No. 91-443
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
RICHARD J. FERTTERER, SR., and
DAVID JOHN FERTTERER,
Defendants and Appellants.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
John M. Morrison argued, Morrison Law Offices,
Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Paul D. Johnson argued, Assistant Attorney General,
Helena, Montana
Patrick L. Paul, Cascade County Attorney, Great
Falls, Montana
Steve Hagerman, Deputy Cascade County Attorney,
Great ~ a l l , ~ontana
s
submitted: July 9, 1992
Decided: September 28, 1992
Ffled C S tf
d Mi~
CLERKOFSUPREMECOURT
S T W E OF MONTAW
Justice Fred J. Weber delivered the Opinion of the Court.
A jury in the Eighth Judicial District Court, Cascade County,
Montana, convicted Richard J. Fertterer, Sr. of seven misdemeanor
fish and game violations and two counts of felony criminal
mischief. This jury also found David John Fertterer guilty of four
misdemeanor fish and game violations and two counts of felony
criminal mischief. Defendants appeal the felony convictions and
the sentence imposed by the District Court. We affirm in part and
reverse in part.
The Fertterers raise the following issues for our review:
1. Are wild animals "public property" within the purview of
5 45-6-101, MCA?
2. Does Title 87, MCA, provide an exclusive remedy for the
illegal taking of game?
3. Are wild animals property within the definition of 5 45-2-
101(54) , MCA?
4. Is Montana's criminal mischief statute, as applied to the
Fertterers, unconstitutionally vague?
5. Did the District Court properly charge the Fertterers with
the costs of investigation?
6. Did the District Court properly charge Fertterers with
jury costs?
From November 1989, through August 1990, the Department of
Fish Wildlife and Parks (FWP) conducted an undercover investigation
of a large scale poaching operation run by the Fertterers. During
the investigation FWP agents, posing as out-of-state hunters, had
2
extensive contact with the defendants. At trial, agents testified
they were actively guided by the Fertterers during t w o separate
five-day hunts. Neither defendant had an outfitter license. In
addition, agents testified that during those hunts, Fertterers were
spotlighting and killing game without proper tags, illegally
trapping bear, soliciting the sale of an illegally killed mountain
lion hide, and attempting to sell approximately 1000 pounds of deer
and elk meat to an Illinois FWP agent posing as an owner of a meat
market.
The jury convicted Richard Fertterer of two counts of felony
criminal mischief for illegally killing three elk, six deer and
three antelope. It also convicted him of several misdemeanors
under Title 87, MCA, including: two counts of outfitting without a
license; two counts of unlawfully selling, transporting and
possessing game; two counts of hunting with aid of artificial
light; and one count of unlawfully trapping game animals.
Likewise, the jury convicted David John Fertterer of two
counts of felony criminal mischief for unlawfully killing one
mountain lion and three elk. He was also convicted of several
misdemeanors under Title 87, MCA, including: guiding without a
license, unlawful sale or possession of game, hunting with aid of
artificial light, and unlawful trapping of game animals.
Fertterers contend they were wrongfully convicted of felony
criminal mischief where wild animals are not properly classified as
property or public property within Montana's criminal code. In the
alternative defendants claim the criminal mischief statute is
unconstitutionally vague as applied to Fertterers and violates the
legislative intent of Title 87, MCA.
As a condition of the Fertterers' partially suspended
sentences, the District Court charged both defendants with the cost
of the jury trial, investigation expenses incurred by FWP, and
restitution for the value of the wild game they illegally killed.
Defendants argue the court improperly charged them with jury costs
where the state improperly tried and convicted them of criminal
mischief, and that the costs were excessive due to the length of
the trial and the change of venue caused by the State's excessive
publicizing of the case. Finally they contend the court wrongfully
charged them with investigative costs incurred by FWP prior to
filing an information.
Are wild animals "public property" within the meaning of 5 45-
6-101, MCA?
Section 45-6-101(1)(a), MCA, provides:
(1) A person commits the offense of criminal
mischief if he knowingly or purposely:
(a) injures, damages, or destroys any property of
another or public property without consent; ...
