*1 17 MONTANA, OF STATE Rеspondent, Plaintiff and v. KEMPIN,
JOACHIM
Appellant.
Defendant
00-535.
No.
May 17, 2001.
Submitted on Briefs
31, 2001.
Decided December
JUSTICE concurring, REGNIER joined by JUSTICE COTTER. *2 JUSTICE TRIEWEILER dissenting.
For Appellant: Mansch, Mark McLaverty, McLaverty and Becarri, PLLP, Missoula.
For Respondent: McGrath, Honorable Mike Attorney General; Wellenstein, Micheál S. Attorney General, Helena; Assistant Jeffrey Noble, A. County Attorney, Broadus.
JUSTICE RICE delivered the Opinion of the Court. Following Kempin’s Defendant Joachim appear failure to before the Justice Montana, Court in Powder County, River the appearance posted bonds hе had charges alleging on seven violations of Montana game fish and laws by were forfeited the Justice Court. The covertalso suspended Kempin’s fishing and trapping privileges for ten years. Kempin appealed to the Sixteenth Judicial Court, District which dismissed jurisdiction. for lack of We affirm. AND
FACTUAL PROCEDURAL BACKGROUND by Alerted a concerned neighbor, game State wardens investigated alleged hunting County violations a Powder River ranch owned Washington resident Kempin. Joachim Cited on five separate October, 1999, counts in late Kempin reсeived Notices to (Notices) Appear and Complaints in Powder County River Justice Court on following charges: killing antelope license, two without a 87-2-103(l)(c), MCA; under illegally § two counts of using hunting permit another, 87-2-110, MCA; under and harassing one count of vehicle, an antelope 87-3-125(2), later, with a days under MCA. Two Kempin was issued two additional killing Notices for a mule deer license, 87-2-103(l)(c), without a MCA, and, under again, using hunting tag belonging to another. The Notices set the bond amounts offense, for each and separately listed restitution amounts tо the State of Montana for each of the illegally game three taken animals. Six the seven citations noted the exposed Kempin violation to forfeiture of hunting privileges. The Notices directed Kempin appear in Justice Court in
Broadus, Montana, 6, on or day, before December 1999. On that Justice' of the Peggy telephone Peace D. Jones received a call from McLaverty requested by Kempin. retained McLaverty, Mark counsel get money time to the bond give to Ms client additional а continuance appearance and reset the Judge granted request Jones the court. bond appear post did not 10,1999. Kempin date December When for date, for arrest. On Kempin’s issued warrants Maul, 22,1999, manager, local Peter who Kempin’s ranch December offenses, and charged Kempin’s had similar delivered bonds been with court, note that read: penalties restitution with a Fri. Dec. Jones,
Judge Thank you your apologies requiring and our for patience, for it. hunting $4400.- Enclosed for violations. -- regrets aрologies
With & Peter JoacMm Maul
The amount transmitted to the Justice Court was not sufficient post offenses, also to Kempin’s pay bonds for but the amounts required Upon receipt funds, Judge for restitution.1 of the Jones arrest January recalled and dismissed the warrants. On bonds, and attorney court forfeited the seven notified and Ms hunting, fishing trapping privileges Montana had years. suspended been ten *3 Kemprn appeal filed of
¶4 a notice to District Court. The Powder County Attorney the lack River moved dismiss jurisdiction. measure, County a back-up Attorney As the filed a separate comрlaint against Kempin encompassed criminal that hunting Kempin arraignment at M appeared seven violations. 2, 2000, guilty. a February District Court on and entered of not at McLaverty represented Kempin Counsel the District Court 10, Judge May to dismiss the on 2000. hearmg on motion that did Kempin McLaverty appear Jones testified at no time before Peace, request of the a second continuance or indicate a Justice plea. Judge 6, enter a Jones the court that December desire to told 1999, request called a McLaverty when the Justice Court date, Kempin’s appearance McLaverty continuance for informed her 1 required $2440. totaled The restitution bonds for violations Kempin payment from the $1300. totaled credited for of his bonds and restitution was this not indicate if $4400 Justice Court. The record in matter does transmitted posted by applied the Kempin’s or for other to bonds $660 additional transmitted with letter was Maul, Kempin’s, appeared on the name letter with co-defendant Peter whose purposes. 20
that pоst wished to and then forfeit the bonds for all seven Judge violations. Jones recalled that during this same conversation she discussed the fact that Kempin stood to lose his fishing trapping and privileges as a result of the McLaverty violations. testified that he Judge did talk to Jones about possible loss of privileges, forfeiting bonds, and about but that he did not believe he had made a statement indicating Kempin’s intention to forfeit the bonds. The District Court Judge found testimony Jones’ to be credible and dismissed the appeal, concluding statutory had no right to appeal the forfeitures as a matter of law. The issue before this Court is whether the District Court erred in
dismissing Kempin’s appeal of the forfeiture of his bonds by Justice Court for lack jurisdiction.
