No
No. 98-665
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 268
296 Mont. 444
989 P.2d 401
CITY OF MISSOULA,
Plaintiff and Respondent,
v.
LAURENCE I. GILLISPIE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial
District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-665_(11-02-99)_Opinion_.htm (1 of 11)4/9/2007 2:19:35 PM
No
COUNSEL OF RECORD:
For Appellant:
Terry G. Sehestedt, Missoula, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Jennifer Anders, Bureau Chief, Helena, Montana; Judith L.
Wang, Assistant City Attorney, Missoula, Montana
Submitted on Briefs: March 18, 1999
Decided: November 2, 1999
Filed:
__________________________________________
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
¶ Laurence I. Gillispie (Gillispie) was charged and convicted under Montana's order
of protection violation statute, § 45-5-626, MCA (1997), in Missoula Municipal
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-665_(11-02-99)_Opinion_.htm (2 of 11)4/9/2007 2:19:35 PM
No
Court. Gillispie appealed the municipal court judgment and his conviction was
affirmed by the Fourth Judicial District Court, Missoula County. Gillispie appeals
from the District Court's Order and Memorandum. We affirm.
¶ Gillispie raises two issues on appeal:
¶ (1) Did the Municipal Court have jurisdiction over Gillispie's order of protection
violation based on third party contact?
¶ (2) Did Gillispie commit an order of protection violation pursuant to § 45-5-626,
MCA (1997), when he attempted to contact his former wife through a third person?
Factual and Procedural History
¶ On October 20, 1993, the Fourth Judicial District Court, Missoula County, issued a
permanent injunction, based on stalking in violation of § 45-5-220, MCA (1993),
which prohibited Gillispie from contacting his former wife, Bobette Gillispie
(Bobette). The court's order of injunction stated that Bobette "needs permanent
protection or may otherwise suffer permanent injury or harm and therefore the
injunction should be effective permanently." Thus, the court ordered Gillispie to
"not contact or attempt to contact Bobette Eilene Gillispie in person, in writing, or
by a third person, except by telephone or correspondence through her attorney of
record." Gillispie was served, on October 26, 1993, with the permanent injunction.
¶ On November 19, 1997, Gillispie called Mary Jane Stolp, Bobette's mother, in
Missoula. Gillispie asked Mary Jane Stolp to give Bobette an offer from him;
Gillispie wanted to know whether Bobette would accept payment of $10,000 in full
satisfaction of a $50,000 judgment that Bobette had obtained against Gillispie for
unpaid child support. Bobette's mother reported the third party contact to the
Missoula Police Department. When Missoula authorities investigated the incident,
Gillispie admitted that he had called Bobette's mother. Based on the admitted third
party contact, Gillispie was charged with an order of protection violation pursuant to
§ 45-5-626, MCA (1997), in Missoula Municipal Court on November 21, 1997.
¶ Gillispie appeared in Missoula Municipal Court on December 22, 1997, entered a
plea of not guilty to the charge, and asked that the matter be set for a jury trial. On
January 30, 1998, Gillispie filed a motion to dismiss the charge, arguing that the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-665_(11-02-99)_Opinion_.htm (3 of 11)4/9/2007 2:19:35 PM
No
district court injunction was no longer in effect on the date of the alleged third party
contact. Gillispie's motion to dismiss was denied, on February 19, 1998, by the
Municipal Court. On April 9, 1998, Gillispie waived his right to a jury trial and was
tried before a municipal court judge, who convicted Gillispie of an order of
protection violation under § 45-5-626, MCA (1997).
¶ On April 13, 1998, Gillispie filed a notice of appeal from the municipal court
judgment. On appeal, Gillispie argued that his motion to dismiss should have been
granted because the permanent injunction was no longer in effect, and that the
Municipal Court did not have jurisdiction over the alleged offense. On August 18,
1998, the District Court affirmed the Municipal Court's conviction and remanded
the matter for imposition of sentence. Gillispie appeals from the District Court's
order.
Discussion
¶ (1) Did the Municipal Court have jurisdiction over Gillispie's order of protection
violation based on third party contact?
¶ Gillispie's challenge to the Municipal Court's jurisdiction involves a question of
law. We review a district court's conclusion of law to determine whether its
interpretation of the law is correct. State v. Maier, 1999 MT 51, ¶ 74, 293 Mont. 403,
¶ 74, 977 P.2d 298, ¶ 74 (citing Carbon County v. Union Reserve Coal Co. (1995), 271
Mont. 459, 469, 898 P.2d 680, 686).
