Monroe v. State

No. 93-403
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

DEBRA RUTH MONROE and MARVIN MONROE,
Plaintiffs and Appellants,
v.
THE STATE OF MONTANA,
Defendant and Respondent.

APPEAL FROM: District Court of the First Judicial ~istrict,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Kirk Bond (argued) and Carl A. Hatch, Small, Hatch,
Doubek & Pyfer, Helena, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
Clay R. Smith, solicitor (argued), Helena, Montana
Mike McGrath, County Attorney and Vicki Frazier,
Deputy County Attorney, Helena, Montana

Submitted: February 16, 1994
Decided: March 30, 1994
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Debra Ruth Monroe and Marvin Monroe seek a declaratory
judgment that § 87-2-102(2), MCA (1989), is void for vagueness.
The statute defines "resident" for purposes of issuing resident
fishing, hunting, and trapping licenses. The District Court for
the First Judicial District, Lewis and Clark County, upheld the
constitutionality of the statute. We affirm.
The issue is whether the term I1residentl' unconstitutionally
is
vague as defined in § 87-2-102(2), MCA (1989).
Montana has long assessed higher fees from non-residents than
from residents of Montana for licenses to fish, hunt, and trap in
this state. This fee differential has been upheld against
challenges based upon the Privileges and Immunities Clause of Art.
IV, § 2, and the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. Baldwin v. Montana
Fish and Game Commln. (1978), 436 U.S. 371, 56 L.Ed.2d 354, 98
S.Ct. 1852.
In January 1992, the State of Montana brought misdemeanor
charges in Lewis and Clark County Justice Court against Debra Ruth
Monroe and Marvin Monroe, alleging that they made false statements
in obtaining resident hunting licenses in violation of 5 87-2-205,
MCA. Marvin Monroe also faces related charges, including illegally
killing big game animals.
"Resident1' is defined, for purposes of § 87-2-205, MCA, at
§ 87-2-102, MCA. The Monroes moved to dismiss the charges against
them, arguing that 9 87-2-102(2), MCA (l989), which applies in this
case, provides no precise and clear definition of flresident.u The
Justice Court denied the motion to dismiss.
The Monroes then filed this declaratory judgment action in
District Court. The Justice Court granted a stay of the criminal
matter during the proceedings in District Court. In July 1993, the
District Court entered judgment in the State's favor and dissolved
the stay in Justice Court. The Monroes appeal. Because this is a
challenge to the facial validity of the statute, no facts are
before us concerning the Monroesf residency status.
The State argues in its brief that a declaratory judgment
proceeding may not be used to attack a decision in an ongoing
criminal prosecution. By order dated December 7, 1993, this Court
declined to consider that argument.

Is the term "resident" unconstitutionally vague as defined in
5 87-2-102(2), MCA (1989)?
Statutes are accorded a presumption of constitutionality; the
burden of proof is upon the party challenging a statute's constitu-
tionality. GBN, Inc. v. Montana Dept. of Revenue (1991), 249 Mont.
261, 265, 815 P.2d 595, 597. Any doubt is to be resolved in favor
of the statute. m, 815 P.2d at 597.
This Court has set forth the standard for facial vagueness as
"a statute ... is void on its face if it fails to give a person
of ordinary intelligence fair notice that his contemplated conduct
is forbidden by statute." City of Choteau v. Joslyn (1984), 208
Mont. 499, 505, 678 P.2d 665, 668 (citation omitted). However, the
fact that a statute is difficult to apply to some situations does
not render it unconstitutionally vague.
The strong presumptive validity that attaches to [a
legislative act] has led this Court to hold many times
that statutes are not automatically invalidated as vague
simply because difficulty is found in determining whether
certain marginal offenses fall within their language.
United States v. National Dairy Corp. (1963), 372 U.S. 29, 32, 83
S.Ct. 594, 597, 9 L.Ed.2d 561, 565. The complainant attacking a
statute's validity must prove that the statute is vague Isnotin the
sense that it requires a person to conform his conduct to an
imprecise but comprehensible normative standard, but rather in the
sense that no standard of conduct is specified at all." Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S.
489, 495, n. 7, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369 (citation
omitted).
Section 87-2-102, MCA (1989), provides:
Resident defined. In determining a resident for the
purpose of issuing resident fishing, hunting, and
trapping licenses, the following provisions shall apply:
...
(2) Any person who has been a resident of the state
of Montana, as defined in 1-1-215, for a period of 6
months immediately prior to making application for said
license shall be eligible to receive a resident hunting,
fishing, or trapping license.
Section 1-1-215, MCA, provides:
Residence--rules for determining. Every person has, in
law, a residence. In determining the place of residence
the following rules are to be observed:
(1) It is the place where one remains when not
called elsewhere for labor or other special or temporary
purpose and to which he returns in seasons of repose.
(2) There can only be one residence.
(3) A residence cannot be lost until another is
gained.
 (6) The residence can be changed only by the union
of act and intent.
I n 1991, 5 87-2-102(2), MCA, was revised so that it no longer
refers to 5 1-1-215, MCA, in defining Ilre~ident.~~
The Monroes
point to that revision in arguing that the 1989 statutory scheme is
unconstitutionally vague. They admit, however, that neither the
fact of the revision nor the testimony in support of the revision
(which they have cited in their brief) determines the constitution-
ality of the 1989 version of the statute. The fact that the 1991
revision made the statute clearer as to some applicants, such as
persons who spend part of each year in Montana, does not render the
1989 statute unconstitutionally vague.

