Brogan, Matter of

• Decision Date: 02 July 1997
• Docket Number: No. 96-707,96-707
• Citation: 942 P.2d 100,283 Mont. 413
• Parties: In the Matter of Game Farm License Number 319 of Welch E. BROGAN
• Court: Montana Supreme Court

Page 100

942 P.2d 100

283 Mont. 413

In the Matter of Game Farm License Number 319 of Welch E. BROGAN

No. 96-707.

Supreme Court of Montana.

Submitted on Briefs May 30, 1997.

Decided July 2, 1997.

John H. Tarlow, Harris, Tarlow & Stonecipher, Bozeman, for Appellant.

Robert N. Lane, Department of Fish, Wildlife and Parks, Helena, for Respondent.

TURNAGE, Chief Justice.

Welch Brogan appeals from the order of the First Judicial District Court, Lewis and Clark County, affirming the findings of fact, conclusions of law, and order of the Montana Department of Fish, Wildlife and Parks (Department) revoking his game farm license for five years. We affirm.

The following issues are presented on appeal:

1. Did the Department deprive Brogan of a vested right and attach additional disabilities to events that occurred in 1989 when it 2. Did the Department violate the prohibitions against double jeopardy and ex post facto laws when it revoked Brogan's license pursuant to § 87-4-427, MCA, based upon his 1989 convictions?

revoked his license pursuant to § 87-4-423, MCA, and § 87-4-427, MCA?

BACKGROUND

Welch Brogan is the owner-operator of a game farm in Corwin Springs, Montana, where he breeds and raises elk for commercial sale. Since 1946 he has held Game Farm License No. 319. In May 1989, pursuant to § 87-1-201, MCA (1989), the Department cited Brogan with two counts of failing to maintain his fence to prevent entry of wild animals and one count of capturing wild elk, alleged to have occurred on February 7, 1989. Brogan was convicted on all counts in Park County Justice Court and convicted again in District Court. We affirmed in State v. Brogan (1993), 261 Mont. 79, 862 P.2d 19.

In November 1993, pursuant to § 87-4-423, MCA, and § 87-4-427, MCA, the Department commenced administrative proceedings to revoke Brogan's license based on his 1989 convictions, a 1993 conviction for possession of unlawfully taken wildlife in violation of § 87-3-118(2), MCA (1991), which we affirmed in State v. Brogan (1995), 272 Mont. 156, 900 P.2d 284, and willful misconduct of a game farm operation which occurred at the same time as the acts supporting the 1993 conviction.

Before the revocation hearing, Brogan and the Department stipulated that Brogan's 1989 convictions would alone be sufficient grounds for revocation of his license if the 1993 game farm statutes applied to his convictions. The hearing examiner entered findings, conclusions, and a proposed order which recommended that Brogan's license be revoked for five years. The Department adopted the hearing examiner's findings and conclusions and entered its order revoking Brogan's license for five years. Brogan petitioned for judicial review pursuant to § 2-4-702, MCA. He did not dispute the hearing examiner's findings, but asserted that the Department's application of § 87-4-427(1)(d), MCA, to revoke his license violated state law by retroactively applying a statute and violated his constitutional right against ex post facto legislation and double jeopardy.

The District Court affirmed the Department's order, concluding that the Department did not violate state law by retroactively applying § 87-4-427, MCA, because before 1993 Brogan was under a duty to operate his game farm in accordance with game farm statutes and regulations. The court also concluded that revocation of Brogan's license did not violate the prohibition against ex post facto legislation or double jeopardy because the primary goal of the revocation was remedial and was not designed to punish Brogan.

Brogan appeals.

DISCUSSION

1. Did the Department deprive Brogan of a vested right and attach additional disabilities to events that occurred in 1989 when it revoked his license pursuant to § 87-4-423, MCA, and § 87-4-427, MCA?

This Court reviews an agency's conclusions of law to determine whether its interpretation of the law is correct. Steer, Inc., v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

Section 1-2-109, MCA, provides, "No law contained in any of the statutes of Montana is retroactive unless expressly so declared." A retroactive law "takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions already passed." Porter v. Galarneau (1996), 275 Mont. 174, 183, 911 P.2d 1143, 1148-49.

