NO. 95-402
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
WILLIAM E. "BILL" GATTS,
Defendant and Appellant
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Palmer Hoovestal, Attorney at Law, Helena,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Paul D. Johnson, Ass't Attorney General,
Helena, Montana
Valerie Wilson, Jefferson County Attorney,
Deborah Butler, Deputy Jefferson County Attorney,
Boulder, Montana
For Amicus Curiae:
John M. Morrison; Meloy & Morrison, Helena,
Montana (for Richard and David Fertterer)
'y&
Submitted on Briefs: April 11, 1996
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
William E. "Bill" Gatts (Gatts) appeals from the final
judgment entered by the Fifth Judicial District Court, Jefferson
county, on his guilty pleas to the felony offense of criminal
mischief and five misdemeanor offenses, having reserved the right
to appeal the court's denial of his motion to dismiss the felony
criminal mischief charge. We reverse and remand.
We restate the dispositive issue on appeal as follows:
Does § 87-l-102(1), MCA (1993), limit penalties for fish
and game-related violations to those provided in Title 87
and, thereby, preclude charging Gatts with the offense of
felony criminal mischief under § 45-6-101, MCA?
The underlying "facts" relating to this case are taken from
the affidavit in support of the State of Montana's (State) motion
for leave to file an information. According to the affidavit,
Frank Rasmussen (Rasmussen) and Gatts placed bear baits in various
locations in the Whitetail Pass area of Jefferson County, Montana,
during the summer of 1994. They checked the bear baits on a
frequent basis and, when it appeared that a bear had been at the
location, they loosed dogs with radio collars after the bear's
scent. When the dogs located a bear, Rasmussen or Gatts shot it.
At least four bears were taken in this manner from June 1 through
August 17, 1994, after the bear hunting season in the area had
closed.
On the basis of the State's motion and supporting affidavit,
the District Court authorized the filing of an information charging
Rasmussen and Gatts with seven criminal offenses. As subsequently
2
amended, Gatts was charged with five misdemeanor offenses contained
in Title 87, Fish and Wildlife, of the Montana Code Annotated
(MCA) : unlawful use of dogs for chasing or hunting bear, in
violation of § 87-3-124, MCA; hunting bear during closed season, in
violation of § 87-3-104, MCA; using devices (bait lures) to entice
bear, in violation of 5 87-3-101(3), MCA; possession of parts of
unlawfully killed bear, in violation of § 87-3-112(Z), MCA; and
failure to report harvest of black bear, in violation of § 87-l-
304, MCA, and administrative regulations thereunder. In addition,
Gatts was charged with felony criminal mischief (common scheme) in
violation of § 45-6-101, MCA, in that he knowingly or purposely
injured, damaged or destroyed at least four black bears, alleged to
be public property; alternatively, Gatts was charged with felony
criminal mischief (common scheme) by accountability in violation of
§§ 45-6-101, 45-2-301 and 45-z-302, MCA, for soliciting, aiding,
abetting, agreeing or attempting to aid Rasmussen in the planning
or commission of the felony criminal mischief.
Gatts pleaded not guilty to all of the charges and
subsequently moved to dismiss the felony criminal mischief charge
on the basis that the charge was precluded by the plain language of
§ 87-l-102(1), MCA (1993). The State responded that this Court had
held to the contrary in State v. Fertterer (1992), 255 Mont. 73,
841 P.2d 467, and that Fertterer was dispositive. The District
Court denied Gatts' motion.
Thereafter, Gatts and the State entered into a plea agreement.
Pursuant to the agreement, Gatts entered guilty pleas to felony
3
criminal mischief and the five misdemeanor offenses, reserving the
right to appeal the denial of his motion to dismiss the felony
criminal mischief charge. In exchange for the guilty pleas, the
State recommended that the "by accountability" criminal mischief
charge be dismissed and that all jail and prison time be suspended.
The District Court deferred imposition of sentence for three
years subject to certain terms and conditions, including suspension
of Gatts' hunting, fishing and trapping privileges for three years,
and joint and several liability with Rasmussen for $2,000. Gatts
appeals.
Does § 87-l-102(1), MCA (19931, limit penalties for fish
and game-related violations to those provided in Title 87
and, thereby, preclude charging Gatts with the offense of
felony criminal mischief under § 45-6-101, MCA?