We have not previously construed 5 1-1-215, MCA, in the
criminal law context, but the Monroes cite civil cases in which
this court has applied that statute. Section 87-2-202(2), MCA
(1989), in addition to incorporating 5 1-1-215, MCA, provides that

a person must meet the definition of ftresidentll
"for a period of 6
months immediately prior t o making application f o r [a license t o
fish, hunt, or trap.Ifl This six-month duration requirement
distinguishes this case from the cases interpreting (5 1-1-215, MCA,
in a civil context.
In Hoffman, the united States Supreme Court upheld a village
ordinance against a challenge of facial vagueness. The ordinance,
violation of which was punishable as a misdemeanor criminal
offense, required local businesses to obtain a license if they sold
any items "designed or marketed for use with illegal cannabis or
drugs.I7 The Court stated that a law challenged as unduly vague on
5
its face must be demonstrated to be impermissibly vague in & . of
Q

its applications. Hoffman, 455 U.S. at 497. The Court ruled that
the ordinance's clear applicability to at least some items sold by
the plaintiff rebutted the facial challenge. Hoffman, 455 U.S. at
500. Counsel for the Monroes agreed at oral argument before this
Court that the Hoffman standard applies in this case.
Section 87-2-102(2), MCA (1989), requires that, for a period
of six months immediately preceding the application for a resident
license to fish, hunt, or trap in Montana, the applicant must have
been a resident as defined in S 1-1-215, MCA. Under 3 1-1-215,
MCA, a residence is the place where one remains when not called
elsewhere for labor or other special or temporary purpose and to
which one returns in seasons of repose; a person has only one resi-
dence; a residence is not lost until another residence is gained;
and residence is established by the union of act and intent.
Certainly a person who came into Montana on the day before hunting
season, on his or her first trip to this state, and intending to
stay for only a week or two of hunting, would know that he or she
did not qualify as a resident under this standard.
We conclude that at least some applicants could determine
whether they qualified as residents of Montana under 3 87-2-102 (2),
MCA (1989). Therefore, the Monroes' facial challenge to the
statute must fail. We hold that the District Court did not err in
upholding the constitutionality of the statute. Affirmed.
We concur:

Justices
Justice Karla M. Gray specially concurring.

