subjectindex2006

Exhaustion: (futility, Petitioners not required to exhaust administrative remedies in challenge of groundwater applications) Montana Trout Unlimited v. DNRC, 4/15:2

Judicial review: (review without administrative record improper) Owens v. DOR, 2/25:1

Agency

Agriculture

Appellate Procedure

Appealability: (appeal prior to fee ruling possibly premature) Johnston (AFM Contracting) v. Palmer, 1/7:2; (order denying motion to set aside default judgment not certified as final, appeal dismissed, bankruptcy automatic stay also implicated) Petrosol International v. Robin's Contracting, 1/7:2; (direct appeal of order granting new trial per Appel. Rule 1(b)(2), certification not required) Trust B Under Last Will of Dunham, 6/24:1; (findings/conclusions in trust extrinsic fraud case entered without jurisdiction following notice of appeal of order granting new trial on 4th Accounting, 2nd appeal dismissed as superfluous) Trust B. Under Last Will of Dunham, 9/16:3; (anticipation/inference of fees/costs ruling insufficient to make appeal of diesel cleanup judgment premature) Montana Petroleum Tank Release Compensation Board v. Federated Service Ins., 9/30:2; (sentence pending at time of appeal from Municipal Court due to conditional restitution order precluded consideration of PFMA restitution by District Court, appeal to Supreme Court likewise premature, notice of appeal from Municipal Court should be considered filed day of Municipal Court judgment, but right to appeal should not be prejudiced due to District Court error in taking premature jurisdiction) Bonamarte, 11/18:4; (Justice Court judgment while fees/costs motion pending ``voidable,'' not ``void,'' appealable to District Court, District Court judgment final determination of rights, remand for determination of fees/costs had no effect on appealable status of Justice Court judgment or ``final'' status of District Court judgment, Supreme Court has jurisdiction to hear appeal) Stanley v. Lemire, 11/25:3; (short extension of TRO not ripened into preliminary injunction, appeal premature) St. James Healthcare v. Cole, 12/16:4

Attorney fees: (Appel. Rule 32, denied) Sunday v. Harboway, 5/6:1

Bond: (deposit, bond required in dispute over distribution of trust) Stanton v. Wells Fargo Bank, 4/1:2; (motion to rescind appeal bond denied) Brown v. Towe Partnership, 12/16:4

Briefs: (incorporation of trial arguments into appellate briefs by mere reference not permitted) State v. Ferguson, 1/21:4; (non-record witness statements improperly included in appellate brief) State v. Fregien, 2/4:4; (motion to file overlength response brief denied) Corporate Air v. Edwards Jet Center, 4/22:1

Certification: (certification challenge barred by judicial estoppel) Williams v. Global Financial Services, 1/14:2; (summary judgment that UIM not available for single-car accident under owned vehicle exclusion improperly certified as final for appeal) Monroe v. Cogswell Agency, 12/16:1

Citation to transcript: State v. Newman, 1/7:2

Courts of limited jurisdiction: (electronically recorded record of proceedings of limited jurisdiction courts sufficient for appeal to Supreme Court, written transcript no longer necessary) Fender, 5/6:3

Fees/costs: (appeal fees/costs denied absent authority for entitlement pursuant to contract for litigant determined not in privity to contract, but costs awarded under Appel. Rule 33(a) discretion) SVKV (dba Beehive Homes of Helena) v. Harding (dba Harding Enterprises), 11/25:1

Indigent: (request by allegedly indigent father to order family services entity to pay for transcript, advance appeal fees, denied) Parental Rights of DP, 5/27:2

Injunction pending appeal: (surgery center enjoined from operating as ``hospital'' pending emergency motion for injunction pending appeal of denial of preliminary injunction, first impression) Benefis Healthcare v. Great Falls Clinic, 4/8:4; (modified to permit operation of ``specialty hospital'' under ``old'' license) 4/15:2; (further modification in ``specialty hospital'' case denied, parties have stretched civil/appellate rules to limits) Benefis Healthcare v. Great Falls Clinic, 5/13:3; (injunction pending appeal initially sought on appeal denied in gravel pit dispute) Flathead Citizens for Quality Growth v. Flathead Co. Board of Adjustment, 9/16:3

Jurisdiction: (notice of appeal divested District Court of jurisdiction to rule on unauthorized motion for reconsideration of default set-aside) ABC Collectors v. Birnel, 7/8:1

Mediation: (no provision to continue mediation pending ``final hearing'') Johnston (AFM Contracting) v. Palmer, 1/7:2; (parties may stipulate to hold time requirements pending mediation, but no Court involvement) Quantum Electric v. Accutitle (American Title & Escrow), 3/25:1; (appeal from WCC not subject to mandatory mediation if no damages/monetary recovery involved) Thompson v. State, 6/10:2; (tax assessment dispute involves large amounts of money, not exempt from mediation) DOR v. PPL Montana, 9/9:2; (joint motion for substitution of mediator untimely, denied) Edelen v. Edelen, 9/9:2; Opp v. Opp, 9/9:3; Schacher v. Cates, 9/9:3; (motion to vacate mediation denied as moot, appellants obligated to determine at outset whether appeal subject to mediation) Gwynn v. Klabzuba Oil & Gas, 9/23:5

Notice of constitutional challenge: (Supreme Court may not reach constitutional issue if notice of constitutional challenge not filed contemporaneously with notice of appeal when State not a party pursuant to Appel. Rule 38, MIGA not a state agency, notice of unconstitutionality untimely, first impression) Boettcher v. Montana Guaranty Fund, 6/10:1

Remand: (remand from District Court for ``imposition of sentence'' had no effect on ``final judgment'' status of Municipal Court's judgment, formal remand not necessary anyway, Supreme Court has jurisdiction over appeal) Billings v. Costa, 8/19:2

Stipulation for dismissal: (for remand with instructions to dismiss with prejudice denied) Hall v. Kircher, 8/19:2

Supervisory control: (jurisdiction accepted despite mootness) Rios v. Harris, 11/4:3

Arbitration

Authorized arbitrator: (arbitrator unauthorized in cardholder agreement, award absolving credit card holders invalid, $300 check with restrictive endorsement invalid attempt to cancel $10,000 debt, assertions of cost/bias insufficient to find cardholder agreement unenforceable, confirmation of arbitration award denied) Discover Bank v. Miller, 2/18:5

Compel: (motion to compel granted as to Employment Agreements and Severance & Release Agreements, denied as to Incentive Stock Option Agreements, Montana law applied) Del Grande v. Cutthroat Communications, 4/15:6; (challenge to loan contract as whole required order to compel arbitration per US Supreme Court, Plaintiffs failed to preserve for appeal issue of unconscionability of arbitration clause by raising it first time in motion for reconsideration) Martz v. Beneficial Montana, 5/6:1

Associations

Attorney Fees, Costs

§1988: (§1988 fees properly awarded to Council members for defense of official capacity state law claims from time Plaintiff on notice that claims not legally viable, improperly awarded on individual capacity federal law claims given ambiguity of Kiely and §2-9-305(5)) Germann v. Whitefish, 6/17:3

Amount: (buy-sell breach) Behrens v. Parmiter, 6/24:2; (post-hearing affidavit of owner's fees improperly used to award fees to contractor, fees should be awarded for pursuit of fees) Talcott Const. v. P&D Enterprises, 7/1:1; (condemnation) MDOT v. American Bank of Montana, 9/9:5

Departing associate: (quantum meruit proper for apportioning fees for firm and departing associate in $3.9 million case, but based on time spent on case while employed by firm compared to time after disassociating (percentage rather than hourly rate)) Pumphrey v. Edwards, Frickle, Anner-Hughes, Cook & Culver, 10/7:1

EAJA: ($10,031.25 (full amount requested), 73.25 hours plus 7 hours for replying to SSA's response to motion for fees) Moore, 5/13:8; ($10,556 following order for remand with reinstatement of SS Disability) Jordan v. SSA, 10/21:5

Hyde Amendment: ($31,881 for Defendant in alleged Indian housing scam prosecution under heightened ``vexatious'' standard and $125/hr EAJA rate rather than $75/hr CJA rate on remand from 9th Circuit) US v. Sherburne, 10/21:4

Prevailing party: (awarded to Defendants as prevailing party on main issue in complex property based case with no substantive claim of any merit) Three Creeks Ranch South LLC v. Rodewald (Wisconsin Creek Ranch), 1/28:3

