacity, the rejection of a treating or examining physician's opinion. Lester, ALJ found that Plaintiff could not perform his past relevant work 81 F.3d at 831. A non-treating, non-examining physician's as a sawmill worker. (Doc. 9 at 25). findings can amount to substantial evidence if other evidence in - At step five, the ALJ concluded that Plaintiff remained capable the record supports those findings. Saelee v. Chater, 94 F.3d of making a successful adjustment to other work that existed in 520, 522 (9th Cir. 1996). numbers in the national economy considering Plaintiff's age, - An ALJ may discredit a treating physician's opinions that are education, work experience, and residual functional capacity. conclusory, brief, or unsupported by the record as a whole or (Doc. 9 at 26-27). Thus, the ALJ concluded that Plaintiff was objective medical findings. Batson v. Comm'r of Soc. Sec., 359 not disabled. (Doc. 9 at 27). F.3d 1190, 1195 (9th Cir. 2001). An ALJ can meet this burden ! II. Plaintiff's Position by setting out a detailed and thorough summary of the facts and - Plaintiff argues that the ALJ erred in the three following ways: conflicting clinical evidence, stating her interpretation thereof, (1) failing to set forth the weight granted the surgical findings and making findings. Magallanes v. Bowen, 881 F.2d 747, 751 from neurosurgeons Dale Schaefer, Benny Brandvold, orthopedic (9th Cir. 1980). surgeon John Michelotti, and the treating physicians, without - The uncontroverted opinions of the claimant's physicians on the meeting the requisite standards; (2) failing to meet the specificity ultimate issue of disability do not bind an ALJ, but an ALJ requirements of Brown-Hunter v. Colvin, 359 F.3d 487 (9th Cir. cannot reject those opinions without presenting clear and 2015), in order to deny Pulst's descriptions of his physical convincing reasons for doing so. Matthews v. Shalala, 10 F.3d limitations, supported by objective tests and all treating 678, 680 (9th Cir. 1993). A court can reject a treating physician's physicians' notes; and, (3) failing to incorporate Plaintiff's controverted opinion on disability only with specific and uncontested impairments into the vocational consultant's legitimate reasons supported by substantial evidence in the hypothetical question. (Doc. 11 at 3). record. "In sum, reasons for rejecting a treating doctor's credible ! III. Commissioner's Position opinion on disability are comparable to those required for - The Commissioner asserts that the Court should affirm the ALJ's rejecting a treating doctor's medical opinion." Reddick v. Chater, decision because she properly concluded that Plaintiff was not 157 F.3d 715, 725 (9th Cir. 1988) (internal citations omitted). disabled. (Doc. 15 at 2-3). Alternatively, if the Court determines ! II. Application to Pulst's Claim that the ALJ committed an error in the analysis, the - The ALJ found that Plaintiff's "medically determinable Commissioner argues a remand for further proceedings would impairments could reasonably be expected to cause the alleged constitute the appropriate remedy. (Doc. 15 at 9-10). symptoms." (Doc. 9 at 20). The ALJ found further, however, that ! DISCUSSION Plaintiffs' statements concerning the intensity, persistence, and - Plaintiff argues that the ALJ erred in three distinct ways. For the limiting effects of those symptoms were "not entirely consistent reasons set forth below, the Court agrees that the ALJ improperly with medical evidence and other evidence in the record." (Doc. discounted the findings, diagnoses, and objective results from 9 at 20). In making this finding, the ALJ considered the opinions multiple treating physicians and, accordingly, improperly denied of state agency medical consultants, treating physicians, and Plaintiff's claim for disability benefits. Those errors prove testimonial evidence. (Doc. 9 at 20-25). dispositive and the Court reverses the case for an award of - Plaintiff claims disability based on a compound set of symptoms benefits based on those errors alone. It proves unnecessary to including neck pain, back pain, left knee pain, right shoulder address Plaintiff's alternative arguments. pain, left shoulder pain, right arm pain, and respiratory issues. ! I. Legal Standard The ALJ analyzed each symptom in turn, noting briefly the - In assessing a disability claim, an ALJ may rely on the opinions evidence considered in finding that Plaintiff still could perform of three types of physicians as follows: "(1) those who treat the work. (Doc. 9 at 20-25). In the case of Plaintiff's left knee pain, claimant (treating physicians); (2) those who examine but do not cervical osteoarthritis, lumbar osteoarthritis, and shoulder pain, treat the claimant (examining physicians); and (3) those who the ALJ improperly discounted the findings, diagnoses, and neither examine nor treat the claimant (non-examining objective results from multiple treating physicians and, physicians)." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). accordingly, improperly denied Plaintiff's claim for disability The ALJ should afford each physician's opinion a certain amount benefits. (Doc. 11 at 4-14 (summarizing the lengthy medical of deference based on that physician's classification. A treating findings in the administrative record)). physician's opinion deserves the greatest weight. Id. ("As a - Regarding Plaintiff's left knee pain, the ALJ noted Plaintiff's general rule, more weight should be given to the opinion of a extensive history of left knee pain including multiple surgeries treating source than to the opinion of doctors who did not treat and continued treatment via injection that did not fully alleviate the claimant."); see also 20 C.F.R. § 404.1527(c)(2). An knee pain. (Doc. 9 at 20). The ALJ further noted that treating examining physician's opinion is entitled, in turn, to a greater physicians diagnosed osteoarthritis of the lateral compartment of weight than a non-examining physician's opinion. Lester, 81 F.3d the left knee requiring ongoing treatment. (Doc. 9 at 21). The at 830. ALJ dismissed the surgical evidence, diagnosis evidence, and - An ALJ should afford a treating physician's opinion deference treatment evidence based on the assertion that "most" physical because the treating physician "is employed to cure and has a examinations found Plaintiff had a good range of motion and that greater opportunity to know and observe the patient as an only a "few" physical examinations found the claimant had individual." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d discomfort in range of motion testing. (Doc. 9 at 21). The ALJ 595, 600 (9th Cir. 1999) (quoting Sprague v. Bowen, 812 F.2d provided no citation for this back-of-the-envelope statistical 1226, 1230 (9th Cir. 1987)). Despite this deference, a treating analysis and provided no justification for providing greater physician's opinion is not necessarily conclusive as to either the weight to certain examinations above others. The ALJ further physical condition or the ultimate issue of disability. Tonapetyan provided no justification for why those physical examinations v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) ("Although a would outweigh the other evidence. treating physician's opinion is generally afforded the greatest - The ALJ compounded the mistaken analysis of Plaintiff's left weight in disability cases, it is not binding on an ALJ with knee pain when the ALJ provided disproportionate weight to respect to the existence of an impairment or the ultimate non-treatment considerations such as Plaintiff's apparent ability determination of disability."). to "care for his child" or ride an exercise bike for 15 minutes. - An ALJ should reject a treating physician's opinion only under (Doc. 9 at 20). In weighing those non-treatment considerations, certain circumstances. Lester, 81 F.3d at 830. An ALJ must the ALJ failed to note that a treating physician recorded in provide "specific and legitimate reasons supported by substantial medical records that Plaintiff complained that he had difficulty evidence in the record" when discounting a treating physician's carrying his child because of arm weakness and even had uncontradicted opinion. Molina v. Astrue, 674 F.3d 1104, 1111 dropped his child when his arm gave out. (Doc. 9 at 646-50). (9th Cir. 2012) (internal quotations omitted); Reddick v. Chater, The ALJ further failed to note that Plaintiff's exercise bike 157 F.3d 715, 725 (9th Cir. 1998). An ALJ may accomplish this activity continued at the request of his treating physician, and task by setting forth "a detailed and thorough summary of the that medical examination continued to show numbness, muscle facts and conflicting clinical evidence, stating his interpretation spasms, and muscle pain despite that limited exercise. (Doc. 9 at thereof, and making findings." Magallanes v. Bowen, 881 F.2d 745-46). The Commissioner's invocation of Plaintiff's ability to 747, 751 (9th Cir. 1989). "attend church" as evidence that Plaintiff is not disabled cannot - An ALJ must do more than simply offer her conclusions. An contravene the objective medical findings of treating physicians.