In this instance, defendants contend the District Court incorrectly
instructed the jury that wild animals in Montana are owned by the
State and are public property. Fertterers argue that the State has
no title ownership in the wild animals within its borders; thus,
the animals are not owned by the State.
Although the criminal code fails to define "public property",
it offers some other definitions regarding ownership which are
4
helpful in defining "public property" under Montana's criminal
code.
Section 45-2-101(46), MCA, defines owner as follows:
*lOwnerumeans a person other than the offender who
has possession of or any other interest in the property
involved, even though such interest or possession is
unlawful, and without whose consent the offender has no
authority to exert control over the property.
Under this definition, ownership is not limited to title ownership
such as that applied to the ownership of real property or to
personal property such as cattle or other livestock. The statute
recognizes that a lesser interest than title ownership is
sufficient as an ownership interest in property crimes.
In State v. Tome (1987), 228 Mont. 398, 742 P.2d 479, this
Court recognized that an interest less than title ownership was
sufficient to prove ownership for the purpose of Montana's criminal
mischief statute. Tome, 228 Mont. at 401, 742 P.Zd at 481. In
that case, the defendant was charged with felony criminal mischief
for $191 in vandalism damages to a city building and $359 in
damages to a vending machine leased by a golf pro employed by the
city. The defendant argued that the lower court incorrectly
considered $359 in damages to the machine in convicting him of
felony criminal mischief. This Court held that mere possessory
ownership is sufficient to show ownership under the criminal
mischief statute.
Similarly here, the State need not prove it had title
ownership interest in wild game within its borders. As stated in
$45-2-101(46), MCA, the State is an owner of the property if,
without the State's consent, the Fertterers had no authority to
exert control over the game.
Next § 45-2-101(55), MCA, defines property of another as
follows:
"Property of anotherw means real or personal
property in which a person other than the offender has an
interest which the offender has no authority to defeat or
impair, even though the offender himself may have an
interest in the property.
Again, this definition focuses not on title ownership of the
property but on a superior interest. Under this definition, the
State need only prove that it had an interest in the wild game
which the Fertterers had no authority to either defeat or impair.
Once again under the definition of 5 45-2-101(55), MCA, the State
need not prove it has title ownership to the game to be classified
as an owner.
While the criminal code does not require the State to prove
title ownership, the State must prove it possesses an interest
superior to the interest of the Fertterers. We conclude that under
the statutes and cases of Montana, the State has a superior
interest under the ownership theory and also has such an interest
by virtue of its police power to regulate the taking of game.
A brief historical analysis shows that beginning with Geer v.
Connecticut (1896), 161 U.S. 519, the United States Supreme Court
recognized that the states had a right to regulate the taking of
game within their borders. This regulatory power was derived from
the statesf "title ownershipI1 in the game, and also from the
states1 police power. In Geer, the Court determined that a
Connecticut law prohibiting the taking of game birds outside its
b o r d e r s did n o t violate interstate commerce. That court likewise
relied on the title ownership theory in subsequent federal cases
including Baldwin v. Montana (1978), 436 U. S . 371. In Baldwin, the
Court recognized Montana's interest in regulating the taking and
preserving the game animals within its borders. It held that
Montana's disparate licensing fees between resident hunters and
non-resident hunters did not violate the privileges and immunities
clause of the Constitution or the equal protection clause. In the
1979 case of Hughes v. Oklahoma (1979), 441 U.S. 322, the United
States Supreme Court concluded that an Oklahoma law which
prohibited the transporting of live minnows across state lines into
Texas violated the interstate commerce clause. As a part of that
opinion, it expressly abandoned the title ownership theory as
promulgated in Geer. The defendants argue that the Hushes decision
effectively precludes Montana from convicting them of criminal
mischief for destroying public property.
The State contends there are no federal constitutional
questions of interstate commerce, equal protection, or privileges
and immunities; and as a result, Hughes is not controlling. We
agree with that contention. There is no federal constitutional
issue or other federal question presented in the present case. As
a result, the holding in Hushes is not controlling here. We do
point out that as we compare Hushes to Baldwin, we are not certain
the holding expressed in this case would be found to contradict
Hushes.