Wrongful discharge: (to defendant) Maier v. Osmanson, 7/29:6, 10/21:3

Attorney Practice

Attorney-client privilege: (questioning of Defendant's personal attorney as to why no counterclaim properly barred by privilege) Wade v. State Farm Mutual Auto Ins., 11/4:6

Attorney lien: (firm failed to secure prejudgment attachment or foreclose lien against client, no right to demand that bank hold its claimed $142,490 fees from $400,000 trust account, motion to compel attorney-client communications based on mysteriously obtained letter from trustees' lawyer to trustees properly denied) St. Peter & Warren v. Purdom, 7/29:1

Conflict: (no actual conflict by lawyer's partner becoming deputy county attorney) State v. Smerker, 6/3:1; (prior representation) Brower v. McKeon, 11/4:2

Discipline: (criminal mischief convictions do not affect ability to practice law) Matter of Anderson, 3/25:2; (extraordinary relief denied in claims by former Supreme Court justice of fraud/conspiracy by COP/ODC) Shea v. COP, 7/29:4

Gillham order: (denied in bail jumping case) State v. Makarchuk, 8/26:8; (inapplicable absent ineffective assistance claim) State v. Nestle, 9/16:8

Legal malpractice: (claim against public defender time-barred, not saved by mislabeling as contract claim) Guest v. McLaverty, 7/8:1; (claim of negligent will drafting barred by 10-year statute of repose, which commences with execution of will, not death of testator or adverse Supreme Court ruling on interpretation of will, no estoppel by alleged misrepresentation) Snyder v. Love, 12/9:1

Unauthorized practice: (non-lawyer shareholder improperly allowed to ``represent'' corporation) Zempel v. Liberty, 9/9:1; (non-lawyer in contempt and enjoined, tort counterclaims properly dismissed, unauthorized practice statutes constitutionally applied) Commission on the Unauthorized Practice of Law v. O'Neil, 11/11:2

Banking, Commercial Paper

Check processing: (bank did not violate UCC duty of ordinary care in processing Nigerian scam checks, but common law/equitable principles should also be considered as to bank's representations about check settlement process, ``holder in due course'' argument not preserved for appeal, no wire transfer negligence, note signed to satisfy charge-back not invalid for lack of consideration/consent, expert not shown to have expertise as to Montana banking standards, properly excluded) Valley Bank of Ronan v. Hughes, 11/18:1

Lending breach: (allegation of breach of implied covenant of good faith sufficient to invoke statutory ``good faith,'' summary judgment for bank on default/ account freeze precluded by fact issues as to good faith belief that it would have difficulty collecting due to arrest on drug charges and ATF license jeopardy in light of substantial collateral, summary judgment proper as to lack of fiduciary relationship) Precision Theatrical Effects v. United Banks (fka United Bank of Columbia), 9/23:1; (banking rather than cattle industry standards properly applied to claims stemming from ``fire sale'' of collateral cattle, refusal to extend loan due date to account for bad weather for sale not bad faith, no fiduciary relationship) McCoy v. First Citizens Bank, 12/2:1

Note collection: (bank properly allowed to amend proposed findings day before trial to reference note's waiver provisions in light of assertion of waiver of defense of impairment of collateral throughout litigation, note not contract of adhesion, accommodation maker's waiver not involuntary/unintentional, sufficient evidence that he knew his loan would hold second position to SBA loan, sale funds properly applied first to SBA loan) Denton v. First Interstate Bank, 8/26:4

Bankruptcy

Exemptions: (stock sold for end-of-life care not exempt as ``benefits,'' certified question) Archer, 4/29:1; (debtor may claim 1 gun in addition to §25-13-609(1) exemptions, ``governmental functions'' heading not controlling, certified question) Maynard, 7/22:1; (debtor may trace proceeds from sale of home when homestead declaration not filed prior to sale, inconsistent statutes resolved in favor of debtor, certified question) Snyder, 12/2:2

Bench Judgments

Condemnation: (condemnation of bank's corner sidewalk for highway intersection project rejected) MDOT v. American Bank of Montana, 4/1:4; (vacant residential land for gas pipeline) Williston Basin Interstate Pipeline v. Schott, 11/25:7

Deferred income agreement: (breach of construction manager deferred income agreement, deferred income improperly used as operating capital, professional expenses incurred in furtherance of duties, witness demonstrated bias with middle-finger, oral findings/conclusions) Lewey v. Bitterroot Timberframes, 11/4:7

Disability insurance: (doctor's inability to practice not result of disability, but voluntary cessation of practice and license suspension following sex abuse charges to which he pled guilty acknowledging no mental disability, not entitled to disability insurance benefits, must repay $32,100 paid under reservation of rights) Union Central Life Ins. v. Russell, 9/2:4

Dog bite: (no strict liability for attack by dog in fenced tavern yard, attack provoked by patron grabbing at ball in mouth and at neck, 10% negligence by tavern for having ``Beware of Dog'' sign on gate while allowing public to go into yard from bar, 90% negligence by Plaintiff) Watkins v. Blackie's Fresno Tavern, 6/3:2

Trust accountings: (set aside on basis of negative & affirmative extrinsic fraud by bank/trustee deferring to beneficiary daughter's insistence on no investment in stocks, failure to notify beneficiary grandchildren, no extrinsic fraud (no actual conflict) by attorneys representing bank as to trust and beneficiary as to other matters, bank's defenses of statutes of limitation, res judicata, laches, affirmance rejected, bifurcated trial, Plaintiffs seeking $30 million+ for failure to invest in stocks over 30 years) Trust B Under Last Will of Dunham, 7/22:3

Civil Procedure

Class Action Fairness Act: (insurers failed to prove that policyholders' UM/UIM illusory coverage claims exceed $5 million threshold, remand to State Court granted, attorney fees denied) Sherrill v. Progressive Northwestern Ins., 7/22:6

Class action notice: (insurer rapped for failing to notify Plaintiff's counsel of UIM class action, failing to notify class action Court of Plaintiff's State Court action, minor's mother improperly served after minor became adult, Plaintiffs allowed to opt out of class action settlement) Dempsey v. Allstate Ins., 12/16:6

Class certification: (denied) Jacobsen v. Allstate Ins., 1/14:3

Collateral estoppel: (finality lacking for judicial estoppel in partnership suit, but sufficient finality under new relaxed requirement for collateral estoppel) Baltrusch v. Baltrusch, 3/11:1; (warehouse's liability to truck driver as product liability ``seller'' of defective retread tire that resulted in $8,245,572 verdict for 2 decedents not barred by collateral estoppel of prior litigation, summary judgment for driver as to Defendants' liability for sale of defective tire, breach of warranty, and punitives based on collateral estoppel effect of prior litigation) McCuin v. Les Schwab Tire Centers of Montana, 12/9:4

Collateral source: (Plaintiffs may introduce actual amount charged for medicals as proof of damages, evidence of discounted insurance payment not admissible, first impression) Noll v. Lilje, 5/27:3

Default Judgment: (insufficient reasons for setting aside default judgment awarding $2 million compensatory damages for allegedly fraudulent real estate scheme, but $1.65 million punitives improperly awarded without reasons) Williams v. Global Financial Services, 1/14:2; (properly not set aside) Antonick & Johnson v. Padilla, 8/12:2; (summary judgment motion sufficed in lieu of answer to prevent default judgment) Havre Daily News v. Havre, 9/2:1

Designated representative: (designated rep under Rule 615(2) may remain in courtroom and testify despite exclusion of other witnesses, contrary holding of Flowers/Claric overruled, but ``former'' employee not valid ``officer or employee'' under 615(2)) Faulconbridge, 8/26:1

Damages: (improperly awarded without reasons) Williams v. Global Financial Services, 1/14:2; (punitives review) TEF v. Dasen, 4/1:6

