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TRANSCRIPT
45th Annual
Montana YMCA Youth and Government Program
& Model Supreme Court
Brief Book
April 17th – 20th, 2016 State Capitol
Helena, Montana
“Democracy must be learned by each generation…”
1
YMCA Youth and Government 2016 Brief Book Table of Contents
Leadership
2016 Student Leadership ...................................................................................................................................... 3 Delegation Advisors ................................................................................................................................................. 4 Advisory Board .......................................................................................................................................................... 4 Program Staff & Area Advisors ........................................................................................................................... 4 Past Elected Officers ................................................................................................................................................ 5 YMCA Youth and Government Program History ......................................................................................... 7 Complete Registrations List sorted by Delegation ...................................................................................... 8 Court Program Student List ............................................................................................................................... 16
Procedures Model Supreme Court Handbook .................................................................................................................... 17 Presentation of Oral Arguments ...................................................................................................................... 43 Courtroom Protocol and Procedure ............................................................................................................... 49 Guidelines for Visiting Justices ......................................................................................................................... 54
Briefs
Marijuana Case - State of Montana v. Casey Caring ......................................................................... 62 Appellant Briefs
Black and Dean, Butte High School ................................................................................................ 66 Finks and Smith, Darby ........................................................................................................................ 77 Thomas and Beirle, Gardiner ............................................................................................................ 84 Zora and Casagrande, Butte High School ..................................................................................... 93 Scalzone and Mosher, SW MT YMCA……………………………………………………………….…104
Respondents Briefs Bristol and Merrill, Miles City ....................................................................................................... .112 Dean and Hansen, Gardiner ............................................................................................................ 119 Heiland and Weidow, Darby ........................................................................................................... 130 Maloney and Connors, Butte High School ................................................................................. 135
Snowmobile Case – State of Montana v. Glorious and Doolittle ............................................. 143 Appellants Briefs
Leif Clark, Butte High School .......................................................................................................... 146 Stroder and Ross, Gardiner ............................................................................................................. 159
Respondent Briefs Long and Duddy, Butte High School ............................................................................................ 170 Ueland and Rodenbaugh, Miles City .......................................................................................... 182
Miscellaneous Map of Capitol and Grounds ........................................................................................................................................... 191 Code of Conduct .................................................................................................................................................................. 193
2016 Montana YMCA Youth and Government LEADERSHIP POSITIONS
ELECTED LEADERSHIP
Governor: Shannon Tempel, Butte High Lt. Governor: Dale Royer, SW MT YMCA
Speaker of the House: Hayden Blackford, Gardiner President of the Senate: Kyle Finch, Butte High
Secretary of State: R.J. Hyatt, Butte High Chief Justice: Paige Robinson, Gardiner
APPOINTED LEADERSHIP Hannah Ludlow (Capital High) Editor Hannah Hanson (Gardiner) Assistant Secretary of State Samantha Johnston (Butte High); Seeley Hoffman (Capital High); Zach Macy (Gardiner); Taylor Swainson (Gardiner); Rahkei Eyer (Jefferson High); Sam Telling (SW MT YMCA) Governor’s Cabinet COURT LEADERSHIP Paige Robinson (Butte HS) Chief Justice Samuel Bryan (Helena High) Supreme Court Justice Anthony Zufelt (Jefferson High) Supreme Court Justice Jacob Oppelt (Gardiner) Supreme Court Justice Olivia Reid (Gardiner) Supreme Court Justice Matthew Shenton (SW MT YMCA) Supreme Court Justice Jason Hardin (Miles City) Supreme Court Justice SENATE LEADERSHIP Pro-Tem and Committee Chair – Ethan Holmes, Business and Taxation Ray Shipman, SW MT YMCA Nichole Tyson, Gardiner Mason Ruppel, Butte High, Judiciary Paul Helfrich, Gardiner, Health and Human Services Vice Chairs: : Finley Andrew, SW MT YMCA Marissa Henning, Miles City Garret Nielson, Bozeman Gavin Gundlach, Miles City Frank Dwyer, Butte Central HOUSE LEADERSHIP Pro Tem and Committee Chairs: Wade Nelson, Butte High Blossom, Capitol, Judiciary Jeramiah Mohr, Butte High Cody Carlson, Gardiner Ryan Richardson, Butte Central, Natural Resources and Transp Vice Chairs: - Cordell Murray, Miles City Paul Thomas LaFleur, Butte Central, Natural Resources and Transp Silvana King, Miles City Archie Petritz, Butte Central Parker Erickson, Miles City HOUSE CLERKS: Abraham Macey, SW MT YMCA; Tristan Rhodes, Gardiner INGALLS SENATE LEADERSHIP – Vice Chairs - Kara Hanna, Gardiner HATHAWAY HOUSE LEADERSHIP – Vice Chairs - TBA Sergeant at Arms: Senate: Christopher Bokoboy, Helena High School House: TBA
DELEGATION ADVISORS Josh Rassi ............................................................................................................ Bozeman High School Laura Lee Davenport ........................................................................................... Butte Central Catholic High School Pam Green, Dale Burgman .................................................................................. Butte High/YMCA Steve Gideon ........................................................................................................ Darby High School Christina Cote ...................................................................................................... Gardiner John Hansen ......................................................................................................... Geyser High School Bill Kaiser ............................................................................................................ Helena Capital Sabrina Holland ................................................................................................... Helena High Fritz Bieler ........................................................................................................... Jefferson County High School Traci Duffin ......................................................................................................... Miles City Bryan Beitel ......................................................................................................... Park County HS, Livingston Zach McRae ......................................................................................................... SW Montana YMCA, Dillon Tim Biggs ............................................................................................................ St. Ignatius High School ADVISORY BOARD Ivie English .......................................................................................................... Governor Bullock’s Office Katrina Schweitzer ............................................................................................... Montana Secretary of State’s Office Tim Biggs ............................................................................................................ Teacher, St. Ignatius Phil Grimm .......................................................................................................... Retired – Butte YMCA Wayne Moller ...................................................................................................... Billings YMCA Associate Director Todd Rouse .......................................................................................................... Southwestern MT YMCA Executive Director Andrea Stevenson ................................................................................................ Bozeman YMCA, Executive Director Brian Steffen ........................................................................................................ Missoula, MYCA Holly McCamant ................................................................................................. Statewide Director Shannon Tempel .................................................................................................. 2016 Youth Governor Paige Robinson .................................................................................................... 2016 Youth Supreme Court Justice Mark Lancaster………………………………………………………………….Attorney Luxan & Murfitt, Helena Siri Smillie………………………………………………………………………Education Policy Advisor, Governor’s Office Brenda Wahler ..................................................................................................... Former Statewide Director David Smith ......................................................................................................... Helena YMCA, Executive Director PROGRAM AREA ADVISORS Court Program ..................................................................................................... Lindsey Kambich, Butte High Court Program ..................................................................................................... John Sacklin, Gardiner Lobbyist Program ................................................................................................ Traci Duffin, Miles City Press Program ...................................................................................................... Bill Kaiser, Helena Capital Legislative Program ............................................................................................. Christina Cote, Gardiner First Year Program .............................................................................................. Sabrina Holland, Helena High STATE DIRECTORS, PAST AND PRESENT 2009-2016 ............................................................................................................ Holly McCamant 2004-2008 ............................................................................................................ Susan Quinn 2003-2004 ............................................................................................................ Tyler Wright 1994-2003 ............................................................................................................ Brenda Wahler 1990-1994 ............................................................................................................ Jean Johnson 1986-1989 ............................................................................................................ Betti Christie Hill 1984-1986 ............................................................................................................ Wayne Phillips 1982-1984 ............................................................................................................ Karen Mikota 1981 ..................................................................................................................... Rick Bartos 1976-1980 ............................................................................................................ Mary Beth Linder 1970-1975 ............................................................................................................ Dick Corne' (Program Founder and
Board Chair through 1994)
4
Year
Gov
erno
rLt
. Gov
erno
rSe
nate
Pre
side
ntH
ouse
Spe
aker
Secr
etar
y of
Sta
teC
hief
Jus
tice
2015
Shan
non
Tem
pel,
Butte
Becc
a Sc
hnab
el, B
utte
Gun
ther
Cla
rk, B
utte
Sam
anth
a Jo
hnst
on,
Butte
Vict
oria
Bla
kely
-Pad
illa,
Gar
dine
rBl
ake
Cas
agra
nda,
But
te
2014
Gab
e C
hils
on, D
illon
Mira
nda
Bish
op, B
utte
Jay
Buet
er, G
ardi
ner
Mitc
h Bl
ack,
But
teEt
han
Tata
rka,
Gar
dine
rBl
ake
Cas
agra
nda,
But
te
2013
Cha
rlie
Mog
en, P
ark
HS
Jack
Gal
lagh
er, B
CH
SFo
rrest
Rei
nhar
t, G
ardi
ner
Nat
alia
Boi
se, P
ark
HS
Ros
e C
ote,
Gar
dine
rJo
sh H
arris
, Dillo
n20
12M
onte
Col
e, L
ivin
gsto
nTh
omas
Ray
mon
d, B
utte
Noe
lani
Boi
se, L
ivin
gsto
nEv
an B
arre
tt, L
ivin
gsto
nJo
hn B
arlo
w, L
ivin
gsto
nR
ose
Cot
e, G
ardi
ner
2011
PJ D
owne
y, B
ozem
anM
orga
n Sm
ith, G
ardi
ner
John
Nic
kers
on, P
ark
HS
Mon
te C
ole,
Par
k H
STo
ry V
ande
rsni
chC
lara
Daw
n Pi
azzo
la
2010
Bert
Mar
tin, B
utte
PJ D
owne
y, B
ozem
anD
evon
Com
pton
, Dillo
nTe
rry M
cAllis
ter,
Gar
dine
rAs
a D
icke
rson
, Par
k H
SM
orga
n Sm
ith, G
ardi
ner
2009
Ben
Und
erw
ood,
Gar
dine
rM
icah
Pric
e, L
ivin
gsto
nBe
rt M
artin
, But
teTi
m S
eery
, Gre
at F
alls
Nat
han
Mur
phy,
Har
din
Paul
ine
Dar
r, G
ardi
ner
2008
Wal
ker S
tole
, Liv
ings
ton
Bryn
n Er
b, D
illon
Hea
ther
Hau
g, L
ivin
gsto
nBe
n U
nder
woo
d, G
ardi
ner
Britt
any
Car
lson
, Par
k H
SC
assi
e G
unde
rson
, Dillo
n20
07Fo
rd S
mith
, Gar
dine
rJe
nnife
r Hep
p, G
reat
Fal
lsBe
n U
nder
woo
d, G
ardi
ner
Jacq
ues
Dup
uis,
Gre
at F
alls
Shea
Riv
ard,
Liv
ings
ton
Gen
e R
iord
an, B
utte
2006
Paul
Mor
gan,
Hel
ena
HS
Vane
ssa
Siev
ers,
Liv
ings
ton
Nic
k D
avis
, Boz
eman
Chr
isto
pher
Plu
mb,
Gar
dine
rKa
ylei
gh B
row
n, B
utte
2005
Paul
Mor
gan,
Hel
ena
Hig
hAl
exan
dra
Mea
dor,
Livi
ngst
onTh
ane
Ric
hard
, Boz
eman
Vane
ssa
Siev
ers,
Liv
ings
ton
Che
lsey
Eva
ns, L
ivin
gsto
nKa
ylei
gh B
row
n, B
utte
2004
Jeff
Wils
on, H
elen
a H
igh
Qui
nn C
onle
y, L
ivin
gsto
nPa
ul M
orga
n, H
elen
a H
igh
Rob
Lun
dgre
n, L
ivin
gsto
nSa
ul R
ivar
d, L
ivin
gsto
nM
ary
Milo
drag
ovic
h, B
utte
2003
Thom
Bla
ke, L
ivin
gsto
nG
age
Har
t Zob
ell,
Dillo
nLa
ura
Cot
e, G
ardi
ner
Stac
y St
anis
lao,
Boz
eman
Mat
t Det
tori,
Liv
ings
ton
Mar
y M
ilodr
agov
ich,
But
te
2002
Dou
g H
oak,
Gar
dine
rBr
ian
Witt
, Boz
eman
Kevi
n M
oran
, Hel
ena
Vinn
ie P
avlis
h, B
illing
sM
ax Y
ates
, But
teSu
ba G
anes
an, B
utte
2001
Mat
t Sin
ger,
Billin
gsBo
b Br
ock,
But
teEr
ic B
uelin
g, G
reat
Fal
lsKe
vin
Mor
an, H
elen
aAn
drea
Utic
k, H
elen
a C
apita
l Joh
n C
umm
ings
, But
te
2000
Rac
hael
McC
rack
en, G
reat
Fa
llsJo
n Sw
itzer
, Billi
ngs
Abra
Bel
ke, B
utte
Mat
t Sin
ger,
Billin
gsJ.
J. H
iggi
ns, G
reat
Fal
lsR
ose
Ham
mer
, But
te
1999
Adam
Bar
nhar
t, D
illon
Just
in D
avis
, Liv
ings
ton
Bret
t Cla
rk, G
reat
Fal
lsD
erek
Stu
rm, H
elen
a C
apita
lAn
dy T
wee
ten,
Hel
ena
Hig
hD
enic
e Ke
lley,
Dillo
n; M
ark
Ligh
tner
, Boz
eman
1998
Clin
t Key
, Gre
at F
alls
Ben
Mar
tin (e
lect
ed),
Hel
ena
Cap
ital;
Cra
ig L
aDou
cer
(ser
ved)
, But
te
Cou
rtney
Pat
erso
n, B
ozem
anSe
an M
icke
n, B
ozem
anJa
ymee
Sire
, Gre
at F
alls
1997
Cod
y Ev
ans,
Gre
at F
alls
Jerry
Isaa
cson
, But
teTr
avis
Har
p, G
reat
Fal
ls
1996
Dav
id T
orge
rson
, Gre
at F
alls
Andr
ea Ir
ey, B
ozem
anD
an P
ehan
, Gre
at F
alls
1995
Scyl
ler B
orgl
um, G
reat
Fal
lsPa
ul M
iche
ls, M
edic
ine
Lake
Erin
Mc
Man
us, G
reat
Fal
ls
1994
Chr
is L
ohse
, Gre
at F
alls
Ben
Goo
d, G
reat
Fal
lsEm
ily T
hom
pson
, Hel
ena
5
Year
Gov
erno
rLt
. Gov
erno
rSe
nate
Pre
side
ntH
ouse
Spe
aker
Secr
etar
y of
Sta
teC
hief
Jus
tice
1993
Kend
all F
ergu
son,
Gre
at F
alls
Chr
is L
ohse
, Gre
at F
alls
Bill
Rig
ler,
Billin
gs
1992
Gre
g Pi
nski
, Gre
at F
alls
Nic
k Sh
eedy
, Big
fork
Cor
y M
oore
, Med
icin
e La
ke
1991
Rog
an F
ergu
son,
Gre
at F
alls
Kelly
Gas
ton,
Boz
eman
Mik
e Br
ooke
, But
te
1990
John
Mila
novi
ch, B
utte
Bria
n W
elsc
h, B
utte
Leon
Wes
term
ark,
But
te
1989
Mat
t Mille
r, G
reat
Fal
lsAa
ron
Wei
ssm
an, G
reat
Fal
lsBr
ian
Ros
enba
um, G
reat
Fal
ls
1988
Shaw
n R
olan
d, G
reat
Fal
lsC
ory
Wag
ner,
Gre
at F
alls
(not
kno
wn)
1987
Dam
on C
ott,
Butte
Hal
ey H
alen
, Boz
eman
Geo
rge
Gro
esbe
ck, B
utte
1986
Loey
Gai
l Wer
king
, Col
umbi
a Fa
llsTa
mi P
ettit
, Col
umbi
a Fa
llsKr
is S
ell,
Col
umbi
a Fa
lls
1985
J.R
. Joh
nson
, Hel
ena
(not
kno
wn)
(not
kno
wn)
Keith
Gre
en
1984
Step
hen
Bullo
ck, H
elen
a(n
ot k
now
n)(n
ot k
now
n)
1983
W. B
rian
McC
ullo
ugh,
M
isso
ula
Dav
id C
anno
nSt
ephe
n Bu
llock
, Hel
ena
1982
Willi
am M
erce
r, Bi
llings
(not
kno
wn)
(not
kno
wn)
1981
Jim
Loc
hrid
geM
ike
Mc
Faul
Bruc
e Sc
haub
le
1980
Dav
id S
tonn
ell,
Boze
man
Jon
Stro
m, B
ozem
anLe
wis
Cou
sine
au, C
olum
bia
Falls
1979
??, C
olum
bia
Falls
(not
kno
wn)
Jon
Stro
m, B
ozem
an
1978
Willi
am C
ole,
Boz
eman
Mic
key
Die
deM
arco
de
Sa e
Silv
a, B
ozem
anBe
n R
ixe,
Boz
eman
1977
Ben
Rix
e, B
ozem
an(n
ot k
now
n)W
illiam
Col
e, B
ozem
an
1976
Karl
Inge
brig
tson
, Gre
at F
alls
(not
kno
wn)
(not
kno
wn)
1975
John
C. M
cCul
loug
h(n
ot k
now
n)(n
ot k
now
n)
1974
Mic
hael
D. R
ap, B
ozem
an(n
ot k
now
n)(n
ot k
now
n)
1973
Mic
hael
Bar
rett,
Mis
soul
a(n
ot k
now
n)(n
ot k
now
n)
1972
Yout
h C
on C
on P
resi
dent
: Jo
hn P
. Ellio
tt, B
ozem
anYo
uth
Con
Con
Vic
e Pr
esid
ent:
Mik
e Ba
rrett,
M
isso
la
Yout
h C
on C
on S
ecre
tary
: Jo
yce
Jaro
sz, B
ozem
an
1971
Bob
Tayl
or (G
reat
Fal
ls?)
John
Fly
nn, (
Hel
ena?
)(n
ot k
now
n)(n
ot k
now
n)
6
Montana YMCA Youth and Government Program History Montana’s program was organized in 1970, with the first Youth Legislature held in the spring of 1971. From 74 students in 1971, the program now serves over 400 young people.
U.S. Program History (Thanks to the California Youth and Government Program for the following information) Nationally, the YMCA Youth and Government Program began in New York State in 1936. In the mid-1930's, Clement A. Duran, the Boy's Work Secretary of the Albany YMCA, realized the government's need for more leaders of high moral character and integrity. At the same time he realized the need for high school youth to have a meaningful introduction to the democratic processes of government since they would soon become full-fledged adult citizens. Duran struck upon the idea of a Model Legislature as a program vehicle for introducing the youth to the actual processes and leadership of their state government. He hoped that such a highly meaningful experience might inspire the youth to think seriously about government as a career--or at least to stimulate the beginning of their active and concerned partitipation in government as a citizen. The slogan "Democracy Must Be Learned by Each Generation" was developed by Duran as a motto to interpret the purpose of the program. With these goals in mind, he successfully developed the first YMCA Youth and Government Program with the help of William H. Burger for members of New York Hi-Y and Tri-Hi-Y clubs (high school age YMCA members) in 1936. The first Model Legislature was held that year in Albany, New York. With encouragement from the National Council of YMCAs, the program rapidly spread to other nearby states. Today, over 40 states have YMCA Youth and Government programs.
7
FIRST NAME LAST NAME DELEGATION POSITIONAnabelle Worsham Bozeman High Delegation RepresentativeChristopher Munson Bozeman High Delegation RepresentativeDaniel Gao Bozeman High Delegation RepresentativeFaith Uzenski Bozeman High Delegation RepresentativeLuke Cusomato Bozeman High Delegation RepresentativeMadison Wolfe Bozeman High Delegation RepresentativeMichael Lee Bozeman High Delegation RepresentativeBen Smithgall Bozeman High Delegation SenatorBridger Arthun Bozeman High Delegation SenatorDillon Fatouros Bozeman High Delegation SenatorGarret Nielson Bozeman High Delegation SenatorMaxwell Conser Bozeman High Delegation Senatormichael lee Bozeman High Delegation SenatorSeth Colella Bozeman High Delegation SenatorZeb Antonioli Butte Central High Delegation First Year HouseAidan Dennehy Butte Central High Delegation LobbyistAli Guldseth Butte Central High Delegation LobbyistCole Harper Butte Central High Delegation LobbyistKyle Schulte Butte Central High Delegation LobbyistTeresa Piazzola Butte Central High Delegation LobbyistAbby McGee Butte Central High Delegation RepresentativeArchie Petritz Butte Central High Delegation RepresentativeBlake Burton Butte Central High Delegation RepresentativeCade Holter Butte Central High Delegation RepresentativeCameron Johnson Butte Central High Delegation RepresentativeColby Kline Butte Central High Delegation RepresentativeDylan Shea Butte Central High Delegation RepresentativeJared Schneider Butte Central High Delegation RepresentativeKaiden Kasun Butte Central High Delegation RepresentativeKate Ossello Butte Central High Delegation RepresentativeKaylee O'herron Butte Central High Delegation RepresentativeKellsie Quinn Butte Central High Delegation RepresentativeKloie Thatcher Butte Central High Delegation RepresentativeLacey Mcgree Butte Central High Delegation RepresentativeLarysa Blavatsky Butte Central High Delegation RepresentativeLogan Harrrington Butte Central High Delegation Representative
8
Mckenzie Gallagher Butte Central High Delegation RepresentativeMegan Mcpherson Butte Central High Delegation RepresentativeNate Mcgree Butte Central High Delegation RepresentativeNoah Clark Butte Central High Delegation RepresentativeNoah McGee Butte Central High Delegation RepresentativeOlivia Bolton Butte Central High Delegation RepresentativePaul Thomas LaFleur Butte Central High Delegation RepresentativeRoy Russell Butte Central High Delegation RepresentativeRyan Ashby Butte Central High Delegation RepresentativeRyan Richards Butte Central High Delegation RepresentativeRyan Trudnowski Butte Central High Delegation RepresentativeSarah Drew Butte Central High Delegation RepresentativeShawnee Hjelt Butte Central High Delegation RepresentativeSierra Pica Butte Central High Delegation RepresentativeTash Lester Butte Central High Delegation RepresentativeWhitney Mcgree Butte Central High Delegation RepresentativeConnor Ford Butte Central High Delegation SenatorFrank Dwyer Butte Central High Delegation SenatorJake Mcpherson Butte Central High Delegation SenatorLiam Devine Butte Central High Delegation SenatorBrittney Long Butte High Delegation AttorneyCassidy Duddy Butte High Delegation AttorneyClint Connors Butte High Delegation AttorneyErik Casagranda Butte High Delegation AttorneyJackson Maloney Butte High Delegation AttorneyJackson Maloney Butte High Delegation AttorneyLeif Clark Butte High Delegation AttorneyXavier Black Butte High Delegation AttorneyJosh Stallman Butte High Delegation First Year SenatorShannon Tempel Butte High Delegation GovernorSamantha Johnston Butte High Delegation Governor's CabinetRiley Walsh Butte High Delegation ReporterAbigail Dodge Butte High Delegation RepresentativeAshley Creech Butte High Delegation RepresentativeCynthia Trudgeon Butte High Delegation RepresentativeEmmaLee Hildreth Butte High Delegation RepresentativeErynn Metesh Butte High Delegation Representative
9
Heidi Steiger Butte High Delegation RepresentativeJeramiah Mohr Butte High Delegation RepresentativeKaity McGruder Butte High Delegation RepresentativeKyle Klapan Butte High Delegation RepresentativeMarietta Sorini Butte High Delegation RepresentativePatrick Schnabel Butte High Delegation RepresentativeTaylor Andrews Butte High Delegation RepresentativeThomas Dolan Butte High Delegation RepresentativeRj Hyatt Butte High Delegation Secretary of StateBennett Sampson Butte High Delegation SenatorBrandon Quinn Butte High Delegation SenatorCody Berge Butte High Delegation SenatorEric Keenan Butte High Delegation SenatorErik Rosa Butte High Delegation SenatorGunther Clark Butte High Delegation SenatorIsaiah Weldon Butte High Delegation SenatorJulia Vercella Butte High Delegation SenatorLogan Johnson Butte High Delegation SenatorMason Ruppel Butte High Delegation SenatorNicole Hyatt Butte High Delegation SenatorPatrick O'Herron Jr. Butte High Delegation SenatorSeth Reighard Butte High Delegation SenatorWade Nelson Butte High Delegation SenatorZach Archibald Butte High Delegation SenatorHannah Ludlow Capital High Delegation EditorSeely Hoffman Capital High Delegation Governor's CabinetDavid Jenks Capital High Delegation ReporterHayden Tillinger Capital High Delegation ReporterSarah Fredrick Capital High Delegation RepresentativeTaylor Blossom Capital High Delegation RepresentativeEthan Holmes Capital High Delegation SenatorCasey Smith Darby Delegation AttorneyJessica Finks Darby Delegation AttorneyLily Heiland Darby Delegation AttorneyMikayla Weidow Darby Delegation AttorneyCasey Ehmann Darby Delegation First Year HouseEvan Duggan Darby Delegation First Year House
10
Rebecca Seidelin Darby Delegation First Year HouseTeaAnna Rouse Darby Delegation First Year HouseBreanna Brickey Darby Delegation First Year SenatorMelanie Hauck Darby Delegation First Year SenatorKyle Wall Darby Delegation LobbyistEvangeline Campbell Darby Delegation ReporterLily Lang Darby Delegation SenatorWyatt Campbell Darby Delegation SenatorAbigail Dean Gardiner Delegation AttorneyBenjamin Bierle Gardiner Delegation AttorneyCaylee Stroder Gardiner Delegation AttorneyClancy Thomas Gardiner Delegation AttorneyEmilie Hansen Gardiner Delegation AttorneyKathryn Ross Gardiner Delegation AttorneyPaige Robinson Gardiner Delegation Chief JusticeSharidan Brown Gardiner Delegation ClerkTristan Rhodes Gardiner Delegation ClerkAndrea Angermeier Gardiner Delegation First Year HouseJames Roberts Gardiner Delegation First Year HouseTaylor Swainson Gardiner Delegation Governor's CabinetZachary Macy Gardiner Delegation Governor's CabinetJacob Oppelt Gardiner Delegation JusticeOlivia Reid Gardiner Delegation JusticeJesse Davey Gardiner Delegation LobbyistTaylor Manry Gardiner Delegation LobbyistChristi Webster Gardiner Delegation ReporterLauren Vallie Gardiner Delegation ReporterSage Cowley Gardiner Delegation ReporterBaxter Fuhrmann Gardiner Delegation RepresentativeBen Rodman Gardiner Delegation RepresentativeBryson Stermitz Gardiner Delegation RepresentativeCody Carlson Gardiner Delegation RepresentativeEthan Powell Gardiner Delegation RepresentativeHannah Hansen Gardiner Delegation RepresentativeIan Mcintosh Gardiner Delegation RepresentativeJarred Hurst Gardiner Delegation RepresentativeLeah Porzner Gardiner Delegation Representative
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Liam Gilbert Gardiner Delegation RepresentativeAdam Crow Gardiner Delegation SenatorCaitlin Cunningham Gardiner Delegation SenatorKara Hanna Gardiner Delegation SenatorNichole Tyson Gardiner Delegation SenatorPaul Helfrich Gardiner Delegation SenatorHayden Blackford Gardiner Delegation Speaker of the Housecameron cali Geyser High School First Year HouseDillon Boberg Geyser High School First Year HouseKyra Randel Geyser High School First Year HouseAllen Simpson Geyser High School First Year SenatorCaleb Pollari Geyser High School RepresentativeJay Steele Geyser High School RepresentativeNicholas Van valkenburg Geyser High School RepresentativeDan Ruether-Affor Helena High Delegation First Year HouseSamuel Bryan Helena High Delegation JusticeJosh Hamilton Helena High Delegation RepresentativeMaggie Needs Helena High Delegation RepresentativeBrent Lloyd Helena High Delegation SenatorChristopher Bokovoy Helena High Delegation SenatorClaire Brosten Helena High Delegation SenatorJames Blanchard Helena High Delegation SenatorHunter Henschel Jefferson High Delegation First Year HouseRahkei Eyer Jefferson High Delegation Governor's CabinetAnthony Zufelt Jefferson High Delegation JusticeBrendan Zelenka Jefferson High Delegation RepresentativeChristian Peterson Jefferson High Delegation RepresentativeKaylee Ottman Jefferson High Delegation RepresentativeLogan Leary Jefferson High Delegation RepresentativeMadi Roudebush Jefferson High Delegation RepresentativeNick Winfield Jefferson High Delegation RepresentativeTrase LeTexier Jefferson High Delegation RepresentativeAidan Bagwell Jefferson High Delegation SenatorAJ Eckmann Jefferson High Delegation SenatorIsaiah Hesford Jefferson High Delegation SenatorJered Padmos Jefferson High Delegation SenatorLincoln Leary Jefferson High Delegation Senator
12
Merrill Steketee Jefferson High Delegation SenatorBaylie Rodenbaugh Miles City Delegation AttorneyBrittany Merrill Miles City Delegation AttorneyMadison Ueland Miles City Delegation AttorneyWhitney Bristol Miles City Delegation AttorneyJason Harden Miles City Delegation JusticeKristen Selk Miles City Delegation LobbyistLeslie Beckman Miles City Delegation LobbyistLyzia Laakso Miles City Delegation LobbyistGavin Herzog Miles City Delegation ReporterIsabelle Monroe Miles City Delegation ReporterMatthew Blunt Miles City Delegation ReporterCordell Murray Miles City Delegation RepresentativeDani Merchant Miles City Delegation RepresentativeGavin Gundlach Miles City Delegation RepresentativeKaitlan Warmbrod Miles City Delegation RepresentativeKelly Prete Miles City Delegation RepresentativeParker Erickson Miles City Delegation RepresentativeSilvana King Miles City Delegation RepresentativeDeanna Banister Miles City Delegation SenatorGavin Gundlach Miles City Delegation SenatorMarissa Henning Miles City Delegation SenatorAdam Lewis Park High Delegation First Year SenatorAurora Boise Park High Delegation First Year SenatorCharles Kirn Park High Delegation First Year SenatorElana Boise Park High Delegation First Year SenatorIsabel Sexton Park High Delegation First Year SenatorAmber Fowlie Park High Delegation RepresentativeDrew Totland Park High Delegation RepresentativeGrant Snow Park High Delegation RepresentativeJoey Pesa Park High Delegation RepresentativeKelton Madden Park High Delegation RepresentativeMaia Reddington Park High Delegation RepresentativePeyton Murphy Park High Delegation RepresentativeLeila Marsh St. Ignatius Delegation First Year HouseSophia Tolbert St. Ignatius Delegation First Year HouseTori Peterson St. Ignatius Delegation First Year House
13
Warren Castor St. Ignatius Delegation First Year HouseAugustus Bosley St. Ignatius Delegation First Year SenatorDana Goss-Dickie St. Ignatius Delegation First Year SenatorShaniya Decker St. Ignatius Delegation First Year SenatorBenton Adams St. Ignatius Delegation RepresentativeEthan Goss-dickie St. Ignatius Delegation Representativeisrael umphrey St. Ignatius Delegation RepresentativeJoshua Hugs St. Ignatius Delegation RepresentativeMegan Wieder St. Ignatius Delegation RepresentativeNina Popyk St. Ignatius Delegation RepresentativePeter Matt St. Ignatius Delegation RepresentativeAndrew Esslinger St. Ignatius Delegation SenatorDaisie Vandenbos St. Ignatius Delegation SenatorEmanuelle Lachance St. Ignatius Delegation SenatorJoseph Kipp St. Ignatius Delegation SenatorKatherine Scalzone SW Montana YMCA Delegation AttorneyMariah Mosher SW Montana YMCA Delegation AttorneyAbraham Macy SW Montana YMCA Delegation ClerkPayton Lafrentz SW Montana YMCA Delegation ClerkHarleigh Johnson SW Montana YMCA Delegation First Year HouseHelena Schoonen SW Montana YMCA Delegation First Year HouseShelbie Marsh SW Montana YMCA Delegation First Year HouseJoe Egan SW Montana YMCA Delegation First Year SenatorSam Telling SW Montana YMCA Delegation Governor's CabinetMatthew Shenton SW Montana YMCA Delegation JusticeBill Bramlet SW Montana YMCA Delegation LobbyistRansom Bowman SW Montana YMCA Delegation LobbyistTodd Nordahl SW Montana YMCA Delegation LobbyistDale Royer SW Montana YMCA Delegation Lt. GovernorKyle Finch SW Montana YMCA Delegation President of the SenateAmber Sitz SW Montana YMCA Delegation ReporterJayden Chilson SW Montana YMCA Delegation ReporterAshley Sitz SW Montana YMCA Delegation RepresentativeEmily Towery SW Montana YMCA Delegation RepresentativeHailey Garrison SW Montana YMCA Delegation RepresentativeKyson Wilson SW Montana YMCA Delegation RepresentativeMakaila Marsh SW Montana YMCA Delegation Representative
14
Sam Peterson SW Montana YMCA Delegation RepresentativeSerena Nelson SW Montana YMCA Delegation RepresentativeFinley Andrew SW Montana YMCA Delegation SenatorGunnar Maisch SW Montana YMCA Delegation SenatorHeidi Martin SW Montana YMCA Delegation SenatorRaymond Shipman SW Montana YMCA Delegation SenatorTroy Andersen SW Montana YMCA Delegation Senator
15
FIRST NAME LAST NAME DELEGATION POSITIONPaige Robinson Gardiner Delegation Chief JusticeJacob Oppelt Gardiner Delegation JusticeOlivia Reid Gardiner Delegation JusticeSamuel Bryan Helena High Delegation JusticeAnthony Zufelt Jefferson High Delegation JusticeJason Harden Miles City Delegation JusticeMatthew Shenton SW Montana YMCA Delegation JusticeJackson Maloney Butte High Delegation AttorneyLeif Clark Butte High Delegation AttorneyXavier Black Butte High Delegation AttorneyCasey Smith Darby Delegation AttorneyJessica Finks Darby Delegation AttorneyLily Heiland Darby Delegation AttorneyMikayla Weidow Darby Delegation AttorneyAbigail Dean Gardiner Delegation AttorneyBenjamin Bierle Gardiner Delegation AttorneyCaylee Stroder Gardiner Delegation AttorneyClancy Thomas Gardiner Delegation AttorneyEmilie Hansen Gardiner Delegation AttorneyKathryn Ross Gardiner Delegation AttorneyBaylie Rodenbaugh Miles City Delegation AttorneyBrittany Merrill Miles City Delegation AttorneyMadison Ueland Miles City Delegation AttorneyWhitney Bristol Miles City Delegation AttorneyKatherine Scalzone SW Montana YMCA Delegation AttorneyMariah Mosher SW Montana YMCA Delegation AttorneySharidan Brown Gardiner Delegation Sup Ct Clerk
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.1
Montana YMCA Youth & Government Program
Model Supreme Court Manual 2006 Edition
“Democracy must be learned by each generation.”
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.2
Acknowledgements Original materials developed by: Stephen Bullock, Assistant Attorney General, Montana Department of Justice* (1984 Montana Youth Governor) Brenda Wahler, State Director, Montana YMCA Youth and Government Program* Chris Wethern, Staff Attorney, Montana Supreme Court With special thanks to: Chief Justice Karla M. Gray, Montana Supreme Court Acknowledgements Program concept and materials adapted in part from: Previous versions of the Montana YMCA Youth and Government Program Manual
• Florida YMCA Youth in Government Program
• Idaho YMCA Youth Government Program
• Minnesota YMCA Youth in Government Program
• Pennsylvania YMCA Model Judicial Program
• Texas YMCA Youth and Government Program
• Wisconsin YMCA Youth in Government Program The Montana YMCA Youth and Government Program wishes to thank the following individuals and organizations for their assistance and support of our Model Supreme Court: Montana Supreme Court: The Honorable J. A. Turnage, Chief Justice The Honorable Karla M. Gray The Honorable James C. Nelson The Honorable William E. Hunt, Sr. The Honorable Jim Regnier The Honorable William Leaphart The Honorable Terry Trieweiler
• Montana Law Foundation, George Bousliman, Executive Director
• Ed Smith, Clerk of the Montana Supreme Court*
• State Bar of Montana Law-Related Education Committee, Michael Dahlem, chair
• Geralyn Driscoll, Legal Counsel, Office of Public Instruction
• Loey Werking Wells, Executive Director, Oregon Women Lawyers; 1986 Montana Youth Governor*
• Ellen Beldner, Advisor, Pennsylvania YMCA Model Judicial Program; Florida YMCA Youth In Government Program 1996 Chief Justice
• Montana Office of the Court Administrator
• Montana State Law Library Montana YMCA Youth and Government Program Model Supreme Court Committee: Rick Bartos, Chair*, Mike Pichette, Bob Person, Steve Bullock*, Brenda Wahler* * Montana YMCA Youth and Government Program alumni Original materials © 1998 Montana YMCA Youth and Government Program. Materials may be used in part or whole by other parties as long as they are not sold for profit and all state programs or individuals listed above and in endnotes are properly credited.
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.3
Table of Contents
Introduction and Overview ........................................................................................................................ 7.4 The Montana Judicial System.................................................................................................................... 7.5 Guidelines and Participant Rules ............................................................................................................... 7.7
Justices .......................................................................................................................................... 7.7 Attorneys....................................................................................................................................... 7.7 Cases and Briefs............................................................................................................................ 7.8 Oral Arguments............................................................................................................................. 7.8 Other Appointed Officers ............................................................................................................. 7.8
Research Guidelines................................................................................................................................... 7.9 Brief Writing Guidelines............................................................................................................................ 7.9 Sample Brief ............................................................................................................................................ 7.10 Brief Writing in Detail ............................................................................................................................. 7.19 Citation Format ........................................................................................................................................ 7.23
General Abbreviations ................................................................................................................ 7.24 Examples..................................................................................................................................... 7.26
Oral Arguments Guidelines ..................................................................................................................... 7.27 Organizing an Oral Argument .................................................................................................... 7.27 Time Limits for Oral Arguments ................................................................................................ 7.28
Structure and Content of the Oral Argument ........................................................................................... 7.29 Introductory Statements .............................................................................................................. 7.29 The Argument Itself.................................................................................................................... 7.29 Concluding Statements ............................................................................................................... 7.30 The Appellant’s Rebuttal ............................................................................................................ 7.30
How to Present an Oral Argument........................................................................................................... 7.30 Suggestions on Appearance, Speaking Style, and Manner ......................................................... 7.31 Handling Questions from Justices .............................................................................................. 7.31
Model Supreme Court Courtroom Protocol and Procedures ................................................................... 7.33 Rules of Courtroom Procedure ................................................................................................................ 7.34 Presentation of Oral Arguments............................................................................................................... 7.34 Courtroom Protocol and Procedures ........................................................................................................ 7.35 Supreme Court Justices............................................................................................................................ 7.37
Becoming a Justice ..................................................................................................................... 7.37 Preparation of Appointed and Elected Justices........................................................................... 7.38 Guidelines for Visiting Justices .................................................................................................. 7.38 Preparation, Case review ............................................................................................................ 7.38 Oath of Office ............................................................................................................................. 7.39 The Case Hearing........................................................................................................................ 7.39 Avoiding Conflicts of Interest .................................................................................................... 7.39 Deliberation and Vote................................................................................................................. 7.40
Writing Opinions ..................................................................................................................................... 7.40 Sample Opinion .......................................................................................................................... 7.41
Bench Memoranda ................................................................................................................................... 7.42 Bench Memoranda Outline ......................................................................................................... 7.43 Sample Bench Memoranda #1 .................................................................................................... 7.44 Sample Bench Memoranda #2 .................................................................................................... 7.45
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.4
Introduction
In the Montana YMCA Model Supreme Court, cases are developed which are similar in nature to an actual case that might be appealed to the real Montana Supreme Court:
• Youth Attorneys must study research materials provided and apply that law to their assigned casein both written and oral arguments.