STANDARD OF REVIEW The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. State v. Ward (1994), 424, 266 426, 1343, Mont. 1345; 880 P.2d County Carbon v. Union (1995), 459, 469, Reserve Coal 680, Co. 271 Mont. 898 P.2d 686.
DISCUSSION The Montana Constitution states the district courts “shall hear appeals from inferior courts as trials anew unless otherwise provided by VII, law.” 4, Art. Sec. Mont. Const. This Court has stated
repeatedly that appeal of a criminal conviction from a court of limited
governed by
205,
statute. State v. Feight,
11,
2001 MT
¶
312, 11,
306 Mont.
623,
33 P.3d
11 (citing
¶
State
(1993),
¶
v. Barker
85, 91,
360, 363;
Mont.
Ward,
858 P.2d
21 3) trial”; revocation and, appeals a defendant following when rendered (2) (4), Here, 46-17-311(1), and MCA. of a sentence. Section suspended a and revocation of appealable pre-trial no issues Kempin raised the District Kempin bears no relevance. suspended sentence statutory appeal. of basis for interpretation Court’s the second Court he perfected appeal he to District when asserts Kempin judgment. 10 days Kempin a intent to within appeal filed notice of 46-17-311(2), MCA, an allowing appeal language claims § the trial,” appeal following an explicitly does not exclude “following Therefore, reasons, an not In appeal prosсribed. is Kempin forfeiture. 46-17-311(2), MCA, alternative, is the asserts unconstitutionally vague. appeal counters that an district The State following is trial” and judgment court is available “after rendered Kempin’s no trial occurred in case. court has held that with 46- consistently compliance This Court strict 17-311, MCA, necessary appeal. Ward, an 266 perfect Mont. (1990), 392, 1345; Speith P.2d at State v. 244 Mont. 797 de novo a P.2d. 222. The to district court for a trial “after in a limited judgment following is rendered trial” court of litigated that issues of fact and law at the lower levеl then connotes re-adjudicated The for an appeal. will basis 46-17-311(2), trial, MCA, following outlined is consistent with the requirement appeal, constitutional of a trial “anew” on which trial. presupposes prior a judgment Kempin’s case followed a forfeiture of The rendered posted
bonds to secure court. Bond Kempin’s appearance role procedural forfeiture serves the same as a conviction under laws, management provided sentencing Montana’s wildlife statute here: at issue bail, upon or bond or shall person, [A] conviction forfeiture of fishing license any trapping current or issued
forfeit hunt, privilege trap and the fish in this state for 24 this state or the from the date unless court forfeiture, months of conviction longer period. For each conviction or imposes forfeiture the department notify person loss of forfeiture, shall [Emphasis ] added. privileges. 87-1-102(2)0»),
Section MCA. Kempin’s Court counsel informed The District found intended to secure his posted to forfeit bonds post-forfeiture appеarance before Justice of Peace. jail time, limited to the included no fines were Kempin paid and the restitution State amount of bonds *5 Montana for the game three slain Upon forfeiture, animals. the court suspended Kempin’s hunting privileges for a period set of time and Kempin notified both attorney, his required by (2)(b), 87-1-102 MCA. At hearing
¶14 the motion to dismiss Kempin’s appeal, the correctly District explained Court that if a automatically defendant is entitled to a trial de novo on appeal without having justice first a court trial, a defendant could justice avoid altogether. court By not appearing, and forfeiting bonds, court a defendant could pursue then a trial in district court and render the system meaningless. We are directed give meaning to the laws we are asked to
interpret and “not insert what has been omitted or omit what has been inserted.” 1-2-101, Section MCA.The Constitution for from courts jurisdiction of limited to district courts “as trials anew unless provided otherwise by VII, law.” Art. Sec. Mont. Const. Montana law provides procedure pеrfecting for an from a court of limited to district court “after a is n following rendered 46-17-311(2), trial.” Section MCA. We read the plain language ofthe statute to first require a trial in the inferior court before an appeal perfected, can except be specific statutory exceptions thereto. We 46-17-311(2), conclude MCA, is not unconstitutionally vague. The statute sets forth a logical procedure that assures a new trial in district court after a defendant has exhausted all remedies in the jurisdiction. courts оf limited Kempin claims the Justice Court’s forfeiture of his bond denied him the right constitutional by jury, to trial and the rights attendant witnesses, to confront present evidence, witnesses and receive notice proceedings of and have counsel. He also asserts that right his to due process was violated because forfeiture of his bonds and suspension of his hunting privileges were ordered without notice. Kempin’s jury arguments trial are not compelling under the facts
