No. OP 07-0134
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 149
______________
BRANDEN MILLER and JOHN ALBERT LEBRUM, )
)
Petitioners, ) OPINION
)
v. ) AND
)
EIGHTEENTH JUDICIAL DISTRICT COURT, ) ORDER
GALLATIN COUNTY, THE HONORABLE )
MIKE SALVAGNI, DISTRICT JUDGE, )
)
Respondent. )
______________
¶1 Before this Court is a Petition for Writ of Supervisory Control (“Petition”) filed by
Branden Miller and John Albert LeBrum (collectively, “Petitioners”). On February 28,
2007, we issued an order granting Respondent District Court, the Attorney General, and
the Gallatin County Attorney twenty days in which to file a response to the Petition. A
response was filed by the Attorney General on March 20, 2007.
¶2 Having considered the parties’ arguments, we grant the Petition, reverse the
decision of the District Court denying Petitioners’ respective motions to preclude the
State from seeking the death penalty upon their convictions, and remand for further
proceedings consistent with this Opinion and Order.
ISSUES
¶3 1. Are the issues presented by Petitioners appropriate for resolution by this Court
through a writ of supervisory control?
1
¶4 2. Did the District Court err in denying Petitioners’ motions to preclude the State
from seeking the death penalty and to preclude imposition of the death penalty as a
sentence?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Petitioners are presently defendants in cause numbers DC 06-213B (Miller) and
DC 06-212B (LeBrum) filed in the District Court for the Eighteenth Judicial District,
Gallatin County. They are accused of deliberate homicide, aggravated kidnapping, and
tampering with or fabricating physical evidence, all felonies, and the Gallatin County
Attorney has given notice stating that he intends to seek the death penalty in both cases.
¶6 However, the prosecutor did not file this notice in compliance with this Court’s
Standards for Competency of Counsel for Indigent Persons in Death Penalty Cases (“the
Standards”). Specifically, Standard I.1.a. of the Standards states:
In any case in which death is a potential punishment, the prosecutor
shall comply with Section 46-1-401, MCA, and shall file with the district
court, within 60 days after arraignment, and serve upon counsel of record a
notice stating whether the prosecutor intends to seek the death penalty upon
a conviction in the case.
The prosecutor complied with § 46-1-401, MCA, by alleging aggravating circumstances
in each Information; but Petitioners were arraigned on July 18, 2006, and the prosecutor,
therefore, was required by Standard I.1.a. to file notice stating whether he intended to
seek the death penalty by September 18, 2006. 1 He did not do so.
1
The sixtieth day fell on September 16, 2006; but because that was a Saturday, the
prosecutor had until Monday, September 18, 2006, to file the notice. M. R. Civ. P. 6(a).
2
¶7 Consequently, on November 8, 2006, Petitioners filed separate motions to
preclude the State from seeking the death penalty and to preclude imposition of the death
penalty as a sentence. Petitioners based their motions (which contained essentially the
same legal arguments and analysis) on the Due Process Clauses of the Fifth and
Fourteenth Amendments to the United States Constitution and Article II, Section 17 of
the Montana Constitution, the Cruel and Unusual Punishments Clauses of the Eighth
Amendment to the United States Constitution and Article II, Section 22 of the Montana
Constitution, and on this Court’s constitutional rulemaking authority (Mont. Const. art.
VII, § 2(3)) pursuant to which the Standards were promulgated. With respect to our
constitutional rulemaking authority, Petitioners contended that the Standards were
“validly enacted” by this Court, that the Standards are “in full force and effect” in
Petitioners’ cases, and that the Standards “provide for no exception to the sixty-day
notice requirement.” Thus, because the prosecutor did not file his notice of intent 2 within
60 days after Petitioners’ arraignments, as required by Standard I.1.a., they argued that
the State is precluded from seeking the death penalty upon their convictions.
¶8 On November 27, 2006—132 days after Petitioners’ arraignments and 72 days
after the Standard I.1.a. deadline—the prosecutor filed his notice of intent to seek the
death penalty. That same day, he also filed a response to Petitioners’ motions, in which
he argued that “[b]ecause the Information filed in both cases specifies that death is a
2
Standard I.1.a. requires “a notice stating whether the prosecutor intends to seek
the death penalty upon a conviction in the case.” For convenience, we will use the term
“notice of intent” to refer to this required notice.
3
possible punishment, and specifies the aggravating circumstances that may lead to a
death sentence, the Defendants have since the inception of this case been fully aware of
the possible consequences of conviction.” He also argued that “[w]hat is more important,
and what the State asks this Court to focus upon in deciding Defendants’ motions, is that
the Defendants have not been prejudiced by the undersigned’s failure, until this date, to
file the notice required by the Standards.” In this regard, he contended that Petitioners
had failed in their motions to show that they had been prejudiced by the late filing of his
notice of intent (although the Standards do not explicitly require such a showing).
¶9 On December 11, 2006, LeBrum filed a combined reply to the prosecutor’s
response, objection to the prosecutor’s late filing of his notice of intent, and motion to
strike said notice, in which Miller joined. Acknowledging that he was aware the case
was a potential capital case, he contended that such knowledge does not transform the
case into an actual capital case. Rather, “the State must comply with all pleading,
procedural, and notice requirements, including [Standard I.1.a.,] to convert a potential
capital case into an actual capital case.”
¶10 LeBrum also contested the factual accuracy of the prosecutor’s assertion (in his
November 27, 2006 response) that “Defense counsel have at all times been aware that
this case was a death penalty case.” Citing a recent article in the Bozeman Daily
Chronicle (see Ted Sullivan, Defense argues against death penalty in Wright homicide
case, Bozeman Daily Chronicle A3 (November 14, 2006)), LeBrum pointed out that
the prosecutor himself stated he has not decided whether he will seek the
death penalty, and that he won’t decide whether he’ll seek the death penalty
until he receives all of the evidence in the case and discusses capital
4
punishment with the victim’s family. [Citation to article.] Since the
prosecutor has admitted that even he did not know if he intended to seek the
death penalty, it is contradictory and disingenuous for the prosecutor to
allege the Defendant knew all along that the prosecutor intended to seek the
death penalty.