Montana has long recognized that Montana has the power to
regulate game animals under both a title ownership and p o l i c e power
theory. In Rosenfeld v. Jakways (1923), 67 Mont. 558, 216 P. 776,
this Court stated the rule very clearly as follows:
That the ownership of wild animals is in the state,
held by it in its sovereiqn capacity for the use and
benefit of the people generally, and that neither such
animals nor parts thereof are subject to private
ownership except in so far as the state may choose to
make them so, are principles now too firmly established
to be open to controversy, (Geer v . Connecticut, 161
U.S. 519, 40 L.Ed. 793, 16 Sup.Ct.Rep. 600, [See, also,
Rose's U.S Notes]; 12 R.C.L. 691-703.) If the state so
elects it may prohibit absolutely the killing of such
animals, or it may regulate the killing and prohibit the
sale in this state of such animals or the parts, whether
the animals were killed within or without the state. It
may grant or withhold the right to hunt, and if it grants
the right at all it may do so upon such terms and
conditions as it sees fit to impose so long as
constitutional limitations or guaranties are not
infringed. Aside from anv auestion of common owners hi^,
the state may exercise these riqhts in virtue of' its
police Dower. There is practically not any dissent from
these general propositions. (Emphasis supplied.)
The State's ownership in wild game for the use and benefit of
its people was affirmed in Heiser v. Severy (1945), 117 Mont. 105,
158 P.2d 501, and again in State ex rel. Visser v. State Fish and
Game Commln (1968), 150 Mont. 525, 437 P.2d 373. In Visser, this
Court confirmed the State's ownership of wild game and its
authority to regulate private ownership of game as long as those
regulations do not violate the Constitution.
Montana's case law affirming the State's property interest in
wild game is consistent with case law from other jurisdictions,
including Washington, Colorado, Oregon, Indiana, Texas, Michigan
and Alabama. In State v. Gillette (Wash. 1980), 621 P.2d 764,
Washington sued and recovered damages from property owners whose
reconstruction of a stream bank resulted in the killing of salmon.
That court concluded that Washington had standing to sue. It held:
"food fish of the state are the sole property of the people of the
state .. .I1 Likewise in Collopy v. Wildlife Comm'n (Colo. 1981),
625 P.2d 994, that court upheld a regulation prohibiting hunting
within a specific area. The court recognized that the ownership of
wild game is in the state for the benefit of all the people.
Finally, in Rogers v. State (Ala.App. 1985), 491 So.2d 987, that
court stated: "The authority of the state to regulate hunting . .
. derives from the long established and well recognized principle
of law that ownership of wild animals is vested in the state."
See also, Ridenour v. Furness (Ind-App. 1987), 504 N.E.2d 336:
Wiley v. Baker (Tex.App. 1980) , 597 S.W. 2d 3; and Glave v. Michigan
Terminix Co. (Mich.App. 1987), 407 N.W.2d 36.
In accordance with the above cited Montana cases, and
consistent also with Baldwin, we hold that Montana has an ownership
interest in wild game held by it in its sovereign capacity for the
use and benefit of the people. We further hold that under its
police powers, which extend to such wild game, the State may
prohibit the killing of wild game and regulate the killing of the
same. We hold that wild animals are public property within the
meaning of Montana's criminal mischief statute, and that Montana's
interest in such public property is superior to the interest of the
Fertterers.
Does Title 87, MCA, provide an exclusive remedy for the
illegal taking of game?
First, Fertterers contend the State cannot charge them under
Title 45 where Title 87 provides a more specific definition of the
conduct. The State contends that the prosecutor has the discretion
to charge under any statute. We agree with the State. This Court
most recently affirmed the prosecutor's discretion to charge in
State v. Brady (1991), 249 Mont. 290, 816 P.2d 413. In Bradv the
defendant claimed he should have been charged under the more
specific crime of domestic abuse rather than aggravated kidnapping.
We affirmed the conviction and upheld the prosecutor's discretion
to charge any offense as long as the defendant's conduct meets the
elements of the crime. As in Bradv, here we conclude that the
prosecutor had the discretion to charge the Fertterers under Title
45, Montana's criminal code.
Next, Fertterers contend that charging them with felony
criminal mischief circumvents the will of the legislature.
