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Administrative Law
Agency
Agriculture
Antitrust
Appellate Procedure
Amicus brief: (denied as
untimely, unnecessary) Montana Shooting Sports Association v. FWP,
9/19:4
Appealability: (regular
appeal not available from not guilty by mental disease, but even if
``appeal'' treated as petition for writ, speedy trial claim not properly
preserved) Violette, 1/31:5; (constitutionality of §46-16-410(4)
not considered first time on appeal in claim of denial of right to be
present during settling of instructions)
State v. Makarchuk,
3/28:7; (contempt order against Canadian drugs broker not appealable)
Board of Pharmacy v. Kennedy (Canadian Connection), 5/2:4; (Haddon's
disapproval of ``3 cents on the dollar'' settlement not sufficiently
serious for interlocutory appeal since parties free to negotiate
settlement more favorable to class)
Touch America Holdings ERISA
Litigation, 5/16:5; (appeal premature before determination of amount
of sanctions against legal malpractice Plaintiff for spoliation of
evidence) American Medical Response v. Moore, O'Connell & Refling,
7/11:2; (appeal of H. Brown's denial of TRO and request for remand for
preliminary injunction to stop trustee's sale of building damaged in gas
explosion mooted by subsequent transfers of property, failure to request
stay pending appeal... alleged fraudulent conveyance not an issue in the
appeal... appeal dismissed) Marr v. Fairview Commercial Lending,
9/26:1
Briefing: (inadequate)
Menholt v. DOR, 2/28:3
Citation format: (modified
to eliminate repeated paragraph numbering)
Amending Citation
Standards, 2/14:3
Justice disqualification:
(CJ not required to disqualify merely because name as AG appears on
State's answer brief, but will do so where he approved filing of appeal
by State) Ellis, 3/7:4; (CJ not required to disqualify himself
since he did not personally participate as AG in Defendant's appeal)
Schauf, 9/26:8; (motion for recusal of CJ filed day after denial of
rehearing deemed denied... CJ did not participate in rehearing decision)
Shively, 9/26:8
Mediation: (claim of undue
influence by mediator rejected, motion to rescind stipulation and
release denied) Holtz v. Luther, 9/26:2
MRAP: (amendments adopted,
rejected) Matter of Rules of Appellate Procedure, 5/9:3
Oral argument: (denied in
out-of-sequence ruling) Estate of Snyder, 7/11:2
Supervisory control:
(denied in guardianship/conservatorship/estate case)
Kasten v.
Irigoin, 3/28:5; (granted under urgency rationale in
re-zoning/electric plant dispute to require Phillips to resolve
remaining claims and issue final judgment, after which opponents can
appeal and seek stay or injunction)
Plains Grains v. Phillips,
5/9:2
Timeliness: (appeal of
judgment denying motion to compel arbitration of nursing home negligence
claims untimely) Brandenburg (PR of Rowe) v. Evergreen at Bozeman,
1/31:1
Transcript: (Appellant
Plaintiff properly ordered to provide entire transcript on appeal, not
just juror issue part) Heidt v. Argani, 8/22:2
Arbitration
Enforcement: (arbitration
panel had power to consider procedural issue of whether employee was
given proper termination notice regardless of whether parties agreed
there were no procedural issues, public policy violation exception (LPN's
alleged impairment) to enforcement of arbitration decision not
applicable, union properly denied bad faith attorney fees) Teamsters
Union Local 2 v. Crest Nursing Home, 4/4:3; (not required for
Montana claims in tobacco settlement dispute)
State v. Phillip
Morris, 8/8:2, (rehearing denied) 9/19:4; (award allowing BN to
terminate shortline interchange agreement and base future pay pursuant
to Rule 11 arrangement rather than per-car as under terminated agreement
confirmed) Central Montana Rail, 8/8:7
Forum determination: (forum
properly decided by judge, not arbitrator)
Higgins Development
Partners v. Skanska USA Building, 8/29:5
Jurisdiction: (federal lab
dispute properly resolved under FAR or FCDA, not by AAA)
Higgins
Development Partners v. Skanska USA Building, 8/29:5
Wrongful discharge:
($840,078 for wrongful discharge of software Client Business Manager for
refusal to accept non-performance-based demotion under circumstances
violative of personnel policies, no penalty for failure to immediately
pay accrued vacation, $54,337 costs of arbitration, $51,000+ other
expenses) Ferrin v. Hewlett-Packard, 6/20:5
Attorney Fees, Costs
Appeal: (appeal fees
granted borrowers in loan deficiency case)
First Citizens Bank v.
Sullivan, 1/17:4
Bad faith: (union properly
denied bad faith attorney fees) Teamsters Union Local 2 v. Crest
Nursing Home, 4/4:3; (Plaintiff's rejected sex\disability
discrimination claims reasonable despite defense verdict, County's
request for $90,484 fees as prevailing party denied)
Brenneman v.
Gallatin Co., 4/11:9
Collection: (although suit
against lawyers (defense judgment) in Anaconda, venue of fee collection
by Plaintiff's attorney proper in Missoula Co. where attorney's office
located, $7,000 claim in Justice Court ended when JP dismissed for lack
of venue, $9,960 properly awarded on appeal to District Court)
Hansell v. Waddell, 3/7:1
Common fund: (applies to
recovery for failure to invest in stocks over 30 years)
Trust B Under
Last Will of Dunham, 3/7:4
Equitable: (fees improperly
imposed for criminal contempt (not civil as Judge found), but properly
awarded under Judge's equitable powers for defending against meritless
attempt to get out of stipulation)
El Dorado Heights Homeowners'
Association v. Dewitt (Boles), 1/24:2; (equitable fees properly
awarded siblings) Monroe v. Worley, 4/25:1
Fee Arbitration Rules:
(revisions adopted) Rules on Arbitration of Fee Disputes, 5/9:3
Frivolous suit: $87,229
fees, $1,927 costs properly awarded Defendant for frivolous suit)
Zier v. Lewis, 8/22:2
Multiple clients:
(arbitrary hours attributed to other clients improperly deducted from HR
fee award for prevailing client with interrelated claims where no
evidence to support segregation, $28,063 overpayment properly offset
from fee award, not barred by waiver, equitable estoppel, laches,
release, post-judgment interest on $61,241 fee award, no pre-judgment
interest, appeal fees/costs) Edwards v. Cascade Co., 7/11:1
Rejected offer: (fees/costs
of $9,725 properly awarded in enforcement of $1,513.01 costs judgment in
Malibu condo dispute based on rejected offer of 1¢ less than judgment)
Stockwell v. Windham, 8/29:3
Vexatious litigation:
(Montana vexatious litigation statute applies only to multiplication of
proceedings, not pre-litigation conduct upon which suit based) Lawyer
Nursery v. Van Meter Nusery, 5/9:6
Attorney General Opinions
Attorney Practice
Bar dues: ($50 increase)
Petition of State Bar for Dues Increase, 3/7:2
Discipline: (unfair to
require filing tendered admissions in unique circumstances)
Rakela v.
COP, 1/3:4; (censure/suspension for excessive fees)
Engel,
3/7:2; (attorney censured for failure to file tax returns)
Molloy,
5/2:4; (assault with weapon, tampering, false reports warrant immediate
suspension pending COP proceedings)
Tadewaldt, 5/2:4; (lawyer
must be transferred to disability/inactive status upon request pursuant
to MRLDE 28F) Shontz, 9/12:2
Withdrawal: (MPC/NWE
counsel may transition out of representation over objection by work comp
claimants in unique bankruptcy stipulation situation, supervisory
control of Krueger granted) Browning, Kaleczyc, Berry & Hoven v.