3/12/2019 Montana Advance Sheets - Federal Court Rulings [pp. 36-46] Page 42 (Doc. 15 at 5-6). "It is an error for an ALJ to pick out a few Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). When the record isolated instances of improvement over a period of months or is fully developed and further proceedings would serve no useful years and to treat them as a basis for concluding a claimant is purpose, the Court may remand for an immediate award of capable of working." Garrison v. Colvin, 759 F.3d 995, 1017 benefits. Id. Remand for an award of benefits proves appropriate (9th Cir. 2014). if there are no outstanding issues that must be resolved before a - Regarding Pulst's cervical osteoarthritis, the ALJ noted evidence determination of disability can be made and if it is clear from the of pain, diminished range, and issues with marginal spurs and record that the ALJ would be required to find the claimant denervation. (Doc. 9 at 21). Treating physicians consistently disabled if the ALJ properly had credited a treating or examining confirmed these findings through examination and tests. (Doc. 9 physician's opinion. Id. (citing Harman v. Apfel, 211 F.3d 1172, at 21). The ALJ discounted the consistent evidence of disability 1178 (9th Cir. 2000)). with two pieces of evidence. First, the ALJ noted that a treating - Remand for an immediate award of benefits proves appropriate physician Benny Brandvold, MD, opined that radiographic here. The record is fully developed, and further proceedings findings from one test "do not always correlate" with the would serve no useful purpose. No outstanding issues exist that symptoms of neck pain and upper extremity numbness. (Doc. 9 must be resolved before a determination of disability can be at 21 (emphasis added)). The ALJ failed to note that another made. It is clear from the record that the ALJ would have been treating physician, Ryan Boer, MD, had found that Plaintiff's required to find Plaintiff disabled from August 24, 2015, if the pathology was consistent with neck pain as well as upper ALJ had credited properly the opinions of treating physicians. extremity weakness and numbness. (Doc. 9 at 657-60). The ALJ See Beneke, 379 F.3d at 593. The Court will reverse the provided no justification for weighing statistical speculation that Commissioner's final decision denying Plaintiff disability findings "do not always correlate" with a symptom over the insurance benefits and remand for an immediate award of finding of another physician with a definitive diagnosis. The ALJ benefits. next relied on the above-described flawed testimonial evidence - ORDER that Plaintiff retains the capability to care for his child. (Doc. 9 - Accordingly, IT IS HEREBY ORDERED that: at 21). The ALJ failed to show why these isolated and unclear - 1. Plaintiff's Motion (Doc. 11) is GRANTED. pieces of evidence would outweigh the conclusive and objective - 2. The Commissioner's final decision denying Plaintiff's claims findings of treating physicians both mentioned and unmentioned for disability insurance benefits is REVERSED and REMANDED in the opinion. for an immediate award of benefits from August 24, 2015, - Regarding Plaintiff's lumbar osteoarthritis, the ALJ noted through the date last insured. complaints of pain consistent with extensive medical - 3. The Clerk of Court is directed to enter judgment accordingly. examinations by treating physicians. (Doc. 9 at 22). The ALJ found "most physical examinations" diagnosed reduced range of motion, mild to average pain consistent with Plaintiff's claims. PRO HAC VICE (Doc. 9 at 22). The ALJ noted that a radiology report found ATTORNEYS degenerative disc disease, and that further imaging identified a right lateral recess disc extrusion with mass effect on the nerve 34. Friends of the Crazy Mountains, a public land organization, et roots. (Doc. 9 at 22). The ALJ discounted that consistent al., Plaintiffs, v. MARY ERICKSON, in her official capacity as evidence of disability after noting that a "majority of the Forest Supervisor for the Custer Gallatin National Forest, et al., claimant's physical examinations" found normal gait and station. Defendants. No. CV 19-66-BLG-SPW-TJC. United States District (Doc. 9 at 22). It remains unclear why this isolated finding Court, D. Montana, Billings Division. February 26, 2021. would counteract the overwhelming evidence otherwise described. ! ORDER The ALJ further discounted the evidence of disability with a ! TIMOTHY J. CAVAN, Magistrate Judge. brief note that Plaintiff could ride a stationary bike and lift his - Defendants M Hanging Lazy 3, LLC and Henry Guth, child into a car seat or bathtub. (Doc. 9 at 22, 58, 62). The ALJ Incorporated move