I concur in the result reached by the Court, but not in all
that is said in reaching that result. Specifically, I disagree
that the "impermissible in all its applications" language from
Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S.
489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (Hoffman) is to be read as
literally as the Court suggests. As a practical matter, such a
reading would make it impossible to succeed in any facial void for
vagueness challenge. Nor is such a literal reading supported by
the United States Supreme Court's discussion and application of
that language in Hoffman.
Indeed, in all candor, I hardly know what to make of the
Hoffman decision. Throughout the opinion in that case, the Supreme
Court appears to intermingle traditionally separate ''void for
vagueness on its facew and ''void for vagueness as appliedw
concepts. It does so by repeated references in its pronouncements,
and its application ofthose pronouncements, to factual and record-
based materials relating to Flipside's conduct, the notion of
examining a complainant's conduct before analyzing other
hypothetical applications of the law, and the like. In so doing,
the Supreme Court has blurred the rules governing the heretofore
purely legal issue involved in a facial void for vagueness
challenge. Given the posture in which the present case is before
this Court--that is, on the facial challenge and without a single
shred of fact or evidence of record--I conclude that Hoffman
provides little appropriate or applicable guidance here.
8
 I believe it is appropriate to begin with the Supreme Court's
oft-stated pronouncement of the critical element involved in
evaluating criminal statutes under a void for vagueness challenge,
noting its consistency with this Court's standard, as enunciated in
City of Choteau v. Joslyn (1984), 208 Mont. 499, 678 P.2d 665:
[Blecause we assume that man is free to steer between
lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity
to know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by not
providing fair warning.
Grayned v. City of Rockford (1972), 408 U.S. 104, 108, 92 S.Ct.
2294, 2298-99, 33 L.Ed.2d 222, 227. In short form, this element
might be referred to as "fair warning."
I conclude that adding the scienter, mens rea or mental state
element of the offense with which the Monroes were charged to the
two statutes relating to residency provides sufficient fair warning
of the conduct necessary to "stay on the right side of the law1'
and negate a successful facial challenge to the statutes at issue
here. I note that, in Hoffman, the Supreme Court specifically
referenced and applied its long-standing recognition of a scienter
requirement as mitigation of a statute's vagueness, "especially
with respect to the adequacy of notice to the complainant that his
conduct is proscribed." Hoffman, 455 U.S. at 499 (citations
omitted).
In the case before us, I agree that the "g~idelines'~
cont'ained
in 1-1-215, MCA, are insufficient on a stand-alone basis to
withstand a facial challenge for vagueness in the context of a
criminal proceeding. It is my view that the 6-months factor
9
Boyce Motor L i n e s v . United S t a t e s (19521, 342 U . S . 337, 340, 72

S.Ct. 3 2 9 , 330-32, 96 L.Ed. 367, 3 7 1 .

F o r t h e reasons stated h e r e i n , 3. join i n the result reached by

the Court: namely, that the Monroes' f a c i a l challenge on vagueness
grounds has not been sustained here.
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
The majority opinion has misconstrued the vagueness doctrine,
misapplied federal case law, and in the process, done severe damage
to the Due Process Clauses of the Montana and Federal
Constitutions.
The Monroes were charged with violating 5 87-2-205, MCA, by
providing a false statement in their application for wildlife
conservation licenses. The false statement they are accused of
making was that they were residents of Montana.
Section 87-2-102(2), MCA (1989), provided that residency for
purposes of determining entitlement to a resident hunting license
was determined under 5 1-1-215, MCA. The relevant part of that
statute provides:
Every person has, in law, a residence. In determining
the place of residence the following rules are to be
observed:
(1) It is the place where one remains when not
called elsewhere for labor or other special or temporary
purpose and to which he returns in seasons of repose.
What does that mean? Does it mean that if you live and work
in Texas for 11 months out of the year, but return to Montana for
one month during your annual vacation you are a Montana resident?
The statute obviously does not provide any objective criteria which
would put people with connections to Montana and some other state
on notice of whether they satisfied the residency requirement found
in the Fish and Game laws.
 We have previously held that a statute can violate the
Fourteenth Amendment of the United States Constitution, and
Article 11, Section 7, of the Montana Constitution, if it is
unconstitutionally vague. Statev. Woods (1986), 221 Mont. 17, 22, 716

The issue of qqvaguenessN
with regard to a statute or
ordinance can be raised in two different connotations:
(1) whether it is so vague the law is rendered void on
its face; or (2) if it is vague as applied in a
particular circumstance.
The general rule is that a statute or ordinance is
void on its face if it fails to give a person of ordinary
intelligence fair notice that his contemplated conduct is
forbidden by statute. United Statesv. Harriss (1954), 347 U.S.
612, 74 S.Ct. 808, 98 L.Ed. 989.
City of Choteau v. Joslyn (1984), 208 Mont. 499, 505, 678 P.2d 665, 668.

The United States Supreme Court elaborated on the rule set
forth in United States v. Harriss in its decision in the case of Bouie v. City

ofColumbia (1964), 378 U.S. 347, 84 S. Ct. 1697, 12 L Ed. 2d 894.
.