Discovery: (discovery by Plaintiff in response to discovery by insurer not related to remaining issue of medical expenses unpaid by comp carrier, constituted browbeating, protective order granted) Crawford v. State Farm Mutual Auto Ins., 1/7:5; (post-deadline discovery denied) Jacobsen v. Allstate Ins., 1/14:3; (Defendants' motion to compel discovery of documents that were later used at trial by Plaintiff improperly denied) Circle S Seeds of Montana v. T&M Transporting, 2/11:1; (abuse in university slip & fall requires default judgment on liability following defense verdict) Richardson v. State, 3/4:1; ($250 sanction plus 1-hour attorney fees for Defendant's obstruction of deposition, insurer's assertions of claim file privilege/redactions not shown to be inappropriate, new scheduling order/continuance of trial denied) Sklany v. Mid-Century Ins., 5/27:6; (motion to compel attorney-client communications based on mysteriously obtained letter from trustees' lawyer to trustees properly denied) St. Peter & Warren v. Purdom, 7/29:1; (MPAP/Medical Examiners substance abuse information discoverable in deposition of doctor in malpractice suit) Noland v. Schure, 9/9:5

Emotional distress: (insufficient emotional distress for independent cause) Farish v. Plum Creek Northwest Plywood, 8/12:5

Ex parte contact: (bank lawyer's comment to judge about witness hating bank had no effect on trial) Stockman Bank of Montana v. Potts, 4/8:1

Experts: (Defendants' expert improperly excluded for untimely disclosure while Plaintiff's non-complying expert not excluded) Circle S Seeds of Montana v. T&M Transporting, 2/11:1; (IME properly denied for untimely expert disclosure) Pumphrey v. Empire Lath & Plaster, 5/13:1

Failure to state legal defense: (judgment on pleadings warranted for failure of pro se litigant to state legal defense to contract/account-stated suit) Neil Consultants v. Lindeman, 4/22:1

In forma pauperis: (request denied) Pray v. Johnson, 12/30:3

Injunction: (hospital not entitled to preliminary injunction against proposal by ``specialty hospital'' to become ``hospital'') Benefis Healthcare v. Great Falls Clinic, 10/14:3

Instructions: (instructing on facts from requests for admission not improper, not improper to instruct that not necessary to attend a settlement meeting or sign document to render settlement agreement enforceable) Stockman Bank of Montana v. Potts, 4/8:1

Interest: (prejudgment interest improperly denied under construction lien) Talcott Const. v. P&D Enterprises, 7/1:1; (opinion revised on rehearing to allow postjudgment interest on discreetly identifiable amounts, Woods clarified, 8/19:1)

Judicial estoppel: (successful OD claimant judicially estopped from WDA claim) Vogel v. Intercontinental Truck Body, 6/17:2

Jury: (jury request for transcript of testimony properly denied, juror affidavit improper) Stockman Bank of Montana v. Potts, 4/8:1; (jury improperly re-polled twice after discharge and no longer in presence, control, supervision of Court (first impression), but initial verdict ultimately correctly entered and new trial correctly denied) Pumphrey v. Empire Lath & Plaster, 5/13:1; (request to amend to add jury demand denied) Farish v. Plum Creek Northwest Plywood, 8/12:5

Justiciability: Stroebe v. State, 2/4:2; Not in Montana v. State, 11/4:2

Mandamus: (Sheriff ordered to respond to petition to mandate sale of property) McCormick v. Killham, 3/25:2

Mootness: (federal ``voluntary cessation'' mootness exception adopted) Havre Daily News v. Havre, 9/2:1; Not in Montana v. State, 11/4:2; (challenge of rejected privacy claims to ultimately released teacher discipline documents moot, ``capable of repetition'' exception inapplicable) Billings High School Dist. v. Billings Gazette, 12/16:3

Nonparty defense: (§§ 27-1-703 & 704 not applicable to product liability) Stone v. Atlantic Richfield, 8/5:3; (nonparty conduct may be introduced only as superseding intervening causes, not to merely diminish defendant's responsibility, State's pleadings treated as though properly designated intervening superseding cause as defense, driver error foreseeable by one responsible for roadway design/maintenance, does not completely sever potential liability, jury properly not allowed to consider driver's alleged negligence to negate causation, State improperly prevented from introducing driver's conduct in attempt to establish passenger's comparative negligence, but on retrial must refrain from imputing driver's conduct to passenger to apportion liability or attribute his negligence to her) Faulconbridge, 8/26:1

Pleadings: (issue of financing contingency implied from pleadings, pretrial order, evidence, properly ruled upon) Security Abstract & Title v. Smith Livestock, 10/21:1

Preliminary injunction: (improperly granted without findings/conclusions) Snavely v. St. John (PR of Michael Snavely), 8/5:1; (improperly issued following destruction of ditch) Mustang Holdings v. Zaveta, 9/23:3

Pretrial order: (trial date vacated for failure to timely provide final pretrial order) Martel Const. v. Walker USA, 3/4:8; (theory at least implicit in pretrial order) Hjartarson v. Hjartarson, 10/28:1

Punitives: (punitives review) TEF v. Dasen, 4/1:6; (punitives for grain seed mixture mishap erroneously considered/denied under Title 28 actual fraud, actual malice sufficiently pled in pretrial order but not proven) Hallenberg v. General Mills Operation, 8/26:3

Reconsideration: (unauthorized motion for reconsideration of default set-aside) ABC Collectors v. Birnel, 7/8:1

Relief from judgment: (no appearance of impropriety or entitlement to 60(b) relief from judgment based on pre-petition consultation when judge was attorney) Marriage of Markegard, 5/27:1

Res judicata: (finality lacking for judicial estoppel in partnership suit, but sufficient finality under new relaxed requirement for collateral estoppel) Baltrusch v. Baltrusch, 3/11:1; (Nebraska Federal Court dismissal of Montana bank in feedlot suit res judicata to Montana claims against bank and employee) BCD Farms v. Independence Bank, 10/14:5; (truck financing counterclaims barred by Federal Court rejection of promissory estoppel) Paccar Financial v. Enzminger, 12/23:4

Sanctions: (properly imposed) Jewart v. Hougen (Lucky Cuss Casino), 2/4:2; (case dismissed as sanction for continuing to disobey court orders including order for Plaintiffs and counsel to pay sanctions) Stipe v. First Interstate Bank of Polson, 4/22:3; (sanctions properly denied for failing to send representative with settlement authority to conference, notify that conference would be futile) Germann v. Whitefish, 6/17:3; (no ``bad faith'' basis for $2,209.50 sanctions for failure to comply with protective orders) Northern Plains Resource Council v. WBI Holdings, 7/15:4; ($75,675 fees at $500 (LA defense counsel's rate), $250, $150, $14,461 costs, against Defendants in suit by former MPC employees for ``inaccurate and misleading'' affidavit by law firm's ethics officer as to extent of firm's Montana contacts in motion to dismiss for lack of personal jurisdiction) Ammondson v. NorthWestern Corp., 9/2:4; (expert excluded as discovery sanction) Wade v. State Farm Mutual Auto Ins., 11/4:6

Standing: (school district resident failed to allege unique injury, lacks standing to challenge notice in superintendent hiring) Fleenor v. Darby School Dist., 2/18:2; (no standing by non-residents to challenge water/sewer district formation) Lohmeier v. Gallatin Co., 4/29:2; (ranchers lack prudential standing to challenge Castle Mountains Range Project grazing allotments under NEPA) Goodrich (Checkerboard Cattle) v. FS, 4/29:5; (individual opponent of condo project has standing to challenge lack of subdivision review) Shults v. Liberty Cove, 10/14:2

Statute of limitations: (claim of husband's misappropriation from boot business time-barred, statute not tolled by alleged fraudulent concealment) Strong (Yeti by Molly Ltd.) v. Butts, 1/28:1; (failure to object to evidence indicating that check was loan allowed consideration despite statute of limitations) Hjartarson v. Hjartarson, 10/28:1

Summary judgment: (failure to comply with LR as to summary judgment) Pruitt v. St. Paul Fire & Marine Ins., 2/18:7; (attorney correction) 2/25:6; (motions untimely, not in accord with LR 56) McCluskey v. Allstate Ins., 3/4:5; (``surprise'' summary judgment declaration stricken) Goodrich (Checkerboard Cattle) v. FS, 4/29:5; (summary judgment properly entered without hearing pursuant to scheduling order that hearing waived if not requested) SVKV (dba Beehive Homes of Helena) v. Harding (dba Harding Enterprises), 11/25:1

UDJA: (Court has UDJA jurisdiction to determine amount of UIM policy limit due) Hinojosa v. Allstate Property & Casualty Ins., 3/4:2

Venue: (arbitration venue provision not applicable to civil suit venue) The Doctors' Company v. Finney, 3/4:2; (trademark infringement tort may have started in motion in Defendant's county where decision made to use trademark, but venue proper in Plaintiff's county where products distributed and damages occurred, venue statute for statutory penalty improperly applied) Circle S Seeds of Montana v. Montana Merchandising, 12/9:1