of this case. He appear failed to any Justice Court and assert rights his constitutional at either ofthe by times scheduled the Justice Court for him to by do so. The jury trial can be waived default appearance. II, Art. Further, Sec. Mont. Const. Kempin’s only direct Court, contact with the Justice through counsel, made his request Judge was to grant Jones an Kempin’s extension of appearance date so that the money court, bond could paid be into the and, as found by Court, the District post that he desired to and forfeit the bonds. Kempin posted shortly thereafter, including bond payment restitution, appear and did not request or otherwise these under properly acted any Judge time. Jones hearing jury or bench trial. either a conducting in not circumstances by failing appear. rights his trial waived claim. The process due support Kempin’s facts do the Neither effect of bond discussed the Judge Jones District Court found the court of McLaverty notified counsel when Kempin’s forfeiture with that he risked also received notice intent to forfeit. by the fact in Montana fishing trapping privileges loss of persоnally to him written Notices issued that six of the seven In may suspended. privileges that his license game wardens stated and the advance intention to forfeit the bonds light Kempin’s stated cannot suspension privileges, him of the of his we provided notice infringed. say process rights that his due were holding that no the District Court’s We concur with *6 lawfully forfeited The Justice Court Kempin’s appeal. exists for basis bonds, in his convictions on appearance which resulted privileges. consequent loss charged seven violations dismissing Court did not err in Accordingly, we hold that the District jurisdiction. for lack of Kempin’s appeal Affirmed.
¶20 GRAY, and LEAPHART JUSTICE JUSTICES NELSON CHIEF concur. concurring.
JUSTICE REGNIER I the Court’s conclusion that the District Court lacked concur with However, disagree I with the jurisdiction Kempin’s appeal. to hear by its conclusion under proffered support rationale the Court Feight. in expressed my same rationale I in dissent “[sjection 46-17-311, MCA, provides the The Court that states limited from the courts of statutory remedy exclusive added.) 3-5-303, MCA, I Section jurisdiction.” (Emphasis disagree. in cases appellаte jurisdiction court has provides that the district in of limited arising justices’ in courts and other courts by and consistent may prescribed districts as be law respective their 46-17-203, constitution, in MCA. law except provided § with the 46-20-104(1),MCA, may taken appeal in that an prescribes § and orders after only judgment from a final of conviction defendant rights of the defendant. affect the substantial judgment which any specific there are Therefore, inquiry is whether proper general right appeal limit the defendant’s statutory provisions which 46-20-104(1), MCA. 3-5-303 and provided §§ may 46-17-311(2), MCA, “[t]he defendant Section notice of intention by filing written to the district appeal appeal days within 10 after judgment is following rendered trial.” Significantly, merely the statute states that a “may” defendant file an appeal judgment after following is rendered say trial. It does not a defendant can the district court judgment after a is following rendered 46-20-104(1),MCA, trial. Section already provides for the defendant’s to appeal following a final Therefore, conviction. I 46-17-311(2), MCA, believe simply § outlines procedure one must perfect undertake to an following trial. Here, pursuant 46-9-503(2),MCA, the Justice Court forfeited Kempin’s bond Kempin’s inaction, i.e., because of his failure to appear. Now, Kempin seeks the benefit of á trial anew in the District Court to circumvent the forfeiture because he does not like suspension hunting privileges imposed by the Justice Court. In my opinion, a equivalent forfeiture of bond is to a of guilty
or nolo contendere in the context of fish game Here, violations. Kempin posted not only a sufficient amount bond, to meet but also sufficient monies to pay the prescribed restitution. Section 87-l-102(2)(b), MCA, provides that one who forfeits in turn bond forfeits his or her fishing trapping privileges for a term set by the court. That exactly what occurred here. Just as 46-17- 203(2), MCA, precludes a defendant obtaining a trial anew following a guilty or nolo plea, contendere so should a defendant’s concession of forfeiture preclude the windfall of a trial anew in district court. Kempin’s remedy, if he was dissatisfied or surprised in the suspension of hunting privileges, proceed was to under the provided 46-9-503, MCA, framework and seek a discharge Therefore, ofhis forfeiture. I disagree while with the Court’s justification, I concur with the result reached the Court.