¶11 Finally, with respect to the prosecutor’s argument that Petitioners had not been
prejudiced by the late filing of his notice of intent, LeBrum maintained that the Standards
contain no exception to the 60-day deadline based on lack of prejudice to the defendant.
He pointed out that this Court had deleted such an exception from Standard I.1. in the
2002 amendments to the Standards.
¶12 The District Court issued a Decision and Order in each cause number on January
9, 2007, applying the same analysis in each. Reasoning that the Standards “are silent as
to the consequences of the prosecutor’s failure to file the required notice” and that
“absent prejudice, the violation of a procedural rule designed to safeguard a constitutional
right is not necessarily the same thing as a violation of the right itself” (alteration and
internal quotation marks omitted), the court adopted the approach suggested by the
prosecutor—i.e., the court focused on whether Petitioners had been prejudiced by the
prosecutor’s late filing of his notice of intent.
¶13 In this regard, the court observed that “Defendant was aware of the possible
imposition of the death penalty at the inception of this case” and that “Defendant [now]
has advance notice of the State’s intent to seek the death penalty in order for the
Defendant to prepare an adequate defense.” Therefore, the court concluded, “the State’s
failure to file the notice within the time prescribed by the Standard has not prejudiced the
Defendant and has not violated Defendant’s rights to due process under the United States
5
and Montana Constitutions.” Accordingly, the court denied Petitioners’ motions to
preclude the State from seeking the death penalty and to preclude imposition of the death
penalty as a sentence. The court also denied Petitioners’ objections to the prosecutor’s
late filing of his death penalty notice and Petitioners’ motions to strike said notice.
¶14 Petitioners filed the instant Petition for Writ of Supervisory Control on February
15, 2007. They contend that the District Court’s decision constitutes a mistake of law
and is causing a gross injustice. They further contend that no adequate remedy exists on
appeal. Accordingly, Petitioners request that this Court exercise supervisory control over
these cases, review the District Court’s decision, and preclude the State from seeking the
death penalty upon their convictions.
DISCUSSION
¶15 Issue 1. Are the issues presented by Petitioners appropriate for resolution by this
Court through a writ of supervisory control?
¶16 This Court has “general supervisory control over all other courts” pursuant to
Article VII, Section 2(2) of the Montana Constitution. Supervisory control, however, is
“an extraordinary remedy” to be exercised only in “extraordinary circumstances.” Evans
v. Montana Eleventh Judicial Dist. Court, 2000 MT 38, ¶ 15, 298 Mont. 279, ¶ 15, 995
P.2d 455, ¶ 15; Park v. Montana Sixth Judicial Dist. Court, 1998 MT 164, ¶ 13, 289
Mont. 367, ¶ 13, 961 P.2d 1267, ¶ 13. Thus, we have explained that we exercise
supervisory control only when a district court is proceeding under a mistake of law and,
in so doing, is causing a gross injustice, and the normal appeal process is not an adequate
remedy. Evans, ¶ 15; Park, ¶ 13; Plumb v. Montana Fourth Judicial Dist. Court, 279
6
Mont. 363, 369-70, 927 P.2d 1011, 1015-16 (1996). We make this determination on a
case-by-case basis. Inter-Fluve v. Montana Eighteenth Judicial Dist. Court, 2005 MT
103, ¶ 17, 327 Mont. 14, ¶ 17, 112 P.3d 258, ¶ 17; Dusek v. Montana Eighth Judicial
Dist. Court, 2003 MT 303, ¶ 6, 318 Mont. 166, ¶ 6, 79 P.3d 292, ¶ 6. 3
¶17 On December 15, 1997, during the period in which this Court was receiving public
comment on the Proposed Standards for Competency of Counsel for Indigent Persons in
Death Penalty Cases, the Attorney General filed a response to comments filed by the
Appellate Defender and the Federal Defender. Addressing the concern that trial courts
might “be free to disregard the competency standards with impunity,” the Attorney
General took the position that “coercive remedies such as mandamus, that are designed to
compel the court to follow the law,” would be available in situations where the trial court
failed to follow the Standards. For instance, he noted that “[t]he law creates a duty on the
part of the trial judge to appoint counsel meeting the standards,” and “[i]f the court fails
in this duty, nothing in the law would prevent the petitioner from seeking mandamus or
other extraordinary relief in this Court to require that the law be followed.”
¶18 Without distinguishing its earlier position, however, the State now argues that the
District Court’s failure to enforce Standard I.1.a.’s 60-day deadline does not warrant
extraordinary relief and that this Court should decline Petitioners’ request that we
3
We note that our statement in Dusek that supervisory control “is only appropriate
when a district court is proceeding under a mistake of law which, if uncorrected, would
cause insignificant injustice,” Dusek, ¶ 6 (emphasis added), is mistaken. The correct rule
is that supervisory control is only appropriate when a district court is proceeding under a
mistake of law which, if uncorrected, would cause significant—i.e., gross—injustice.
7
exercise supervisory control. The State reasons that if Petitioners are convicted and the
District Court thereafter imposes a sentence of death, “then Petitioners may challenge any
and all of the district court’s pretrial decisions . . . in the course of a direct appeal.” The
State urges that “[t]he fact that the case involves the possible imposition of the death
penalty does not render the remedy of appeal inadequate.” Rather, in the State’s view,
“Petitioners have a wholly adequate remedy of appeal.” We disagree.
¶19 We find the circumstances faced by Petitioners here to be analogous to the
circumstances faced by the petitioner in Booth v. Montana Twenty-First Judicial Dist.
