Archive | Cotter, J. (dissenting)

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Pearson v. McPhillips

Pearson v. McPhillips, 2016 MT 257 (Oct. 11, 2016) (Shea, J.; Cotter, J., dissenting) (4-1, aff’d)

Issue: (1) Whether the district court erred in finding McPhillips and Raulston were not joint venturers, and (2) whether the district court erred in finding that the use of a cutting torch is not an inherently dangerous activity.

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

Affirmed

Facts: James Raulston started a scrap metal business in 2012, which involved him collecting scrap metal from landowners in Toole County and selling it. In February 2012, Raulston approached Scott O’Brien, McPhillips’ son-in-law who helps McPhillips manage her property, and asked if he could remove scrap metal from McPhillips’ property and sell it. O’Brien gave Raulston permission on the condition that Raulston give O’Brien 35% of the proceeds.…

Martinell v. Bd. of County Comm’rs of Carbon County

Martinell v. Bd. of County Comm’rs of Carbon County, 2016 MT 136 (June 7, 2016) (Rice, J.; Cotter, J., dissenting) (4-1, aff’d)

Issue: (1) Whether the district court erred by holding that the Carbon County commissioners acted arbitrarily in waiving compliance with county resolution zoning requirements; (2) whether the protest provision in the Part 1 zoning statute, § 76-2-101(5), MCA, is unconstitutional; and (3) whether the Carbon County commissioners’ reliance on the Part 1 protest provision render their decision unlawful. 

Short Answer: (1) No; (2) the Court declines to reach this issue; and (3) the Court declines to reach this issue.

Affirmed

Facts: Appellants are a group of private landowners (“Landowners”) in Carbon County who initiated a petition to establish a Part 1 zoning district pursuant to § 76-2-101, MCA.…

Russell v. State

Russell v. State, 2016 MT 69 (March 22, 2016) (McGrath, C.J.; Cotter, J., dissenting) (5-2, aff’d)

Issue: (1) Whether Russell received effective assistance of counsel at trial, and (2) whether Russell received effective assistance of counsel on appeal.

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

Affirmed

Facts: Russell and Spotted Wolf assaulted two men in an alley one night after drinking all day. One of the men died, and the other was seriously and permanently injured. Russell was charged with felony murder, aggravated assault, and accountability for Spotted Wolf’s robbery and aggravated assault. Russell was convicted by a jury in May 2005, and sentenced. Russell appealed and the Court reversed the conviction for aggravated assault against one victim, as it was an included offense of the felony murder conviction.…

State v. Root

State v. Root, 2015 MT 310 (Oct. 27, 2015) (McGrath, C.J.; Cotter, J., dissenting) (4-3, aff’d)

Issue: (1) Whether Root’s attorney was ineffective for not requesting an accomplice instruction; and (2) whether the district court erred in denying Root’s motion to dismiss based on the prosecution’s failure to disclose a video statement of a witness.

Short Answer: (1) No; and (2) no, with Justices Cotter, McKinnon, and Shea dissenting on (2).

Affirmed

Facts: Lawrence Lee was stabbed in the arm and neck while in his pickup truck with Root and juvenile S.R. Lee and S.R. testified that Root stabbed Lee, after which S.R. jumped out of the truck and Lee pushed Root out of the truck. S.R. testified that after Lee left, S.R.…

State v. Strong

State v. Strong, 2015 MT 251 (Aug. 25, 2015) (Baker, J.; Cotter, J., dissenting) (5-2, aff’d)

Issue: Whether the district court erred in denying Strong’s motion to dismiss based on its determination that Strong’s conduct could give rise to multiple offenses.

Short Answer: No.

Affirmed

Facts: In August 2012, Strong was charged with four counts of partner/family member assault against his wife, Jessica, and their minor child. He pled guilty to two misdemeanor charges of PFMA and one felony charge of PFMA. He was jailed pending sentencing. On August 10, Jessica obtained an order of protection prohibiting all contract between Strong and Jessica, effective for one year. Strong did not oppose the order.