Withdrawal of admissions: (properly allowed pursuant to Rule 36(b)) Bugger v. McGough, 10/14:2

Civil Rights

Alien arrest: (customs agents lawfully approached Iranian refugee at Havre train station and asked where he was from, had probable cause to arrest & detain based on failure to have original I-94, entitled to qualified immunity on 4th/5th Amendment claims, reliance on appearance or ethnicity alone does not convert actions into constitutional violation) Habeeb v. Castloo, 7/1:5

Commerce

Condemnation

Litigation expenses: (barred by failure to raise in first appeal, statutory right to expenses not self-executing) MDOT v. Simonson, 5/20:3; (property owners did not secure higher verdict than State's offer, precluded from recovering litigation costs/expenses, belated attempt to appeal finding in first appeal too late) MDOT v. Simonson, 6/17:5

Conservatorship

Accounting: (undisputed cash/estate items should have been addressed, legal fees improperly awarded without documentation, rest of decision well-considered, equitably resolved under difficult circumstances despite lack of accounting formalities) Branning, 5/20:1

Constitutional Law

Right to know: (state agencies have jurisdiction to examine records in their possession and determine privacy v. right to know) Billings PD v. Owen, 1/28:1; (school district resident failed to allege unique injury, lacks standing to challenge notice in superintendent hiring) Fleenor v. Darby School Dist., 2/18:2; (request for injunction to prevent copying of public flood plain study documents based on misuse speculation denied) Billmayer (Billmayer Engineering) v. Kalispell, 4/29:3; (government agencies may not bar employment applicants from reviewing background information collected about them, no waiver of privacy rights by applicant) Billings PD v. Owen, 8/5:4; (request for ordering disclosure of future police ``incident reports'' nonjusticiable, any prior justiciable controversy mooted by PD providing unredacted reports, should have been dismissed without prejudice rather than by summary judgment, federal ``voluntary cessation'' mootness exception adopted, Plaintiffs ``prevailing'' for fee purposes by obtaining unredacted reports through litigation albeit without court intervention, not prevailing as to prospective relief claims) Havre Daily News v. Havre, 9/2:1; (public has right to inspect entirety of interim Chief Public Defender's deposition in federal discrimination suit, except names of non-party public defenders, fees improperly denied to newspaper without rationale) Yellowstone Co. v. Billings Gazette, 9/9:2; (redacted sealed court documents of DD commitment disclosable) Matter of TLS v. Montana Advocacy Program, 10/14:1; (corporate tax confidentiality statute may not be declared ``nullity'' vis-à-vis Art. II §9 absent direct constitutional challenge) Elliott v. DOR, 10/28:1; (challenge of rejected privacy claims to ultimately released teacher discipline documents moot, ``capable of repetition'' exception inapplicable, fees properly denied to prevailing but non-plaintiff newspaper in school's declaratory action) Billings High School Dist. v. Billings Gazette, 12/16:2

Consumer Protection

Contracts

Cardholder agreement: (arbitrator unauthorized in cardholder agreement, award absolving credit card holders invalid, $300 check with restrictive endorsement invalid attempt to cancel $10,000 debt, assertions of cost/bias insufficient to find cardholder agreement unenforceable, confirmation of arbitration award denied) Discover Bank v. Miller, 2/18:5

Construction: (owner's failure to pay contractor amounts certified by architect was breach that excused further performance, home office overhead costs properly denied) Talcott Const. v.P&D Enterprises, 7/1:1; (Summary judgment precluded by fact issues as to whether owner ordered subcontractor to complete additional work and whether contract was ``substantially complete'' requiring notice of lien) Gwynn (Gwynn Excavating) v. Cummings, 9/30:1

Distributorship: (oral contract for distribution of beverage invalid under statute of frauds, list of readily ascertainable sub-distributors not a trade secret, summary judgment on interference with economic advantage precluded by fact issues) Big Sky Water v. Hobarama, 4/8:6

Grantor support: (grantor-support theory properly utilized to rescind parents' stock transfers to children based on breach of agreement, theory at least implicit in pretrial order) Hjartarson v. Hjartarson, 10/28:1

Oral: (statute of frauds) Big Sky Water v. Hobarama, 4/8:6

Platting contract: (engineer not mandated for preliminary plat, no evidence that work not done properly, collection judgment affirmed) Credit Service v. Bender, 3/25:1

Residential care franchise: (summary judgment properly granted on Defendant's residential care franchise counterclaims based on lack of privity to original contract) SVKV (dba Beehive Homes of Helena) v. Harding (dba Harding Enterprises), 11/25:1

Copyright

Corporations

Corporate veil: (no acts alleged to justify naming shareholder or piercing corporate veil) Zempel v. Liberty, 9/9:1

Dissolution: (properly ordered for deadlocked 2-man trucking corporation despite no finding of injury, damages should be awarded against shareholder, no provision in agreement for attorney fees) Sartori v. S&S Trucking, 7/22:1

Personal liability: (LLC's ``managing member'' promoter personally liable for fees/ costs under buy-sell executed before LLC was formed) Three Creeks Ranch South LLC v. Rodewald (Wisconsin Creek Ranch), 1/28:3; (no acts alleged to justify naming shareholder) Zempel v. Liberty, 9/9:1

Representation: (non-lawyer shareholder improperly allowed to ``represent'' corporation) Zempel v. Liberty, 9/9:1

Courts

Decorum: (Judge and counsel reprimanded for indecorous comments) Marriage of Toavs, 4/22:1

Judicial disqualification: (post-trial motion for recusal due to pre-petition consultation when judge was attorney properly denied, pre-petition consultation does not require disqualification under §3-1-803(3), no appearance of impropriety or entitlement to 60(b) relief from judgment) Marriage of Markegard, 5/27:1

Jurisdiction: (State's assignment of rights to short-line railroad not a factor in determining diversity vis-à-vis out-of-state railroad) Central Montana Rail, individually and as full assignee of the State of Montana of all jurisdiction and substantive legal rights the State of Montana possesses against BNSF in this case v. BNSF, 5/13:7; (not found over wife of home construction defendant against whom $3 million default judgment entered) Prati v. Brad Franklin (Franklin Const., Wellington Builders), 5/20:6; Justice court jurisdictional limit: ($7,000 justice court limit not applicable to new District Court action) Bugger v. McGough, 10/14:2

Order of trial: (trying issue of whether borrower's counterclaim had settled before trying merits of counterclaim proper) Stockman Bank of Montana v. Potts, 4/8:1

Removal: (environmental cleanup suit alleging state law violations made no federal claim, removal improvident) Weiss v. Kuck Trucking, 3/4:4

Retroactivity: (Stavenjord I retroactive to 1987 offending ODA statute, not just 1999 date of Henry) Stavenjord v. State Fund, 10/14:1

Summary judgment: (``findings of fact'' inappropriate in addressing summary judgment motion, but error harmless as facts ``found'' are undisputed) Wurl v. Polson School Dist., 1/21:1; (summary judgment standard for fiduciary duty clarified, summary judgment proper that bank had no fiduciary duty in preparation of easement form required for loan) Gliko v. Permann, 2/18:1

Verbatim adoption: (verbatim adopted order sufficient for review) Wurl v. Polson School Dist., 1/21:1

Crime, Criminal Procedure

Admission: (admission that Defendant had ``medical grow'' not induced/coerced) Zito, 9/9:3; (interrogation statements voluntary, Miranda warnings sufficient, rights not invoked, ``guilt assumption technique'' not improper, PO did not coerce Defendant into speaking with police) Jones, 9/16:6

Aggravated assault: (new trial based on allegations of perjury by victim as to extent of injury properly denied, ``protracted impairment'' not unconstitutionally vague) Trull, 6/17:6

Arbiter v. advocate: (judge did not cross line from arbiter to advocate in sua sponte limiting character evidence of suggested slasher) Yocom, 4/29:2

Arrest: (detention of person seen talking with occupants of suspected drug car and then walking away as officer approached was ``arrest'' despite officer's statement to contrary, but no probable cause to arrest based on mere suspicion, meth found in fist at station should be suppressed) Ellington, 9/16:7