¶ A municipal court has geographic jurisdiction "coordinate and coextensive" with
the jurisdiction of justice courts located in the same county. Section 3-6-103(1), MCA
(1997). The criminal jurisdiction of a justice court, and thus a municipal court,
extends to misdemeanors "committed within" the county in which the court sits.
Section 3-10-303, MCA (1997). An order of protection violation, first offense, is a
misdemeanor within the subject matter jurisdiction of a municipal court. Sections 3-
6-103(1), 3-10-303(1), and 45-5-626(3), MCA (1997).
¶ The offense at issue occurred in several counties, including Missoula County.
Gillispie contends that since neither he nor Bobette were present in Missoula County
at the time of the prohibited phone call, he could not have contacted Bobette either
directly or indirectly in Missoula County. Therefore, Gillispie argues that the third
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-665_(11-02-99)_Opinion_.htm (4 of 11)4/9/2007 2:19:35 PM
No
party contact offense, having not been "committed within" Missoula County,
rendered the Municipal Court without jurisdiction to adjudicate the order of
protection violation. We disagree.
¶ Under the terms of the permanent injunction, Gillispie was prohibited from
contacting or attempting to contact Bobette "by a third person, except by telephone
or correspondence through her attorney of record." The act constituting the offense
in this case was Gillispie's attempt to contact Bobette through her mother, a third
person. Importantly, Gillispie's phone call was received by Bobette's mother in
Missoula. Thus, we agree with the State of Montana (the State) that the Municipal
Court was vested with jurisdiction over Gillispie's order of protection violation when
the necessary "result" of Gillispie's actions, third party contact by telephone, was
"committed within" Missoula County.
¶ In other words, the crime was completed, and thus "committed within" Missoula
County. Section 3-10-303, MCA (1997). We hold that the Municipal Court had
jurisdiction over the order of protection violation by virtue of the fact that the
criminal offense of third party contact was consummated when the phone call was
received within Missoula County.
¶ (2) Did Gillispie commit an order of protection violation pursuant to § 45-5-626,
MCA (1997), when he attempted to contact his former wife through a third person?
¶ In 1993, the Fourth Judicial District Court issued an order and permanent
injunction, pursuant to § 40-4-121, MCA (1993), based on Gillispie's stalking of his
former wife, Bobette. Under subsection (7) of § 40-4-121, MCA (1993), a victim who
qualified could petition the court for "permanent protection" from the offender, and
the court was authorized under appropriate circumstances to "order that the
injunction be effective permanently." See § 40-4-121(7), MCA (1993). One ground
for issuance of a permanent injunction, found in subsection (8) of the statute, was
"credible evidence" of stalking by the offender and the victim's need for permanent
protection. See § 40-4-121(8), MCA (1993). The 1993 version of § 45-5-626, MCA,
provided that a person commits the offense of violation of a protective order when
that person, "with knowledge of the order, purposely or knowingly violates a
provision of any order provided for in 40-4-121." Section 45-5-626(1), MCA (1993)
(emphasis added).
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-665_(11-02-99)_Opinion_.htm (5 of 11)4/9/2007 2:19:35 PM
No
¶ In 1997, Gillispie violated the permanent injunction's "no contact" through a third
party provision when he called Bobette's mother, and was convicted of violation of a
permanent order of protection under § 45-5-626, MCA (1997). The 1997 version of §
45-5-626, MCA, provides in pertinent part:
(1) A person commits the offense of violation of an order of protection if the
person, with knowledge of the order, purposely or knowingly violates a
provision of any order provided for in 40-4-121 or an order of protection
under Title 40, chapter 15. It may be inferred that the defendant had
knowledge of an order at the time of an offense if the defendant had been
served with the order before the time of the offense. Service of the order is not
required upon a showing that the defendant had knowledge of the order and
its content. [Emphasis added.]
Section 45-5-626(1), MCA (1997).
¶ Gillispie openly concedes that he knowingly violated the terms of the 1993
permanent injunction. However, he takes the position that the District Court must be
reversed and the charge against him dismissed because § 45-5-626, MCA (1997), does
not make criminal a violation of the permanent injunction imposed upon him in
1993. Gillispie's challenge to the statutory scheme involves a question of law,
particularly, the legislative intent underlying the recent amendments to §§ 40-4-121
and 45-5-626, MCA. We review a question of law to determine whether the trial
court's interpretation of the law is correct. Maier, ¶ 74.
¶ In 1995, the Montana Legislature generally revised the laws relating to domestic
violence, changed the name of the offense from domestic abuse to partner or family
member assault, and provided enhanced criminal penalties against offenders so as to
provide broader protections to the victims of such offenses. See generally Act of Apr.
