*1 STATE OF MONTANA, Respondent, Plaintiff and v.
JAMES MATHIS,
Appellant.
Defendant
No. 01-671.
Submitted on Briefs October
2002.
April
Decided
JUSTICE zone, construction receiving After citation for constitutionality Appellant challenged James unlawfully delegated contending provision private party. and/or agency to an administrative Court, District Court the Fourth Judicial County, District Missoula rejected Mathis’s challenge proceeded constitutional and the case to a jury trial. Mathis moved for following a directed verdict close State’s case-in-chief. The District Court denied Mathis’s motion and jury subsequently convicted Mathis of appeals the offense. Mathis from the District regarding Court’s conclusions the constitutional issues and from denial of his motion for a directed verdict. We affirm. following Mathis raises appeal: issues on unconstitutionally delegate §Does or private party? 2. Did the District Court err when it denied Mathis’s motion for
a directed verdict on insufficiency based of the evidence?
BACKGROUND Prior September Department of Transportation (“DOT”) ECM, Inc., contracted with perform on Missoula, Interstate 90 east of Montana. ECM Alpine subcontracted to Construction, Inc., its duty post construction and reduced signs Construction, limit in the Alpine Inc., posted construction zone. signs temporary alerting motorists lay construction which ahead approximately prior 8250 feet to where ECM commenced work. The *3 speed signs gradually limit reduced of speed seventy- the traffic from hour per thirty-five per five miles to miles hour the nearest work area. the zone, At end of the a a sign construction indicated return to the seventy-five per normal mile hour speed limit. 6, 2000, On September a Highway Montana Patrol officer traveling fifty-three per
encountered Mathis’s vehicle miles hour the thirty-five per Turah, mile hour zone on near Interstate 90 Montana. Therefore, the officer issued Mathis a pursuant ticket 61-§ 8-314, MCA. Mathis subsequently pled guilty in the Missoula County Justice Court and moved to dismiss the on charge grounds (1) MCA, 61-8-314, unconstitutionally delegated legislative (2) authority private executive branch and/or to parties private DOT and/or contractor did not proper procedure follow reduce the limit in the construction zone. The Justice Court denied jury Mathis’s motion and a convicted Mathis of the offense on 20,2001. 2,2001, February March appealed On conviction to the District Court. Court, charge District Mathis moved to on the same dismiss 17, 2001,
grounds. May On the District Court denied Mathis’s motion proceeded and the case to trial. Mathis moved a directed verdict
381 The District case-in-chief. following State’s presentation Mathis of the jury convicted motion and Court denied Mathis’s 30, 2001, Mathis filed a notice of 31, On May July on 2001. offense regard to the conclusions with challenging the District Court’s appeal of motion for a and its denial his constitutionality of § directed verdict. OF REVIEW
STANDARD We is a of law. review question a statute is constitutional Whether if it is application of the Constitution determine district court’s 192, 321, 14, 14, 974 Stanko, 1998 MT 292 Mont. ¶ ¶ State v. correct. courts, if statutes duty possible, 14. It is the construe P.2d ¶ Stanko, interpretation. 15. ¶ in a manner that avoids unconstitutional criminal defendant’s deny review district court’s decision to We v. for a directed verdict for an abuse discretion. State motion Billedeaux, 9,MT ¶ Mont. P.3d
DISCUSSION ONE ISSUE MCA, Does § private party? to an administrative or provides, pertinent part: (3) limit in a zone or in a work zone construction or local department transportation must be set on traffic conditions or condition of based maintenance) survey project. (4)(a) transportation, authority, If the local department of determines, utility company, or the contractor based private construction, repair, on traffic conditions or the condition of the survey in work project, special warranted, department, zones are then the zones or construction or the contractor authority, utility company, the local post signs shall that:
(i) on department transportation’s manual conform devices; uniform traffic control
(ii) zone and the indicate boundaries zone; work
(iii) zones. limit in effect within both display speed the (5) (a) in a work zone a traffic violation person A convicted of conviction, Upon arrest and guilty is of misdemeanor. less a fine than double by be person punished shall penalty provided part for the violation in 7 of chapter. this