In denying Gatts' motion to dismiss, the District Court
implicitly concluded that the felony criminal mischief charge was
not precluded by § 87-l-102(1), MCA (1993). We review a trial
court's denial of a motion to dismiss for abuse of discretion.
State v. Fuller (Mont. 1996), 915 P.2d 809, 811, 53 St.Rep. 325,
326 (citations omitted). Where the denial is based on a legal
conclusion, however, we first review that conclusion to determine
whether it is correct. See Fuller, 915 P.2d at 811.
Because our analysis of 5 87-l-102(1), MCA (19931, necessarily
falls within the context of Title 87, we begin with an overview of
that Title of the Montana Code Annotated, entitled Fish and
Wildlife. Title 87 constitutes the legislature's enactment of a
comprehensive and wide-ranging body of law regarding fishing,
hunting and trapping in Montana. It encompasses and controls such
4
diverse fish and game-related matters as licensing requirements,
regulation of game farms, cooperative agreements regarding
federally owned land, and criminal penalties for activities
relating to fish and game. See, e.s., §§ 87-2-103, 87-4-407, 87-l-
703 and 87-l-102, MCA. To this extent, Title 87 is similar to
other titles of the MCA which are comprised of various regulatory
statutes, and corresponding duties and powers, relating to a
specific subject matter.
With regard to criminal penalties and related enforcement
matters, however, the provisions of Title 87 represent a
significant departure from those contained in most other titles--
with the exception of Title 45, entitled Crimes--of the MCA. Both
misdemeanor and felony fish and game offenses are contained in
Title 87. See §§ 87-l-102 and 87-3-118, MCA. The Department of
Fish, Wildlife, and Parks (Department) specifically is authorized
to "enforce all the laws of the state respecting the protection,
preservation, and propagation of fish, game, fur-bearing animals,
and game and nongame birds within the state." Section 87-l-201(2),
MCA. In discharging that duty, the Department possesses all powers
necessary "to bring actions in the proper courts of this state for
the enforcement of the fish and game laws. . .'I Section 87-l-
201(l), MCA. Costs associated with prosecutions of fish and game
violations, such as the costs of boarding prisoners, may be paid
from fish and game moneys in the state special revenue fund to the
county treasurer in the county where the costs were incurred.
Section 87-l-104, MCA. These provisions, while not necessarily
5
unprecedented in other titles of the MCA, are certainly uncommon.
Other provisions contained in Title 87 also depart
significantly from those generally contained in other titles. For
example, the Department is a "criminal justice agency" for purposes
of obtaining technical assistance and support services provided by
the board of crime control. Section 87-l-502(7), MCA. In
addition, authorized officers of the Department are expressly
granted peace officer status with concomitant powers of search,
seizure and arrest. Section 87-l-502(7) (a), MCA. State fish and
game wardens may undertake certain searches, without a warrant, and
may arrest fish and game misdemeanants. Sections 87-l-506(2) and
(6), MCA.
Against this backdrop regarding the encompassing nature of
Title 87 and the enforcement authority of the Department and its
officers and wardens thereunder, we turn to § 87-l-102(1), MCA
(1993) I the proper interpretation of which is at issue in the
present case. There is no question but that § 87-l-102(1), MCA
(1993), generally provides the sentencing parameters for fish and
game-related violations. The precise issue before us, however, is
whether that statute limits penalties for fish and game-related
violations to those provided in Title 87 and, thereby, precludes
charging, convicting and sentencing Gatts for felony criminal
mischief under 5 45-6-101, MCA. We conclude that it does.
Section 87-l-102(1), MCA (1993), provides in pertinent part:
A person who purposely or knowingly violates any
provision of this title, anv other state law uertaininq
to fish and qame, or the orders or rules of the [fish,
wildlife, and parks] commission or department is guilty
6
of a misdemeanor, exceut if a felony is exwresslv
provided by law, 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, unless a different
punishment is exoresslv provided by law for the
violation.