• Youth Justices are selected who will study the briefs and listen to the oral arguments of theAttorneys, rendering decisions and written opinions on each case hearing.
• A Marshall and Clerk are appointed to assist the court proceedings.Consistent with the guidelines for Law-Related Education recommended by the Montana Office of Public Instruction (OPI), the Montana YMCA Model Supreme Court program is not designed to deliver specialized legal education, but rather is intended to develop in participants an understanding of the values and principles on which the legal system is based.
Cooperating with the focus of the YMCA on Character Development, the Model Supreme Court program challenges participants to accept and demonstrate the positive values of caring, honesty, responsibility and respect.
Program Overview
• This program is modeled on an appeal tothe Montana Supreme Court. In otherwords, this is not a Mock Trialcompetition; it is somewhat like a LawSchool's Moot Court.
• Participants who are Attorneys write abrief, present at least two oral argumentsand participate as “Visiting” Justices forthe hearing of at least one case.
• There is no competitive elimination ofparticipants. All participants areinvolved throughout the session.
• At least two cases are developed. Casesand the side of the case argued areassigned to participants on a randombasis.
• Participants who are Attorneys write ashort legal brief for ONE side of thecase. Samples and guidelines areprovided in this manual.
• Attorneys prepare oral arguments forBOTH sides of their assigned case.
• Participants are provided all pertinentresearch material for their cases, thuskeeping the program fair to those whomay not have access to a Law Library.
• Attorneys argue their case in teams oftwo.
• Selected Applicants will serve as ModelSupreme Court Justices. (The positionof Chief Justice may be elected byparticipants in future years.)
• Justices elected or appointed as notedabove serve full time on the bench, andtheir numbers are supplemented byAttorney participants, each of whom isgiven the opportunity to serve as a“Visiting” Justice for at least onehearing.
• A Marshall and 1-2 Clerks areappointed. These positions are allocatedto participating schools in the samemanner as other appointed offices.
• Participants will do all written workprior to the session. No additionalwriting will be required during thesession.
• A Brief Writing Award is given, to bejudged by qualified adult volunteers.
• An Attorney Team of the year award isgiven.
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.5
DISTRICT COURT Jurisdiction includes criminal,
tort, contract, and property rights; exclusive jurisdiction in domestic relations, mental health, estate, civil appeals,
and miscellaneous civil cases.
WORKER’S COMPENSATION COURT
Caseload limited to worker’s compensation disputes. No jury trials.
WATER COURT
Limited to adjudication of existing water rights. No jury trials
cases can be appealed to
JUSTICE OF THE PEACE
COURT
At least one per county. Has jurisdiction over civil matters
involving less than $5000, small claims of less than $3000,
misdemeanor DUI, traffic, and preliminary hearings.
MUNICIPAL COURT
Same jurisdiction as Justice Court, but
judge must meet qualifications of District
Court Judge.
CITY COURT
Generally the same jurisdiction as Justice
Court, but also including city related cases.
cases can be reheard by
Adapted from 1996 Annual Report of the Montana Judiciary.
SUPREME COURT Serves both as an appellate court (court of
review) and as a court of original jurisdiction.
Supervisory control over all state courts.
MONTANA COURT STRUCTURE
The Montana Judicial System
The “real world” Montana Judicial System has three basic levels: the City and Justice Courts, District Courts and the Supreme Court. The 21 District Courts have jurisdiction over most civil and criminal cases that involve state law, and they rehear some cases originating in City and Justice Courts. The Montana Supreme Court is the only appellate court in the state. There is no intermediate appeals court. Decisions made by trial courts are generally appealable to the Supreme Court.
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.6
Judicial System Continued… Many people are familiar with trial courts from television and movies. But, while the decisions of the Montana Supreme Court are often newsworthy events, in general it (and other appeals courts) has little public contact, and its proceedings are not well understood—even though the hearings of oral arguments are open to the public. Basically, if a trial court decides against either party in a civil case, that party may appeal, contending that legal errors were made during the previous court proceedings. In a criminal case, the State generally cannot appeal a finding of not guilty, but a defendant may appeal a conviction. In Montana, all cases resulting in a death penalty sentence are automatically reviewed by the Montana Supreme Court. An appellate court, such as the Montana Supreme Court, is quite different from a trial court. Appellate courts review a trial court’s findings of fact, conclusions of law, and procedures employed, but it does not engage in independent fact-finding (for example, there are no witnesses called or physical evidence presented). Attorneys submit a written brief and sometimes also present oral arguments. At the appellate level, attorneys argue points of law. The appellant’s counsel attempts to demonstrate that the trial court either made a mistake or violated a legal principle, and that therefore the Court should overturn the previous decision. The respondent’s counsel argues that the decision of the trial court was correct.
Upon consideration of the case, the Montana Supreme Court may uphold the decision of the trial court, or they may find that the court erred in some manner and choose to reverse the previous decision. In some cases, the Supreme Court may send the case back to the District Court for a new trial. The Justices of the real Montana Supreme Court currently are asked to review over 700 of the more than 30,000 cases filed annually at the District Court level. The Court considers, in some manner, every case which is appealed to it. The Court issues written opinions in over 300 cases per year. The vast majority of cases are decided based solely on review of written briefs. Oral arguments are heard on about 40 cases per year. Very rarely, a case decided by the Montana Supreme Court can be taken into Federal District Court (in essence starting over at the Federal level), and then could be appealed to the Federal 9th Circuit Court of Appeals and possibly the U.S. Supreme Court. Violation of a federal Constitutional right is generally the basis for a Federal appeal. Unlike the Montana Supreme Court, which has to consider all cases appealed to it in some form, the U.S. Supreme Court has the power to determine which among the many appeals it receives each year it will decide (or in legal language, to grant certiorari).
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.7
Model Supreme Court Guidelines and Participant Roles
General Information • The Model Supreme Court is designed for Sophomores, Juniors and Seniors.
• Freshmen are not prohibited from being Attorneys, but due to the near-college-level writing and research requirements of the program, it is not recommended.
• Participants must meet all deadlines for submission of applications and briefs. Under exceptional circumstances, specific permission for an extension prior to the deadline may be requested from the state office.
• A “Brief Book” containing all submitted briefs is made available to Court participants when they arrive at the Youth and Government session.
• Participants in the Model Supreme Court are to uphold the Code of Conduct and observe the general rules of the Montana YMCA Youth and Government Program.
Justices Whenever possible, all cases will be heard by a Court of seven Justices, chosen as described below:
• Only Juniors and Seniors may apply to be full time Appointed Supreme Court Justices. A minimum of four full time Justices will be selected, more if overall preregistration numbers warrant.
• At the discretion of the Youth and Government Board of Directors, a Chief Justice may be elected at each session to serve the following year.
• Appointed and Elected Justices will be required to prepare a Bench Memorandum on the cases they will hear, based on the guidelines and samples in this manual.
• In each case hearing, three to four individuals on the bench will be the full time Justices, with the remaining “Visiting Justices” rotated amongst Attorney participants.
• All attorney participants will get to serve on the bench as a Visiting Justice for at least one hearing of a case.
Attorneys • Youth Attorneys will prepare briefs and
argue their case in teams of two. Team members may be from the same delegation or from different delegations.
• If one member of a team cannot attend the Youth and Government session, the remaining member will be allowed to argue the case solo if they wish, or they may team up with another individual who also lost a teammate.
• All Attorneys will have the opportunity to sit on the bench as an Visiting
Supreme Court Justice to hear at least one case.
• Team membership cannot be changed after briefs are submitted, save as noted above.
• When not involved with the court program, Attorneys are encouraged to testify as Lobbyists in committee hearings on bills before the Youth Legislature.
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.8
Cases and Briefs • At least two cases will be developed. Cases will be assigned to participants on a random basis.
Participants may not request a specific case.
• Teams will be assigned to write and submit briefs representing either the appellant or the respondent position, but not both. Positions will be assigned randomly and participants may not request a certain side. Guidelines and sample briefs are provided in this manual.
• Participants will be provided the case and all research material necessary to prepare their briefs and arguments. They may not cite materials other than those provided.
• Each case will have two basic legal issues that need to be addressed. It is recommended that each team member take one of the issues to research and argue.
• This manual and a copy of the cases (excluding research materials) will also be made available to participants via the program internet site’s Court link.
Oral Arguments • Teams prepare oral arguments for both the appellant and the respondent positions of their
assigned case.
• Teams first argue the side of the case for which they wrote a brief.
• Teams will not have to argue different sides of their case on the same day. However, if due to drops there are an unbalanced number of Appellant and Respondent teams, teams may be asked to volunteer to present their case twice.
• Preparing a summary or outline prior to the session that outlines the main arguments for both sides—and practicing arguments for both sides—is strongly recommended.
• A limited amount of time will be allotted after everyone has presented their assigned side to help teams prepare their oral arguments for the opposite side of the case, but there probably will not be enough time to create an entire argument “from scratch.” Participants will need to already have a basic outline ready that they simply need to refine, based on their experiences during the first round of arguments.
• Both teams in a hearing will either both argue from their written briefs or both argue the sides for which they have not written a brief.
• A hearings schedule will be posted in advance. Oral arguments will take place in the following sequence, with the time limits below strictly observed:
Appellant: 15 minutes
Respondent: 15 minutes
Appellant: 5 minute rebuttal of respondent’s argument
• Personal timers may be used by participants, but in the event of a discrepancy, the Marshall’s timing is official.
Other Appointed Officers • A Marshall and one or two Clerk(s) of the Supreme Court are appointed. These highly
responsible positions are allocated to participating schools in the same manner as other appointed offices in the legislative and executive branches.
• The Marshall serves as an enforcement officer of the court. S/He announces the arrival of the Justices, calls order to the court, announces the case to be heard, serves as timer for the Attorneys and enforces Courtroom rules. This individual must be assertive, responsible and well-organized.
• The Clerk(s) of the Supreme Court organizes and distributes briefs, helps schedule hearings, keeps notes on oral arguments, distributes the written decisions of the Court, records all decisions made, and assists the Justices and Marshall as needed. This individual must be responsible, meticulous, and well organized.
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.9
Research Guidelines In the case packets provided to Model Supreme Court Justices and Attorney teams, all necessary and relevant case material will be provided for research. Facts of the cases are presumed to not be in dispute. Participants may not add to or change the facts of the cases presented. Guidelines for citation format and use of research materials are covered in detail in the Brief Writing Guide which follows this section. Due to Montana’s distances and many small towns, not all participants have ready access to a law library or other outside resources. For that reason, participants are not to cite any additional material in their briefs or oral arguments other than what is included in the case packet. This is not to say that Attorneys aren’t allowed to pursue additional resources such as dictionaries of legal terms, guidebooks on brief writing, or manuals on the preparation of oral arguments. But they cannot cite or refer to any source as authority in their briefs or oral arguments other than the resources provided. Factual statements or arguments of law must be able to be backed up by the resources in the case packet. Important note: If a case in the packet contains excerpts from yet another case, participants may use those excerpts, but need to be sure that their case citation notes the case in the packet, not the excerpt.
Brief Writing Guidelines A brief is a legal document prepared by a party to the Court. It contains information on the facts of the case, the legal issues to be decided, the law the Court ought to apply, and the decision the party desires the Court to reach. The emphasis that the Montana YMCA Youth and Government Program places on preparing written briefs corresponds with the importance these documents hold in the real world of appellate law. Many appeals in Montana are decided on the basis of written briefs alone. Each Attorney team is assigned the position (Appellant or Respondent) for which they will write a brief. However, it is very important that Attorneys have a thorough understanding of both sides in order to effectively present and defend their case. The goal of a brief is to convince the Court that one’s position is correct, logical and reasonable. To be compelling, a brief must also be understandable and concise. The Court will read many briefs throughout the session, so it is important to write in a clear and interesting manner.
The brief needs to treat the Court as a potential ally to be won over by effective persuasion. The Court is interested in seeing that justice is done and law correctly applied. Briefs should never take a tone that implies that the Court is one’s opposition. The Attorney team must never lie or distort the facts of the case, but rather is to present the client’s case in the best possible light, and suggest that the action requested is not only consistent with past legal precedent, but is also just and consistent with the rule of law. Attorneys and Justices need to thoroughly understand the research materials provided with the case, but may also consider its broader social, economic, and philosophical implications. A complete sample brief, such as participants might prepare for the Model Supreme Court, follows this section, illustrating all of the parts required. A detailed explanation of each element of brief writing follows the sample. The Sample Brief can also be used as a study tool; analyzing the strengths and weaknesses of its arguments will help participants prepare their own materials.
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.10
(sample brief )
The following seven-page sample is that of an appellant’s brief, but the same general format is used for a respondent’s brief. Sample Brief case concept adapted from Florida YMCA Youth in
Government program.
IN THE YMCA MODEL SUPREME COURT OF THE STATE OF MONTANA
No. 96-001 ________________________________________________________________________
STANLEY R. AND JANICE L. DOE, individually and on behalf of their child REBECCA W. DOE, Plaintiff and Appellant, v. BOARD OF TRUSTEES, COPPER COUNTY SCHOOL DISTRICT NUMBER ONE, Darla D. Doctor, C.P. Accountant, L.C. Psychologist, "Bud" Average, and Jane Q. Public, Individually and as Members of the Copper County School District Board of Trustees, Defendant and Respondent.
________________________________________________________________________
BRIEF OF APPELLANT ________________________________________________________________________
On appeal from the District Court of
the Twenty-Fifth Judicial District of the State of Montana, in and for the County of Copper
________________________________________________________________________
ORAL ARGUMENT REQUESTED ________________________________________________________________________
APPEARANCES: Susanna C. McGillicuddy 123 Anystreet Coppertown, MT 59000 Whitney J. Macintosh 456 Main St. Coppertown, MT 59000 ATTORNEYS FOR PLAINTIFF AND APPELLANT
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.11
(sample brief)
TABLE OF CONTENTS TABLE OF AUTHORITIES ...........................................................................................................1 STATEMENT OF THE ISSUES.....................................................................................................2 STATEMENT OF THE FACTS .....................................................................................................2 ARGUMENT...................................................................................................................................4
I. THE DISTRICT COURT ERRED IN HOLDING THAT MONT. CODE ANN. § 39-2-205 APPLIES TO DOE’S REFUSAL TO SUBMIT TO DRUG TESTING................................................................................4 A. Students are not employees.............................................................................................4 B. Student Leaders are not necessarily athletes ...................................................................4 C. Student Council Members hold an elected office ...........................................................5
II. THE DISTRICT COURT ERRED IN HOLDING THAT THE STUDENT LEADERSHIP DRUG TESTING POLICY (SLTP) ADOPTED BY THE COPPER COUNTY SCHOOL DISTRICT DID NOT VIOLATE ART. II, §§ 4, 10 AND 11 OF THE MONTANA CONSTITUTION. ..........................................................................................................5 A. The SLTP violated the Plaintiff’s Individual Dignity.....................................................5 B. The SLTP violated the Plaintiff’s Right of Privacy ........................................................6 C. The SLTP violated the Plaintiff’s protection from searches without probable cause ...................................................................................................6
CONCLUSION................................................................................................................................7
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.12
(sample brief)
TABLE OF AUTHORITIES
Cases New Jersey v. TLO, 469 U.S. 325, 105 S. Ct. 733, L. Ed. 2d 720 (1985) ....................................6
Veronia School District 47J v. Acton, 515 US 646, 115 S.Ct. 2386, 132 L. Ed. 2d 564 (1995) ....4
Chandler v. Miller, 520 U.S. 305, 117 S.Ct 1295, 137 L. Ed 2d 513 (1997) ..................................5
Constitutional Provisions
Fourth Amendment to the United States Constitution ....................................................................5
Article II, Section 4, Montana Constitution.................................................................................... 5
Art. II, § 10, Montana Constitution .................................................................................................6
Art. II, § 11, Montana Constitution ................................................................................................ 6
Statutes
Montana Code Annotated, § 39-2-205 (1997).............................................................................3, 4
Montana Code Annotated, § 20-5-103 (1997).................................................................................4
(1)
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(sample brief)
STATEMENT OF THE ISSUES
1. Did the District Court err in holding that Doe’s refusal to submit to drug testing was
grounds for denying participation in the Student Council under § 39-2-205, MCA?
2. Did the District Court err in holding that the Student Leadership Drug Testing Policy
adopted by the Copper County School District did not violate Article II, Sections 4, 10 and 11 of
the Montana Constitution?
STATEMENT OF THE FACTS In August 1996, The Board of Trustees of Copper County School District Number One instituted
the Student Leadership Drug Testing Policy (SLTP), authorizing random urinalysis drug testing of all
student leaders. The policy defined “student leader” as any student who was an elected or appointed
officer or captain of any club, sports team, or other activity sponsored by the school. The Board expressed
its belief that student leaders should stand as a shining example to all other students as demonstrably
drug-free. Testimony in public hearings indicated that Copper County had the lowest number of drug-
related offenses in the State of Montana over the last five years for which statistics were available, and the
board felt that, because most student leaders were probably drug-free, no one could possibly object to a
drug test to prove it.
Rebecca Doe, a Senior at Copper County High School, a student with a 4.0 GPA, active in
Speech and Debate, Rainbow Girls, Montana Teen Institute (MTI), Key Club, and 4-H, was elected to the
Student Council in September 1996. During the first meeting of the Student Council, the Principal drew
names at random and asked the students chosen to submit to drug testing in accordance with the new
policy. When Rebecca’s name was drawn, based upon her conviction that random drug testing was an
unconstitutional violation of her rights as well as a personal insult given her strong religious convictions,
she refused to take the test.
(2)
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The Principal, Mr. Fairly Orderly, informed Rebecca that she was in violation of the SLTP and
would have to resign from the Student Council if she did not take the test. Rebecca politely asked if she
was suspected of drug use. Mr. Orderly replied that she was not, reminding her that it was a random test.
Rebecca suggested that the new policy was misguided and that there was no logical reason to make
people take a drug test unless there was suspicion of drug use. Mr. Orderly replied that, although he had
personally opposed the policy at the School Board meeting, he nonetheless needed to enforce it, and
removed Rebecca from the Student Council.
Rebecca and her parents appealed this decision to the school district superintendent and then to
the school board, all of whom upheld the policy, claiming that a student’s school career was similar to a
job in real life, and extracurricular activities were voluntary, just like the choosing of a specific job was
voluntary.
The Doe family then appealed to the District Court. Counsel for Rebecca Doe argued that school
activities were not a job, and drug testing as a “condition of employment” could not be applied to student
extracurricular activities. Also, Rebecca was elected to her office, thus her situation was more like that of
a political candidate rather than an employee, thus there was no special need for the school board to
institute the policy. Furthermore, in Rebecca’s case, there was no prior suspicion of wrongdoing, plus the
policy violated Rebecca’s right of privacy and her expectation of protection from searches without
probable cause under the Montana Constitution.
The District Court held that § 39-2-205, MCA allowed the School Board to extend the Montana
Employment Drug and Alcohol Testing Act to include student leaders. The Court further held that Article
II, section 15 of the Montana Constitution allowed for statutes to be passed which restricted the rights of
minors to a greater degree than those of adults.
This appeal followed.
(3)
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(sample brief)
ARGUMENT
I. THE DISTRICT COURT ERRED IN HOLDING THAT MONT. CODE ANN. §
39-2-205 APPLIES TO DOE’S REFUSAL TO SUBMIT TO DRUG TESTING. A. Students are not employees Under § 20-5-103, MCA, students are required to attend school. Unlike an employment situation, where
employees who do not show up are simply fired, students face penalties. Therefore, school is not a
voluntary activity that a person may choose. An employee who chooses not to take a random drug test has
the option of quitting their job. A student does not have a similar option to quit school. Although
extracurricular activities are voluntary, they are an integral part of the school experience and often an
important factor considered in college applications.
B. School Leaders are not necessarily athletes
In Veronia School District 47J v. Acton, 515 US 646, 115 S.Ct. 2386, 132 L. Ed. 2d 564 (1995),
the US Supreme Court upheld the constitutionality of suspicionless drug testing of athletes in the public
schools. The Court reasoned that the Veronia School district faced an “immediate crisis” and the risk of
immediate physical harm to the drug user or to those with whom he competed in athletics was particularly
high. Veronia, 115 S. Ct. at 2393.
However, not all student leaders are athletes, and the Court’s reasoning is inapplicable to this
case. Some of the elements upheld in Veronia are unique to athletes and not applicable to other student
activities: Most student leadership activities do not carry the risk of physical injury characteristic of
athletic events. Student leaders generally do not perceive enhanced performance from using illegal drugs.
Furthermore, Veronia addressed situations where there was a demonstrated problem of drug use. Creating
a school drug testing policy for a student group with little evidence of an existing drug problem is not
legally justifiable.
(4)
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C. Student Council Members hold an elected office In Chandler v. Miller , 520 U.S. 305, 117 S.Ct 1295, 137 L. Ed 2d 513 (1997), the United States
Supreme Court held that a Georgia statute requiring political candidates to certify that they had passed a
urinalysis drug test was unconstitutional. The Court held that the Georgia requirement did not fit within
the closely guarded category of constitutionally permissible suspicionless searches. It was noted that the
statute had not been enacted in response to any fear or suspicion of drug use by state officials. The Court
further noted that the Fourth Amendment to the United States Constitution disallows privacy to be
diminished by the state merely for symbolic reasons.
Similarly, the students chosen to serve on a Student Council are elected officials within their
school. The School Board stated for the record that they believed most student leaders were probably
drug-free, thus admitting that they themselves had no reasonable suspicion of drug use among the
population in question. Therefore, applying Chandler, Rebecca Doe cannot be required to take a drug test
as a condition of holding office.
II. THE DISTRICT COURT ERRED IN HOLDING THAT THE STUDENT
LEADERSHIP DRUG TESTING POLICY (SLTP) ADOPTED BY THE COPPER
COUNTY SCHOOL DISTRICT WAS NOT IN VIOLATION OF THE MONTANA
CONSTITUTION ART. II, § 4, 10 AND 11. A. The Student Leadership Drug Testing Policy violated the Plaintiff’s Individual
Dignity Article II, section 4 of the Montana Constitution reads as follows:
The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against and person in the exercise of his civil or political rights on account of race, color, sex culture, social origin or condition, or political or religious ideas.
In the case of Rebecca Doe, her individual dignity and status as a leader of drug-free youth
(5)
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was violated by being asked in front of the entire student council to submit to a drug test.
Furthermore, by refusing to submit to a suspicionless drug test, she was upholding her
political and religious values: that random drug testing was an unconstitutional violation of her rights
and unnecessary in light of her strong religious convictions.
The school district violated her right to equal protection of the laws by passing a policy that
applied only to student leaders, defined loosely, and which excluded athletes in general as well as the
student body as a whole.
B. The Student Leadership Drug Testing Policy violated the Plaintiff’s Right of Privacy Article II, section 10 of the Montana Constitution explicitly provides that the right of
individual privacy shall not be infringed without the showing of a compelling state interest. In the
case of the SLTP, there is no demonstrated compelling state interest. The school board misapplied
drug testing laws apparently in order to simply boast that the student leaders at Copper County High
School were certifiably drug-free. In Rebecca Doe’s case, by being asked in front of the entire
student council to submit to a drug test, she also endured public humiliation and an unwarranted
intrusion on her privacy.
C. The SLTP violated the Plaintiff’s protection from searches without probable cause The SLTP adopted by the Copper County School District is unconstitutional under both the
Fourth Amendment of the United States Constitution and under Art. 2 §11 of the Montana
Constitution. In New Jersey v. TLO, 469 U.S. 325, 105 S. Ct. 733, L. Ed. 2d 720 (1985), the U. S.
Supreme Court held that school officials need not have probable cause to conduct a search, but do
need to have “...a reasonable suspicion that a crime has been or is in the process of being committed,
or reasonable cause to believe that the search is necessary to maintain school discipline or enforce
(6)
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(sample brief)
school policies.” TLO, 469 at 340. In the case of Rebecca Doe, not only was her personal
character such that no reasonable suspicion existed, but there also was no evidence of a concrete
danger among the community as a whole. The school board itself heard testimony to the effect
that Copper County had one of lowest number of drug-related offenses in the State of Montana
over the last five years for which statistics were available.
As previously noted, the School Board stated for the record that they believed most
student leaders were probably drug-free, thus admitting that they themselves had no reasonable
suspicion of drug use among the population in question. Therefore, a drug testing policy for the
student leaders of Copper County High School is not justifiable.
CONCLUSION
For the foregoing reasons, the decision of the District Court should be reversed. Respectfully submitted this 14th day of December, 1997.
Susanna C. McGillicuddy Susanna C. McGillicuddy McGillicuddy and Macintosh, Attorneys at Law Coppertown, MT
Whitney J. Macintosh Whitney J. Macintosh McGillicuddy and Macintosh, Attorneys at Law Coppertown, MT
(7)
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Brief Writing in Detail The following guidelines explain why a YMCA Model Supreme Court brief is written in the style shown in the sample. Briefs that do not follow these guidelines will be returned for correction.
Format • Saved and submitted digitally in Microsoft Word or rich text format.
• Created in a 8-1/2 x 11 format.
• 1.5 or double spacing is used, as demonstrated in the sample.
• Typeface must be a legible font such as Courier or Times, in a 10 to 12 point font size with normal character spacing.
• One inch (1”) margins should be used.
• Briefs submitted in an unacceptable format will be returned for correction.
• Briefs shall not exceed ten (10) pages, excluding the title page and table of contents, but including all other elements. (note: It is doubtful that a quality brief can be developed in fewer than 6 pages.)
• All pages except the title page and contents shall be numbered, the page after the Table of Contents being page 1.
• Signatures of both team members must appear at the end of the document in the location indicated in the sample.
Content Title Page:
• The title page shall be in the form shown in the sample brief. It contains:
• The words IN THE YMCA MODEL SUPREME COURT OF THE STATE OF MONTANA
• The Case number (or numbers). case number(s) are noted in the case packet.
• The name of the appellant and the respondent as stated in the case.
• Identification of the brief as that of the Appellant or the Respondent.
• Court from which the case originated
• Notation that an Oral Argument is requested.
• Name and address (either home or school is acceptable) of Attorneys appearing before the court. (In this case, list the only members of the team writing the brief.)
Table of Contents:
• The table of contents in a Model Supreme Court brief is a separate, single page that lists each element of the brief (except itself and the title page) and the page on which each element begins. Headings and subheadings used within the argument section should also be listed in the contents with a corresponding page number. This is done in outline form as shown in the sample brief in this guide.
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Table of Authorities:
• The table of authorities in the Model Supreme Court is a list, no more than one page long, of all materials used to support the argument. It includes every page in the brief where the particular excerpt is found. It is similar to the bibliography of a term paper, except that the citation format is different, and cases are usually grouped by type: state statute, case law, Constitutional provisions and other materials. (See sample)
• This list not only verifies the sources used by the attorney, but is useful for the Court and for other attorneys to quickly determine what cases, statutes or other materials are being cited, and to easily locate these references in the original research materials used in preparing the case. Correct citation format shall be used as described later in this manual.
• Participants are not to cite any additional material in their cases other than what is included in the case packet. This is not to say that students aren’t allowed to pursue additional resources such as dictionaries of legal terms, guidebooks on brief writing, or manuals on the preparation of oral arguments. But they cannot cite or refer to any source as authority for their briefs or oral arguments other than the resources provided. Factual statements or arguments of law must be able to be backed up by the resources in the case packet. This limitation is put in place to see to it all participants have access to the same materials.
• Important Note: If a case in the packet contains excerpts from yet another case, participants may use those excerpts, but need to be sure that their case citation notes the case in the packet, not the excerpt. (See citation format)
For example: In Smith v. Jones, the Court cited Brown v. Topeka Board of Education saying, “Separation is inherently unequal.” Smith v. Jones, 123 F. Supp. 456 (D. Mont. 1995) at 461.
Statement of the Issues:
• This is a short introductory statement of the legal issues or points of law involved in the case. It tells the Justices precisely what legal issues the attorney team wants the Court to decide. These statements should be phrased to help one argue FOR a particular conclusion rather than simply against the other side. In Model Supreme Court cases, there are two primary legal issues to be decided.
• These issues are stated in question form and should be phrased in such a way that a “yes” answer will support one’s position. These statements are generally no more that one sentence per issue, and are placed just before the Statement of the Facts.
Example: The appellant may phrase an issue this way: “Did the trial court err in holding that...?” The respondent may phrase the issue in the same case this way:
“Did the trial court correctly conclude that...?”
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Statement of the Facts:
• The Statement of the Facts is a retelling of the facts from the client’s point of view. However, the facts provided in Model Supreme Court Cases are not to be added to or disputed. For a Model Supreme Court brief, this section should be about one page long, and not more then two pages.
• Attorneys explain the situation in a way that helps their client. This is a very important part of the brief that sets the stage for the argument, and should be presented both to help the court understand the case and show the client in the best possible light. Again, remember not to assume facts not given, and do not distort, change, or add to the facts!
• For example, here is how parties in a real Supreme Court appeal used the Statement of Facts in different ways to support their positions:
The Appellant/Defendant’s brief began this way: “[John Doe] was a mentally ill nineteen year old when he participated in a robbery with a juvenile female...” The Respondent/Plaintiff’s brief began: “Since [John Doe] pleaded guilty...”
Argument:
• This is the core of the brief. Students may find the argument to be somewhat like writing a persuasive essay with lots of research references. It presents support for the issues presented earlier. Solid research is used to back every part of the argument. Arguments must be well-organized and convincing; attorneys will win or lose their case based on the quality and substance of what is said.
• Each point the team wants the court to consider in deciding the case must be described, reasons explained with references to research materials used, and text citations inserted as frequently as needed. Citation format examples appear later in this manual.
• In the Model Supreme Court, arguments for each of the two issues should be at least one, but no more than three pages each. The total argument section should not exceed six (6) pages. Attorney teams are advised to have each member take one issue to research and prepare that portion of the argument for the brief. Remember: the total brief, except for title page and table of contents, must stay under the ten page limit.
• Structurally, each part of the argument is first directed at supporting the various issues of one’s own case, then also opposing the contentions anticipated to be brought up by the opposing party.
• Stylistically, the argument is written in forceful, active, positive language. (A team wants the court to rule FOR their client, not simply against the opposing counsel.)
• The argument also forms the core of one’s oral presentation and is used by the Justices to make their decision.
• As an example of how an argument could be written, imagine the following scenario where a team wanted to argue the point that Judicial Immunity protected a County Sheriff from liability in a particular case. That portion of the argument might be written like this:
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The doctrine of judicial immunity is firmly entrenched in American law as held by the US Supreme Court when it stated “a like immunity extends to other officers of government whose duties are related to the judicial process.” Barr v. Mateo, 360 US 564, 569, 79 S. Ct. 1335, 3 L.Ed. 2d 1434, 1440 (1959). Accordingly, the doctrine of judicial immunity shields Sheriff Innocent from any liability arising from his release of the defendant, because he was acting upon the order of Judge Knowsit.
• As shown above, the team first explains the rule of law, then shows how it applies to the particular case. If needed, a short direct quote is included to help the Court recall the precedent or law in question.
• The team goes on to make additional arguments to demonstrate why the Sheriff was not liable. They continue to cite relevant cases, statutes and constitutional provisions from the case packet that further bolster their overall argument.
• The writing of the argument, as shown in the sample brief, uses headings and subheadings to begin each section of the narrative that help clearly organize the argument. The same structure of headings and subheadings should be summarized in the table of contents.
• The idea is to do everything in terms of both form and substance to help the Court understand the reasonableness and logic of the argument, and thus decide in one’s favor.
The following outline style is one often used when writing arguments in Montana:
I. ISSUE (bold and all caps) A. Main Point (Bold, Underlined, First Letter Caps) 1. Supporting Points (Bold, First Letter Caps)
• This is also handy way to prepare one’s notes for the oral argument. It is more effective to have an outline to refer to than the written text.
• One reason to outline an oral argument is because Justices are free to interrupt an oral argument and ask questions at any time. Questioning can take an oral argument off track very quickly. Therefore, an outline is better than a prepared speech because it allows the Attorney an effective way to remember what points have been covered and makes it less likely to lose one’s place.
Conclusion:
• This is where the Attorney team summarizes their argument and specifically states the result desired. The conclusion in a Model Supreme Court brief can be as short as one sentence, and should not exceed a single short paragraph. The signatures of the Attorney team follow the conclusion, as shown in the sample.
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Citation Format Before we begin this section, we ask that participants not be overwhelmed by the standards presented. Legal citation conventions are very specific, but for this program, participants will be citing case law that is already listed in the correct citation format, so the participant will be merely copying that format. The following is for informational purposes only.
Why is Citation Important? The strength of a legal argument depends in large part on how law, as established in previous court opinions and precedents, is applied to a given case. Therefore, citation of relevant statutes and case law is a critical part of legal writing. Justices and other interested parties often go to the source and read the full text of legal opinions in order to better understand a party's argument. Court opinions are widely published in books called reporters. This is where most citations to case law are made. There are
many different reporters. The Montana Reporter, the Pacific Reporter, the Federal Supplement Reporter, and the Supreme Court Reporter are examples. Citation of legal documents is a bit different from the footnotes and bibliographies of high school and college term papers, but the basic idea is the same: to allow the reader to know what sources were used in creating the written document, and where to locate specific information.
How to Cite Materials Cases and related research materials included in Model Supreme Court case packets given to you with a citation format that can be copied exactly as is for brief writing. However, the guidelines below can be used as a reference if needed. Required Court citation can vary from court to court. The Bluebook: A Uniform System of Citation, Cambridge: Harvard Law
Review Association, most current edition, is the standard for legal citation in the United States. However, the Montana Supreme Court uses a format slightly different from the Bluebook, and participants may notice this when reading Montana Court opinions. For the Model Supreme Court, either Montana's or the Bluebook's citation format is acceptable.
Most cases are cited something like this: State v. Black 570 P.2d 489 (CO, 1983)
• State v. Black is the name of the case, and like all titles, must be either underlined or italicized.
• 570 is the volume number of the reporter where case information is found.
• P. 2d is the name of the reporter where the Court opinion is found, in this case, the Pacific Reporter, second series.
• 489 is the page number in the Reporter where the case opinion begins.
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• (CO, 1983) is the Court where the case was heard (in this case, Colorado) and the year in which the decision was issued.
Sometimes you need to note the specific page within an opinion. So, if you wrote the citation: State v. Black 570 P.2d 489, 493 (CO, 1983)
• This would indicate that while the case opinion begins on page 489, the specific material you want people to notice begins on page 493.
Although it looks awkward to read, legal citations are usually placed directly into the text of a brief as shown in the example in the sample brief in this guide. In the narrative parts of a brief, complete citations are used the first time they appear, but may be abbreviated afterwards as follows: If the full citation is: State v. Black, 570 P.2d 489, 491 (CO, 1983) Subsequent citations may be abbreviated as: Black, 570 P.2d at 493 (if page 493 is where the specific information is located.) Sometimes an opinion may be published in more than one reporter. Model Supreme Court case packets will include all the citation references needed for the Table of Authorities. If specific page numbers are cited in a narrative, just cite and use the page numbers of one reporter, the one used in the case packet.
General Abbreviations: § Section USC United States Code ¶ Paragraph ARM Administrative Rules of Montana Const. Constitution art. Article amend. Amendment Cir. Circuit (referring to Circuit Courts) ann. Annotated MCA Montana Code Annotated cl. Clause 2d, 3d Second Series, Third Series (second or third set of volumes for a particular
Reporter) Note: If you need to say "section" at the beginning of a statement, spell it out, but if it's within a sentence, you may use the “§” symbol.
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Citing Laws and Statutes Montana Law: Montana Code Annotated 00-0-000 (3) (a) or § 00-0-000 (3) (a), MCA Federal Law: 10 USC section 3069 (this means volume 10 of the United States Code, section 3069) or 10 USC § 3069 Other state formats vary, and Model Supreme Court participants can generally use the samples provided in the case materials if laws from other states are cited.
Citing Constitutional Materials Montana Constitution: Article II, Section 1, Montana Constitution -- abbreviated form: Art. II, § 1, Mont. Const. US Constitution: Article II, Section 1, United States Constitution -- abbreviated form: Art. II, § 1, US Const. Bill of Rights: First Amendment to the United States Constitution
Citing Case Law As noted earlier, the general form for legal citations is: Case Name, Reporter information (year). Reporters commonly used in researching Montana cases are listed below with abbreviations: U.S. U.S. Reporter (covers US Supreme Court decisions) F. Supp Federal Supplement Reporter (contains Federal District Court opinions) L.Ed, L.Ed.2d Lawyer's Edition Reporter (contains US Supreme Court decisions) F., F.2d, F.3d Federal Reporter (covers Federal Circuit Court of Appeals decisions) S. Ct. Supreme Court Reporter (covers US Supreme Court decisions) Mont. Montana Reporter (covers Montana Supreme Court decisions) P. or P.2d Pacific Reporter (covers state court decisions from Alaska, Arizona,
California, Colorado, Hawaii, Idaho, Kansas, Montana, Nevada, New Mexico, Oklahoma, Oregon, Utah, Washington and Wyoming)
Other regional reporters such as the Southern Reporter, Atlantic Reporter, etc. may sometimes be used as references in a Model Supreme Court case. Case packets will show how to cite them.