Court, 1998 MT 344, 292 Mont. 371, 972 P.2d 325. In Booth, Booth’s application for a
writ of supervisory control implicated double jeopardy considerations: “If the District
Court’s conclusion that the prosecution is not barred proved—on appeal—to be incorrect,
Booth would have been subjected to prosecution notwithstanding his entitlement to avoid
the prosecution altogether.” Booth, ¶ 6. We concluded that under such circumstances,
appeal would not be an adequate remedy and that Booth’s application presented legal
issues that were appropriate for this Court to resolve through a writ of supervisory
control. Booth, ¶ 6.
¶20 Here, the District Court concluded that the Standards did not bar the prosecutor
from filing his notice of intent to seek the death penalty 72 days after Standard I.1.a.’s
60-day deadline had expired and from seeking the death penalty upon Petitioners’
convictions. As explained below under Issue 2, this conclusion is incorrect. Thus, the
District Court is proceeding under a mistake of law and, as a result, Petitioners are being
subjected to prosecutions as capital defendants, notwithstanding their entitlement to avoid
8
being prosecuted as such altogether. For this reason, the District Court’s ruling is causing
a gross injustice for which an appeal after trial is not an adequate remedy. Under these
circumstances, we hold that the issues presented in the Petition are appropriate for
resolution by this Court through a writ of supervisory control.
¶21 Issue 2. Did the District Court err in denying Petitioners’ motions to preclude
the State from seeking the death penalty and to preclude imposition of the death
penalty as a sentence?
Standard of Review
¶22 The District Court’s conclusion that the prosecutor was permitted to file his notice
of intent to seek the death penalty after the 60-day deadline had expired was based on the
court’s interpretation and construction of the Standards. Interpretation and construction
of a rule of procedure, like interpretation and construction of a statute, is a matter of law,
which we review de novo, determining whether the court’s interpretation and
construction of the rule is correct. See Associated Press v. Montana Senate Republican
Caucus, 286 Mont. 172, 176, 951 P.2d 65, 67 (1997); Faulconbridge v. State, 2006 MT
198, ¶¶ 24, 46-57, 333 Mont. 186, ¶¶ 24, 46-57, 142 P.3d 777, ¶¶ 24, 46-57; Madrid v.
Zenchiku Land and Livestock, 2002 MT 172, ¶ 5, 310 Mont. 491, ¶ 5, 51 P.3d 1137, ¶ 5.
Clarification of the Issue
¶23 At the outset, we note that Petitioners advance several theories of relief in addition
to their arguments based on this Court’s constitutional rulemaking authority. In
particular, Petitioners renew their arguments under the Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution and Article II, Sections 17 and 22 of the
Montana Constitution. In addition, Petitioners supplement their arguments by pointing
9
out that heightened procedural safeguards are required in death penalty cases. See
Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991 (1976) (Opinion of
Stewart, Powell, and Stevens, JJ.) (“[T]he penalty of death is qualitatively different from
a sentence of imprisonment, however long. . . . Because of that qualitative difference,
there is a corresponding difference in the need for reliability in the determination that
death is the appropriate punishment in a specific case.”); see also Lankford v. Idaho, 500
U.S. 110, 125-26, 111 S. Ct. 1723, 1732 (1991); Ring v. Arizona, 536 U.S. 584, 605-06,
122 S. Ct. 2428, 2441-42 (2002). We do not find it necessary, however, to decide this
case on a “death is different” rationale or based on the foregoing constitutional provisions
cited by Petitioners. Rather, we find this Court’s rulemaking authority under Article VII,
Section 2(3) of the Montana Constitution to be a sufficient basis on which to resolve this
case.
¶24 Article VII, Section 2(3), provides that this Court “may make rules governing
appellate procedure, practice and procedure for all other courts, admission to the bar and
the conduct of its members” (emphasis added). Article VII, Section 2(3), also states that
“[r]ules of procedure shall be subject to disapproval by the legislature in either of the two
sessions following promulgation.”
¶25 Pursuant to this constitutional rulemaking authority, and at the request of the
Legislature and the Attorney General (see Laws of Montana, 1997, Ch. 378, § 7, at
1767), this Court on June 29, 1999, adopted the Standards, which became effective on
January 1, 2000. The Standards specify a number of procedures concerning the
appointment of counsel to represent indigent persons in death penalty cases at the trial
10
and appellate levels and in state postconviction proceedings. They also set forth
standards for competency of such counsel. The Standards have remained unchanged
through the present, with the exception of Standard I.1. (detailing the content and filing
deadline of the prosecutor’s notice of intent to seek the death penalty), which we
amended on July 16, 2002.
¶26 Standard I.1.a. (as amended July 16, 2002) provides:
In any case in which death is a potential punishment, the prosecutor
shall comply with Section 46-1-401, MCA, and shall file with the district
court, within 60 days after arraignment, and serve upon counsel of record a
notice stating whether the prosecutor intends to seek the death penalty upon
a conviction in the case.
The State does not dispute Petitioners’ contention that this provision, which was not
disapproved by the Legislature in either of the two sessions following promulgation (i.e.,
in the 2003 or 2005 sessions), is a valid enactment pursuant to this Court’s constitutional
rulemaking authority. Indeed, the Attorney General’s June 23, 1997 petition asking this
Court to establish the Standards was explicitly premised on our authority under Article
VII, Section 2(3). Likewise, it is uncontroverted that Standard I.1.a. is applicable to
cause numbers DC 06-213B (Miller) and DC 06-212B (LeBrum), which are “case[s] in
which death is a potential punishment.” Thus, the validity and applicability of Standard
I.1.a. are not at issue here.