(b) person A convicted a traffic violation a construction conviction, zone is of a guilty Upon misdemeanor. arrest and person subject is to the penalty provided for the part violation in chapter. 7 of this
11¶ Mathis contends the Legislature delegate that cannot law-making functions, as limits, such the establishment of speed to an agency private party. or admits Mathis Legislature delegate can long ministerial functions so as provides it guidelines clear standards and implementing entity. Mathis argues 61-8-314, MCA, that § fails to the requisite articulate guidelines, vesting Accordingly, “unbridled discretion” in the DOT. insists we must strike down as an legislative unconstitutional authority. 61-8-314, The argues MCA, State articulates “specific
standards the DOT performing or other entities roadwork to follow reducing limits a construction zone.” According to State, Legislature expressed such requiring standards entity to affix limits accordance with the or “traffic conditions condition survey or Therefore, project.” MCA, State concludes that § sufficiently requirements satisfies imposed upon Legislature for delegating ministerial functions. The District Court concluded that forth,
constitutional in that sets it with clarity, reasonable limitations on the DOT’s in setting speed discretion construction and work delegate zones does not the establishment of crime to either the DOT contractors. III, Article of the provides: Montana Constitution
Separation powers. power government of the of this executive, state is divided into three distinct branches-legislative, judicial. person persons charged No with exercise power properly belonging one branch shall exercise power properly belonging others, either except as in this expressly permitted. constitution directed or previously We have held that the to establish limits is in nature. See Lee v. State 195 Mont. 1282, 1286; Stanko, Legislature may 28. The constitutionally functions to an administrative agency, provide, but it must with clarity, upon reasonable limitations agency’s provide policy guidance. discretion and 342, 13, 303 Territory, In re Petition MT Mont. Transfer
383 69, (1960), Mont. 447, County In v. 138 13, 15 P.3d 13. Bacus Lake rule as follows: P.2d we stated the to an granted not be law-making power may The of guise trader body to be exercised administrative an to Accordingly, delegating powers discretion. administrative the administration of body to respect administrative with statutes, ordinarily prescribe policy, must legislature standard, with guidance for their and must vest them rule thereto, and arbitrary regard with and uncontrolled discretion is in this is invalid. respect a statute or ordinance which deficient words, delegation avoid pure In other in order to by agency, legislature power creation of an administrative enjoin and it a certain agency’s power must set on such on its performance rules of in the procedure course of and decision and, function; to with reasonable legislature prescribe if the fails agency, clarity power delegated to an administrative limits of broad, nullity. attempt those limits are too is a or if hand, validly delegates other and complete On the statute is to a nothing respect administrative with determination what is the law is left to the administrative clear, sufficiently definite, and its are and agency, provisions rights obligation. certain to enable the know its and Inn, (1997), Mont. Duck Inc. v. Montana State Univ. (“Northern”) University-Northern Montana State persons organizations parties, its facilities and for private rented reunions, conventions, generate in order receptions and Inn, corporation, revenue. The Duck a local Montana supplemental declaratory and for complaint judgment application filed a preliminary injunction argued, Northern. The Duck Inn against lease part, permitting that the statute Northern to its facilities legislative authority to an private parties delegated agency. portion provided The that question relevant statute regents university system may: of the Montana firms, public persons, and