Assault: Harville, 11/25:5

Assault on minor: (sex offender treatment based on PO recommendation not cause for withdrawing guilty plea, properly imposed for non-sex offense based on underlying sexual charges) Leitheiser, 4/15:5

Assault with weapon: Paoni, 2/18:3; Yocom, 4/29:2

Assault with weapon accountability: (directed verdict properly denied) High Elk, 2/18:4

Assistance of counsel: (denied by terminating 3rd appointed counsel with no assurance of private counsel or unequivocal request to proceed pro se, withdrawal of DUI/obstruction guilty pleas improperly denied) Browning, 8/26:6

Attempted deliberate homicide: Johnson, 1/28:2; (expert properly precluded from testifying to ``possibility'' of Xanax reaction, specific unanimity instruction not required) Vernes, 2/25:1; Diaz, 12/2:5

Attempted robbery: (directed verdict denied) Ferguson, 1/21:4

Attorney withdrawal: (motion to withdraw not supported by sufficient evidence of lack of communication or possible conflict should lawyer be called as witness) Worthan, 7/15:3

Bail pending appeal: (properly denied, habeas denied) Phillips, 3/18:2

Careless driving: (vehicle need not come close to another vehicle or pedestrian to constitute carelessness) Morris, 5/13:5

Conditional guilty plea: (invalid for lack of adverse determination of pretrial motion) Rytky, 6/24:1

Confrontation: (testimony by defendants in prior civil asbestos litigation excluded from criminal trial under 6th Amendment/Crawford) WR Grace, 9/23:7; (confrontation right violated when tape with interview of non-testifying witness delivered to jury, prejudicial trial error) Parker, 10/14:4

Contempt: ($50 criminal contempt ``sanction'' for half-hour tardiness by counsel improper absent willful violation of order to attend hearing) Olson, 9/23:6

Criminal endangerment: Paoni, 2/18:3

Death sentence: (injunction pending determination of constitutionality of lethal injection protocol rejected, request for rehearing denied) Criminal Defense Lawyers v. DOC, 8/5:1

Deliberate homicide: (directed verdict in fight death properly denied, intoxication instruction properly denied) Smith, 1/28:2; (evidence of meth use ``inseparably related'' to offenses charged, not precluded by Just/Matt) Buck, 5/6:2; (mental state, result v. degree of injury, plain error review of need for proximate cause instruction declined, mistrial not warranted by ``gangster'' characterization of Defendant, ``lie'' characterization of Defendant's statement) Dubois, 5/13:4; (interrogation statements voluntary, Miranda warnings sufficient, rights not invoked, ``guilt assumption technique'' not improper, PO did not coerce Defendant into speaking with police, consent to take blood-stained coat given orally and in writing) Jones, 9/16:6

Deliberate homicide by accountability: Maestas, 5/13:4

Deviate sexual conduct: (equal protection issue not properly appealed) Rytky, 6/24:1

Driver's license: (no suspension/revocation if no license in first place) Gonzales, 2/11:5; (2003 repeal of habitual offender notice requirement not improperly applied retroactively, adequate due process despite lack of notice of 18 points and danger of revocation) Keeney, 7/22:2

Drugs: (presumption of innocence, ineffective assistance, accomplice instruction, convictions reversed by special concurrences, remanded for retrial) Newman, 1/7:2; (marijuana sale to controlled informant not entrapment) Smith, 7/8:2; Probable cause for marijuana grow search warrant based on confidential informant, corroborated by flyover, admission that Defendant had ``medical grow'' not induced/coerced Zito, 9/9:3; (particularized suspicion for dog sniff) Meza, 9/9:4; (detention of person seen talking with occupants of suspected drug car and then walking away as officer approached was ``arrested'' despite officer's statement to contrary, but no probable cause to arrest based on mere suspicion, meth found in fist at station should be suppressed) Ellington, 9/16:7; (sufficient evidence from burned trailer to defeat directed verdict) Hausauer, 12/30:3

DUI: (dispatcher's alert of anonymous report of woman screaming and banging head on car justified ``community caretaker'' stop which ripened into DUI arrest) Litschauer, 1/21:5; (Defendant arrested on closed RR access road pled guilty under mistaken impression that he had lost his ``public way'' defense, should be allowed to withdraw plea) Chase, 1/21:6; Hoots, 1/28:3; (diagnostic blood test properly not suppressed) Fregien, 2/4:4; Gallagher, 2/18:4; (caretaker doctrine properly applied to parked car) Wheeler, 2/25:2; (1993-94 attorney waiver forms erroneous, intimidating, DUIs invalid as basis for felony) Mann, 2/25:3; (jury properly instructed on inference from refusal to submit to BAC tests, statute does not shift burden of proof) Morris, 5/13:5; (right to independent BAC test not violated, refusal to rule on motion to dismiss based on challenge of prior DUIs harmless in light of plenary review of documents) Smerker, 6/3:1; (Intoxilyzer must be certified every 365 days, not every calendar year, pursuant to ``annual'' requirement of ARM) Frickey, 6/10:3; (Defendant properly found to be driver of vehicle that crashed into fence on public way) Mooney, 6/17:5; (DUI per se statute interpreted to allow for BAC test within ``reasonable amount of time'' to avoid impossible burden of requiring determination at time of driving (retrograde extrapolation), BAC test 50 minutes after stop) McGowan, 7/29:4; (BAC test 51 minutes after stop, along with other evidence, sufficient) Weitzel, 7/29:4; (particularized suspicion for stop based on erratic driving and following too close, even though no citation for underlying violations) Waite, 9/16:7; (windshield cracks provided particularized suspicion to stop) Hunter, 9/16:8; (probable cause properly determined at time of charge, not required in writing, no showing that photos/dispatch call transcripts exculpatory, no outrageous government conduct by denying medical care to diabetic, unopposed license reinstatement not res judicata to DUI, judicial notice properly not taken of ADA, diabetes symptoms, no hearsay exception foundation for diabetes symptoms exhibit, breath test refusal properly admitted although expunged from driving record in reinstatement proceeding, video of arrest not violative of privacy, sufficient indicia of alcohol to preclude dismissal at trial, diabetes defense presented to and rejected by jury, officers properly allowed to opine as to cause of accident and intoxication, whether they could distinguish between diabetic's symptoms and alcohol intoxication matter for cross-examination as to weight) Ditton, 9/30:3; (Defendant did not request independent blood test, not impeded by officer, Miranda not required for routine traffic stop, statements prior to arrest properly not suppressed) Wrzesinski, 10/21:2; (slow vehicle with cars behind raised particularized suspicion for stop, showing of minimum speed not required stop under one statute and charge under another equally applicable statute not legally significant, constitutional challenge of slow speed statute not preserved for appeal) Benders, 11/11:4; (crossing center line constituted particularized suspicion to stop) Thompson, 11/18:4

Entrapment: (marijuana sale to controlled informant not entrapment) Smith, 7/8:2

Escape: Shults, 5/13:6

Exculpatory evidence: (Brady violation claims in relation to Total Station and photos involving standoff shooting rejected) Johnson, 1/28:2

Firearms possession: (10th Amendment challenge of felon in possession indictment fails under recent US and 9th Circuit case law re-establishing Commerce Clause ``minimal nexus'' standard) Rothacher, 7/29:7

Forfeiture: (probable cause for petition for forfeiture of vehicle, cash, rifle, beginning with abandonment when occupants fled) Branam, 12/2:4

Habeas: (participant in work release program with 2 for 1 sentence reduction had protected liberty interest, improperly terminated without due process, mootness exception applied and habeas granted despite prior release) Barr, 8/12:6; (federal habeas evaluation of evidence under Winship/Jackson should consider all evidence at trial, not just at time of motion for directed verdict at close of State's case-in-chief, habeas properly denied in mitigated deliberate homicide case) LaMere, 8/12:8; (procedural bar to one who has exhausted appeal suspends writ contrary to Art. II §19, incarceration pursuant to facially invalid sentence warrants habeas relief, habeas granted, remanded for resentencing on improperly weapon-enhanced aggravated burglary and felony assault) Lott, 9/30:4

Hobbs Act: (direct v. indirect effect on interstate commerce) Lynch, 2/25:6

Indigency: (court may ``review and approve'' indigency determination for defender appointment only when requested, not sua sponte) Rios, 11/4:3

