DA 06-0289
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 210
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JAMES P. ELLIS,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC-05-91
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Martin W. Judnich, Attorney at Law, Missoula, Montana
For Respondent:
The Honorable Mike McGrath, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
George Corn, Ravalli County Attorney; T. Geoff Mahar, Deputy
County Attorney, Hamilton, Montanan
Submitted on Briefs: March 14, 2007
Decided: August 28, 2007
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 James P. Ellis appeals from a portion of the judgment entered by the Twenty-First
Judicial District Court, Ravalli County, on his guilty plea to a felony criminal offense.
We affirm.
¶2 The sole issue on appeal is whether the District Court erred in ordering Ellis to
repay the costs of his appointed counsel because § 46-8-113, MCA, (temporary to June
30, 2006) [hereinafter, § 46-8-113, MCA] violates the equal protection clauses of the
United States and Montana Constitutions.
BACKGROUND
¶3 After accepting a guilty plea from Ellis to the felony offense of accountability for
fraudulently obtaining dangerous drugs and ordering a presentence investigation report,
the District Court held a sentencing hearing in March and April of 2006. The State of
Montana recommended deferring imposition of sentence for two years, subject to
conditions. Ellis objected to a recommended condition that he be ordered to repay the
cost of his appointed counsel, arguing that Montana’s “recoupment statutes” violate his
Fifth Amendment right to counsel.
¶4 The District Court deferred imposition of sentence for two years subject to
conditions, one of which required Ellis to repay the costs of his appointed counsel, and
entered judgment. Ellis appeals.
DISCUSSION
¶5 Did the District Court err in ordering Ellis to pay the costs of his appointed
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counsel because § 46-8-113, MCA, violates the equal protection clauses of the United
States and Montana Constitutions?
¶6 We note that the State raises threshold issues. We address those matters briefly
before turning to the issue Ellis presents.
¶7 The State initially argues we should not consider the issue raised by Ellis on
appeal because it represents a change of legal theory. The State is correct that we
generally do not consider new issues raised for the first time on appeal. See e.g. State v.
Buck, 2006 MT 81, ¶ 109, 331 Mont. 517, ¶ 109, 134 P.3d 53, ¶ 109; State v. Wetzel,
2005 MT 154, ¶ 13, 327 Mont. 413, ¶ 13, 114 P.3d 269, ¶ 13. The State’s argument,
however, is totally without merit. The State is well aware that our jurisprudence has long
permitted a defendant to challenge a sentence on the basis of illegality, even when no
objection was made at the time of sentencing. See e.g. State v. Lenihan, 184 Mont. 338,
343, 602 P.2d 997, 1000 (1979). Under this jurisprudential authority, we review
sentences for alleged unconstitutionality even absent objection on constitutional grounds
in the district court. See State v. Garrymore, 2006 MT 245, 334 Mont. 1, 145 P.3d 946.
The premise that a “constitutional” challenge to a sentence is a challenge to the “legality”
of the sentence requires no further discussion; moreover, in the present case, Ellis
objected to his sentence on constitutional grounds at the sentencing hearing, albeit under
a different constitutional theory. We reject the State’s argument that we should not
consider this issue.
¶8 The State also suggests, in one paragraph, that whether Ellis has established
“standing to bring his equal protection challenge should be considered.” It cites to State
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v. Webb, 2005 MT 5, ¶ 28, 325 Mont. 317, ¶ 28, 106 P.3d 521, ¶ 28, and State v. Thaut,
2004 MT 359, ¶¶ 16-23, 324 Mont. 460, ¶¶ 16-23, 103 P.3d 1012, ¶¶ 16-23, for the usual
standing requirement that a party must clearly allege past, present or threatened injury to
property or to a civil right, and the alleged injury must be distinguishable from the injury
to the public generally. The State says that, because Ellis has not been held in civil
contempt, imprisoned or otherwise prosecuted for default in payment under authority of
the recoupment statutes, he lacks standing to raise the constitutional issue on appeal.
¶9 Ellis points out that he has suffered (and he may still be suffering) economic harm
as a result of being ordered to repay these costs. He asserts standing pursuant to Thaut,
and we agree. Ellis has established present injury—the District Court’s order to repay
$2,398 in costs of counsel constitutes “direct economic injury.” See Thaut, ¶ 16 (citation
omitted). We conclude Ellis has standing to challenge imposition of the repayment
condition as violative of equal protection principles.
¶10 We turn now to the issue presented by Ellis, namely, whether the District Court
erred in ordering him to repay the costs of his appointed counsel because § 46-8-113,
MCA, violates the equal protection clauses of the United States and Montana
Constitutions. Our review of questions of constitutional law is plenary. Thaut, ¶ 12
(citation omitted). The equal protection clauses of both the United States and Montana
Constitutions prohibit laws which impermissibly classify individuals and treat them
differently on the basis of that classification. State v. Davison, 2003 MT 64, ¶ 10, 314
Mont. 427, ¶ 10, 67 P.3d 203, ¶ 10 (citation omitted).