In that case, the U.S. Supreme Court gave the following explanation
of the vagueness doctrine, as it pertains to the Due Process Clause
of the United States Constitution:
The basic principle that a criminal statute must
give fair warning of the conduct that it makes a crime
has often been recognized by this Court. As was said in
United States v. Harriss, 347 U.S. 612, 617,

"The constitutional requirement of
definiteness is violated by a criminal statute that
fails to give a person of ordinary intelligence
fair notice that his contemplated conduct is
forbidden by the statute. The underlying principle
is that no man shall be held criminally responsible
for conduct which he could not reasonably
understand to be proscribed."
 Thus we have struck down a state criminal statute under
the Due Process Clause where it was not I 1 s u f f i c i e n t l y
explicit to inform those who are subject to it what
conduct on their part will render them liable to its
penalties." Connal&v. G e n e r a Z C o ~Co., 2 6 9 U . S . 3 8 5 , 391.
.
We have recognized in such cases that I1a statute which
either forbids or requires the doing of an act in terms
so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application,
violates the first essential of due process of law, ibid.,
and that "No one may be required at peril of life,
liberty or property to speculate as to the meaning of
penal statutes. All are entitled to be informed as to
what the State commands or forbids .
Lanzetta v. Nay Jersey,
306 U.S. 451, 453.

Bouie, 378 U.S. at 350-51 (footnote omitted).

If it is not sufficiently apparent from the murky language of
the residency statute itself that people of reasonable intelligence
would be unable to ascertain who is or is not a resident of Montana
under its terns, that conclusion necessarily follows from our prior
decisions. In fact, in McCarthy v. Montana Power Company ( 1 9 6 3 ) , 143

Mont. 1 3 4 , 387 P. 2d 438, we concluded that the statute relied on by
the State of Montana to establish residency in this case was not a
definition at all. Referring to the same statute, we held:
I* However, these are guidesfor intepretation, they are not a definition. This
is unavoidable, for as Mr. Justice HolLoway observed in
Carwile v. Jones, 38 Mont. 590, at page 602, 101 P. 153,
at page 158, 'it is as easy to understand the meaning of
*sresidence'Gsit is to understand the meaning of some of
the terms used in the rules for determining the meaning
o E "residence. Eveiy case must stand upon its own facts, and a decision
in any event must, of necessity, be the result of a more or less arbitrary
application of the rules of law to the facts presented ."

McCarthy, 387 P. 2d at 441-42 (quoting Kunesh v. C y of Great Falls (1957),
it

132 Mont. 285, 289-90, 317 P.2d 297, 299).
 If g 1-1-215, MCA, does not provide a definition of residence,
and if !j 87-2-102(2), MCA, did not, in 1989, have a definition of
residence other than by reference to 1-1-215, MCA, then what
notice did the Monroes have that when they filled out this
application for a resident hunting license they were violating the
law?
Arbitrary, after-the-fact applications ofthe criminal law are
exactly what the Due Process Clause, through the vagueness doctrine
is designed, in fairness, to avoid. In defining the values that
are offended by vague criminal statutes, the United States Supreme
Court has stated as follows:
Vague laws offend several important values. First,
because we assume that man is free to steer between
lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity
to know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by not
providing fair warning. Second, if arbitrary and
discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who a m l y them. A
vaaue law imvennissiblv deleaates basic policv matters to
policemen. iudcres. and iuries for resolution on an ad hoc
and subi ective basis, with the attendant danser of
arbitrary and discriminatom a~~lication. [Emphasis
added] .
Grayned v. City o Rocwrd (1972), 408 U. S . 1 0 4 , 108-09, 92
f S. Ct. 2294,

2298-99, 33 L. Ed. 2d 222, 227-28 (footnotes omitted).
According to our own prior decisions, the residency statute in
this case requires the sort of ad hoc, arbitrary, judicial

application that the Due Process Clause clearly prohibits according
to the decisions of the United States Supreme Court. That
observation should resolve the issue raised by the Monroes on
appeal to this Court.
However, the majority has inexplicably added a new element to
the vagueness doctrine. The majority concludes that if anyone
would understand they are not a resident under this statute, then
it cannot be unconstitutionally vague. In other words, the
majority has eliminated the former requirement that a statute give
"a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by statute,'I and instead,
substituted the requirement that if one out of 100 people would
understand that his or her conduct is prohibited, it makes no
difference that the other 99 people of average intelligence do not
have the foggiest notion about what the statute prohibits. In
support of this unprecedented conclusion, the majority cites V l a e
ilg

f sae sae, .
o H o b a n E t t s v. Ttae Flipside, HoffmanE t t s Inc. ( 198 2 ) , 4 5 5 u s . 4 89 , 102
S. Ct. 1186, 71 L. Ed. 2d 362. However, in doing so, the majority
has taken language from Hojjhan out of context and misapplied its

holding.
In Hoffman, the defendant was charged with violating an

ordinance which required that he obtain a license if he sold any
items that were "'designed or marketed for use with illegal
cannabis or drugs .... 'If Hofhan, 4 5 5 U.S. at 492. In his

business, he sold a variety of merchandise, including Ivphonographic
records, smoking accessories, novelty devices, and jewelry .... II