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Examples A Montana decision:
State v. Jones, 100 Mont. 271, 275, 485 P. 2d 123, 127 (1995) Abbreviated form: Jones, 100 Mont. at 127 (Use the source in your case packet)
Notice that the Montana case is reported in both the Montana Reporter (Mont.) and the Pacific Reporter (P. 2d). We know it is a Montana Case because it is in the Montana Reporter, so the state abbreviation is left out of the parentheses where the date is listed.
Another state's decision: State v. Smith, 215 P. 2d 214, 225 (CO, 1997) Abbreviated form: Smith, 215 P. 2d at 225
Notice that the out of state case cites the state and the year (CO, 1997). This is because the case citation comes from the Pacific Reporter, and in this situation, you cannot tell which state decided the case. Federal Court decision:
Smith v. Jones, 123 F. Supp. 456, 461 (D. Mont. 1995) Abbreviated form: Smith, 123 F. Supp. at 461
Notice that D. Mont. means the case originated in the Federal District Court for Montana. Federal Circuit Court of Appeals decision:
Anderson v. Wilson, 3 F. 3d 292 (9th Cir., 1996) Abbreviated form: Anderson, 3 F. 3d at 302
9th Cir. means the case was heard by the 9th Circuit Court of Appeals. U.S. Supreme Court Decision: Roe v. Wade, 410 U.S. 113, 93 S. Ct 705, 35 L. Ed. 2d 147 (1973) Abbreviated form: Roe, 410 U.S. at 116 Notice that Supreme Court decisions can appear in three different reporters. A decision not yet published in any reporter: (This only applies to a very recent decision!) State v. Doe, No. 98-000 (Mont. March 25, 2006) 98-000 is the case number. The date the Court handed down its decision is in parentheses.
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Oral Argument Guidelines
What is an Oral Argument? Oral arguments are the reward for the time spent studying a case and perfecting a brief. An oral argument is the place where you can demonstrate the worthiness of the position you are presenting to the Court. You explain the arguments presented in your brief and get an opportunity to talk to the court about the case, listen to the Court's concerns, answer the Justices' questions, and clarify or correct any misunderstandings that the Court may have about the client's position and your argument. Oral arguments are both similar to and different from events such as team debate. Like a debate, presenters need to know both sides of a case, speak extemporaneously, and be ready to adapt their arguments based on statements by the opposing side. However, in an oral argument, speakers can organize their allotted block of time as they see fit, and opposing parties do not speak directly to one another, nor do they question or cross-examine one another. Both sides only address the Justices, and only Justices may ask questions.
In a way, attorneys do not "argue" at all, but rather enter into a dialogue with the Justices, explaining their positions in the style of a discussion or conversation, but one based on how the law is applied to the case at hand. The goal of the oral argument is to help the Justices understand the case and to win them over to one's own side. Therefore, think of the Justices as allies to be won over - not enemies to be confronted! It is important to behave in a professional and ethical manner. The Montana YMCA Model Supreme Court Program challenges participants to accept and demonstrate the positive values of caring, honesty, responsibility and respect. If possible, try to attend a hearing at the real Montana Supreme Court. They hear roughly 40 oral arguments a year, so there are many opportunities. The Court usually meets in Helena, but they also travel a few times a year to hear arguments in other communities around the state. The Clerk of the Supreme Court will have a schedule of oral arguments available about 30 days ahead of time.
Organizing an Oral Argument Unlike a prepared speech in a legislative body or at an interscholastic competition, an oral argument is flexible. Justices can interrupt a speaker and ask questions at any time. Attorneys need to have a thorough understanding of their case so a change of pace or subject does not diminish their presentation. To create an effective oral argument, prepare an outline of the points you plan to cover, but one flexible enough to change as
needed. You may not even use all of it, because Justices will focus their attention on the particular issues of most concern to them. Anticipate questions that may be asked and design your outline so that you already have many answers covered. This way, most questions will not take time from your presentation, they will just rearrange the order in which you present your points!
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Remember the following basics: • Know the facts and the issues of the case. Usually teams divvy up the case and each individual
argues one issue.
• Know the applicable law and authorities provided in your case packet.
• Understand BOTH sides of the issue so well you could argue either side (because you will!).
• Be honest with the court. Do not assume facts not given, do not make up information, do not evade or maneuver around questions.
• Notes are helpful and necessary, but not a crutch. Memorize your major points!
• Do not plan to give a canned speech, but rather know the case well enough to discuss any part of it in any order.
• Anticipate the other side's arguments and have plans to counter them.
Time Limits for Oral Arguments Appellant: A total of 20 minutes. The recommended procedure is to present argument for 15 minutes, splitting time between team members in an effective manner, and reserving 5 minutes at the end for rebuttal of the Respondent's argument. If the Appellant team goes over 15 minutes, that time is taken away from their rebuttal time. Respondent: 15 minutes total, no rebuttal. The reason the Respondent gets less time is because the Respondent is arguing for the decision already made in a lower court, so they do not have the same burden of proof as the Appellant. Respondents need to remember that they have only one shot at making their case, so need to anticipate and forestall possible ways their argument could be rebutted by the Appellant. Teams may use personal timers, but the Marshall’s timing will be considered official. Attorneys need to be aware that they could have their entire argument thrown off track by questions; they will need to adapt. Time taken by questioning from the Justices is a part of the total time allotted. Justices have the right to ask a question whenever it occurs to them. Attorneys need to be aware that they could have their entire argument thrown off track by questions, and will need to adapt. A successful argument is not one where every point is addressed, but rather one where the Justices are convinced to rule in your favor. Be ready to think on your feet! Keep in mind that many questions asked by the Justices cover points that should already be in a well-planned oral argument outline, and so ideally you may only have to rearrange the order you present your main ideas. Below is one way a team can organize their time; however, teams are free to organize differently if they think it will be more effective. It is best to allot time to answer unanticipated questions from Justices, or to add, clarify or change material as needed. Always give yourself time to summarize and request a favorable decision from the court!
First Lawyer, introductory remarks and issue one:.............................................................7 minutes Second Lawyer, issue two and summary: ...........................................................................7 minutes Rebuttal (Appellant only): ................................................................................ 5 minutes maximum
Either team member can do rebuttal as circumstances warrant. It is a good idea for each team to plan their total argument to run no more than 12-13 minutes, leaving time to spare for unanticipated questions during the hearing.
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Structure and Content of the Oral Argument
Introductory Statements The following elements are required, be clear but concise.
• Each team begins with the phrase, "May it please the court..."
• The first speaker goes on to introduce him/herself and co-counsel as outlined in the Court Procedures script that is provided later in this manual.
• The first speaker states the issues to be addressed and which team member will address them. Most Appellants give a very brief summary of the type of action involved and the judgment being appealed.
• In the opening argument of Appellant, the first speaker should give a short statement of the facts to remind the Justices of the case. Respondents do not have to do this, but should have a statement of the facts ready in case they disagree with the Appellant's version.
• Don't take too much time rehashing facts the Court already knows, rather focus on what is pertinent to your client's case. (The Court may cut you off if you spend too much time here!)
The Argument Itself
• Each Attorney presents in turn the substantive arguments for each of the issues.
• Remember to lead with your strongest argument!
• Prioritize arguments so those each speaker considers most important are covered first.
• Personal opinions or feelings are irrelevant. Application of logic, public policy and the law is relevant.
• Spell out how the law clearly supports your case.
• Factual statements or arguments of law must be able to be backed up by the resources in the case packet. Remember to (briefly) cite the law or court decisions as needed.
• The Appellant provides positive reasons why the Court should overturn the previous decision as well as showing ways the previous court erred.
• The Respondent shows how the earlier decision was correct, but also has the tricky task of showing why the Appellant's arguments are not legally correct.
• Again, anticipate possible questions from the Justices and prepare suitable answers. Allow enough time in your prepared argument for unanticipated questions. If you prioritize your arguments, you will have time to cover what is most important.
• A reminder: Stick to your brief unless questioned otherwise by the Justices. Attorneys can beg the court’s indulgence and state they have discovered something new. That is the exception, however, and not the rule. Justices might question an Attorney as to why he or she didn’t include the new material in his or her brief, and it is the Justices’ call as to whether or not they want to consider it.
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Concluding Statements
• When you summarize your arguments, be focused and active; this part of your presentation is what the Justices will remember best. Be interesting, but to the point.
• Usually the second speaker does the concluding remarks, but not always. The team can divvy up the argument however they wish.
• At the end of the argument, always do this: tell the court exactly what you want them
to do; i.e., to uphold or overturn the lower court's decision. Even if time is called, you can still ask if you can finish your sentence, (which is generally granted) then state, "In
closing, we ask the Court to (uphold or reverse) the decision of (the lower court)." The Appellant's Rebuttal
• The rebuttal may refute arguments raised by the Respondent, correct any misstatements or misconceptions that arose during the original argument, answer a question one could not answer earlier, or present additional information that may be relevant to the case.
• It is best not to rely on the rebuttal simply for extra time. It is not a good idea to talk just to fill time, either. If you only really need one minute, that's fine.
• Although some notes may be drawn up in advance for use as circumstances warrant, the rebuttal should be adapted to the hearing at hand, and not be a canned presentation.
How to Present an Oral Argument When addressing the court, Justices are always addressed as “Your Honor,” or “Justice (last name),” Answer questions saying “Yes, your Honor,” or “No, your Honor,” as appropriate. Never address a member of the Court as Mr., Miss, Ms., (etc.), or by first name. It is a good idea to be able to have your entire outline in front of you. This makes it easy to check off points covered and rearrange your presentation as needed. It can be distracting to have to shuffle or rearrange note cards, risk dropping things, etc. Rehearse.
• Practice your presentation, and have practices where others ask you questions or make you defend your argument so that you don't get rattled by the real thing.
• It is wise to practice using correct protocol at all times. Get in the habit of saying "May it Please the Court..." and "Your Honor" in practice sessions. Remember that your peers will be on the bench, so get used to using proper forms of address regardless of whom you are actually addressing.
• While preparing in your home community, a team or delegation should locate a local Attorney, (if possible, one with experience in the Appeals process or who was involved in Moot Court competitions while at law school) and ask this individual to act as a "Justice" for a practice round, having them probe arguments and ask questions as real Justices will, then offering suggestions for improvement.
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Suggestions on Appearance, Speaking Style and Manner 1. Be a friendly professional; speak in a
calm, dignified way. Stay cool and rational.
2. Don't read a prepared speech or directly from your brief. It's boring and you won't have the flexibility you need (besides, the Justices have already read your brief!).
3. Show politeness and respect for the Court - you are assisting the Court to reach the proper decision. They are your potential allies, not an enemy or opponent. Therefore, do not become defensive, hostile or condescending.
4. You are in a dialogue with the Court, not with your opposition. Do not address the other side directly. There is no Cross-Examination; they can't answer.
5. Think about your voice: Enunciate clearly, speak loud enough to be easily heard, avoid talking too fast or in a monotone. Avoid slang.
6. Think about style: sound assertive and enthusiastic, but not arrogant or “ditzy;” be confident, not timid or condescending.
7. Be convinced of the rightness of your case.
8. Don't get overly dramatic; this is not argument to a jury. Justices are not easily swayed by emotion, and may find it distracting.
9. Think about gestures: Watch nervous hand motions; avoid drumming fingers or pen, cracking knuckles, putting your hand over mouth or into pockets, etc., avoid pointing.
10. Stand with good posture behind the podium. Don't pace.
11. Be quiet and unobtrusive in your manner while sitting at counsel table. Do not react outwardly to the other side's arguments. In particular, do not attempt to detract from opponent's presentation. If the Justices notice you during the other side's argument, it will probably not help your case!
12. Be as professional in your attire as possible. Avoid gaudiness in accessories or hairstyle.
Handling Questions from Justices Attorneys are often troubled by questions from the bench. Most people are used to giving prepared presentations, but be ready for the unexpected because Justices are free to ask a question whenever it occurs to them. This can be unnerving, interrupting your whole train of thought! Therefore, you need to know your case thoroughly. Understand the strengths and weaknesses of your arguments. Anticipate what the other side is likely to argue. Structure each point of your argument so it can stand alone without depending on happening in the order you originally planned. The Justices do not have to ask you questions related to your brief. They may ask you to think on your feet and apply the law to an angle you have not considered. For this reason, know ALL the case law you have been given and be prepared for tough questions! Because questions may refer back to research materials in the case packet, it is a good idea for teams to have their research materials handy for quick reference. Both team members should be familiar enough with all case material so that one person can quickly locate a reference while the other is still speaking.
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Keep the following guidelines in mind: • When the Justices interrupt, remember the old kindergarten rule: STOP, LOOK and
LISTEN. Do not continue talking, do not interrupt Justices while they are speaking; it is very rude. Remember, you want the Justices to rule for your side. You are there to help them do so. Think of questions as an opportunity to improve your case!
• Cut to the chase and answer the question. Don't say "that's a good question," or similar irrelevant remarks. The clock is running…
• Answer with respect. Be neither hostile nor condescending.
• If you know the answer, answer the question on the spot. Don't tell court that you will cover the matter someplace later in your argument unless...
a) ...you need to defer to your teammate to answer a question. If your teammate can answer the question better than you can, say something like, “your Honor, this question is one better addressed by my co-counsel. With your permission, may he (or she) answer this question during his (or her) argument?” (Permission is generally granted.) Then your partner needs to be sure to do so!
b) ...you have no clue. It's OK to say, "I don't know," and in fact this is preferable to evasive maneuvering, rambling, or going off on a tangent. If possible, say something logical and to the point. If you're completely stumped, politely admit it and then move on. If there is time, it is sometimes possible for whomever is not speaking to look up the answer and then address it later. If you are the Appellant, you can also look for the answer then mention it in your rebuttal.
• You may ask the Justices to clarify their question if you don't understand it. If they cite case law, you may ask them which case in the packet they are referring to if it isn't clear. Just remember: the clock is running…
• Use questions to your advantage. If you have properly prepared the case, you have anticipated most questions, so you can answer the question in such a manner that you have actually benefited from the question and taken care of something you already planned to address.
• Concise answers are usually the best. If the Justice is not satisfied, she or he will ask follow up questions. You don't need to ask a Justice if you have answered a question properly.
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Montana YMCA Model Supreme Court Courtroom Protocol and Procedures Overview Workshops will be held Sunday evening following registration to help orient participants to rules and procedures. In addition to the presentation of oral arguments, guest speakers, practice or demonstration rounds and workshops may be scheduled during the session. Just as all Legislators at Youth and Government receive a Bill Book of proposed legislation, a "Brief Book" will be made available to all Attorneys at the session, which will contain a master schedule of events, list of all participants, and copies of all other participant's briefs. The hearings schedule will not be a part of this book, but rather will be posted by the Courtroom at least one hour prior to a team's hearing. Teams must be in the courtroom
and ready to proceed 5 minutes prior to
the opening of their hearing. 10 minutes is
recommended. Teams will present oral arguments for both the appellant and the respondent positions of their assigned case over the course of the session. Preparing a summary or outline prior to the session that outlines the main arguments for both sides - and practicing arguments for both sides is strongly recommended. A limited amount of time will be available after teams have presented the assigned side of their case to prepare their oral arguments for the opposite side, but participants will need to already have a basic outline ready that they simply need to refine, based on their experiences during the first round of arguments.
As a rule, Attorneys will first argue the side of the case for which they wrote a brief, and teams in a hearing will either both argue from their written briefs or both argue the sides for which they have not written a brief. However, if due to drops, there are an unbalanced number of Appellant and Respondent teams, teams may be asked to volunteer to present their case twice or volunteer to present the opposite side first. In addition to presenting oral arguments, all participants will be assigned a time to serve as a Visiting Justice. Visiting Justices hear a case other than the one they were assigned to argue, and need to reserve time to read the other case and review the confidential Bench Memoranda so that they can be informed participants. When not involved with the court program, Attorneys are encouraged to testify as lobbyists in the committee hearings on bills before the Youth Legislature.
If case hearings are badly unbalanced due to participant drops, Attorneys who are completely finished arguing both sides or their case may be assigned as Visiting Justices to any case on the last day. Attorneys serving as Visiting Justices should report to the Justices' Chambers about 45 minutes prior to the time they are scheduled to serve on the bench. The Appointed Justices will use this time to orient them. At least 30 minutes after the case hearing also needs to be reserved for deliberation when it concludes.
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Rules of Courtroom Procedure
Authority The Chief or Presiding Justice of the Supreme Court is the overall authority on all procedural matters before the court and in the courtroom. Any instructions from the bench are to be promptly followed by all present. The Marshall of the Court is the enforcement agent of the Court, acting under the authority of the Chief or Presiding Justice to automatically enforce existing rules and protocol without need for specific direction, and to carry out any instructions from the Justices. An adult advisor to the Court will be available to assist the Chief Justice and the Marshall as needed.
Admittance to the Courtroom Any member of the public may observe the arguments of the Model Supreme Court from either designated audience seats on the floor or from the gallery (if Old Supreme Court Chambers are used). Observers must remain quiet at all times. The Marshall of the Court has the authority to maintain order in the courtroom and may ask disruptive individuals to be quiet or to leave if necessary.
Presentation of Oral Arguments As noted earlier, a hearings schedule will be posted in advance. Teams must be in the courtroom and ready to proceed 5 minutes prior to the opening of their hearing. Teams need to remember to bring the following to the courtroom:
• Their notes
• A copy of the case
• Their brief
• Research materials from the case packet
• They may also choose to bring in their brief book or a copy of their opponent's brief as well
From the perspective of someone facing the Bench, the Appellant team will always be seated at the counsel table to the left of the Court (on the same side as the Marshall) and Respondent team will sit at the counsel table to the right (on the same side as the Clerk). There will be a lectern in the center of the Court from which each team will present their arguments. If the lectern is not located within easy reach of the counsel tables, a table will be set up next to it for the co-counsel to sit at (with any necessary materials) during the presentation. The Marshall will time arguments. The team is timed as a unit, so the members may divide up their time any way they want. (The clock is not stopped while team members trade places.) Similar to the procedure in a competitive speech meet, the Marshall will have cards indicating that the team has 10, 5, 3, 1 and zero minutes remaining. The Clock may be only stopped at the request of the Chief or Presiding Justice, and it will not be stopped simply to allow research on a question or to allow additional time to organize a presentation.
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When time is called, the Attorneys must stop speaking immediately. They may ask permission to finish their sentence, which is usually granted. They should finish their sentence, and may briefly ask the court to support their position, but cannot make any more arguments. If they are answering a question from a Justice, they may ask permission to finish their answer. A reminder: Stick to your brief unless questioned otherwise by the Justices. Attorneys can beg the court’s indulgence and state they have discovered something new. That is the exception, however, and not the rule. Justices might question an Attorney as to why he or she did not include the new material in his or her brief, and it is the Justices’ call as to whether or not they want to consider it.
Courtroom Protocol and Procedure
1. At the appointed time for the hearing to begin, the Marshall stands and raps gavel. As members of the Court enter, he or she asks those present to stand, saying: "All rise and give your attention. The honorable Justices of the Montana Model Supreme Court."
2. After the Court is in their places, ready to be seated, the Marshall says: "This Court is
now in session." After Court is seated, everyone else may be seated.
3. The Chief Justice, or in the absence of a Chief Justice, the Presiding Justice of the Court will introduce the members of the bench.
4. The Chief or Presiding Justice of the Court will then announce the case; ask if counsel for
appellant is ready, then ask if counsel for respondent is ready. Only one person on each side will stand up when asked, and reply, "Yes, Your Honor," and be seated again.
5. When instructed to proceed, the first speaker for the Appellant's team will stand, move to
the lectern provided (bringing relevant materials and notes), and begin their portion of the oral argument as follows:
6. "May it please the court. My name is _______. Seated to my left (or right) is my co-
counsel, _______; we are counsel for (Appellant name), the Appellant before this court today."
Next they say:
"There the following issues are before this court today: (state issues 1 and 2.) I will argue (issue 1) and my co-counsel will argue (issue 2). With the Court's permission, we wish to reserve five minutes for rebuttal."
7. The first Appellant speaker may then, at their option, make a brief statement of the facts
and of the judgment of the previous court that is on appeal.
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The first speaker will then proceed with their introductory remarks and argument. Remember: The team is timed as a unit, so the members may divide up their time any way they want.
8. When the second appellant speaker begins his or her presentation, he or she may also say:
"May it please the court," may choose to repeat their name, and then proceed with their portion of the argument and summary remarks.
9. The Respondents use similar protocol, beginning by saying, "May it please the court. My
name is _______. Seated to my left (or right) is my co-counsel, _______; we are counsel for (Respondent name), the Respondent before this court today."
10. The Respondents may re-state the facts and issues before the court if they disagree with
the Appellant's statements; otherwise, the Respondents may skip to their arguments and summary using basically the same procedures as the Appellant.
11. After the Respondents have presented their case, the Appellants make their rebuttal,
provided that they have time remaining.
A maximum of five minutes is allowed for the rebuttal, and only one Attorney may speak.
Remember, Justices are likely to interrupt oral arguments with questions at any time. When a Justice says, "Excuse me, Counsel...," stop speaking immediately and listen to the question.
12. Watch the Marshall for time. When time is called, conclude immediately, as described
earlier.
13. At the conclusion of the hearing, the Chief or Presiding Justice will say , "Thank you Counsel. We will take the matter under advisement," and adjourn the hearing by saying, "This hearing is adjourned."
14. The Marshall will again say. "All Rise," and everyone in the room will stand as the Court
exits the courtroom.
15. Judges make no decision on the case at the time of the hearing. They adjourn to their conference room to discuss the case, making a decision that will be announced later.
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Supreme Court Justices At the most fundamental level, the role of the Justices is to rule on the cases before them. In order to do this properly and fairly, they must do an extensive amount of pre-hearing research; they must read the briefs carefully; they must listen closely to the Attorneys during oral arguments; they must ask questions so the Attorneys can clarify and explain their point; and Justices must carefully debate each point of law before ruling. Seeing the judicial system from both sides of the bench helps participants develop a deeper understanding of the law and the courts. Therefore, in addition to those individuals elected or appointed to serve as full time Model Supreme Court Justices, all Attorneys participating in the Montana YMCA Model Supreme Court will serve as visiting Justices for at least one case hearing.
Becoming a Justice • A minimum of four full time Appointed
Justices will be selected, more if overall prereigstration numbers warrant.
• Only Juniors and Seniors may apply to be full time Appointed Supreme Court Justices.
• A Chief Justice will be elected at each session to serve the following year.
• An elected Chief Justice has the same expectations as appointed Justice, in addition to leadership duties.
• Appointed and elected Justices will be required to prepare a Bench Memorandum on the cases they will hear, based on the guidelines and samples in this manual.
• In each case hearing, three to four individuals on the bench are full time Justices, with the remaining “Visiting Justices” rotated among Attorney participants.
• Individuals wishing to be appointed as Supreme Court Justices must complete an application form and return it to the state office but the publicized deadline.
• The application includes essay questions that constitute a major portion of the applicant’s overall ranking.
• Criteria for selecting Justices includes quality of essay answers and past relevant experience that demonstrates open-mindedness, objectivity, an ability to think logically, to consider all sides of a question in a fair and impartial manner, confidence to think independently and to resist peer pressure.
• Past participation in Model Supreme Court is an advantage to the applicants, but not required.
• Phone or face-to-face interviews may be conducted with leading applicants.
• An alternate may be selected and trained to serve in the event any other Justice is unable to attend the conference.
• A day-long, Friday training session will be held in Helena approximately three weeks prior to the conference. All participants selected as Justices must attend. Failure to attend the training will disqualify the applicant from serving in the capacity of Justice.
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Preparation by Appointed and Elected Justices Full time appointed and elected Justices need to fulfill the requirements outlined below:
• Justices will read all cases and relevant research materials, then use these materials to write confidential Bench Memoranda according to the guidelines in this manual.
• Justices and alternates are required to attend the full day training workshop in Helena approximately three weeks prior to the spring conference. The workshop will include case review, an overview of the responsibilities of a Justice, instruction on what to look for in written and oral arguments, and what to consider in deciding a case.
• Justices will each be given a brief book in advance and will be asked to read all submitted briefs, taking notes on each as to potential questions to ask the Attorneys during oral argument, strengths and weaknesses of each argument, and other notes or guiding remarks useful to them. There will be virtually no time for Justices to prepare between cases during the session, so this advance study is crucial.
• Each Justice will contribute their bench memoranda to a “master” bench memo that will be used by Visiting Justices.
Guidelines for Visiting Justices Times that Attorneys will serve as Visiting Justices will be posted with the case schedules. Participation is mandatory! Several Attorneys will serve as visiting Justices for any given case hearing. Attorneys may serve as Visiting Justices more than once, depending on the number of participants and scheduling of cases. Serving as a Visiting Justice will include the following: Preparation:
• As soon as assigned a hearing and case, Attorneys need to read the briefs of both the appellant and the respondent for that case. This must be done prior to case review!
• Attorneys need to set aside at least an hour for a thorough reading of the briefs and taking notes on points of law or questions about the case.
Case Review:
• Attorneys will report to the Justices' Chambers for case review at the time stated on the schedule, which will be approximately 45 minutes to an hour before the actual case hearing. Remember: Case Briefs must have been read and studied prior to this time!
• Attorneys will then be given a confidential bench memo to read that will instruct them on the facts and law involved in the case. This document is to be read only in the chambers and is not allowed to be copied or removed from the chambers. Visiting Justices are not to discuss the contents of the Bench Memo with anyone outside of the chambers until the session is concluded.
• After they have been given an opportunity to read and study the bench memo, they will then meet with at least one of the full time Justices who will orient them to Court procedures and answer any questions they may have on law or procedure.
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Oath of Office:
• Shortly before the hearing begins, Attorneys will be officially robed and asked to give an oath or affirmation that they will keep all deliberations and case information confidential and serve honorably as a Justice of the Model Supreme Court.
• The Oath is given to Visiting Justices as follows: I (state your name), do solemnly swear (or affirm) that I will suppost, protect, and
defend the Constitution of the United States, the Constitution of the State of
Montana, and that I will faithfully discharge the duties of Model Supreme Court
Justice with fidelity. (So help me God.)”
The Case Hearing • The names of appointed, elected and visiting Justices who will hear a given case will be
posted ahead of time on the court schedule. The Presiding Justice for the case will be noted.
• The Presiding Justice of the Supreme Court for the case at hand is the overall authority on all procedural matters before the court and in the courtroom. Instructions from this person are to be promptly followed by all present, including other Justices.
• Only the Presiding Justice has the authority to have the Marshall start of stop the clock.
• At the appointed time for the hearing to begin, all seven Justices scheduled for that round will enter the chambers. (Seating will be determined in advance by the Presiding Justice.)
• During the case hearing, visiting justices are equals to the full time Justices, under the authority of the Chief or Presiding Justice.
• It is important to listen carefully to the arguments of the Attorneys. Justices may wish to take notes to refer to later while deliberating.
• All Justices may ask questions of the Attorneys. The proper way to interrupt an Attorney to ask a question is to say, "Excuse me, Counsel..." then ask the question.
• Do not be afraid to question the attorneys! The fear of asking a "stupid" question may keep the Court from hearing an answer that could be very relevant to deciding the case.
Avoiding Conflicts of Interest
• Visiting Justices will not be eligible to serve on the bench during a hearing in which members of their own delegation are participating, unless scheduling limitations render this impossible.
• Full Time Justices will also avoid sitting on the bench during arguments by members of their own delegation whenever possible, although this may not always be achievable.
• Visiting Justices may not participate on the bench for a hearing of the same case that they are arguing as Attorneys, unless they are completely finished arguing cases.
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Deliberation and Vote • At the conclusion of the case, all Justices retire to their Chambers to deliberate on the
case, make a decision, and dictate opinions. Approximately 35-40 minutes will be available for deliberation and vote.
• Deliberation is a friendly process where all Justices should be involved, with opinions openly aired so that all aspects of the argument are examined.
• A vote will be taken after a maximum of 45 minutes deliberation, sooner if appropriate.
• Visiting Justices have one vote, the same as the full time Justices.
• The law is the basis for reaching a decision in each case. The Justices' personal biases and/or the age, gender, ethnicity, and presentation style of the Attorneys are to be disregarded as much as is humanly possible in reaching a decision.
• Briefs will weigh heavily in the first round of arguments. If both sides are arguing from their brief, the brief will weigh more heavily than the argument at a ratio of about 60% to the brief and 40% to the argument. When teams are not arguing from a written brief (usually after switching sides) the argument alone will decide the case.
• Teams bringing up new material not included in their written brief may be challenged by the bench for arguing a case or a line of thought that they failed to include in their brief. Attorneys can bed the court’s indulgence and state that they have discovered something new. That is the exception, however, and not the rule; Justices might question an Attorney as to why she or he did not include the new material in the brief, and it is the Justices’ call whether or not their want to consider it.
• Majority vote determines the winner of the case, and the court will issue a written opinion. Unless there is a unanimous vote, those on the minority side of the vote write a dissenting opinion. (In most Model Court cases, a dissenting opinion is likely.)
• Only one affirming and one dissenting opinion will be written (i.e. due to time constraints, concurring opinions will simply be noted as part of the court's overall reasoning).
• The Presiding Justice will appoint the individual who will draft the written opinions (affirming and dissenting) of the court.
• Visiting Justice may volunteer for these jobs if they wish, and are encouraged to participate.
• The Clerk of the Court will assist Justices in writing their opinions.
Writing Opinions Model Supreme Court opinions will be only one page long, but will explain the core reasons why the court ruled on a given case the way it did so that Attorneys and the public understand the basis on which the Court decided the case. Opinions are written for each issue in the case by both the Majority and Dissenting sides. It is theoretically possible for the Court to split its decision on the issues; for example, the Court
might rule in favor of the Appellant for one issue and for the Respondent on the other. The state office will have Sample Opinion forms with the case and issues pre-typed for use during the session. The Sample Opinion Outline is on the following page. Opinions will be posted at a time and place noted in the program schedule.
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(Sample Opinion)
Montana YMCA Model Supreme Court Decision case no. ____________ Case title:_____________________________________ Appellant’s Counsel: (name of Attorneys) Respondent’s Counsel: (name of Attorneys) The Court in this case rules in favor of: ______Appellant _________Respondent _________ Split decision (Name of Justice writing opinion) , writing for the court's (Majority/Dissenting) opinion, (Affirming/Reversing) the decision of the District Court.
ISSUES (1) (example) Did the District Court err by ruling, in CK's case, that HB 63 does not violate the right of privacy guaranteed under the Montana Constitution? HOLDING: (yes or no) RULING Affirm—(number of votes) Reverse—(number of votes) (2) (State issue two) HOLDING: (yes or no) RULING Affirm— (number of votes) Reverse—(number of votes)
REASONING (1) (Example) The court decided that while the state of Montana affords citizens broader constitutional protection of their right to privacy than does the federal constitution, the issue of privacy did not apply to wearing protective helmets. Further, because the cost of treating head injuries ultimately is paid by taxpayers in the forms of higher insurance premiums and public funds used to treat inadequately insured individuals, the standard of protecting others from an individual’s actions can be applied. (2) (State reasons for holding on issue two.) Sample opinion format adapted from Kacvinsky, Greg and Justin Ware. Wisconsin Youth in Government Supreme Court Manual, 1992 edition.
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Bench Memoranda A bench memorandum (sometimes called a bench memo or bench brief) is somewhat like a legal brief, and is used as a tool to help a Model Supreme Court Justice become familiar with the facts of the case, the issues and the applicable law. It also includes written questions that the Attorneys arguing the case should be able to answer. A bench memo has a neutral statement of the facts and a summary of the issues to be decided. It then goes into a legal analysis of both sides of each issue, with appropriate citations, looking at the case without a bias toward one side or the other. When finely crafted, it gives a judge or justice an overview of the law and provides some well-thought out questions that can be asked during the case hearing. In the real world, some courts have their law clerks prepare bench briefs as a preparation tool for the judges or justices. Bench memos are also written by students in law schools as an educational assignment. In the Model Supreme Court, all elected and appointed Justices are required to write a 3-5 page bench memo for each of the two cases they will hear.
Justices are provided copies of both cases with the same research materials as are provided to Attorneys. They may utilize additional outside materials that will help them better understand the law and the issues of the case, but must keep in mind
that the Attorneys are only allowed to use
and cite materials from the case packet and
cannot be asked to refer to any other
information.
In the Model Supreme Court, the Justices will hear the same case several times. Therefore, in writing a bench memo for this program, it is very important to view the case objectively and try to avoid making a conclusion on the case prior to hearing arguments by the Attorneys. In the real world, the Court generally hears a case only once, and a Justice may have a tentative conclusion in his or her mind prior to hearing the oral arguments. However, Justices also remain open to the possibility that an attorney will make a persuasive argument in a way which the Justice did not think of prior to the hearing. Attorneys might also answer a question which was still undecided by a Justice prior to hearing the argument. In other words, the Justice's tentative position on the issue is open to change. The outline on the next page demonstrates what needs to a into a Bench memo.
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.43
Montana YMCA Model Supreme Court
Bench Memorandum Outline (outline sample)
Case no. __________ Justice:__________________________________________________ FACTUAL AND PROCEDURAL BACKGROUND: (Here, set forth in your own words the important facts of the case and the procedural background from the trial court—i.e. who won and the basis upon which the decision was made.) ISSUE ONE: (Set forth a statement of the issue, which should be in your own words.) APPELLANT’S CONTENTIONS: (What you think the Appellant should argue) RESPONDENT’S CONTENTIONS: (What you think the Respondent should argue) ANALYSIS: (Here, set forth several QUESTIONS you could ask each side at oral argument, problems you see with each party’s argument; thoughts you have on what is critical and what is not; and, if possible, conditions that would lead you to rule in favor of the appellant on issue one, or conditions that would lead you to rule in favor of the respondent on issue one.) ISSUE TWO: (Set forth a statement of the issue, which should be in your own words.) APPELLANT’S CONTENTIONS: (What you think the Appellant should argue) RESPONDENT’S CONTENTIONS: (What you think the Respondent should argue) ANALYSIS: (Here, set forth several QUESTIONS you could ask each side at oral argument, problems you see with each party’s argument; thoughts you have on what is critical and what is not; and, if possible, conditions that would lead you to rule in favor of the appellant on issue two, or conditions that would lead you to rule in favor of the respondent on issue two.) CONCLUSION: (summary of the anticipated arguments and most critical points of the case to consider when making a decision.) Bench Memoranda format designed by Christine Wethern, Staff Attorney, Montana Supreme Court.
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.44
Sample Bench Memoranda #1 Below is a portion of a bench memo that is adapted by those written by past Model Supreme Court Justices for the “snowmobile helmet” case used earlier in the opinion sample. Composite adapted from the bench memoranda of Brooke Gordon, Darby Harris, Charles Harvey, Denice Kelley and Mark Lightner, 1998
Montana YMCA Model Supreme Court Justices.
APPELLANT’S CONTENTIONS: Appellant is apt to argue as follows: 1. Not wearing a helmet does not endanger the
public safety, public health, ot public moral, therefore, there was no need for the law.
According to State v. Betts, a public need must exist for police action. CK was not harming anyone but himself, and could not have harmed anyone else.
The decision as to whether or not a helmet is necessary is up to him because it will effect no one but him. The public safety or welfare will not be saved or increased because of helmet-wearing individuals, especially CK. Therefore there was no cause to charge him.
2. By not wearing a helmet, CK presents no harm to the existing public. A compelling state interest is not shown with this case, so there are no grounds for infringing upon his right to individual privacy.
3. Despite the public nature of the trail, the trail was on private land and therefore not in the arresting officer’s jurisdiction.
RESPONDANT’S CONTENTIONS: Respondent is apt to argue as follows: 1. The right to wear a helmet should not be decided
by the passenger or driver because it is a compelling public matter that affects taxpayers.
According to Robotham v. State, the costs of a head injury could rest on the shoulders of the public. If HB 63 is not obeyed, accidents could result that involve head injuries. These head injuries can be fatal or a life-long detainment, resulting in extremely high hospital bills that the tax payers would have to pay.
By wearing helmets, it limits the number of head injuries and takes the weight of the rest of our taxpaying society.
2. HB 63 clearly states that it is mandatory to wear a helmet, and does not give exceptions.
CK knew the helmet law and blatantly disobeyed it. People cannot be allowed to disobey rules whenever they want, just because they don’t want to. Our society may have been founded on dissension from another’s rules, but we also have a social contract balancing the needs of the individual against the needs of society.
CK had legal opportunities opened to him to voice his opinion against the law.
3. The helmet law is vital to the safety of the public. A snowmobile can be operated at high speeds, especially by an expert such as CK. If something were to hit him in the head, causing loss of concentration, he could lose control and possibly run into others.
ANALYSIS:
The issue of right of privacy will be argued by both sides as to exact rights individuals have. Can the appellant prove that having to wear a helmet invades one’s privacy? Can the respondent show that wearing a helmet is not a privacy issue or else demonstrate a compelling state interest?
The issue of the cost to society of head injuries and their treatment will be raised. What is the extra burden to society created by riders not wearing helmets?
In addition, the issue of whether the law applies to private land and if the officer was within her jurisdiction in issuing the citation on private land are important considerations.
Question: Where would you draw the line as to
what a compelling state interest would be? Would saving the taxpayers 7 to 11 million dollars be a compelling state interest?
Question: In what other ways, besides accidents and tax money for injuries does lack of helmets infringe upon another’s rights?
Question: Does it have to be specifically stated in the legislation whether the law applies to public or private land or both?
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Montana YMCA Youth and Government Manual – Model Supreme Court Manual
Rev. 2006 Page 7.45
Sample Bench Memoranda #2
Below is a portion of analysis and questions used in a bench memo on a case regarding whether a Native American child should be placed with a white or an Indian Adoptive family. This excerpt deals with the question of whether a set of guidelines allowing exceptions to the law in question should be applied in this particular case. This sample is taken from a law school model case (Adapted from Alaspa, Karen L. Blossom and Sokol v. Navajo Nation and Turning Leaf. Law school bench memorandum. Northwestern School of Law, Lewis and Clark College, 1997 (problem authored by Professor Toni Berres-Paul). As Sample Bench Memoranda #1 and Sample Bench Memoranda #2 show, there is more than one way to develop a bench memo. ANALYSIS: The Tribe will argue that the Indian Child Welfare Act (ICWA) recognizes and protects tribal interests in reference to child custody proceedings. Holyfield 490 US at 49. Similar to the reasoning in Holyfield, the application of good cause in this case would allow parents to circumvent ICWA by abandoning children to other off the reservation for a couple of years. The court should be careful applying guidelines in this case; a guideline that is merely instructive and not binding should not be used to defeat tribal interests and open the door to future abuses. The Family will argue that the child’s situation is exactly what was intended for the good cause exception. The guidelines speak of “culture shock” and resulting harm from transfers when a child over five years has grown attached to a non-Indian culture and family. In addition, the Family will argue that this case does not open the door to abuses as noted in Holyfield because the child lived with the Family off the reservation for four years, with the knowledge and permission from all interested parties.