Ineffective assistance: (Alford plea precludes issue of ``seemingly substantial'' complaints about counsel) Hoots, 1/28:3; (no actual conflict by defense counsel who previously prosecuted Defendant, nor by working simultaneously as city attorney, in any event no prejudice, per se rules rejected) Hendricks, 2/11:4; (plain error review not warranted in failure to give specific unanimity instructions as to endangerment, counsel not ineffective for not requesting instruction) Gallagher, 2/18:4; (claim that counsel opposed right to proceed pro se barred in postconviction proceeding for not having been raised on direct appeal, counsel's failure to invoke automatic judge substitution not structural, not presumed prejudicial, postconviction petition properly denied) Swan, 3/11:4; (self-proclaimed deficiency by lawyer for not requesting continuance to review newly received medical records rejected) Trull, 6/17:6; (reasonableness in calling expert with questionable qualifications and other issues more appropriate for postconviction petition, opening door on prior sexual abuse reports was tactical, motion to withdraw not supported by sufficient evidence of lack of communication or possible conflict should lawyer be called as witness) Worthan, 7/15:3; (counsel not ineffective for not challenging parole search) Meza, 9/9:4; (no ineffective assistance in letting Defendant plead nolo to sex offense, claim of ineffective assistance for failing to adequately investigate waived by nolo plea) Hardin, 11/11:4; (appellate lawyer ineffective in failing to file brief after notice of appeal resulting in dismissal of PFMA appeal) Woeppel, 11/18:3; (no prejudice by lawyer failing to procure witness or show unavailability) Diaz, 12/2:5

Instructions: (plain error review not warranted in failure to give specific unanimity instructions as to endangerment, counsel not ineffective for not requesting instruction) Gallagher, 2/18:4; (specific unanimity instruction not required) Vernes, 2/25:1

Insurance fraud: (sufficient evidence of fraud based on failure to disclose auto speed contest to adjuster despite acquittal of endangerment and providing false information to patrolman, restitution of claim payments properly imposed) Borsberry, 6/10:2

Judicial notice: (judicial notice properly not taken of ADA, diabetes symptoms) Ditton, 9/30:3

Jury: (elimination of panel members based on alphabetical order not violative of computerized random selection process) Azure, 1/7:3; (juror testimony as to burden of proof properly precluded) Hicks, 4/22:2; (challenge for cause improperly denied, DUI Defendant removed prospective juror with peremptory and exhausted all peremptories, structural error requires reversal) Golie, 5/13:5; (inconsistent verdicts) Borsberry, 6/10:2; (misdemeanor DUI Defendant's right to jury trial in both non-record Justice Court and District Court not to be frustrated by State's failure to appear in Justice Court and then appeal dismissal to District Court, Woirhaye clarified) Rensvold, 7/1:2; (juror/prosecutorial misconduct, retrial of rape case (rather than dismissal) proper remedy for state judge's failure to adequately inquire into juror/detective contact, Montana Supreme Court ``reversed'') Kennedy, 7/29:6; (error not established as to ``common belief'' rationale for denying challenges of jurors who stated belief that a man should never hit a woman) Harville, 11/25:5; (Defendant may voir dire as to opinions on impact of suits on society) Shott (Conservator for Cheff) v. Blattner & Sons, 11/25:6; (prospective juror who believed charge indicated guilt should have been dismissed for cause, new trial required, jury should be fully instructed on unanimity) Hausauer, 12/30:3

Knock & announce: (officers violated rights by warrantless entry with guns drawn without knock & announce, but entitled to qualified immunity for reasonable belief of officer safety, occupant's unresponsiveness, indirect permission, no excessive force in shooting occupant given laser target on officer, defense verdict on other claims) Cassady v. Yellowstone Co., 9/16:1

Knowing endangerment: (knowing endangerment object of indictment alleging conspiracy to release asbestos dismissed on statute of limitations grounds, good cause for untimely motion in light of Government's past failure to comply with deadlines) US v. WR Grace, 6/17:7

Negligent homicide: (directed verdict properly denied in van runover, instruction did not direct jury to assume negligence, negligent homicide properly sentenced as crime of violence) English, 8/12:3

New trial: (judge has statutory/inherent authority to order new trial irrespective of time limits imposed on defendant, and State has remedy of appeal, supervisory control denied) State v. Langton, 1/7:5; (new trial improperly denied based on conclusion that child accuser's recanted testimony not true... remanded for consideration of Clark new-evidence factors) Holt, 7/15:2

Official misconduct: (PO's consensual sexual activity with probationer not ``in excess of his lawful authority'' pursuant to Illinois construction) Schmidt, 1/7:4

Outrageous government conduct: (no outrageous government conduct by denying medical care to diabetic) Ditton, 9/30:3

Plea withdrawal: (Defendant arrested on closed RR access road pled guilty under mistaken impression that he had lost his ``public way'' defense, should be allowed to withdraw plea) Chase, 1/21:6; (not raised below) Hoots, 1/28:3; (sex offender treatment based on PO recommendation not cause for withdrawing guilty plea) Leitheiser, 4/15:5; (nolo, plain error, denied) Holt, 7/15:1

PFMA: (wife's hearsay statements to neighbor about alleged assault by husband properly admitted as nontestimonial and as excited utterances, statements to 911 operator and officer not objected to and cumulative) Mizenko, 1/21:3; (Prosecutor did not improperly shift burden of proof in closing) Roubideaux, 1/28:2; Paoni, 2/18:3; (assault not lesser included of PFMA ``reasonable apprehension'') Aune, 5/27:3

Postconviction: (petition alleging new evidence not barred by 1-year limit or completed plea agreement) Holt, 7/15:2

Postconviction relief: (petition properly dismissed without evidentiary hearing for failure to meet ``attachments'' requirement or state claim for relief on ineffective assistance claims) Herman, 2/4:3; (postconviction claim of improper revocation could have been raised on direct appeal) DeShields, 3/18:2; (petition alleging new evidence not barred by 1-year limit or completed plea agreement) Holt, 7/15:2; (claim that Court erred in accepting nolo plea to sexual offense (rape) barred by failure to raise on direct appeal, no ineffective assistance in letting Defendant plead nolo, claim of ineffective assistance for failing to adequately investigate waived by nolo plea) Hardin, 11/11:4

Prosecutorial misconduct: (no support for ``vouching'' claim, no prejudice from Prosecutor stating that witness's testimony contrary to interview statements) Ferguson, 1/21:4; (Prosecutor did not improperly shift burden of proof in closing) Roubideaux, 1/28:2

Prisoners: (cert/supervisory control of City Court refusal to dismiss arrest warrant so prisoner can qualify for DOC placement properly denied) Jenkins, 5/13:6; (participant in work release program with 2 for 1 sentence reduction had protected liberty interest, improperly terminated without due process, mootness exception applied and habeas granted despite prior release) Barr, 8/12:6

Probable cause: (properly determined at time of charge, not required in writing) Ditton, 9/30:3

Probation: (home visits not searches, not subject to reasonable cause, may not develop into search without reasonable cause, requiring Defendant to consent to visits as condition of probation not violative of privacy or unreasonable search, travel restriction properly imposed) Moody, 12/16:5

Rape: (sufficient evidence to convict of one count despite acquittal of similar count, photos/tapes properly admitted, inconsistencies in trial testimony and pre-trial statements for the jury to weigh, juror testimony as to burden of proof properly precluded, 14 years to DOC with no time suspended exceeded authority, remanded for resentencing) Hicks, 4/22:2; (new trial improperly denied based on conclusion that child accuser's recanted testimony not true, remanded for consideration of Clark new-evidence factors) Crosby, 7/15:2

Restitution: (restitution of medicals properly ordered even though no part of sentence suspended) Vernes, 2/25:1; (DOC ordered to comply with Judge Salvagni's order to cease collecting restitution since it did not appeal, mandamus granted) Salminen, 3/25:3; (properly ordered under amended statutes, amount not ``excessive'') Kuykendall, 5/20:5;(properly ordered to DUI victim's auto insurer as ``subrogation'' for repairs) Sharp, 12/2:2; (market value established as measure under Youth Court Act, replacement value of vehicle improperly ordered, salvage value should be deducted) TMR, 12/2:2; (properly ordered for funds diverted from business based on ``best proof'' of checks deposited into sideline business account absent other documentation) Tischler, 12/2:3