Brogan argues that the Department's attempt to revoke his license pursuant to § 87-4-423, MCA, and § 87-4-427, MCA, violates § 1-2-109, MCA, because it takes away or impairs his vested right in his license and increases the disabilities attached to his 1989 convictions. The Department responds that Brogan's 1989 conduct would have been grounds for revocation under the pre-1993 statutes and their 1993 amendments. Therefore, the amended statutes do not increase the disabilities associated with Brogan's conduct.

Brogan's violations of § 87-1-201, MCA (1989), were grounds to revoke his license in 1989. Before § 87-4-423, MCA, and § 87-4-427, MCA, became effective on April 12, 1993, pursuant to 1993 Mont. Laws, ch. 315, §§ 12-13, Brogan had a duty to comply with statutes and administrative rules concerning the operation of his game farm.

Since 1983 it has been unlawful to capture game animals for use on a game farm. Section 87-4-418, MCA. Beginning in 1984, game farm operators have been required to follow certain fencing regulations. Rule 12.6.1503, ARM (1984) (repealed 1992). When Brogan violated § 87-1-201, MCA (1989), in 1989, prior to the amendment of § 87-4-423, MCA, and the enactment of § 87-4-427, MCA, the Department already could have revoked his license if he failed to operate his game farm according to statutory provisions or administrative rules. See § 87-4-423, MCA (1983). Section 87-4-423, MCA, and § 87-4-427, MCA, were not new sanctions against Brogan. They were additional means of enforcing Brogan's already-existing legal obligations associated with the operation of his game farm. The Department did not deprive Brogan of a vested right or attach additional disabilities to his 1989 convictions. Therefore, we hold that the Department did not apply § 1-2-109, MCA, retroactively when it revoked Brogan's game farm license pursuant to § 87-4-423, MCA, and § 87-4-427, MCA.

2. Did the Department violate the prohibitions against double jeopardy and ex post facto laws when it revoked Brogan's license pursuant to § 87-4-427, MCA, based upon his 1989 convictions?

Whether the Double Jeopardy or the Ex Post Facto Clauses are implicated in the government's course of conduct against an individual is a question of constitutional law. Therefore, our review is plenary. State v. Schnittgen (1996), 277 Mont. 291, 295, 922 P.2d 500, 503; State v. Brander (1996), 280 Mont. 148, ----, 930 P.2d 31, 33, 53 St.Rep. 1340, 1341.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Article II, Section 25 of the Montana Constitution provides that no person shall "be again put in jeopardy for the same offense previously tried in any jurisdiction." For purposes of this opinion we treat the protections afforded by both provisions as co-extensive and will refer to both clauses collectively in the singular. See Schnittgen, 922 P.2d at 503.

The Double Jeopardy Clause protects against three distinct abuses: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65; City of Helena v. Danichek (1996), 277 Mont. 461, 463, 922 P.2d 1170, 1172.

We first consider Brogan's double jeopardy claim. Brogan argues that the third situation described in Pearce applies because the Department is punishing him twice by revoking his license for the same offenses which were already the subject of criminal actions against him. In support of his argument he cites United States v. Halper (1989), 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487.

In Halper, the defendant falsified sixty-five Medicare claims to obtain a $585 overpayment. The government successfully prosecuted him for fraud and he was fined and sentenced to prison. At the conclusion of the criminal proceeding, the government commenced an action for a statutory civil penalty under the False Claims Act which would have imposed an additional fine of $130,000. The issue before the Court was whether and under what circumstances a civil penalty may constitute punishment for purposes of double jeopardy analysis. Halper, 490 U.S. at 436, 109 S.Ct. at 1895.

The Supreme Court held that double jeopardy protections prohibit subjecting a defendant who has been punished in a criminal prosecution to an additional civil sanction "to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." Halper, 490 U.S. at 449, 109 S.Ct. at 1902. The Court concluded that the imposition of the full statutory amount violated double jeopardy protections by punishing Halper a second time for the same conduct for which he had been convicted. Halper, 490 U.S. at 451, 109 S.Ct. at 1902.

Brogan argues Halper is not narrowly confined to a civil fine, but that it applies to any civil penalty, such as the revocation imposed by the Department. We decline to adopt such a broad reading of Halper. In United States v. Ursery (1996), 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549, the United States Supreme Court emphasized that Halper is a rare case and restricted its holding to monetary civil penalties:

Whether a particular sanction "cannot fairly be said solely to serve a remedial purpose" is an inquiry radically different from that we have traditionally employed in order to determine whether, as...