State v. GattsState v. Gatts
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- Before:
- Gray
Lead Opinion
delivered the Opinion of
William E. “Bill” Gatts (Gatts) appeals from the final judgment entered by the Fifth Judicial District Court, Jefferson County, on his guilty pleas to the felony offense of criminal mischief and five misdemeanor offenses, having reserved the right to appeal the court’s denial of his motion to dismiss the felony criminal mischief charge. We reverse and remand.
We restate the dispositive issue on appeal as follows:
Does§ 87-1-102(1), MCA (1993), limit penalties for fish and game-related violations to those provided in Title 87 and, thereby, preclude charging Gatts with the offense of felony criminal mischief under§ 45-6-101, MCA ?
The underlying “facts” relating to this case are taken from the affidavit in support of the State of Montana’s (State) motion for leave to file an information. According to the affidavit, Frank Rasmussen (Rasmussen) and Gatts placed bear baits in various locations in the Whitetail Pass area of Jefferson County, Montana, during the summer of 1994. They checked the bear baits on a frequent basis and, when it appeared that a bear had been at the location, they loosed dogs with radio collars after the bear’s scent. When the dogs located a bear, Rasmussen or Gatts shot it. At least four bears were taken in this manner from June 1 through August 17, 1994, after the bear hunting season in the area had closed.
On the basis of the State’s motion and supporting affidavit, the District Court authorized the filing of an information charging Rasmussen and Gatts with seven criminal offenses. As subsequently amended, Gatts was charged with five misdemeanor offenses contained in Title 87, Fish and Wildlife, of the Montana Code Annotated (MCA): unlawful use of dogs for chasing or hunting bear, in violation of
Gatts pleaded not guilty to all of the charges and subsequently moved to dismiss the felony criminal mischief charge on the basis that the charge was precluded by the plain language of
Thereafter, Gatts and the State entered into a plea agreement. Pursuant to the agreement, Gatts entered guilty pleas to felony criminal mischief and the five misdemeanor offenses, reserving the right to appeal the denial of his motion to dismiss the felony criminal mischief charge. In exchange for the guilty pleas, the State recommended that the “by accountability” criminal mischief charge be dismissed and that all jail and prison time be suspended.
The District Court deferred imposition of sentence for three years subject to certain terms and conditions, including suspension of Gatts’ hunting, fishing and trapping privileges for three years, and joint and several liability with Rasmussen for $2,000. Gatts appeals.
Does§ 87-1-102(1), MCA (1993), limit penalties for fish and game-related violations to those provided in Title 87 and, thereby, preclude charging Gatts with the offense of felony criminal mischief under§ 45-6-101, MCA ?
In denying Gatts’ motion to dismiss, the District Court implicitly concluded that the felony criminal mischief charge was not
Because our analysis of
With regard to criminal penalties and related enforcement matters, however, the provisions of Title 87 represent a significant departure from those contained in most other titles — with the exception of Title 45, entitled Crimes — of the MCA. Both misdemeanor and felony fish and game offenses are contained in Title 87. See
Other provisions contained in Title 87 also depart significantly from those generally contained in other titles. For example, the Department is a “criminal justice agency” for purposes of obtaining technical assistance and support services provided by the board of crime control.
Against this backdrop regarding the encompassing nature of Title 87 and the enforcement authority of the Department and its officers and wardens thereunder, we turn to
A person who purposely or knowingly violates any provision of this title, any other state law pertaining to fish and game, or the orders or rules of the [fish, wildlife, and parks] commission or department is guilty of a misdemeanor, except if a felony is expressly provided by law, and shall be fined not less than $50 or more than $500, imprisoned in the county jail for not more than 6 months, or both,unless a different punishment is expressly provided by law for the violation.
(Emphasis added.) Our role in construing statutes is clear: we are “to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.”
At the outset, it is clear that the first and third clauses of the statute — referencing violations of any provision of Title 87 or of orders or rules of the commission or department — refer specifically and only to what commonly may be called fish and game violations. “Provisions of this title” are statutes contained within Title 87, entitled Fish and Wildlife, which is the comprehensive statutory body of law enacted by the legislature to regulate fishing, hunting and trapping in Montana. Likewise, the phrase “orders or rules of the commission or department” refers to orders or rules of the Fish, Wildlife, and Parks Commission or the Department, both of which are statutorily charged with regulating matters relating to fish and wildlife under Title 87. See, e.g., §§ 87-1-101 and 87-1-102, MCA.
The second clause of
The word “pertaining” is commonly understood to mean, and defined as, “having reference to.” Webster’s Ninth New Collegiate Dictionary 878 (1988). Thus, the
This is not to say, of course, that those clauses — with the addition of the “misdemeanor” language immediately following them in
Under
The final portion of
First, the language must be read in the context of both the comprehensive body of statutory law regulating all manner of fish and game matters contained in Title 87 and the language which precedes it in
Moreover,
We conclude that, by its plain language,
The State advances a number of arguments in opposition to the conclusion we have reached. It argues initially that Fertterer is correct and, in addition, that Fertterer is controlling authority which should be reaffirmed because of the fundamental importance of stare decisis to the rule of law. We disagree with both propositions.