(Emphasis added.) Our role in construing statutes is clear: we are
"to ascertain and declare what is in terms or in substance
contained therein, not to insert what has been omitted or to omit
what has been inserted." Section l-2-101, MCA. The intention of
the legislature is to be pursued. Section l-2-102, MCA. Where we
can determine that intent from the plain meaning of the words used
in a statute, we may not go further and apply any other means of
interpretation. Clarke v. Massey (1995), 271 Mont. 412, 416, 897
P.2d 1085, 1088 (citation omitted).
At the outset, it is clear that the first and third clauses of
the statute--referencing violations of any provision of Title 87 or
of orders or rules of the commission or department--refer
specifically and only to what commonly may be called fish and game
violations. "Provisions of this title" are statutes contained
within Title 87, entitled Fish and Wildlife, which is the
comprehensive statutory body of law enacted by the legislature to
regulate fishing, hunting and trapping in Montana. Likewise, the
phrase "orders or rules of the commission or department" refers to
orders or rules of the Fish, Wildlife, and Parks Commission or the
Department, both of which are statutorily charged with regulating
matters relating to fish and wildlife under Title 87. a, e.q.,
§§ 87-l-101 and 87-l-102, MCA.
The second clause of § 87-l-102(1), MCA (1993), references
7
"any other state law pertaining to fish and game[,]" and this
language is one of the focal points of the dispute presently before
us. As noted above, we must pursue the legislative intent of a
statute by looking initially at the plain meaning of the statutory
language. Clarke, 897 P.2d at 1088. In the search for plain
meaning, we must reasonably and logically interpret that language,
giving words their usual and ordinary meaning. Werre v. David
(1996), 275 Mont. 376, 385, 913 P.2d 625, 631 (citations omitted).
The word "pertaining" is commonly understood to mean, and
defined as, "having reference to." Webster's Ninth New Collegiate
Dictionary 878 (1988). Thus, the 5 87-l-102(1), MCA (1993),
language "any other state law pertaining to fish and game" clearly
means that other laws specifically referring to fish and game may
be found elsewhere in the MCA and, indeed, such other fish and game
laws do exist. For example, chapter 47 of Title 37, MCA, addresses
outfitters and guides and, therefore, contains other state statutes
pertaininq m fish and game. Nothing in the legislature's use of
"pertaining to fish and game" suggests an intent to authorize
charging and sentencing a fish and game-related violation or
offense under § 45-6-101, MCA. We conclude, therefore, that the
plain language of these three initial clauses of § 87-l-102(1), MCA
(1993), manifests the legislature's intent that § 87-l-102(1), MCA
(1993), encompass and provide the sentencing for all fish and game
violations.
This is not to say, of course, that those clauses--with the
addition of the "misdemeanor" language immediately following them
8
in § 87-l-102(1), MCA (1993) --limit all fish and game violations to
misdemeanors. The statute specifically goes on to authorize felony
charges and sentences for fish and game violations where "expressly
provided by law," and the legislature has expressly so provided.
Under § 87-3-118, MCA, it is a felony offense to purposely or
knowingly sell unlawfully taken wildlife or to purposely or
knowingly possess unlawfully taken wildlife having a value of more
than $1,000. A conviction of either of these offenses can result
in imprisonment for up to 5 years, a fine of up to $50,000, or
both; in addition, the hunting, fishing and trapping permit and
license privileges of a person convicted of these felonies must be
revoked for a minimum of 3 years, with a maximum lifetime
revocation. Section 87-3-118, MCA. The enactment in 1991 of these
felony fish and game offenses as part of the legislature's
comprehensive statutory program encompassing fish and game matters
is a clear and express indication of legislative intent regarding
which fish and game-related conduct may be subject to felony
charges in Montana. Had the legislature intended to authorize
additional felony fish and game offenses, it could and would have
done so; it did not. Thus, faced with such a comprehensive body of
law on fish and game matters, and such clear legislative intent to
limit felony charges for fish and game-related conduct to those
expressly set forth in 5 87-3-118, MCA, we cannot properly
interpret the "except if a felony is expressly provided by law"
language in § 87-l-102(1), MCA (1993), to permit additional or
different felony charges for fish and game-related conduct under
9
Title 45, MCA. See 5s l-2-101 and l-2-102, MCA.
The final portion of 5 87-l-102(1), MCA (1993), which requires
our attention is the language following the "misdemeanor" and
"except" language: "unless a different punishment is expressly
provided by law for the violation." The State contends that this
language authorizes a charge, conviction and sentence for criminal
mischief under § 45-6-101, MCA, as different punishment expressly
provided by law for the violation. We disagree.