¶27 However, conceding that the prosecutor filed his notice of intent to seek the death
penalty upon Petitioners’ convictions 72 days late, the State seeks to avoid Standard
I.1.a.’s time prescription—“within 60 days after arraignment”—on the ground that it is
subject to exceptions. In particular, the State argues that “Petitioners and their counsel
11
were well aware, from the onset of the cases, that the death penalty was a potential
punishment” and that “[t]he prosecutor’s notice was filed sufficiently in advance of trial
so that Petitioners will have a full opportunity to defend the case as a capital case.” Thus,
in the State’s view, the District Court did not err in allowing the untimely notice of intent
to stand.
¶28 The precise issues before us, therefore, are (1) whether the Standards contain an
exception to Standard I.1.a.’s 60-day deadline and (2)(a) if the Standards contain an
exception, does it apply on the facts of this case or (b) if the Standards do not contain an
exception, what are the consequences of a prosecutor’s failure to file the required notice
of intent in accordance with the 60-day deadline.
Whether the Standards Contain an Exception to
Standard I.1.a.’s 60-Day Deadline
¶29 We first observe that the State cites no textual support in the Standards for a “no
harm, no foul” exception to the 60-day deadline. The only provision mentioned by the
State is Section IV of the Standards; but Section IV merely provides that “[n]o error or
omission in the procedure outlined in the trial [Section I] or appellate [Section II]
standards shall constitute a ground for relief from a conviction or sentence unless the
defendant shows that the standards were not followed in a material way.” Assuming,
arguendo, this provision applies equally to grounds for relief presented in a petition for
writ of supervisory control, filing the required notice of intent 72 days late clearly is a
“material” violation of Standard I.1.a. Thus, Section IV does not support the State’s
position.
12
¶30 Alternatively, the State cites State v. Lee, 917 P.2d 692 (Ariz. 1996), State v.
Jackson, 918 P.2d 1038 (Ariz. 1996), State v. Shults, 2006 MT 100, 332 Mont. 130, 136
P.3d 507, and United States v. Allen, 406 F.3d 940 (8th Cir. 2005), as authority for
recognizing an exception to Standard I.1.a. (The District Court identified these same four
cases as the basis for its decision.) Petitioners, for their part, cite State v. Second Judicial
Dist. Court, 11 P.3d 1209 (Nev. 2000), State v. Luvene, 903 P.2d 960 (Wash. 1995), and
State v. Smallwood, 152 P.3d 821 (N.M. 2007), for the proposition that the 60-day
deadline is firm. We commend the breadth of the parties’ research; however, having
fully considered the import of these cases, we find them materially distinguishable from
the case at hand.
¶31 Unlike Standard I.1.a., the timeliness rule at issue in Lee and Jackson specifies
sanctions to be imposed by the trial court, in its discretion, if the prosecutor violates the
rule, see Lee, 917 P.2d at 698-99; Jackson, 918 P.2d at 1042, and one such sanction is
simply “ordering disclosure of the information not previously disclosed,” Lee, 917 P.2d
at 698 (internal quotation marks omitted). Likewise, the timeliness rules at issue in
Second Judicial Dist. Court, Luvene, and Smallwood explicitly permit the prosecutor’s
notice of intent to be filed late (in the trial court’s discretion and if good cause is shown).
See Second Judicial Dist. Court, 11 P.3d at 1216; Luvene, 903 P.2d at 973; Smallwood,
152 P.3d at 825-26.
¶32 The timeliness rule at issue in Shults is similarly distinguishable from Standard
I.1.a. That rule permits the required notice to be filed late “for good cause shown.”
Section 46-13-108(1), MCA. Moreover, the rule is explicitly subject to an exception—
13
namely, § 46-20-701(1), MCA, which states that “[a] cause may not be reversed by
reason of any error committed by the trial court against the convicted person unless the
record shows that the error was prejudicial” (emphasis added). In other words, while the
Legislature provided that notice of the prosecutor’s intent to seek treatment of the
accused as a persistent felony offender “must be given at or before the omnibus hearing,”
§ 46-13-108(1), MCA, and that such notice “must specify the alleged prior convictions,”
§ 46-13-108(2), MCA, the Legislature also provided that a defendant claiming a violation
of this rule must show that he or she was prejudiced by the violation, § 46-20-701(1),
MCA. It was on this basis that we required a showing of prejudice in both State v.
McQuiston, 277 Mont. 397, 408-09, 922 P.2d 519, 526-27 (1996), and Shults, ¶¶ 22-23
(citing McQuiston, 277 Mont. at 409, 922 P.2d at 527). Thus, contrary to the State’s and
the District Court’s supposition, we did not read a no-prejudice exception into § 46-13-
108, MCA, and Shults is not authority to do so in the present cases.
¶33 Lastly, at issue in Allen was the Fifth Amendment requirement that at least one
statutory aggravating factor and the mens rea requirement (which, if proved to the trial
jury beyond a reasonable doubt, make the defendant eligible for the death penalty) must
be found by the grand jury and charged in the indictment. See Allen, 406 F.3d at 943.
This notice requirement, however, is subject under existing federal precedents to
harmless error analysis. See Allen, 406 F.3d at 943-45. Thus, after concluding that
Allen’s indictment suffered a Fifth Amendment defect, the court proceeded to inquire
whether this defect was harmless beyond a reasonable doubt. See Allen, 406 F.3d at 945-
14
49. 4 For these reasons, we conclude that Allen, Shults, Lee, Jackson, Second Judicial
Dist. Court, Luvene, and Smallwood are inapposite for the purpose of interpreting
Standard I.1.a.
¶34 Taking a slightly different approach, the State relies on State v. Sol, 282 Mont. 69,
936 P.2d 307 (1997), and Lankford v. Idaho, 500 U.S. 110, 111 S. Ct. 1723 (1991), for
the proposition that Petitioners were entitled only to “adequate” notice of the possible
imposition of a death sentence and the opportunity to present argument and evidence
against such sentence, both of which the State maintains have been provided here. The
District Court engaged in similar reasoning in denying Petitioners’ motions, concluding
that due process had been satisfied because Petitioners have advance notice of the
prosecutor’s intent to seek the death penalty such that they can prepare adequate defenses
thereto.