rent the facilities to other uses, times, at at for such and corporations periods, for such such be regents’ judgment such rates as in the will consistent add to purposes full use for academic will thereof capital service[.] and debt revenues available for costs (1993). Inn 20-25-302(5), argued MCA Duck language vested with the full use thereof’ “consistent regents specific guidelines implementing authority in the without powers. rejected We Duck Inn’s In so challenge. doing, constitutional we concluded:
[I]t is clear MCA not an unconstitutional legislative authority to the board regents. policy underlying the statute forth is set in the statute;, policy is to increase revenues for the available of, capital on, costs campus debt service facilities. The implicit, clear, but rationale behind the statute tois minimize the support necessary tax to fund units of the university Montana system by leasing campus Likewise, 20-25-302, facilities. MCA (1993), expressly leasing constrains the of such facilities mandating that the leasing must be consistent with full use ofthe *6 facilities for the academic purposes they for which were Here, established. this regents constraint on board of is the “guide” required “standard” or ... legislative for a proper delegation power. contends,
The Duck Inn in this regard, “regents’ discretion” language 20-25-302, (1993), contained in MCA § provides legislative insufficient limits on delegation power. It provides legal authority position, however, no its and we conclude that the regents’ sufficiently discretion is limited statutory requirements leasing be consistent with the full use facilities for academic and purposes produce revenues for capital costs or debt service. Inn, Inc., 525-26,
Duck at P.2d at Mont. Inn, on analysis employed Inc., Based the same Duck we 61-8-314, MCA, conclude does not delegate § legislative authority body private party. Here, to an administrative clear, but implicit, rationale behind the statute protect is to drivers and workers in penalty construction and work zones. The zone, a traffic in a committing offense work “not less than double the penalty’ for similar offenses committed outside the confines of a work zone, credence implicit policy lends rationale. Contrary 61-8-314, MCA, suggestion, grant to Mathis’s does not § regulations
unfettered discretion to establish traffic in construction Rather, and work zones. requires respective entity to establish limits construction and work zones “based on traffic conditions or condition maintenance, or survey project.” Construction and work zones on highways presumably Montana set of encompass driving diverse this, establishing every conditions. Because of limit for task for impossible, if not impractical, would be an project might every factor which Enumerating possible Legislature. similarly be unrealistic. safety zone would impact construction to the entities most Therefore, these duties it makes sense project. the nuances of each familiar with delegating we struck down cites several cases which distinction between an Admittedly,
statutes as unconstitutional. slight in delegation appears a constitutional unconstitutional versus However, constitutionality of a “[t]he some circumstances. every intendment its favor prima presumed, enactment facie unconstitutionality beyond a appears made unless
will be Intern. 243 Mont. Ingraham Champion reasonable doubt.” v. has not overcome his burden simply 772. Mathis unconstitutionality appeal on to establish reasons, beyond foregoing doubt. For the we conclude reasonable sufficiently placed upon that the above caveat local entities does not constitute an prescription entities’ discretion such that the delegation authority. The District Court unconstitutional rejecting challenge did not err in Mathis’s constitutional MCA. that, aside, regardless holding As an Mathis contends of our agency, Ingraham prohibits legislative to an
respect Ingraham, to a In we noted private party. private party. We Legislature delegated “absolute discretion” to that, legislative authority to Legislature delegated observed if the had prescribe it have had to standards agency, an administrative would however, grant power. Ingraham, for the of that guides entity. it to a provided guidance delegated no Legislature this, could not do we did not Legislature While we concluded that the *7 entity’s private status as a preclude delegation based on the discretion.” did so on the of “absolute party-we based delegating concludes that when Consequently, Ingraham simply ignore cannot private party, Legislature to a an administrative delegating of it when required the limitations agency.