Question: How does the Tribe address the guidelines reasoning behind the good cause exception – that it protects the child from “culture shock” and possible psychological harm? Shouldn’t that matter? Question: Where do tribal interests come in when the court attempts to determine if there is a good cause exception and examines possible harm to the child? Is a balancing test involved?
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In the YMCA Model Supreme Court of the State of Montana No. 16-001
STATE OF MONTANA, Plaintiff and Appellee,
v.
CASEY CARING,
Defendant and Appellant. FACTUAL AND PROCEDURAL BACKGROUND Steve DeFond is a reserve deputy with the Forest County Sheriff’s Office and an avid cross-country skier. In late December, 2014, DeFond ventured out into the Meagher National Forest before dawn to take advantage of the pristine snow that had fallen the night before. When he didn’t return home that evening, his wife frantically contacted the Forest County Sheriff, John Law. Sheriff Law quickly dispatched search and rescue teams to begin looking for DeFond. On the ground, teams on snowmobiles, ATVs, and cross-country skis fanned out. Sheriff Law used the opportunity to test out the Sheriff’s Office’s new drone. The drone, donated by a local millionaire, could fly up to 100 feet above the ground and was equipped with a thermal imager that could detect the heat signatures of warm-blooded animals, such as a lost skier. Sheriff Law was surprised that such a fancy machine could be purchased on Amazon.com. After hours of searching and finding only the heat signatures of elk, deer, and possibly a mountain lion, the drone flew over a cabin located on national forest land. The thermal imager recorded a heat signature Sheriff Law knew, from his training and experience, was consistent with the heat discharge pattern of multiple high intensity grow lamps. These grow lamps are often used in the cultivation of marijuana. The forest around the cabin was too thick for the helicopter to land. Sheriff Law noted the GPS coordinates of the cabin, then the drone flew off to continue the search for DeFond. Later that night, DeFond stumbled upon the cabin. About fifty feet from the cabin, DeFond detected a strong odor of what he thought might be marijuana. The cabin door was locked, but DeFond was freezing and exhausted so he broke a window to gain
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access. In addition to shelter, DeFond hoped to find some food and maybe even a phone he could use to call for help. Instead, DeFond found the walls of the cabin lined completely with thick black plastic. The ceiling was covered with reflective, insulating fabric that looked as if it was intended to bounce heat back into the room. Thirteen plastic buckets each contained a mature plant DeFond knew to be marijuana. Two rows of high intensity grow lights hung from the ceiling. Plastic tubing ran from the buckets to a large plastic drum in one corner. DeFond suspected this might be an irrigation system. Although DeFond did not like the idea of spending the night inside a grow house, it was past midnight and temperatures had plummeted. The cabin was very warm from the grow lights. DeFond rigged a primitive alarm system from some discarded beer cans he found on the floor and tried to catch some sleep. No one else came to the cabin that night. DeFond left as soon as he awoke and after three hours he came upon a paved road. As luck would have it, less than ten minutes after DeFond emerged from the forest, a truck drove by and stopped for him. The truck drove DeFond back to his home, where his worried wife was overjoyed to see him. DeFond reported what he’d seen in the cabin to Sheriff Law. Sheriff Law connected it with the heat signatures the drone had detected and relayed the information to the Forest County Attorney. The County Attorney applied for a search warrant on the basis of DeFond’s observations, the thermal imaging evidence, and Sheriff Law’s interpretation of the evidence. Sheriff Law’s affidavit, which accompanied the application, stated:
1. While conducting a search for a missing skier, Sheriff Law made use of a drone-mounted thermal imaging device capable of displaying and recording the heat discharged by animal or manmade sources of heat on the ground.
2. During the search, Sheriff Law trained the thermal imaging device of the drone on a cabin located on National Forest land, with the intent to determine whether any heat discharge evidence would disclose the presence of the missing skier.
3. He did not observe any evidence of the presence of the missing skier in or near the cabin, but did observe a heat discharge pattern which he knew by virtue of his training and experience to be consistent with the presence in the cabin of one or more high intensity lamps of the kind used for the indoor cultivation of marijuana.
4. Sheriff Law recorded the image using a recording device incorporated in the thermal imaging equipment.
5. Sheriff Law later learned that the missing skier, Steve DeFond, had broken into the cabin seeking shelter and a telephone to use to call for help.
6. DeFond reported he observed plants in the cabin growing in plastic buckets under high intensity lights.
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7. DeFond told Sheriff Law he believed the plants were marijuana based on training he had received as a reserve deputy with the Forest County Sheriff's Office. DeFond further reported he could smell the marijuana from outside the cabin.
8. From DeFond’s description of the plants Sheriff Law concluded they fit the description of marijuana plants.
The Justice of the Peace reviewed the application, found probable cause, and issued the warrant. The cabin was used as a residence by Casey Caring, a local outfitter. When the warrant was executed, the officers found ten mature marijuana plants along with grow lamps, cultivation supplies, and four ounces of harvested marijuana. Caring was arrested and charged with criminal production of dangerous drugs (marijuana) and criminal production of dangerous drugs (marijuana). Before trial, Caring moved to suppress the results of the warrant search, arguing that the search invaded his rights to be free from unlawful searches and seizures and his right of privacy under the Montana constitution. He questioned the use of thermal imaging evidence and the admissibility of DeFond’s testimony about his observations after breaking into Caring’s cabin. These issues, Caring claimed, meant there was not sufficient probably cause and the justice of the peace should not have issued the search warrant. Caring also moved to dismiss the charges, arguing that the marijuana was for his and his girlfriend’s personal use. Both Caring and his girlfriend hold valid medical marijuana cards, and Caring argued his right to privacy under the Montana Constitution protected his right to possess the medicine of his choosing within the privacy of his own home. The trial judge denied both motions. After a jury trial in the 26th Judicial District Court, Forest County, Casey Caring was found guilty on both counts. He now appeals the conviction based on the denial of his motion to suppress and the denial of his motion to dismiss. Issues:
1. Was there sufficient probable cause for the search warrant? Be sure to address the legality of both the drone search and DeFond’s search.
2. Does the right to privacy protect Caring’s right to possess medical marijuana in his own home?
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CASES AND RELATED MATERIALS: Article II, § 10, Montana Constitution Article II, § 11, Montana Constitution Amendment 4, United States Constitution Kyllo v. United States, 533 U.S. 27 (2001) State v. Urziceanu, 2015 MT 58 State v. Cotterell, 2008 MT 409 (Only need to read to “Issue 2” on page 13). State v. Malkuch, 2007 MT 60 Armstrong v. State, 1999 MT 261 State v. Kuneff, 1998 MT 287 Gryczan v. State, 283 Mont. 433 State v. Long, 216 Mont. 65 (1985) § 46-5-221, Montana Code Annotated § 45-6-203, Montana Code Annotated § 50-46-319, Montana Code Annotated Note on the cases: some of the cases deal with other, irrelevant, issues in addition to the issues in this case. Feel free to skim over portions of the cases that aren’t relevant here.
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IN THE YMCA MODEL SUPREME COURT OF THE STATE OF MONTANA
No. 2017-1
STATE OF MONTANA
Respondent and Appellee,
V.
CASEY CARING
Plaintiff and Appellant
BRIEF OF APPELLANT
On appeal from the 26th Judicial District Court, Forest County
ORAL ARGUMENT REQUESTED
APPEARANCES:
Leif C. Clark 5319 Continental Dr. Butte, MT 59701 Xavier B. Black 1916 Wilson Ave. Butte, MT 59701 ATTORNEYS FOR PLAINTIFF AND APPELLANT
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TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………………………………1 STATEMENT OF THE FACTS……………………………………………..…………………2 STATEMENT OF THE ISSUES…………………………………………………………….….3 ARGUMENT……………………………………………………………….……………….…..3
I. SUFFICIENT PROBABLE CAUSE DID NOT EXIST FOR THE SEARCH WARRANT REGARDING THE CARING ESTATE SEARCH TO BE JUSTLY ISSUED………………………………………………………………….……….3
A.) The heat signatures seen by Sheriff Law constitute an illegal search....….3
B.) DeFond’s actions constitute an illegal search…………...………………..4
C.) Both initial searches being illegal, they cannot contribute to the issuance
of a search warrant……………………………………………………..…5
II. THE STATE DID NOT DEMONSTRATE A COMPELLING INTEREST TO INFRINGE UPON CARING'S RIGHT TO INDIVIDUAL PRIVACY, THEREFORE CARING'S PERSUIT OF HEALTH WITHIN HIS RESIDENCE IS FULLY PROTECTED BY HIS RIGHT TO MAKE AUTONOMOUS MEDICAL DECISIONS………………………………………………………...6
A.) There was not a compelling state interest to infringe upon Caring's right
of individual privacy……………………………………………………..6
B.) Caring was acting within his rights as asserted by the Montana Constitution………………………………………………………………7
C.) Caring had a reasonable expectation of privacy in his home…………….8
CONCLUSION…………………………………………………………………………………..8
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TABLE OF AUTHORITIES
Cases
Kyllo v. United States 533 U.S. 27 (2001)………………………………………………….......…3
State v. Kuneff 291 Mont. 474; 970 P.3d 556 (1998)………………………………………..3, 4, 6
State v. Long 216 Mont. 65; 700 P.2d 153 (1985)………………………………………..……….4
State v. Malkuch 336 Mont. 219; 154 P.3d 558 (2007)……………………………….......………4
Armstrong v. State 296 Mont. 361; 989 P.2d 364 (1999)………………………………………....7
Gryczan v. State 283 Mont. 433; 942 P.2d 112 (1997)……………………………………...……8
Constitutional Provisions
Article II, § 10 Montana Constitution ………………………………………………………….…6
Statutes
Montana Code Annotated § 50-46-319, (2011)……………………………………......………….7
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STATEMENT OF THE FACTS In late December, 2014, Steve DeFond was cross-country skiing in the Meagher National Forest
when he became lost and did not return home in a reasonable time frame. This prompted his wife to notify
the Forest County Sheriff, John Law, who duly dispatched search and rescue teams.
In addition to the use of search and rescue teams working on the ground, Sheriff Law made use of
an unmanned drone equipped with thermal imaging equipment. In the course of searching for DeFond,
Sheriff Law located the heat signature of multiple high intensity grow lamps. After noting GPS
coordinates of the heat signature, Sheriff Law continued to search for Steve DeFond.
DeFond was not located that night. After midnight, DeFond came upon a cabin which smelled
heavily of marijuana, and finding nobody in the vicinity, broke a window in order to access the cabin in
hopes of finding shelter, food, and means of communication if possible. Upon entering the cabin, Steve
DeFond found it to contain thirteen buckets. Each bucket contained what DeFond identified as being a
mature marijuana plant. DeFond was able to identify the plants due to training he received as a Forest
County reserve sheriff's deputy. The ceiling of the cabin appeared to be covered with an insulating fabric.
DeFond also observed two rows of high intensity grow lamps in addition to what appeared to be an
irrigation system. DeFond slept in the cabin to avoid the nighttime temperatures and in the morning,
DeFond immediately left the cabin, and was, fortunately, found and returned home that morning.
DeFond reported his observations to Sheriff Law, who relayed them to the County Attorney in
addition to his own observations made with the thermal imaging device on the drone. The County
Attorney applied for a search warrant. The application for the search warrant was based both on DeFond's
and Sheriff Law's observations, in addition to Sheriff Law's interpretation of these observations. Sheriff
Law's affidavit was submitted with the application for the search warrant.
The Justice of the Peace who reviewed the application found probable cause and issued the
warrant. The warrant was executed and police found ten mature marijuana plants, cultivation supplies,
grow lamps, and four ounces of harvested marijuana. The cabin was being used as a residence by Casey
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Caring. Caring was arrested and charged with criminal production of dangerous drugs (marijuana), and
with criminal production of dangerous drugs (marijuana).
Prior to the trial, Caring motioned to suppress the results of the search on the contention that the
warrant was issued in clear violation of MCA 46-5-221. Caring also motioned to dismiss the charges on
the contention that his actions were protected under the Montana Constitution, Article II, § 10. Both
motions were denied by the trial judge. A jury trial before the 26th Judicial District Court, Forest County,
found Casey Caring guilty on both counts. Casey Caring has now appealed the conviction on the basis of
the denial of his motion to suppress, and the denial of his motion to dismiss.
STATEMENT OF THE ISSUES
1. Was there a lack of sufficient probable cause for the search warrant?
2. Does the right to privacy protect Caring’s right to possess medical marijuana in
his own home?
ARGUMENT
I. Sufficient probable cause did not exist for the search warrant regarding the Caring estate search to be justly issued.
A.) The heat signatures seen by Sheriff Law constitute an illegal search. As stated in the ruling of Kyllo v. United States 533 U.S. 27 (2001), “...the information obtained
by the thermal imager in this case was the product of a search. The Court rejects the Government's
argument that the thermal imaging must be upheld...” The images of the grow lamps within Caring's
residence therefore constitute a search. At the time of the search, Sheriff Law did not possess a valid
search warrant allowing him to legally use the thermal imaging on the drone to search Caring's residence
for evidence regarding drug related crimes. The principle that thermal imaging constitutes a warrantless
search being perpetrated by that state is furthered in the majority opinion of State v. Kuneff 291 Mont.
474; 970 P.3d 556 (1998), which states, “The court in Siegal held that the thermal imaging scan of
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defendant's property was a warrantless search that implicated Montana's Constitutional right to privacy
under Article II, Section 10.” This demonstrates that Sheriff Law's search of the residence with thermal
imaging was a violation of Caring's right to privacy as put forth in the Montana Constitution. The same
majority opinion would go on to state, “The Court then excised the results of the thermal imaging scan
from the search warrant application...” Therefore, as demonstrated in the Court's decision in State v.
Kuneff 291 Mont. 474; 970 P.3d 556 (1998) in reference to Siegal, the results of the drone search
perpetrated by Sherriff Law were illegally obtained and should not be considered in the question of
determining probable cause.
B.) DeFond’s actions constitute an illegal search.
The majority opinion in the case of State v. Long 216 Mont. 65; 700 P.2d 153 (1985) states, “As a
rule of court procedure, the exclusionary rule has been applied to deter illegal police conduct and to
preserve judicial integrity. When applied to private action, the deterrence argument is inapplicable.
Private individuals are not schooled in the exclusionary rule and most likely would be unaware of its
application. Therefore, it would not deter them from engaging in searches that would be illegal if
conducted by government officials.” However, the idea that the exclusionary rule should not apply to the
results of privately conducted searches is dependent upon the premise that said private entities are
unaware of the exclusionary rule. As the facts of this case demonstrate, Steve DeFond had been trained as
a reserve deputy with the Forest County Sheriff’s Office. The training experienced by DeFond would be
designed to allow him to fulfill the role of an official deputy of the law if needed. Therefore, DeFond
clearly must have known of the exclusionary rule and its applications. Thus, the argument that the
exclusionary rule should not apply to private endeavors would not be valid in this case, as DeFond was
not unknowing of the applications of the exclusionary rule in the manner that most citizens would be.
While Steve DeFond was not deputized at the exact time of his being lost in the woods, his actions still
constitute a search perpetrated by an agent of the state. This is seen by applying the two prong test set
forth in State v. Malkuch 336 Mont. 219; 154 P.3d 558 (2007), which states, “In determining whether a
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private person was acting as a government agent in conducting a search, two critical factors are examined:
(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party
performing the search intended to assist law enforcement efforts or to further his own ends.” On the first
point of the test set forth, it is clear that while the government was not aware of DeFond’s search when it
took place, the attempt to use the results of said search to procure a search warrant for the Caring
residence indicates that the state clearly acquiesced in the actions of DeFond. On the second point set
forth, it is evident that while DeFond was only furthering his own interests upon breaking into the cabin,
his actions after returning to town indicate him to have been furthering the ends of the state. DeFond was
under no obligation as a private citizen to report what he had seen, nor was reporting what he had seen
significantly in his own interests. His interest of staying alive in the cold winter night he had become lost
in were fulfilled and he could have reasonably resumed his day to day activities without consequence.
The state however, had its interests substantially furthered by DeFond’s actions after his rescue.
Therefore, applying the Malkuch test, it is readily evident that DeFond was acting as an agent of the state
in choosing to report his observations, and had therefore conducted an illegal search of the Caring estate.
C.) Both initial searches being illegal, they cannot contribute to the issuance of a search warrant. Having demonstrated that both the drone search and the search conducted by DeFond were
illegally conducted, there are distinct points of clarification which must be made. Search and rescue
operations make allowances for searches relevant to the search and rescue operation. However, the legal
standing of the searches conducted in locating a person at risk of dying does not extend beyond that
prospect. That is to say, the allowances made for the search and rescue operation did not fill the place of a
warrant specifying information relevant to drug-related crimes to be located on Caring's property.
Furthermore, while an allowance can be made for DeFond’s actions as being reasonably related to saving
his life at the time, that allowance does not take the place of a warrant specifying that DeFond’s
observations of drug-related crimes being perpetrated are permissible as evidence in a court of law, or in
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consideration for the issuance of a search warrant. In affirming the decision of the District Court, the
majority opinion of State v. Kuneff 291 Mont. 474; 970 P.3d 556 (1998) stated, “... the District Court
concluded that evidence obtained after an illegal search need not be excluded unless the illegality is the
'but for' cause of the discovery of the evidence.” Having established that both the thermal search and
DeFond’s search of the Caring residence were thoroughly illegal in nature, it can also be seen that the
illegality in both searches is a 'but for' cause of the evidence having been found. That is to say, but for the
illegal viewing of the interior of the Caring residence, the evidence would not have been found.
Therefore, the evidence found as result of both searches must be excluded from consideration by the
court. More importantly, in State v. Kuneff 291 Mont. 474; 970 P.3d 556 (1998) the Court cited and
upheld the precedent set forth in United States v. Wanless which specifically stated, “holding evidence
seized as a direct result of illegal search cannot establish probable cause for later search warrant[sic].”
State v. Kuneff 291 Mont. 474; 970 P.3d 556 (1998) Because both the thermal imaging and DeFond’s
observations were the direct result of an illegal search when applied to pursuing evidence related to a drug
offense, neither piece of evidence can, with the standard set forth in United States v. Wanless and upheld
by State v. Kuneff 291 Mont. 474; 970 P.3d 556 (1998), be used in pursuit of a search warrant. There was
in no way probably cause of the issuance of the search warrant regarding the Caring residence.
II. The State did not demonstrate a compelling interest to infringe upon Caring's right to individual privacy, therefore Caring's pursuit of health within his residence is fully protected by his right to make autonomous medical decisions. A.) There was not a compelling state interest to infringe upon Caring's right of individual privacy. The Constitution of the State of Montana, Article II, § 10, states, “The right of individual privacy
is essential to the well-being of a free society and shall not be infringed without the showing of a
compelling state interest.” The state has failed to show how a compelling state interest existed to violate
the privacy of an individual in pursuit of evidence in accordance with that which would be typically used
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to prosecute an individual on drug-related charges. Specifically, the state violated Caring's privacy
without showing that his activities as he perused them within his own home affected society, the state, or
any other citizen in any other way. Because both Caring and his girlfriend had a legitimate reason to be
cultivating marijuana, as evident by the fact that they both possessed a valid medical marijuana card, it is
clear that the marijuana being cultivated by Caring was intended purely for legitimate medical usage.
Therefore, the only actual crime committed by Caring would be growing marijuana for medical purposes
in excess of the amount legally provided for in MCA 50-46-319, (1) (a), which states, “A registered
cardholder may possess up to 4 mature plants, 12 seedlings, and 1 ounce of usable marijuana.” It could be
reasonably argued that because Caring's girlfriend also possessed a legitimate medical marijuana card at
the time of all three illegal searches, some of the plants must be considered to have belonged to Caring's
girlfriend. This stated, Caring was only marginally cultivating marijuana in excess of the allowed amount.
Because this marijuana was for legitimate medical purposes of use by Caring and his girlfriend, the
marijuana was not affecting either society, the state, or other citizens. Therefore, the state did not have a
legitimate interest in infringing upon Caring's right of individual privacy.
B.) Caring was acting within his rights as asserted by the Montana Constitution. The majority opinion in the case of Armstrong v. State 296 Mont. 361; 989 P.2d 364 (1999)
stated, “...Article II, Section 10 of the Montana Constitution broadly guarantees each individual the right
to make medical decisions affecting his or her bodily integrity in partnership with a chosen health care
provider free from government interference.” The existence of MCA 50-46-319 which dictates the legal
amounts of marijuana a legal cardholder may possess acknowledges that marijuana does have legitimate
medical uses. Caring, prior to, during, and after the searches were conducted on his property was in
possession of a medical marijuana card which can only be obtained with the consent of a qualified
medical professional. Therefore, applying the precedent set forth by Armstrong v. State 296 Mont. 361;
989 P.2d 364 (1999), Caring was acting fully within his right to make medical decisions affecting his
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bodily integrity in partnership with a chosen health care provider free from government interference.
C.) Caring had a reasonable expectation of privacy in his home. In accordance with the precedent that an individual's right to make medical decisions affecting his
or her bodily integrity in partnership with a chosen health care provider free from government
interference, The Supreme Court of Montana in the case of Gryczan v. State 283 Mont. 433; 942 P.2d 112
(1997) upheld the Katz test of determining whether an issue is subject to the right of privacy. As cited in
Gryczan v. State, in the majority ruling of Katz v. United States, 389 U.S. at 361; 88 S. Ct. at 516; 19 L.
Ed. 2d 576 (1967) Justice Harlan summarized the Katz rule as, “first that a person have exhibited an
actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared
to recognize as 'reasonable.'” Gryczan v. State 283 Mont. 433; 942 P.2d 112 (1997) Applying the Katz
test, it is readily apparent that Caring had an expectation that his residence would not be violated. This is
evident by the fact that DeFond had to break in to the residence to gain access. As to whether this would
be viewed as reasonable, it is scarcely necessary to say that the vast majority of the population would
agree that locking one's door is a completely reasonable action. Insofar as the search perpetrated by
Sheriff Law and his drone, the average citizen clearly does not live in fear of the use of thermal imaging
because of its relatively low application rate and the fact that it is not typically used by private citizens.
Therefore, Caring need not have demonstrated a specific urge to shield his home from thermal imaging
devices, as society is readily recognizing of an individual's reasonable expectation of privacy form
thermal imaging of one's home such to the extent that shielding one's home from such imaging devices
would be considered unnecessary to still have a reasonable expectation of privacy.
CONCLUSION In conclusion, the actions of Sherriff Law when operating the thermal imaging system constitute
an illegal search when applied to the pursuit of evidence regarding drug-related charges without a proper
warrant. This, in conjunction with the actions of Steve DeFond also being applied to the pursuit of
(8)
75
evidence regarding drug-related charges without a proper warrant provided the basis with which the
warrant for the Caring estate's search by law enforcement officers. As previously demonstrated, the two
illegal searches cannot legally contribute to the determining of probable cause by an appropriate
magistrate. Therefore the warrant for the Caring estate's search by law enforcement officers was issued
without any form of probable cause.
Caring's right to make autonomous medical decisions without government interference, in
addition to his rights to privacy as demonstrated in the Montana Constitution and clarified by the Katz
test, which was upheld by The Montana Supreme Court, show that the state must have justified its actions
by proving a compelling state interest to have existed prior to and regarding the search of the Caring
residence. The fact that Caring had a legitimate need of marijuana for purely medical usage, as proven by
his having been issued a medical marijuana card by a qualified health professional, demonstrates that the
actions of Mr. Caring in no way affected his fellow citizens, the interests of the state, or for that matter
anyone outside of himself within his own home. Having shown that the state had no compelling interest
in infringing upon Caring's right to privacy, it can only be concluded that Caring's right to privacy extends
to his decisions on how to best care for his own health within the confines of his own home.
For the forgoing reasons, the decision of the District Court of Forest County should be reversed.
Respectfully submitted this 18th day of March, 2016.
Leif C. Clark 5319 Continental Dr. Attorney at Law Butte, MT 59701 Xavier B. Black 1916 Wilson Ave. Attorney at Law Butte, MT 59701
(9)
76
IN THE YMCA SURPREME COURT IN THE STATE OF MONTANA No. 16-001
STATE OF MONTANA Plaintiff and Appellee, v. CASEY CARING Defendant and Appellant.
BREIF OF APPELANT
ORAL ARGUMENT REQUESTED
APPEARANCES: Jessie Finks 4888 Joslin Trial Darby, MT 59829 Casey Smith 501 N Welcome Way Darby MT, 59829 ATTORNEYS FOR APPELLANT
77
TABLE OF CONTENTS
Table of Authorities……………………………………………………………………………………….………… Pg. 2
Statement of Issues…………………………………………………………………………………………………. Pg. 2
Statement of Facts…………………………………………………………………………………………………… Pg. 3
Argument…………………………………………………………………………………………………………………. Pg. 5
1. There was no sufficient probable cause for the search warrant, and both of the searches conducted have questioned legality. A. The searches were unlawful………………………………………………………………………. Pg. 5 B. No sufficient probable cause for warrant…………………………………………………… Pg. 6
2. The right to privacy does protect Casey Caring’s right to possess medical marijuana in his own home. A. Possession of medicine is between a patient and their doctor…………….……… Pg. 6 B. It was not of the state interests……………………….……………………………………...…. Pg. 6
TABLE OF AUTHORITIES
Statutes
MCA 45-6-203
MCA, Article 2, Section 10
MCA, Article 2, Section 11
78
STATEMENT OF THE ISSUES
Issue 1: Was there sufficient probable cause for the search warrant?
Issue 2: Does the right to privacy protect Caring’s right to possess medical marijuana in his own
home?
STATEMENT OF THE FACTS
Steve DeFond is a reserve deputy with the Forest County Sheriff’s Office and a cross-country
skier. In late December, 2014 DeFond went skiing in the Meagher National Forest before dawn.
When he didn’t return home that evening, his wife contacted the Forest County Sheriff, John
Law. Sheriff Law quickly dispatched search and rescue teams to begin looking for DeFond.
In order to try and find DeFond, the search and rescue teams used snowmobiles, ATVs,
cross-country skis, and a drone that was equipped with a thermal imager that could detect the
heat signatures of warm-blooded animals. After hours of searching and finding only heat
signatures of other animals, the drone flew over a cabin located on the national forest land. The
thermal imager recorded a heat signature Sheriff Law knew, from his training and experience,
was consistent with the heat discharge pattern of multiple high intensity grow lamps. These
grow lamps are often used in the cultivation of marijuana. The forest around the cabin was too
thick for the helicopter to land. Sheriff Law noted the GPS coordinates of the cabin, then the
drone flew off to continue the search.
79
Later that night, DeFond stumbled upon the cabin and broke in so he could take shelter
and find a phone to call for help. While in the cabin, DeFond found the walls of the cabin lined
with thick black plastic, the ceiling covered with reflective, insulating fabric, high intensity grow
lights hanging from the ceiling, thirteen plastic buckets that contained a mature plant DeFond
knew to be marijuana, and plastic tubing that ran from the buckets to a large plastic drum in
one corner.
DeFond stayed the night in the cabin and left when he awoke. He came upon a paved
road and was picked up by a truck. DeFond was then returned home to his wife and reported
what he had seen in the cabin to Sheriff Law. Law then relayed this information to the Forest
County Attorney. The County Attorney applied for a search warrant based on DeFond’s
observations and the thermal imaging evidence. The Justice of the Peace reviewed the
application, found probable cause, and issued the warrant.
The cabin was used as a residence to Casey Caring. When the warrant was executed, the
officers found ten mature marijuana plants, grow lamps, cultivation supplies, and four ounces
of harvested marijuana. Caring was arrested and charged with criminal production of
dangerous drugs and criminal production of dangerous drugs.
Before trial, Caring moved to suppress the results of the warrant search, arguing that
the search invaded his rights to be free from unlawful searches and seizures and his right of
privacy under the Montana constitution. He questioned the use of thermal imaging evidence
and DeFond’s testimony about his observations after breaking into Caring’s cabin. Caring
claimed that these issues meant that there was not sufficient probable cause and the Justice of
the Peace should not have issued the search warrant.
80
Caring also moved to dismiss the charges. Both Caring and his girlfriend hold valid
medical marijuana cards, and Caring argued that his right to privacy under the Montana
constitution protected his right to possess the medicine of his choosing within the privacy of his
own home.
The trial judge denied both motions. After a jury trial in the 26th Judicial District Court,
Forest County, Casey Caring was found guilty on both counts. He now appeals the conviction
based on the denial of his motion to suppress the denial of his motion to dismiss.
ARGUMENT
Issue 1: There was no sufficient probable cause for a search warrant. Also, the legality of both
DeFond’s and the thermal imaging search are unconstitutional.
A. The searches were unconstitutional.
The searches of Casey Caring’s home were illegal by the means of the Constitution of Montana. To
further explain this, I would like to go over the legality of DeFond’s entrance into the home of Casey
Caring. Although DeFond was in a life threatening situation, he illegally broke into Caring’s home. In
MCA 45-6-203 it states “If one enters or remains unlawfully in an occupied structure one is committed
of criminal trespass to property.” DeFond broke in with the intention to ensure his safety, but he then
unlawfully searched Caring’s house, violating the Montana Constitution (Article 2, Section 11). This right
mentions the fact that people shall be secure in their homes and free from unreasonable governmental
intrusions (searches and seizures). From this information alone, DeFond’s information is not valid; due
to the fact he committed a crime himself, this crime being an unwarranted search. The information
given from the thermal imaging search is also under question. The original intention for this search was
not illegal, but immediately after information was given about a person’s home, does the search
81
become unlawful. The information obtained by the thermal imager in this case was the product of an
unlawful search. DeFond’s and the thermal imager’s search were both a violation of MCA Article 2
Section 11.
B. There was no sufficient probable cause for the search warrant.
From previously stated above, the information that was obtained is not sufficient probable cause
because the legality of the searches conducted. The house was illegally searched by DeFond and by
thermal imaging detectors. These unlawful searches do not provide sufficient evidence needed to
provide a search warrant. Therefore, a search should never had been conducted.
Issue 2: The right to privacy does protect Casey Caring’s right to possess medical marijuana in
his own home.
A. Casey Caring’s possession of medical marijuana is information that should only be shared
between Caring and his doctor.
Casey Caring and his doctor felt that medical marijuana was the appropriate treatment
for Caring. Caring has the right to legally use this medical marijuana, such as every patient has
the right to use the medicine prescribed to them by their doctor. This case is not an exception
to that right. The right of privacy (MCA, Article 2, Section 10) states that “The right of individual
privacy is essential to the well-being of a free society and shall not be infringed without the
showing of compelling state interest.” The treatment that an individual chooses to use is
between them and their doctor. Under the right of privacy, a patient has the right to use their
medicine in their own home.
82
B. It is not in the state’s interest to know what medicine Casey Caring was using.
The right of privacy (MCA, Article 2, Section 10) states that the right of individual privacy
“shall not be infringed without the showing of a compelling state interest.” This case did not
involve public safety or public health. This case only involves the health of one individual, Casey
Caring, whose health was not in danger. Caring was only in possession of medicine that was
prescribed by his doctor. Therefore, since the public’s health and safety was not at risk, the
state did not have the right to infringe on the right of privacy.
CONCLUSION
For the foregoing reasons, the decision of the 26th Judicial Court should be overturned.
Submitted March 23rd, 2016.
Jessie Finks Finks and Smith
Attorneys at Law Darby, MT 59829
Casey Smith
Finks and Smith Attorneys at Law Darby, MT 59829
83
IN THE YMCA MODEL SUPREME COURT OF THE STATE OF MONTANA
No. 16-001 ______________________________________________________________________________ STATE OF MONTANA, Plaintiff and Appellee, V. CASEY CARING,
Defendant and Appellant. ______________________________________________________________________________
BRIEF OF APPELLANT
______________________________________________________________________________
ORAL ARGUMENT REQUESTED
APPEARANCES: Ben Bierle 11 Sphinx Dr. #14 Gardiner, MT 59030 Clancy Thomas 1008 Hwy 89s, Gardiner, MT 59030 ATTORNEYS FOR INTERVENORS AND APPELLANTS
i
84
TABLE OF CONTENTS Page TABLE OF CONTENTS……………………………………………………………………….i
TABLE OF AUTHORITIES…………………………………………………………………….1
STATEMENT OF THE ISSUES………………………………………………………………...2
STATEMENT OF THE FACTS…………………………………………………………………3
ARGUMENT…………………………………………………………………………………....3
I. THERE WAS NO PROBABLE CAUSE FOR THE SEARCH
WARRANT…………….3
A. THE THERMAL SEARCH OF THE CABIN WAS ILLEGAL………………….4
B. RESERVE SHERIFF DEFOND CONDUCTED AN ILLEGAL
SEARCH……...4
C. THE SHERIFF FAILED TO EXERCISE DUE DILIGENCE…………………....4
D. THE COURT SHOULD APPLY THE EXCLUSIONARY RULE TO THE
ILLEGAL ACTS OF PRIVATE CITIZENS……………………………………………………...5
II. THE RIGHT TO PRIVACY PROTECTS CARING’S RIGHT TO POSSESS
MARIJUANA IN HIS HOME…………………………………………………………………....5
A. POSSESSING MEDICAL MARIJUANA IS LEGAL IN THE STATE OF
MONTANA….8
B. THE RIGHT TO PRIVACY PROTECTS THOSE WHO POSSESS MEDICAL
MARIJUANA…………………………………………………………………………………….5
C. THERE IS NO COMPELLING STATE INTEREST THAT JUSTIFIES
VIOLATING CASEY CARING’S RIGHT TO PRIVACY TO GROW MARIJUANA IN HIS
OWN HOME……………………………………………………………………………………..6
CONCLUSION…………………………………………………………………………………..7
1
85
TABLE OF AUTHORITY
Cases Kyllo v. United States, 533 U.S. 27 (2001).....................................................................................
State v. Long, 216 Mont. 65 (1985).................................................................................................
State v. Malkuch, 2007 MT 60…………………………………………………………………..
State v. Kuneff, 1998 MT 287…………………………………………………………………....
Gryczan v. State, 283 Mont. 433………………………………………………………………….
Constitutional Provinces
Art. II, § 10, Montana Constitution……………………………………………………………………….
Statutes
Montana Code Annotated §50-46-319……………………………………………………………
2 STATEMENT OF THE ISSUES
86
1. Was there sufficient probable cause for the search warrant?
2. Does the right to privacy protect Caring’s right to possess medical marijuana in his own home?
STATEMENT OF THE FACTS Steve DeFond, a reserve deputy for the Forest County Sheriff’s Office, is an avid cross-country who wandered into the Meagher National Forest before dawn in December of 2014. When he did not return home, his wife contacted his supervisor, Sheriff John Law. Law dispatched a search and rescue team for DeFond. Sheriff Law took advantage of the situation and decided to use the Sheriff Office’s new drone, donated by a local millionaire. Equipped with infrared thermal imaging, the drone located a cabin located on national forest land. Hovering above the cabin, the drone observed a consistent heat discharge pattern that Sheriff Law recognized as that of high intensity grow lamps. Among their many possible uses, these types of lamps can be used to grow marijuana, which is legal for medical purposes in Montana. Later that night, deputy DeFond broke into the cabin after detecting a odor of what he thought to be marijuana. The cabin door was locked, so DeFond illegally broke a window to gain access and trespass in the cabin. DeFond found mature marijuana plants, which he already had a suspicion were there, based on his training as a reserve deputy. DeFond had did not like the idea of staying in a grow house that he entered illegally and he used trash from the floor to make an alarm system to warn him if the owners entered the cabin while he slept. No one came to the cabin that night. Leaving in the morning, DeFond skied for three hours until finding a paved road. Ten minutes after he emerged from the forest, a truck came drove by and picked him up and drove him home. DeFond reported what he had seen in the cabin to his boss, Sheriff Law. Sheriff Law put together the information, failing to check the medical marijuana registry to see if the owners or residents of the cabin had valid cards, and relayed the information to the Forest County Attorney to obtain a search warrant. The Justice of Peace issued the warrant and 10 mature plants and four ounces of harvested marijuana were found. Casey Caring, resident of the cabin, was arrested. The arresting officers failed to note that Casey Caring and his girlfriend were both holders of valid medical marijuana cards, with neither prior criminal records nor any past evidence of selling marijuana.
3 ARGUMENT
87
I. THERE WAS NO PROBABLE CAUSE FOR THE SEARCH WARRANT.
A. THE THERMAL SEARCH OF THE CABIN WAS ILLEGAL. The U.S. Supreme Court stated in Kyllo v. U.S. (2001), “... in the case of the search of a home’s interior - the prototypical and hence most commonly litigated area of protected privacy -- there is a ready criterion, with deep roots in the common law, of the minimal expectation of privacy that exists, and that it is acknowledged to be reasonable.” Also in Kyllo, the Supreme Court made it clear that use of thermal devices “...to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search” and presumptively unreasonable without a warrant.” Furthermore, also in Kyllo v. U.S. (2001), the court cited Payton, 445 U.S. at 590, “We have said that the Fourth Amendment draws a ‘firm line at the entrance to the house.’ That line, we think, must not only be firm but also bright - which requires clear specification of those methods of surveillance that require a warrant.” Thus the data obtained from the thermal imaging drone of the cabin should have been excluded from consideration in obtaining the search warrant.
B. RESERVE SHERIFF DEFOND CONDUCTED AN ILLEGAL SEARCH.
The question at hand is whether Steve DeFond was acting as a reserve deputy sheriff when he broke into the cabin of Casing Caring and discovered marijuana growing in the cabin. If he was acting as a reserve deputy, then the exclusionary rule would apply. In State v. Long (1985), the Montana Supreme Court stated, “Furthermore, in accordance with the view of all other courts, the exclusionary rule as a rule of court procedure to deny admission to the fruits of illegally seized evidence in order to deter unlawful police activities and to preserve the integrity of the judiciary itself. That is, any evidence collected by a police officer during an illegal search must be excluded from consideration by a court. The fact pattern clearly states that DeFond believed the plants that he discovered “were marijuana based on training he had received as a reserve deputy with the Forest County Sheriff’s Office.”