The Fertterers raised a number of issues on appeal. Among other things, they argued that
Insofar as it is relevant to the case presently before us, this Court split by a four to three vote on the issue of whether the 1989 version of Title 87, MCA, provided the exclusive remedy for the illegal taking of game, with the majority holding that it did not. Fertterer, 841 P.2d at 472. The statutory analysis advanced by the dissent produced the opposite conclusion: that, under the statutes in effect at the time, it was improper to charge the Fertterers with what the Court agreed were felony fish and game violations. Fertterer, 841 P.2d at 475 (Gray, J., dissenting). That conclusion, in the view of the dissent, was significantly buttressed by the 1991 legislature’s amendments to Title 87. Fertterer, 841 P.2d at 475-76 (Gray, J., dissenting).
The 1991 amendments were not before us in Fertterer, but are before us in this case which arises under the 1993 version of Title 87. Therefore, Fertterer may not be entirely on point and it may be unnecessary, from a purely technical standpoint, to overrule that decision or address the State’s stare decisis argument in the context of doing so. It is clear, however, given our analysis of
Stare decisis means “[t]o abide by, or adhere to, decided cases.” Black’s Law Dictionary 1406 (6th ed. 1990). It is of fundamental and central importance to the rule of law. Patterson v. McLean Credit Union (1989), 491 U.S. 164, 172, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132, 147 (citation omitted). Indeed, there is no question but that “[v]ery weighty considerations underlie the principle that courts should not lightly overrule past decisions.” Moragne v. States Marine Lines (1970), 398 U.S. 375, 403, 90 S.Ct. 1772, 1789, 26 L.Ed.2d 339, 358. We have held, in this regard, that “stare decisis is a fundamental doctrine which reflects our concerns for stability, predictability and equal treatment. ...” Formicove, Inc. v. Burlington Northern, Inc. (1983), 207 Mont. 189, 194, 673 P.2d 469, 472.
Court decisions are not sacrosanct, however, and stare decisis is “not a mechanical formula of adherence to the latest decision [.]” Patterson, 491 U.S. at 172, 109 S.Ct. at 2370. Indeed, we have held that stare decisis does not require us to follow a manifestly wrong decision. Formicove, 673 P.2d at 472. While the State concedes this point, it urges us to follow United States Supreme Court authority and determine that the burden on a party urging a departure from stare decisis is particularly heavy “where the Court is asked to overrule a point of statutory construction.” See Patterson, 491 U.S. at 172, 109 S.Ct. at 2370.
We decline to do so. First, we observe that our holding in Formicove — that we are not bound to follow a manifestly wrong decision— was made in the context of a statutory construction case. See Formicove, 673 P.2d at 472. More importantly, however, the doctrine’s strength is not dependent on the creation of artificial differences in burdens of proof or persuasion. Rather, it depends on appellate courts’ continued recognition of, and commitment to, the importance of stare decisis in a society governed by the rule of law. Our commitment to the doctrine, and to the concerns on which it is grounded, continues unabated.
The State also argues, and cites to numerous cases involving, the long-standing rule in Montana that the prosecutor has discretion to determine which offense to charge when conduct violates more than one statute, as long as the offenses have differing elements or require different proof. See, e.g., State v. Smaage (1996), 276 Mont. 94, 915 P.2d 192, 194; State v. Arlington (1994), 265 Mont. 127, 165, 875 P.2d 307, 330; State v. Brady (1991), 249 Mont. 290, 295-96, 816 P.2d 413, 416; State v. Booke (1978), 178 Mont. 225, 230, 583 P.2d 405, 408. It points out that this rule applies even when one of the offenses is a felony of more general application than a misdemeanor more specifically addressing the conduct. See, e.g., Smaage, 915 P.2d at 194-95; Brady, 816 P.2d at 416.
The prosecutorial discretion and general versus specific cases are not directly implicated here, however. Those principles are applicable where several charges are available as a matter of law. Here, we have concluded that the legislature intended otherwise with regard to fish and game violations. In other words, in enacting
Nor is the State correct in asserting that Smaage is “directly pertinent to the central issue on appeal” in the present case. Smaage involved a criminal endangerment charge and conviction in which an issue on appeal was whether the defendant should have been charged under the driving under the influence of alcohol statutes. Smaage, 915 P.2d at 193. We focused on the principles governing alternative charging statutes, observing that when no clear and manifest legislative intent to the contrary exists and different proof is required under alternative statutes, the more specific statutory violation need not be charged. Smaage, 915 P.2d at 194. We examined the legislative history of the criminal endangerment statute and determined that it indicated no clear and manifest legislative intent to prohibit the use of the criminal endangerment statute in drinking and driving situations. Smaage, 915 P.2d at 194.