First, the language must be read in the context of both the
comprehensive body of statutory law regulating all manner of fish
and game matters contained in Title 87 and the language which
precedes it in § 87-l-102(1), MCA (1993), which we have discussed
above. The "unless" language, like the "felony" language, refers
specifically to fish and game violations and laws as set forth in
Title 87. In this regard, subsections (2) (a) through (2) (f) of 5
87-l-102, MCA (1993), expressly provide punishments for certain
misdemeanor fish and game violations which differ from the general
misdemeanor penalties provided in § 87-l-102(1), MCA (1993)
Moreover, § 87-l-102(5), MCA (1993), also expressly provides
for the penalties provided therein to be cumulative to any
penalties provided in Title 37, chapter 47, and Title 87, chapter
4, part 2. The enactment of 5 87-l-102(5), MCA (1993), which
expressly references statutes pertaining to fish and game which are
outside the confines of Title 87, further reflects legislative
intent that § 87-l-102(1), MCA (1993), limits the penalties
available for fish and game violations.
10
Section 87-l-109, MCA (1993), also expressly provides for a
different punishment for fish and game-related conduct pursuant to
the "unless" language of 5 87-l-102(1), MCA (1993). Under § 87-l-
109, MCA (1993), any violation of Title 87 "is an offense for
purposes of the crimes of attempt, solicitation, and conspiracy set
out in Title 45, chapter 4." Like § 87-l-102(5), MCA (1993), this
statute specifically refers out of Title 87. Importantly though,
and unlike § 87-l-102(5), MCA (1993), § 87-l-109, MCA (1993),
expressly renders fish and game-related conduct subject to specific
provisions of Title 45. Had the legislature intended to authorize
the charging and punishment of fish and game-related conduct in
other regards outside of Title 87--for example, pursuant to the
criminal mischief statute--it could and would have done so here; it
did not. Instead, the legislature expressly provided, within the
parameters of Title 87, for the charging of fish and game-related
conduct pursuant to three--but only three--statutes contained in
Title 45, namely §§ 45-4-101 through 45-4-103, MCA. Thus, the
enactment of § 87-l-109, MCA (1993), constitutes an additional
indication of legislative intent to limit penalties for fish and
game-related conduct to those contained or expressly provided for
in Title 87.
We conclude that, by its plain language, § 87-l-102(1), MCA
(1993), limits penalties for fish and game-related conduct to those
provided for in Title 87. Having so concluded, we may not go
further and apply any other means of interpretation such as
legislative history. See Clarke, 897 P.2d at 1088. We do note in
11
passing, however, that the legislative history of 1991 Mont. LOWS
Chapter 329, in which the felony fish and game offenses were
created, appears to clarify that the Department understood that
felony charges for fish and game-related conduct could be brought
only within the parameters of Title 87.
The State advances a number of arguments in opposition to the
conclusion we have reached. It argues initially that Fertterer is
correct and, in addition, that Fertterer is controlling authority
which should be reaffirmed because of the fundamental importance of
stare decisis to the rule of law. We disagree with both
propositions.
Based on an undercover investigation of a large-scale poaching
operation, the Fertterers were charged with numerous misdemeanor
game violations under Title 87 and felony criminal mischief
pursuant to 5 45-6-101, MCA; the criminal mischief charges were
premised on the Fertterers' unlawful killing of elk, deer, antelope
and a mountain lion. They were convicted of several Title 87
misdemeanors and two counts of felony criminal mischief.
Fertterer, 841 P.2d at 468-69.
The Fertterers raised a number of issues on appeal. Among
other things, they argued that 5 87-l-102(1), MCA (1989), precluded
the felony criminal mischief charge under Title 45. They also
contended that wild animals are not property or public property in
Montana for purposes of the criminal mischief charge. Fertterer,
841 P.2d at 469.
Insofar as it is relevant to the case presently before us,
12
this Court split by a four to three vote on the issue of whether
the 1989 version of Title 87, MCA, provided the exclusive remedy
for the illegal taking of game, with the majority holding that it
did not. Fertterer, 841 P.2d at 472. The statutory analysis
advanced by the dissent produced the opposite conclusion: that,
under the statutes in effect at the time, it was improper to charge
the Fertterers with what the Court agreed were felony fish and game
violations. Fertterer, 841 P.2d at 475 (Gray, J., dissenting).