Defendant's further claim the result, a felony conviction in
District Court, is manifestly unjust where Title 87, MCA, only
exposes them to misdemeanor penalties. The State contends that
Title 87, MCA, does not provide an exclusive remedy, thus
Fertterers' felony convictions were a proper result. Section 87-1-
102, MCA (1989), provides in pertinent part:
(1) A person violating any provision of this title,
any other state law pertaining to fish and game, or the
orders or rules of the commission or department is,
unless a different sunishment is expressly provided by
law for the violation, guilty of a misdemeanor . . .
(Emphasis supplied.)
We affirm the conclusion of the District Court and resulting felony
convictions. In this case a I1different punishmentv1had been
expressly provided in Title 45, MCA. We further conclude that none
of the sections of Title 87 comprehensively define the Fertterersl
conduct. We conclude the legislature did not intend the
misdemeanor provisions of Title 87 to constitute the exclusive
punishments for fish and game violations.
We hold Title 87, MCA, does not provide an exclusive remedy
for the illegal taking of game.
I11
Are wild animals property within the definition of g 45-2-
101 (54), MCA?
Fertterers contend wild animals are not property within the
definition of 5 45-2-101(54), MCA. Section 45-2-101(54)(h), MCA,
defines property as: "any tangible or intangible thing of value.
. . . Prowertv includes but is not limited to: birds, animals, and
fish which ordinarily are kept in a state of confinement; . . . 11
[Emphasis added.] Although Fertterers agree this is a non-
exclusive list, they argue that by including domestic animals in
the category, the legislature clearly intended to exclude wild game
from the definition of property. Once again, we disagree with the
defendants. We conclude that property under this section is
defined broadly enough to include wild game.
Fertterers further argue that wild animals are not public
property within the meaning of 9 70-1-104, MCA, and g 70-2-111,
11
MCA. We conclude definitions of Title 70, MCA, are not controlling
in Montana's c r i m i n a l code. We hold that w i l d animals are property
within the definition of 5 45-2-101(54), MCA.
IV
Is Montana's criminal mischief statute, as applied to the
Fertterers, unconstitutionally vague?
Fertterers contend that the criminal mischief statute, as
applied, is unconstitutionally vague and violates due process.
Fertterers cite two Ninth Circuit cases defining vagueness. First,
a statute is void for vagueness if it fails to give a person of
ordinary intelligence notice ofthe illegal conduct. United States
v. Dupree (9th Cir. 1976), 544 F.2d 1050, 1051. Next they cite
United States v. Stenberg (9th Cir. 1986), 803 F. 2d 422, which held
that statutes must apply explicit standards to avoid arbitrary and
discriminatory applications. In essence, Fertterers argue that
although they knowingly violated misdemeanor statutes under Title
87, MCA, they were not provided sufficient notice that their
conduct violated Montana's criminal mischief statute. We do not
find this argument compelling.
As stated previously, wild animals are public property within
the meaning of § 45-6-101, MCA, and the definitions in Title 45,
MCA, provide sufficient notice that wild animals are public
property within the criminal code. Thus, reasonable persons would
have realized that the conduct of destroying wild animals without
the consent of the State, specifically violated 9 45-6-101 (1)(a),
MCA. Further, Montana's criminal mischief statute applies explicit
standards which prevent arbitrary and discriminatory application.
We hold that the criminal mischief statute as applied to the
Fertterers does not violate due process.
v
Did the District Court properly charge the Fertterers with the
costs of investigation?
Section 46-18-232(1), MCA, provides:
A court may require a convicted defendant in a felony or
misdemeanor case to pay costs, as defined in 25-10-201,
plus costs of jury service as part of his sentence. Such
costs shall be limited to expenses specifically incurred
by the prosecution in connection with the proceedings
against the defendant.
Section 25-10-201, MCA, specifies costs generally allowable. That
section does not include investigative costs incurred prior to the
State's filing of an information.
Although this is a case of first impression in Montana, this
Court has held that in civil cases, statutory authority must exist
in order for the district court to award costs. Masanovich v.