¶35 In so doing, however, the State and the District Court erroneously conflated two
distinct claims advanced by Petitioners—namely, their constitutional due process claim
and their claim based on Standard I.1.a.’s mandate. These two claims are not
coextensive. Even if constitutional due process does not require any more notice than
Petitioners received here, Petitioners still may be entitled to relief based on the notice
requirements established pursuant to this Court’s constitutional rulemaking authority. Cf.
Smallwood, 152 P.3d at 825 (holding that Rule 5-704(A), NMRA, which was
4
As an aside, in concluding that the Fifth Amendment error was, in fact, harmless
beyond a reasonable doubt, the court pointed out that the government’s notice of intent to
seek the death penalty had been timely filed. See Allen, 406 F.3d at 946.
15
promulgated under the New Mexico Supreme Court’s constitutional authority to exercise
superintending control over all inferior courts and which requires the prosecutor’s notice
of intent to seek the death penalty to be filed within ninety days after arraignment unless
good cause is shown, is not coextensive with a defendant’s due process right to receive
adequate notice of the State’s intent to impose the death penalty).
¶36 Turning, then, to the language of Standard I.1.a., the State would have this Court
simply read an exception into the 60-day deadline. Relying specifically on Lee, Jackson,
Shults, and Allen, the District Court adopted the State’s suggestion, denying Petitioners’
motions on the ground that “the State’s failure to file the notice within the time
prescribed by the Standard has not prejudiced the Defendant.” The court noted that
“Defendant was aware of the possible imposition of the death penalty at the inception of
this case,” that “Defendant has proceeded with the case as if the death penalty were a
possible sentence,” and that “Defendant [now] has advance notice of the State’s intent to
seek the death penalty in order for the Defendant to prepare an adequate defense.”
¶37 Petitioners respond that “[n]othing in the Standards allow[ed] the district court to
entertain whether—upon the State filing a late notice—a defendant has actually been
prejudiced or whether the State had good cause for filing an untimely notice.” They
maintain that “the plain language of the Standards is clear and it [was] not the district
court’s role to insert analysis of prejudice and good cause” into the rule. In a similar
vein, Petitioners explain that they initially proceeded with their cases as if the death
penalty was a possible sentence because the cases were, at that point, “potential” capital
cases, but once the 60-day deadline passed without the prosecutor’s filing his notice of
16
intent to seek the death penalty, they were “entitled to proceed as if their cases were not
capital cases.” They point out that Standard I.1.a.’s 60-day deadline provides a time-
certain date by which a defendant knows whether the case is an actual capital case. They
contend, therefore, that the Standards did “not allow for the State to string Petitioners
along for 72 days past the deadline, sitting in wait to know whether their cases are capital
cases,” and that they should not be required “to assume even after a deadline has passed
that a potential capital case may still [become an actual capital case].”
¶38 We agree with Petitioners that established rules of statutory construction do not
permit the approach advocated by the State and followed by the District Court. In State
v. Kroll, 2004 MT 203, ¶ 17, 322 Mont. 294, ¶ 17, 95 P.3d 717, ¶ 17, we stated that
“[w]here the plain language of the statute is clear and unambiguous, no further
interpretation is required.” Likewise, in State ex rel. Palmer v. Hart, 201 Mont. 526, 530,
655 P.2d 965, 967 (1982), we stated that “[w]here the language of the statute is plain,
unambiguous, direct, and certain, the statute speaks for itself.” And § 1-2-101, MCA,
instructs that “[i]n the construction of a statute, the office of the judge is simply 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.” We utilize these same rules when
interpreting rules of court. See Rich v. State Farm Mut. Auto. Ins. Co., 2003 MT 51, ¶ 11,
314 Mont. 338, ¶ 11, 66 P.3d 274, ¶ 11; Busch v. Atkinson, 278 Mont. 478, 483-84, 925
P.2d 874, 877 (1996).
¶39 Again, Standard I.1.a. states:
17
In any case in which death is a potential punishment, the prosecutor
shall comply with Section 46-1-401, MCA, and shall file with the district
court, within 60 days after arraignment, and serve upon counsel of record a
notice stating whether the prosecutor intends to seek the death penalty upon
a conviction in the case.
By the express terms of this rule, the prosecutor “shall”—as opposed to “may” or
“should”—file notice stating whether he or she intends to seek the death penalty upon a
conviction within 60 days after the defendant’s arraignment. In other words, the notice
and timing requirements are mandatory, not discretionary or permissive. See Redies v.
Cosner, 2002 MT 86, ¶ 19, 309 Mont. 315, ¶ 19, 48 P.3d 697, ¶ 19; Gaustad v. City of
Columbus, 265 Mont. 379, 381-82, 877 P.2d 470, 471 (1994). Most importantly, nothing
in the plain language of the rule suggests that lack of prejudice to the defendant or the
defendant’s knowledge that the case is a potential death penalty case can supplant the
express requirement that the notice be filed within the 60-day time frame.
¶40 It was the District Court’s duty, as it is this Court’s duty, to construe Standard
I.1.a. “as it is written,” Matter of the Estate of Magelssen, 182 Mont. 372, 378, 597 P.2d
90, 94 (1979), “not to insert what has been omitted,” § 1-2-101, MCA. In this regard,
Petitioners point out that the version of the Standards adopted by this Court on June 29,
1999, contained a Standard I.1.d., which provided as follows:
If the prosecutor does not indicate a belief that the death penalty may
be appropriate in a notice filed within 60 days after arraignment as provided
by this standard, but later acquires evidence that, together with any other
evidence, leads the prosecutor to conclude that sufficient evidence exists to
establish, to the appropriate standard of proof, one or more of the statutory
aggravating factors necessary to impose the death penalty upon a
conviction in the case, the prosecutor may file the notice provided in this
section, only with leave of the district court, after consideration of the
cause for the delay and any prejudice to the defendant. [Emphasis added.]