To the extent Smaage has any application to the present case, that application is limited to our focus on the question of legislative intent. While we concluded in Smaage that there was no clear intent to prohibit the use of the criminal endangerment statute in drinking and driving situations, we have concluded in this case that the legislature clearly intended
The State also argues that State v. Duncan (1979), 181 Mont. 382, 593 P.2d 1026, and State v. Moore (1977), 174 Mont. 292, 570 P.2d 580, both of which involved an offense defined in the Crimes title of the Montana statutes and an offense defined in another title, mandate a conclusion that prosecutorial
In Duncan, the State charged the defendant with four criminal offenses after investigations by both the federal Securities Exchange Commission and the state Auditor’s Office; two of the charged offenses were set forth in the Crimes title, and two were contained in the Securities Regulation title, of the Revised Codes of Montana. Duncan, 593 P.2d at 1028-29. The defendant moved to dismiss. The district court dismissed one of the charges in the Crimes title before trial and, after convicting the defendant of deceptive practices in violation of § 94-6-307, RCM (1947), dismissed the charge of fraudulent securities practices as defined in § 15-2005(1), RCM (1947). Duncan, 593 P.2d at 1029. The defendant appealed.
After concluding that sufficient evidence supported the defendant’s conviction of the offense of deceptive practices, we briefly addressed his contention that he should have been charged with the specific fraudulent securities practices offense rather than the general deceptive practices offense contained in the Crimes title. Duncan, 593 P.2d at 1034. We observed that we previously had declined to apply in criminal cases the “specific controls over the general” rule of statutory construction utilized in civil cases. We also quoted from State v. Lagerquist (1968), 152 Mont. 21, 30-31, 445 P.2d 910, 915, for the proposition that when the legislature provides for a course of action through more than one statute, the prosecution may choose either applicable law. Duncan, 593 P.2d at 1034. Noting that the specific securities offense had, indeed, been charged and later dismissed by the district court after conviction on the deceptive practices charge, we concluded that the defendant had been properly charged and convicted. Duncan, 593 P.2d at 1034.
Duncan is inapplicable here. First, the question of whether the Securities Regulation title precluded a charge under the Crimes title for the defendant’s acts was neither raised nor addressed in Duncan. Equally important, however, is the Lagerquist language, quoted in Duncan, that the prosecution has charging discretion when the legislature provides for charges under several statutes. See Duncan, 593 P.2d at 1034. As discussed above, the legislature has not so provided in this case. Rather, the legislature has provided that all fish and game violations be prosecuted pursuant to the provisions of Title 87. Thus, Duncan is not on point.
Moore more closely resembles the case presently before us. There, the defendant was charged with felony deceptive practices under the Criminal Code and moved to dismiss on the basis that he was charged under the wrong statute; in the defendant’s view, he should have been charged with misdemeanor welfare fraud under the Welfare Code. Moore, 570 P.2d at 582. The district court dismissed the information and the State appealed.
We first addressed the two statutes and concluded that the specific Welfare Code offense did not preclude prosecution for the acts under the more general Criminal Code, provided the facts supported a charge under either statute; in doing so, we relied on our previous refusal to apply the specific versus general rule of statutory construction in the criminal context and on Lagerquist. Moore, 570 P.2d at 582-84. In particular, we observed that Lagerquist permitted prosecution “under either applicable statute absent a clear and manifest legislative intent to the contrary.” Moore, 570 P.2d at 584.
We then addressed, in one paragraph, the defendant’s contention that Lagerquist was distinguishable because the comprehensive nature of the Welfare Code indicated a legislative intent to preempt the entire field of welfare fraud to the exclusion of statutes contained in the Criminal Code. Moore, 570 P.2d at 585. We observed that the misdemeanor statute at issue — and, indeed, the entirety of the Welfare Code — covered only one species of welfare fraud and did not encompass such welfare-related offenses as embezzlement of welfare funds or forgery of welfare warrants. Moore, 570 P.2d at 585. On that basis, we did not perceive a legislative intent to preempt Criminal Code statutes by enactment of the Welfare Code. Moore, 570 P.2d at 585.
We hold that the District Court erred in concluding that
Reversed and remanded for entry of an order vacating Gatts’ conviction of the offense of felony criminal mischief and dismissing that charge, and for reconsideration of Gatts’ sentence in light of that dismissal.
JUSTICES NELSON, HUNT and TRIEWEILER concur.
Dissenting Opinion
dissenting.
I dissent. The Court holds that
By way of analogy, even though Title 61 (Motor Vehicles), like Title 87 (Fish & Wildlife), comprehensively provides that “it is a misdemeanor for a person to violate any of the provisions of this chapter unless the violation is declared to be a felony,”
In State v. Smaage (1996), 276 Mont. 94, 915 P.2d 192, we affirmed Smaage’s conviction
I see nothing in
At best, Title 87 is aimed at controlling the hunting of wild game. The defendants here were not “hunting.” They were engaged in a calculated slaughter of bears. Over two and half months, the defendants baited bears, chased them with hounds equipped with radio collars, purposely wounded bears to provide sport for the dogs, and killed smaller bears, cut their bellies open and used their carcasses as bait for other bears. This conduct is clearly more egregious than simply “unlawfully taking, killing, possessing, or transporting a ... black bear ...” under Title 87. Section 87-l-102(2)(a), MCA. The slaughter of at least four black bears clearly exceeds the scope of any defined offense in Title 87.
In conclusion, the plain language of