JUSTICE joins COTTER in the foregoing concurrence. *7 JUSTICE dissenting. TRIEWEILER I dissent from the majority opinion. Why ¶26 mess around with secret military bring tribunals? Just charge terrorists here. We can them and then sentence them and it doesn’t matter happens what in justice between. There is no record in court. peace Justices of the do and, lawyers long trial, not have to be as there is no there is no appeal. terrorism, If are fighting process we serious about this is fool proof.It unpredictability avoids all the and time consuming procedures that surely military even secret occasionally tribunals must experience. Furthermore, if the majority going rely is to on statutory
interpretation Constitution, to the ought exclusion ofreason and the it to at get statutory least correct. There in interpretation nothing is
25 prohibits code that MCA, else in the 46-17-311(2), anywhere nor plain The has been a trial. unless there justice from court appeals judgment, trial and has been a that when there language simply states days. filed ten has to be within a notice of case is this majority is how is left unsaid What (1994), 267 Rogers in v. decision State distinguishable prior from our fly in the face 115, why this result doesn’t 190, P.2d Mont. concurring left unsaid in the II, Const: What is Article Section Mont. notice to prior without forfeiture of a defendant’s bond opinion is how nolo contendere plea plea comparable guilty is the defendant questioning after by an informed defendant only can be entered which voluntary. to assure that the summarily dispensed with Rogers, majority In State v. MCA, justice from 46-17-311(2), permits appeals
argument that § trial. held that: there has been a We courts when conclusion, however, is that it forecloses problem The with that to, any justice court from a court’s any by, or review the conclusion take of a sentence. Nor does suspended revocation novo Appeals into account. for de legislature’s intent statutorily provided courts are for proceedings district and Title matters to 46-17-311 pursuant criminal and civil that, 33, MCA, tоgether, conclude taken Chapter respectively. We legislature’s provide reflect the intent to these statutes justice all court de to the district courts novo final [Emphasis added.] proceedings. at P.2d at 117. Rogers, 267 Mont. entered forfeited and was Kempin’s When bond was The effect him, proceeding." "final
against justice there was a justice problem in the court. The than if he had been tried was no less is, have a chance to be tried according Kempin, he did not forfeited his bond was guilty plea court or enter a because prior without notice. great lengths explain majority goes that he wished to forfeit bond
attorney peace told the of the rights his violations, he failed to assert constitutional all seven voluntarily so, and that he waived doing scheduled for time However, does it these facts. what Kempin denies all of right to trial. 46-17-311(2), majority’s interpretation According matter? it would not statutory interpretation, MCA, its mantra about words, it In other were true. Kempin’s allegations if all of matter defending the intention of pоsted that he bond with not matter would himself to defend opportunity himself but that he was denied *8 because his bond was forfeited without notice and given he was never an opportunity to and appear deny guilt. According majority, to the if legislature provide did not right for a to appeal under those circumstances, Therefore, that’s too bad. why majority does the discuss the circumstances in this case at all? The reason has to be to make unjustifiable, its otherwise arbitrary and unconstitutional decision more palatable to the readers this Court’s decisions. It doesn’t matter what the District Court found the facts to be.