That conclusion, in the view of the dissent, was significantly
buttressed by the 1991 legislature's amendments to Title 87.
Fertterer, 841 P.2d at 475-76 (Gray, J., dissenting).
The 1991 amendments were not before us in Fertterer, but are
before us in this case which arises under the 1993 version of Title
87. Therefore, Fertterer may not be entirely on point and it may
be unnecessary, from a purely technical standpoint, to overrule
that decision or address the State's stare decisis argument in the
context of doing so. It is clear, however, given our analysis of
5 87-l-102(1), MCA (1993), above, that allowing Fertterer to stand
would result in apparently inconsistent lines of authority from a
rationale perspective, if not from the perspective of analyzing
precisely identical statutes. Thus, we turn to the State's
argument that Fertterer should be reaffirmed because of the
importance of stare decisis.
Stare decisis means "Itlo abide by, or adhere to, decided
cases." Black's Law Dictionary 1406 (6th ed. 1990). It is of
fundamental and central importance to the rule of law. Patterson
13
v. McLean Credit Union (19891, 491 U.S. 164, 172, 109 S.Ct. 2363,
2370, 105 L.Ed.2d 132, 147 (citation omitted). Indeed, there is no
question but that "[vlery weighty considerations underlie the
principle that courts should not lightly overrule past decisions."
Moragne v. States Marine Lines (1970), 398 U.S. 375, 403, 90 S.Ct.
1772, 1789, 26 L.Ed.2d 339, 358. We have held, in this regard,
that "stare decisis is a fundamental doctrine which reflects our
concerns for stability, predictability and equal treatment. .I'
Formicove, Inc. v. BurlingtonNorthern, Inc. (1983), 207 Mont. 189,
194, 6'73 P.2d 469, 472.
Court decisions are not sacrosanct, however, and stare decisis
is "not a mechanical formula of adherence to the latest
decision[.l" Patterson, 491 U.S. at 172. Indeed, we have held
that stare decisis does not require us to follow a manifestly wrong
decision. Formicove, 673 P.2d at 472. While the State concedes
this point, it urges us to follow United States Supreme Court
authority and determine that the burden on a party urging a
departure from stare decisis is particularly heavy "where the Court
is asked to overrule a point of statutory construction." See
Patterson, 491 U.S. at 172.
We decline to do so. First, we observe that our holding in
Formicove--that we are not bound to follow a manifestly wrong
decision--was made in the context of a statutory construction case.
See Formicove, 673 P.2d at 472. More importantly, however, the
doctrine's strength is not dependent on the creation of artificial
differences in burdens of proof or persuasion. Rather, it depends
14
on appellate courts' continued recognition of, and commitment to,
the importance of stare decisis in a society governed by the rule
of law. Our commitment to the doctrine, and to the concerns on
which it is grounded, continues unabated.
For the reasons expressed by the dissent in Fertterer and more
fully set forth above in the context of the present case, however,
we conclude that the holding in Fertterer that Title 87 does not
provide the exclusive remedy for fish and game violations was
manifestly wrong. That portion of Fertterer is, therefore,
expressly overruled. Based on our resolution of that issue herein,
we need not address or overrule the holdings in Fertterer-or the
State's and amicus curiae's arguments here--which relate to wild
animals as "public property" and "property" within the purview of
§§ 45-6-101 and 45-2-101, MCA, respectively.
The State also argues, and cites to numerous cases involving,
the long-standing rule in Montana that the prosecutor has
discretion to determine which offense to charge when conduct
violates more than one statute, as long as the offenses have
differing elements or require different proof. a, e.s., State v.
Smaage (Mont. 1996), 915 P.2d 192, 194, 53 St.Rep. 294, 295; State
v. Arlington (19941, 265 Mont. 127, 165, 875 P.2d 307, 330; State
v. Brady (1991), 249 Mont. 290, 295-96, 816 P.2d 413, 416; State v.