School Dist. No. 1 (l978), 178 Mont. 138, 582 P.2d 1234. Oregon
has not allowed the state to recover costs of police investigations
incurred prior to the filing of the information. State v. Haynes
(0r.App. 1981), 633 P.2d 38. We adopt the holding in Havnes and
conclude the District Court improperly charged the Fertterers with
the investigative costs expended prior to the filing of the
information.
Oregon has recognized an exception to that general rule. As
stated in State v. Pettit (0r.App. l985), 698 P.2d 1049, Oregon
allowed the state to recover money paid directly to the defendants
as part of an undercover drug investigation as restitution. The
State argues in the present case that under the restitution theory
of Pettit it should be allowed to recover cash amounts paid by the
State to the Fertterers through its undercover agents.
We likewise approve of the Pettit exception to Haynes and
conclude that here restitution is appropriate under the Pettit
analysis. We further conclude that such restitution should be
limited to amount paid directly to the Fertterers for guided hunts
and for meat and animal parts purchased in the undercover
investigation. We remand to the District Court in order that it
may determine the extent of the restitution to be allowed to the
State under this theory.
Did the District Court properly charge Fertterers with jury
costs?
The pertinent statute on the issue of payment of costs by a
defendant is 1 46-18-232, which in pertinent part provides:
Payment of c o s t s by defendant. (1) A court may require
a convicted defendant in a felony or misdemeanor case to
pay costs, as defined in 25-10-201, plus costs of iury
service as a part of his sentence. Such costs shall be
limited to expenses specifically incurred by the
prosecution in connection with the proceedings against
the defendant.
(2) The court may not sentence a defendant to pay
costs unless the defendant is or will be able to pay
them. In determining the amount and method of payment of
costs, the court shall take into account the financial
resources of the defendant and the nature of the burden
that payment of costs will impose.
(3) A defendant who has been sentenced to pay costs
and who is not in default in the payment thereof may at
any time petition the court that sentenced him for
remission of the payment of costs or of any unpaid
portion thereof. If it appears to the satisfaction of
the court that payment of the amount due will impose
manifest hardship on the defendant or his immediate
family, the court may remit all or part of the amount due
in costs. ... (Emphasis added.)
In two different cases the constitutionality of the foregoing
statute has been upheld against claims of a violation of due
process rights under the Constitution. State v. Weinberger (1983),
204 Mont. 278, 306, 665 P.2d 202, 217; State v. Pease (1987), 227
Mont. 424, 434, 740 P.2d 659, 665.
The primary argument on the part of the defendants is that the
due process rights of the defendants were denied when they were
required to pay costs attended to a change of venue where pretrial
publicity requiring the change was created and encouraged by the
State. Defendants urge this Court to adopt a rule which would not
allow costs to be awarded where the State was primarily responsible
for extensive pretrial publicity.
As pointed out by the State, the record does not contain any
evidence to support the contention that the State was primarily
responsible for pretrial publicity and the State vigorously
contests such factual assertions. The State properly points out
that no motion concerning this issue was made to the District Court
and no hearing was requested on this issue in the District Court.
As a result, there are no findings and conclusions of the District
Court for this Court to review, nor is there any hearing record
containing testimony from witnesses. We conclude that the State is
correct that the assertion that the State somehow caused the
extensive pretrial publicity is not sufficient to raise an issue on
the matter of jury costs. As a result we will not consider this
for the first time on appeal.
We conclude that the plain and unambiguous language of 5 46-
18-232, MCA, establishes that the District Court properly assessed
all costs associated with jury service.
We hold the District Court properly charged Fertterers with
jury costs.
The District Court is affirmed with the exception of our
remand for recalculation of restitution under Part V.
C;/~uktice
Justices
Justice Karla M. Gray concurring in part and dissenting in part.
I concur in that portion of the majority opinion which
reverses the District Court's charging of investigation costs to
the Fertterers. It is my view that issues numbered one, three and
four by the majority need not be reached. I dissent from the
majority opinion on issue two as stated. In addition, I would
restate that issue as whether the Fertterers properly could be
charged with felony fish and game violations under the law in
effect at the time and hold that such charges clearly are precluded
by § 87-1-102(1), MCA (1989). I also dissent on the issue of
imposing on the Fertterers the increased jury costs associated with
change of venue.