for the admission of Jeffrey W. McCoy to again failed to show why these isolated pieces of evidence would practice before this Court in this case with Ethan W. Blevins to outweigh the conclusive and objective findings of treating act as local counsel. Mr. McCoy's application appears to be in physicians both mentioned and unmentioned in her opinion. order. - Finally, the ALJ's analysis of Plaintiff's shoulder pain suffers - Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion from the same flaws. The ALJ identified an extensive medical to admit Jeffrey W. McCoy pro hac vice is GRANTED on the history of ongoing pain, numbness, and arm weakness in both condition that Mr. McCoy shall do his own work. This means shoulders. (Doc. 9 at 22-23). The ALJ dismissed the evidence that Mr. McCoy must do his own writing, sign his own from treating physicians based on some improvement in the left pleadings, motions, and briefs, and appear and participate shoulder range of motion in certain tests, some improvement in personally. Counsel shall take steps to register in the Court's right arm strength in one test, and the non-treatment evidence electronic filing system ("CM-ECF"). Further information is that Plaintiff could carry his child. (Doc. 9 at 22-23). The ALJ available on the Court's website, www.mtd.uscourts.gov, or from again failed to show why these isolated pieces of evidence would the Clerk's Office. outweigh the conclusive and objective findings of treating - IT IS FURTHER ORDERED that this Order is subject to physicians both mentioned and unmentioned in her opinion. withdrawal unless Mr. McCoy, within fifteen (15) days of the - The ALJ improperly discounted the findings, diagnoses, and date of this Order, files a pleading acknowledging his admission objective results from multiple treating physicians and, under the terms set forth above. accordingly, improperly denied Plaintiff's claim for disability benefits. In rejecting the opinions of treating physicians, the ALJ 35. Friends of the Crazy Mountains, a public land organization, et needed to do more than offer different conclusions. See Orn v. al., Plaintiffs, v. MARY ERICKSON, in her official capacity as Astrue, 495 F.3d 625, 632 (9th Cir. 2007). The ALJ needed to Forest Supervisor for the Custer Gallatin National Forest, et al., set forth reasoned interpretations and explain why those Defendants. No. CV 19-66-BLG-SPW-TJC. United States District interpretations, rather than the doctors' opinions, are correct. Id. Court, D. Montana, Billings Division. February 26, 2021. In most cases, the treating physicians' opinions remain entitled to ! ORDER the greatest weight and should be adopted. Lester, 81 F.3d at ! TIMOTHY J. CAVAN, Magistrate Judge. 830. - Defendants M Hanging Lazy 3, LLC and Henry Guth, - Put simply, the ALJ must provide a good reason for the weight Incorporated move for the admission of Jonathan Wood to that the ALJ affords the treating physicians' opinions. See 20 practice before this Court in this case with Ethan W. Blevins to C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The ALJ's justification act as local counsel. Mr. Wood's application appears to be in for granting the treating physicians' opinions such little weight order. remains insufficient. As explained above, the ALJ failed to - Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion explain adequality why interpretations, rather than the doctors' to admit Jonathan Wood pro hac vice is GRANTED on the opinions, were correct. The ALJ accordingly erred by affording condition that Mr. Wood shall do his own work. This means that such little weight to the treating source's opinions. The ALJ Mr. Wood must do his own writing, sign his own pleadings, committed legal error when failing to provide a good reason for motions, and briefs, and appear and participate personally. declining to afford any deference to the treating physician's Counsel shall take steps to register in the Court's electronic filing opinions. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). system ("CM-ECF"). Further information is available on the ! III. Remedy Court's website, www.mtd.uscourts.gov, or from the Clerk's - "Remand for further administrative proceedings is appropriate if Office. enhancement of the record would be useful." Benecke v. - IT IS FURTHER ORDERED that this Order is subject to