Krueger, 2/21:1
Banking, Commercial Paper
Loan: (no undue
prejudice by
Judge amending
counterclaim
alleging mutual
mistake (.13%
interest in note
v. 13% in
agreement) to
affirmative
defense, but
relief for
lender on unpaid
balance barred
by 2-year
statute)
Johnson v.
District VII
Human Resource
Development
Council,
3/28:3
Bankruptcy
Bench Judgments
Farm equipment dealership:
($243,847, agreement termination, high-end tractor), Tractor &
Equipment v. Zerbe Bros., 1/3:1
House construction:
($10,000 plus interest for Defendant/Counterclaimant builder, $8,870 for
Plaintiff owners of Big Sky spec houses for punch list) Two Vistas
Holdings v. Iszler (Lone Tree Builders), 8/1:6
Indemnification: (employee
van service to indemnity RR $95,668 medical expenses paid by Wellness
Program to employee injured in rollover, plus $62,292 fees/costs in
defense against employee's claims but not fees/costs in establishing
right to indemnification, employee settled for total of $355,668) MRL
v. Powder River Transportation, 5/30:9
Waterslide injuries:
($225,000 against waterslide manufacturer that minimally participated in
litigation, waterslide injuries at motel, settlement with motel and pool
installer, cervical fracture) Hall v. Amusement Leisure Worldwide,
7/4:7
Civil Procedure
Bifurcation: (of
pre/post-enrollment claims in disability insurance trial denied)
Germain v. AIG, 2/28:7
Class action:
(co-defendant's request for hearing on class certification improperly
denied, Plaintiff's class action allegations improperly taken as true,
class certification hearing guidelines adopted)
Mattson v. MPC,
8/29:3; (certified for work comp common law bad faith/fiduciary
claims against MPC and reincarnations, not for fraud claims)
Gonzales v. MPC,
10/10:5
Collateral source:
(Defendant failed to contact Plaintiff as to collateral source reduction
motion pursuant to LR 7.1(j), but issue resolved by stipulated $50,000
reduction prior to hearing) Messick v. Bowman, 1/3:7
Complaint verification: (no
error to allow testimony after case-in-chief to verify information in
complaint to which Defendant had objected as insufficient) Pinnacle
Gas Resources v. Diamond Cross Properties, 1/31:2
Counsel withdrawal:
(continuance properly denied after fired counsel formally withdrew 1st
day of trial in light of unique circumstances and compensation to
divorce party) Marriage of Hardin, 1/3:4
Counterclaim: (no undue
prejudice by Judge amending counterclaim alleging mutual mistake (.13%
interest in note v. 13% in agreement) to affirmative defense, but relief
for lender on unpaid balance barred by 2-year statute) Johnson v.
District VII Human Resource Development Council, 3/28:3
Damages: (claims could
support award of punitives) Simonsen v. Allstate Ins., 1/10:7;
(child safety seat maker's invitation to adopt Restatement for
admissibility of regulations as to liability for defective design
declined, compliance with FMVSS ``minimal standards'' irrelevant to
design defect claim, prior model substantially similar to death accident
model, evidence as to recall/test failures of earlier model properly
admitted for compensatory/punitive damages, FMVSS rulings as to
compensatory damages heightened Defendant's burden, but within realm of
strict liability law, evidence of compliance with FMVSS not relevant to
compensatory damages, but relevant to punitives, Defendant should be
allowed to attempt to offset misconduct with good faith effort to comply
with regulations, $6,697,491 compensatory award upheld, $3.7 million
punitives reversed, remanded for punitives retrial) Malcolm v.
Evenflo, 9/19:1
Default: (insurer would
have been entitled to set aside $101,300 rear-ender default judgment
under 60(b)(1) but for 60-day bar, but relief also properly granted
under (b)(6) ``extraordinary circumstances,'' including that local agent
received complaint/summons but ``mystery'' why insurer did not and
delays by Plaintiff) Bartell v. Zabawa, 6/13:1; (attorney
affidavit averring to disputed facts outside personal knowledge
improperly relied on for default judgment... authority also lost after
motion deemed denied for failure to issue timely order... dispute as to
proper defendant not determinative) Mobley & Sons v. Weaver,
9/26:1; ($2,351,123 (including $500,000 punitives) properly awarded
against pro se land sellers as sanction for prolonging litigation
resulting in developers inability to sell high-end residential lots...
appeal fees awarded pursuant to contract)
Flathead River Ranch
Estates v. Wolf, 10/3:4; (Plaintiff's claim of $140,000 for
alleged wrongful discharge not ``sum certain'' for default judgment by
Clerk (as opposed to Judge)... abuse of discretion to refuse to set
aside the default under good cause standard of Rule 55(c))
Bryden v. Lakeside
Ventures, 10/3:4
Discovery: (work-product
protection of claims file not ``triggered'' by retention of lawyer or
letter requesting copies of medical report/payments and inquiring why
insured had not received certain payments, surveillance documents also
discoverable) Germain v. AIG, 1/24:5; (engagement letter not
protected by attorney/client privilege) McCullough v. Johnson,
Rodenberg & Lauinger, 1/24:5; (supervisory control of McCarter
granted as to railyard contamination discovery, parties ordered to
attempt to resolve parameters of discovery disputes involving other
railyards vis-à-vis Helena yard, blanket protective order vacated,
future protective orders may be issued upon showing of good cause)
Anderson v. McCarter, 5/30:2; (Defendant waived objections by not
timely & properly stating objections, untimely privilege log
insufficient, claimed (disputed) oral stipulation to extension not
permitted by Rules, counterclaims not dismissed as sanction) Economic
Research Services v. NorthWestern Corp., 8/8:7; (supervisory control
of McCarter by mother of bicycle/auto decedent denied as to limiting
discovery to CHIP recipients over last 6 months rather than to all
insureds for whom BCBS paid health insurance benefits and received
reimbursement for providers pursuant to liens asserted on PI recoveries
during previous 8 years... unlimited discovery not allowed for finding
other plaintiffs for a class action) Shattuck v. McCarter, 9/26:3
Dismiss: (information
outside complaint about Tribal Court action relevant to motion to
dismiss, should have been considered) Lozeau v. GEICO Indemnity,
4/25:3
Experts: (pathologist
properly allowed to testify as to breast cancer) Harris v. Hanson,
1/24:1; (Plaintiff's experts' reports contain experts' own opinions
despite preparation assistance by counsel) Lawyer Nursery v. Van
Meter Nursery, 8/15:7
Instructions: (any error in
instructing on ``loss of chance''/apportionment of damages harmless as
jury found no negligence) Harris v. Hanson, 1/24:1
Injunction: (ultimate
merits of agreement dispute improperly resolved prior to analyzing
requested preliminary injunction, remanded for injunction pending trial
on merits) Whitefish v. Flathead Co., 1/3:2; (preliminary
injunction against hospital properly granted in radiologist
reappointment dispute) Cole v. St. James Healthcare, 1/10:1
Joinder: (joinder of MVA
tortfeasor as non-diverse party allowed in suit against insurer,
remanded) Greenough v. Safeco, 1/31:6
Judicial estoppel:
(theories as to ability to sue not fatally inconsistent, suit against
appraiser for allegedly overvauling RV park improperly dismissed)
