No. 84-154
I N THE SUPREME COURT OF THE STATE OF MONTANA
1984
THE STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs-
BERNARD JAMES FITZPATRICK,
Defendant and Appellant.
APPEAL FROM: D i s t r i c t Court of t h e Thirteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Big Horn,
The H o n o r a b l e C h a r l e s L u e d k e , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Stephens & Cole; Robert L. Stephens, Jr. argued,
B i l l i n g s , Montana
Timothy K. F o r d , S e a t t l e , Washington
For Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
J o h n H. Maynard a r g u e d , A s s t . A t t y . G e n e r a l , I I e l e n a
L a n c e P e d e r s e n , C o u n t y A t t o r n e y , H a r d i n , Montana
Submitted: June 2 0 , 1984
Decided: July 25, 1984
Filed: '-
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Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Petitioner, Bernard J. Fitzpatrick was convicted in 1978
of deliberate homicide, robbery and aggravated kidnapping.
After exhausting his state appellate and post-conviction
remedies, petitioner was remanded to District Court for
sentencing. (A detailed account of Fitzpatrick's court
proceedings may be found at Fitzpatrick v. State (Mont.
1983), 671 P.2d 1, 40 St.Rep. 1598.) On December 8, 1983,
petitioner was sentenced to die pursuant to Montana's death
statute, section 46-19-103, MCA. Petitioner objected on the
grounds that the statute, which had been presented to the
1983 Montana Legislature as Senate Rill 394, is an
unconstitutional bill of attainder. The objection was
overruled and this appeal followed.
Bills of attainder are " ... legislative acts, no
matter what their form, that apply either to named
individuals or to easily ascertainable members of a group in
such a way as to inflict punishment on them without a
judicial trial . . .. 'I U.S. v. Lovett (1946), 328 U.S. 303,
315-316, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252, 1259. Rills of
attainder are unconstitutional. See U.S. Const. Art. I, 59,
c1.3 and Mont. Const. Art. 11, 530.
The adoption of Senate Bill 394 resulted in three
amendments to section 46-19-103, MCA.
1. It provided an optional provision for death by
lethal injection at the election of the defendant
in addition to the previously mandated death by
hanging.
2. It changed the place of execution from the
county in which the defendant was convicted to the
state prison, and provided that the prison warden,
rather than the county sheriff, is responsible for
the supervision of an execution.
3. It provided that the act applies to death
sentences whenever pronounced, whether before or
after the effective date of the act.
Petitioner contends that the statute inflicts punishment
on him without benefit of a trial by (1) legislatively
creating an additional form of punishment for homicide -
death by lethal injection; and (2) depriving him of the
opportunity to pursue his claim that hanging is a cruel and
unusual punishment. We find no merit to either contention.
Death by lethal injection is not a legislatively created
punishment. The punishment is the sentence of death.
Petitioner's punishment was pronounced by a District Court
judge following a trial and numerous other court proceedings.
Banging and lethal injection are merely alternate methods for
imposing that punishment.
When South Carolina replaced death by hanging with death
by electrocution, Joe Malloy objected to his sentence of
death by electrocution on the basis that the new sta.tute was
ex post facto legislation with respect to his offense. The
United States Supreme Court disagreed stating, "(t)he statute
under consideration did not change the penalty - death - for
murder, but only the mode of producing this . . .." Malloy
v. South Carolina (1915), 237 U.S. 180, 185, 35 S.Ct. 507,
509, 59 L.Ed. 905, 907. Although Malloy involved ex post
facto legislation, its rationale is applicable here a.s both
ex post facto law and bills of attainder involve "legislative
denunciation and condemnation of an individual" or specific
group, either prospectively or retroactively. Z. Chafee Jr.,
Three Human Rights - - Constitution - -
in the of 1787, pp. 92-33
(1956).
Turning to the second contention, petitioner has already
pursued his claim that hanging is a cruel and unusual
punishment. Our rejection of that claim can be found at
Fitzpatrick v. State (Mont. 1981) , 638 P.2d 1002, 1011, 38
St.Rep. 1448, 1456-1457. Further, nothing in the statute
prevents the pursuance of such a claim (with respect to
e i t h e r mode o f p u n i s h m e n t ) .
For t h e reasons set f o r t h i n t h i s opinion, w e hold t h a t
s e c t i o n 46-19-103, MCA i s n o t a b i l l o f a t t a i n d e r and a f f i r m
t h e D i s t r i c t Court's d e n i a l of Fitzpat__ric/kfs e t i t i o n .
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W e concur:
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- - - -
- - - .
Honorable Gordon R. B e n n e t t
sitting for
J u s t i c e J o h n C.Sheehy