Booke (19781, 178 Mont. 225, 230, 583 P.2d 405, 408. It points out
that this rule applies even when one of the offenses is a felony of
more general application than a misdemeanor more specifically
addressing the conduct. See, e.s., Smaase, 915 P.2d at 194-95;
15
Bradv, 816 P.2d at 416.
The prosecutorial discretion and general versus specific cases
are not directly implicated here, however. Those principles are
applicable where several charges are available as a matter of law.
Here, we have concluded that the legislature intended otherwise
with regard to fish and game violations. In other words, in
enacting § 87-l-102(1), MCA (1993), the legislature intended to
preclude fish and game violations from being charged under Title
45, except where expressly authorized in Title 87. In this regard,
the State's citation to State ex rel. Fletcher v. District Court
(1993), 260 Mont. 410, 859 P.2d 992, is, in part, appropriate. In
that case, we addressed the authority and responsibility of county
attorneys generally, but noted that a prosecutor's broad
discretionary powers "are not without limit." Fletcher, 859 P.2d
at 995. We observed that a prosecutor's control of a criminal
action is "'limited only by such restrictions as the law imposes."'
Fletcher, 859 P.2d at 995 (citation omitted). By virtue of our
conclusion above that the felony criminal mischief charge is
precluded by 5 87-l-102(1), MCA (1993), the present case imposes
one of those exceedingly rare legal restrictions on prosecutorial
discretion generally referenced in Fletcher.
Nor is the State correct in asserting that Smaaqe is "directly
pertinent to the central issue on appeal" in the present case.
Smaaqe involved a criminal endangerment charge and conviction in
which an issue on appeal was whether the defendant should have been
charged under the driving under the influence of alcohol statutes.
16
Smaaqe, 915 P.2d at 193. We focused on the principles governing
alternative charging statutes, observing that when no clear and
manifest legislative intent to the contrary exists and different
proof is required under alternative statutes, the more specific
statutory violation need not be charged. Smaaqe, 915 P.2d at 194.
We examined the legislative history of the criminal endangerment
statute and determined that it indicated no clear and manifest
legislative intent to prohibit the use of the criminal endangerment
statute in drinking and driving situations. Smaaqe, 915 P.2d at
194.
To the extent Smaase has any application to the present case,
that application is limited to our focus on the question of
legislative intent. While we concluded in Smaaqe that there was no
clear intent to prohibit the use of the criminal endangerment
statute in drinking and driving situations, we have concluded in
this case that the legislature clearly intended § 87-l-102(1), MCA
(19931, to preclude charging Gatts with criminal mischief under
Title 45.
The State also argues that State v. Duncan (1979), 181 Mont.
382, 593 P.2d 1026, and State v. Moore (1977), 174 Mont. 292, 570
P.2d 580, both of which involved an offense defined in the Crimes
title of the Montana statutes and an offense defined in another
title, mandate a conclusion that prosecutorial discretion controls
even when the statute defining the less serious offense is
contained in a comprehensive body of law on a particular subject.
We disagree.
17
In Duncan, the State charged the defendant with four criminal
offenses after investigations by both the federal Securities
Exchange Commission and the state Auditor's Office; two of the
charged offenses were set forth in the Crimes title, and two were
contained in the Securities Regulation title, of the Revised Codes
of Montana. Duncan, 593 P.2d at 1028-29. The defendant moved to
dismiss. The district court dismissed one of the charges in the
Crimes title before trial and, after convicting the defendant of
deceptive practices in violation of 5 94-6-307, RCM (1947),
dismissed the charge of fraudulent securities practices as defined
in § 15-2005(l), RCM (1947). Duncan, 593 P.2d at 1029. The
defendant appealed.
After concluding that sufficient evidence supported the
defendant's conviction of the offense of deceptive practices, we
briefly addressed his contention that he should have been charged
with the specific fraudulent securities practices offense rather
than the general deceptive practices offense contained in the
Crimes title. Duncan, 593 P.2d at 1034. We observed that we
previously had declined to apply in criminal cases the "specific
controls over the general" rule of statutory construction utilized
in civil cases. We also quoted from State v. Lagerquist (1968),
152 Mont. 21, 30-31, 445 P.2d 910, 915, for the proposition that
when the legislature provides for a course of action through more
than one statute, the prosecution may choose either applicable law.