ISSUE TWO a Mathis’s motion for Did the District Court err when it denied ¶23 verdict, insufficiency of the evidence? directed on based support insufficient to in a criminal case is When the evidence motion verdict, its own motion or on guilty may, the court either on discharge the defendant. defendant, dismiss the action and AMCA. defendant is entitled to a directed verdict if reasonable persons evidence, could not conclude from the taken in a light most prosecution, favorable to the that guilt proven beyond was Billedeaux, Therefore, reasonable doubt. 8. ¶ directed verdict of acquittal is appropriate only when there is no evidence to support a guilty Billedeaux, verdict. 8.¶ parties agree the State had to prove, among other things,
that the DOT and private parties complied provisions with the of 61-§ 8-314, MCA, to obtain a conviction for a construction zone. Mathis contends that the State failed to prove requisite compliance beyond First, a reasonable doubt. private Mathis states that a party, not the DOT or authority, local established the relevant 61-8-314(3), Second, violation of MCA. § notes that 61-8- § 314(4), MCA, requires posting signs to indicate the boundaries of a construction zone. Mathis maintains that the parties post failed to signs indicating the commencement of a construction zone. above, As 61-8-314(3), MCA, indicated provides § “[t]he limit in a construction zone inor a work zone must be set department of transportation or the local based on traffic construction, conditions or the condition of the repair, maintenance, or survey project.” Mathis provision grants insists that this authority to establish limits exclusively to the DOT or local authority, not to a private entity However, as 61-8-314(4)(a), MCA, occurred here. provides in relevant part:
If department of transportation, authority, the local utility company, determines, or the private contractor based on traffic conditions or the condition of the survey project, special speed limits work warranted, zones or construction zones are then department, the local authority, utility company, or the contractor shall post signs .... A statute must be read and entirety considered and the may intent not be determined from the wording
particular sentence, only section or but from a consideration of the 175, 184, whole. State ex rel. Cashmore v. Anderson 160 Mont. 921, 500 P.2d way, 926-27. Stated another we will read and construe a statute as a give whole to effect to a statute’s purpose avoid an Fund, absurd result. Compensation S.L.H. v. State Mut. Ins. 2000 MT 303 Mont. ¶ Above, recognized we the Legislature’s implicit safety concern for end, embodied in Legislature delegated MCA. To this requisite authority to the most informed parties. While 61-8- *8 314(3), MCA, contemplates by the establishment of 61-8-314(4), MCA, authority, incorporates private DOT or local § specialized judgment. interpret entities’ To so § narrowly solely authority, as to limit the task to the DOT and local 61-8-314(4), MCA, meaningless propagate would render § absurd result. Further, there is substantial evidence in the record to
establish that the private parties requisite undertook the action Hollenback, pursuant operations to a contract with the DOT. Shawn manager Construction, Inc., Alpine testified that the provides DOT independent contractors regulation plans, plans with various traffic develops, which the DOT for construction and work zones. Hollenback testified independent instructs contractors DOT implement plan which best “fits the situation.” Hollenback testified that the independent contractors selected the DOT signing plan, plan reductions, which provides speed limit which applied to the area in reasons, question. foregoing For the we hold that the District Court did not err when it denied Mathis’s motion for a directed verdict with regard 61-8-314(3), MCA. Next, Mathis contends that the State failed to show that DOT
and/or parties strictly complied with the requirements of 61-§ 8-314(4), 61-8-314(4), MCA, MCA. Section provides that if it determined that special speed limits in construction or work zones are warranted, the determining entity post signs must that:
(i) department conform to the transportation’s manual on devices; uniform traffic control
(ii) indicate the boundaries of the construction zone and the zone; work
(iii) display the speed limit effect within both zones. trial, Bisom, At Dan supervisor of the traffic data collection DOT, section of the they testified that the DOT notified ECM that had to comply guidelines with the in the Manual on Uniform Traffic (“MUTCD”) fact, Control safety. Devices to insure workers’ employment contract entered into evidence as executed DOT and provides ECM “[a]ll traffic control must be done in accordance with the department MUTCD....” Bisom testified that his maintenance notify would him if the signs comply guidelines. failed to with DOT Bisom further nobody testified that notified him of with problems signs Additionally, at in question. the area Hollenback testified signing plan utilized in the area in question conformed to MUTCD. Mathis argues parties comply failed to with 61-8-