What matters is what the Court and District this Court conclude the to conclusions, law be. Based on those the result would be the same whether the facts were alleged by those by or those found District Court. The in Rogers concluding rationale appeals to the district
court could justice be taken from court revocation proceedings was that liberty a interest is at stake and a trial was not available to the However, defendant. liberty game interests are at stake in violations contends that he was by denied a trial the arbitrary forfeiture of the posted. bond he The District Court found that forfeiture ofKempin’s bond not arbitrary was and was with implied However, consent. if the otherwise, even District Court had found it could not have entertained an appeal based on its or the majority’s Therefore, rationale for their decisions. there is no basis for distinguishing the result this case from Rogers. our decision in II, Const., Article Section Mont. part in relevant that:
(2) the district court inferior appeals shall hear from courts as trials unless provided by anew otherwise The legislature may law. provide for direct review the district court of decisions of agencies. administrative requires Constitution appeals district courts hear from courts, justice
inferior including courts. provided by "Unless otherwise refers to the immediately preceding law" requirement that heard as trials anew. It does not modify the requirement that district did, courts hear appeals from inferior courts. If it there wоuld be no put provision reason to legislature Constitution. The would always be free to decide a person when could or could not justice courts. authority. They Justice courts have substantial can decide civil
matters with in controversy up 3-10-301, amounts See $7000. They MCA. can decide criminal involving matters misdemeanors punishable by six months in prison up or a fine of in the case $1000 and game According majority fish violations. if a opinion, defendant is if plead guilty, accepts guilty misled court a 46-17-203(2) obligation at to assure of its plеa in violation voluntary, simply informed if or that it is well arbitrarily, have a trial to enter opportunity denies bond, there is no notice, forfeiting a defendant’s then without See this Court’s decision in provides one. legislature unless the *9 312, 33 in addition 2001 MT 306 Mont. P.3d Feight, State v. fly on the only majoritys opinion does the majority opinion. to the Not to the justice court decisions right face of constitutional rights court, denies defendants the constitutional potentially district it II, at Article 17 and process jury to due and a trial found Sections concludes, Const., If, majority legislature as the the respectively. Mont. courts, just deny it is free to appeals justice is free to limit from as Considering the justice together. court decisions all appeals from justice jurisdiction, that rights are issue based result is unconscionable. concurring in In reasoning opinion. Nor do I understand the I Feight, agree, signators
the dissent to State v. which the two of with concurring correctly by asking appeals reasoned that what opinion court, scope inquiry this its of permitted justice are from Court has 3-5-303, MCA, for еxplained provides backwards. That dissent that § jurisdiction justice except district court to hear courts 46-17-203, MCA, 46-20-104(1),MCA, provided in and that appeals by a defendant from a final and orders which correctly rights affect the of the defendant. That dissent substantial 46-17-203(2),MCA, only exceptions concluded that the established in § trial plead guilty were for defendants who or nolo contendere seek 46-17-311(2),MCA, de novo. The dissent concluded that relied on majority, time limits for notices of those cases sets preclude appeals a trial does not in cases where there has been but I all these conclusions. agree where there has been no trial. with The why any I is case is different. What do not understand this to a concurring equivalent states that forfeiture of bond "is opinion However, possible. that is not The plea guilty of or nolo contendere." guilty plea plea for a or required same that are procedural protections 46-17- not to this defendant. Section of nolo contendere were available 203, MCA, provides part in relevant that:
(1) may trial, or nolo contendere during plea guilty Before or of accepted be when:
(a) (3), enters a of section the defendant subject provisions court; and open contendere in plea guilty or nolo (b) consequences the defendant of the the court has informed may provided by maximum law plea penalty and of the imposed of the upon acceptance plea.
(2) court, A plea guilty justice’s city or nolo contendere in a court or other court oflimited waives the of trial de novo in district court. A defendant must be informed of the plea waiver before the and the accepted, judge or shall question the defendant to ensure that plea and waiver are voluntarily. entered case, In this Kempin’s bond was forfeited as his hunting were However,
privileges. acknowledgment guilt no open was taken in court; the defendant was never informed the court of the forfeiture, consequences of nor was he ever in open advised court that forfeiture, by a he wоuld have his right waived to trial de novo in Nothing district court. was done to assure that the forfeiture was fact, anything defendant, other than In according inadvertent. Therefore, he did not know that forfeiture going was the facts occur. in this case equivalent guilty are not the of a nolo plea of by statutory contendere as those actions are contemplated law. majority Feight decisions this case and in could be a boon economy. legislature to the Montana If the is free to establish the jurisdictional court, if justices limits of of the are free to peace ignore procedural rules and if impunity, legislature with is also *10 court, free to deny from Montana could become a forum to prosecution unpopular entertain for all sorts of activity country. Surely, legislature deny appeals this if the is free to court, it is free to prohibit petitions post-conviction relief as well. all opportunity rights This new avoid of the constitutional process jury country
due trials that are in the available elsewhere certainly strong appeal making argument will have a those procedural safeguards traditional notions offairness and have no place all find dangerous world which we ourselves. Montana could develop cottage industry prosecution unpopular around the threatening However, I do not think that apparently people. is what delegates they to our constitutional convention had in mind when trial, rights jury for the to a due and an specifically provided process, judgments injustice to the district court from court. For these reasons, majority opinion. I from the dissent