Olympic Coast Investment v. Seipel, 8/1:7
Jury: (prospective jurors
with relationships with defense counsels' firms properly not excused for
cause) Harris v. Hanson, 1/24:1; (challenge of taxpayers on jury
in trial against County rejected, venue change based on jurors' status
as taxpayers properly denied, voir dire properly restricted as to
insurance, landowner concerned about source of award properly not
excused for cause) Eklund v. Wheatland Co., 7/18:1; (mistrial or
new trial should have been granted when juror became ill during
Plaintiff's lawyer's ``channeling'' of decedent and was attended by
Defendant physician) Heidt v. Argani, 8/22:2
Late amendment: (dental
malpractice Plaintiff allowed to add post-deadline punitives claim based
on alleged concealment of lip laceration during surgery) Logerstedt
v. Taylor, 6/20:4
Mandamus: (former property
owner lacks standing to compel local government officials to enforce
subdivision golf net requirements, claim also time-barred) Butte
Country Club v. McLeod, 5/16:3; (DNRC failed to uphold duty to
process permit application within timeframes, but mandamus not available
until applicant proves criteria satisfied, improperly issued)
Bostwick Properties v. DNRC, 5/30:4
Parties: (supervisory
control of Stadler denied as to dismissal of 3rd-party complaint against
MVA Plaintiff's UM insurer, preclusion of evidence of phantom motorist)
Parker v. Stadler, 7/25:3
Pretrial order: (pretrial
order amendment rulings in truck driver's disability insurance case,
replacement of designated corporate witness denied) Germain v. AIG,
6/6:8
Record: (challenged audio
tapes provided sufficient record of Master's trial) Marriage of
Olson, 1/10:4
Relief from judgment:
(post-judgment interest on $100,000 FHA judgment payable at federal rate
of 3.33%, not Montana rate of 10% pursuant to State Court action to
collect judgment, fees awarded in State Court judgment collection action
not part of federal judgment, not required for satisfaction of federal
judgment, motion for relief from judgment pursuant to satisfaction not
barred by Colorado River abstention or res judicata of State
Court order) Steinweden v. L&M Const., 2/14:7
Res judicata: (claim for
damages for plugged oil/gas wells barred by res judicata, pre-trial
order, prior trials/appeals) Somont Oil v. C-W Joint Venture,
1/17:3
Sanctions: (Rule 11,
denied) Bozeman Deaconess Health Services v. Simms, 7/11:6;
(patently inadmissible no-cause FIR improperly admitted as ``sanction''
for failure to object in limine as ordered (first impression), defense
verdict reversed, remanded for new trial) Stevenson v. Felco
Industries, 9/12:1
Service: (by party invalid,
dismissed for failure to serve within 3 years) Gomke v. Northern
Montana Hospital, 9/26:3; (deputy reasonably led to believe that
kitchen manager had authority to accept service for restaurant, motion
to quash properly denied)
Bryden v. Lakeside Ventures, 10/3:4
Settlement rescission:
(doctor, hospital, insurers seeking to rescind $1.1 million med-mal
settlement for alleged faking of RSD symptoms on inquiry notice by
opinions of experts, suspicions of counsel, claims time-barred, statute
not tolled by fraudulent concealment, claims also barred by res judicata
as Plaintiffs could have litigated faking issue in underlying
case, Rule 11 sanctions against Plaintiffs denied) Bozeman Deaconess
Health Services v. Simms, 7/11:6
Severance: (Plaintiffs with
different I-143 claims properly not severed, venue properly changed from
Blaine to L&C) Buhmann v. State, 1/10:2
Standing: (police
association lacks standing to challenge City's management of
pension/disability fund, claims for future retirement
payments/reimbursements fail injury-in-fact test) Dillon Police
Officers' Association v. Dillon, 6/20:5
Statute of limitations:
(summary judgment for engineers in leaky dam dispute proper based on
3-year tort statute (rather than 8-year contract statute)) Tin Cup
County Water/Sewer Dist. v. Garden City Plumbing, 2/28:2; (facts of
jail fall not self-concealing even though extent of injury may have
taken more than 3 years to fully blossom, 120-days tolling for tort
claim not applicable to counties, claim time-barred) Brown v.
Flathead Co., 4/11:8; (equitable tolling appropriate for suit over
Reservation MVA between member and non-member filed first in Tribal
Court, then filed in District Court more than 3 years after MVA out of
concern for jurisdictional challenge) Lozeau v. GEICO Indemnity,
4/25:3
Venue: (venue properly
changed from Blaine to L&C) Buhmann v. State, 1/10:2; (although
suit against lawyers in Anaconda, venue of fee collection by Plaintiff's
attorney proper in Missoula Co. where attorney's office located)
Hansell v. Waddell, 3/7:1; (change based on publicity/marijuana bias
properly denied) Dean v. Sanders Co., 3/28:1; (venue for implied
warranty claim proper in Yellowstone where sale of horse occurred, venue
for alleged misrepresentation of nature of horse ``committed'' in
Yellowstone Co. where sale occurred, not Silver Bow where rider was
bucked) Deichl v. Savage, 9/5:4; (because no county proper for
both defendants on all claims, Defendant not entitled to change venue
from county where suit filed) Farmers Union Association v. Paquin,
9/19:3; (change order by Curtis cannot be reviewed without rationale)
BNSF v. DEQ, 9/26:4
Verdict: (inconsistent,
because jury found no contractual obligation as to development rights,
no legal basis for $2.5 million for breach of development agreement...
Defendant's failure to clarify that letter of intent did not constitute
contract resulted in confused jury rendering supportable but
inconsistent verdict... Supreme Court has power to review challenge to
verdict but parties advised to first challenge verdict for sufficiency
of evidence post-trial... $2,642,755 net verdict reversed, remanded for
new trial) DR Four Beat
Alliance v. Sierra Production, 10/3:1
Civil Rights
Commerce
Conservatorship
Constitutional Law
Right to know: (right to
know/privacy interests in child abuse/neglect matters properly
accommodated by in camera/redaction pursuant to statute) Disability
Rights Montana v. State, 4/11:1
Takings: (I-143 termination
of fee shooting upheld over regulatory takings claims) Kafka v. FWP,
1/10:1; (Plaintiffs with different I-143 claims properly not severed,
venue properly changed from Blaine to L&C, liability properly determined
by Judge rather than jury, federal analysis properly applied to
regulatory takings claims, categorical/regulatory takings claims
properly rejected) Buhmann v. State, 1/10:2
Construction Lien
Foreclosure: (summary
judgment precluded by fact issues as to whether driller breached
contract by mislocated abandoned well even though second well completed
per contract) Sudan Druilling v. Anacker, 1/31:1
Consumer Protection
Motor home defects: (JNOV
properly denied as to notice, venue, statute of limitations, express
warranty issues as to Lemon Law, CPA, warranty claims as to motorhome
swaying problem, doubling $84,000 damages under CPA remedial not
punitive, appeal fees in addition to $53,382 fees below) Vader v.
Fleetwood, 1/17:1
Statute of limitations:
(certified questions from Haddon as to CPA statute of limitations
accepted) Johnson v. Northland Group, 2/28:3; (certified question
by Haddon as to statute of limitations improvidently accepted due to
fact issues as to continuing violation principle) Johnson v.