314(4)(ii), they post sign because did not indicating boundaries of the zone. suggests sign that a stating here,” nature, “construction zone begins something of that 61-8-314(4)(ii), must displayed comply be with MCA. Mathis offers no in support position. of his It is important point out that charged Mathis was in a *9 zone, not in Legislature a work zone. The has expressly defined the differently two zones and has provided separate penalties violations which occur within each zone. As for zone, notification of the commencement of a construction 61-8- 314(4)(ii), MCA, simply provides entity post signs shall that “indicate the boundaries of the construction zone.” Section 61-8-314(4)(ii),MCA, does require not that this indication come in the begins sign. form of a “construction zone here” The District Court acknowledged upon this fact consideration of Mathis’s motion for a motion, directed verdict. It part, denied Mathis’s based on its conclusion that signing whether “indicates the boundaries of the fact, construction zone” is a determination of subject jury’s consideration. issue, jury As for what the had to consider on the
¶34 Hollenback signs testified about the erected in the construction area. Hollenback sign testified that a lane closure indicated the closing right lane that, one mile prior beyond lane closure. Two thousand feet a sign indicated a right lane closure one-half mile. Nine hundred feet later, parties posted Speed a “Reduced Ahead” Three sign. hundred that, and thirty beyond feet a “Fines Double in Work Zones” was sign sixty-five A mile displayed. per sign posted hour limit was three thirty beyond sign. hundred and feet the “Fines Three Double” thirty later, hundred and feet the parties posted an arrow board there, traffic to the directing appropriate signs lane. From incrementally speed fifty-five, forty-five, reflected a reduction area, thirty-five. they passed As drivers exited the construction two directives, sign additional an “End of Work Zone” and a “Resume Instead, Speed” sign. Mathis did not call witnesses on his behalf. challenged Mathis the State’s witnesses on cross-examination and then moved for a directed verdict at the close of the State’s case-in-chief. foregoing, persons Based on the we hold that reasonable could evidence, conclude from the taken in a most favorable to the light offense, prosecution, proved the State the elements of the 61-8-314, MCA, including compliance beyond reasonable not entitled to a directed verdict of Accordingly, doubt. Mathis was it acquittal and the District Court did not abuse its discretion when denied his motion. Affirmed. GRAY, JUSTICES COTTER and RICE concur.
CHIEF JUSTICE dissenting. LEAPHART JUSTICE I dissent from the Court’s conclusion that does unconstitutionally delegate agency private party. argues delegates this statute
law-making function to an administrative and also to a that, may He party. argues although legislature functions,” it delegate “law-making “ministerial cannot functions.” limits, asserts, he is a Setting speed law-making Additionally, function. argues functions, he that even when delegating ministerial case, legislature provide guidelines, must standards and and in this the statute gives DOT “unbridled discretion.” argues lays clear,” The State that the statute out an “implicit but policy protecting highway safety. argues rationale of workers’ It parameters clear; entity setting statute are limit must base it on “traffic conditions or the condition of the survey project.” The State asserts that each construction project provides unique Montana set of legislature conditions and the desired to “allow those closest to *10 project to limit the risk to highway by reducing speed workers the limit.” The District Court concluded that was
¶40 forth, constitutional in that it clarity, set with reasonable in setting speed limitations on the DOT’s discretion limits in construction and work zones and did not delegate the establishment aof crime to either the DOT or private contractors. III, 1, Article Section of the provides: Montana Constitution
Separation powers. power government The of this state executive, is branches-legislative, divided into three distinct and judicial. person persons charged No or power with exercise of properly belonging any power to one branch shall exercise others, this properly belonging to either except as expressly permitted. constitution directed or legislature may constitutionally The provide, functions it agency, to an administrative but must with clarity, upon agency’s provide reasonable limitations discretion and agency policy guidance. Territory, with In re Petition to Transfer 13, 13, 342, 204, 447, 2000 MT A 303 Mont. 15 P.3d statute ¶ ¶ ¶ authority is complete validly delegates and administrative 390 is left to the to a determination of what is law
nothing respect clear, sufficiently are agency, provisions and its and definite, agency rights certain enable the to know its and 81, 88, 971, (1988), 759 P.2d 975 v. State 233 Mont. obligations. White (1976), 442, 457, 1124, 171 Mont. (quoting Huber v. Groff 1132). is authority speed held that the to set limits previously We have 1, 8, 635 1282, 195 Mont. P.2d
legislative in nature. Lee v. State (“[t]he conveyed attorney general speed [to set upon 1286 clearly requirements] in accordance with federal authority”). See also State v. impermissible delegation 28, 1132, Stanko, P.2d MT 292 Mont. ¶ (Montana’s delegates the basic “impermissibly “basic rule” statute highways fast on Montana’s policy of how fast is too public and juries for resolution on an ad hoc ‘policemen, judges, ”). subjective basis’ Lee, attorney general required the statute at issue speed limit “whenever by proclamation,”
“declare
by federal
required
limit
the state is
speed
establishment of such
[federal
to receive
continuing eligibility
to the state’s
law as a condition
(1979).