Also, because he was a reserve deputy, DeFond would never be off-duty, never truly a private citizen, as long as he was within his area of jurisdiction, Forest County. Steve DeFond received training to be a reserve deputy (which he employed on this ski trip), and it would be reasonable to presume that he is one of the many pairs of eyes and ears for Sheriff John Law has available throughout the county. Using the logic contained in State v. Malkuch (2007), “In determining whether a private person was acting as a government agent in conducting a search, two critical factors are examined: (1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends. As a reserve deputy, Steve DeFond, was by
88
definition, “the government” and his work as a reserve deputy would be, also by definition, “to assist law enforcement efforts.” Thus Reserve Deputy DeFond conducted an illegal search and the evidence must be excluded from consideration.
4
C. THE SHERIFF FAILED TO EXERCISE DUE DILIGENCE.
In State v Kuneff (1998), “Probable cause exists when the facts and circumstances presented ‘would warrant an honest belief in the mind of a reasonable and prudent man that the offense has been, or is being, committed and that the property sought exists at the place designated.’ ” In the fact pattern, it is clear that Sheriff Law assumed any amount of marijuana was illegal, thus he failed to take reasonable steps to ensure that probable cause for a search warrant did indeed exist. There was no evidence that he checked to see if the residents of the cabin had valid medical marijuana permits. If an adult family of four had shared the cabin, the amount of marijuana observed by Reserve Deputy DeFond would have been legal; however, the sheriff failed to make a simple check of the medical marijuana registry to see if that were the situation. If you exclude the illegal search by Reserve Deputy DeFond and just rely on the smell of marijuana near the cabin and the thermal imaging, all you can determine is that something is probably growing there, and some amount of marijuana had been present in the vicinity of the cabin. High intensity grow lamps are used for a variety of agricultural purposes, not just for growing marijuana. Therefore, a reasonable and prudent man could assume tomatoes, corn, or virtually any other fruits or vegetables, are being grown just like in a greenhouse and perhaps the gardener had smoked a joint or two recently. In summary, Fourth Amendment to the U.S. Constitution states that “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause…” Section 10 of the Constitution of Montana states, “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without showing of a compelling state interest.” By relying on a thermal scanner, conducting an illegal search, and not exercising due diligence, Sheriff Law failed to establish probable cause for a search warrant and violated the rights of Casey Caring. Therefore, the District Court decision should be overturned.
5 D. The court should apply the exclusionary rule to the illegal acts of private citizens.
89
In State v. Long (1985), the court decided to “reserve for another day the determination of whether to apply the exclusionary rule to evidence gathered as the result of felonious conduct.” Also in State v. Long, the court discussed the ‘silver platter doctrine’ where evidence is handed to the police by the actions of private citizens. State v. Long, notes, “In a special concurrence filed to the majority opinion in State v. Van Haele...the special concurrence went on to say, If the ‘silver platter doctrine’ is to be recognized for the purpose of excluding evidence obtained by private individuals then, in my opinion, it should be confined to instances where the evidence was obtained in violation of criminal statutes thereby rendering the evidence ‘illegal.’ In this way judicial integrity is preserved by not judicially blessing the fruits of illegal activity. In finding for the Appellants, this court should take the opportunity to exclude from consideration in Montana courts evidence illegally obtained by private citizens.
ISSUE 2: The right to privacy protects Caring’s right to possess medical marijuana
in his home.
A. Possessing medical marijuana is legal in the State of Montana.
MCA 50-46-319 allows a registered cardholder to possess up to 4 mature plants, 12 seedlings,
and 1 ounce of usable marijuana.
B. The right to privacy protects those who possess medical marijuana
Article II Section 10 of the Montana Constitution reads: “The right of individual privacy is
essential to the well-being of a free society and shall not be infringed without the showing of a
compelling state interest.” In Gryczan v. State (1997), the Montana Supreme Court stated,
“Unlike the federal constitution, Montana’s Constitution explicitly grants to all Montana citizens
the right to individual privacy.” Therefore, a Montana citizen begins his or her case with a
presumption of a right to privacy in all legal activities that they may choose to undertake. MCA
50-46-319 (2) states, an individual who possess a marijuana registry identification card may not
be denied any right or privilege because they acquire or grow medical marijuana. However, the
Montana Constitution does recognize that the right to privacy is not unfettered. Section 10 of the
90
Montana Constitution states, “The right of individual privacy is essential to the well-being of a
free society and shall not be infringed without showing a compelling state interest.”
6
C. There is no compelling state interest that justifies violating Casey Caring’s
right to privacy to grow marijuana in his own home.
In Gryczan v. State (citing State v. Pastos (1994), 269 Mont. 43, 47, 887 P.2d 199, 202) in
Siegal, 934 P.2d at 184), the Montana Supreme Court stated, “Since the right to privacy is
explicit in the Declaration of Rights in Montana’s Constitution, it is a fundamental right and any
legislation regulating a fundamental right must be reviewed under a strict-scrutiny analysis. To
withstand a strict-scrutiny analysis, the legislation must be narrowly tailored to effectuate only
that compelling interest.” Casey Caring and his girlfriend possessed valid medical marijuana
cards. The fact pattern provides no information that they were selling their marijuana or allowing
others without valid medical cards to use the marijuana. That is, there is nothing in the fact
pattern to indicate there is a compelling state interest in violating Caring’s right to privacy in his
own home by conducting an illegal search based on illegally obtained information. He and his
girlfriend did possess 2 plants and possibly 2 ounces of marijuana more than what the law
allows; however, this small excess of marijuana was only in their home and was not adversely
affecting anyone else.
Even this supposed excess amount of marijuana can be questioned. MCA 50-46-319 allows
Caring and his girlfriend to possess 2 ounces of usable marijuana. In the illegal search, the police
found 4 ounces of harvested marijuana. The law does not mention harvested marijuana nor take
into account the process of taking a mature marijuana plant and turning it into usable marijuana.
However, it would be reasonable to presume the “harvested” marijuana the police found was
some type of intermediate step in converting a plant into a usable product. Therefore the
supposed 2 ounces excess of usable marijuana the police discovered may not have been an
exceedance after all and simply a normal step in the process.
For these reasons the court should uphold the privacy rights of medical marijuana users to
possess these important drug and overturn the lower court decision.
91
7
CONCLUSION
For the foregoing reasons, the decision of the District Court should be reversed.
Respectfully submitted this 1st day of April, 2016.
Clancy H. Thomas Clancy H. Thomas Gardiner and Sons
Attorney at Law Gardiner, MT
Benjamin Bierle
Benjamin Bierle Gardiner and Sons
Attorney at Law Gardiner, MT
92
IN THE YMCA MODEL SUPREME COURT OF THE STATE OF MONTANA
No. 16-01
STATE OF MONTANA
Plaintiff and Appellee,
Vs.
CASEY CARING
Defendant and Appellant.
BRIEF OF APPELLANT
On appeal from the District Court of
the Twenty-Sixth Judicial District of the State of Montana,
in and for the County of Forest.
ORAL ARGUMENT REQUESTED
APPEARANCES:
Niklaus D. Zora 2933 Burke Lane Butte, MT 59701
Erik M. Casagranda 3212 Harvard Avenue Butte, MT 59701
ATTORNEYS FOR DEFENDANT
AND APPELLANT
93
TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………………………………………………….….……1
STATEMENT OF THE ISSUES………………………………………………………………………….…………...2
STATEMENT OF THE FACTS……………………………………………………………………………….………2
ARGUMENT……………………………………………………………………….……………………………….…4
I. THERE WAS NOT SUFFICIENT PROBABLE CAUSE FOR THE SEARCH WARRANT BECAUSE OF THE INSUFFICIENT EVIDENCE OF THE DRONE SEARCH AND ILLEGAL NATURE OF DEFOND’S SEARCH………………………………………………………………….………………4
A. The drone did not acquire sufficient evidence for a search warrant…………….…4
B. Evidence acquired by Defond is illegal in nature and was unlawfully
used for the search warrant……………………………………………………...…4
II. THE RIGHT TO PRIVACY PROTECTS CARING’S RIGHT TO
POSSESS MEDICAL MARIJUANA IN HIS OWN PRIVATE ESTATE………………6
A. The Right of Privacy protects the right to possess medical marijuana in general circumstances……………………………….………………………………………….6
B. The Right of Privacy protects Caring from persecution by the alleged “state interest.”………………………………………………..……………………………8
CONCLUSION…..........................................................................................................................10
94
TABLE OF AUTHORITIES
Cases
Kyllo v. United States, 533 U.S. 27 (2001) …………………………….………...………….....…4
State v. Kuneff, 1998 MT 287……………………………………………………………………..5
State v. Malkuch, 2007 MT 60……………………..…………………….………………………..5
State v. Long, 216 Mont. 65 (1985)………………………….…………………….……………5-6
Gryczan v. State, 283 Mont. 433………………………………...………………………....……...6
State v. Urziceanu, 2015 MT 58………………………………………………………...………...6
Constitutional Provisions
Fourth Amendment to the United States Constitution……………………………..……………6
Article II, § 10 Right of Privacy, Montana Constitution………………………….…………..6-10
Article II, § 11 Searches and Seizures, Montana Constitution………………………………….6
Statutes
Montana Code Annotated, § 46-5-221…………………………………………………………..4
Montana Code Annotated, § 46-6-203…………………………………………………………..4
Montana Code Annotated, § 50-46-319…………………………………………………………6
95
STATEMENT OF THE ISSUES
1. Did the trial court err in sustaining that there was sufficient probable cause for the search
warrant?
2. Does the right to privacy protect Caring’s right to possess medical marijuana in his own
home?
STATEMENT OF THE FACTS
A reserve deputy of the Forest County Sheriff’s Office was cross-country skiing in Late December of
2014. He had ventured into the Meagher County National Forest to cross-country ski. He failed to return
home that night and his wife reported him as missing. Sheriff Law, of the Forest County Sheriff’s office,
dispatched search and rescue teams. He also dispatched a thermal-imaging drone to search for Defond.
The drone eventually came across a cabin. In this cabin, Law fount heat signatures resembling that of
what would come from heat lamps. He determined that this could be used to cultivate marijuana. Later on,
Mr. Defond found the cabin Law had looked at. Out of the necessity of survival, DeFond illegally broke
into the cabin. He found that it was full of heat lamps used to grow marijuana. After spending much of the
night in the cabin, DeFond safely made it home. DeFond then reported what he had seen to Sheriff Law
and they then applied for a search warrant. Using insufficient and illegal evidence, the Justice of the
Peace issued a search warrant, despite the lack of probable cause. This lead to the seizure of 10 mature
marijuana plants and four ounces of harvested marijuana. Casey Caring, the owner of the cabin, was
arrested under charges of production of dangerous drugs. They did so despite the fact that Caring and his
girlfriend hold valid medical marijuana cards, which allow them to possess and produce marijuana.
Caring moved to suppress the results of the search warrant and to dismiss the charges. The Judge of the
26th Judicial Court denied these motions and the jury found him guilty on both counts. Caring has now
appealed to the Montana Supreme Court.
96
ARGUMENT
I. THERE WAS NOT SUFFICIENT PROBABLE CAUSE FOR THE SEARCH WARRANT BECAUSE OF THE INSUFFICIENT EVIDENCE OF THE DRONE SEARCH AND ILLEGAL NATURE OF DEFOND’S SEARCH A. The drone did not acquire sufficient evidence for a search warrant
A drone is defined as any unmanned aircraft that is remotely guided. A drone used by Sheriff Law which
had thermal imaging spotted Caring’s cabin in the National Forest. The drone, prior to finding Caring’s
cabin, recorded a heat signature similar to one emitted by a heat lamp. Sheriff Law knew that heat lamps
are commonly used to grow marijuana. Contrary, not all heat lamps are used to grow marijuana. For
example, heat lamps are also used in aquatic and reptilian tanks. Turtles, and snakes living in these tanks
are prime examples of what heat lamps are used for. In relevance to the current case, these heat
signatures could be anything, not just marijuana uses. Kyllo v. United States, 533 U.S. 27 (2001), the
court agreed that the heat signatures seen outside of Kyllo’s home “did not expose any intimate details of
Kyllo’s life, only amorphous hot spots on his home’s exterior.” The court also stated that since they were
drawing inferences from off-the-wall surveillance, the officers’ conduct did not amount to a search that
was perfectly reasonable. Relevant to our case, we believe the court shall rule it similarly. In conclusion,
the drone that spotted heat waves emerging from Caring’s house did not acquire enough information to
cause a search warrant to be issued.
B. Evidence acquired by Defond is illegal in nature and was unlawfully used for the search warrant.
The district court erred by issuing a search warrant for Caring’s cabin. Montana Code Annotated §46-5-
221 states:
A judge shall issue a search warrant to a person upon application, in writing, by telephone, or electronically, made under oath or affirmation, that: (1) States facts sufficient to support probable cause to believe that an offense has been
committed.
There was absolutely no probable cause to incentivize the Justice of the Peace to issue a search warrant,
because Defond illegally entered Caring’s cabin. Montana Code Annotated § 45-6-203 provides:
1(a) A person commits the offense of criminal trespass to property if the person knowingly enters or remains in an occupied structure.
In the current case, Defond violated this code by breaking and entering Caring’s cabin. He also spent the
night in Caring’s cabin. Since Defond unjustly spent the night in Caring’s cabin, there shall be no
probable cause for a search warrant to be issued as his evidence was illegally obtained. The marijuana
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found in Caring’s cabin triggered Defond to report about it to his police station. In State v. Malkuch,
2007 MT 60, a similar incident happened. This is when D.M., Jackie Malkuch’s son, was removed from
the home and was told not to return to the premises. He stayed with a family friend Anne Thompson. A
few days after moving in with Thompson, D.M. and Thompson confronted a police officer stating that
Jackie had drugs and were wondering if there was anything he could do about it. The police officer
replied that they would need evidence. So D.M. and Thompson went to Jackie Malkuch’s house at a time
when no one was home. D.M. was not supposed to enter, but did anyways. Inside the house, they found
a vile containing methamphetamine. D.M. and Thompson then returned to the police officer and gave
him the evidence. A warrant was given out to search the house for other drugs. Here, they found drug
paraphernalia and other miscellaneous items. The Malkuch’s were charged with criminal possession of
dangerous drugs, and endangering the welfare of children. The Malkuch’s filed a motion to suppress the
evidence of the meth since it was obtained without a warrant. They argued that the police officer
commanded them to search the house for evidence. The district court denied the motions. This case,
though valid, has no meaningful effect on our present case. This is because we are dealing with a
different sort of drug. Marijuana is a medical substance, unlike meth. Plus, Caring holds a valid medical
marijuana card, along with his girlfriend. This is why the court should reverse its summary judgment and
rule it in favor of Caring. In State v. Kuneff, 1998 MT 287, two police officers received an anonymous tip
that marijuana was being grown in John Kuneff’s, and Van Gawryluk’s trailer home. The police officers
entered their home with permission, but were denied permission to search the trailer. One officer noticed
a marijuana pipe and handcuffed Kuneff and Gawrlyluk. They then stated that there was another person
inside the trailer. The officers then found a third person whom they handcuffed. One officer then went
down the hall to a bedroom where he found marijuana growing. At court, Kuneff and Gawryluk
motioned that the police officers conducted an illegal warrantless search of the bedroom. The court ruled
that the warrantless search of the bedroom was illegal because the police did not have probable cause to
believe that there was marijuana in the trailer. In relation to our case, Defond’s search was an illegal
warrantless search of Caring’s house. We believe the court should reverse the summary judgement and
rule it similarly. In State v. Long, 216 Mont. 65 (1985), Charles and Vicki Long rented a house from the
neighbor Millard Hultgren. Lately, Hultgren noticed that a rise in the electricity bill has gone up. One
night he noticed a light burning in the attic of the Long’s. He went over to check it out. The light was a
grow light that was shining on 657 marijuana plants. He reported it to the police who received a search
warrant. During the trial, the court excluded the plants stating that Hultgren was a trespasser. We believe
that the court should rule the present case similar to this one. Overall, if the court ruled against Caring,
then it would violate his basic rights, in specific, the Fourth Amendment of the United States of America,
which states:
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The right of people to the people to be secure in their houses against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the persons or
things seized.
In the case upon us, the search done by Defond was illegal, and shall not be used to issue a warrant.
Defond illegally entered Caring’s residence and used this evidence against him. This evidence should be
excluded and not be used to issue a warrant. Between the illegal nature of Defond’s search and the
insufficient evidence acquired from the drone, it is blatantly obvious that there was not a sufficient
probable cause to invade the rights of Casey Caring.
II. THE RIGHT TO PRIVACY PROTECTS CARING’S RIGHT TO POSSESS
MARIJUANA IN HIS OWN PRIVATE ESTATE. A. The Right of Privacy protects the right to possess medical marijuana in general
circumstances.
To introduce this unique case to the issue of privacy, the Right to Privacy, Article II, § 10 Montana
Constitution, must be examined in full. Albeit a section that contains but two lines of language, it is by far
a staple of American and Montanan law. Reasonable privacy protects us from the tyranny of corrupt
government after all. What can be found within Montana’s Right to Privacy, Article II, § 10 Montana
Constitution, shows a broad, encompassing definition, which is most certainly up to interpretation. In full
it states, “The right of individual privacy is essential to the well-being of a free society and shall not be
infringed without the showing of a compelling state interest,” Article II, § 10 Montana Constitution. What
is most evident is shown with, “The right of individual privacy is essential to the well-being of a free
society,” Article II, § 10 Montana Constitution. This announces the obvious prominence of individual
privacy.
To understand this at its most basic level, “individual privacy” must be examined further. It is reasonable
to believe that what goes on in the confines of your own private estate is expected to be private, and is the
most basic declaration in the Right to Privacy. Furthermore, the possessions of a private citizen ought to
be kept private against unwanted and illegitimate prodding and searching. In essence, the possessions of a
private citizen, unless they obviously endanger the welfare of society, can be expected to be private.
Now that the first half of the Right of Privacy, Article II, § 10 Montana Constitution, has been briefly
examined, it is necessary to pore over the remaining half. As is stated, “Shall not be infringed without the
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showing of a compelling state interest,” Article II, § 10 Montana Constitution. The issue that rises adheres
to the interpretation of a “compelling state interest.” As is obvious within the text, this is the only
exception to the preservation of the Right of Privacy. A compelling state interest must adhere to the state
government. As the government is, in its simplest form, a facility for the production and implementation
of the law, a “compelling state interest” must lie within either the execution, enforcement, or production
of law, and must be balanced reasonably with the preservation of privacy. In essence, a compelling state
interest has to do with law, or rather unlawful activity. For credibility, of course, the state interest requires
legally-obtained evidence to suggest that unlawful activity has occurred. This is the only way government
can impede upon the Right of Privacy, and therefore must be used to interpret controversy upon the
balance of privacy with the enforcement of law.
The case appealed by Caring will henceforth rely on the above interpretation of the Right of Privacy. The
anlaysis must come to a general understanding of the substance that feeds this dispute, marijauna. Is it
legal to possess marijuana in the state of Montana? The answer to this comes from the statute that allows
the use of medical marijuana. MCA § 50-46-319, also known as the Montana Marijuana Act, sets forth
the laws enacting the rights to possess medical marijuana with a special permit(card). A registered
cardholder, as Casey Caring was, may possess unharvested mature plants, seedlings, and harvested
marijuana. No doubt, Caring was in possession of marijuana and cultivated it. The irrefuted legality of
medical marijuana use implies that Caring’s possession of the substance at all does not subject him to any
legal penalty. It was found, after many illegal acts committed by Defond and law enforcement, that
Caring was in possession of medical marijuana. As applied to the understanding of the Right to Privacy,
Article II, § 10 Montana Constitution, Caring’s (and his partner’s) private ownership of medical
marijuana implies that the ownership of such a private possession requires an expectation of privacy in
respect to the possession. Furthermore, this marijuana was subject to the boundaries of a private estate,
well away from the public eye. So, Caring’s marijuana is evidently protected under the Right of Privacy,
Article II, § 10 Montana Constitution, in respect to reasonable analysis of Article II, § 10 Montana
Constitution. This is no different in respect with, say, other prescription drugs. There is a reasonable
expectation of privacy provided with the possession of orthodox medicinal drugs, as we cannot simply
infringe upon an individual’s privacy for legally obtained medicinal products. With this there is no reason
to condemn another medicinal drug, marijuana, and exclude it from an expectation and implementation of
privacy. Of the main body of the Right of Privacy, Article II, § 10 Montana Constitution, it has been
shown, with thorough examination, that the Right of Privacy protects Caring’s possession of marijuana
upon his own private estate.
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B. The Right of Privacy protects Caring from persecution by the alleged “state interest.”
Although it has been addressed briefly above, the idea of a compelling state interest must be explored
further. This is the only acceptable way to invade the Right of Privacy. To show that Caring is protected
by the Right of Privacy, it must be shown that there was not a reasonable state interest. As stated before, a
compelling state interest must coincide with the law, and must be related to the law. With this
relationship, the state must have proper, legally-obtained evidence to prove the interest is true.
In the current case, we can find that these requirements were not fulfilled. The drone did not show
anything but heat signatures that could be linked to lamps. Lamps and heat lamps are not illegal objects in
Montana and the United States, nor do they necessarily relate to illegal activity. Therefore, there is no
issue of the law to be interested in. The next source of evidence, Defond, shows that there was a certain
amount of marijuana in the residence. It must first be stated that his evidence was obtained illegally.
Defond clearly violated MCA § 45-6-203. This statute defines a criminal trespass to property and is in
close relationship with the Right of Privacy. Defond clearly, “enters or remains unlawfully in or upon the
premises of another,” (Caring), MCA § 45-6-203, and breaks the law, though out of necessity of survival.
However, necessity of survival does not justify the gathering of evidence, or rather a search, of Caring’s
private estate by a stranger and deputy of law enforcement. So, not only did he invade the property, but he
invaded Caring’s Right of Privacy from unknown and unwelcomed entities. As has been clarified before,
the Right of Privacy protects Caring from infringement on his privacy by private and public entities.
Hence, this search and consequent evidence must be suppressed as it was obtained in an illegal way. Not
only this, but it also violates the inalienable rights of any and all Montanans. It also invades the rights of
all United States citizens as well. The IV Amendment to the United States Constitution protects private
entities against unwarranted and illegal searches. It states that it is, “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated.” We must notice that the text doesn’t point out that this is only upon searches of public entities.
This means that the search of a private entity must adhere to this as well. Defond’s search did not adhere
to this and consequently violated an inalienable right of the American citizen. In actuality, the evidence
wasn’t necessarily accurate either. At the time of Defond’s search, he reported that there were thirteen
mature plants in the cabin of Casey Caring. However, after the search from Sheriff Law concluded, there
were only ten mature plants in the premises. Defond not only violated the rights of Caring, but he also
exaggerated his testimony against him. This is quite obviously unacceptable under the strict terms
required for a search warrant. The definciency of the drone’s evidence and the misconduct of Defond
thoroughly prove that there was not a reasonable state interest, and that there was not evidence needed to
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provide “probable cause,” Amendment IV of the U.S. Constitution, for a search warrant. Thorough
examination has also shown that Defond and the unlawful search warrant based upon Defond’s testimony
broke the fundamental, inalienable rights of the free American Republic, and the Constitution of
Montana. These violations outweigh minor misconduct with the cultivation of medical marijuana, and
deserve the real punishment if any. On top of the discrepancies already mentioned, an underlying fact
further contradicts the presence of a “compelling state interest,” medical marijuana is a legal substance in
Montana. Hence, possession of medical marijuana does not subject suspicion or interest in possible
unlawful misconduct. The reasonable and rightful logic of this passage certainly suggests that Caring was
protected against the exception to the Right of Privacy, which is the presence of a, “compelling state
interest.” After all, any possible issue that had to do with law, has been dismissed. State evidence has
been shown to be contaminated with misconduct, along with a lack of evidence as a whole. In the entirety
of today’s predicament, the Right of Privacy, Article II, § 10 Montana Constitution, protects Caring’s
possession of medical marijuana in all facets of its existence.
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CONCLUSION
To uphold the merit of the argumentation above, it is imperative that the court sides with the appellant of
today’s predicament on both issues at hand.
Respectfully submitted this 17 day of March, 2016.
x________________________
Niklaus D. Zora
Zora and Casagranda.,
Attorneys at Law
Butte, MT 59701
x________________________
Erik Casagranda
Zora and Casagranda.,
Attorneys at Law
Butte, MT 59701
103
(1)
IN THE YMCA MODEL SUMPREME COURT OF THE STATE OF MONTANA
NO. 16-001
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CASEY CARING,
Defendants Mariah Mosher and Kathrin Scalzone on behalf of Appellant Caring
______________________________________________________________________________ BRIEF OF APPELLANT
On appeal from the District Court of
the Twenty-Fifth Judicial District of the State of Montana,
in and for the County of Forest
ORAL ARGUMENT REQUESTED
APPEARANCES:
Mariah M. Mosher
20 Osprey Ct
Dillon, MT 59725
Katherine R. Scalzone
267 Buffalo Drive
Dillon, MT 59725
104
(2)
TABLE OF CONTENTS
TABLE OF AUTHORITIES…………………………………………………………………………….……3
STATEMENT OF THE ISSUES………………………………………………………………..…………………………4
STATEMENT OF THE FACTS…………………………………………………………………………........................4-6
ARGUMENT………………………………………………………………………….……….7-8
I. THE DISTRICT COURT ERRED IN HOLDING THAT THERE WAS SUFFICIENT PROBABLE CAUSE FOR A SEARCH WARRANT ACCORDING TO MONT.CODE ANN. §46-5-221………………….……..7
A. LACK OF GROUNDS FOR SEARCH WARRANT ……….….…...7 B. ARBITRARY AND UNRELATED HEAT SIGNATURES ………..7 C. SPECULATION AND LACK OF RELIABILITY ……………....…7
II. THE RIGHT TO PRIVACY PROTECTS CARING’S RIGHT TO POSSES MEDICAL MARIJUANA IN HIS OWN HOME ACCORDING TO ARTICLE TWO- CONSTITUTION OF MONTANA- DECLARATION OF RIGHTS- SECTION ELEVEN…………………………………………………………7
A. BREAKING AND ENTERING …………………………………….7 B. RIGHT OF PRIVACY…………………………..…………………..8 C. VALID LICENCE FOR THE CULTIVATION AND USE OF
MEDICAL MARIJUANA…………………………….…………….8
CONCLUSION………………………………………………………………………………8
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(3)
TABLE OF AUTHORITIES
Cases
State v. Kuneff……………………………………………………………………..………..7
Constitutional Provisions Fourth Amendment to the United States Constitution…………………………..…………..8 Article II-Declaration of Rights, Section 10, Constitution of Montana……………………..7 Article II-Declaration of Rights, Section 11, Constitution of Montana……………………..7
Statutes Montana Code Annotated §46-5-221………………………………………………………..7 Montana Code Annotated §46-6-203…………………………………………..……………7 Montana Code Annotated §50-46-319…………………………………………………….7-8
106
(4)
Statement of the Issues
1. Was there sufficient probable cause for the search warrant? Be sure to address the legality of both the drone search and DeFond’s search. 2. Does the right to privacy protect Caring’s right to possess medical marijuana in his own home?
Statement of the facts
Steve DeFond is a reserve deputy with the Forest County Sheriff’s Office. In late December, 2014, DeFond ventured out into the Meagher National Forest before dawn to cross country ski. When he didn’t return home that evening, his wife contacted the Forest County Sheriff, John Law. Sheriff Law quickly dispatched search and rescue teams to begin looking for DeFond. On the ground, teams on snowmobiles, ATVs, and cross-country skis fanned out. Sheriff Law used the opportunity to test out the Sheriff’s Office’s new drone. The drone, donated by a local millionaire, could fly up to 100 feet above the ground and was equipped with a thermal imager that could detect the heat signatures of warm-blooded animals, such as a lost skier. After hours of searching and finding only the heat signatures of elk, deer, and possibly a mountain lion, the drone flew over a cabin located on national forest land. The thermal imager recorded a heat signature Sheriff Law knew, from his training and experience, was consistent with the heat discharge pattern of multiple high intensity grow lamps. These grow lamps are often used in the cultivation of marijuana. The forest around the cabin was too thick for the helicopter to land. Sheriff Law noted the GPS coordinates of the cabin, then the drone flew off to continue the search for DeFond.
Later that night, DeFond stumbled upon the cabin. About fifty feet from the cabin, DeFond detected a strong odor of what he thought might be marijuana. The cabin door was locked, but DeFond was freezing and exhausted so he broke a window to gain
107
(5)
access. In addition to shelter, DeFond hoped to find some food and maybe even a phone he could use to call for help. Instead, DeFond found the walls of the cabin lined completely with thick black plastic. The ceiling was covered with reflective, insulating fabric that looked as if it was intended to bounce heat back into the room. Thirteen plastic buckets each contained a mature plant DeFond knew to be marijuana. Two rows of high intensity grow lights hung from the ceiling. Plastic tubing ran from the buckets to a large plastic drum in one corner. DeFond suspected this might be an irrigation system. Although DeFond did not like the idea of spending the night inside a grow house, it was past midnight and temperatures had plummeted.
No one else came to the cabin that night. DeFond left as soon as he awoke and after three hours he came upon a paved road. Less than ten minutes after DeFond emerged from the forest, a truck drove by and stopped for him. The truck drove DeFond back to his home, where he was reunited with his wife. DeFond reported what he’d seen in the cabin to Sheriff Law. Sheriff Law connected it with the heat signatures the drone had detected and relayed the information to the Forest County Attorney. The County Attorney applied for a search warrant on the basis of DeFond’s observations, the thermal imaging evidence, and Sheriff Law’s interpretation of the evidence. Sheriff Law’s affidavit, which accompanied the application, stated: 1. While conducting a search for a missing skier, Sheriff Law made use of a drone-mounted thermal imaging device capable of displaying and recording the heat discharged by animal or manmade sources of heat on the ground. 2. During the search, Sheriff Law trained the thermal imaging device of the drone on a cabin located on National Forest land, with the intent to determine whether any heat discharge evidence would disclose the presence of the missing skier. 3. He did not observe any evidence of the presence of the missing skier in or near the cabin, but did observe a heat discharge pattern which he knew by virtue of his training and experience to be consistent with the presence in the cabin of one or more high intensity lamps of the kind used for the indoor cultivation of marijuana. 4. Sheriff Law recorded the image using a recording device incorporated in the thermal imaging equipment. 5. Sheriff Law later learned that the missing skier, Steve DeFond, had broken into the cabin seeking shelter and a telephone to use to call for help. 6. DeFond reported he observed plants in the cabin growing in plastic buckets under high intensity lights.
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(6)
7. DeFond told Sheriff Law he believed the plants were marijuana based on training he had received as a reserve deputy with the Forest County Sheriff's Office. DeFond further reported he could smell the marijuana from outside the cabin. 8. From DeFond’s description of the plants Sheriff Law concluded they fit the description of marijuana plants. The Justice of the Peace reviewed the application, found probable cause, and issued the warrant. The cabin was used as a residence by Casey Caring, a local outfitter. When the warrant was executed, the officers found ten mature marijuana plants along with grow lamps, cultivation supplies, and four ounces of harvested marijuana. Caring was arrested and charged with criminal production of dangerous drugs (marijuana) and criminal production of dangerous drugs (marijuana). Before trial, Caring moved to suppress the results of the warrant search, arguing that the search invaded his rights to be free from unlawful searches and seizures and his right of privacy under the Montana constitution. He questioned the use of thermal imaging evidence and the admissibility of DeFond’s testimony about his observations after breaking into Caring’s cabin. These issues, Caring claimed, meant there was not sufficient probably cause and the justice of the peace should not have issued the search warrant. Caring also moved to dismiss the charges, arguing that the marijuana was for his and his girlfriend’s personal use. Both Caring and his girlfriend hold valid medical marijuana cards, and Caring argued his right to privacy under the Montana Constitution protected his right to possess the medicine of his choosing within the privacy of his own home.
The trial judge denied both motions. After a jury trial in the 26th Judicial District Court, Forest County, Casey Caring was found guilty on both counts. He now appeals the conviction based on the denial of his motion to suppress and the denial of his motion to dismiss.
This appeal followed.
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(7)
ARGUMENT
I. THE DISTRICT COURT ERRED IN HOLDING THAT THERE WAS SUFFICIENT PROBABLE CAUSE FOR A SEARCH WARRANT ACCORDING TO MONT.CODE ANN. §46-5-221
A. LACK OF GROUNDS FOR SEARCH WARRANT Under §46-5-221, MCA, (1) facts were not sufficient to support probable cause to believe that an offense had been committed. Also under §46-5-221, MCA, (2) facts should be sufficient to support probable cause to believe that evidence, contraband, or persons connected with the offense may be found. Caring was not located before the search warrant was acquired. According to §46-5-221, MCA, (3) particularly describes the place, object, or persons to be searched; and (4) particularly describes who or what is to be seized. The accused party was not contacted before the search warrant was issued and carried out.
B. ARBITRARY AND UNRELATED HEAT SIGNATURES The drone permitted to search for DeFond, should not have been investigating random heat signatures in personal dwellings. Since the drone was not being used with the intent of locating illegal substances, all alleged heat signatures were not valid to be used as evidence to obtain a search warrant. Due to the fact medical marijuana has been legalized in the state of Montana (§50-46-319, MCA, Section 1-A) a registered card holder may possess medical marijuana. Both Caring and his living companion carry medical marijuana licenses.
C. SPECULATION AND LACK OF RELIABILITY As demonstrated in the STATE v. KUNEFF case, the lack of a background check on the accuser (DeFond) makes all allegations posed by him to law enforcement merely hearsay. There was no proof that what DeFond assumed was marijuana was in fact there illegally.
III. THE RIGHT TO PRIVACY PROTECTS CARING’S RIGHT TO POSSES MEDICAL MARIJUANA IN HIS OWN HOME ACCORDING TO ARTICLE TWO- CONSTITUTION OF MONTANA- DECLARATION OF RIGHTS- SECTION ELEVEN
A. BREAKING AND ENTERING § 45-6-203, MCA, section 1-B states that: A person commits the offense of criminal trespass to property if the person knowingly: (b) enters or remains unlawfully in or upon the premises of another. Not only did DeFond trespass upon Caring’s residence, he damaged property with the intent of entering.
110
(8)
B. RIGHT OF PRIVACY As stated in CONSTITION OF MONTANA-ACTICLE TWO –DECLARATION OF RIGHTS- SECTION 10 (AMENDMENT IV), MCA, The right of individual privacy is essential to the wellbeing of a free society and shall not be infringed without the showing of a compelling state interest. This case showed an absence of compelling state interest in that medical marijuana has been legalized in the state of Montana, and there was no illegal contraband on the premises.
C. VALID LICENCE FOR THE CULTIVATION AND USE OF MEDICAL MARIJUANA As stated above, § 50-46-319 SECTION 1-B, MCA, clearly shows that any individual who possesses a medical marijuana license may legally cultivate marijuana for personal use. Caring rightfully argued that he had the right to possess the medicine of his choosing within the privacy of his own home.
CONCLUSION
For the foregoing reasons, the decision of the district court should be reversed.
Respectfully submitted this 8th day of April, 2016.
Katherine R. Scalzone
Katherine R. Scalzone
Scalzone and Mosher,
Attorneys at Law
Dillon, MT
Mariah M.Mosher
Mariah M. Mosher
Scalzone and Mosher,
Attorneys at Law
Dillon, MT
111
______________________________________________________________________
In the YMCA Model Supreme Court of the State of Montana No. 16-001
______________________________________________________________________
STATE OF MONTANA Plaintiff and Appellee,
v.
CASEY CARING, Defendant and Appellant.
______________________________________________________________________
BRIEF OF PLAINTIFF ORAL ARGUMENT REQUEST
ON APPEAL FROM TWENTY-SIXTH JUDICIAL DISTRICT COURT, FOREST COUNTY
______________________________________________________________________
BRITTANY MERRILL, WHITNEY BRISTOL MERRILL AND BRISTOL ATTORNEYS AT LAW
112
TABLE OF CONTENTS TABLE OF AUTHORITIES
TABLE OF AUTHORITIES ...............................................................................................1 STATEMENT OF THE ISSUES .......................................................................................2 STATEMENT OF THE FACTS .........................................................................................2 ARGUMENT......................................................................................................................6
I. :Section 11 Searches and seizures states that the people shall be secure from unreasonable searches and seizures and that the warrant may not be issued unless the officer describes the place to be searched or the person or thing to be seized. Officer Law had probable cause and described the place and what was going to be seized.46-5-221 Grounds for a search warrant (1) states facts sufficient to support probable cause to believe that an offense has been committed………………………………………........................................................6 A. There was probable cause to search the resident’s cabin. …….......................6 B. Officer Law had probable cause to believe marijuana was being grown in the cabin due to what was seen with the thermal imaging device. …..........................6 C. Because Officer Law had extensive training and experience he was able to identify the heat discharge pattern to be multiple high intensity grow lamps, used to grow marijuana..................................................................................................6 D. This gives Officer Law more than enough probable cause to search the home. E. State vs. Urziceanu………………......................................................................6 F. State vs.Kuneff……………………………………………………………………….6 II. Section 10 Right to privacy states that “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest” A.The right to privacy does not protect Caring’s right to possess medical marijuana in his home............................................................................................6 B. Officer Law showed a compelling state of interest………………………….......6 C. State vs. Urziceanu...........................................................................................6
CONCLUSION..................................................................................................................7
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Table of Authorities
Cases
State v. Urziceanu, 378 Mont. 344; P.3d 399 (2015) Armstrong v. State, 296 Mont. 361; P.2d 364 (1999) Gryczan v. State, 283 Mont. 433; P. 2d 112 (1997) Kyllo v. United States, 121 S. Ct. 2038, 150 L. Ed 2d 94 (2001) State v. Kuneff, 291 Mont. 474; 970 P. 2d 556 (1998) State v. Long, 216 Mont. 65; 700 P. 2d 153 (1985) State v. Malkuch, 336 Mont. 219, 154 P. 3d 558 (2007)
Constitution
Article II, Section II, Montana Constitution Article II, Section 10, Montana Constitution
Statutes
MCA 50-46-319 MCA 46-5-221 MCA 45-6-203
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Statement of Issues
1. Montana Constitution Section 11 Searches and seizures states that the people shall be secure from unreasonable searches and seizures and that the warrant may not be issued unless the officer describes the place to be searched or the person or thing to be seized. Officer Law had probable cause and described the place and what was going to be seized. 46-5-221 Grounds for a search warrant (1) states facts sufficient to support probable cause to believe that an offense has been committed.