Northland Group, 9/5:4
Contracts
Business sale: (parol
evidence properly rejected in construing whether concrete business sale
agreement prohibited business by seller in ``non-compete area'' or
required seller to provide customer list, Customer Letter not executed
oral agreement or separate agreement not to compete, ``Non-Compete
Agreement'' not ambiguous prohibition against doing business in
``non-compete territory,'' but penalty that seller must pay buyer to do
business in territory, not ambiguous as to sale of business as whole v.
sale of assets as to claim that seller must provide customer list, parol
evidence exceptions (including fraudulent inducement) inapplicable)
Richards v. JTL Group, 5/23:4
Commercial lease: (casino
that serves alcohol qualifies as prohibited ``bar or tavern'' under
lease, no extraordinary circumstances for applying laches, summary
judgment properly granted Plaintiff without hearing, attorney fees/costs
on appeal in addition to fees below) Dollar Plus Stores v. R-Montana
Associates, 5/23:5
Credit card: (insufficient
notice in ``bill stuffer'' arbitration clause, amendment void)
Kortum-Managhan v. Herbergers, 3/21:1
Farm equipment dealership:
(Agreement subject to MFIDA per ``community of interest'' between
tractor dealers, MFIDA 90-day notice provision not waived by agreement
to 30-day termination clause, $243,847 bench judgment affirmed over $1.8
million claim by Plaintiff, ``washout tree'' accounting method of
including trade-ins in purchase of high-end tractor properly rejected)
Tractor & Equipment v. Zerbe Bros., 1/3:1
First refusal right: (in
mule bill of sale enforceable, but $7,064 compensatory damages for
breach reduced to $700, $5,000 punitives and $7,679 fees stricken)
Rashid v. Jolly, 9/5:1
Nursery contract: (summary
judgment precluded by fact issues on claims by both parties as to
allegedly sub-standard trees, whether buyer accepted boiler-plate
``Terms & Conditions of Sale'' on back of order acknowledgment forms,
and fraud/punitives claims, declaratory ruling declined as to perfection
of ag lien that must be foreclosed in Oregon, Plaintiff's experts'
reports contain experts' own opinions despite preparation assistance by
counsel, other in limine rulings on experts and evidence) Lawyer
Nursery v. Van Meter Nursery, 8/15:7
Release: (Release clauses
in prior MVA PI/UTPA settlements not bar to claims against insurer based
on withholding of parts of claims handling study (1st impression in
Montana)) Simonsen v. Allstate Ins., 1/10:7
Software: (4-year UCC
statute (not 8-year contract statute) applies per Agreement to breach of
licensing agreement, claims barred by Plaintiffs' admitted
knowledge/suspicions of breach more than 4 years before suing)
Education Logistics v. Laidlaw Transit, 6/6:7
Co-ops
Corporations
Courts
Clerk of court:
(petition for
writ of
prohibition to
void orders by
13th Judicial
Dist. judges
mooted by
Clerk's election
loss, no longer
threat of
contempt)
Brent v. 13th
Judicial Dist.
Judges,
1/3:4
Judge substitution:
(supervisory control of Seeley denied in judicial substitution denial 30
days after assumption pursuant to 10-day limit under 3-1-804(1), but
Court intends to rewrite judicial substitution provisions for clarity)
Matthis v. Seeley, 5/2:6; (revisions proposed)
Revised Rules
on Substitution of District Judges, 5/30:5; (revisions adopted)
7/18:3; (weekends improperly not considered in denying motion for
substitution as untimely, supervisory control of Tucker granted)
Redlich, 7/25:5; (voluntary withdrawal of judge mooted untimely
motion for substitution)
Lake Co. First v. Polson, 10/10:2
Judicial bias: (Defendant
not deprived of fair suppression hearing by Judge's questioning or
verbatim adoption of State's proposed findings/ conclusions, judicial
bias claim rejected) Lacey, 3/14:3
Judicial disqualification:
(disqualified municipal judge must refer affidavit/certificate to
district judges, not appoint successor) Harris v. Kalispell Municipal
Court, 6/20:1
Judicial conduct: (JP
removed based on misconduct as to 5 women in his Court) Hicks,
2/21:5
Jurisdiction: (personal
jurisdiction waived by failure to file motion within established time
frame) Smith v. Smith, 1/17:4; (personal jurisdiction properly
not found over out-of-state manufacturers/sellers of kit airplane and
components that crashed in Montana, no personal jurisdiction by mere
placing products into stream of commerce, jurisdictional discovery
properly denied) Bunch v. Lancair International, 2/7:1;
(Defendant LLCs not required to explain why individual Defendant did not
join in removal notice as he was not then named, timely filed answer in
Federal Court through same counsel) Mitchell v. Paws Up Ranch LLC,
2/28:6; ($7,000 claim in Justice Court ended when JP dismissed for lack
of venue, $9,960 properly awarded on appeal to District Court)
Hansell v. Waddell, 3/7:1; (personal jurisdiction lacking over
Montana suit alleging fraudulent chartering of Florida yacht via
Internet) Weimar v. Barrett, 3/21:2; (Judge had
post-notice-of-appeal jurisdiction to enter TPO blocking access to
children's therapy notes/videos on motion of GAL since it is not
directly related to same-sex custody/property issues on appeal, but
should have provided opportunity for parent to first address GAL's
motion) Maniaci v. McLean, 4/25:6; (state legislatures cannot
directly affect federal jurisdiction, Montana did not attempt to do so
in HR judicial review procedure, Shamrock no longer good law in
supplemental jurisdiction cases, Federal Court has diversity
jurisdiction over HRC obese RR conductor candidate $366,212 award)
BNSF v. O'Dea, 7/18:6
Law of case: (law of case
of prior appeals requires distribution of land at $160,000 1992
date-of-death value, not $5 million current value) Snyder, 9/5:1
Successor judge: (properly
granted renewed summary judgment motion) Teamsters Union Local 2 v.
Crest Nursing Home, 4/4:3
Summary judgment:
(improperly granted to product liability Defendant without consideration
of Plaintiff's expert materials ``on file'' in response to separate
motion to exclude witnesses) Hopkins v. SMW Systems, 2/28:1;
(title insurance contract disputed fact issues improperly resolved on
summary judgment) Amerimont v. Fidelity National Title Ins.,
7/4:4; (Defendant entitled to summary judgment based solely on
pleadings) Logterman v. Weidenaar Ranches, 8/15:6
Venue: (malicious
prosecution suit properly in Missoula where underlying dismissed federal
suit was filed, not Flathead where parties reside) Deist v. Thornton,
1/31:2
Crime, Criminal Procedure
Accomplice: (whether
girlfriend was accomplice as matter of law properly left to jury,
sufficient evidence to corroborate girlfriend's testimony that Defendant
was lab operator) Dewitz, 6/20:3
Aggravated assault: (photos
of victim properly admitted to show serious injury, evidence of victim's
pornography to show justifiable force properly excluded, instruction on
misdemeanor assault as lesser-included properly denied) Johnson,
1/31:3; (sufficient circumstantial evidence that Defendant purposely
injured infant as opposed to ``accident,'' dismissal properly denied)
Allum, 1/31:4; (against public policy for consent of victim to be
defense to aggravated assault (1st impression), Defendant's conduct at
other bars and video of post-arrest interview properly admitted under
transaction rule, intoxication due process claim not preserved for
appeal) Mackrill, 2/7:5; (no prejudice from instruction that
attempted aggravated assault is lesser-included since jury never reached
it, sufficient evidence of serious injury) Potter, 3/7:3;
(aggravated assault conviction should have been dismissed where felony
murder conviction was predicated on same assault) Russell,
4/11:1; (Commissioner who knew of case from conferences with former
prosecutor should have been dismissed for cause, due process not
violated by loss of video interview of Defendant's father, who testified
at trial, father's prior written statement properly admitted as
impeachment despite minor inconsistency with trial testimony, but
improperly allowed into jury room, conviction reversed, remanded for
Ariegwe analysis of speedy trial claim, if claimed denied, then for
re-trial) Herman, 4/11:2; (no danger of erroneous application of
``purposely'' in instruction as to injury from screwdriver held by
Defendant who claimed justifiable force) Nick, 6/6:3
Appearance delay: (no
unnecessary delay between arrest and initial appearance of DUI