Duncan, 593 P.2d at 1034. Noting that the specific securities
offense had, indeed, been charged and later dismissed by the
18
district court after conviction on the deceptive practices charge,
we concluded that the defendant had been properly charged and
convicted. Duncan, 593 P.2d at 1034.
Duncan is inapplicable here. First, the question of whether
the Securities Regulation title precluded a charge under the Crimes
title for the defendant's acts was neither raised nor addressed in
Duncan. Equally important, however, is the Laserauist language,
quoted in Duncan, that the prosecution has charging discretion when
the legislature provides for charges under several statutes. See
Duncan, 593 P.2d at 1034. As discussed above, the legislature has
not so provided in this case. Rather, the legislature has provided
that all fish and game violations be prosecuted pursuant to the
provisions of Title 87. Thus, Duncan is not on point.
Moore more closely resembles the case presently before us.
There, the defendant was charged with felony deceptive practices
under the Criminal Code and moved to dismiss on the basis that he
was charged under the wrong statute; in the defendant's view, he
should have been charged with misdemeanor welfare fraud under the
Welfare Code. Moore, 570 P.2d at 582. The district court
dismissed the information and the State appealed.
We first addressed the two statutes and concluded that the
specific Welfare Code offense did not preclude prosecution for the
acts under the more general Criminal Code, provided the facts
supported a charge under either statute; in doing so, we relied on
our previous refusal to apply the specific versus general rule of
statutory construction in the criminal context and on Laserauist.
19
Moore, 570 P.2d at 582-84. In particular, we observed that
Laseruuist permitted prosecution "under either applicable statute
absent a clear and manifest legislative intent to the contrary."
Moore, 570 P.2d at 584.
We then addressed, in one paragraph, the defendant's
contention that Laqerauist was distinguishable because the
comprehensive nature of the Welfare Code indicated a legislative
intent to preempt the entire field of welfare fraud to the
exclusion of statutes contained in the Criminal Code. Moore, 570
P.2d at 585. We observed that the misdemeanor statute at issue--
and, indeed, the entirety of the Welfare Code--covered only one
species of welfare fraud and did not encompass such welfare-related
offenses as embezzlement of welfare funds or forgery of welfare
warrants. Moore, 570 P.2d at 585. On that basis, we did not
perceive a legislative intent to preempt Criminal Code statutes by
enactment of the Welfare Code. Moore
-I 570 P.2d at 585.
Thus, the State is correct in contending here that, in Moore,
we rejected the defendant's contention that the Welfare Code
constituted a comprehensive body of law which precluded application
of Criminal Code statutes. However, Title 87 in its entirety and
§ 87-l-102(1), MCA (1993), in particular, differ markedly from the
titles and statutes at issue in Moore. Among other things, for
example, the Welfare Code at issue in Moore vested no specific law
enforcement authority in the department of public welfare created
therein, or in any of its employees, and did not render the
department a criminal justice agency for any purpose. Moreover,
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the Welfare Code expressly defined only one misdemeanor offense--
the one at issue in Moore--and otherwise contained only a general
penalty statute making any knowing violation of the Code a
misdemeanor. Furthermore, unlike the penalty statute at issue in
the present case, the general penalty statute in the Moore Welfare
Code did not contain other language bringing all welfare-related
violations within its purview. For these reasons, it was
appropriate for us to conclude in Moore that neither the Welfare
Code nor the general penalty statute contained therein evidenced
legislative intent to preempt application oft statutes in the
Criminal Code. As discussed in detail above, Title 87 does
evidence a legislative intent to occupy the field regarding fish
and game violations and, therefore, to preclude charges under Title
45. Therefore, Moore is inapposite here.
We hold that the District Court erred in concluding that § 87-
1-102(1), MCA (1993), did not preclude charging Gatts with the
offense of felony criminal mischief under § 45-6-101, MCA. On that
basis, we further hold that the District Court abused its
discretion in denying Gatts' motion to dismiss that charge.