Revocation: (postconviction claim of improper revocation could have been raised on direct appeal) DeShields, 3/18:2; (§§ 46-14-311 & 312 (mental disease) not applicable to revocation) Boulton, 8/12:4; (sufficient evidence of violation of order of protection, oral/written records provide adequate basis for review of felony stalking deferred sentence revocation) Baird, 11/11:3

Right to appear at critical stage: (denied when Defendant was excluded from discussion about his request to proceed pro se in which his lawyer cast him in negative light, burglary/assault convictions reversed, remanded for retrial) Mann, 7/22:3

Right to counsel: (``Maybe I need to talk to a lawyer'' comment during interrogation related only to proposed fingernail scraping, not general invocation of right to counsel) Buck, 5/6:2; (equivocal requests for lawyer followed by repeated refusals not clear enough to mandate cessation of all questioning, incriminating statements made after again waiving counsel, suppression properly denied) Maestas, 5/13:4

Robbery: Diaz, 12/2:5

Search & seizure: (anonymous drug tips properly corroborated) Morse, 3/25:2; (no evidence of ``No Trespassing'' sign, no expectation of privacy in items in plain view in yard, consent to search voluntary) Shults, 5/13:6; (per se rule adopted that youth under 16 lacks capacity/authority to consent to search of parents' home) Schwarz, 6/3:1; (officer lawfully in vehicle in search for keys to secure vehicle following investigatory stop, properly seized vodka in plain view) Delao, 8/19:3; (probable cause not required in conjunction with consent to search vehicle, contrary holding in Shaw reversed, nonverbal consent effectively given by Mexican) Copelton, 8/19:3; (probable cause to search probationer's truck for meth lab based on circumstances arising during unrelated PO search of another person's residence) Fritz, 8/26:7; (information relating to suspected meth cook and reports of concerned citizens provided sufficient probable cause to search 2nd person's residence, independent police work not only method of corroboration under totality of circumstances test, unduly restrictive Reesman rules overruled) Barnaby, 9/2:2; (driver stopped for speeding and seated in patrol car not in custody for Miranda purposes even though not ``free to go'' and thus not voluntarily present, officer had particularized facts justifying expanding stop to ask about contraband, but Mexican driver did not voluntarily consent to search despite signing Spanish form, meth evidence suppressed) Trinidad, 12/30:4

Sentencing: (guilty plea not knowing in light of failure to inform of mandatory fine for marijuana grow) Adams, 1/14:7; (sentence not based on PSI misinformation, did not improperly consider uncharged crimes, but erroneously based on ``violent offense'' based on finding that ``someone'' in group used a knife, dismissal not required by failure to render timely written judgment) Ferguson, 1/21:4; (written judgment failed to conform to oral pronouncements, failed to give monetary credit for time served) Hoots, 1/28:3; (Court not required to conduct hearing/make findings as to persistent offender since Defendant did not object to notice) Gallagher, 2/18:4; (Guidelines, mandatory v. instructive) Knows His Gun, 2/18:8; (restitution of medicals properly ordered even though no part of sentence suspended) Vernes, 2/25:1; (4-year deferred sentence not void ab initio merely because in excess of 3-year maximum, only 1-year excess void, petition to revoke timely filed within valid 3-year period) DeShields, 3/18:2; (DOC ordered to comply with Judge Salvagni's order to cease collecting restitution since it did not appeal, mandamus granted) Salminen, 3/25:3; (request to discharge counsel, proceed to execution granted) Dawson, 4/15:4; (sex offender treatment properly imposed for non-sex offense based on underlying sexual charges) Leitheiser, 4/15:5; (14 years to DOC with no time suspended exceeded authority, remanded for resentencing) Hicks, 4/22:2; (prison rather than alternatives proper) Shults, 5/13:6; (sentences imposed following Booker to be reviewed for ``reasonableness,'' sentence at top end of Guidelines reasonable) Plouffe, 5/20:7; (PO home visit condition must specify ``upon reasonable cause,'' travel restriction proper) Moody, 5/27:2; 7/15:4; (no evidence that Defendant not competent, habeas counsel's request for certificate of appealability of discharge of counsel and stay of execution denied) Dawson, 6/17:7; (nunc pro tunc written judgments improperly amend factually correct judgments as to time-served credit) Megard, 7/8:2; (fees/costs/charges not encompassed in §46-18-403(2)) ``fine'' (time-served credit), Fisher overruled to extent it suggests otherwise) Voerding, 7/8:3; (review of restitution denied, alcohol condition improper, checking account condition proper) Holt, 7/15:1; (``trial tax'' sentence not imposed) English, 8/12:3; (probable cause for marijuana grow search warrant based on confidential informant, corroborated by flyover) Zito, 9/9:3; (life without parole reviewed despite no contemporaneous objection, discretionary parole restriction not beyond statutory maximum, not violative of Apprendi, life without parole statutorily authorized for deliberate homicide) Garrymore, 10/7:2; (life without parole for deliberate homicide) Shepard, 10/21:3; (Defendant failed to explain or rebut allegedly inaccurate PSI information) Harper, 11/11:5; (allegedly facially invalid sentence addressed in habeas petition, constitutional rights not violated by 1982 sentence of life without parole, designation of ``dangerous offender,'' Apprendi not retroactive to cases on collateral review, additional 10 years properly imposed for deliberate homicide with weapon, habeas denied) Gratzer, 11/18:3; (no double jeopardy in not crediting time previously credited in new sentence following revocation for probation violation, persistent offender enhancement not separate sentence) DeWitt, 12/16:5

Severance: (denied) Holt, 7/15:1

Silence: (no plain error review of references to Defendant's silence) English, 8/12:3

Speedy trial: (582-day delay warrants dismissal of marijuana indictments, with prejudice as to 2 defendants, without prejudice as to 1) Biggs, 3/18:5; (speedy trial right applies through sentencing (first impression), Defendant timely asserted right prior to sentencing, but no prejudice by delay) Mooney, 6/17:5; (insufficient rationale to review Judge Langton's denial of speedy trial motion, remanded for evidentiary hearing) Rose, 10/14:5;(pivotal speedy trial delay properly attributed to Defendant for causing State's inability to contact witness) Diaz, 12/2:5

Tampering: Diaz, 12/2:5

Theft: (sufficient evidence that lawyer took missing client funds to establish probable cause regardless of potential inadmissibility of confession at trial, severance of counts properly denied, withdrawal of nolo plea based on plain error denied, review of restitution denied, alcohol condition improper, checking account condition proper) Holt, 7/15:1

Vehicle stop: (properly based on lights in eyes regardless of whether high beam) Rorvik, 2/18:5; (stop of female driver for arrest warrant based on inference from registered owner being female proper) Costa, 8/19:2; (vehicle properly stopped for parking in middle of street and failing to signal, particularized suspicion for dog sniff) Meza, 9/9:4, (opinion amended on rehearing to correct erroneous reliance on 2003 amendment to turn-signal statute) 10/21:3; (Miranda not required for routine traffic stop, statements prior to arrest properly not suppressed) Wrzesinski, 10/21:2

Venue: (asbestos case) W.R. Grace, 1/21:8

Wrongful death: (evidence of strong pulse for 20 minutes sufficient for survival claim to go to jury, but Defendants' unopposed motion for summary judgment on pain & suffering for unconscious decedent granted) Smith v. BNSF, 8/12:5;
Witnesses: (``coerced'' witness properly allowed to testify) Ferguson, 1/21:4

Youth: (due process satisfied with post-Butler amendment allowing transfer hearing after information is filed... right to parental notification belongs to youth, not parents, statements made by alleged car bat hitter before parents were notified should have been suppressed... custodial interrogation at scene lacked Miranda warning, statements should have been suppressed) McKee, 2/11:4; (no jurisdiction to order additional restitution after probation expiration) KDK, 8/19:4

Developmentally Disabled

Community placement: (lack of judicial power of community placement in §53-20-132 not facially unconstitutional, failure to pursue administrative remedies for placement delay precludes determination of whether individual constitutional rights violated) TW, 1/21:2; (Judge's authority to order community placement mooted by placement and this Court's ruling on constitutionality of §53-20-132) REA, 1/21:2

Privacy: (redacted sealed court documents of DD commitment disclosable) Matter of TLS v. Montana Advocacy Program, 10/14:1