Defendant) McDaniel, 9/12:5
Assault with weapon:
(Lawyer/Defendant's right to counsel, disqualification, suppression,
speedy trial, expert/other crimes, 61-year sentence challenges properly
rejected) Patrick, 7/18:4; (vehicular assault Defendant's father
properly allowed to read from transcript of jail conversation between
Defendant and father) Haffey, 9/12:5
Attempted assault with
weapon: (meth use admissible under transaction rule to explain why 3
officers had difficulty subduing smaller gun-grabber and their fear of
serious injury, Daubert hearing request insufficiently preserved
for appeal, instruction that intoxication is not a defense proper even
though no intoxication defense asserted) McLaughlin, 7/4:4
Attempted deliberate
homicide: (post-Miranda silence improperly used to imply guilt,
conviction reversed on plain-error review, remanded for new trial)
Wagner, 8/22:3; (any error in admitting numerous
weapons/paraphernalia found in car harmless in light of Defendant's
admission that he shot into 3 moving vehicles with pistol affixed with
laser and silencer) Fadness, 9/12:6
Attempted rape: (State did
not breach plea agreement by noting dismissed charge of sexual abuse of
children, 5th-Amendment not violated by considering acts which Defendant
reported while in sex treatment as condition of youth court consent
decree (classic plea bargain situation, not classic penalty situation),
Defendant properly designated Level 3) Hill, 4/25:7
Bail: (indigent not
entitled to recognizance, habeas denied without prejudice to seek
further relief) Vasquez, 7/4:5
Child pornography:
(interrogation answers properly found voluntary, not result of Tylenol
III or coercion, sufficient evidence of receipt/possession of child porn
downloaded by retarded man at Defendant's direction) Heller,
3/7:7; (admissions in sex offender registration documents constituted
sufficient proof that Maryland sex abuse conviction was qualifying
predicate for sentencing enhancement) Strickland, 3/7:8;
(suppression based on change of address and similar houses, computer
equipment based on single photo believed to be from internet, properly
denied, Defendant ``in custody'' prior to Miranda, but contrary
finding harmless error, probable cause to arrest based on evidence found
in search, burden not shifted by Judge's questioning whether Defendant
unaware of images on computer, convictions for both receipt and
possession double jeopardy) Brobst, 5/16:7; (images of
stepdaughter depict lascivious exhibition of genitals or pubic area and
thus are ``sexually explicit conduct'', §§ 2251(a) & (b) separate
offenses, convictions of both based on same episode of nude photos of
stepdaughter not double jeopardy, creating photos separate conduct from
perusing porn sites and downloading images, receipt and possession
convictions not double jeopardy, 235-month sentence affirmed)
Overton, 7/25:6; (homegrown porn affected interstate commerce, life
sentences proper based on prior state sex assault) Gallenardo,
9/5:6
Clandestine lab: (911
dispatcher with police boyfriend properly not excused from jury for
cause, detective improperly allowed to give handwriting opinion, but
error harmless in light of other admissible evidence showing who
occupied motel room with meth lab, Defendant opened door to hearsay by
introducing affidavit/motion from girlfriend's case, 404(b) claim waived
by failing to object contemporaneously, whether girlfriend was
accomplice as matter of law properly left to jury, sufficient evidence
to corroborate girlfriend's testimony that Defendant was lab operator,
Prosecutor's rebuttal closing comments not improper, conviction
affirmed) Dewitz, 6/20:3
Concealed weapon permit:
(properly denied discharged sex offender (resulting in denial of gun
ownership), certified question from Molloy) Van der hule v. US,
1/31:5
Confidential informant:
(ignoring body wire recording pursuant to Goetz, CI reliability
not established, affidavit not corroborated, pre-Goetz
information dismissed, trial vacated, but evidence/testimony of CI's
claimed marijuana buy not suppressed despite illegality of recording
(1st impression)) Johnson, 3/14:6; (plain-error review denied as
to applying Goetz warrantless electronic monitoring ruling,
officer's testimony that conversations he overheard between CI and
Defendant were consistent with a drug deal were not present-sense
impression under 803(1), but opinion under 701) Foston, 6/6:5
Criminal mischief: (claims
of destruction of exculpatory evidence (school videos, officers' notes),
improper limitation on cross rejected in parking lot/road rage case,
misdemeanor conviction affirmed) Opie, 3/21:9; (finding that
car's value before vandalization was ``at least $1,000'' insufficient to
establish felony ``loss in excess of $1,000'', remanded for misdemeanor
disposition of youth) JDN, 5/2:8
Deliberate homicide: (due
process not violated by detective's destruction of interview notes,
failure to record, dismissal properly denied based on alleged failure to
provide discovery, jailhouse witnesses properly allowed month before
trial, ``reverse 404(b) evidence'' properly excluded, no prejudice by
interview video in jury room, life without parole legal) Giddings,
3/14:2; (Defendant in ``custody'' when interrogated despite no physical
restraint, but did not effectively stop questioning by statements during
Miranda, continued voluntarily conversing, not entitled to
suppression of statements under Miranda-Mosley or due
process/totality, speedy trial claim involving 1,168 days denied,
State's undisclosed expert testimony improper but harmless in light of
no prejudice, no physical evidence, but sufficient circumstantial to
convict in disappearance death of child) Morrisey, 6/13:6;
(speedy trial claim properly rejected... jury properly instructed as to
weight to give testimony... bi-polar witness not compelled to provide
mental records... plain error review of alleged prosecutorial misconduct
declined... conviction affirmed) Miller, 9/26:4
Deliberate homicide
accountability: (Defendant's statement from 4 years earlier that he
would like to kill victim properly admitted) Green, 4/18:3
Dismissal: (State's
response to motion to dismiss timely filed pursuant to omnibus schedule,
improperly rejected under UDCR, vehicular homicide dismissal by Phillips
(later rescinded) reversed) Child, 5/9:4
Double jeopardy: (not
violated by pleading guilty to suspended license vis-à-vis revocation)
Johnston, 2/14:4; (Defendant not wrongly deprived of double
jeopardy defense to vehicular assault charges in District Court by not
being allowed to plead guilty to DUI in City Court) Milligan,
2/28:5; (federal revocation for meth possession not a ``punishment''
that would invoke double jeopardy as to State meth prosecution) Maki,
3/7:4; (double jeopardy raised 16 months after omnibus hearing properly
rejected as untimely) Cotterell, 4/4:6; (aggravated assault
conviction should have been dismissed where felony murder conviction was
predicated on same assault, decided on criminal procedure code, not
double jeopardy) Russell, 4/11:1; (state statutory rape
improperly charged on top of federal exploitation and child pornography
convictions involving same victim and conduct) Neufeld, 7/25:4;
(images of stepdaughter depict lascivious exhibition of genitals or
pubic area and thus are ``sexually explicit conduct'', §§ 2251(a) & (b)
separate offenses, convictions of both based on same episode of nude
photos of stepdaughter not double jeopardy, creating photos separate
conduct from perusing porn sites and downloading images, receipt and
possession convictions not double jeopardy) Overton, 7/25:6;
(whether to dismiss porn receipt or possession conviction in discretion
of judge, not prosecutor) Hector, 9/5:6
Drugs: Hayden,
1/24:3; (not ineffective assistance for not requesting mistrial when
officer testified that Defendant exhibited meth symptoms, sufficient
evidence that Defendant knowingly possessed undetermined amount of meth
residue over claim that he found vial and did not know it contained meth)
Wood, 2/7:4; Jones, 2/21:6; (sufficient evidence of meth
possession independent of ``hearsay'' tip) Russette, 2/21:7; (meth)
Nickerson, 3/7:6; (new omnibus hearing not required following
addition of lesser-included based on same facts, alternative charge not
good cause for untimely motion to suppress, counsel not ineffective for
not timely moving to suppress based on agent's failure to Mirandize