Reversed and remanded for entry of an order vacating Gatts'
conviction of the offense of felony criminal mischief and
dismissing that charge, and for reconsideration of Gatts' sentence
in light of that dismissal.
we concur:
Chief Justice
Justices
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Justice W. William Leaphart, dissenting
I dissent. The Court holds that § 87-l-102(1), MCA (1993),
provides the exclusive punishment for violation of Title 87 or of
any fish and game laws in the State of Montana. I fail to see a
clear and manifest legislative intent that Title 87 or the language
of § 87-l-102(1), MCA, sets forth exclusive remedies. The statute
states that a person who violates Title 87 or any other law
relating to fish and game is guilty of a misdemeanor unless a
different punishment is expressly provided by law for the
violation. It is axiomatic that conduct can violate more than one
statute or title to the Montana Code. A declaration that, to the
extent such conduct violates the fish and game laws, it is a
misdemeanor, is not the same as saying that such conduct cannot
also constitute a violation of criminal statutes in Title 45.
Unless there is a clear manifestation of legislative intent to the
contrary, the prosecutor can charge under either applicable
statute. State v. Lagerquist (1968), 152 Mont. 21, 31, 445 P.2d
910, 915; State v. Evans (19691, 153 Mont. 303, 306, 456 P.2d 842,
844. The prosecutor has discretion to determine the charge when
the conduct violates more than one statute as long as the statutes
have differing elements. This rule applies even when one of the
statutes is a felony of more general application than a misdemeanor
statute which more specifically addresses the conduct and even if
the misdemeanor statute is part of a comprehensive body of law on
the particular subject. State v. Duncan (1979), 181 Mont. 382,
395-96, 593 P.2d 1026, 1034.
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By way of analogy, even though Title 61 (Motor Vehicles), like
Title 87 (Fish & Wildlife), comprehensively provides that "it is a
misdemeanor for a person to violate any of the provisions of this
chapter unless the violation is declared to be a felony," § 61-8-
711, MCA, the misdemeanor provisions of the traffic code in Title
61 are not the exclusive remedy for drunk driving if the conduct
satisfies the elements of a more serious felony crime, negligent
homicide, § 45-5-104, MCA, for example. See State v. Gould (1985),
216 Mont. 455, 704 P.2d 20.
In State v. Smaage (Mont. 1996), 915 P.2d 192, 53 St.Rep. 294,
we affirmed Smaage's conviction for criminal endangerment for
driving recklessly down the streets of Helena while his blood
alcohol content was .250. We rejected his argument that he should
have been charged under the more specific DUI statutes of Title 61
rather than the more general criminal endangerment statute. Most
recently in State v. Bell (Mont. 1996), 923 P.2d 524, 53 St.Rep.
792, we held that when a person drives down a city street at speeds
of up to 80 mph in the middle of the morning, he is guilty of more
than just misdemeanor reckless driving under Title 61; he can be
charged with and found guilty of felony criminal endangerment under
Title 45, MCA.
I see nothing in 5 87-l-102, MCA, which states that the
penalties provided in Title 87 are the "only" penalties allowed for
such conduct or that they are "exclusive" of all other titles. I
would reaffirm our holding in State v. Fertterer (1992), 255 Mont.
73, 841 P.2d 467, that Title 87 does not provide the exclusive
remedy for conduct which constitutes both a fish and game violation
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and a violation of the criminal code, Title 45.
At best, Title 87 is aimed at controlling the hunting of wild
game. The defendants here were not "hunting." They were engaged
in a calculated slaughter of bears. Over two and half months, the
defendants baited bears, chased them with hounds equipped with
radio collars, purposely wounded bears to provide sport for the
dogs, and killed smaller bears, cut their bellies open and used
their carcasses as bait for other bears. This conduct is clearly
more egregious than simply "unlawfully taking, killing, possessing,
or transporting a . black bear .'I under Title 87. Section
87-l-102(2) (a), MCA. The slaughter of at least four black bears
clearly exceeds the scope of any defined offense in Title 87.
In conclusion, the plain language of § 87-1-102(l), MCA, does
not purport to be exclusive. Secondly, I fail to see the clear and
manifest legislative intent to have Title 87 completely "occupy the
field." The misdemeanor provisions of Title 87 should no more be
the exclusive remedy for this senseless baiting and slaughter of
wild animals than it would be if someone were to mow down a herd of
antelope with a machine gun.
Chief Justice J. A. Turnage and Justice Charles E. Erdmann, join in
the foregoing dissent.
Chief Justice
Justice
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