Hojjinan, 455 U . S . at 491. The Circuit Court of Appeals concluded
that the statute was unconstitutionally vague on its face because
of its application to certain items sold by defendant, such as
ordinary pipes or paper clips. The Supreme Court discussed the
requirement that the statute be impermissibly vague in all of its
applications in the context of whether a plaintiff could challenge
the constitutionality of the statute if at least some of
conduct was clearly proscribed by the statute. It concluded that
he could not. The Supreme Court said nothing about a requirement
that the statute be vague with regard to every conceivable person
to whom it could be applied. In explaining its holding, the Court
stated as follows:
The ordinance requires Flipside to obtain a license
if it sells "any items, effect, paraphernalia, accessory
or thing which is designed or marketed for use with
illegal cannabis or drugs, as defined by the Illinois
Revised Statutes." Flipside expresses no uncertainty
about which drugs this description encompasses; as the
District Court noted, 485 F.Supp, at 406, Illinois law
clearly defines cannabis and numerous other controlled
drugs, including cocaine. Ill. Rev. Stat., ch. 56%,
11703 and 1102(g) (1980). On the other hand, the words
nritems,effect , paraphernalia, accessory or thing" do not
identify the type of merchandise that the village desires
to regulate. Flipside's challenge thus appropriately
focuses on the language "designed or marketed for use."
Under either the "designed for usen or 'marketed for use1*
standard, we conclude that at least some of the items
sold by Flipside are covered. Thus, Flipside's facial
challenge is unavailing.
Hoffman, 455 U.S. at 500 (footnote omitted).
It is clear from the quoted passage, that when discussing "all
of its applications" the Supreme Court was referring to all of the
statute's applications to that defendant's conduct.
 The residency requirement under which the Monroes are being
prosecuted was so vague that many county attorneys have refused to
prosecute based on the criteria that it establishes, and the former
head of the Department of Fish, Wildlife, and Parks asked that it
be amended to provide some workable guidelines in the future. In
his testimony before the Legislature in support of the proposed
amendment to 5 87-2-102(2), MCA, which became effective on July 1,
1991, K. L Cool testified as follows:
.
Senate Bill 298 consolidates and clarifies the elements
necessary to determine legal residency for purposes of
obtaining hunting, fishing and trapping licenses. The
residency requirements, as presently written, are not
specific enough to effectively support criminal
prosecutions and, in fact, are sometimes confusing to
sportsmen because the requirements are vague. County
attorneys prosecuting residency cases in courts have
frequently found the current residency statutes
unworkable. Some county attorneys have told us they will
no longer prosecute residency cases until Montana has a
workable law. This bill will not change who qualifies as
a resident, but will make specific and clarify the
standards for determining residency.
Simply stated, the current statute defines a resident as
a person who has moved to Montana and intends to make his
or her home here. The only specific requirement is that
a person must be a resident 6 months prior to being
eligible to purchase a resident hunting, fishing or
trapping license. With this vague and general
definition, it is understandable that county attorneys
have difficulty prosecuting an individual who owns
property and lives part of the year in Montana, but earns
his living and pays state income taxes in another state.
Mr. Cool's testimony, in combination with our previous
decisions, including McCarthy, are perfect illustrations of the kind

of arbitrary applications that resulted from the vague language
used to define a resident in Montana's hunting, trapping, and
fishing license laws. Because of uncertainty about the meaning of
the statute, prosecutions under the statute are arbitrary and have
historically depended on the county where a violation is suspected.
Even if charges are brought, successful prosecution depends on an
arbitrary case-by-case application of the statute in the judicial
system. Since this is the kind of unpredictability and unfairness
that the vagueness doctrine is intended to prohibit, I would
conclude that the statute pursuant to which the Monroes have been
prosecuted was unconstitutionally vague in violation of the due
process clauses in the Montana and Federal Constitutions and would
reverse the judgment of the District Court.
For these reasons, I dissent from the majority opinion.

Justice William E. Hunt, Sr:, and Justice James C. Nelson join in
the foregoing dissenting opinion.