18
This Court deleted this exception to the 60-day deadline when we amended the Standards
on July 16, 2002—a fact that fortifies Petitioners’ argument and our conclusion that the
Standards do not contemplate the exception to Standard I.1.a.’s time prescription
advocated by the State and read into the Standards by the District Court.
¶41 We hold, therefore, that the District Court erred in concluding that Standard
I.1.a.’s 60-day deadline may be ignored if the defendant has not been prejudiced by the
prosecutor’s failure to abide by it. We now consider the consequences of a prosecutor’s
failure to file the notice of intent in accordance with the time prescription.
The Consequences of a Prosecutor’s Failure to File the Notice of
Intent in Accordance with Standard I.1.a.’s 60-day Deadline
¶42 Petitioners argue that failure to comply with Standard I.1.a.’s 60-day deadline
“creates a jurisdictional defect precluding the State from seeking the death penalty and
imposition of the death penalty as a sentence.” They rely on a number of cases, including
State v. Madera, 206 Mont. 140, 155, 670 P.2d 552, 560 (1983) (characterizing the first
persistent-felony-offender notice required by former § 46-18-503, MCA, as
“jurisdictional”), Matter of M.B., 282 Mont. 150, 153, 935 P.2d 1129, 1130 (1997) (“[A]n
untimely notice of appeal is a jurisdictional defect, which renders this Court powerless to
hear the appeal.” (internal quotation marks omitted)), Lemley v. Allen, 203 Mont. 37, 42-
43, 659 P.2d 262, 266 (1983) (“[T]he statute governing costs must be strictly followed,
and a failure to serve a memorandum upon the adverse party deprives the district court of
jurisdiction in the matter.”), and State v. 1978 LTD II, 216 Mont. 401, 402-03, 701 P.2d
1365, 1366 (1985) (the defective notice of seizure and intention to institute forfeiture
19
proceedings “deprived the District Court of jurisdiction to enter default judgment”). We
disagree with Petitioner’s use of the term “jurisdictional” in this context.
¶43 It is important not to confuse categorical time prescriptions with jurisdictional
provisions. See, e.g., Kontrick v. Ryan, 540 U.S. 443, 454, 455, 124 S. Ct. 906, 915
(2004) (observing that courts have been “less than meticulous” in their use of the term
“jurisdictional”—e.g., by using the term to describe “emphatic time prescriptions in rules
of court”—and that classifying time prescriptions, even rigid ones, under the heading
“subject matter jurisdiction” can be “confounding”); DeShields v. State, 2006 MT 58,
¶ 10, 331 Mont. 329, ¶ 10, 132 P.3d 540, ¶ 10 (observing that “[j]urisdiction is a word of
many, too many, meanings” and that we, along with other courts, sometimes have been
“profligate” in our use of the term (internal quotation marks omitted)). Subject-matter
jurisdiction, we have explained, “involves the fundamental power and authority of a court
to determine and hear an issue.” Stanley v. Lemire, 2006 MT 304, ¶ 30, 334 Mont. 489,
¶ 30, 148 P.3d 643, ¶ 30. Hence, a provision is properly characterized as “jurisdictional”
if it “delineat[es] the classes of cases (subject-matter jurisdiction) . . . falling within a
court’s adjudicatory authority.” Kontrick, 540 U.S. at 455, 124 S. Ct. at 915.
¶44 Categorical time prescriptions, by contrast, are “inflexible” or “rigid”—but
nonjurisdictional—claim-processing rules. Kontrick, 540 U.S. at 454-55, 124 S. Ct. at
915; Eberhart v. United States, 546 U.S. 12, 19, 126 S. Ct. 403, 407 (2005) (per curiam).
Significantly, whereas subject-matter jurisdiction, because it involves the court’s power
to hear the case, can never be forfeited or waived, nor can it be conferred by the consent
of a party, In re Marriage of Miller, 259 Mont. 424, 427, 856 P.2d 1378, 1380 (1993);
20
Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 1244 (2006), a claim-
processing rule, “even if unalterable on a party’s application, can nonetheless be forfeited
if the party asserting the rule waits too long to raise the point,” Kontrick, 540 U.S. at 456,
124 S. Ct. at 916.
¶45 Applying these principles in the case at hand, we note that Standard I.1.a. does not
speak in jurisdictional terms. It does not purport to delineate a class (i.e., the subject
matter) of cases falling within the district courts’ adjudicatory authority. More to the
point, Standard I.1.a. does not purport to “withdraw” the district courts’ jurisdiction over
death penalty cases (see, e.g., Rockwell International Corp. v. United States, 127 S. Ct.
1397, 1405-06 (2007)). Nor could it. The subject-matter jurisdiction of the district
courts is established by the Montana Constitution. In particular, Article VII, Section 4(1)
provides, in relevant part, that district courts have “original jurisdiction in all criminal
cases amounting to felony.” Although this Court has the authority, pursuant to Article
VII, Section 2(3), to “make rules governing . . . practice and procedure” in the district
courts—and Standard I.1.a. is such a rule—this authority does not enable us to withdraw
the jurisdiction of the district courts as defined by Article VII, Section 4(1).