since meth would have inevitably been found in probationer's house)
Adkins, 3/28:6; (particularized suspicion for stopping vehicle based
on domestic disturbance report and occupants known to not have driver's
licenses, consent to search vehicle need not be preceded by Miranda,
consent to search properly requested after domestic disturbance
investigation completed, scope of stop had already been expanded by
driver being detained for no license/insurance and again by consent to
search, Defendant had authority to consent to search of employer's
vehicle which Defendant had authority to use for extended period,
Defendant's statement to passenger to ``call the attorney now'' did not
constitute request to officers for lawyer even if Defendant in custodial
interrogation, negative drug test 6 days after arrest not relevant to
possession of pills, sufficient evidence of possession by Defendant of
pills for which borrower of car had prescription, Daubert hearing
not required for druggist's visual ID of pills, possession conviction
affirmed) Clark, 4/11:5; (particularized suspicion to stop
vehicle parked in high crime area at 2 a.m. with occupants moving around
suspiciously, drugs in container would have inevitably been discovered
in arrest inventory, suppression properly denied) Hilgendorf,
5/16:2; (plain-error review denied as to applying Goetz
warrantless electronic monitoring ruling, officer's testimony that
conversations he overheard between CI and Defendant were consistent with
a drug deal were not present-sense impression under 803(1), but opinion
under 701) Foston, 6/6:5; (sufficient evidence of marijuana sale
based on potential CI testimony apart from warrantless electronic
surveillance) Schwartz, 7/25:5; (evidence of Defendant's
probation intervention hearing/sanctions improperly admitted without
Just notice, possession conviction reversed, remanded for new trial)
Campa, 8/8:3
DUI: (breath test
improperly admitted in absence of Lab certification author or notice of
intent to offer report, conviction reversed, remanded for new trial)
White, 2/7:2; (blood properly drawn by LPN under ``supervision and
direction'' of off-site RN) Merry, 2/7:2; (sufficient reason to
stop based on no apparent brake lights, even though officer failed to
check lights after stop, prior DUI with missing record adequately
validated by JP testimony) Faber, 2/28:4; (prior DUIs valid,
properly used to enhance to felony) Walker, 2/28:5; (requirement
that officers have certain amount of ``experience'' to make
investigatory stop abandoned, relatively inexperienced deputy had
reasonable grounds to believe driver DUI) Brown, 3/21:3;
(particularized suspicion for stop and probable cause for arrest based
on 50 miles on wrong side of interstate, venue proper in Custer Co. even
though interstate entrances blocked in Custer, 911 transcript properly
admitted, HGN video properly admitted despite officer's lack of
certification, convictions affirmed) Cybulski, 3/21:4;
(particularized suspicion to investigate parking lot strike of
unoccupied vehicle, failure to leave note, motion to suppress properly
denied) Harper, 3/21:6; (warrantless entry into driver's house
following MVA not justified by exigent circumstances (possible
destruction of BAC evidence, possible injuries)) Saale, 4/11:6;
(youth's DUI expungement unlawful, no judicial estoppel by Prosecutor's
recommendation that prior Youth Court record be expunged) Darrah,
4/11:6; (particularized suspicion to stop car in wrong lane on gravel
road) Wilkins, 4/11:7; (officer approaching woman in parked car
on public road without emergency lights or siren did nothing to impede
her liberty, she would have felt free to leave, contact was not a
seizure (1st impression), particularized suspicion not needed to justify
contact, DUI investigation properly triggered by slurred speech/alcohol
odor) Wilkins, 4/11:7; (sufficient particularized suspicion by
odd angle of parking in bar lot, erratic driving, City officer had
authority to stop outside city limits, sufficient probable cause for
arrest, notice to appear & complaint in Municipal Court properly elected
by officer over charge in District Court, affidavits/oath not required,
fines/costs improperly based on VA benefits income) Ditton,
4/18:6; (City Judge's records provide evidence that youth waived right
to counsel in predicate DUI, counsel properly waived without parent
consent since YCA not applicable to DUI, felony DUI properly not reduced
to misdemeanor) Allen, 4/18:7; (running exposed plate not a
search, no reason to believe driver was not owner, motion to suppress
denied, felony DUI affirmed) Neil, 4/25:9; (requirement of LEA
training within 1 year of appointment not applicable to deputy who made
arrest within 1-year period, deputy was peace officer, not reserve
officer, authorized to arrest without direct supervision, particularized
suspicion supported by totality of circumstances (45 in 70 zone,
touching/crossing fog line repeatedly, touching centerline)) Smith,
4/25:9; (particularized suspicion based on motorist's continuing reports
to dispatcher) Rutherford, 5/9:4; (no reason to view with
distrust officer's failure to video running of red light, officer's
testimony sufficient to establish particularized suspicion, ``viewed
with distrust'' cases not extended to traffic stop, cases mooted by HB
534 (2009) requirement to record interrogations in felony cases)
Deines, 5/30:5; (officer reasonably believed accident victim
incapable of refusing to have blood drawn at hospital, officer's
paramedic expertise not necessary, not necessary for investigation
report to qualify as ``expert'' report) Grela, 5/30:6; (mental
state not required to convict of absolute liability DUI, involuntary
intoxication (spiked punch) instruction properly refused) Weller,
5/30:7; (road in private subdivision correctly found as matter of law to
be ``way of this state open to the public'') Bryson, 7/11:4;
(totality of evidence, not just video, supports particularized suspicion
for stop based on slow driving, drifting) Rice, 8/8:6; (Defendant
failed to suppress BAC test/video after HGN/PBT suppressed, but officer
still had probable cause to arrest based on observations) Vogl,
8/22:7; (charges properly not dismissed after suppression of BAC test
from blood drawn in hospital without advice of right to independent
test, BAC from hospital records properly admitted, patrol car video
properly admitted as evidence of intoxication, convictions affirmed)
Schauf, 9/5:5; (particularized suspicion to stop vehicle stopped in
road, making u-turn, notwithstanding claim that behavior due to texting)
Nettleton, 9/12:4; Haffey, 9/12:5; (``DUI (3rd)'' amended
to ``DUI (2nd)'' properly counted as 3rd DUI for 4th-offense purposes,
felony statute, progressive DUI penalties not violative of equal
protection) Blue, 9/19:6; (compulsion defense properly rejected
by driver who claimed passengers ``carjacked him and forced him to drink
and drive) McNeff, 9/26:6; (particularized suspicion to check on
vehicle with sleeping driver in closed bar lot ripened into probable
cause to arrest... reinstatement of suspended license properly denied)
Doely, 9/26:76
Endangerment: (instruction
properly omitted additional statutory language on tree spiking, proper
instruction on ``knowingly,'' ``knowingly'' element proven) Cybulski,
3/21:4; (charges properly not dismissed after suppression of BAC test
from blood drawn in hospital without advice of right to independent
test, cross of witness properly limited as to drug charge against
witness, BAC from hospital records properly admitted, patrol car video
properly admitted as evidence of intoxication, convictions affirmed)
Schauf, 9/5:5
Expert disclosure: (State
complied with expert disclosure requirements by listing victim advocate
despite not filing report of expected testimony, constitutionality of
discrepancy between prosecutor's and defendant's disclosure duties not
reached) Norman, 2/21:7; (State's undisclosed expert testimony
improper but harmless in light of no prejudice) Morrisey, 6/13:6
Exploitation of children:
(images of stepdaughter depict lascivious exhibition of genitals or
pubic area and thus are ``sexually explicit conduct'', §§ 2251(a) & (b)
separate offenses, convictions of both based on same episode of nude
photos of stepdaughter not double jeopardy, creating photos separate
conduct from perusing porn sites and downloading images, receipt and
possession convictions not double jeopardy, 235-month sentence affirmed)
