Archive | Wheat, J. (dissenting)

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Watters v. City of Billings

Watters v. City of Billings, 2017 MT 211 (Aug. 28, 2017) (Rice, J.; Wheat, J., dissenting) (5-2, rev’d)

Issue: Whether the district court erred by holding the CBAs were unambiguous and excluding extrinsic evidence concerning their interpretation.

Short Answer: Yes.

Reversed and remanded

Facts: Officers are current and retired police officers and members of the union, which collectively bargains with the city. The central dispute in this case is the correct interpretation of the longevity pay provisions in the 2000-2003, 2003-2006, and 2006-2009 CBAs.…

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.…

State v. Thompson

State v. Thompson, 2015 MT 279 (Sept. 18, 2015) (McKinnon, J.; Wheat, J., dissenting) (4-1, aff’d)

Issue: Whether the justice court had good cause to conduct Thompson’s trial after the six-month deadline provided by statute.

Short Answer: Yes.


Facts: The state charged Thompson with DUI on Oct. 11, 2011, and that same day he pled not guilty in justice court. He appeared with counsel at the omnibus hearing Dec. 27, 2011, and requested a jury trial. The justice court set trial for March 22, 2012, with a pretrial conference March 16, 2012. The notice stated the defendant was required to personally attend the pretrial conference, and if he failed to do so he would be deemed to have waived his right to a jury trial, and jus trial date would be vacated and reset for a bench trial at the next available time.…

Christian v. Atlantic Richfield Co.

Christian v. Atlantic Richfield Co., 2015 MT 255 (Sept. 1, 2015) (McKinnon, J.; Baker, J., concurring (2, 3, 4); Wheat, J., concurring (1, 2, 3) & dissenting (4); Rice, J., concurring (4) & dissenting (1)) (aff’d & rev’d)

Issue: (1) Whether the continuing tort doctrine requires evidence of the continued migration of contaminants; (2) whether genuine issues of material fact exist regarding the reasonableness of abating the contamination on Landowners’ properties; (3) whether the continuing tort doctrine applies to Landowners’ claims other than nuisance and trespass; and (4) whether the facts constituting Landowners’ claims were concealed or self-concealing, or whether ARCO took action to prevent Landowners from learning those facts.

Short Answer: (1) No, migration is not the dispositive factor; the key to whether an injury is temporary or permanent is whether further abatement is reasonable (McKinnon, Cotter, Wheat, Shea, Manley) (Rice dissents) (5-1); (2) yes, reasonable abatability must be decided by the trier of fact (McKinnon, Cotter, Baker concurs in the judgment, Wheat, Shea, Manley) (6-0); (3) yes for continuing injuries caused by strict liability, negligence, and wrongful occupation, but not for unjust enrichment (McKinnon, Cotter, Baker, Wheat, Shea, Manley) (6-0); (4) no, and Landowners’ claims for unjust enrichment and constructive fraud are therefore time-barred (McKinnon, Cotter, Baker, Rice) (Wheat dissents, Shea & Manley join) (4-3).…

American States Insurance Co. v. Flathead Janitorial & Rug Services, Inc.

American States Insurance Co. v. Flathead Janitorial & Rug Services, Inc., 2015 MT 239 (Aug. 11, 2015) (McKinnon, J.; Wheat, J. dissenting) (4-1, aff’d)

Issue: Whether the district court erred in concluding Bridgett was not covered under the commercial auto policy issued to Flathead Janitorial.

Short Answer: No.


Facts: Bridgett suffered severe, permanent, debilitating injures in December 2011 when the bicycle she was riding collided with a truck making a negligent turn. She now requires full-time care from her parents. At the time of the accident, Bridgett was attending college in Utah, had a Utah driver’s license, and was employed by a Utah business. It is undisputed that she was not employed by Flathead Janitorial or in a company vehicle at the time of the accident.…

Morrow v. Monfric, Inc.

Morrow v. Monfric, Inc., 2015 MT 194 (July 7, 2015) (McKinnon, J.; Cotter, J., concurring; Wheat, J., dissenting) (6-1, aff’d)

Issue: Whether the district court abused its discretion in denying class certification on the grounds that the proposed class was not sufficiently numerous.

Short Answer: No.


Facts: Plaintiffs are laborers who worked on multi-family housing projects I Kalispell. The project owner, Glacier States Associates, hired Monfric, Inc. as the general contractor. Monfric hired subcontractors to perform all labor on the projects. Plaintiffs are employees of those subcontractors. Because the projects were financed with industrial development bonds issued by the city of Kalispell, Montana law requires the contractor to pay prevailing wages. Plaintiff claims the contracts between Monfric and the subcontractors did not include a provision requiring prevailing wages, and further, that they were not paid prevailing wages.…

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.