¶46 Accordingly, Standard I.1.a. is, necessarily, a categorical time prescription and not
a jurisdictional provision. As such, a prosecutor’s failure to comply with the 60-day
deadline does not create “a jurisdictional defect” precluding the State from seeking the
death penalty and precluding the district court from imposing the death penalty as a
sentence. Rather, Standard I.1.a. simply “assure[s] relief” to a defendant who properly
raises it, but it does not compel the same result if the defendant forfeits it. Eberhart, 546
21
U.S. at 19, 126 S. Ct. at 407. Stated differently, Standard I.1.a. is “unalterable” on a
defendant’s motion but can be forfeited if the defendant “waits too long to raise the
point.” Eberhart, 546 U.S. at 15, 126 S. Ct. at 404 (internal quotation marks omitted). 5
¶47 In the case at hand, Petitioners unquestionably did not “wait[] too long to raise the
point.” As noted above, they were arraigned on July 18, 2006, and the prosecutor,
therefore, had until September 18, 2006, to file notice stating whether he intended to seek
the death penalty upon their convictions. That date passed without such notice being
filed; in fact, the prosecutor filed his notice of intent 72 days late, on November 27, 2006.
In the meantime, on November 8, 2006, Petitioners filed preemptive motions to preclude
the State from seeking the death penalty and to preclude imposition of the death penalty
as a sentence. And promptly upon the prosecutor’s filing his notice of intent, Petitioners
filed objections to and motions to strike the late filing. Under these circumstances, we
hold that Petitioners properly and timely raised Standard I.1.a.’s procedural safeguard and
that their motions should have been granted.
CONCLUSION
¶48 The Standards do not contain an exception to Standard I.1.a.’s 60-day deadline,
which is a categorical, but nonjurisdictional, time prescription. Thus, where a prosecutor
5
“Forfeiture,” as opposed to “waiver,” is the correct term in this context, since
“forfeiture” refers to “the failure to make the timely assertion of a right,” whereas
“waiver” concerns “the intentional relinquishment or abandonment of a known right.”
Kontrick, 540 U.S. at 458 n.13, 124 S. Ct. at 917 n.13 (internal quotation marks omitted).
As the Ninth Circuit recently noted, however, the result would be no different if the
defendant affirmatively waived the time prescription. See United States v. Sadler, 480
F.3d 932, 933 n.1 (9th Cir. 2007).
22
has failed to file notice, stating whether he or she intends to seek the death penalty upon a
conviction in the case, in accordance with Standard I.1.a. and the defendant has timely
raised this issue in a motion to preclude the State from seeking the death penalty and to
preclude imposition of the death penalty as a sentence, that motion must be granted. The
District Court erred in deciding to the contrary. Therefore,
¶49 IT IS ORDERED that the Petition for Writ of Supervisory Control is GRANTED.
¶50 IT IS FURTHER ORDERED that the District Court’s January 9, 2007 Decision
and Order in Cause Number DC 06-213B (Miller) and the District Court’s January 9,
2007 Decision and Order in Cause Number DC 06-212B (LeBrum) denying Petitioners’
motions to preclude the State from seeking the death penalty and to preclude imposition
of the death penalty as a sentence are reversed.
¶51 IT IS FURTHER ORDERED that this case is remanded to the District Court with
instructions to grant said motions and for further proceedings consistent with this Opinion
and Order.
¶52 IT IS FURTHER ORDERED that the Clerk of this Court give notice of this
Opinion and Order to counsel of record and to the Honorable Mike Salvagni, District
Judge, presiding.
DATED this 19th day of June, 2007.
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
23
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
Justice Jim Rice dissenting.
¶53 The Petitioners and the Court, in my view, have misapprehended the purpose and
function of the 60-day notice provision. It was not necessary for the prosecutor to have
given the notice at all, for the entire purpose of the notice had already been fulfilled.
Further, changes in constitutional law since adoption of the notice standard have left it
with little practical effect.
¶54 To demonstrate the purpose served by the 60-day notice provision, it is necessary
to review this Court’s adoption of the Standards for Competency of Counsel for Indigent
Persons in Death Penalty Cases, of which this rule is a part. The brief filed in support of
the Attorney General’s original petition to this Court set forth the overall purpose for
adoption of Standards:
A court order establishing competency standards will require district courts
to identify and assign adequately trained and experienced lawyers to
represent indigent capital clients.
Brief of the Attorney General in Support of the Petition, June 23, 1997, p. 8. Thus, the
purpose of the Standards was to ensure that district courts would “identify and assign
adequately trained and experienced” defense counsel to an indigent defendant charged
with a capital crime.
24
¶55 Thereafter, on August 26, 1997, the Court submitted for comment an initial set of
proposed Standards for Competency. In response, it was the State who suggested that a
notification provision be added:
The State suggests that if standards are adopted, the Court should enact a
requirement that the prosecutor notify the Court at the earliest reasonable
opportunity if the prosecutor intends to treat the case as a potential death
penalty case.
State’s Comments on Proposed Standards, December 23, 1997, p. 7. What was the
purpose of this notice? As explained by the State, such a notice requirement “is intended
only to provide a trigger for the application of the other provisions of the standards.”
State’s Comments, p. 8 (emphasis added). “The intent of this requirement is simply to
assist the trial court in identifying the cases in which the competency standards for
counsel must be observed.” State’s Comments, p. 8 (emphasis added). Thus, the purpose
of the notice was to alert the district court to those cases which would require
appointment of counsel who met the capital competency standards.
¶56 On December 30, 1997, the Court, citing the need for “more in-depth study and
consideration,” appointed a committee to consider the Standards further and to make
written findings and recommendations. The Committee, reporting to the Court on
October 29, 1998, recommended that the prosecutor file a notice of intention to seek the
death penalty within 60 days after arraignment. 1 The recommendations were submitted
without commentary, but it was not contested by either the Majority or Minority of the
1
The Committee also recommended a provision for late filing of the notice “upon
consideration of the cause of the delay and any prejudice to the defendant,” discussed
hereinafter, which was also adopted by the Court.