2. Section 10 Right to privacy states that “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest”
Statement of Facts In late December of 2014 Steve DeFond ventured out into the Meagher National Forest before dawn and did not return home later that night. His wife being very concerned contacted Forest County Sheriff John Law. Sheriff Law contacted search and rescue and began looking for DeFond. While searching Sheriff DeFond used a drone equipped with a thermal imager recorder. While searching DeFond’s drone stumbled upon a cabin. The thermal camera detected a heat charge that Sheriff Law knew to be the heat charge of multiple high intensity grow lamps. Due to his training and experience Sheriff Law knows these grow lamps are used to grow marijuana. Sheriff Law was later informed that he was right about the grow lamps and the cabin was being used to grow marijuana. With the information Sheriff Law had obtained he went to the Forest County Attorney. The Forest County Attorney then applied for a search warrant. The Justice of the Peace reviewed his application and found probable cause and issued the warrant. Casey Caring was the owner of the residence and was using it to grow marijuana for, what he claims, to be for him and his girlfriend. Though they both own Medical Marijuana Cards they were still in the wrong. In Carring’s residence officers found ten mature marijuana plants, grow lamps, cultivation supplies and four ounces of harvested marijuana. The legal limit in the state of Montana for a cardholder to have as a grower is up to four plants, 12 seedlings, of marijuana. (50-46-319, MCA) Caring has moved to suppress the results of the search warrant arguing that the search invaded his rights to be free from unlawful searches and seizures and his right of privacy under the Montana constitution. He also questions the use of thermal imaging and the observations made by DeFond.
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The trial judge denied both motions. After a jury trial in the 26th Judicial District Court, Forest County, Casey Caring was found guilty on both counts. He is now appealing this conviction. I am here to uphold the trial court’s decision in holding Caring responsible for his actions.
116
Arguments ARGUMENT 1:Section 11 Searches and seizures states that the people shall be secure from unreasonable searches and seizures and that the warrant may not be issued unless the officer describes the place to be searched or the person or thing to be seized. Officer Law had probable cause and described the place and what was going to be seized.46-5-221 Grounds for a search warrant (1) states facts sufficient to support probable cause to believe that an offense has been committed. A: There was probable cause to search the resident’s cabin. B: Officer Law had probable cause to believe marijuana was being grown in the cabin due to what was seen with the thermal imaging device. C: Because Officer Law had extensive training and experience he was able to identify the heat discharge pattern to be multiple high intensity grow lamps, used to grow marijuana. D: This gives Officer Law more than enough probable cause to search the home. E:In State vs. Urziceanu the court sided with the state saying the police were allowed to obtain a search warrant on the ground of a tip from someone. F. In State vs. Kuneff there was a majority rule that a tip along with the sighting of a pipe was enough to establish a search warrant. ARGUMENT 2:Section 10 Right to privacy states that “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest” A: The right to privacy does not protect Caring’s right to possess medical marijuana in his home. B: Officer Law showed a compelling state of interest, therefore Caring’s privacy was not invaded. C: In State vs. Malkuch a child and his babysitter broke into his mother’s house to take her methamphetamine and prove to police she was doing drugs. Malkuch moved to suppress that evidence because it was wrongfully taken from her house. The State chose to deny the Malkuch’s move to suppress the evidence.
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Conclusion For the ongoing reasons, the decision of the district court should be upheld. Respectfully submitted this 31st of March 2016.
Brittany Merrill Brittany Merrill
Merrill and Bristol Attorneys at Law
Whitney Bristol Whitney Bristol
Merrill and Bristol Attorneys at Law
118
IN THE YMCA MODEL SUPREME COURT OF THE STATE OF MONTANA
No. 16-001
__________________________________________________________________________
STATE OF MONTANA,
Plaintiff and Appellee
v.
CASEY CARING,
Defendant and Appellant
_____________________________________________________________________________
BRIEF OF APPELLEE
_____________________________________________________________________________
On appeal from the District Court of
the Twenty-Sixth Judicial District Court of the State of Montana,
in and for the County of Forest
_____________________________________________________________________________
ORAL ARGUMENT REQUESTED
_____________________________________________________________________________
APPEARANCES:
Abigail L. Dean
323 Powerhouse Street
Yellowstone National Park, WY 82190
Emilie Hansen
106 Travertine Street
Gardiner, MT 59030
ATTORNEYS FOR APPELLEE
119
TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………………….…………………3
STATEMENT OF THE ISSUES…………………………………………………………….…..4
STATEMENT OF THE FACTS………………………………………………………………....4
ARGUMENT……………………………………………………………………………….…....6
I. SUFFICIENT PROBABLE CAUSE DID EXIST TO OBTAIN A SEARCH
WARRANT………………………………………………………..….……………….…6
A. Evidence of possible marijuana cultivation collected by a drone is
admissible…………………………………………………..……………….…….6
B. DeFond’s eyewitness account of the marijuana was a obtained as a private citizen
and is admissible…………………………………………...……………….….…7
II. THE RIGHT OF PRIVACY DOES NOT SHIELD ILLEGAL ACTIVITY…………….8
A. Caring abused his privilege to produce marijuana, giving up his right to
privacy………………………………………………………………………..…...8
B. Caring had well more than the allowable limits. He knew that he was exceeding
his medical marijuana privileges and tried to hide his illegal activities……….....9
C. A citizen’s right to privacy does not apply to the actions of other private
citizens…………………………………………………………………….….....10
CONCLUSION……………………………...……………………………………...…….…….11
120
TABLE OF AUTHORITIES
Cases
Kyllo v. U.S., 533 U.S. 27 (2001)...............................................................................................6, 8
State v. Cotterell, MT 409 (2008)................................................................................................6, 7
State v. Bullock, 272 Mont. 361, 901 P.2d 61 (1995)......................................................................7
State v. Long, 216 Mont. 65 (1985)...........................................................................................7, 10
State v. Malkuch, MT. 60 (2007).....................................................................................................7
U.S. v. Millar, 688 F2d 652, 657 (9th Cir. 1982).............................................................................7
U.S. v. Walther, 652 F.2d 788 791-2 (9th Cir.1981)........................................................................7
State v. Gryczan, 283 Mont. 433 (1997)..........................................................................................9
Constitutional Provisions
Art.II,, § 10, Montana Constitution……………………………………………………….……...8
Statutes
Montana Code Annotated §50-46-319…………………………………………….……….......5, 9
Montana Code Annotated §46-5-221…………………………………...………….……...….…..8
121
STATEMENT OF THE ISSUES
1. Was there sufficient probable cause for the search warrant?
2. Does the right to privacy protect Caring’s right to possess medical marijuana in his own
home?
STATEMENT OF THE FACTS
In December 2014, Steve DeFond, an avid cross-country skier, left in the early morning
to journey through the new, untouched snow in Meagher National Forest. His wife was
concerned when he didn’t return at his usual time so she anxiously called John Law, the Forest
County Sheriff. With the help of off-road vehicles and the Sheriff’s new drone, search and rescue
teams left immediately in hopes of finding DeFond. The drone, equipped with infrared
technology, detected not the man they were looking for, but a number of wild animals and an
intense heat signature emanating from a cabin. Sheriff Law thought it might be result of lamps
used in the cultivation of marijuana. This inadvertent discovery of the cabin was noted, but the
more important search for Defond continued.
In a desperate act of survival late that night, Defond found the same cabin and gained
access by breaking a window. He hoped to find warmth, food, and possibly a phone that could be
the difference between life and death. Instead of these crucial needs, DeFond found a room
empty of furniture. In its place were thirteen plants in buckets. Defond recognized these as
mature marijuana plants. Grow lights hung from the ceiling, and an irrigation system of tubes ran
between the buckets and a large plastic container.
122
With great reluctance, DeFond spent the night in the warm cabin, his only other
alternative was the plummeting temperatures of the dark forest. He slept for a while and in the
morning left the cabin to find help. After three grueling, freezing hours in the snow, DeFond
came to a paved road, and a truck drove him home where he reunited with his wife. After
warming up and eating, he went to Sheriff Law to report what he had stumbled upon. It matched
the notes Sheriff Law had written down during the search, so they relayed the information about
possible marijuana cultivation in excess of that allowed for medical purposes by the Montana
Code Annotated (MCA §50-46-319) to the Forest County Attorney. The Attorney then applied
for a search warrant for the cabin, including the professional interpretation that Sheriff Law
made of the accidental discoveries.
The Justice of Peace issued the warrant under probable cause, 10 mature plants and four
ounces of usable marijuana were found, and Casey Caring, resident of the cabin and grower of
the marijuana, was arrested on the charges of criminal production and possession of dangerous
drugs.
ARGUMENT
I. SUFFICIENT PROBABLE CAUSE DID EXIST TO ISSUE A SEARCH
WARRANT.
A. Evidence of possible marijuana cultivation collected by a drone is admissible.
A drone with heat sensing devices was being used to find missing skier, Steve DeFond,
As a normal part of the search for the skier, the drone hovered over cabin in the forest, on the
logical assumption that the missing skier may have sought shelter in the structure. The drone did
not find the skier, but did find a significant heat source emanating from the cabin, which the
123
Sheriff made note of, but took no other immediate action because the purpose of the search was
to find the missing skier.
The use of heat-sensing devices in this case is different than Kyllo v. U.S. 533 U.S. 27
(2001). In Kyllo, the search started with a tip about marijuana cultivation in a residence, Based
on the tip, Federal agents trained a heat sensing device on the Kyllo residence and determined
that there were likely high intensity heat lamps in the structure, probably being used in the
cultivation of marijuana. Neither the lamps nor the marijuana plants themselves were visible to
the naked eye from the nearby street. It took a special device to peer into the structure. In Kyllo,
the U.S. Supreme Court determined that such devices, when intentionally used to peer into a
residence in a manner not available to a casual passer by, constituted an illegal search. This case
is in contrast to Kyllo: the discovery of a strong heat source coming from the cabin was
happenstance, an accidental outcome of a legitimate search for missing skier. This is supported
by State v. Cotterell 2008 MT 409, which recognizes accidental discoveries are different. In
Cotterell, the court stated, “...the aerial observations…were made accidentally and were not part
of any surveillance of the property by law enforcement officers.” In the current case, the drone
was in public airspace and stumbled upon the private property of Caring’s cabin. Also in State v.
Bullock 272 Mont. 361, 901 P.2d 61 (1995) as quoted in State v. Cotterell, the court stated
“...this requirement (expectation of privacy) does not apply to observations of private land from
public property.” Since the drone over Caring’s cabin was in public airspace, and the discovery
of the intense heat source from the cabin was accidental, the information the Sheriff happened
upon could be used legally in applying for a search warrant. In addition, the Sheriff did not file
for a search warrant until he also heard the eyewitness account from the missing skier who had
broken into the cabin seeking shelter and instead found a marijuana garden.
124
B. DeFond’s eyewitness account of the marijuana was a obtained as a private
citizen and is admissible.
Montana law is clear: evidence of illegal activities collected by private citizens is
admissible in a court of law, even if that private citizen did an illegal act in obtaining the
evidence. In State v. Long 216 Mont. 65 (1985), the Montana Supreme Court said, “...the
evidence was seized by a landlord who was determined by the District Court to be a trespasser.
Under such circumstances, judicial integrity does not require exclusion of the evidence.” In
addition, DeFond’s actions met the two requirements of citizen searches laid out in State v.
Malkuch 2007 MT. 60. The Montana Supreme Court said in Malkuch, quoting U.S. v. Millar
(1991), two critical factors need to be examined: (1) whether the government knew of and
acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to
assist law enforcement efforts or to further his own ends. U.S. v. Millar, 688 F2d 652, 657 (9th
Cir. 1982) (citing [***561] U.S. v. Walther 652 F.2d 788 791-2 (9th Cir. 1981)). DeFond, as a
private citizen, broke into the cabin for the purpose of saving himself. The government neither
acquiesed nor were his actions at the cabin intended to assist law enforcement.
Although Defond was a reserve deputy with the Sheriff’s Department, that day he was
skiing as a private citizen. There is nothing in the fact pattern to indicate otherwise, that he was
serving in the role of a deputy while out for a ski. In his search for protection from the cold, he
came across a cabin, and after breaking in, he discovered marijuana plants growing in the cabin.
After spending the night in the cabin, he departed in the morning, found a road, and hitched a
ride home. He went home first to tell his wife he was all right, as a private citizen would do, and
only later, went to visit the Sheriff to report what he had seen in the cabin.
125
Only after DeFond reported his findings did Sheriff Law connect the heat signatures from
the drone with DeFond’s eyewitness observations. Thus the Sheriff put together two, unrelated
and unsolicited pieces of evidence to apply for a search warrant under MCA §46-5-221. Unlike
Kyllo v. U.S. (2001), this was not a planned, directed government activity; rather it was the
integration of two accidental discoveries, and sufficient probable cause did exist to issue the
search warrant.
II. THE RIGHT OF PRIVACY DOES NOT SHIELD ILLEGAL ACTIVITY.
A. Caring abused his privilege to produce marijuana, giving up his right to privacy.
Under Montana Constitution, Art.II, §10. Right of Privacy, “The right of individual
privacy is essential to the well-being of a free society and shall not be infringed without the
showing of a compelling state interest.” The Montana Legislature provided the state’s citizens
with the privilege of growing medical marijuana for their personal use. In granting this privilege,
the legislature identified strict, but reasonable, limits on the cultivation and possession of
marijuana. Montana Code Annotated §50-46-319 allows each person to have 12 seedlings, 4
mature plants, and 1 ounce of usable marijuana in their possession. The law recognizes the
normal progression of growing plants from seed to harvest and having a reasonable amount of
usable marijuana available for medical needs. When a citizen chooses to abuse their privileges
and knowingly and willfully breaks the law, they forgo their right to privacy. The state
legislature has made regulations on marijuana for Montana’s citizens and has interest in cases of
drug abuse as it deemed the marijuana dangerous enough to create the limitations.
126
B. Caring had well more than the allowable limits. He knew that he was exceeding his
medical marijuana privileges and tried to hide his illegal activities.
Under Montana Code Annotated §50-46-319, “A registered cardholder may possess up to
4 mature plants, 12 seedlings, and 1 ounce of usable marijuana.” Casey Caring was a registered
card holder, as was his girlfriend; however, the combined legal amount that they could have
possessed was 8 mature plants and 2 ounces of usable marijuana. He was charged with illegal
production of dangerous drugs (marijuana) after the police saw 10 mature plants and the 4
ounces of harvested marijuana. Caring exceeded the limit by at least 2 plants and 2 ounces of
usable marijuana. When DeFond entered the cabin seeking shelter that saved his life, he noted 13
mature plants in buckets as well as extensive cultivation apparatus. It is unclear what happened
to the additional 3 plants that DeFond saw: they could have been moved, hidden, or sold within
the time it took the search warrant to be executed.
The case of Gryczan v. State (1997), quotes the “Katz” rule (from Katz v. U.S.(1967),
389 U.S. at 361, 88 S. Ct. at 516, 19 L. Ed. 2d 576), which states, “first that a person have
exhibited an actual (subjective) expectation of privacy and, second, that the expectation be on
that society is prepared to recognize as ‘reasonable.’” Caring had a card that allowed him to
legally have a small amount of marijuana for medical purposes. He had an expectation of
privacy, but with the card, he proved that he knew the rules. By abusing the privilege he had with
his card, Caring broke the rules and lost his expectation of privacy. He and his girlfriend clearly
exceeded the limit by having at least 10, and probably 13, mature plants and 4 ounces of
marijuana ready to use, thus Caring and his girlfriend were violating Montana law. Clearly,
Caring knew this because he kept the plants in a cabin in a remote part of the forest with the
127
windows covered to shield the inside of the cabin from exterior observation. The fact pattern
demonstrates they knew they were hiding an illegal activity.
C. A citizen’s right to privacy does not apply to the actions of other private citizens.
The constitutional concept of privacy is protection from the State, not from other private
citizens. In State v. Long (1985), the court stated, “In accordance with well-established
constitutional principles, we hold that the privacy section of the Montana Constitution
contemplates privacy invasion by state action only.” As described earlier in this brief, DeFond
was a private citizen, and he had a citizen’s obligation to report what he had observed to the
proper authorities and allow those authorities to determine if there was a possible violation of the
law.
Caring broke Montana’s law by exceeding the medical marijuana limits. DeFond, as a
private citizen, alerted the police of the marijuana activity he discovered after entering the cabin
in order to save his life. DeFond’s situation is similar to State v. Urziceanu (2015), where the
court supported the right of police to search for marijuana that was in plain sight, “We hold that
the deputies did not violate Urziceanu’s constitutional rights when they entered the driveway to
conduct the civil standby.” When DeFond entered the cabin to save his life, the previously
hidden, illegal quantities of marijuana were in plain sight.
In summary, Casey Caring knowingly abused the privilege of possessing medical
marijuana, thus gave up his right to privacy.
128
CONCLUSION
For the foregoing reasons, the decision of the District Court should be upheld.
Respectfully submitted this 1st day of April, 2016.
Abigail L. Dean
Abigail L. Dean
Dean and Hansen,
Attorneys at Law
Yellowstone National Park, WY
Emilie Hansen
Emilie Hansen
Dean and Hansen,
Attorneys at Law
Gardiner, MT
129
In the YMCA Model Supreme Court of the State of Montana No. 16-001
STATE OF MONTANA, Plaintiff and Appellee, v. CASEY CARING, Defendant and Appellant
BRIEF OF RESPONDENT
On appeal from the 37th Judicial District Court, Moravian County
ORAL ARGUMENT REQUESTED
APPEARANCES: Lily Heiland 408 Forest Hill rd Hamilton, MT 59840 Mikayla Weidow 826 Westside rd Hamilton, MT 59840 ATTORNEYS FOR RESPONDENTS
130
TABLE OF CONTENTS TABLE OF AUTHORITIES.....................................................................................2
STATEMENT OF THE ISSUES..............................................................................3
STATEMENT OF THE FACTS...............................................................................3
ARGUMENT.............................................................................................................5
ANSWERS TO ISSUES…………………………………………………...………6
CONCLUSION………………………………………………………………….…7
131
Statement of the Issues 1. Was there sufficient probable cause for the search warrant? Be sure to address the legality of both the drone search and DeFond’s search. 2. Does the right to privacy protect Caring’s right to possess medical marijuana in his own home?
Statement of the Facts In late December of 2014, DeFond went missing while skiing in Meagher National Forest. While conducting a search for DeFond, Sheriff Law used a drone-mounted thermal imaging device capable of displaying and recording the heat discharged by animal or man made sources of heat on the ground. During the search, Sheriff Law focused the thermal imaging device of the drone on a cabin located on National Forest land, with the intent to determine whether any heat discharge evidence would disclose the presence of the missing skier. Sheriff Law did not observe any evidence of the presence of the missing skier in or near the cabin, but did observe a heat discharge pattern which he knew by virtue of his training and experience to to be consistent with the presence in the cabin of one or more high intensity lamps used for the indoor cultivation of marijuana. Sheriff Law recorded the image using a recording device incorporated in the thermal imaging equipment. Sheriff Law later learned that the missing skier, Steve DeFond, had broken into the cabin seeking shelter and a telephone to use to call for help. DeFond reported he observed plants in the cabin growing in plastic buckets under high intensity lights. DeFond told Sheriff Law he believed the plants were marijuana based on training he had received as a reserve deputy with the Forest County Sheriff’s Office. DeFond further reported he could smell the marijuana from outside the cabin. From DeFond’s description of the plants, Sheriff Law concluded they fit the description of marijuana plants. The Justice of the peace found probable cause and issued the warrant. The cabin was used as a residence by Casey Caring, a local outfitter. When the warrant was executed, the officers found ten mature marijuana plants along with grow lamps, cultivation supplies and four ounces of harvested marijuana. Caring was arrested and charged with criminal production of dangerous drugs (marijuana). Caring moved to suppress the results of the warrant search, arguing that the search invaded his rights to be free from unlawful searches and seizures and his right of privacy under the Montana Constitution. He questioned the use of thermal imaging evidence and the admissibility of DeFond’s testimony about his observations after breaking into the cabin. Caring claimed that there was not sufficient probable cause and the justice of the peace should not have issued the warrant. Caring also moved to dismiss the charges, arguing that the marijuana was for his and his girlfriend’s personal use. Both Caring and his girlfriend hold valid medical marijuana cards, and Caring argued his right to privacy under the Montana Constitution protected his right to possess the medicine of his choosing within the privacy of his own home.
132
The trial judge denied both motions. After a jury trial in the 26th Judicial District court, Forest County, Casey Caring was found guilty on both counts. He now appeals the conviction based on the denial of his motion to suppress and the denial of his motion to dismiss.
Argument 1. Did Caring violate 50-46-319 MCA Legal protections- allowable amounts by
exceeding the amount of medical marijuana that is allowed to be cultivated? 50-46-319 MCA Legal protections- allowable amounts section 1a states: A registered cardholder may possess up to 4 mature plants, 12 seedlings, and 1 ounce of usable marijuana. Caring violated this section by possessing 10 mature plants, and 4 ounces of harvested marijuana, exceeding the allowable amount. Police had a reasonable cause for a search warrant when they had used a thermal imaging device to locate the missing skier, and were suspicious that there was grow lights in the cabin of Casey Caring. When DeFond confirmed their suspicions, there was an obvious cause for a search. After the search was conducted, police found the items with a warrant, and put Caring under arrest. 2. Caring had privacy Sheriff Law did not purposefully intrude or search Caring’s home, he was trying to save someone’s life. He found a strange heat signature emanating from the cabin, keep in mind that the device used does not see actual objects, just heat signatures, so nothing inside the cabin was actually seen. Sheriff Law’s observation only made him suspicious that there were grow lamps in the cabin, and could not be proven. After DeFond had broken into the building seeking shelter, he discovered the plants, and told the police simply because he was concerned that there was a potential criminal. This is considered a “probable cause” for a search warrant. There was no snooping, or investing before a confirmation arose.
ANSWERS TO ISSUES
1. Yes, there was sufficient probable cause for the search warrant. If he was growing medical marijuana without a license then that’s against the law so searching the house was a necessity. The drone was being used to find a lost person so that’s justified, if the drone stumbled upon the heat lamps that indicated that there was probably medical marijuana then it had found a criminal’s house which justified the search of his cabin because he was housing something illegal.
133
2. Sheriff Law was looking for a missing skier in the cabin, and coincidentally saw the suspicious heat coming from the premises. He noted the GPS location and went away. You see, Sheriff Law did give him the right of privacy, he did not search the house until after DeFond had also coincidentally found the house, broke in seeking shelter, and saw the plants. DeFond told police that what he had seen, because he was concerned that an individual had potentially violated the law. Sheriff Law found DeFond’s description to be accurate with what he saw, and found probable cause for a search warrant. Casey Caring did break the law, and justice should be served to all criminals, regardless of privacy. Caring claimed he used the marijuana for medicinal purposes, and had a valid Green Card. But, even with these circumstances, Caring had more than the allowed amount for a registered cardholder. Caring must face justice like all other criminals, because why do Montana citizens have laws if people can find their way out of suffering the consequences for committing the crime? Caring lost his right to privacy when he broke the law.
CONCLUSION For the foregoing reasons, the decision of the District Court should be affirmed.
Respectfully submitted this 29th day of March, 2016 Mikayla S. Weidow Mikayla S. Weidow Weidow and Heiland, Attorneys at Law Hamilton, MT 59840 Lily A. Heiland Lily A. Heiland Weidow and Heiland Attorneys at Law Hamilton, MT 59840
134
IN THE YMCA MODEL SUPREME COURT OF THE STATE OF MONTANA
No. 16-001 ________________________________________________________________________
State of Montana Plaintiff and Respondent,
v.
Casey Caring Defendant and Appellant.
________________________________________________________________________
BRIEF OF RESONDENT
________________________________________________________________________
On appeal from First District Court _____________________________________Dc 16-001___________________________________
ORAL ARGUMENT REQUESTED
________________________________________________________________________ APPEARANCES: Jackson J. Maloney 25 Burning Tree Lane Butte, MT 59702 Clint Connors 3408 Wharton St Butte, MT 59701 ATTORNEYS FOR DEFENDENT AND APPELLANT
135
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...........................................................................................................3 STATEMENT OF THE ISSUES.....................................................................................................4 STATEMENT OF THE FACTS ................................................................................................. 4-5 ARGUMENT ............................................................................................................................... 5-8
I. The searches by DeFond and the drone didn’t provide
probable cause for the warrant of Carings residence A. Most of DeFond’s evidence was illegally obtained .................................................... 5-6 B. The use of a thermal imaging device to scan the home was an unreasonable search ….....6-7 C. None of the evidence presented showed probable cause for a search warrant, including the odor ................................................................................................................................7
II. Caring’s right to possess privacy was broken in the searches
A. Defond’s search broke Carring’s privacy ............................................................... 7-8
B. Was there compelling state interest? ..........................................................................8
CONCLUSION ................................................................................................................................8
136
TABLE OF AUTHORITIES
Cases
State v. Malkuch, 2007 MT 60 .....................................................................................................6
Kyllo v. United States, 533 U.S. 27 (2001) ................................................................................6
State v. Kuneff, 1998 MT 287…………………………………………………………….7
Montana Code Annotated
§ 46-5-221, Montana Code Annotated ......................................................................................7
Articles and Amendment
Amendment 4, United States Constitution .................................................................................8
137
STATEMENT OF THE ISSUES 1. Was there sufficient probable cause for the search warrant? 2. Does the right to privacy protect Caring’s right to possess medical marijuana in his own home?
STATEMENT OF THE FACTS
Reserve deputy Steve DeFond had gone missing while on a skiing trip. While
conducting a search for DeFond , Forest County Sheriff John Law made use of a drone-mounted
thermal imaging device capable of displaying and recording the heat discharged by animal or
manmade sources of heat on the ground. During the search, Sheriff Law trained the thermal
imaging device of the drone on a cabin located on National Forest land, with the intent to
determine whether any heat discharge evidence would disclose the presence of the missing skier.
He did not observe any evidence of the presence of the missing skier in or near the cabin, but did
observe a heat discharge pattern which he knew by virtue of his training and experience to be
consistent with the presence in the cabin of one or more high intensity lamps of the kind used for
the indoor cultivation of marijuana. Sheriff Law recorded the image using a recording device
incorporated in the thermal imaging equipment. Sheriff Law later learned that DeFond had
broken into the cabin seeking shelter and a telephone to use to call for help. DeFond reported
that he had observed plants in the cabin growing in plastic buckets under high intensity lights.
DeFond told Sheriff Law he believed the plants were marijuana based on training he had
received as a reserve deputy with the Forest County Sheriff's Office. DeFond further reported he
could smell the marijuana from outside the cabin. From DeFond’s description of the plants,
Sheriff Law concluded they fit the description of marijuana plants.
138
The Justice of the Peace reviewed the application for a search warrant sent by Sherriff Law,
found probable cause, and issued the warrant.
The cabin was used as a residence by Casey Caring, a local outfitter. When the warrant
was executed, the officers found ten mature marijuana plants along with grow lamps, cultivation
supplies, and four ounces of harvested marijuana. Caring was arrested and charged with criminal
production of dangerous drugs (marijuana) and criminal production of dangerous drugs.
Before trial, Caring moved to suppress the results of the warrant search, arguing that the search
invaded his rights to be free from unlawful searches and seizures and his right of privacy under
the Montana constitution. He questioned the use of thermal imaging evidence and the
admissibility of DeFond’s testimony about his observations after breaking into Caring’s cabin.
These issues, Caring claimed, meant there was not sufficient probably cause and the justice of
the peace should not have issued the search warrant.
Caring also moved to dismiss the charges, arguing that the marijuana was for his and his
girlfriend’s personal use. Both Caring and his girlfriend hold valid medical marijuana cards, and
Caring argued his right to privacy under the Montana Constitution protected his right to possess
the medicine of his choosing within the privacy of his own home.
The trial judge denied both motions. After a jury trial in the 26th Judicial District Court,
Forest County, Casey Caring was found guilty on both counts. He now appeals the conviction
based on the denial of his motion to suppress and the denial of his motion to dismiss.
I. The searches by DeFond and the drone didn’t provide
probable cause for the warrant of Caring’s residence.
A. Most of Defond’s evidence was illegally obtained.
139
DeFond had to commit a felony, breaking and entering, in order to obtain almost all of
the information (save for the stench he detected outside of the cabin, as it was obtained by an
inference rather than an illegal search), which turned out to be the major contributing factor in
issuing the search warrant. One could argue that DeFond, being a reserve deputy, was not in
service at the time, and thus conducted a legal, private search. State v. Malkuch, however, states
that a private search from a civilian is only legal if the government was unaware of the search
being conducted and if the search was not in the interest or benefit of the government. Though
Sherriff Law was indeed unaware of the search, he had directly used the evidence obtained to
request the issue of a search warrant, rather than simply use the information as a means to search
for other evidence showing cause for a search. Thus, DeFond’s findings were clearly in the
interest and benefit of the government.
B. The use of a thermal imaging device to scan the home was an unreasonable
search.
The case, Kyllo v. U.S., presented a similar situation in which police officers used a
thermal imaging device to scan Lee Kyllo’s triplex and determine if he was using heat lamps to
grow marijuana plants. The court decided that the use of thermal imaging to scan the home was
an unreasonable search prohibited by the Fourth Amendment because the device was used by the
government to obtain information (the heat within the building) not possible to obtain without
physical intrusion of the home, and the device was one not in general public use. All of these
reasons that the device was used in a warrantless search of Kyllo’s residence are also the reasons
that the device was used in a warrantless search of Caring’s residence. Although Sherriff Law
140
did not intend to find the evidence of marijuana through the scan, the scan was in fact still a
search for DeFond’s ware bouts (and as we discussed earlier, an unreasonable one).
C. None of the evidence presented showed probable cause for a search
warrant, including the odor.
As stated earlier, both Defond and the thermal imaging scanner gained evidence through
illegal searches. Under the exclusionary rule, all illegally obtained evidence resulting from a
“but, for” cause should be excluded from the prosecution. The illegally obtained evidence, in
this case, resulted from a “but, for” cause because the evidence would not have been obtained
without these felonious searches. Therefore, the court should excise this information obtained
from the searches and determine if the warrant had probable cause without the information. The
only legally obtained evidence present was the odor of marijuana that DeFond detected outside
the cabin. However, under § 46-5-221, Montana Code Annotated, a search warrant can only
be issued if the legal evidence presented is “sufficient to support probable cause to believe that
an offense has been committed…” Although the stench may have allowed Caring to be arrested
for handling the drug, it did not show probable cause to believe that Caring was actually growing
marijuana plants (The dissent for State vs. Kuneff disagreed with the majority’s decision to
believe a marijuana pipe found in Kuneff’s home showed probable cause for a search
warrant for that same reason). With that in mind, neither the odor nor the illegally obtained
information showed probable cause to issue a search warrant of Caring’s residence.
II. Caring’s right to possess privacy was broken in the searches.
A. DeFond’s search broke carring’s privacy Caring’s privacy was broken when De fond reported the marijuana to the police. De fond
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was acting as a worker of the state at the time because in State v. Malkuch they set the
precedence of a state work as follows. The state must show interest as they did when they filled
for the warrant to search Carring’s residence. So if De fond was acting as a member of the state
he harmed Caring’s privacy once until he alerted Police
B. Was there compelling state interest?
Caring and his girlfriend both had medical marijuana cards. They both had the abilities
to legally grow marijuana. They were not using it for recreation as the both had cards that
allowed them to use marijuana. They also didn’t have intent on selling any of the marijuana. This
shack that was growing the marijuana was in the middle of nowhere and wasn’t endangering
anybody else.
CONCLUSION
For the given reasons, the decision of the District Court should be overturned. Respectfully submitted this 18th day of March, 2016.
Jackson J. Maloney 25 Burning Tree Lane Butte, MT 59701
Clint Connors 3408 Wharton St Butte, MT 59701
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Notice: Please read full disclaimer at the end of this fact pattern.
In the YMCA Model Supreme Court of the State of MontanaNos. 2016-006 and 2016-007
2016-006
STATE OF MONTANA,Plaintiff and Appellee,
v.GOV GLORIOUS,
Defendant and Appellant,
and
2016-007
STATE OF MONTANA,Plaintiff and Appellee,
v.
DUDLEY “DUDE” DOOLITTLE,Defendant and Appellant.
--------------------------------------------------------------------------------------------------------------------FACTUAL AND PROCEDURAL HISTORY
YMCA Youth Governor Gov Glorious and Lieutenant Governor Dudley “Dude” Doolittle got together at YMCA Camp Child along with other youth officers and advisors for a weekend dedicated to planning their legislative program for the YMCA Youth Legislature. Camp Child is privately owned bythe YMCA, but that winter allowed both cross-county skiing and snowmobiling by the public.* It borders forest service land and a county road in Powell County, Montana.
After a six-hour session of scheming and devising, Governor Glorious suggested to Lieutenant Governor Doolittle that they blow off some steam by renting snowmobiles for the rest of the afternoon. Doolittle was a little nervous, as he had never driven a snowmobile. Glorious reassured him, telling him “it's easy, I've driven them since I was 10 years old,” and explaining that she would show Doolittlethe ropes. They went down to the Elliston Country Store, which rented snowmobiles.* Doolittle was over 18, so he was responsible for the rental. (Gov Glorious was still 17.)
While at the store, Doolittle reminded Glorious that—as a result of HB 63, legislation passed by the previous year's YMCA Youth Legislature —she also needed to rent a helmet, and he was going to also,even though he was over 18, because he'd never driven a snowmobile. "Helmets are for sissies," Glorious responded. Doolittle replied, "Fine, call me what you want. Helmets for snowmobilers are a good idea, and for you, it's the law."
The vendor delivered the snowmobiles to Camp Child. Glorious refused to wear a helmet. “Well, I'm not your dad, so whatever, it's your funeral,” replied Doolittle. After showing Doolittle the basics,
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Glorious said, "Okay, Dude, now let's go!" Doolittle replied "Go ahead. I'm going to take it easy and stay on the road until I get the hang of this thing." They started off on a private road within the propertylines of Camp Child. Glorious traveled behind Doolittle until she felt he had the basics down, then picked up speed and went zooming past him just as the pair left the property and came upon Little Blackfoot River Road. Glorious accelerated down the road for about .10 of a mile and turned off on USFS road #495, a “forest development road”, but one that was closed for the winter to automobile traffic that particular year because the government budget couldn't cover snowplowing it to keep it open; (though snowmobiling was still allowed) and she was soon out of sight. Doolittle really hadn't figured our how to stop yet and as he pulled onto Little Blackfoot Road, he let off the throttle abruptly and as a result, spun out and the snowmobile came to a sliding stop in the middle of the road. Chagrined, he resumed his route, but as he turned onto road #495, he spun out again.
Meanwhile, Powell County Sheriff's Deputy Reddy Radar had stopped to get gas and overheard the teens' conversation at the Elliston Country Store. He then met up with his fellow Deputies at the Avon Cafe for a cup of coffee, where one of them reminded him that the new law mandated helmets for snowmobile riders under age 18. Armed with this knowledge, Radar drove past Camp Child to see if he could locate the youths, and arrived at the intersection of road #495 just in time to see Doolittle's second spin out. Radar activated his lights and stopped Doolittle.
Meanwhile, Glorious, concerned that she had lost sight of Doolittle, had turned around, and when she saw the flashing lights of Radar's patrol car, she pulled off the right-of-way of the forest service road and hightailed it cross-country to the grounds of Camp Child.
Radar issued Doolittle a citation for operating a snowmobile in a careless or reckless manner, for failing to operate a snowmobile at all times in a manner that avoids injury to self and others and for careless driving in violation of MCA §23-2-632(1)(b), 23-2-654 and MCA §61-8-302. Doolittle argued that he wasn't endangering or injuring anyone, plus he wasn't on Little Blackfoot Road, he was on USFS road #495, which was not a “public highway.” Radar said, “OK, Road #495 it is,but I'm still citing you. And you were just lucky you didn't hurt yourself or wreck that sled. So tell it to the judge.”
As he was transporting Doolittle back to Camp Child (because he couldn't allow Doolittle to drive the snowmobile without a helmet), he observed Glorious driving her snowmobile at a high rate of speed cross-county on Camp Child's land. Seeing Glorious without a helmet, but not having observed her on any road, he issued Glorious a citation for speeding and operating a snowmobile in a careless or reckless manner and for violating the mandatory helmet law as it applies tosnowmobilers, citing MCA §61-9-417 and §23-2-632(1)(a)(b) and (d)(as amended by HB 63). She argued that she was on private land, not a road, she wasn't driving all that fast, wasn't driving carelessly because she was an experienced snowmobiler, and the helmet law violated her right of privacy. Radar again grumbled, “tell it to the judge.”
Despite their arguments, the Justice of the Peace in Powell County found both Glorious and Doolittle guilty as charged. Glorious and Doolittle appealed to the Third Judicial District Court, Powell County, arguing that the respective statutes they had been convicted of violating are unconstitutional, unenforceable and void for vagueness. Glorious argued that the mandatory helmet provisions of MCA §61-9-417 and §23-2-632(1)(d) (as amended by HB 63) violated her right to privacy, especially in view of the circumstances that she was operating the snowmobile on private property and not on a public road. She and Doolittle both argued that §23-2-632 was unconstitutionally vague; Glorious arguing (1)(a) and (b) on the grounds that there was no set speed limit and, as an experienced
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snowmobiler, she wasn't hurting anyone. Doolittle argued that -632(1)(b) was unconstitutionally vague as applied to him because he was not hurting anyone because he was moving slower. Doolittle further argued that he could not be convicted of careless driving under MCA §61-8-101and 302 because was on a forest service road closed for the winter and so MCA §61-8-111did not apply because it was not a “way of the state open to the public.”
Citing the legal presumption that any statute enacted by the legislature is constitutional, the District Court upheld Glorious's and Doolittle's convictions. Both Glorious and Doolittle appealed to the YMCA Model Supreme Court, where their cases have been consolidated. ISSUES
1. Glorious: Do the helmet provisions of HB 63 violate the right of privacy guaranteed under the Montana Constitution?
2. Doolittle: Is USFS road 495, closed for the winter to automobile traffic, was a “way of this state open to the public?”
