No. 85-513
I N THE SUPREME COURT O F THE STATE O MONTANA
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1986
STATE O MONTANA, e x r e l . , DEPARTMENT
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O HEALTH AND ENVIR.ONMENTAL SCIENCES,
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P l a i n t i f f and Respondent,
CECIL L . BERNHARD,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t ,
I n and. f o r t h e County o f L i n c o l n . ,
The H o n o r a b l e R o b e r t H o l t e r , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
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For Appellant:
J e f f r e y I,. Shrom, M i s s o u l a , Montana
For Respondent:
W i l l i a m D o u g l a s , L i n c o l n County A t t o r n e y , L i b b y ,
Montana
S u s a n Loehn, Deputy County A t t o r n e y , L i b b y , Montana
S u b m i t t e d on B r i e f s : J a n . 2 3 , 1986
Decided: February 20, 1986
Filed:
Clerk
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
Cecil Bernhard appeals the August 16, 1985, order of the
Nineteenth Judicial District Court, County of Lincoln, which
assessed a $50 per day civil penalty against him for failing
to properly shield his motor vehicle wrecking facility from
public view. The order also stated that if the penalty was
not paid by the 13th of September, 1985, the Department of
Environmental Health and Sciences (DHES) would be permitted
to contract for the destruction of the vehicles. Defendant
Bernhard appeals. We affirm the order of the District Court.
Cecil Eernhard stores between 60 and 100 junk vehicles
on his property near Eureka, Montana. In November of 1975, a
complaint was filed against Rernhard for operating a motor
vehicle wrecking facility without a license, a misdemeanor.
He was ultimately fined $300 and sentenced to serve 30 days
in jail unless he obtained a license within 30 days of the
date of judgment. On appeal, this Court affirmed the
conviction.
Bernhard was next civilly charged July 2, 1979, with
operating a motor vehicle wrecking facility without a li-
cense, pursuant to S 75-10-511 (1), MCA. An order was issued
by the Lincoln County District Court, enjoining defendant
from operating the facility without a license and ordering
him to shield the vehicles from public view. The order also
provided for the imposition of a $50 a day fine for each day
Bernhard refused to comply. On appeal, this Court again
affirmed the District Court.
As a result of that action, Bernhard placed a fence
around most of the vehicles and obtained a license to operate
the facility. The fence was installed during the winter of
1984-85. The frozen ground made it impossible to drive fence
posts into the ground. Cattle belonging to a neighbor, but
grazing on Bernhard's land, apparently knocked the fence down
in the spring of 1985. The owner of the cattle rebuilt the
fence. However, a strong wind storm again knocked down the
fence.
Upon being notified of the problem, Lincoln County's
Sanitarian viewed Bernhard's property and sent him a letter
May 13, 1985, requesting a compliance timetable. The fence
was not improved and on July 2, 1985, the County Attorney
filed a petition and motion to show cause why the civil
penalty of $50 per each day of violation should not be im-
posed. A hearing was set for August 12, 1985. Defendant
appeared, but without an attorney. After extensive question-
ing by the trial judge regarding defendant's right to coun-
sel, the hearing proceeded with defendant acting pro -
se.
Following the hearing, the trial judge issued findings
of fact, conclusions of law and the order assessing defendant
$50 a day from June 25, 1985, to August 12, 1.985, and further
assessing defendant $50 a d a y thereafter until full compli-
ance with the order to shield the vehicles. Rernhard filed a
motion September 13, 1985, for a temporary restraining order
forbidding the DHES from contracting for the destruction of
the vehicles; however, he failed to request that a hearing be
set on the motion. The present status of the vehicles is
unknown.
Rernhard, now represented by counsel, appeals, raising
the following issues:
1. Whether the defendant was in compliance with the
court's order as a matter of law and whether the District
Court erred in its judgment of noncompliance?
2. Once a motor vehicle wrecking facility license is
issued, does the court have to follow a procedure for
issuing, denying or revoking the license before imposing a
$50 a day civil penalty for failure to shield?