25
Committee that “[u]pon receipt of the notice, the court would appoint counsel under the
substantive standards for trial level death penalty cases.” Minority Report, November 2,
1998, p. 2. Thus, the notice provision was still intended to provide a trigger mechanism
for appointment by the district court of counsel competent for representation in capital
cases. This provision was adopted by the Court on June 29, 1999, which, I would note,
was a year prior to the United States Supreme Court’s decision in Apprendi.
¶57 Therefore, as originally intended and as adopted, and as the plain wording still
provides today, Standard I.1.a requires a prosecutor to file a notice of intention to seek
the death penalty within 60 days of arraignment. Likewise, Standard I.2 provides that,
upon establishment of the defendant’s indigency and upon giving of the prosecutor’s
notice (the “trigger” mechanism), “the district court shall appoint two counsel to
represent the defendant.” Standard I.3 then provides the standards of competency which
the two counsel must meet, and outlines the procedure for submission of information
verifying counsel’s competency to the district court.
¶58 However, in this case, the Defendants’ attorneys and the District Court acted long
before the procedure contemplated by the Standards played itself out. As noted by the
District Court, the Information alleging the defendants had committed deliberate
homicide was filed on July 11, 2006. The Information stated that a possible penalty upon
conviction was death. Six days later, on July 17, 2006, Defendant LeBrum’s counsel, Al
Avignone, submitted information for purposes of demonstrating his possession of the
minimum qualifications under the Standards of Competency. The same day, LeBrum’s
other counsel, John Hud, submitted his information. On July 25, 2006, both of Defendant
26
Miller’s counsel, Peter Ohman and Randi Hood, filed their respective Notices of
Qualification for purposes of demonstrating their possession of qualifications to satisfy
the Standards of Competency.
¶59 On July 24, 2006, the District Court issued an order in LeBrum’s case indicating
that “although the prosecutor has not filed a notice stating that he intended to seek the
death penalty,” LeBrum “had been advised” by the Information and other statements that
“the death penalty could be imposed upon a conviction,” and therefore, the court was
moving to appoint defense counsel who qualified under the Standards. See Decision and
Order, January 9, 2007, p. 3. After review of the filings of Avignone and Hud, the
District Court concluded that both counsel met the Standards of Competency. On July
27, 2006, the District Court entered a similar order with regard to the appointment of
Ohman and Hood for Defendant Miller.
¶60 Thus, the District Court, prompted by the early filings of defense counsel, sua
sponte “pulled the trigger” of Standard I.1.a by declaring that this was a death penalty
case for which the Standards would apply—without further notice by the prosecutor.
Then, it proceeded to fulfill Standards I.2 and I.3 by reviewing counsel’s qualifications,
approving the same, and appointing two attorneys to represent each defendant. The
actions of the District Court thus rendered any further notice by the prosecutor
completely moot.
¶61 As the Court correctly notes in its discussion of ¶¶ 38-40, it is this Court’s duty to
simply declare what the rule contains, nothing more, and to construe Standard I.1.a “as it
is written.” See ¶ 40. The Standard provides for nothing more than has already been
27
accomplished. Although the Court holds that the Standard “assure[s] relief” to a
defendant who raises it, see ¶ 46, the Court does not explain what that relief is—i.e., what
more the Standards provided to the Defendants than they already received. The Court
cannot explain this because there is simply no further “relief” to be provided under the
plain wording of the Standards.
¶62 Defendants’ due process arguments are without merit. Jumping in early, and
rightfully so, defense counsel’s capital case filings prompted the District Court to initiate
the process under the Standards without any further notice from the prosecutor. Thus, all
of the process under the Standards to which the Defendants were entitled was provided to
them. Though probably filed as a panic reaction to the Defendants’ assertions that a
deadline was missed, the prosecutor’s notice filing was moot and redundant, as the
process it was designed to engender had already been completed.
¶63 It is not necessary to reach the issue of whether there is an “exception” to the
notice rule, nor is it necessary to reach the issue of whether the Defendants were
prejudiced. Of course, they were not prejudiced, because they received from the District
Court everything the Standards required them to receive.
¶64 Finally, and perhaps most importantly, I offer a note about the 2002 amendment to
Standard I.1.a, about which much has been made in the Petitioners’ arguments, and the
current status of the 60-day rule. The Court’s 2002 amendment to the Standard deleted
the provision for filing of a notice of intention to seek the death penalty after expiration
of the 60-day period. As the amending order stated, the amendment was made in
response to the Legislature’s 2001 adoption of § 46-1-401, MCA, which required
28
aggravating factors statutorily authorizing imposition of the death penalty to be alleged in
the Information. Thus, a “late” filing of a notice of intention to seek the death penalty
was no longer possible, as the crime would be designated a capital one at the time of the
Information’s filing, a fallout of the United States Supreme Court’s Apprendi decision in
2000. That is exactly what happened here—the case was designated a capital one at the
time of the Information’s filing—which illustrates that the 60-day notice provision may
hold little practical significance in the post-Apprendi world. With the enactment of § 46-
1-401, MCA, the filing of an Information which alleges aggravating factors becomes the
practical “trigger” for a district court’s appointment of capital-qualified counsel. Indeed,
it should be so, because capital-qualified counsel should be in place as early as possible.
If the Information does not allege such factors, a prosecutor’s notice, timely or not,
cannot turn the case into a capital one. However, a filing of an amended Information in
the case which alleges aggravating factors would do so, even if filed more than 60 days
later. Consequently, the Standards for Competency remain valid, but the practical effect
of the mechanism for triggering the appointment of qualified counsel has been altered by
subsequent court decision and statutory enactment.
¶65 I would not disturb the District Court’s orders.
/S/ JIM RICE
Justice John Warner joins the dissent of Justice Rice.
/S/ JOHN WARNER
29
Miller v. Eighteenth Judicial District Court
Court: Montana Supreme Court
Date filed: 2007-06-19
Citations: 2007 MT 149, 162 P.3d 121, 337 Mont. 488
Copy Citations