We concluded that the
highway] funds.” Section
MCA
this state to
sovereign power
handover of the
statute was a “blatant
of the statute.
mandatory
on the
nature
jurisdiction,”
the federal
based
no
Lee,
attorney general
The
had
expanded
powers
Technology
the
the Montana Science and
(the Board)
Development
by
Board
the
providing
bonding
Board
money
investments,”
to
for certain
of
types
“technology
raise
to then
the
percentage
and
invest
funds raised
certified
White,
capital companies
technology
Montana
that make
investments.
83-84,759
Mont. at
P.2d
plaintiffs argued
233
at 972. The
that HB 700
granted the Board too much discretion because there were no
standards or
from the
legislature
guide
making
rules
the Board
White,
technology
87-88,
investments.
233 Mont. at
P.2d
759
at 975.
This
HB
legislation
Court contrasted
700 with the
which
was held
Huber,
constitutional
In
the plaintiff
Huber.
asserted that
the
legislature
vague
was
in defining “persons
too
and families of lower
income,” when
granting
power
those
persons
obtaining
to assist
housing. This Court held that
statutory
provided
definition
an
objective
exercising
standard for
Board to
its power.
follow
size
family,
“The
of the
total
housing, availability
income available for
cost
and
housing
ability to enter the
market at
housing
‘going
objective
rate’ were all
requiring only
criteria
observation and
White,
arithmetical
89,
calculation.”
Mont. at
233
Compensation
required
agree
Act which
a claimant and
sum
lump
convert benefits
application
lump
into
before
sum
made
conversion could be
was an unconstitutional
legislative authority. Ingraham Champion
v.
International
legislature
“deny
Mont.
(with of lump-sum conversion agrees) as to whether whom worker that, legislature “[h]ad the We stated ... will be converted.” benefits agency, the solely upon the administrative authority the conferred policy or reasons lay to down the required would have been legislature grant for the guides standards and prescribe the statute and to behind P.2d at 243 Mont. at agency.” Ingraham, power of the to legislature prescribe power “[t]he We concluded that 772. compensation amounts, payment of of workers’ time and manner is not paragraph outset of this benefits, as we said at the which 39-71-741, MCA, to in doubted, delegated subdivision § has been 243 Mont. at may Ingraham, not do.” legislature others. This the P.2d at 772. in statute are more Here, set out guides the standards and and in The traffic conditions standards White. general policy like the survey the condition of the only and “requiring criteria observation objective are not project these criteria could assessing Individuals calculation.” arithmetical limit, appropriate speed differing opinions on easily up come with in setting speed limits subjective in an “ad hoc and basis” resulting result in an are too broad and zones. These standards authority. legislative delegation unconstitutional legislative unconstitutionally delegates Additionally, the statute (3) states that Although subsection authority private party. to a (4) DOT, goes on to state by the subsection limit “must be set” speed private or the DOT, authority, utility company, “the local that limits are warranted contractor,” special speed that may determine listed determines If of the entities construction zone. one a work or warranted, then mandates the statute limits are special speed that This specific requirements. that conform to entity post signs power contractor private and/or the utility company grants is, zone in the work or construction limit set authority. legislative delegation of an unconstitutional consequently, delegations are manifold of “the instances argues The State that important governmental entities for authority private legislative 53-30-601, MCA, support. functions,” and cites § benefits recognizes that MCA, rationale policy declares Granting facilities. correctional persons private confining convicted already have been who prisoners entities to house authority private is far legislature enacted law of crimes in a court of convicted limit set a party authority private to a granting than different a ministerial The first charges. in criminal may which result said function. As we law-making is a function, the second while 243 Mont. at may Ingraham, do.” Ingraham, legislature “[t]his 793 P.2d at (3) (4) 61-8-314, MCA, subsections Consequently, because authority, I would contain unconstitutional as a is unconstitutional. whole conclude in the of JUSTICE LEAPHART. joins JUSTICE NELSON dissent dissenting. JUSTICE TRIEWEILER I Justice dissent from the Court’s conclusion join Leaphart’s does not agency. only I differ with his conclusion