On Nov. 6, 2012,Strong called Jessica four times from jail.…

Masters Group Internat’l, Inc. v. Comerica Bank

Masters Group Internat’l, Inc. v. Comerica Bank, 2015 MT 192 (July 1, 2015) (Baker, J. wrote an opinion in which Shea, J., joined; Shea, J. concurred; Rice, J., concurred and dissented and was joined by McKinnon, J.; Cotter, J., concurred and dissented, and was joined by McGrath, C.J., and Wheat, J.) (aff’d & rev’d)

Issue: (1) Whether the district court abused its discretion in denying Comerica’s motion to sever; (2) whether the district court erred in applying Montana law despite the contractual choice-of-law provision; (3) whether the district court erred in not deciding contract formation issues as a matter of law; (4) whether the district court erred by allowing TARP evidence to be presented to the jury.

Short Answer: (1) No (Baker, Shea, Cotter, McGrath, Wheat); (2) yes (Baker, Shea, Cotter, McGrath, Wheat); (3) no (5-Baker, Shea, Cotter, McGrath, Wheat- to 2-Rice, McKinnon); (4) yes (7-0 agree admission was error, but 4 (Baker, Shea, Rice.…

Beach v. State

Beach v. State, 2015 MT 118 (May 5, 2015) (Baker, J.; McKinnon, J., concurring: Wheat, J., dissenting; Shea, J., dissenting; Cotter, J. dissenting) (4-3, petition denied)

Issue: Whether Barry Beach’s sentence of 100 years without the possibility of parole is unconstitutional under Miller v. Alabama, 132 S. Ct. 2455 (2012).

Short Answer: No.

Petition for writ of habeas corpus denied

Facts: Beach was convicted of deliberate homicide in 1984 for a crime committed in 1979, when Beach was 17. The district court imposed the maximum sentence of 100 years without the possibility of parole. The record does not show that the court expressly considered Beach’s youth when imposing the sentence.

Procedural Posture & Holding: Beach petitions for a writ of habeas corpus, arguing that his sentence is unconstitutional under Miller v.

State v. Barrick

State v. Barrick, 2015 MT 94 (March 31, 2015) (Rice, J.; Cotter, J., concurring & dissenting) (4-1, aff’d & rev’d)

Issue: (1) Whether district court properly ordered restitution for lost income; (2) whether evidence supported restitution for victim’ medical bills incurred as a result of defendant shooting victim’s family dog; and (3) whether the district court abused its discretion in denying defendant’s request for victim’s financial and medical records.

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

Affirmed (2 & 3) and reversed (1) and remanded to amend the judgment

Facts: In September 2013, a jury convicted Barrick of criminal mischief and cruelty to animals for fatally shooting the Tuss family’s dog. During sentencing, the Tuss family asked for restitution of $9,357.14 to pay for the replacement cost of the dog, medical bills for Brett Tuss, lost wages for family members spent cooperating with the prosecution, and travel expenses associated with the prosecution of the offenses.…

Stokes v. Duncan

Stokes v. Duncan, 2015 MT 92 (March 24, 2015) (McGrath, C.J.; Cotter, J., dissenting) (4-1, aff’d)

Issue: Whether debtor’s legal malpractice claim accrued at the time of filing bankruptcy, making it part of the bankruptcy estate.

Short Answer: Yes.

Affirmed 

Facts: In 2008, a jury returned a verdict against John Stokes for defamation, with damages of about $4 million. Stokes appealed, and retained attorney Greg Duncan to advise him on how to maintain the appeal while discharging the obligation in bankruptcy. Stokes contends Duncan advised him he could discharge the judgment in bankruptcy and maintain his appeal. Duncan filed a Chapter 11 bankruptcy on Stokes’ behalf in March 2009. After a creditors’ meeting in April 2009, Duncan moved to withdraw as counsel due to disagreements over who was responsible for Stokes’ incomplete disclosure of assets.…

Planned Parenthood of Montana v. State

Planned Parenthood of Montana v. State, 2015 MT 31 (Feb. 3, 2015) (Shea, J.; Cotter, J., dissenting) (4-1, rev’d)

Issue: Whether issue preclusion prevents the state from defending the constitutionality of two laws that require the involvement of a minor’s parent before the minor may obtain an abortion.

Short Answer: No, because the constitutional issues raised by the 2011 and 2013 parental-notification statutes are not identical to the constitutional issues raised by the 1995 statute and resolved in Wicklund v. State.

Reversed and remanded

Facts: Planned Parenthood of Montana filed suit challenging the constitutionality of (1) a 2011 law requiring parental notification before a minor may obtain an abortion, and (2) a 2013 law requiring parental consent before a minor may obtain an abortion.…