3/12/2019 Montana Advance Sheets - Federal Court Rulings [pp. 36-46] Page 43 withdrawal unless Mr. Wood, within fifteen (15) days of the date of this Order, files a pleading acknowledging his admission under CRIMINAL: SCHEDULES, the terms set forth above. DISMISSALS, MISC CIVIL: SCHEDULES, 41. UNITED STATES OF AMERICA, Plaintiff, v. DOMINIQUE SEBASTIAN Paris, Defendant. No. CR 19-119-BLG-SPW. United SETTLEMENTS, MISC States District Court, D. Montana, Billings Division. March 1, 2021. ! ORDER SETTING SENTENCING 36. KELLI JO Carter-Benson, and EDGAR CARTER, Plaintiffs, v. ! SUSAN P. WATTERS, District Judge. CITY OF GREAT FALLS; ADAM OLSON; MICHAEL - Defendant entered his plea of guilty before U.S. Magistrate Judge DRAPER; AARON McADAM; WILLIAM BROOKS and JOHN Timothy J. Cavan in open court on February 12, 2021. United AND JANE DOES 6-10, Defendants. Cause No. States Magistrate Judge Timothy J. Cavan entered Findings and CV-18-113-GF-JTJ. United States District Court, D. Montana, Recommendation in this matter on February 12, 2021 (Doc. 96). Great Falls Division. March 1, 2021. No objections having been filed within fourteen days thereof, ! ORDER FOR DISMISSAL WITH PREJUDICE - IT IS HEREBY ORDERED that Judge Cavan's Findings and ! JOHN JOHNSTON, Magistrate Judge. Recommendations (Doc. 96) are ADOPTED IN FULL; - THIS MATTER coming on for dismissal on the stipulation of the - Therefore, parties, it is - IT IS HEREBY ORDERED that, - ORDERED that the above-entitled action and complaint be - 1. Sentencing is set for Thursday, July 8, 2021 at 2:30 p.m., in dismissed with prejudice, with each party to pay his or its own the James F. Battin Courthouse, 2601 Second Avenue North, costs and attorney's fees. Billings, Montana. - 2. The United States Probation Office shall conduct a 37. Marquis Cattle Company, a Montana corporation, Plaintiff, v. presentence investigation and prepare a presentence report. Fed. CHUCK MURDOCH d/b/a C&M CATTLE and GARY R. Crim. P. 32(c), (d); 18 U.S.C. § 3552(a). SPIELMAN d/b/a G&M AGVENTURE, Defendants. Cause No. - 3. The probation officer shall disclose the completed report, CV-19-87 GF-JTJ. United States District Court, D. Montana, Great except for recommendations of the probation officer as follows: Falls Division. March 1, 2021. two copies to counsel for Defendant, and one copy to counsel for ! ORDER ADOPTING STIPULATION the government on or before May 24, 2021. The probation ! JOHN JOHNSTON, Magistrate Judge. officer shall not disclose any recommendation made or to be - The parties have filed a Stipulation to Amend Joint Discovery made to the Court. Plan for Jurisdictional Discovery on March 1, 2021. Based upon - 4. If restitution is mandatory, the probation officer shall discuss that Stipulation and good cause appearing, it is hereby ordered a payment plan with Defendant and shall make recommendations that the Joint Discovery Plan for Jurisdictional Discovery is to the Court concerning interest and a payment schedule. amended as follows: - 5. Counsel shall attempt in good faith to resolve disputes over - 1. The parties shall have until May 3, 2021, to complete any material in the presentence report. Unresolved objections to jurisdictional discovery which includes, but may not be limited be relied upon at sentencing shall be presented to the probation to, depositions, written discovery, and third-party subpoenas. officer on or before June 3, 2021. U.S.S.G. § 6A1.2. If there is - 2. The parties shall simultaneously file supplemental jurisdictional a dispute over any material in the presentence report, counsel briefing and notify the Court as to whether a formal hearing is shall meet with the probation officer and attempt to resolve requested on or before May 17, 2021. disputes informally by diligent good faith effort. Any requests for - All other matters in the Joint Discovery Plan for Jurisdictional extensions of time to present objections to the probation officer Discovery unchanged by the parties Stipulation shall remain the must be granted by the Court. Extensions will not be granted same. absent compelling reasons. Any unresolved objections are expected to be included in the pre-sentence report, not in a 38. MARY L. LAWLER and JAMES Lawler, Plaintiffs, v. sentencing memorandum. ETHICON, INC., ETHICON, LLC and JOHNSON & - 6. The presentence report, in final form, including any unresolved JOHNSON, Defendants. No. CV 21-14-M-DWM. United States objections, shall be delivered to the Court and the parties on or District Court, D. Montana, Missoula Division. March 2, 2021. before June 17, 2021. ! ORDER - 7. Sentencing memoranda and supporting documents addressing ! DONALD W. MOLLOY, District Judge. all relevant sentencing issues shall be filed on or before June 24, - Plaintiffs Mary L. Lawler and James Lawler having filed a 2021. Absent good cause shown, sentencing memoranda and motion for voluntary dismissal pursuant to Federal Rule of Civil supporting documents filed after June 24, 2021 will not be Procedure 41(a)(1)(A)(ii), considered in addressing sentencing issues. Failure to timely file - IT IS ORDERED that the above-captioned cause is DISMISSED sentencing memoranda may result in imposition of sanctions WITHOUT PREJUDICE, each party to pay its own costs. All against counsel. pending motions are MOOT and all deadlines are VACATED. - 8. Responses to sentencing memoranda shall be filed on or before July 1, 2021. 