The majority states issue two as whether Title 87, MCA,
provides an exclusive remedy for the illegal taking of game. I
conclude that, with only specific exceptions, it does.
Title 87 constitutes the legislature's enactment of a
comprehensive statutory body of law regarding fishing, hunting and
trapping in Montana. It ranges from simple licensing requirements
to criminal penalties for certain activities relating to fish and
game. One need look no further than the majority's tortured
construction of § 45-6-101, MCA, to see that rendering that statute
applicable to the illegal taking of game was never within the
contemplation or intent of the Montana legislature.
It is true that § 87-1-102(1), MCA (1989), references "any
other state law pertaining to fish and game. . . . " Given the
common understanding of "pertainingw as "having reference to"
(Webstergs Ninth New Collegiate Dictionary), the reasonable
interpretation of that language is that other laws specifically
referring to fish and game may be located elsewhere in the Montana
Code Annotated. Indeed, a close review of Title 87 indicates that
such other laws pertaining to fish and game do exist. Section 87-
1-102(4), MCA (1989), for example, refers to Title 37, chapter 47.
That chapter of Title 37 addresses outfitters and guides and,
therefore, contains other state law pertaininq fish and game.
There is simply nothing reasonable about an interpretation which
construes the "any other state law pertaining to fish and game,"
language in 5 87-1-102(1), MCA (1989), to mean "any other state law
on any subject which the Montana Supreme Court can bend, mold or
strain into covering a fish and game ~iolation;~' that is the
yet
effect of the majority's opinion in this case.
In addition, the majority concedes that the violations at
issue here--that is, the felony charges--are fish and game
violations without regard to where in the Montana Code the
statutory basis for those violations is found. Even if one
accepted the majority's interpretation of 5 45-6-101, MCA, it was
improper to charge the Fertterers with felony fish and game
offenses under the law in effect at the time.
Section 87-1-102, MCA (1989), addresses penalties and
punishments for fish and game violations. A person violating
Montana's fish and game laws "is, unless a different punishment is
expressly provided by law for the violation, guilty of a
misdemeanor 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."
Misled, perhaps, by the unartful drafting of the statute, the
majority focuses in on the "different punishmentvg language,
dismisses the misdemeanor designation and fails to place the
statute into context with those which follow.
Criminal offenses in Montana are classified or designated as
misdemeanors or felonies for purposes of jurisdiction and statutes
of limitations; the designation is based upon the maximum potential
sentence which could be imposed for the offense. Section 45-1-
201, MCA (1989). All criminal offenses must be designated as
misdemeanors or felonies. Id.
Section 87-1-102(1), MCA (1989), provides that all fish and
game violations, wherever in Montana law the offense may be found,
are misdemeanors. This clear statement of intent by the Montana
legislature is simply ignored by the majority.
The majority relies on I8unless a different punishment is
expressly provided by law" language in 5 87-1-102(1), MCA (1989),
to reach its conclusion that the Fertterers were properly charged
with felonv fish and game violations. It reasons that the
placement of that clause Drier to both the misdemeanor designation
and the penalty provisions which follow it reflects legislative
intent to provide for felony fish and game offenses. This analysis
is flawed, given the clear misdemeanor designation.
Notwithstanding the inappropriate placement of the "different
punishment" language, it is clear that the clause was intended to
modify the other penalty/punishment language in 5 87-1-102(1), MCA
(1989), and not the misdemeanor designation itself.
This intent is particularly clear by reading §§ 87-1-102 and
87-1-111, MCA (1989), (Temporary), together. Section 87-1-102(1),
MCA (1989), provides that all fish and game violations are
misdemeanors and that, unless otherwise expressly provided, the
penalty for fish and game misdemeanors is a fine of between $50 and
$500, imprisonment in the county jail for not more than six months,
or both.
Subsection (2) of 5 87-1-102, MCA (1989), and § 87-1-111, MCA
(1989), (Temporary), "expressly providevrfor different penalties
for certain fish and game misdemeanors. Section 87-1-102(2), MCA
(1989), provides for increased fines; 5 87-1-111, MCA (1989),
(Temporary), provides for restitution in addition to the statutory
fines and county jail terms. Neither of these statutes, however,
impose a criminal penalty outside the range available for
misdemeanors. See 5 45-2-lOl(36) and (21), MCA (1989). Indeed,
they merely provide for implementation of the "different
punishment" language contained in 5 87-1-102, MCA (1989). Absent
statutory amendment to the clear statement that all fish and game
violations are misdemeanors, no felony designations or punishments
are authorized.
