Archive | February, 2016

Montana Cannabis Industry Assoc. v. State

Montana Cannabis Industry Assoc. v. State, 2016 MT 44 (Feb. 25, 2016) (Baker, J., for the majority; McKinnon, J., concurring & dissenting; Rice, J., concurring & dissenting; Wheat, J.,concurring & dissenting) (6-1 on 5 of 6 issues; 4-3 on the 6th issue; aff’d & rev’d) (Cotter, J., recused and replaced by District Judge Robert Olson)

Issue: (1) Whether the district court properly held unconstitutional the statutory requirement that DPHHS notify the Board of Medical Examiners of any physician who certifies more than 25 patients a year for medical marijuana; (2) whether the district court properly held unconstitutional (a) the statute’s 3-patient limit and (b) the remuneration restriction; (3) whether the district court properly applied strict scrutiny to the statutory provision prohibiting advertising by medical marijuana providers; (4) whether the district court properly held that the statutory provision prohibiting probationers from becoming registered cardholders for medical marijuana was facially constitutional; and (5) whether the district court properly held constitutional the statutory provision allowing warrantless inspections of medical marijuana providers’ business by DPHHS and law enforcement.…

Sparks v. Emmert

Sparks v. Emmert, 2016 MT 43 (Feb. 23, 2016) (McKinnon, J.; McGrath, C.J., concurring) (5-0, rev’d)

Issue: Whether the district court erred in granting summary judgment to Emmert.

Short Answer: Yes.

Reversed

Facts: Kurt Heigis executed a quitclaim deed conveying his home to Frances Emmert in 2001. According to Emmert, on the day the deed was executed, June 17, 2001, Heigis personally delivered it to Emmert at her home in Reed Point, Montana. He told Emmert to keep it and not record it until something happened to him. Emmert contends that she and Heigis agreed Heigis would continue to live on his property, maintain it and pay all expenses. Emmert stored the deed in her safe.…

State v. Kant

State v. Kant, 2016 MT 42 (Feb. 23, 2016) (Cotter, J., for the majority; Shea, J., dissenting) (4-1, aff’d)

Issue: Whether the district court erred in denying Kant’s motion to suppress and dismiss.

Short Answer: No.

Affirmed

Facts: Bradley Kant and his wife, Crystal, had registered caregiver’s licenses under the Montana Marijuana Act allowing them to grow and distribute marijuana in accordance with the law. Upon expiration of their licenses they did not renew them, but continued growing and distributing marijuana.…

State v. Colburn

State v. Colburn, 2016 MT 41 (Feb. 23, 2016) (McGrath, C.J.; McKinnon, J., concurring) (7-0, rev’d & remanded)

Issue: (1) Whether the district court erred in disqualifying Colburn’s expert witness from testifying at trial; and (2) whether the district court erred in its application of the Rape Shield law to exclude evidence Colburn offered at trial.

Short Answer: (1) Yes; and (2) yes.

Reversed and remanded for a new trial

Facts: The state charged Colburn with two counts of incest involving his daughter, CC, one count of sexual intercourse without consent and two counts of sexual assault involving a neighbor girl, RW, all felonies. Both girls were 11 years old at the time of the offenses. RW testified at trial that Colburn touched her private parts manually and with his penis.…

In the Matter of JH

In the Matter of JH, 2016 MT 35 (Feb. 16, 2016) (Rice, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred by finding the Department made reasonable efforts to reunify JH with his father; (2) whether the district court erred by finding that JH’s best interests were served by living with his aunt, EJ, and not his father; and (3) whether the district court erred by approving a permanency plan without first holding an age-appropriate consultation with JH.

Short Answer: (1) No; (2) no; and (3) no.

Affirmed

Facts: JH, seven years old, is the child of AH (mother) and CL (father). Mother and father never married, no custody order or parenting plan was ever entered, and JH saw his father only occasionally.…

Shockley v. Cascade County

Shockley v. Cascade County, 2016 MT 34 (Feb. 16, 2016) (Cotter, J.) (5-0, aff’d)

Issue: Whether the district court properly denied Shockley’s motion for attorney fees under § 2-3-221, MCA.

Short Answer: Yes.

Affirmed

Facts: Shockley sought disclosure of a settlement agreement between a Cascade County detention office, Jason Carroll, Cascade County, and Carroll’s collective bargaining unit, the International Brotherhood of Teamsters, Local 2. In 2014 MT 281, this Court held that Shockley had standing to assert a claim against the county for disclosure of the documents. The county had no objection to disclosure, and the district court entered Carroll’s default. The only party opposing disclosure was the union, which relied on the confidentiality provision of the settlement agreement, to which it was a party.…

JAS, Inc. v. Eisele

JAS, Inc. v. Eisele, 2016 MT 33 (Feb. 16, 2016) (Shea, J.; Baker, J., concurring) (5-0, aff’d)

Issue: (1) Whether Bank of America’s notice of the trustee’s sale precludes it from objecting to the sale because it did not strictly comply with the Small Tract Financing Act of Montana; (2) whether Bank of America was entitled to notice of the trustee’s sale when it did not have a recorded interest in the property at the time of the sale; (3) whether JAS in entitled to repayment of funds it paid to OneWest Bank for the property purchased at the trustee’s sale.

Short Answer: (1) No; (2) the Court will not address this issue because it was not raised below; and (3) the Court will not address this issue because it was not raised below.…

State v. Ballinger

State v. Ballinger, 2016 MT 300 (Feb. 9, 2016) (Shea, J.) (5-0, aff’d)

Issue: Whether the district court erred in finding the police officer had particularized suspicion to conduct an investigatory stop of Ballinger.

Short Answer: No.

Affirmed

Facts: A neighbor called police one night to report the front door of a house across the street was open. Officer Morrison arrived and found the front door open, the lights on, and no one around. He parked his vehicle and waited. He then saw a man and woman, later identified as Ballinger and Julie Ramirez, get out of a car and walk toward the open house. He got out and spoke to them, explaining why he was there and asking where they were going.…

Shelhammer v. Hodges

Shelhammer v. Hodges, 2016 MT 29 (Feb. 9, 2016) (Shea, J.) (5-0, aff’d)

Issue: Whether a parent’s military housing and subsistence allowances are part of the parent’s actual income when calculating child support obligations.

Short Answer: Yes.

Affirmed

Facts: Shelhammer and Hodges are the parents of AS. CSED ordered Shelhammer to pay Hodges $74/month child support in October 1999. In May 2014, Hodges filed a request for review, and CSED modified Shelhammer’s obligation to $743/month.…

Stafford v. Fockaert

Stafford v. Fockaert, 2016 MT 28 (Feb. 9, 2016) (McKinnon, J.) (5-0, aff’d)

Issue: (1) Whether the district court abused its discretion by entering default judgment for Stafford as a sanction for Fockaert’s failure to comply with the court’s order requiring mediation, and (2) whether the district court properly awarded prejudgment interest.

Short Answer: (1) No, and (2) yes.

Affirmed

Facts: Stafford sued Fockaert in 2012, alleging he defrauded her of $100,000. The parties agree that Stafford transferred $100,000 to Fockaert in July 2010 for him to invest, and that he refused to return the money when she asked him to a month later.…