39. Red Lodge Ales Brewing Co., a Montana corporation, - 9. Reply briefs will not be accepted for filing in sentencing Plaintiff/Counter-Defendant, v. AXIOM LLC d/b/a LOCKHORN matters. HARD CIDER, a Montana limited liability company, - 10. The Court will resolve objections included in the Addendum Defendant/Counter-Claimant. No. CV 20-1I9-BLG-SPW United to the presentence report at the sentencing hearing in accordance States District Court, D. Montana, Billings Division. February 26, with U.S.S.G. § 6A1.3. 2021. - 11. All parties that intend to have witnesses testify at sentencing ! ORDER shall give notice to this Court ten (10) days prior to the ! SUSAN P. WATTERS, District Judge. sentencing date. - Upon the Stipulation of Dismissal with Prejudice(Doc. 37) - 12. Defendant is to remain in the custody of U.S. Marshals between the parties hereto, by and between their counsel of pending sentencing. record, - The clerk shall promptly notify counsel and the probation office - IT IS HEREBY ORDERED that all claims and counterclaims in of the entry of this Order. the above-entitled cause are dismissed with prejudice, with each party to bear their own costs and attorney's fees. 42. United States v. Vishal, Dist. Court, D. Montana 2021 UNITED STATES OF AMERICA, Plaintiff, v. PATEL D. VISHAL, 40. State Farm Mut. Auto Ins. Co., Plaintiff, v. ESTATE OF ERIC Defendant. No. 21-PO-5047-GF-JTJ. United States District Court, CARLSON, Defendant. CV 20-12-BLG-TJC. United States D. Montana, Great Falls Division. March 1, 2021. District Court, D. Montana, Billings Division. February 26, 2021. ! ORDER ! ORDER OF DISMISSAL WITH PREJUDICE ! JOHN JOHNSTON, Magistrate Judge. ! TIMOTHY J. CAVAN, Magistrate Judge. ! VIOLATION: 9712202 Location Code: M13 - Pursuant to the parties' Stipulation for Dismissal With - Based upon the unopposed motion of the United States and for Prejudice (Doc. 45), and good cause appearing, good cause appearing, - IT IS HEREBY ORDERED that this action is dismissed with - IT IS HEREBY ORDERED that the defendant shall pay a total prejudice, with each party to bear their own attorneys' fees fine amount of $240 ($210 fine and $30 processing fee) for and costs. violation number 9712202. Payment is due on or before April 1,

3/12/2019 Montana Advance Sheets - Federal Court Rulings [pp. 36-46] Page 44 2021. Payment(s) should be mailed to the following address: scheduled for March 25, 2021, at 11:00 a.m. from Core Civic - Central Violations Bureau P.O. Box 71363 Philadelphia, PA facility in Shelby, Montana. XXXXX-XXXX - The check(s) should be made out to the U.S. Courts — CVB. 47. United States v. Mann, Dist. Court, D. Montana 2021 UNITED Defendant may also pay online at www.cvb.uscourts.gov. STATES OF AMERICA, Plaintiff, v. NATHAN J. MANN, - IT IS ALSO ORDERED that violation 9712202 is AMENDED Defendant. No. PO 21-5059-GF-JTJ. United States District Court, to reflect a violation of 36 C.F.R. 2.34(a)(4), Disorderly Conduct. D. Montana, Great Falls Division. March 3, 2021. - IT IS FURTHER ORDERED that the bench trial in the above ! ORDER captioned matter, currently scheduled for March 4, 2021, is ! JOHN JOHNSTON, Magistrate Judge. VACATED. ! VIOLATIONS: 9712433, 9712434 ! Location Code: M13 43. UNITED STATES OF AMERICA, Plaintiff, v. CLACEY - Based upon the unopposed motion of the United States and for Pederson, Defendant. No. CR 07-131-BLG-SPW. United States good cause appearing, IT IS HEREBY ORDERED that the District Court, D. Montana, Billings Division. March 2, 2021. defendant shall pay a total fine amount of $350 for these ! ORDER violations as outlined in the government's unopposed motion. ! SUSAN P. WATTERS, District Judge. Payment is due on or before June 1, 2021. Payment(s) should be - For the reasons stated on the record, CLACEY PEDERSON is mailed to the following address: hereby released from the custody of the U.S. Marshals Service. - Central Violations Bureau P.O. Box 780549 San Antonio, TX 78278 44. UNITED STATES OF AMERICA, Plaintiff, v. KEVIN H. Zanes, - The check(s) should be made out to the U.S. Courts — CVB. Defendant. No. PO 21-05087-GF-JTJ. United States District Court, Defendant may also pay online at www.cvb.uscourts.gov. D. Montana, Great Falls Division. March 2, 2021. - IT IS FURTHER ORDERED that the initial appearance in the ! ORDER above captioned matter, currently