10, 1995, ch. 350,1995 Mont. Laws 1108. In part, the legislature amended § 40-4-121,
MCA (1993), and deleted subsections (7) and (8) from the statute. In its place, the
legislature enacted Title 40, Chapter 15, which provides generally for the safety and
protection of all victims of partner and family member assault, sexual assault, and
stalking. See generally §§ 40-15-101 to 40-15-303, MCA. Title 40, Chapter 15 now
provides authority for a court to order, under appropriate circumstances, that an
order of protection "remain in effect permanently." See § 40-15-204(1), MCA.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-665_(11-02-99)_Opinion_.htm (6 of 11)4/9/2007 2:19:35 PM
No
¶ Since Title 40, Chapter 15 was not enacted until 1995, Gillispie asserts that the
1993 permanent injunction against him could not be "an order of protection under
Title 40, chapter 15." Section 45-5-626(1), MCA (1997). Thus, according to Gillispie,
the question becomes whether the 1993 order imposing the permanent injunction
was an "order provided for in 40-4-121" in 1997 when the order of protection
violation was alleged to have occurred. Section 45-5-626(1), MCA (1997). The
answer, as Gillispie urges, is that the 1997 version of § 40-4-121, MCA, provides only
for temporary protective orders expiring in one year or less. See § 40-4-121(4)-(7),
MCA (1997). Therefore, Gillispie contends that because the Montana Legislature did
not amend the plain language of § 45-5-626, MCA (1997), to make criminal violations
of permanent protective orders formerly provided for in § 40-4-121, MCA (1993), he
cannot be convicted of an order of protection violation pursuant to § 45-5-626, MCA
(1997).
¶ The State responds that Gillispie's arguments constitute, in essence, a retroactivity
claim. As the State argues, the 1995 amendments to § 40-4-121, MCA (1993), did not
retroactively repeal the 1993 permanent injunction because the Montana Legislature
did not expressly declare in the 1995 amendments that it was repealing remedies
available to domestic abuse victims in 1993. However, Gillispie vigorously disputes
the State's position that he is effectively making a retroactivity claim, asserting
instead that he is simply making a plain language argument. While Gillispie's claim
can be analyzed under the guise of retroactivity, we determine that there is no need
to do so. Thus, this Court will not address the State's retroactivity analysis.
¶ Rather, we choose to reject Gillispie's hyper-technical argument on its merits. As
mentioned earlier, the District Court had the authority to issue the permanent
injunction against Gillispie in 1993. See § 40-4-121(7), (8), MCA (1993). Today, a
court would be empowered pursuant to Title 40, Chapter 15 to issue a permanent
order of protection. See § 40-15-204(1), MCA. Thus, the question is whether the
permanent injunction issued in 1993 pursuant to § 40-4-121, MCA (1993), remained
legally in effect until the date of Gillispie's "no contact" violation in 1997. We
conclude, for the reasons that follow, that the 1993 permanent order of protection
continued to be effective on the date of the prohibited third party contact.
¶ First, the plain language of § 40-4-121, MCA (1997), refutes Gillispie's all-or-
nothing approach to this issue. The amended version of the statue authorized a
district court to grant the following relief:
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-665_(11-02-99)_Opinion_.htm (7 of 11)4/9/2007 2:19:35 PM
No
(2) As a part of a motion for temporary maintenance, temporary support of a
child, or a temporary family support order or by independent motion
accompanied by affidavit, either party may request the court to issue a
temporary injunction for any of the following relief:
....
(h) providing additional relief available under Title 40, chapter 15. [Emphasis
added.]
Section 40-4-121(2)(h), MCA (1997); see also § 40-4-121(4), MCA (1997). By cross-
referencing Title 40, Chapter 15, the Montana Legislature clearly intended to permit a
court to make a temporary injunction issued under § 40-4-121, MCA (1997), a permanent
protective order according to the requirements of Title 40, Chapter 15. Thus, while § 40-4-
121, MCA (1997), primarily governs the issuance of temporary protective orders expiring
in one year or less, the statute expressly incorporates by reference the authority of Title 40,
Chapter 15 to issue permanent orders of protection. In short, § 40-4-121, MCA (1997),
and Title 40, Chapter 15 are not mutually exclusive of one another.
¶ Second and more importantly, in 1997, the Montana Legislature again had
occasion to further revise Montana's domestic violence laws. See generally Act of
May 1, 1997, ch. 484,1997 Mont. Laws 2576. In particular, as the District Court
correctly recognized, the legislature sought to clarify, retroactively, that an order or
injunction issued under § 40-4-121, MCA (1993), prior to the 1995 amendments was
to remain legally in effect according to the terms and conditions of the order or
injunction:
Section 2. Temporary order or temporary injunction--continuing effect.