¶11 In addressing an equal protection challenge, we first identify the classes involved
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and determine whether they are similarly situated. Farrier v. Teacher’s Retirement Bd.,
2005 MT 229, ¶ 15, 328 Mont. 375, ¶ 15, 120 P.3d 390, ¶ 15 (citation omitted). If so, we
determine the appropriate level of scrutiny to apply: strict scrutiny for laws affecting
fundamental rights, intermediate scrutiny for laws conferred by the Montana Constitution
but not found in the Declaration of Rights, or rational basis if neither strict scrutiny nor
intermediate scrutiny applies. Farrier, ¶ 16; Davison, ¶¶ 10-11.
¶12 Section 46-8-113, MCA, provides:
Payment for court-appointed counsel by defendant. (1) The court may
require a convicted defendant to pay the costs of court-appointed counsel as
a part of or a condition under the sentence imposed as provided in Title 46.
(2) Costs must be limited to reasonable compensation and costs
incurred by the court-appointed counsel in the criminal proceeding.
(3) The court may not sentence a defendant to pay the costs of
court-appointed counsel 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.
(4) A defendant who has been sentenced to pay costs may at any
time petition the court that sentenced the defendant for remission of the
payment of costs or of any unpaid portion of the costs. If it appears to the
satisfaction of the court that payment of the amount due will impose
manifest hardship on the defendant or the defendant's immediate family, the
court may remit all or part of the amount due in costs or modify the method
of payment.
Section 46-8-115, MCA, provides that default in payment of costs ordered under § 46-8-
113, MCA, may be treated as contempt of court. However, a sentencing court must give
the defendant an opportunity to show the default was not attributable to an intentional
refusal to obey the court order or to make a good faith effort to make the payment before
the court may impose imprisonment for the contempt. Imprisonment cannot exceed one
day for each $25 owed, with a 30-day maximum for a misdemeanor offense and a one-
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year maximum in any other case. See § 46-8-115(3), MCA.
¶13 On appeal, Ellis contends the above-referenced recoupment statutes violate his
right to equal protection because they strip indigent defendants of protections against
imprisonment for debt which are afforded to similarly-situated nonindigent criminal
defendants and civil judgment debtors. In arguing that the recoupment statutes violate
principles of equal protection as between him and a civil judgment debtor, Ellis relies on
James v. Strange, 407 U.S. 128, 92 S. Ct. 2027 (1972).
¶14 In James, the United States Supreme Court ruled that a Kansas recoupment statute
violated the Equal Protection Clause of the United States Constitution. The Kansas
statute provided that indigent defendants automatically were liable to repay costs of their
appointed counsel and that sums unpaid for 60 days “shall become a judgment in the
same manner and to the same extent as any other judgment under the code of civil
procedure.” The remedy provided under the Kansas statute for failure to repay the cost of
appointed counsel did not, however, grant the defendant exemptions from execution
available to civil judgment debtors. James, 407 U.S. at 129, 135, 92 S. Ct. at 2029, 2031-
32. The Supreme Court held that the Kansas statute relating to indigent defendants
“embodies elements of punitiveness and discrimination which violate the rights of
citizens to equal treatment under the law.” James, 407 U.S. at 142, 92 S. Ct. at 2035.
¶15 We observe that the Supreme Court noted in James, 407 U.S. at 133, 92 S. Ct. at
2030, that state recoupment laws differ significantly. As a result, it declined to make any
broad pronouncement on the general validity of such recoupment laws.
¶16 Two years later, the Supreme Court upheld Oregon’s recoupment statute in Fuller
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v. Oregon, 417 U.S. 40, 94 S. Ct. 2116 (1974). The Court held that the Oregon statute,
which retained all exemptions afforded to civil judgment debtors and provided the
defendant the opportunity to show that recovery of legal defense costs would impose
hardship, did not violate the Equal Protection Clause of the United States Constitution.
Fuller, 417 U.S. at 49, 94 S. Ct. at 2123. Inasmuch as the statute applied to indigent
defendants but not to defendants who retained counsel, the Supreme Court reasoned that
only the indigent had been provided counsel by the state in the first place. It stated,
“[u]nder Oregon’s recoupment statute revocation of probation is not a collection device
used by the State to enforce debts to it, but is a sanction imposed for ‘an intentional
refusal to obey the order of the court.’” Fuller, 417 U.S. at 48, 94 S. Ct. at 2122. The
Court also stated the applicability of the Oregon statute to persons convicted—and not to
those not convicted—was rational and reflected “no more than an effort to achieve
elemental fairness.” Fuller, 417 U.S. at 50, 94 S. Ct. at 2123.