scheduled for March 4, 2021, ! JOHN JOHNSTON, Magistrate Judge. is VACATED. ! VIOLATION: 9711022 Location Code: M13 - Based upon the United States' motion to accept the defendant's 48. UNITED STATES OF AMERICA, Plaintiff, v. ANGELA R.M. payment of a $45 fine and $30 processing fee for violation NORTH Piegan, Defendant. No. PO 20-05068-GF-JTJ. United 9711022 (for a total of $75), and for good cause shown, IT IS States District Court, D. Montana, Great Falls Division. March 3, ORDERED that the $75 fine paid by the defendant is accepted 2021. as a full adjudication of violation 9711022. ! ORDER - IT IS FURTHER ORDERED that the initial appearance ! JOHN JOHNSTON, Magistrate Judge. scheduled for March 4, 2020, is VACATED. ! VIOLATION: 9711027 ! Location Code: M13 45. UNITED STATES OF AMERICA, Plaintiff, v. RICK RYAN - Based upon the United States' motion to accept the defendant's Garcia, Defendant. No. CR 20-29-BU-DLC. United States District payment of a $150 fine and $30 processing fee for violation Court, D. Montana, Butte Division. March 3, 2021. 9711027 (for a total of $180), and for good cause shown, IT IS ! ORDER ORDERED that the $180 fine paid by the defendant is accepted ! DANA L. CHRISTENSEN, District Judge. as a full adjudication of violation 9711027. - United States Magistrate Judge Kathleen L. DeSoto entered - IT IS FURTHER ORDERED that the initial appearance Findings and Recommendations in this matter on February 12, scheduled for March 4, 2021, is VACATED. 2021. (Doc. 39.) Neither party objects, and so the Court will review for clear error. United States v. Reyna-Tapia, 328 F.3d 49. United States v. Rocha, Dist. Court, D. Montana 2021 UNITED 1114, 1121 (9th Cir. 2003); Thomas v. Arn, 474 U.S. 140, 149 STATES OF AMERICA, Plaintiff, v. LUIS ALBERTO ROCHA, (1985). Clear error exists if the Court is left with a "definite and Defendant. No. CR 20-31-BU-DLC. United States District Court, firm conviction that a mistake has been committed." United D. Montana, Butte Division. March 3, 2021. States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations ! ORDER omitted). ! DANA L. CHRISTENSEN, District Judge. - Judge DeSoto recommended this Court accept Defendant Rick - United States Magistrate Judge Kathleen L. DeSoto entered her Ryan Garcia's guilty plea after he appeared before her pursuant Findings and Recommendation Concerning Plea on February 16, to Federal Rule of Criminal Procedure 11, and entered a plea of 2021. (Doc. 25.) As neither party objected, they are not entitled guilty to one count of possession with intent to distribute to de novo review of the record. 28 U.S.C. § 636(b)(1); United controlled substances in violation of 21 U.S.C. § 841(a)(1) as set States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). forth in the Indictment.[1] Therefore, the Court reviews the Findings and Recommendation - The Court finds no clear error in Judge DeSoto's Findings and for clear error. McDonnel Douglas Corp. v. Commodore Bus. Recommendation, and adopts them in full, including the Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error recommendation to defer acceptance of the Plea Agreement until exists if the Court is left with a "definite and firm conviction that sentencing when the Court will have reviewed the Plea a mistake has been committed." United States v. Syrax, 235 F.3d Agreement and Presentence Investigation Report. Accordingly, 422, 427 (9th Cir. 2000). - IT IS ORDERED that the Findings and Recommendation (Doc. - Judge DeSoto recommends that the Court accept Luis Alberto 39) is ADOPTED in full. Garcia's motion to change plea (Doc. Rocha's guilty plea after Rocha appeared before her pursuant to 29) is GRANTED and he is adjudged guilty as charged in Count Federal Rule of Criminal Procedure 11, and entered a plea of I of the Indictment. guilty to one count of conspiracy to distribute cocaine in - [1] Count 1 of the Indictment charges Garcia under 21 U.S.C. § violation of 21 U.S.C. § 846, as set forth in the Superseding 841(a)(1). This is the crime Garcia pled guilty to before Judge Information. (See Doc. 20.) DeSoto. Nevertheless, the plea agreement signed and presented - Finding no clear error, IT IS ORDERED that the Court to the Court contains a typo. The plea agreement indicates that ADOPTS the Findings and Recommendation (Doc. 25) IN Garcia will plead guilty to 21 U.S.C. § 846. (Doc. 32 at 2.) If FULL. the parties would like the Court to accept their plea agreement - IT IS FURTHER ORDERED that Luis Alberto Rocha's motion at sentencing, they should execute and submit an amended to change plea (Doc. 16) is GRANTED, and Luis Alberto Rocha agreement. is adjudged guilty as charged in the Superseding Information.