Discrimination

Age: (laundry worker) Comes At Night v. Glacier Park Inc., 1/28:6

Disability: (fact issues preclude summary judgment as to whether City water/sewer worker with lifting restriction was ``qualified individual'' and suffered adverse action) Rasmussen v. Bozeman, 1/21:6; (withdrawal of offer to RR mechanical applicant based on insufficient evidence of risk of reinjury following disk fusion) Mele v. BNSF, 1/28:5; (withdrawal of conductor conditional offer based on pre-application lifting restriction not illegally discriminatory) Leraas v. BNSF, 1/28:6; (grocery checker reassigned to video counter not currently disabled under ADA, wage reduction proper under CBA) Pembroke v. Safeway, 2/25:4; ($10,000 emotional distress for delay in providing non-slip floor for service dog, $19,536 to obtain new dog after disability retirement of dog, $334 vet services, FAD) McDonald v. DEQ, 9/2:5

Hostile work environment: (retaliation but not hostile environment in ordering deputy to attend meeting, intimidating him, in connection with investigation of another deputy's discrimination claims, investigation pursued despite conflicting exhaustion/right to sue statutes, lack of permission to interview witnesses) Bodine v. Yellowstone Co. Sheriff's Office, 11/25:8

Jurisdiction: (exclusive HRA jurisdiction over discrimination/dignity claims) Dupuis v. Ronan School Dist., 1/14:3

Marital: (decision not to hire assistant fire chief for chief position not due to status of being husband of wife who was pursuing HR complaint, FAD) Lasky (John) v. BSBFD, 6/3:4

Race: (laundry worker) Comes At Night v. Glacier Park Inc., 1/28:6; (claims barred by State Court sanction/res judicata dismissals) Xin Xu v. McLaughlin Research Institute for Biomedical Sciences, 2/25:5

Retaliation: (retaliation but not hostile environment in ordering deputy to attend meeting, intimidating him, in connection with investigation of another deputy's discrimination claims, investigation pursued despite conflicting exhaustion/right to sue statutes, lack of permission to interview witnesses) Bodine v. Yellowstone Co. Sheriff's Office, 11/25:8

Sex: (Petitioner pled wage disparity only in part-time employment, HE improperly sua sponte amended pleadings to full-time wages to ``conform to evidence'') CEnTech v. Sprow, 2/11:2; (claims by female applicants for PD background investigator positions supported, other claims not, FIR) Gauthier v. Billings PD, 4/8:8; (on-call pay to police captains/undersheriff gender-neutral, no retaliation in discipline/discharge of 911 supervisor, Hanchett affirmed) Lasky (Kathy) v. BSB Co. Sheriff's Office, 6/3:3; (hostile work environment created by bar owner's response to manager's harassment) Altmaier v. Haffner, 6/17:2; (remanded to DLI for determination of attorney fees for Level III grievance proceeding (after awarding fees for other levels), injunction amended to include County agents, appeal to Supreme Court premature) Drew v. HRC, 7/22:5

Timeliness: (complaint untimely under HRA, Plaintiffs precluded from recharacterizing as tort claims) Horton v. Yellowstone Co. Treasurer's Office, 8/26:5

Elections

Initiative: (Judge's rewriting of AG's statements for CI-97 rejected) Stop Over Spending Montana v. State, 8/12:2; (AG ballot statements for CI-98 affirmed) Citizens Right to Recall v. State, 8/19:1; (challenge to CI-97, CI-98, I-154 not barred by laches, Proponents had adequate notice, opportunity for hearing, amended statutes require presence of affiant at signature gathering, not remote oversight as by 5 most prolific gatherers, gatherer must provide contact address, unrefuted false/fictitious addresses, substantial unobjected-to hearsay evidence of ``bait & switch'' signature gathering) Montanans for Justice v. State, 11/4:1; (appeal of single-amendment rejection of CI-97 moot, nonjusticiable following invalidation based on illegal signature gathering) Not in Montana v. State, 11/4:2

Employees

Employment contract: (speech pathologist nonteacher's contract incorporated Master Agreement by reference, which required grievance proceedings, District not equitably estopped from asserting failure to file grievance based on Superintendent's ``legal'' representation that MA not applicable) Wurl v. Polson School Dist., 1/21:1; (55% penalty on wage claim for failure to pay fired salesman commissions on $464,943 which jury found due at time of closing, attorney fees/costs pursuant to contract/WPA, previous $734,046 verdict) West v. The Club at Spanish Peaks, 12/9:3

ERISA: (convalescence following injury/surgery was qualifying event triggering benefits regardless of date of termination, Defendants satisfied COBRA notice requirements by good-faith mailing to wrong tax form address which Plaintiff failed to correct) Andersen v. Roscoe Steel, 4/1:8; (ERISA not applicable to health policy purchased by water/sewer district) Jensen v. John Alden Life Ins., 4/8:5; (MPC/Touch America ESOP class-action rulings, 12(b)(6) dismissal of Retirement Committee and Outside Directors denied, Northern Trust a directed trustee, but prima facie case for breach of fiduciary duty, Plaintiffs have standing to seek monetary relief, not injunctive relief, co-fiduciary liability limited) Touch America Holdings ERISA Litigation, 6/24:2; (definition of ``disability'' from non-applicable policy quoted by mistake, properly rejected) Earl v. Life Ins. Co. of North America, 11/4:6

Non-compete covenant: (2-year non-compete period for insurance agent reasonable, covenant reasonable) Larsen v. Western States Ins. Agency, 11/18:4

Police employment: (city's LEA reimbursement agreement not bargained for under CBA, not enforceable, CBA grievance procedures not required since City brought action) Lewistown v. Lloyd, 8/26:6

Environment

``Commercial forest land:'' (in Forest Plan interpreted in favor of FS) The Ecology Center v. FS, 3/25:7

Grazing allotments: (ranchers lack prudential standing to challenge Castle Mountains Range Project grazing allotments under NEPA, failed to exhaust administrative remedies, claims lack merit) Goodrich (Checkerboard Cattle) v. FS, 4/29:5

Middle East Fork fuel reduction project: (preliminary injunction denied) Wildwest Institute v. FS, 12/9:6

Montana CERCLA: (consent decrees with 2 Defendants approved over objection by non-settling Defendant) DEQ v. BNSF, 3/18:4

Oil/gas leasing: (suspension of surface-disturbing activity on oil/gas leases and operation of pipeline in Upper Missouri River Breaks Monument area continued pending BLM compliance with statutory obligations, abandonment/reclamation bonds increased) MWA v. BLM, 1/21:7

Evidence-Civil

Experts: (``hybrid'' fact/expert witnesses) Faulconbridge, 8/26:1

Hearsay: (excited utterance exception applicable to officer's testimony of mother's statements) Matter of TW, 9/16:5; (unobjected-to hearsay evidence) Montanans for Justice v. State, 11/4:1; (insufficient effort to locate ``unavailable'' declarant to overcome hearsay objection) Diaz, 12/2:5; (hearsay testimony by mediator about what party purportedly stated as to condition of airplane logbooks improperly admitted, $71,430 verdict reversed, remanded for new trial) Murray v. Talmage, 12/30:1

Judicial admission: (memorandum) Stockman Bank of Montana v. Potts, 4/8:1

Settlement references: (properly excluded under Rule 408) Stockman Bank of Montana v. Potts, 4/8:1

Similar accidents: (defense verdict in 1992 motorcycle/abutment accident reversed, remanded for new trial, due to exclusion of ``substantially similar'' 1986 auto accident) Faulconbridge, 8/26:1

Evidence-Criminal

BAC: (Defendant's BAC properly admitted) English, 8/12:3

Consent: (consent to take blood-stained coat given orally and in writing) Jones, 9/16:6

Drug use: (evidence of meth use ``inseparably related'' to offenses charged, not precluded by Just/Matt) Buck, 5/6:2

Exculpatory: (no showing that photos/dispatch call transcripts exculpatory) Ditton, 9/30:3

Hearsay: (wife's hearsay statements to neighbor about alleged assault by husband properly admitted as nontestimonial and as excited utterances, statements to 911 operator and officer not objected to and cumulative) Mizenko, 1/21:3; (failure to timely object to hearsay statements by victim who did not appear at trial, but in any event sufficient other evidence, untimely motion for mistrial based on State's opening ``I want the baby dead'' hearsay statement, statement later proved) Paoni, 2/18:3; (Prosecutor's quote of hearsay in opening properly cured) High Elk, 2/18:4; (victim's statements to ER personnel properly admitted) English, 8/12:3; (no hearsay exception foundation for diabetes symptoms exhibit)