Overton, 7/25:6
Failure to remain at scene:
(statute not unconstitutionally vague facially or as applied,
supervisory control granted) Steglich, 7/18:3
Felony amount: (finding
that car's value before vandalization was ``at least $1,000''
insufficient to establish felony ``loss in excess of $1,000'', remanded
for misdemeanor disposition of youth) JDN, 5/2:8
Felony murder: Matt,
2/14:3; (aggravated assault conviction should have been dismissed where
felony homicide conviction was predicated on same assault, decided on
criminal procedure code, not double jeopardy, ineffective assistance
claim best suited for postconviction, specific unanimity instruction not
necessary for felony murder were acts occurred in single night)
Russell, 4/11:1
Forfeiture: (Federal
Excessive Fines Clause not applicable to state forfeiture, but Court
would have difficulty overturning forfeiture of meth vehicle under State
restitution law) Warner, 2/7:6
Habitual traffic offender:
(mail notice of habitual offender status and license revocation
satisfies procedural due process) VanDyke, 9/12:4
Hunting: (sufficient
evidence of hunting/possessing bear out of season, no error in adopting
State's proposed findings & conclusions) Wendler, 2/28:6;
(officials' innocent aerial observation of private property not a
``search'', claim that warden trespassed on neighboring lands not raised
below, not amenable to plain-error review, warrant not required to
monitor (illegal) radio hunter conversations, search warrant supported
by sufficient facts, warrant application improperly authorized seizure
of ``any other evidence of a crime,'' but seizure of unspecified
journals & calendars within search scope, motion to suppress properly
denied, double jeopardy raised 16 months after omnibus hearing properly
rejected as untimely, hunting/fishing/trapping privileges properly
forfeited for 2 years for hunting convictions, convictions affirmed)
Cotterell, 4/4:6
Incest: Crosley,
4/18:4; (sufficient evidence of common law marriage to support incest of
``stepdaughter,'' objection to undisclosed testimony untimely, waived)
Bullman, 4/18:5; (Defendant's exclusion from in-chambers voir
dire structural error, conviction reversed, remanded for retrial, child
abuse expert qualified, properly allowed to provide general information
about ``grooming'', prior sexual activity with stepdaughters properly
admitted as part of incest transaction, searches/ seizure by wife not
requested by officers, not subject to exclusionary rule) Berosik,
8/15:3
Indians: (Defendant with
22% Blackfeet blood fails to meet any of the 2nd-prong Bruce
factors, improperly prosecuted as ``Indian'' for assault, although
sufficiency of evidence challenge at close of Government's case not
preserved because no new challenge made following submission of all
evidence, denial of motion for acquittal not only error, but plain
error, conviction reversed) Cruz, 5/16:7
Ineffective assistance: (no
error in not holding hearing) Rose, 1/17:4; (lawyer's actions
resulting in incarceration more appropriate for postconviction) Rovin,
2/14:3; (no ineffective assistance for not raising in revocation
proceeding issues raised in this appeal) Johnston, 2/14:4;
(unauthorized contact with co-defendant not per se ineffective
assistance, no evidence that violation impaired ability to represent
Defendant, no showing of prejudice under traditional Strickland
claim, new lawyer properly denied when Defendant affirmed decision to
continue with original lawyer) Nickerson, 3/7:6; (murder victim's
propensity for violence not essential element of justifiable force,
counsel not ineffective for not presenting such propensity) DeSchon,
3/14:4; (no error in not objecting to questions that did not warrant
objection, no prejudice in not being present at chambers discussions of
jury inquiries, claim of ineffective assistance by direct appeal counsel
waived by failure to raise in petition) Godfrey, 3/21:6; (counsel
not ineffective for not challenging constitutionality or putting on case
in chief in Municipal Court) Albert, 3/21:8; (counsel not
ineffective for not timely moving to suppress based on agent's failure
to Mirandize since meth would have inevitably been found in
probationer's house) Adkins, 3/28:6; (ineffective assistance
claim best suited for postconviction) Russell, 4/11:1; (claim of
ineffective assistance for not requesting accomplice instruction more
amenable to postconviction) Green, 4/18:3; (more amenable to
postconviction) Taylor, 6/6:4; (more amenable to postconviction)
Robinson, 8/29:6; (ineffective assistance claims for not
objecting to Prosecutor's comments more amenable to postconviction)
Burtchett, 9/12:3; (rejected) Haffey, 9/12:5
Interrogation:
(interrogation at station custodial (contrary to State/Judge), but
confession voluntary, not coerced) Lacey, 3/14:3
Jury: (prospective juror
predisposed against domestic violence but not against Defendant properly
not dismissed for cause) Norman, 2/21:7; (Commissioner who knew
of case from conferences with former prosecutor should have been
dismissed for cause, father's prior written statement properly admitted
as impeachment despite minor inconsistency with trial testimony, but
improperly allowed into jury room) Herman, 4/11:2; (panelist
properly not excused for cause, Judge's questioning was clarification,
not improper rehabilitation) Crosley, 4/18:4; (questioned
panelist did not reveal actual bias, properly not removed for cause)
Lopez, 5/2:8; (plain-error review denied as to failure to sua sponte
declare mistrial or change venue because of comments by panelists as to
ex-Sheriff Defendant in small county, challenge for cause properly
denied) Taylor, 6/6:4; (911 dispatcher with police boyfriend
properly not excused from jury for cause) Dewitz, 6/20:3; (juror
who expressed concern about even a little drinking but recognized law is
superior to his feelings properly not excused for cause, no prejudice
from video deposition of elusive witness who refused to attend trial,
bailiff's error in providing video equipment in jury room to view patrol
car videos harmless in light of other evidence) Hart, 8/22:5
Justifiable force: (murder
victim's propensity for violence not essential element of justifiable
force) DeSchon, 3/14:4; (Commissioner who knew of case from
conferences with former prosecutor should have been dismissed for cause)
Herman, 4/11:2
Kidnap/assault with
weapon/assault on peace officer: Rose, 1/17:4
Kidnap: Devlin,
3/7:3
Kidnap/sexual assault:
(testimony suggesting victim previously lied about being pregnant
properly excluded as irrelevant and improper character attack, objection
to deposition of victim moot as she testified at trial and deposition
not introduced, parole restriction properly based on level 3 even though
no numerical level ever imposed) Dunning, 1/3:5
Manslaughter: (jury
properly instructed on involuntary manslaughter as lesser-included where
Defendant claimed self-defense in stabbing death, 32 months prison not
inappropriate) Crowe, 5/16:6
Media Confidentiality Act:
(subpoena of reporter properly quashed as to allegedly inconsistent
statement by victim as to whether handgun or shotgun used) Kolb,
1/24:4
MIP: (challenge of
breath/urine testing imposed by JP meritorious but moot, postconviction
petition denied) BJ, 9/26:7
Miranda:
(Defendant in ``custody'' when interrogated despite no physical
restraint, but did not effectively stop questioning by statements during
Miranda, continued voluntarily conversing, not entitled to
suppression of statements under Miranda-Mosley or due
process/totality) Morrisey, 6/13:6
Mistrial: (Defendant's
motion to dismiss after State raised mistrial concerns about police
failure to notify youth of right to parental notification properly
denied after Judge sua sponte declared mistrial with 2 mistrial motions
by Defendant pending and despite Defendant's double jeopardy concerns as
to State's intent to re-file) Cates, 4/11:3
Negligent homicide:
(charges properly not dismissed after suppression of BAC test from blood
drawn in hospital without advice of right to independent test, cross of
witness properly limited as to drug charge against witness, BAC from
hospital records properly admitted, patrol car video properly admitted
as evidence of intoxication, convictions affirmed) Schauf, 9/5:5
Negligent vehicular
assault: (charges properly not dismissed after suppression of BAC test
from blood drawn in hospital without advice of right to independent