3. BOTH: Is MCA §23-2-632(1)(a) and (b) void for vagueness because it is not clear whatactions constitute a violation?
CASES AND RELATED MATERIALSPresumption of constitutionality of statutesFallon County v. State, 231 Mont. 443, 753 P.2d 338 (1988)
STATUTES:MCA §23-2-632 (as amended by HB 63)MCA §23-2-642MCA §23-2-654MCA §61-8-101MCA §61-8-111MCA §61-8-302MCA §61-9-417 (as amended by HB 63)YMCA Youth Legislature HB 63
CASES:
Article II, Sections 10 and 17, Montana ConstitutionGryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997) (for a general discussion of the right to privacy in Montana)State v. Nye, 283 Mont. 505, 943 P. 2d 96 (1997) (For a general discussion on vagueness as viewed in Montana Courts)
DISCLAIMER: All information contained herein is to be treated as real only for the purposes of the YMCA Model Supreme Court program. YMCA Camp Child and the roads surrounding it are real, but the incidents described herein are purely fictional; no such persons or incident exists. Also, the statutory provisions of HB 63 are, as of 2016, fictitious. *Camp Child does not really allow public snowmobiling and the Elliston Country Store does not actually rent snowmobiles.
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IN THE YMCA MODEL SUPREME COURT OF THE STATE OF MONTANA
Nos. 2016-006 and 2016-007
2016-006
STATE OF MONTANA
Plaintiff and Appellee,
V.
GOV GLORIOUS,
Defendant and Appellant
And
2016-007
STATE OF MONTANA
Plaintiff and Appellee,
V.
Dudley “Dude” Doolittle,
Defendant and Appellant
BRIEF OF APPELLANTS
On appeal from the Third Judicial District Court, Powell County
ORAL ARGUMENT REQUESTED
APPEARANCES: Leif C. Clark 5319 Continental Dr. Butte, MT 59701 Xavier B. Black 1916 Wilson Ave. Butte, MT 59701 ATTORNEYS FOR DEFENDANTS AND APPELLANTS
146
TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………………………………1 STATEMENT OF THE FACTS……………………………………………..…………………2 STATEMENT OF THE ISSUES…………….……………………………...……………….….4 ARGUMENTS………………………...…………………………………….……………….….5
I. THE HELMET PROVISIONS OF HB 63 VIOLATE THE RIGHT OF PRIVACY GUARANTEED UNDER THE MONTANA CONSTITUTION.……………………………………………………………….5
A.) Applying the Palko test with the Supreme court definition of liberty, HB 63 is a
violation of privacy if it does not meet the standard of legitimate police legislation.........................................................................................................….5
B.) The standard for determining the legitimacy of police legislation is whether it substantially promotes the public health, safety, morals or general welfare.…………...……………………………………………………….……..5
C.) HB 63 does not substantially promote the public health and safety.…………………………………………………………………...……..…6
II. WHEN CLOSED TO AUTOMOBILE TRAFFIC FOR THE WINTER, USFS
ROAD 495 DOES NOT CONSTITUTE A “WAY OF THIS STATE OPEN TO THE PUBLIC.” …………………………………………………..……….……...7
A.) USFS 495 does was not adapted and fitted for public
travel.………………………………………………………….……..…………..7
B.) USFS 495 was not in common use by the public.……………………………………………………………………………7
III. MCA §23-2-632(1)(A) AND (B) IS VOID FOR VAGUENESS BECAUSE IT IS
NOT CLEAR WHAT ACTIONS CONSTITUTE A VIOLATION AND DOES NOT GIVE A PERSON OF ORDINARY INTELLIGENCE FAIR NOTICE OF THE LEGAL STATUS OF THEIR ACTIONS………………………………….8
A.) As applied in the prosecution of Gov Glorious, MCA §23-2-632(1)(a) and (b) are void for vagueness………………………………………………………..8
B.) As applied to the prosecution of Doolittle, MCA §23-2-632(1)(b) is void for vagueness…………………………………………………………....……….9 CONCLUSION…………………………………………………………………………………..10
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TABLE OF AUTHORITIES
Cases
Gryczan v. State 283 Mont. 433; 942 P.2d 112 (1997) ……………………………………….5, 7
State v. Betts 252 N.E.2d 866 (OH, 1969) ………………………………………….………...5, 6
State v. Nye 283 Mont. 505, 943 P. 2d 96 (1997) ……………………………………………….8
State v. Campbell 196 A.2d 131 (RI, 1963) ……………………………………………………..9
Constitutional Provisions
Article II, § 10 Montana Constitution ………………………………………...…....................7, 10
Article II, § 17 Montana Constitution ………………………….………………………………...7
Statutes
House Bill 63 modifications to §23-3-632 and §61-9-417, Montana Code Annotated …4, 5, 8, 10
§23-2-632, Montana Code Annotated ………………………………………………….….8, 9, 10
§61-8-101, Montana Code Annotated …………………………………………......….……...7, 10
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STATEMENT OF THE FACTS YMCA Youth Governor Gov Glorious (henceforth referred to as Glorious) and Lieutenant
Governor Dudley “Dude” Doolittle (henceforth referred to as Doolittle) in addition to other youth officers
and advisors were present at Camp Child for a weekend of coordinating and planning of the YMCA
Youth Legislature Program. Camp Child is privately owned by the YMCA. During the winter in which
these events transpired, Camp Child allowed snowmobiling by the public. Camp Child borders forest
service land and a county road of Powell County, Montana.
At the time, Glorious was 17 and Doolittle was 18 years of age. Glorious was an experienced
snowmobile rider, and Doolittle was not. Doolittle and Glorious rented snowmobiles from the Elliston
Country Store. Both rentals were made in Doolittle's name, as he was 18. In the course of renting the
snowmobiles, Doolittle made the personal choice to rent a helmet as well. Doolittle also informed
Glorious that because of House Bill 63, passed the prior year, Glorious was obligated to rent and make
use of a helmet. Glorious made the personal decision not to wear a helmet.
Glorious being a more experienced rider, she instructed Doolittle on the basics of snowmobile
operation and observed him until she felt he had developed the basic skills required to safely control the
snowmobile. Upon deciding that Doolittle was demonstrating sufficient understanding of how to operate
his snowmobile, Glorious navigated up Little Blackfoot River Road and onto United States Forest Service
forest development road #495. At the time, USFS #495 was closed to automobile traffic for the winter to
to budgetary purposes related to the cost of plowing roads. USFS #495 was, at the time, open to
snowmobile traffic. Doolittle, being a slightly less experienced rider, lost control on Little Blackfoot Road
and came to a sliding stop in the road. He continued down the road and as he turned onto USFS #495, he
lost control a second time. Doolittle was not injured during either spin out, nor did Doolittle injure anyone
else.
While the teens were at the Elliston Country Store, Powell County Sheriff's Deputy Reddy Radar
overheard their conversation. When the Deputy met up with his fellow Deputies at the Avon Cafe for a
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cup of coffee, one his fellow deputies reminded him that new legislation mandated helmets for
snowmobile riders under the age of 18. With this in mind, the Deputy who had overheard the
conversation in the Country Store drove past Camp Child in an attempt to locate the youths and observed
Doolittle spin out at the intersection of USFS #495 and the Little Blackfoot River Road. The Deputy
stopped Doolittle.
Upon observing that Doolittle had been stopped by a Sheriff's Deputy, Glorious returned to Camp
Child by another route.
The Deputy issued Doolittle a citation for operating a snowmobile in a careless or reckless
manner, for failing to operate a snowmobile at all times in a manner that avoids injury to self and others
and for careless driving in violation MCA §23-2-632(1)(b), 23-2-654 and MCA §61-8-302, respectively.
Doolittle pointed out that his actions had not endangered or injured anyone, and that he was on USFS
#495 at the time of the incident. Doolittle also contended that USFS #495 was not a “public highway.”
The Deputy then changed the citation to be specific to USFS #495 instead of Little Blackfoot Road.
The Deputy, feeling obligated to prevent Doolittle from riding without a helmet (despite the fact
that Doolittle was over 18 and had been wearing a helmet), transported Doolittle to Camp Child. In the
process of transporting Doolittle to Camp Child, the Deputy observed Glorious driving her snowmobile
across Camp Child land without use of a helmet. The Deputy did not observe Glorious operating her
snowmobile on a road. However, he issued Glorious a citation for speeding and operating a snowmobile
in a careless or reckless manner and for violating the mandatory helmet law as it applies to snowmobilers,
citing MCA §61-9-417 and §23-2-632(1)(a)(b) and (d)(as amended by HB 63).
Glorious contended that she had been on private land, that she was operating the snowmobile
within her ability, and that the helmet law violated her privacy. The Deputy proceeded to cite Glorious.
The Justice of the Peace in Powell County found both Glorious and Doolittle guilty as charged.
Glorious and Doolittle appealed to the Third Judicial District Court, Powell County, under the contentions
that they had been convicted of of violating unconstitutional, unenforceable, and void statues that were
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overly vague. Glorious also contended that the mandatory helmet provisions of MCA
§61-9-417 and §23-2-632(1)(d) (as amended by HB 63) violated her right to privacy, particularly
considering that she had been operating the snowmobile on private property. Both Doolittle and Glorious
contended that MCA §23-2-632 was unconstitutionally vague. Glorious did so because there was no set
speed limit and that as an experienced snowmobiler, she was not harming anyone. Doolittle contested his
conviction on the grounds that MCA §23-2-632 (1)(b) was unconstitutionally vague as applied because he
was moving at a speed highly unlikely to harm anyone. Doolittle also argued that the statutes set forth in
MCA §61-8-101and 302 would be irrelevant to the forest road because it was closed for the winter.
Doolittle also appealed on the grounds that MCA §61-8-111 should not apply because USFS #495 was
not a “way of this state open to the public.”
The District Court upheld Glorious's and Doolittle's convictions by citing the legal presumption
that any statute enacted by the legislature is constitutional. Glorious and Doolittle have appealed to the
YMCA Model Supreme Court, where their cases have been consolidated.
STATEMENT OF THE ISSUES
1. Do the helmet provisions of HB 63 violate the right of privacy guaranteed under
the Montana Constitution?
2. Is USFS road 495, closed for the winter to automobile traffic, a “way of this
state open to the public?”
3. Is MCA §23-2-632(1)(a) and (b) void for vagueness because it is not clear what
actions constitute a violation?
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ARGUMENT
I. The helmet provisions of HB 63 violate the right of privacy guaranteed under
the Montana Constitution.
A.) Applying the Palko test with the Supreme Court definition of liberty,
HB 63 is a violation of privacy if it does not meet the standard of
legitimate police legislation. The helmet provisions of HB 63 violate the right of privacy set forth by the Montana Constitution
because the provisions unduly infringe upon the liberty of individual citizens. It is essential that the case
at hand be examined using the appropriate test for determining whether a fundamental right to privacy
exists. In this case it is not the two-part test set out in Katz regarding informational privacy, but rather, a
test regarding personal-autonomy privacy used by the United States Supreme Court in Bowers and
derived from Palko v. Connecticut 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed.2d 288 (1937), which must be
applied. As the majority opinion of Gryczan v. State 283 Mont. 433; 942 P.2d 112 (1997) stated in regards
to the Palko test, “This test may be articulated as whether the statute in question "violate[s] those
'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions."' Palko, 302 U.S. at 328, 58 S.Ct. at 153, 82 L.Ed.2d 288.” Applying the Palko test, a proper
definition of liberty is in order. The Majority opinion of State v. Betts 252 N.E.2d 866 (OH, 1969) states,
“The United States Supreme Court has said, "Liberty implies the absence of arbitrary restraint". Chicago,
B. & Quincy R. R. Co. v. McGuire, 219 U.S. 549, 567, 31 S.Ct. 259, 262, 55 L.Ed. 328.” Therefore, if the
provisions of HB 63 constitute an arbitrary restraint, under the Palko test applied with the United States
Supreme Court's definition of liberty set forth by State v. Betts 252 N.E.2d 866 (OH, 1969), HB 63 must
be considered a violation of the right of privacy guaranteed under the Montana Constitution.
B.) The standard for determining the legitimacy of police legislation is
whether it substantially promotes the public health, safety, morals or
general welfare. State v. Betts 252 N.E.2d 866 (OH, 1969) sets forth the standard that it is the position of the
courts to determine the legitimacy of police legislation such as HB 63. Specifically, State v. Betts states,
“A presumption of validity may be indulged by the courts toward police legislation and the courts may
not substitute their opinion for the opinion of the legislature as to the propriety thereof, yet the courts
always have, and properly so, examined such legislation closely to ascertain if, under all of the
circumstances, it substantially promotes the public health, safety, morals or general welfare, or if, on the
other hand, it does not bear such relation and is merely capricious, arbitrary or discriminatory.” State v.
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Betts 252 N.E.2d 866 (OH, 1969) In doing so, the majority opinion of State v. Betts also establishes the
relevant criterion of determining whether police legislation is justified or arbitrary as being if “it
substantially promotes the public health, safety, morals or general welfare, or if, on the other hand, it does
not bear such relation and is merely capricious, arbitrary or discriminatory.” State v. Betts 252 N.E.2d 866
(OH, 1969)
C.) HB 63 does not substantially promote the public health and safety. The established criterion being whether the police legislation in question substantially promotes
the public health, safety, morals, or general welfare, it can be clearly demonstrated that the helmet
provision of HB 63 does not. The proponents of such legislation argue that people's decision to not wear a
helmet substantially effects all of society in three ways, being 1) that there is an increased likelihood of
accidents involving other motorists occurring when the operator of a non-enclosed vehicle does not have
appropriate head wear to protect them from flying objects, 2) that resulting accidents bear a cost on
society as a result of the accident and 3) that long term disabilities or death sustained by non-helmet
wearing peoples impose a cost on society and remove the ongoing contributions of a productive member
of society. However, all of these arguments are moot as applied to HB 63 for multiple reasons.
First, it is inherent that because snowmobiles are very seldom used in a highway setting, the
likelihood of involving others in an accident is extremely low. This is in part due to the very design of a
snowmobile, which typically mandates that it be used in an area where snow of a certain thickness is
present (i.e. not a plowed highway being used by regular motorists.)
Second, the argument that accidents are more likely because of the probability of the operator of
non-enclosed vehicles being struck by an object is completely irrelevant because if it were, similar
legislation would be passed for the drivers of convertibles, which by their nature of design, often are used
in highway conditions.
Third, the helmet provision of HB 63 states “(d) If under the age of 18, to fail to wear protective
headgear upon the head.” Because the legislation is limited to peoples under the age of 18, it is clear that
the intent of HB 63 is not to protect society from the costs imposed by people being killed or severely
disabled in an accident, as people over 18 are also contributing members to society whose death or
disability would become an imposed cost on society.
For these reasons, it is clear that the helmet provision of HB 63 does not substantially promote the
public health, safety, morals or general welfare. Therefore, applying the aforementioned standard set forth
in State v. Betts 252 N.E.2d 866 (OH, 1969), it has been demonstrated that the helmet provision of HB 63
is arbitrary, interferes with individual's liberty as defined by the United States Supreme Court, and
constitutes a violation of privacy as established by use of the Palko test Upheld by the Montana State
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Supreme Court in Gryczan v. State 283 Mont. 433; 942 P.2d 112 (1997) and articulated in The
Constitution of the State of Montana, Article II, § 10, as “The right of individual privacy is essential to the
well-being of a free society and shall not be infringed without the showing of a compelling state
interest.” Additionally, the undue interference with individual liberty is directly contradictory of The
Constitution of the State of Montana, Article II, § 17, which states, “No person shall be deprived of life,
liberty, or property without due process of law.”
II. When closed to automobile traffic for the winter, USFS road 495 does not
constitute a “way of this state open to the public.”
A.) USFS 495 does was not adapted and fitted for public travel. The full text of §61-8-101 (1), MCA states, “As used in this chapter, "ways of this state open to
the public" means any highway, road, alley, lane, parking area, or other public or private place adapted
and fitted for public travel that is in common use by the public.” §61-8-101 (1), MCA provides that a
“way of this state open to the public” must be adapted and fitted for public travel. The statute lists a group
of classifications for pieces of land which constitute a “way of this state open to the public”, but adds the
stipulation “or other public or private place adapted and fitted for public travel that is in common use by
the public.” (italics added.) The use of the term or other indicates that all of the land classifications
previously listed in the statute also must fit the criterion of a “public or private place adapted and fitted
for public travel that is in common use by the public” Therefore, to be considered a “way of this state
open to the public” a piece of land being examined must have been adapted and fitted for public travel. USFS 495 was not adapted and fitted for public travel. Specifically, snow had been intentionally allowed
to accumulate to the extent that a typical automobile would be incapable of passing through, and the
government had acknowledged this by declaring USFS 495 closed to regular automobiles. While USFS
495 was still open to snowmobile usage, it must be noted that this is not because USFS 495 was adapted
and fitted for snowmobiles to be able to be used, but because of the inherent design of a snowmobile. In
no way was USFS 495 usable by snowmobiles because of adaptation and fitting conducted for
snowmobile usage. Snowmobiles were merely able to traverse USFS 495 because of their inherent design
for being able to travel over any land covered in snow. Because physical snowmobile access is inherent to
all snow covered land, USFS 495, when closed to regular automobile usage for the winter, does not fit the
criterion of being adapted and fitted for public travel. Therefore USFS 495 cannot be considered a “way
of this state open to the public” when it is closed to regular automobiles for the winter.
B.) USFS 495 was not in common use by the public. § 61-8-101 (1), MCA states, “As used in this chapter, "ways of this state open to the public"
means any highway, road, alley, lane, parking area, or other public or private place adapted and fitted for
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public travel that is in common use by the public.” USFS 495 was not in common use by the public when
it was closed to automobile traffic for the winter. This is evident for multiple reasons. First, industry,
housing, and public services aren't typically located at the end of a Forest Development Road. This is due
to the nature of Forest Development Roads being rugged and typically oriented towards seasonal resource
extraction development. However, regardless of whether the public would have a common reason to use
USFS 495 in the winter, it had been closed for budgetary reasons. Obviously, resources are finite and at
times, some roads must go unplowed for the winter, but if USFS 495 was in common use by the public, it
would be less likely to have been selected as one of the roads to go unplowed for the winter. Also, the fact
that USFS 495 was only traversable by means of a snowmobile indicates that it was not in common use
by the public, as snowmobiles are not the default mode of transportation for most Montanans. Having
established that USFS 495 was not in common use by the public, it can be proven that USFS 495 does not
fit the criterion of a "way of this state open to the public" when it has been closed to automobile traffic for
the winter.
III. MCA §23-2-632(1)(a) and (b) is void for vagueness because it is not clear
what actions constitute a violation and does not give a person of ordinary
intelligence fair notice of the legal status of their actions.
A.) As applied to the actions of Gov Glorious, MCA §23-2-632(1)(a) and
(b) are void for vagueness. MCA § 23-3-632 was amended by HB 63 to state, “(1) It is unlawful for a person to operate a
snowmobile on a public street, public highway, established snowmobile trail, public snowmobile area on
public lands or waters, or lands or waters under easement or lease for snowmobiling and adjacent
snowmobiling areas on private lands or waters where public snowmobiling is permitted:
(a) at a rate of speed greater than provided by law for motor vehicles, unless travel on the street,
highway, or trail has been closed to motor vehicle traffic or unless drifting snow or snow cover
has rendered travel by motor vehicles impractical or impossible
(b) in a careless or reckless manner so as to endanger the person or property of another or to
cause injury or damage to either.”
HB 63 was successfully passed and was implemented upon its passage. The majority opinion of
State v. Nye 283 Mont. 505, 943 P. 2d 96 (1997) stated, “We have previously stated that a statute is void
on its face 'if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is
forbidden.'” Glorious would have had no fair notice that maneuvering her snowmobile on a piece of land
where snowmobiling is permissible, but where there is no road, or set speed limit for a motor vehicle
would be considered unlawful. MCA § 23-3-632 (1)(a) makes no provisions or clarifications regarding
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what rate of speed is unlawful if the snowmobile is being lawfully operated in an area where it would be
unlawful to operate a motor vehicle. Furthermore, the stipulation regarding road closures to vehicle traffic
due to drifting snow or snow cover only introduce confusion as to the legal status of an area off limits to a
conventional motor vehicle regardless of snowfall conditions.
Glorious also would not have had fair notice that her operating of the snowmobile could be
construed as careless or reckless, particularly given that she had been confidently operating snowmobiles
“since I was 10 years old” (in her own words.) Glorious’s experience and skill at safely operating
snowmobiles would indicate that she posed no threat of endangerment, injury, or damage to the person or
property of others.
For these reasons, Glorious had no way of reasonably and clearly interpreting MCA §23-2-
632(1)(a) and (b) to determine the potential illegality of her actions. The level of uncertainty experienced
by Glorious was far from the existing precedent of a requirement of fair notice being established by a
statute for it to not be considered void for reasons of being too vague.
B.) As applied to the actions of Doolittle, MCA §23-2-632(1)(b) is void for
vagueness. Quoting Amsel v. Brooks, 141 Conn. 288, 297, 106 A.2d 152, 157, 45 A.L.R.2d 1234, the
majority opinion of State v. Campbell 196 A.2d 131 (RI, 1963) stated, “The terms of a penal statute
creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on
their part will render them liable to its penalties. It must afford some comprehensible guide, rule or
information as to what must be done and what must be avoided, to the end that the ordinary member of
society may know how to comply with its requirements." This guide to the reasonableness of a statute’s
interpretation by the general public can be applied to MCA §23-2-632(1)(b) which states, “(1) It is
unlawful for a person to operate a snowmobile on a public street, public highway, established snowmobile
trail, public snowmobile area on public lands or waters, or lands or waters under easement or lease for
snowmobiling and adjacent snowmobiling areas on private lands or waters where public snowmobiling is
permitted: … (b) in a careless or reckless manner so as to endanger the person or property of another or to
cause injury or damage to either.”
In maneuvering his snowmobile, Doolittle did not endanger the person or property of another or
cause injury or damage to either. Furthermore, it can be seen that MCA §23-2-632(1)(b) offers no
standard by which a person's conduct can be tested. The term 'careless' would imply that Doolittle did not
care about attempting to operate the snowmobile in a safe manner. However, the fact that Doolittle was
attempting to slow down as opposed to increase his speed would indicate that Doolittle had a clear intent
of being safe in his actions. Essentially, the statue Doolittle was charged with violating simply did not
(9)
156
offer a clear understanding of what actions would constitute operation of his snowmobile in a careless or
reckless manner. Doolittle had no way of knowing what actions would be considered illegal and what
actions would not, despite the fact that he was doing what was in his control to be safe, and to not
endanger the person or property of others. Because the average citizen would not be able to know what
actions relative to MCA §23-2-632(1)(b) are legal and what actions are not legal, MCA §23-2-632(1)(b) is
and should be considered by the court to be vague, unenforceable, and void for that reason.
CONCLUSION In conclusion, applying the Palko test to the helmet provision of HB 63, it is found that the helmet
provision is arbitrary, violating of individual liberty, and as a result of that, a direct violation of individual
privacy as guaranteed by The Constitution of the State of Montana, Article II, § 10. USFS road #495
cannot be considered a “way of this state open to the public” because it does not fit the criterion set forth
in §61-8-101 (1), MCA when it is left unplowed for the winter season. MCA §23-2-632(1)(a) and (b) do
not offer a clear fair expectation of what is and what is not legal, therefore they are unenforceable and
void for that reason. For the forgoing reasons, the decision of the Third Judicial District Court, Powell
County should be reversed.
Respectfully submitted this 28th day of March, 2016.
Leif C. Clark 5319 Continental Dr. Attorney at Law Butte, MT 59701 Xavier B. Black 1916 Wilson Ave. Attorney at Law Butte, MT 59701
(10)
157
IN THE YMCA MODEL SUPREME COURT OF THE STATE OF MONTANA Nos. 2016-006 and 2016-007
______________________________________________________________________________ 2016-006 STATE OF MONTANA Plaintiff and Appellee v. GOV GLORIOUS
Defendant and Appellant and 2016-007 STATE OF MONTANA
Plaintiff and Appellee v. DUDLEY “DUDE” DOOLITTLE Defendant and Appellant ______________________________________________________________________________
BRIEF OF DEFENDANTS AND APPELLANTS
______________________________________________________________________________
On appeal from the District Court of Third Judicial District, County of Powell ______________________________________________________________________________
ORAL ARGUMENT REQUESTED
APPEARANCES:
Caylee Stroder 73 Leo Drive Emigrant, Montana 59027 Katie Ross 6 Sweetgrass Avenue Bozeman, Montana 59715 ATTORNEYS FOR DEFENDANTS AND APPELLANTS
TABLE OF CONTENTS
158
TABLE OF AUTHORITIES ............................................................................................................3 STATEMENT OF THE ISSUES.......................................................................................................4 STATEMENT OF THE FACTS .......................................................................................................4 ARGUMENT ...................................................................................................................................6 I. THE HELMET PROVISIONS OF HB 63 VIOLATE THE RIGHT OF PRIVACY
GUARANTEED BY THE MONTANA CONSTITUTION .......................................................6
A. The Decision to Use a Snowmobile Helmet, or not, is an Example of the Right to Privacy
Guaranteed by the Montana Constitution.....................................................................................6
B. There is no Compelling State Interest in HB 63
...........................................................................6 C. There is No Rational Relationship to a Legitimate State Interest Contained in HB
63…................7
II. THE USFS ROAD 495 WAS CLOSED FOR THE WINTER TO AUTOMOBILE TRAFFIC AND THEREFORE WAS OPEN TO THE PUBLIC FOR SNOWMOBILES……...…............8
A. A Road Closed to Wheeled Vehicles is not a “way of the State Open to the
Public”.....................8 B. Snowmobiles Are Distinguished From Wheeled Vehicles in the Montana Code
Annotated...........8 C. Deputy Radar Improperly Applied the Law
................................................................................9
159
III. MCA §23-2-632(1)(a) AND (b) SHOULD BE VOIDED FOR VAGUENESS. IT IS NOT CLEAR WHAT ACTIONS CONSTITUTE A VIOLATION .................................................10
A. It is not Clear What Actions Constitute a Violation
…...............................................................10
B. Neither Snowmobiler was Given Fair Notice That Their Conduct Was Forbidden
.....................11
CONCLUSION .............................................................................................................................12
TABLE OF AUTHORITIES
Cases
State of Montana v. Gryczan, 1997 MT 942 P. 2d 112
State of Montana v. Pastos, 1992 MT 269 Mont. 43, 47, 887 P.2d 199, 202
Town of Ennis v. Stewart, 1991 MT 247 Mont. 355, 807 P.2d 179
State of Nebraska v. Robotham, 1992 NE 488 N.W.2d 533
State of Montana v. Nye, 1997 MT 283 Mont. 505, 943 P.2d 96
State of Montana v. Brogan, 1993 MT 272 Mont. 156, 168, 900 P.2d 284
State of Montana v. Crisp, 1991 249 Mont. 199, 202, 814 P.2d 981, 983
State of Florida v. Rawlins, 1993 FL 623 So. 2d 598
State of Rhode Island v. Campbell, 1963 RI 196 A.2d 131
State of New York v. Firth, 2002 NY 775 N.E.2d 463
State of Ohio v. Betts, 1969 OH 252 N.E.2d 866
Montana Constitutional Provisions
Article II Section 10
Statutes
Montana Code Annotated, § 23-2-632
160
Montana Code Annotated, § 61-8-101
Montana Code Annotated, § 61-8-111
Montana Code Annotated, § 61-8-302
Montana Code Annotated, § 23-2-654
STATEMENT OF THE ISSUES
Issue One: Do the helmet provisions of HB 63 violate the right of privacy guaranteed by the
Montana constitution?
Issue Two: Is USFS road 495, closed for the winter to automobile traffic, a “way of this state
open to the public?”
Issue Three: Is MCA §23-2-632(1)(a) and (b) void for vagueness because it was not clear what
actions constitute a violation?
STATEMENTS OF THE FACTS
YMCA Youth in Government (YIG) Governor Gov Glorious and Lieutenant Governor
Dudley “Dude” Doolittle and other officers and advisors had spent a long day at YMCA Camp
Child planning the legislative program for YIG. Camp Child is privately owned by the YMCA,
and the public is allowed to cross-country ski and snowmobile on camp property. Looking to
take advantage of the prime snowmobiling conditions after a day of YIG planning, Gov Glorious
suggested to her friend Dudley Doolittle that they rent some snowmobiles from nearby Elliston
General Store.While at the store, Doolittle (who was 18, responsible for the rental, and had never
snowmobiled) reminded Glorious (who was 17 and had snowmobiled since she was 10) that, as a
result of HB 63, she needed to rent a helmet. Glorious reminded him that she was very
experienced rider and such a rule was unnecessary. The vendor delivered the snowmobiles to
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Camp Child and Glorious took the time to show Doolittle how to operate the commonly used
recreational vehicle. Gov Glorious followed Dudley Doolittle to keep an eye on the new
snowmobiler for a while, and then drove ahead.
Meanwhile, Powell County Deputy Reddy Radar, who had heard the teen’s discussion,
mentioned the conversation to his fellow deputies over coffee at the Avon Café. One of the other
deputies had to remind Deputy Radar that as a result of HB 63, snowmobile operators under age
18 must wear helmets.
After losing sight of Gov Glorious, Dudley Doolittle turned onto USFS Road #495, a
forest development road. As he entered the forest road, he slowed down and happened to slide to
a stop. Deputy Radar arrived just in time to see Doolittle spin out. After observing only one slide,
Radar pulled Doolittle over and cited him for operating a snowmobile in a careless or reckless
manner (violation of MCA §23-2-632(1)(b), MCA §23-2-654 and MCA §61-8-302). Ignoring
the fact that Doolittle was over 18 and wearing a helmet, Deputy Radar insisted on transporting
Doolittle back to Camp Child.
While transporting Doolittle, Deputy Radar observed Gov Glorious travelling cross-
country (not on any road) on the open fields of the private Camp Child property. She was not
wearing a helmet. Radar pulled Glorious over and cited her for speeding (though there was no
speed limit sign), operating a snowmobile in a careless or reckless manner, and for failure to
wear a helmet (violation of MCA §61-9-417 and MCA §23-2632(1)(a)(b) and (d) (as amended
by HB 63)).
The Justice of the Peace in Powell County found the pair guilty as charged, and their
convictions were upheld on appeal by the Third Judicial District Court, Powell County.
This appeal to the YMCA Model Supreme Court followed.
162
ARGUMENT
ISSUE 1: THE HELMET PROVISIONS OF HB 63 VIOLATE THE RIGHT OF
PRIVACY GUARANTEED BY THE MONTANA CONSTITUTION
A. The Decision to Use a Snowmobile Helmet, or not, is an Example of the Right to
Privacy Guaranteed by the Montana Constitution.
Article II Section 10 of the Montana Constitution reads: “The right of individual privacy
is essential to the well-being of a free society and shall not be infringed without the showing of a
compelling state interest.” In Gryczan v. State 814 P.2d 981 the Montana Supreme Court stated,
“Unlike the federal constitution, Montana’s Constitution explicitly grants to all Montana citizens
the right to individual privacy.” This includes, privacy in choosing what to cook for dinner,
privacy in choosing to go to school or not, and privacy to choose whether or not to wear a
helmet. “Private rights may not be arbitrarily or unreasonably infringed.” (State of Ohio v. Betts,
1969 252 N.E.2d 866) Ohio, as in other states, have recognized the ability for U.S citizens to live
free of police power. Therefore, a Montana citizen begins his or her case with a presumption of a
right to privacy in all activities that they may choose to undertake and decisions they formulate.
Riding a snowmobile is one's own choice, as is whether or not they choose to wear a helmet. In
recognition of that fact, the consequences are also theirs to deal with. However, the Montana
Constitution does recognize that the right to privacy is not unfettered.
B. There is No Compelling State Interest Identified in HB 63.
In Gryczan v. State (citing State v. Pastos (1994), 269 Mont. 43, 47, 887 P.2d 199, 202),
the Montana Supreme Court stated, “Since the right to privacy is explicit in the Declaration of
Rights in Montana’s Constitution, it is a fundamental right and any legislation regulating a
163
fundamental right must be reviewed under a strict-scrutiny analysis. To withstand a strict-
scrutiny analysis, the legislation must be narrowly tailored to effectuate only that compelling
interest.” If the state can prove that their was a compelling reason to violate a person's privacy,
then the right is voided. However, the fact pattern gives no proof as to how Gov Glorious not
wearing a helmet was offensive to, or a deliberate action against the state. There are no accident
or injury statistics that might inform the court as to why the legislature undertook the deprivation
of individual rights of one group of citizens (those less than 18 years old).
C. There is No Rational Relationship to a Legitimate State Interest Contained in
HB 63.
Even if we apply the lesser test of “legitimate interest of the state” expressed in Town of
Ennis v. Stewart (1991), 247 Mont. 355, 807 P.2d 179, quoted in Gryczan v. State (1997), there
is no demonstration that the legislation (HB 63) bears any relationship to the achievement of a
legitimate state interest. Legitimate state interests might include obvious protection against
harms presented by one citizen to another. In State of Ohio v. Betts (1969), the court stated,
“There is too much nonsensical regulation of purely personal affairs in today’s government.” (21
Ohio Misc. 175, 252 N.E.2d. 866). The issues of whether or not one should wear a helmet on a
nonpublic road involved in the Glorious and Doolittle case are just that - too much government
regulation without any sort of rational relationship to state interest. No state interest is expressed
and no goal identified as to how singling out less than 18-year olds will help meet the non-
existent interest. The youth legislature arbitrarily concluded that those snowmobilers under 18
must wear a helmet, no matter how many years of experience or training that a person might
have.There are no “whereas” statements in HB 63 that would provide a rational basis for the
requirement in regards to legislative intent.
Court decisions by other states regarding motorcycle helmets and privacy do not apply to
this particular incident. In the case Robotham v. State 488 N.W. 2d 533 (1992), the Nebraska
court did not find that motorcycle riders had a right to privacy in disputing helmet laws.
However, Nebraska does not have the same type of constitutional privacy right as Montana,. Not
to mention, the helmet law in Nebraska applied to all motorcyclists. In Montana, HB 63 the
helmet requirement only applies to citizens under age 18, not to all snowmobile operators and
riders. Additionally, as mentioned in the Robotham case, the Nebraska court noted that the
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legislature apparently took into consideration motorcycle accident and public health information
in making their decision. None of that is evident in HB 63 or the fact pattern.
Therefore, this court should strike down HB 63 for violating the Constitution of the State
of Montana.
ISSUE 2: USFS #ROAD 495 WAS NOT A “WAY OF THE STATE OPEN TO THE
PUBLIC”
A. A Road Closed to Wheeled Vehicles is not a “Way of the State Open to the
Public”.
In the fact pattern, USFS Road #495, is called a “forest development road” (with the
quotation marks contained in the fact pattern), that is clarified by a critical, following caveat, that
says, “but one that was closed for the winter to automobile traffic that particular year because the
government budget couldn’t cover snowplowing to keep it open; (though snowmobiling was still
allowed)...” Thus, as a road closed to automobile traffic, Road #495 is no longer a forest
development road. This approach is further supported by MCA §61-8-101 which states “ways of
state open to the public’ means any highway, road, alley, lane, parking area, or other public or
private place adapted and fitted for public travel that is in common use by the public.” MCA
§61-8-101 goes on to say, “(2) The provisions of this chapter relating to the operation of vehicles
refer exclusively to the operation of vehicles upon highways.” (emphasis added). Thus both the
fact pattern and MCA refer to wheeled vehicles, not snowmobiles, when they are outlining the
rules of the road for public highways. Therefore USFS #495 was not a public road, not being
adapted for the public or in common use by the public in their wheeled vehicles and therefore the
sections of the MCA referring to snowmobile use on public roads are not applicable.
B. Snowmobiles Are Distinguished From Wheeled Vehicles in the Montana Code
Annotated.
The Montana Code Annotated differentiates the operation of snowmobiles from wheeled
vehicles in that snowmobiles are primarily off-road vehicles that (given adequate snow cover)
may be used on the same road surfaces as wheeled vehicles in common use by the public. As we
will discuss below, although MCA §23-2-632 is quite vague, the law tries to recognize that when
snowmobiles are operated on a public road, they must follow the same rules of the road as
165
wheeled motor vehicles. When the roads are closed to wheeled vehicles, then a different set of
rules apply. Section (a) of MCA §23-2-632, when referring to speed limits, says snowmobilers
are not allowed to travel at a greater rate of speed than allowed for motor vehicles “unless travel
on the street, highway, or trail has been closed to motor traffic.” The separation of snowmobiles
and motor vehicles is further supported by MCA §23-2-654, which lays out a whole series of
requirements for operating a snowmobile in Montana that are clearly not applicable to wheeled
vehicles (for example, the warning to be aware of “grooming or snowmaking operations” in
3(a)).
C. Deputy Radar Improperly Applied the Law.
As discussed above, Dudley Doolittle was on USFS Road #495 when observed by
Deputy Radar, thus he was not on a public road and therefore the citation that relies on MCA
§61-8-302 (Careless driving on a public highway) cannot apply. The parts of the citation that rely
on snowmobile operations, MCA §23-2-632 1(b) and MCA §23-2-654, also are incorrectly
applied. According to the fact pattern, the Deputy observed Doolittle slide only one time as he
came to a stop. MCA §23-2-6321(b) refers to operating a snowmobile in a careless or reckless
manner so as to endanger persons or property. When Radar observed Doolittle, no one else was
around and the snowmobile remained upright, thus no one was endangered and no property was
threatened by the sliding incident. Despite the paucity of evidence, Deputy Radar cited Doolittle
and insisted on driving him back to the camp. Radar apparently did not even realize that
Doolittle was over 18 and conscientiously wearing a helmet, even though it was not technically
required to have one, which is further indication of Radar’s lack of understanding of the law.
166
ISSUE 3: MCA §23-2-632(1)(a) AND (b) SHOULD BE VOIDED FOR VAGUENESS.
A. It is not Clear What Actions Constitute a Violation.
In State v. Nye (283 Mont. 505, 943 P.2d 96 (1997), the Montana Supreme Court has
stated that “... a statute is void on its face ‘if it fails to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden.’ ” State v. Brogan (1995), 272 Mont. 156,
168, 900 P.2d 284, 291 (citing State v. Crisp (1991), 249 Mont. 199, 202, 814 P.2d 981, 983).