A temporary order or temporary injunction issued under 40-4-121 before
October 1, 1995, continues in full force and effect as provided in the order or
injunction.
....
Section 12. Retroactive applicability. [Section 2] applies retroactively to
October 1, 1995. [Emphasis added.]
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-665_(11-02-99)_Opinion_.htm (8 of 11)4/9/2007 2:19:35 PM
No
Act of May 1, 1997, ch. 484, §§ 2, 12, 1997 Mont. Laws 2576, 2578, 2583. October 1,
1995, was the effective date for the 1995 amendments to Montana's domestic violence
laws.
¶ This Court, in determining legislative intent, will construe criminal statutes "with a
view to effect their object and to promote justice." State v. Sunday (1980), 187 Mont.
292, 299, 609 P.2d 1188, 1193 (citing State v. Shannon (1976), 171 Mont. 25, 28, 554
P.2d 743, 744). The object of the Montana Legislature's 1995 amendments to
Montana's domestic violence laws, which included amending § 40-4-121, MCA
(1993), and concomitantly enacting Title 40, Chapter 15, was to
move[] orders, currently called Temporary Restraining Orders, from a
subsection currently located in a marriage and divorce statute [§ 40-4-121,
MCA (1993)] to their own section [Title 40, Chapter 15]. . . . [V]ictim's
protections shouldn't be in divorce statutes.
Hearing on SB 278 Before the Senate Judiciary Comm., 54th Legis., 1st Reg. Sess. (Mont.
1995) (statement of Judy Wang, Assistant City Attorney, Chair Missoula Family Violence
Council). It is clear that the legislature principally intended, in 1995, to grant broader
protection to victims of partner and family member assault without regard to their
relationship to the offender. To further that object, Title 40, Chapter 15 was enacted "to
promote the safety and protection of all victims of partner and family member assault,
victims of sexual assault, and victims of stalking." Section 40-15-101, MCA.
¶ The goal of affording broader protection to victims of partner and family member
assault must guide our resolution of Gillispie's claim. By broadening protections
available to such victims in 1995, the Montana Legislature clearly did not intend to
do away with any existing orders of protection already in place. Indeed, to emphasize
that point, the 1997 amendments expressly declare that an order of protection issued
prior to the effective date of the 1995 amendments is to remain legally in effect
pursuant to the terms and conditions of that order.
¶ While it might be claimed that the legislature intended "Section 2" of the 1997
amendments to apply only to a "temporary" but not to a permanent order of
protection issued pursuant to § 40-4-121, MCA (1993), we note that the 1993 version
of the statute was captioned "[t]emporary order or temporary injunction" and yet
provided authority to issue a permanent order of protection. See § 40-4-121(7), (8),
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-665_(11-02-99)_Opinion_.htm (9 of 11)4/9/2007 2:19:35 PM
No
MCA (1993). This Court would achieve a patently absurd result were we to hold that
a temporary order of protection issued pursuant to § 40-4-121, MCA (1993), remains
legally in effect under the 1997 retroactive amendments, but that a permanent order
of protection does not. We refuse to reach such a formalistic construction. "The law
respects form less than substance." Section 1-3-219, MCA. Victims of partner or
family member assault, whether shielded from further harm by a temporary or a
permanent order of protection, are entitled to the same degree of protection.
¶ In light of the clear object of the 1995 amendments to strengthen protections for
victims of partner and family member assault and the clarification in the 1997
amendments that an order of protection issued pursuant to § 40-4-121, MCA (1993),
prior to the effective date of the 1995 amendments is to remain legally in effect, we
hold that the 1993 permanent order of protection against Gillispie remained legally
in effect at the time of the third party contact incident in 1997 and, therefore, was
enforceable against Gillispie according to its terms and conditions. When Gillispie
committed third party contact in 1997, he clearly violated the "no contact" provision
of the earlier injunctive order, which, according to its own terms, was to "be effective
permanently" so as to provide "permanent protection" to Bobette. Therefore,
Gillispie was properly charged and convicted of an order of protection violation
pursuant to § 45-5-626, MCA (1997), when he admittedly violated the terms of the
1993 permanent order of protection. The remainder of Gillispie's contentions are
without merit, and we will not address them.
¶ Affirmed.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ J. A. TURNAGE
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ JAMES C. NELSON
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-665_(11-02-99)_Opinion_.htm (10 of 11)4/9/2007 2:19:35 PM
No
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-665_(11-02-99)_Opinion_.htm (11 of 11)4/9/2007 2:19:35 PM