test, cross of witness properly limited as to drug charge against
witness, BAC from hospital records properly admitted, patrol car video
properly admitted as evidence of intoxication, convictions affirmed)
Schauf, 9/5:5; Burtchett, 9/12:3
Oath: (oath/affirmation
required to testify over religious objection) Allen, 5/9:5
Obstruction: (lying about
identity of naked woman in back of van sufficient for obstruction
conviction) Devlin, 3/7:3; (probable cause to detain evasive
runner, arrest for refusing to give name) Allen, 5/9:5
Omnibus hearing: (new
hearing not required following addition of lesser-included based on same
facts) Adkins, 3/28:6
Other acts: (evidence of
victim's pending charges and pretrial release conditions properly
excluded) Kolb, 1/24:4; (notice of other acts of incest properly
relied primarily on transaction rule and alternatively on Just as
matter of caution) Crosley, 4/18:4
Parole: (sex offender in
prison for failure to register properly required to undergo therapeutic
polygraph, properly used in denying parole) Dunsmore, 1/31:6
Plea withdrawal:
(Defendant's acknowledgment that he apparently damaged barn roof
insufficient for criminal mischief, should have been allowed to withdraw
plea-bargained guilty plea) Wise, 2/14:6; (girlfriend's recanting
of PFMA allegation months before guilty plea not new evidence for
withdrawald) Tyler, 3/28:5; (not necessary to analyze lack of
specificity as to lesser-includeds when no basis for misdemeanor assault
in aggravated assault case given injuries and admissions, plea
withdrawal properly denied) Swensen, 4/18:7; (Alford plea
to felony robbery entered voluntarily, Defendant not allowed to withdraw
it in postconviction proceeding) Locke, 4/18:8; (Defendant did
not effectively withdraw nolo plea to mitigated deliberate homicide
after Judge first accepted plea then rejected plea agreement, Judge did
not obtain acknowledgment that Defendant understood rights and made
voluntary waiver of right to stand on nolo plea, Defendant improperly
tried and convicted on deliberate homicide charge which was reinstated
first day of trial, remanded for sentencing on mitigated deliberate
homicide) Bullplume, 5/2:6; (no objective proof that statutory
rape Defendant assured at time of plea agreement of receiving low risk
designation, plea withdrawal properly denied, ``however slightly''
standard for voluntariness of pleas (again) disapproved) Brinson,
6/20:2; (Defendant understood SIWC maximum, adequately advised that plea
would be final even if agreement not accepted, claim that he should have
been advised that he waived sexual assault instruction because
penetration of 6-year-old absurd, debunked by colloquy, substantial
evidence mentally competent to enter plea, withdrawal properly denied)
Usrey, 7/11:4; (district court decision from another circuit
finding SORNA violative of Commerce Clause not ``fair & just'' reason to
allow sex registration Defendant to withdraw guilty plea) Ensminger,
8/8:6; (claim that felony DUI plea involuntary properly rejected, JSC
confidentiality did not prevent challenge of irregularity of prior DUI
on grounds of alleged JP conflict of interest, ineffective assistance
claim underlying claim of involuntary plea more amenable to
postconviction) Robinson, 8/29:6; (withdrawal of nolo plea to
animal cruelty charges properly denied based on untimely motion (more
than year after judgment), failure to establish actual innocence)
Polejewski, 9/26:7
PFMA: Hayden,
1/24:3; (State complied with expert disclosure requirements by listing
victim advocate despite not filing report of expected testimony,
constitutionality of discrepancy between prosecutor's and defendant's
disclosure duties not reached, prospective juror predisposed against
domestic violence but not against Defendant properly not dismissed for
cause) Norman, 2/21:7; (District Court had felony jurisdiction
over PFMA in convoluted series of charges, 6-month misdemeanor speedy
trial motion properly denied under bizarre circumstances, legal mazes in
cases of offenses that escalate in severity depending on the number of
the offense can be avoided) Martz, 3/14:4; (evidence to prove
victim's motive and impeach her properly limited, ``battered woman''
expert properly allowed to testify generally as to dynamics of abusive
relationships and why abused person might not seek help, even though no
recantation, conviction affirmed) Bonamarte, 8/8:5
Photo ID: (pre-trial
non-standard photo ID (mugshot and 1 other photo) by pursuing officer
not violative of due process) Lally, 1/10:5
Plea agreement: (State did
not breach plea agreement by noting dismissed charge of sexual abuse of
children) Hill, 4/25:7
Postconviction: (State
waived §46-21-105(2) postconviction bar by raising 1st time on appeal)
Johnston, 2/14:4; (``arrest'' in §46-23-1012(2) refers to PO
arrest, not police arrest, State followed revocation procedures when it
filed Report of Violation within 10 days of PO's Warrant to Arrest &
Hold, due process not denied by 21 days incarceration before revocation
hearing without probable cause hearing, double jeopardy not violated by
pleading guilty to suspended license vis-à-vis revocation, no
ineffective assistance for not raising in revocation proceeding issues
raised in this appeal) Johnston, 2/14:4; (``unique
circumstances'' of counsel's suicide require evidentiary hearing on
petition) Heath, 2/14:5; (published opinion of which Defendant
was unaware not ``newly discovered evidence'' that would allow exception
to 1-year statute) Ring, 5/2:8
Prisoners: (habeas denied
in claims of retaliation for reporting employee thefts, disciplinary
process/classification claims) Wood, 5/9:5
Prosecutorial conduct:
(challenge of Prosecutor's closing statements not preserved for appeal,
plain error not invoked) Rose, 1/17:4; (fair trial undermined by
Prosecutor's questions to officer as to witness veracity and vouching
for police and evidence, plain error review applied to prosecutorial
conduct (1st impression), conviction reversed, remanded for new trial)
Hayden, 1/24:3; (comments about Defense's failure to call certain
witnesses not improper in context) Kolb, 1/24:4; (Prosecutor
improperly allowed to repeatedly reference drug Defendant's irrelevant
probation status, error was trial error, not harmless, conviction
reversed, remanded for retrial) Derbyshire, 2/7:3; (new trial
properly denied based on Prosecutor's reference to failure to call
witnesses) Makarchuk, 3/28:7; (Prosecutor's comments on witness
credibility not improper) Green, 4/18:3; (State not immune from
contract/due process claims for revocation petition in breach of
intervention agreement, liability for breach of contract determined by
collateral estoppel, summary judgment properly denied on due process
deprivation of property) McDaniel, 5/30:1; (Prosecutor's rebuttal
closing comments not improper) Dewitz, 6/20:3; (post-Miranda
silence improperly used to imply guilt, conviction reversed on
plain-error review, remanded for new trial) Wagner, 8/22:3;
(plain-error review of prosecutorial conduct declined) Burtchett,
9/12:3; (plain error review denied) Miller, 9/26:4
Rape: (judicial notice of
officers' testimony in prior rape trial acquittal properly refused as
irrelevant, late-disclosed evidence that alleged victim was drinking a
week earlier not exculpatory or of impeachment value, sufficient
evidence for Judge to convict) Fish, 3/7:2; Lacey, 3/14:3;
(Defendant's motion to dismiss after State raised mistrial concerns
about police failure to notify youth of right to parental notification
properly denied after Judge sua sponte declared mistrial with 2 mistrial
motions by Defendant pending and despite Defendant's double jeopardy
concerns as to State's intent to re-file) Cates, 4/11:3; (state
statutory rape improperly charged on top of federal exploitation and
child pornography convictions involving same victim and conduct)
Neufeld, 7/25:4
Restitution: (properly
based in part on testimony at hearing, embezzlement Defendant given
adequate opportunity to respond to last-minute loss claims,
``documentation'' not required under 2003 law, victim's cash-flow
analysis proper, $30,000 (amount Defendant can afford) ordered out of
``minimum'' $102,753 loss v. $12,914 PSI recommendation) McMaster,
1/17:7; (reasonable/prudent person test adopted for criminal
restitution, impracticability of renting tractor properly considered in
ordering restitution for lost income f |