46. UNITED STATES OF AMERICA, Plaintiff, v. JEFFREY 50. UNITED STATES OF AMERICA, Plaintiff, v. PHILLIP ROBERT Igoe, Defendant. Case No. CR 20-08-H-BMM United ANTHONY Campagna, Defendant. No. CR 20-40-BLG-SPW. States District Court, D. Montana, Great Falls Montana. March 3, United States District Court, D. Montana, Billings Division. February 2021. 26, 2021. ! ORDER ! ORDER SETTING SENTENCING ! BRIAN MORRIS, Chief District Judge. ! SUSAN P. WATTERS, District Judge. - Defendant Jeffrey Robert Igoe, having filed a Motion to Appear - Defendant entered his plea of guilty before U.S. Magistrate Judge for Sentencing by Video, there being no objection from the Timothy J. Cavan in open court on February 11, 2021. United Government; States Magistrate Judge Timothy J. Cavan entered Findings and - IT IS HEREBY ORDERED the Defendant, Jeffrey Robert Igoe Recommendation in this matter on February 11, 2021 (Doc. 30). may appear via video for the Sentencing Hearing, currently No objections having been filed within fourteen days thereof,

3/12/2019 Montana Advance Sheets - Federal Court Rulings [pp. 36-46] Page 45 - IT IS HEREBY ORDERED that Judge Cavan's Findings and Recommendations (Doc. 30) are ADOPTED IN FULL; - Therefore, - IT IS HEREBY ORDERED that, - 1. Sentencing is set for Thursday, July 8, 2021 at 1:30 p.m., in the James F. Battin Courthouse, 2601 Second Avenue North, Billings, Montana. - 2. The United States Probation Office shall conduct a presentence investigation and prepare a presentence report. Fed. R. Crim. P. 32(c), (d); 18 U.S.C. § 3552(a). - 3. The probation officer shall disclose the completed report, except for recommendations of the probation officer as follows: two copies to counsel for Defendant, and one copy to counsel for the government on or before May 24, 2021. The probation officer shall not disclose any recommendation made or to be made to the Court. - 4. If restitution is mandatory, the probation officer shall discuss a payment plan with Defendant and shall make recommendations to the Court concerning interest and a payment schedule. - 5. Counsel shall attempt in good faith to resolve disputes over any material in the presentence report. Unresolved objections to be relied upon at sentencing shall be presented to the probation officer on or before June 3, 2021. U.S.S.G. § 6A1.2. If there is a dispute over any material in the presentence report, counsel shall meet with the probation officer and attempt to resolve disputes informally by diligent good faith effort. Any requests for extensions of time to present objections to the probation officer must be granted by the Court. Extensions will not be granted absent compelling reasons. Any unresolved objections are expected to be included in the pre-sentence report, not in a sentencing memorandum. - 6. The presentence report, in final form, including any unresolved objections, shall be delivered to the Court and the parties on or before June 17, 2021. - 7. Sentencing memoranda and supporting documents addressing all relevant sentencing issues shall be filed on or before June 24, 2021. Absent good cause shown, sentencing memoranda and supporting documents filed after June 24, 2021 will not be considered in addressing sentencing issues. Failure to timely file sentencing memoranda may result in imposition of sanctions against counsel. - 8. Responses to sentencing memoranda shall be filed on or before July 1, 2021. - 9. Reply briefs will not be accepted for filing in sentencing matters. - 10. The Court will resolve objections included in the Addendum to the presentence report at the sentencing hearing in accordance with U.S.S.G. § 6A1.3. - 11. All parties that intend to have witnesses testify at sentencing shall give notice to this Court ten (10) days prior to the sentencing date. - 12. Defendant is released under the same terms and conditions pending sentencing. - The clerk shall promptly notify counsel and the probation office of the entry of this Order.

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