3. Was the defendant. entitled to be represented by
counsel at the show-cause hea.ring?
4. Did defendant willingly and knowingly waive his
right to counsel at the show-cause hearing?
5. Was the defendant incompetent to represent himself
at the show-cause hearing?
Hernhard argues that he erected a fence to shield the
facility pursuant to S 75-10-504, MCA, and a November 1984
order of the District Court. The fence was destroyed by
cattle and a wind storm, forces over which Bernhard had no
control. Therefore, pursuant to 1-3-217, MCA, he cannot be
held responsible for the destruction of his fence. What
Rernhard fails to mention is that he is responsible for
installing a fence which adequately shields the wrecking
facility and for repairing or replacing that fence when
necessary. There is substantial credible evidence in the
record to support the trial judge's finding that Bernhard was
not in compliance with the court's earlier order to shield
the wrecking facility.
The trial judge did not have to revoke Bernhard's li-
cense prior to imposing the $50 a day civil pena.lty.
Section 75-10-542(2), MCA, provides:
A person who violates this part, except
75-10-520, a rule of the department, or
an order issued as provided in this part
shall be subject to a civil penalty of
not more than $50. Each day upon which a
violation of this part or a rule or order
occurs is a separate violation.
Section 75-10-504, MCA, provides that a motor vehicle
wrecking facility "established or proposed on or after
J u l y 1, 1 9 7 3 , " must b e s h i e l d e d from p u b l i c view. By f a i l i n g
to shiel-d h.is facility, Bernhard violated that statute.
Bernhard a l s o v i o l a t e d a c o u r t o r d e r i s s u e d p u r s u a n t t o T i t l e
75, P a r t 10. T h e r e f o r e , p u r s u a n t t o 5 75-10-542(2), MCA, the
$50 a d a y p e n a l t y was p r o p e r l y imposed.
The remaininq three issues concern Bernhard's lack of
r e p r e s e n t a t i o n by c o u n s e l a t t h e show-cause h e a r i n g .
S e c t i o n 37-61-416, MCA, s t a t e s i n applicable part:
P a r t y may a p p e a r i n p e r s o n o r by a t t o r -
ney. A p a r t y t o a c i v i l a c t i o n who i s o f
f u l l a g e may p r o s e c u t e o r d e f e n d t h e same
i n p e r s o n o r by a t t o r n e y a t h i s e l e c t i o n
u n l e s s he h a s been j u d i c i a l l y d e c l a r e d t o
b e i n c o m p e t e n t t o manage h i s a f f a i r s .
B e r n h a r d was e n t i t l e d t o b e r e p r e s e n t e d by c o u n s e l a t
t h e show-cause h e a . r i n g . However, a f t e r e x t e n s i v e q u e s t i o n i n g
by t h e t r i a l j u d g e w i t h r e s p e c t t o w h e t h e r B e r n h a r d w i s h e d t o
have c o u n s e l p r e s e n t , t h e t r i a l j u d g e d e c i d e d t o p r o c e e d w i t h
t h e hearing. W f i n d no e r r o r .
e B e r n h a r d was t o l d h e had a
r i g h t t o counsel. H e w a s warned o f t h e p o t e n t i a l i m p a c t o f
t h e show-cause h e a r i n g on h i s f i n a n c i a l well-being. Never-
theless, Bernhard s t a t e d t h a t h e would b e w i l l i n g t o t e l l
"his side of t h e story" t o the court. Therefore, defendant
elected not to be represented by counsel at the hearing.
F i n a l l y , B e r n h a r d p r e s e n t s no e v i d e n c e t h a t h e h a s b e e n
judicially d e c l a r e d incompetent. Further, h e ha.s known f o r
at l e a s t eleven years t h a t h e must l i c e n s e and s h i e l d h i s
wrecking facility. Therefore, he knew and understood the
c h a r g e s a g a i n s t him. H i s t e s t i m o n y a t t h e h e a r i n g was compe-
tent. H e was c o m p e t e n t t o r e p r e s e n t h i m s e l f a t t h e h e a r i n g .
Affirmed.
We concur: , -
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