The language of MCA §23-2-632(1)(a) states it is unlawful for a person to operate a snowmobile
at a rate of speed greater than that provided by law for motor vehicles, unless the route has been
closed to motor vehicle traffic or unless snow has rendered travel by motor vehicles impractical;
and the fact pattern gives no mention of any posted speed limit for even any four wheeled
vehicle. Thus it would seem to a person of ordinary intelligence there is no speed limit for
snowmobiles on routes not being used by motor vehicles if snow has rendered travel by motor
vehicle impractical, or no speed limit sign is present. On a closer reading of the statute, if a
citizen rides a snowmobile on a snow covered road that is not marked open or closed to wheeled
vehicles, how is that ordinary citizen to know if in fact snow has rendered a route impractical to
wheeled vehicle travel? Given that high clearance, four-wheel drive vehicles with tire chains on
all four wheels can go on practically any road, and a snowmobiler is left to their own judgement
if wheeled vehicle or snowmobile rules are to apply to a road.
MCA §23-2-632(1)(b) states it is unlawful to operate a snowmobile in a careless or
reckless manner so as to endanger the person or property of another or to cause injury or damage
to either. According to the fact pattern, when Deputy Radar observed Gov Glorious, she was
crossing open fields in an area with no obvious obstructions or forested on the private lands of
YMCA Camp Child (see the annotated aerial image included in the fact pattern). In addition to
the fact that there was no other person mentioned to be on the forest road. Glorious was riding
fast; however, nothing in the fact pattern indicates she was in any way reckless or out of control,
and since there was no one else on the plot, she was endangering no persons other than herself.
Additionally, she was crossing private land. She was not on a road and MCA §23-2-632(1)(a)
states there is no speed limit. Despite the absence of a speed limit, Deputy Radar cited her for
speeding, using the language of MCA §23-2-632(1)(a) as rationale. The vagueness laws §23-2-
167
632(1)(a) are in other states have been declared void. For example, State of Florida v. Richard
Rawlins set a precedent by including a vagueness doctrine. “...due process clauses of the state
and federal constitutions which require that a law be declared void if it is so vague that men of
common intelligence must necessarily guess at it’s meaning and differ to it’s application.”
Similarly, Deputy Radar applied MCA §23-2-632(1)(b) to the actions of Dudley Doolittle
in an arbitrary manner. Radar observed Doolittle spin out only once, and on that basis alone, he
used the provisions of MCA §23-2-632(1)(b) to cite Doolittle for operating a snowmobile in
careless and reckless manner. No mention is made of snow (or ice) conditions on Forest Road
495, which easily would have contributed to a slide by either an experienced or a novice rider.
B. Neither Snowmobiler was Given Fair Notice That Their Conduct Was Forbidden
It is clear from the fact pattern that Deputy Radar’s interpretation of these statutes was
different than Glorious or Doolittle. Gov Glorious was crossing private land where there is no
speed limit, but was cited for speeding. Dudley Doolittle slid to a stop once and was cited for
reckless driving. Neither snowmobile rider could have known that such activities would violate
Montana statutes.
CONCLUSION
168
For the foregoing reasons, the decision of the District Court should be overturned.
Respectfully submitted this 1st day of April, 2016
Caylee Stroder Caylee Stroder
Stroder and Ross Attorneys at Law
Emigrant, MT
Kathryn Ross Kathryn Ross
Stroder and Ross Attorneys at Law
Bozeman, MT
169
IN THE YMCA MODEL SUPREME COURT OF THE STATE OF MONTANA
Nos. 2016-006 and 2016-007
STATE OF MONTANA,
Plaintiff and Appellee,
v.
GOV GLORIOUS,
Defendant and Appellant,
and
2016-007
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DUDLEY “DUDE” DOOLITTLE,
Defendant and Appellant BRIEF OF RESPONDENT
On appeal at the request of Gov Glorious and Lieutenant Governor Dudley “Dude” Doolittle
ORAL ARGUMENT REQUESTED APPEARANCES: Brittney L. Long 401 S. Wyoming St. Butte, MT 59701 Cassidy Duddy 401 S. Wyoming St. Butte, MT 59701 ATTORNEYS FOR PLAINTIFF AND RESPONDENT
170
TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………………………………………...……....…...4
STATEMENT OF THE ISSUES…………………….…………………………………….……………………………5
STATEMENT OF THE FACTS……………………………………………………………..………………………….5
ARGUMENT…………………………………………………………………………..…………………………...……...7 I. Do the helmet provisions of HB 63 violate the right of privacy guaranteed under the ` Montana Constitution? ………….……………………………………………………………………..………...7
A. The helmet provisions of HB 63 do not violate the right of privacy guaranteed under the Montana Constitution………………………………………………………………………………..7
B. The statute does not violate right of privacy………………………………………………8
C. Glorious was driving on state property as well……………………………………………9 II. USFS road 495, closed for the winter to automobile traffic, was a “way of this state open to the public …….………………………………………………………………………………………………..…….......10 III. Is MCA §23-2-632(1)(a) and (b) void for vagueness because it is not clear what actions constitute a violation?.........................................................................................................11
A. Content of MCA §23-2-632(1)(a) and (b) as amended by HB 63…………………………..………….11
B. MCA §23-2-632(1) as amended by HB 63 is especially comprehensive……………………………..12
C. MCA §23-2-632(1)(a) as amended by HB 63 is not void for vagueness……………………………….13
D. Violations of the law defined above……………………………………………………………….…………………13
CONCLUSION…………………………………………………………………………………………….……………..…………………..13
171
TABLE OF AUTHORITIES
Cases
Fallon County v. State, 231 Mont. 443, 753 P.2d 338 (1988)
State v. Nye, 283 Mont. 505, 943 P. 2d 96 (1997)
Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997)
Montana Constitutional Provisions
Article II, Sections 10 and 17,
Statutes
MCA §23-2-632 (as amended by HB 63)
MCA §23-2-642
MCA §23-2-654
MCA §61-8-101
MCA §61-8-111
MCA §61-8-302
MCA §61-9-417 (as amended by HB 63)
YMCA Youth Legislature HB 63
172
STATEMENT OF THE ISSUES
1. Do the helmet provisions of HB 63 violate the right of privacy guaranteed under the Montana
Constitution?
2. Is USFS road 495, closed for the winter to automobile traffic, a “way of this state open to the
public?”
3. Is MCA §23-2-632(1)(a) and (b) void for vagueness because it is not clear what actions
constitute a violation?
STATEMENT OF THE FACTS
YMCA Youth Governor Gov Glorious and Lieutenant Governor Dudley “Dude” Doolittle were at
Camp Child for a weekend dedicated to planning the upcoming YMCA Legislature. Camp Child is
privately owned by the YMCA, but that winter allowed both cross-country skiing and snowmobiling by
the public. This land borders forest service land and a county road in Powell County, Montana. The
governor and Lieutenant decided to rent snowmobiles to get the mind off of the vigorous 6 hour work
they had been doing. Governor Glorious is 17 and Doolittle is 18 years old. Doolittle had never driven a
snowmobile where as Glorious has been riding snowmobiles since he was “10 years old.” The two went
down to Elliston Country Store, which rented snowmobiles. Doolittle was responsible for the rental
because he was 18. Doolittle reminded Glorious that as a result of HB 63, legislation passed by the
previous year's YMCA Youth Legislature she also needed to rent a helmet, and he was going to also,
even though he was over 18, because he'd never driven a snowmobile. Glorious was reluctant toward
wearing the helmet and said that helmets were for sissies. Doolittle tried to reassure him that wearing a
helmet was a smart idea as well as a law. The store then delivered the snowmobiles to Camp Child.
Glorious once again refused to wear a helmet as he was showing Doolittle the ropes. Doolittle wanted
to take time to get the ropes of driving so he told Glorious to go ahead. Both of them took off down a
173
private road within the property lines of Camp Child. Glorious traveled behind Doolittle until she felt he
had the basics down, then picked up speed and went zooming past him just as the pair left the property
and came upon Little Blackfoot River Road. Glorious accelerated down the road for about .10 of a mile
and turned off on USFS road #495, a “forest development road”, but one that was closed for the winter
to automobile traffic that particular year because the government budget couldn't cover snowplowing it
to keep it open; (though snowmobiling was still allowed) and she was soon out of sight. Doolittle really
hadn't
Figured out how to stop yet and as he pulled onto Little Blackfoot Road, he let off the throttle abruptly
and as a result, spun out and the snowmobile came to a sliding stop in the middle of the road.
Chagrined, he resumed his route, but as he turned onto road #495, he spun out again. Powell County
Sheriff's Deputy Reddy Radar had stopped to get gas and overheard the teens' conversation at the
Elliston Country Store. He then met up with his fellow Deputies at the Avon Cafe for a cup of coffee,
where one of them reminded him that the new law mandated helmets for snowmobile riders under age
18. Radar drove past Camp Child to see if he could locate the youths, and arrived at the intersection of
road #495 just in time to see Doolittle's second spin out. Radar activated his lights and stopped Doolittle.
Radar issued Doolittle a citation for operating a snowmobile in a careless or reckless manner, for failing
to operate a snowmobile at all times in a manner that avoids injury to self and others and for careless
driving in violation of MCA §23-2-632(1)(b), 23-2-654 and MCA §61-8-302. Doolittle argued that he
wasn't endangering or injuring anyone, plus he wasn't on Little Blackfoot Road, he was on USFS road
#495, which was not a “public highway.”As he was transporting Doolittle back to Camp Child (because
he couldn't allow Doolittle to drive the snowmobile without a helmet), he observed Glorious driving her
snowmobile at a high rate of speed cross-county on Camp Child's land. Seeing Glorious without a
helmet, but not having observed her on any road, he issued Glorious a citation for speeding and
operating asnowmobile in a careless or reckless manner and for violating the mandatory helmet law as it
applies to snowmobilers, citingMCA §61-9-417 and §23-2-632(1)(a)(b) and (d)(as amended by HB 63).
She argued that she was on private land, not a road, she wasn't driving all that fast, wasn't driving
carelessly because she was an experienced snowmobiler, and the helmet law violated her right of
174
privacy. Justice of the Peace in Powell County found both Glorious and Doolittle guilty as charged.
Glorious and Doolittle appealed to the Third Judicial District Court, Powell County, arguing that the
respective statutes they had been convicted of violating are unconstitutional, unenforceable and void
for vagueness. Glorious argued that the mandatory helmet provisions of MCA §61-9-417 and §23-2-
632(1)(d) (as amended by HB 63) violated her right to privacy, especially in view of the circumstances
that she was operating the snowmobile on private property and not on a public road. She and Doolittle
both argued that §23-2-632 was unconstitutionally vague; Glorious arguing (1) (a) and (b) on the
grounds that there was no set speed limit and, as an experienced snowmobiler, she wasn't hurting
anyone. Doolittle argued that -632(1) (b) was unconstitutionally vague as applied to him because he was
not hurting anyone because he was moving slower. Doolittle further argued that he could not be
convicted of careless driving under MCA §61-8-101and 302 because was on a forest service road closed
for the winter and so MCA §61-8-111did not apply because it was not a “way of the state open to the
public.” Citing the legal presumption that any statute enacted by the legislature is constitutional, the
District Court upheld Glorious's and Doolittle's convictions. Both Glorious and Doolittle appealed to the
YMCA Model Supreme Court, where their cases have been consolidated.
(3)
ARGUMENT 1. The helmet provisions of HB 63 do not violate the right of privacy guaranteed under the Montana Constitution?
A. Law 61-9-417 is fair
61-9-417. Headgear required for minor motorcycle riders.
(1) An operator and passenger under 18 years of age of a motorcycle or quadricycle
operated upon the streets or highways of this state shall wear protective headgear upon the
head. The headgear must meet standards established by the department of justice. (2) A
person may not operate a motorcycle upon a highway in the state unless all passengers
under 18 years of age are in compliance with subsection (1).
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Governor Glorious argues that this statute especially in view of the circumstances that she was
operating the snowmobile on private property and not on a public road. This argument falls because
the law states “upon the streets or highways of this state”, it does not specified State or
Government owned road or highway therefore the private roads within Camp Child would be subjected
to have the laws be followed within them. The law is fair as to the fact that headgear is something that
is not only against the law not to wear but is also for the safety of those using the automobile or cycle as
well as the surrounding people, building, and other moving vehicles. The fact that Glorious expressed so
heavily that she was unwilling to wear a helmet where the officer heard her was a warning sign and the
officer was only doing this job and to follow the law he was supposed to be protecting. The officer in this
instance did not give her a citation for something unlawful or out of the ordinary considering she was
only 17 years old and the law states that protective headgear must be worn on those younger than 18
years of age. What we can see here is that this is most definitely far.
B. The statute does not violate right of privacy
Section 10 Right of privacy: The right of individual privacy is essential to the well-being
of a free society and shall not be infringed without the showing of a compelling state
interest.
The right of privacy of Glorious was not violated. The federal constitution does not explicitly grant
citizens the right to privacy. That right has been inferred, however, from other provisions of the
constitution and is used particularly in search and seizure contexts. The Montana Constitution basically
says the same thing and that it should not be infringed on without showing anything of state interest. It
doesn’t say that it is guaranteed and should be evaluated in the face of danger to the condition of the
state. Right of privacy is the concept that one’s person information shall not be infringed on and is
protected from public security. In no way is this being broken in regards to the citations that officer
Radar gave to Glorious. The officer issued the citation due to the fact that she was under the age of 18
and heard her speaking about this at the store in which they rented the snowmobiles from. The
defendant also argues the she was not on a road but on land. In the statement of the facts it points out
the fact that she was driving on a “forest development road” which I believe is a road considering the
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fact that the word road is in the title. In the case Picou v Gillum Appellant contended that the statute
violated federal constitutional rights to Due Process, Equal Protection, and privacy. The district court
dismissed the complaint on the authority of Simon v. Sargent, 346 F.Supp. 277 (D.Mass.1972), aff'd
mem., 409 U.S. 1020, 93 S.Ct. 463, 34 L.Ed.2d 312 (1972). On appeal, a panel of this Court held that
because the district court in Simon did not address a privacy claim, the Supreme Court's summary
affirmance in that case was not dispositive. The case was therefore remanded to the district court for
consideration of appellant's privacy argument. See Picou v. Gillum, 813 F.2d 1121 (11th Cir.1987). The
district court held that the Supreme Court's privacy opinions did not support appellant's contentions,
and upheld the helmet statute. What we can see through this case is the fact that with Glorious trying to
use the fact that her “right of privacy” was supposedly violated the fact that she is under the age of 18
years old and was not wearing a helmet takes president because that is a law and is states within it.
C. Glorious was driving on state property as well
Prior to the 1972 Montana Constitution, the assessment and valuation of property for tax purposes was
determined at a county level, subject to review by the former State Board of Equalization. During the
Constitutional Convention of 1972, it was contended that the county system had inadequately equalize
property values statewide. It was contended during the Convention that the then recent case of Serrano
v. Priest (Cal. 1971), 487 P.2d 1241, mandated a change in Montana's assessment, valuation and
equalization system to avoid equal protection attacks on the method of state funding for elementary
education. The ultimate result was the adoption of Art. VIII, S 3 above quoted. This all during the case of
Fallon County v State, what you cans see here relating to the matter at hand right now is the fact that
the property value statewide is equal in the respect of private lands as well as the crimes charged on
them. Even though this was on the camp property this land is still state owned and citations can be
issues within the premisis. There are now valuation and equalization systems set in place so incidents
that this don’t happen. We need to look at the facts here and see that Glorious was driving on a private
as well as state owned road and therefore her rights of privacy were in no way denied or undermined. II. USFS road 495, closed for the winter to automobile traffic, was a “way of this state open to the public.
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What we have to look at here is the laws first and for most. This read was closed for the winter
and was specified for snowmobile use. This read though was not a private road and was still owned by
the state rather it was closed or not. The officers had every right to pull Doolittle over because of his
driving. He was driving quite recklessly and it doesn’t matter what type of experience you have when
operating machinery you shouldn’t be taking it out where people could possibly be injured. It was not
specified but it doesn’t have to be to put into consideration the fact that there could have been copious
amounts of snowmobiles and people around that area considering it was closed for snowmobile
traffic. In reality this road was open to parts of the public and we cannot say that it was not. This road
was in use of those members of society wishing to operate an automobile in a safe and careful matter
unlike the way that Doolittle and Glorious were. The officer had all the rights to give him a citation
because 23-2-632. Unlawful operation of snowmobiles states(1) It is unlawful for a person to operate a
snowmobile on a public street, public highway, established snowmobile trail, public snowmobile area on
public lands or waters, or lands or waters under easement or lease for snowmobiling and adjacent
snowmobiling areas on private lands or waters where public snowmobiling is permitted:
(a) at a rate of speed greater than provided by law for motor vehicles, unless travel on the street,
highway, or trail has been closed to motor vehicle traffic or unless drifting snow or snow cover has
rendered travel by motor vehicles impractical or impossible;
(b) in a careless or reckless manner so as to endanger the person or property of another or to cause
injury or damage to either.
It was said that Doolittle had spun out many times and difficulty controlling the machine at times.
Another point is the fact that we do not know if there was anyone in the premise that could have been
seriously injured if something was to happen with Doolittle operating the machine.
61-8-111. State laws applicable on forest development roads -- enforcement. “Forest development
roads in the state, whether or not they meet the definition of a public highway by the laws of this state,
are subject to the traffic laws of this state and the Montana highway patrol and county sheriffs of this
state shall have jurisdiction thereon to investigate accidents and enforce the Montana traffic laws.”
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By reading this we can see that this law does fall into place of the citation that was given to Doolittle
because it does not matter if it meets the definition of a highway or not, they are still subject to the
traffic laws. Doolittle said that he was not in violation of these statutes but we can see that the words of
the laws say different. It doesn’t matter what type of road or street he was on according to the law all
roads should be treated as a public highway, and it doesn’t matter who was around or if no one was
around, his carless and reckless driving could have resulting into the severe and life altering injuries to
himself or others.
III. MCA §23-2-632(1)(a) and (b) is not void for vagueness because it is clear what actions constitute a
violation.
A. Content of MCA §23-2-632(1)(a) and (b) as amended by HB 63
Section 2: MCA § 23-3-632 is amended to read: 23-2-632. Unlawful operation of
snowmobiles.
(1) It is unlawful for a person to operate a snowmobile on a public street, public highway,
established snowmobile trail, public snowmobile area on public lands or waters, or lands or
waters under easement or lease for snowmobiling and adjacent snowmobiling areas on
private lands or waters where public snowmobiling is permitted: (a) at a rate of speed
greater than provided by law for motor vehicles, unless travel on the street, highway, or trail
has been closed to motor vehicle traffic or unless drifting snow or snow cover has rendered
travel by motor vehicles impractical or impossible; (b) in a careless or reckless manner so as
to endanger the person or property of another or to cause injury or damage to either;
B. MCA §23-2-632(1) as amended by HB 63 is especially comprehensive.
MCA §23-2-632(1) (as amended by HB 63) has evidently been amended just to be easily
understood. The content of this subsection is highly descriptive, and its sub-points help to
define the law. The law specifies exact locations under the law’s affect and exact conditions
under which a person is performing an illegal action. As any law is, MCA §23-2-632(1) is
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meant to be interpreted by the authority but has ample information to protect against
wrongful conviction.
1. MCA §23-2-632(1)(a) as amended by HB 63 is not void for vagueness.
This particular sub-point of MCA §23-2-632(1) (as amended by HB 63) vividly
describes the conditions under which illegal action is taken. Sub-point (a) of MCA
§23-2-632(1) (as amended by HB 63) uses descriptive clauses and has ample
information to be interpreted by the authorities without being wrongfully
interpreted by them. The defendant and appellant, Ms. Glorious, was never given a
speed at which she violated the speed limit provided for motor vehicles. However,
prosecuting officer Radar, a Sherriff’s Deputy, felt that she was over the limit set for
motor vehicles in the area. He issued this speeding citation along with that of the
defendant’s violating MCA §23-2-632(1)(b).
2. MCA §23-2-632(1)(b) as amended by HB 63 is not void for vagueness.
This sub-point of MCA §23-2-632(1) (as amended by HB 63) is under question of its
vagueness. The content, however, is not vague. The clause clearly states the
circumstances under which one would be breaking the law, and with a simple legal
definition the entire question of this law’s vagueness is answered. “To be reckless,
conduct must demonstrate indifference to consequences under circumstances
involving peril to the life or safety of others, although no harm is intended,” as
defined by West's Encyclopedia of American Law, edition 2. Copyright 2008 The
Gale Group, Inc. All rights reserved. Using this legal definition, similar to one any
police officer or justice of the peace would use, the defendants and appellants
violated MCA §23-2-632(1)(b)
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C. Violations of the law defined above
Due to these circumstances, the defendant and appellant, Ms. Glorious, violated MCA §23-
2-632(1)(a) and (b). Both defendants and appellants violated MCA §23-2-632(1)(b) on the
grounds that one of them, Mr. Doolittle, was far too inexperienced and, therefore, driving
recklessly, and that the other, Ms. Glorious, was driving at a speed deemed above the limit
for the area and reckless in the sense that she was off-road.
CONCLUSION
For the foregoing reasons, the decision of the District Court should be upheld.
Respectfully submitted this 30th day of March
Brittney Long Brittney L. Long Duddy and Long Attorneys at Law
Butte, MT Cassidy T. Duddy Cassidy T. Duddy Duddy and Long Attorney at Law Butte, MT
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THE YMCA MODEL SUPREME COURT OF THE STATE OF MONTANA
Nos. 2016-006 and 2016-007
______________________________________________________________________
2016-006
STATE OF MONTANA,
Plaintiff and Appellee,
v.
GOV GLORIOUS,
Defendant and Appellant,
and
2016-007
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DUDLEY “DUDE” DOOLITTLE,
Defendant and Appellant.
______________________________________________________________________
BRIEF OF PLAINTIFF
ORAL ARGUMENT REQUESTED
ON APPEAL FROM THIRD JUDICIAL DISTRICT COURT, POWELL COUNTY
______________________________________________________________________
BAYLIE RODENBAUGH, MADISON UELAND
RODENBAUGH AND UELAND ATTORNEYS AT LAW
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Table Of Authorities
Cases
Gryczan v. State, 238 Mont. 433, 942 P. 2d 112 (1997)
State v. Nye, 283 Mont. 505, 943 P. 2d 96 (1997)
Fallon County v. State, 231 Mont. 443, 753 P .2d 338 (1988)
Constitution
Article II, Sections 10 and 17, Montana Constitution
Statutes
MCA 23-2-632 (as amended by HB 63)
MCA 23-2-642
MCA 23-2-654
MCA 61-8-101
MCA 61-8-111
MCA 61-8-302
MCA 61-9-417 (as amended by HB 63)
YMCA Youth Legislature HB 63
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TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………………………………….. 2
STATEMENT OF ISSUES……………………………………………………………...…….2
STATEMENT OF FACTS…………………………………………………………………..2-4
ARGUMENT
1 The right to privacy by means of being free from paternalistic government does
not extend to a decision to wear safety equipment or not on the open road. The
constitutional right to privacy exists for very personal decisions such as
reproductive decisions………………………………………………………………. 4
2. There should not be an expectation that the property will be treated as
“private” for situations such as riding snowmobiles……….……………………….5
3. This particular road was still open and available for snowmobilers…………..5
4. The YMCA Child Camp allowed the public to use the Camp property for
snowmobiling during this winter season; creating a “ways of this state open to the
public” application because of its private place adapted and fitted for public..5-6
5. As Doolittle “spun out” a second time at the same rate of speed, he drove
recklessly when he knowingly drove faster than his ability and terrain conditions
allowed…………………………………………………………………………………6
CONCLUSION………………………………………………………………………………….7
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Statement of Issues
1. Do the helmet provisions of HB 63 violate the right of privacy guaranteed under the Montana Constitution?
2. Is USFS road 495, closed for winter to automobile traffic, was a “way of this state open to public?”
3. Is MCA 23-2-632(1)(a) and (b) void for vagueness because it is not clear what actions constitute a violation?
Statement of Facts Governor Glorious and Lieutenant Governor Doolittle decided to rent snowmobiles during the YMCA Youth Legislature at Camp Child. Doolittle had never driven a snowmobile before and was a little nervous. They went to the Elliston Country Store and rented snowmobiles. SInce Glorious was only 17 years old, Doolittle was responsible for the rental as he was 18. At the store, Doolittle reminded Glorious that she also needed to rent a helmet under the HB 63 legislation. Doolittle was also going to rent a helmet as he had never driven a snowmobile before. Glorious refused to wear a helmet saying “Helmets are for sissies.” The vendor delivered the snowmobiles to Camp Child. Glorious refused to wear a helmet. Doolittle responded with, “Well, I’m not your dad, so whatever, it’s your funeral.” After showing Doolittle the basics they started off on a private road within the property lines of Camp Child. Until Glorious felt she had the basic she followed Doolittle. As the pair left the property and enter Little Blackfoot Road, Glorious picked up speed and zoomed past Doolittle. After .10 of a mile Glorious turned off on USFS road #495, a “forest development road” that was closed for the winter to automobile traffic, but snowmobiling was still allowed. Not knowing how to stop yet, Doolittle let off the throttle abruptly as he pulled onto Little Blackfoot Road, resulting in spinning out as the snowmobile came to a sliding stop in the middle of the road. He turned onto road #495, spinning out again. Powell County Sheriff Deputy Reddy Radar overheard the teens’ conversation at the Elliston Country Store as he was getting gas. He then met up with his fellow deputies at the Avon Cafe for a cup of coffee, where he was reminded of the new helmet law. Radar then drove past Camp Child to see if he could locate the youth, arriving at the intersection of road #495 in time to see Doolittle’s second spin out. Radar then stopped Doolittle. Concerned that she had lost sight of Doolittle, Glorious turned around. When she saw the flashing lights of Radar’s patrol car, she pulled off the right-of-way of the forest service road and hightailed it cross-country to the grounds of Camp Child.
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Radar issued Doolittle a citation for operating a snowmobile in a careless and reckless manner, for failing to operate a snowmobile at all times in a manner that avoids injury to self and others and for careless driving in violation of MCA 23-2-632(1)(b), 23-2-654 and MCA 61-8-302. Doolittle argued that she wasn’t endangering or injuring anyone, plus he wasn’t on Little Blackfoot Road, he was in USFS road #495, which was not a “public highway”. Radar cited him for road #495 instead. While driving Doolittle back to Camp Child, Radar observed Glorious driving her snowmobile at a high rate of speed cross-country on Camp Child’s land. Seeing Glorious without a helmet, but not on a public road, he issued her with a citation for speeding and operating a snowmobile in a careless or reckless manner and for violating the mandatory helmet law, citing MCA 61-9-417 and 23-2-632(1)(a)(b) and (d). SHe argued that she was on private land and wasn’t driving fast at all, wasn’t driving carelessly because she was an experienced snowmobiler, and the helmet law violated her right of privacy. The Justice of the Peace in Powell county found both Glorious and Doolittle guilty as charged. They appealed to the Third Judicial District Court, Powell County, arguing that the respective statuses they had been convicted of violated to constitution, unenforceable and void for vagueness. Glorious argued that mandatory helmet provisions of MCS 61-9-417 and 23-2-632(1)(d)(as amended by HB 63) violated her right to privacy. The both argued that 23-2-632 was unconstitutionally vague, Glorious arguing (1)(a) and (b) on the grounds that there was no set speed limit and, as an experienced snowmobiler, she wasn’t hurting anyone. Doolittle argued that -632(1)(b) was unconstitutionally vague as applied to him because he was no hurting anyone because he was moving slower. Doolittle further argued that he could not be convicted of careless driving under MCA 61-8-101 and 302 because he was on a forest service road closed for winter, so MCA 61-8-111 did not apply because it was not a “way of the state open to the public.” Citing the legal presumption that any statute enacted by the legislature is constitutional, the District Court upheld Glorious’s and Doolittle’s convictions. Both Glorious and Doolittle appealed to the YMCA Model Supreme Court, there their cases have been consolidated.
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Arguments
Do the helmet provisions of HB 63 violate the right of privacy guaranteed under the Montana Constitution?
ANSWER: The helmet provisions of HB 63 do not violate the privacy of Governor Glorious.
ARGUMENT: 1. The right to privacy by means of being free from paternalistic
government does not extend to a decision to wear safety equipment or not on the open road. The constitutional right to privacy exists for very personal decisions such as reproductive decisions.
a. From Picou v. Gillum, the Supreme Court has repeatedly declined to recognize as a constitutional right the decision to wear or not wear safety equipment on the open road. The district court concluded "has shown no reason in history, in policy, or in logic why a constitutional right should extend to his decision to forego a motorcycle helmet.” This was affirmed.
b. Appellant contended helmet laws violated federal constitutional rights to Due Process, Equal Protection, and privacy.
c. This argument stands precedent because the state is not in any way affecting their privacy. The purpose of the law is solely for their safety and wellbeing. It is deemed unsafe to a snowmobile without a helmet and despite personal beliefs, the state thinks it is necessary to wear one until the age of 18 whether you are familiar with the operation of a snowmobile or not.
2. As the YMCA Child Camp allowed the public to use the Camp
property for snowmobiling during this winter, there should not be an expectation that the property will be treated as “private” for situations such as riding snowmobiles.
a. As MCA 61-8-101 explains, “ways of this state open to the public” means any highway, road, alley, lane, parking area, or other public or private place adapted and fitted for public travel that is in common use by the public
b. As MCA 61-8-111 says, Forest development roads in the state, ...meet the definition of a public highway are subject to
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the traffic laws of this state and the Montana highway patrol and county sheriff’s
c. The property in which the snowmobiling took place was made accessible by Camp Cook and was not private property. The road was fitted for the public and it should not be treated as private property. Because they rented the snowmobiles and used them on that land, they had to agree to their conditions. Glorious chose not to wear a helmet, which was asked of her when renting the snowmobiles.
Is USFS road 495, closed for winter to automobile traffic, was a “way of this state open to public?” ANSWER: USFS road 495 is a “way of this state open to the public”. ARGUMENT:
1. This particular road was still open and available for snowmobilers. a. MCA 61-8-111 Forest development roads are subject to
traffic laws of Montana Highway Patrol and County Sheriff 2. The YMCA Child Camp allowed the public to use the Camp
property for snowmobiling during this winter season; creating a “ways of this state open to the public” application because of its private place adapted and fitted for public
a. MCA 61-8-101 state’s “ways of this state open to the public” application because of its “private place adapted and fitted for public travel that is in common use by the public”
b. 61-8-111 Forest development roads in the state, whether or not they meet the definition of a public highway by the laws of this state, are subject to the traffic laws of the state and the Montana highway patrol and the county sheriffs of this state shall have jurisdiction thereon to investigate accidents and enforce the Montana traffic laws.
c. Although the road is closed to travel, it was left for recreational vehicles. Because this is also fitted for the public, it remains public land. Because it is public land, there are no exceptions to any law that would apply to private property. This is precedent because the law states that any snowmobile on these properties must not exceed a safe speed and should not partake in any behaviors that could cause harm to others.
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Is MCA 23-2-632(1)(a) and (b) void for vagueness because it is not clear what actions constitute a violation? ANSWER: MCA 23-2-632 is not void for vagueness.
ARGUMENT: 1. It is reasonably clear what careless or reckless mean. As Doolittle “spun
out” a second time at the same rate of speed, he drove recklessly when he knowingly drove faster than his ability and terrain conditions allowed. MCA 23-2-632 states: it is unlawful to operate a snowmobile in a careless or reckless manner so as to endanger the person or property of another or to cause injury or damage to either
a. As State of Montana v David Nathan Nye which does not find the statute as “Constitutionally vague” because a statute does not have to give an exhaustive list of definitions
2. Doolittle has a responsibility for the property he is using, as it is “leased”/borrowed property and he has a duty to protect another’s property. When he spun out, indicating he was driving too fast for his ability and the current terrain. Driving in a careless with another’s property so disregard for the MCA 23-2-632 it is unlawful to operate a snowmobile in a careless or reckless manner so as to endanger the person or property of another or to cause injury or damage to either
a. In State of Montana v. David Nathan Nye, which does not find the statute as vague or overbroad; a statute is reasonably clear and Doolittle has not proven the statute is unconstitutional beyond a reasonable doubt
3. 23-2-632 It is unlawful for a person to operate a snowmobile on a public street, public highway, established snowmobile trail, public snowmobile area on public lands or waters, or lands or waters under easement or lease for snowmobiling and adjacent snowmobiling areas on private lands or waters where public snowmobiling is permitted:
a. at a rate of speed greater than provided by law for motor vehicles, unless travel on the street, highway, or trail has been closed to motor vehicle traffic or unless drifting snow or snow cover has rendered travel by motor vehicles impractical or impossible
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Conclusion
For the ongoing reasons, the decision of the district court should be upheld. Respectfully submitted this 31st day of March.
Baylie Rodenbaugh Baylie Rodenbaugh
Rodenbaugh and Ueland Attorneys at Law
Madison Ueland
Madison Ueland Rodenbaugh and Ueland
Attorneys at Law
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Code of Conduct updated Spring, 2005
_______________________________________________ The intent of the Montana YMCA Youth and
Government Code of Conduct is to explain personal behavior for participants and advisors consistent with the purpose and objectives of the Youth and Government Program.
The items within this code are designed to protect participants and safeguard the integrity of the program for current and future generations.
It is understood that advisors of local Youth and Government delegations are responsible for the conduct and
welfare of their members at all local, regional and statewide functions.
All advisors may exercise disciplinary authority over any participant at regional and statewide functions if needed.
Participants and advisors are encouraged to support one another in upholding the code and avoiding infractions. Everyone will be asked to affirm their commitment to uphold this code.
1. Participants and advisors shall conduct themselves in an orderly and responsible manner at all times. Each person will participate productively on an intellectual, social, and emotional level showing respect for him or herself, others, the democratic process, the mission of the YMCA, all participating delegations, and the Youth and Government Program.
2. Harassment or intimidation through words, gestures, body language, or other menacing behavior will not be tolerated at any Youth and Government function.
3. No individual shall engage in personal attacks, verbal or otherwise, nor use profanity or other offensive language, even while responding to views with which they do not agree.
4. Participants and advisors will attend all sessions and activities unless specific arrangements are made for exceptional reasons. No participant shall leave without approval of his/her advisor and notification of the State Director.
5. Transportation of participants is the responsibility of advisors, parents, or legal guardians. Participants who live outside the Helena area may not use personal automobiles without the express written permission of their delegation advisor and their parent or legal guardian.
6. Each participant is legally and financially liable for removal, defacement, or damage of public or private property including the property of other participants, advisors, staff, schools, the Capitol, businesses, and lodging facilities.
7. Historic preservation of the State Capitol is of utmost importance. Continued use of the Capitol depends upon its proper treatment. Therefore:
a) Behavior with the potential to damage the furnishings or equipment of the Capitol is not allowed.
b) Materials and property in the Capitol must not be relocated, removed or tampered with in any manner.
c) Food and drink at the Capitol may only be consumed in specifically designated areas of the building.
d) Smoking is not allowed anywhere in the building. e) Materials are not to be taped, tacked, or otherwise
attached to walls, desks, or any other surface of the Capitol except in specifically designated areas.
f) Participants and advisors are to show the utmost respect to all individuals visiting or working at the Capitol and the Capitol Complex.
8. Identification badges must be worn by all participants and advisors during all functions. No one will be admitted to any function without a name tag.
9. Possession or use of tobacco, alcohol, controlled substances, or weapons is not permitted 24 hours a day during all days of the Montana YMCA Youth and Government Session and related programs.
10. Non-participants are not permitted at any activity without the express consent of the State Program staff.
11. Keeping with the model nature of the program, materials from “real” political campaigns outside the Youth and Government program are not to be worn, displayed, or distributed during the program. This rule only affects issues or candidates that are going to appear on real ballots.
12. Outside guests at lodging facilities are not permitted without the express consent of the delegation advisor and the participant’s parent or legal guardian.
13. Participants shall not leave lodging facilities without permission from their advisors.
14. Participants and advisors lodging at Fort Harrison are required to follow all regulations set by Fort Harrison management.
15. Curfews and additional rules for participants while they occupy lodging facilities will be set and enforced by delegation advisors.
16. This code serves as a minimum standard for behavior. If there is a conflict between school/delegation rules and this code, participants and advisors are to observe the stricter set of rules.
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Consequences This code is enforced with a series of potential consequences for infractions, depending on the nature and severity of the offense. In ascending order, they include:
a) Discussion of infraction with adult advisors or staff b) Suspension from specific activities c) Specialized consequence at discretion of Staff or Advisor d) Loss of position or privileges e) Call to parents, legal guardian, or school officials f) Expulsion from program/Send home (at own expense) g) Contact with law enforcement
Enforcement Guidelines Code violations should be handled as follows:
1. Code infractions by individuals within a delegation should be handled by the delegation’s advisor whenever possible. 2. Code infractions by individuals outside a delegation should first be brought to the attention of that delegation’s advisor(s)
before the state program staff. 3. Code infractions may be brought to the state director when they are not, cannot, or should not be handled within a delegation
by its own advisors. 4. If 911 is called, the state program staff must be notified immediately after the call is made.
YMCA Mission and Character Development Mission Statement: “The Helena Family YMCA is a non-profit organization dedicated to building self-esteem and enriching spirit, mind, and body for persons of all ages and economic levels.” Character Development is an important part of the mission and values of the YMCA. The YMCA challenge to Youth and Government participants is to accept and demonstrate the positive values of Caring, Honesty, Respect, and Responsibility. Dress Code Attire reflects individual personal attitude and the quality, purpose and dignity of the program.
• The dress code applies to advisors as well as participants. Advisors are expected to enforce the dress code within their own delegations.
• Clothing at all events should be clean and in good repair, free of visible holes or ragged edges. Shoelaces must be tied. • Costumes are not allowed. Judicial robes may be worn by appropriate members of the court program. • Individuals may wear small buttons, badges, ribbons or other insignia related to Youth and Government activities. However,
content must reflect the letter and spirit of the Youth and Government Code of Conduct. • Exceptions to this policy may be considered by the state office on a case by case basis.
SPECIFICALLY:
• Professional attire is expected at the State Capitol. Casual clothes are not appropriate, including shorts, jeans, printed T-Shirts, and items with visible holes or ragged edges.
• Suits or jackets are encouraged, but not mandatory. • All men/boys should wear collared shirts tucked in and long pants. Ties are encouraged. • All women/girls should wear either skirts or pants with appropriate top, dresses, or pantsuits. • Casual dress (khaki pants, walking shorts, t-shirts without printing, sandals) is acceptable on the first day when there are
outdoor activities planned. • Casual wear (shorts, jeans, tennis shoes, swimming suits) is acceptable during Y-Night. • Semi-formal or professional attire is appropriate at the Governor's Banquet.
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