authority to an administrative (4) contractor grants 51 that subsection of that statute zone.” to “set limit in the or construction work below, delegates For set forth I that the statute reasons conclude only Transportation or a local Department governmental authority. *13 I dissent conclusion majority’s also with the that District
¶55 Court not error it denied the Defendant’s motion a did insufficiency directed verdict based on of the evidence. concludes, agree, majority correctly The and the “that the parties
¶56 prove, among things, state had to other that DOT and 61-8-314, parties MCA, complied provisions with the of to obtain a § However, in conviction for a construction zone.” ¶ statutory majority ignores by then the most basic rule of construction expressed language omitting of ignoring the statute and 1-2-101, obligations have inserted. that been See MCA. § 61-8-314(3), MCA, Section that: ¶57 states in limit in a construction zone or zone must be speed work by Department authority Transportation set the local of of based on traffic conditions or the condition survey project. maintenance (4)(a) signs” but Subparagraph “post allows contractor ¶58 authority speed to set the limit. Nor is provides no for the contractor 61-8-314, authority any that in other of MCA. The provided part § that of Department Transportation statute reserves authority.” or “the local Here, that Department the State failed to offer evidence fact, only limit. offered set the evidence
Transportation witness, it did suggests principle not do so. The State’s collection, knowledge he supervisor of traffic testified that had no data point question in establishing any speed DOT limit at the private contractor suggest documents submitted as exhibits limit different than that recommended fact established the Department of Transportation. 61-8-314(4)(ii), MCA, requires signs that the which are
posted in a construction zone “indicate the boundaries of the construction signs zone....” The posted this construction zone did not do majority so. The goes great lengths 34 of its Opinion indicate all of the signs posted prior to and after the construction zone. However, strikingly any absent is reference signs which indicated the boundaries of the construction zone. The Department Transportation and its simply contractor did comply with that requirement 61-8-314, MCA. § Finally, 61-8-314(4)(iii), MCA, requires the DOT or its contractor
to “display the speed limit in effect [the within zone].” Also conspicuous by its absence is reference in majority 34 of the Opinion limit signs located within the construction zone. us, Based on the record before there were none. The majority Defendant, criticizes Mathis, James for not
offering authority in support argument of his the State Department Transportation comply failed to with the provisions of However, MCA. the plain language of the speaks statute for itself. No further necessary. Based undisputed on the facts and the plain language statute, Department Transportation and its comply contractor failed to with its terms. For the reasons set forth in Leaphart’s Justice Opinion, with the noted exception, I dissent majority’s from the conclusion that 61-8- 314, MCA, did not delegate legislative authority to agency. For the reasons set Opinion, forth this I dissent from the majority’s conclusion that the State proved DOT and its complied contractor with the provisions of § it, therefore, and that proved the necessary elements of its charge against Defendant, James Mathis.
JUSTICE joins NELSON 55 through foregoing 62 of the ¶¶ *14 dissent.