¶17 Under the Montana recoupment statutes, like the Oregon statute in Fuller and
unlike the Kansas statute in James, a court may not sentence a defendant to pay the costs
of court-appointed counsel unless the court determines the defendant is or will be able to
pay them. See § 46-8-113(3), MCA. Nor do the Montana statutes provide that counsel
costs shall become a judgment in the same manner as other civil judgments, as did the
Kansas statute. Moreover, a Montana defendant sentenced to pay these costs may at any
time petition the court for remission of the payment of costs on grounds that it will
impose manifest hardship on the defendant or defendant’s immediate family. Section 46-
8-113(4), MCA. We previously have observed that Montana’s recoupment statutes are
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similar to the Oregon statute recognized by the Supreme Court as permissible under
constitutional equal protection principles. See State v. Farrell, 207 Mont. 483, 491-92,
676 P.2d 168, 173 (1984). We conclude Ellis has not established that § 46-8-113, MCA,
violates his right to equal protection under the United States Constitution.
¶18 We now consider Ellis’s claims under the Montana Constitution. Ellis correctly
points out that—pursuant to Farrier, ¶ 14, citing Cottrill v. Cottrill Sodding Service, 229
Mont. 40, 42, 744 P.2d 895, 897 (1987)—Article II, Section 4 of the Montana
Constitution provides more individual protection than does the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution.
¶19 Our determination in Cottrill that the equal protection clause of Montana’s
Constitution provides more protection than the federal clause was based on the language
of the two clauses. See Cottrill, 229 Mont. at 42, 744 P.2d at 897. The federal Equal
Protection Clause, contained in the Fourteenth Amendment to the United States
Constitution, provides, “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.” Montana’s equal protection
clause provides:
The dignity of the human being is inviolable. No person shall be denied
equal protection of the laws. Neither the state nor any person, firm,
corporation, or institution shall discriminate against any person in the
exercise of his civil or political rights on account of race, color, sex, culture,
social origin or condition, or political or religious ideas.
Mont. Const. art. II, § 4.
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¶20 As stated above, a party claiming violation of the right to equal protection must
first demonstrate that the law at issue discriminates by impermissibly classifying
individuals and treating them differently based on that classification. Once the
classification has been identified and it has been established that members of the different
classes are similarly situated, we determine the appropriate level of scrutiny to apply.
Davison, ¶ 10.
¶21 We recently rejected an equal protection claim on grounds the claimant did not
identify similarly-situated classes which were treated differently. In Davison, the
defendant claimed that his right to equal protection had been violated because the
statutory penalty for operation of an unlawful clandestine drug laboratory—the offense of
which he had been convicted—was greater than the statutory penalty for manufacture of
dangerous drugs. He contended that, because the two statutes proscribed the same
general conduct, they amounted to a classification of offenders and subjected them to
unequal treatment. Pointing out that the operation of an unlawful clandestine laboratory
and the manufacture of dangerous drugs are distinct and separate offenses and concern
different conduct, we disagreed with Davison’s underlying premise and determined he
had not identified a classification warranting equal protection analysis under any of the
three recognized levels of scrutiny. Davison, ¶¶ 13-14. We ultimately concluded
Davison had not established that individuals convicted under the two statutes were
similarly situated. Davison, ¶ 17.
¶22 Contrary to Ellis’s claim, individuals ordered to pay recoupment costs as a
condition of a felony criminal sentence are not similarly situated to civil judgment
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debtors. The process of adjudicating a civil judgment generally does not include
determinations that the judgment debtor has committed a criminal offense against the
State and its people, that the public purse has been expended to defend the judgment
debtor or that the judgment debtor has the ability to pay the debt. We agree with and
adopt the Supreme Court’s related determination that revocation of probation for failure
to pay is “not a collection device used by the State to enforce debts to it but is a sanction
imposed for ‘an intentional refusal to obey the order of the court.’” Fuller, 417 U.S. at
48, 94 S. Ct. at 2122. Consequently, we conclude Ellis has not established that § 46-8-
113, MCA, results in different treatment of similarly-situated individuals. Therefore, we
further conclude he has not established that § 46-8-113, MCA, creates an impermissible
classification of two similarly-situated groups.
¶23 Ellis points out that he could be imprisoned for failing to pay the ordered costs of
provided counsel, unlike a defendant who failed to pay retained counsel or any other civil
debtor, who cannot be imprisoned for failure to pay a debt except under very limited
circumstances. In this regard, he relies on Article II, Section 27 of the Montana
Constitution, which generally prohibits imprisonment for debt, and § 27-16-102, MCA,
which sets forth the limited circumstances in which a defendant in a civil action may be
arrested. He asserts that, had this issue been raised in Fuller, the Court “would have no
doubt found the Oregon recoupment statute unconstitutional.” While neither Ellis nor
this Court can speculate with certainty what the Supreme Court might do, both the record
before us and Fuller suggest otherwise.
¶24 We hold Ellis has failed to establish that § 46-8-113, MCA, violated his rights
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under either the United States or the Montana Constitution. We affirm the judgment of
the District Court.
/S/ KARLA M. GRAY
We concur:
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART
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