The soundness of this interpretation and analysis is best
illustrated by a brief review of 1991 legislative action regarding
fish and game violations. First, the 1991 legislature passed
Senate Bill 240 as Chapter 277, Laws of 1991. The title of Senate
Bill 240 begins "An Act to generally revise the law regarding fish
and game misdemeanor penalties;". This is a clear reflection of
the fact that, at that time, fish and game violations were
misdemeanors. Indeed, Section 2 of Senate Bill 240 restructures
§ 87-1-102, MCA (1989), by placing the Irdifferent punishmentIg
language after the specific punishments provided; as suggested
above, this was always the intended meaning of the "different
punishmentI1 language. Importantly, Section 2 also inserted the
language "except if a felony is expressly provided by law;I1 again,
this is a clear statement by the legislature that, until its 1991
action, a11 fish and game violations were misdemeanors.
The 1991 legislature then proceeded to create specific felony
fish and game violations. It did so via Senate Bill 239, enacted
as Chapter 329, Laws of 1991. The title of that bill begins "An
Act establishins as felonies the sale of unlawfully taken wildlife
and the possession of unlawfully taken wildlife having a value of
more than $l,OOO;~t
(emphasis added) . These are, of course, the
very offenses committed by the Fertterers. A clearer statement of
legislative intent to convert such offenses from misdemeanors to
felonies hardly can be imagined.
In sum, it is my view that the Fertterers improperly were
charged with felony offenses. I would reverse the felony
convictions.
I would also reverse the District Court's imposition of the
jury costs associated with the change of venue. While I have
serious reservations about the entire notion of assessing the costs
associated with asserting the constitutional right to a jury trial
against a convicted defendant, those fundamental questions about
this Court's Weinberaer and Pease decisions can await another day.
In upholding the assessment of such costs, absent an inability to
pay, this Court stated in Weinberqer that "Montana's statute does
no more than deprive 'a financially able defendant of available
funds which, in fairness, should be remitted to the public
~offers.~"Weinberqer, 204 Mont. 278 at 306 (citations omitted).
In this case, application of the statute does much more.
Here, the District Court stated that "there is a great
likelihood that prejudice exists so that the Defendants could not
receive a fair trial from an unprejudiced and impartial jury" in
Cascade County. It exercised its discretion to grant defendants'
motion "in order to assure a fair trial." Because of the location
in Cascade County of the extensive physical evidence to be offered
at trial, the court determined that, "as a practical matter," it
was better to bring in a jury from Kalispell than to transfer the
case to another county where a fair trial could be held. If the
latter option had been utilized, the usual rlcosts jury service"
of
contemplated by !
j 46-18-232(1), MCA, would have been incurred and
assessed.
Surely it offends every notion of fair play, if not due
process, to penalize these defendants for their inability to obtain
a fair trial in Cascade County. Just as surely it offends such
notions where the District Court chose one option rather than the
other, under 5 46-13-204, MCA, in ensuring a fair trial and the
significantly increased expense of that option, according to the
majority, can be imposed on the Fertterers. I cannot agree.
Justice Terry N. Trieweiler joins in the foregoing concurring and
dissenting opinion of Justice Karla M. Gray.
Justice William E. Hunt, Sr. joins in the foregoing concurring and
dissenting opinion of Justice Karla M. Gray.
September 28, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Frank B. Morrison, Jr. and John M. Morrison
Morrison Law Offices
80 So. Warren
Helena, MT 59601
Hon. Marc Racicot, Attorney General
Paul D. Johnson, Asst. Atty . General
Justice Bldg.
Helena, MT 59620
Patrick L. Paul, County Attorney
Steve Hageman, Deputy
Cascade County Courthouse
Great Falls, MT 59401
ED SMITH
CLERK OF THE SUPREME COURT
S T A m O F MONTANA
BY:
Depu
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@