State v. Conrad
Decision Date | 12 April 1982 |
Docket Number | No. 81-314,81-314 |
Citation | 197 Mont. 406,39 St.Rep. 680,643 P.2d 239 |
Parties | STATE of Montana, Plaintiff and Appellant, v. Germaine D. CONRAD and Robert F. Palmer, Defendants and Respondents. |
Court | Montana Supreme Court |
Mike Greely, Atty. Gen., Helena, Robert L. Deschamps, III, argued, Missoula, for plaintiff and appellant.
Moses Law Firm, Charles F. Moses, argued, Billings, Edward A. Cummings, argued, Missoula, for defendants and respondents.
This is an appeal from an order denying the State's motion for leave to file an information charging the defendants with official misconduct. We affirm.
The facts disclose that defendant Robert Palmer was sworn in as a Missoula County Commissioner on the morning of January 5, 1981. Defendant Germaine Conrad was already a County Commissioner. The third County Commissioner was Barbara Evans. Charles Brooke was the Commission's administrative officer.
Later on that same day, after Palmer had been sworn in, he and Conrad met to discuss a reorganization plan for staff personnel. Following the meeting, Brooke was directed to make up documents to outline and implement the plan that had been approved by Conrad and Palmer. Brooke was to have the supporting documents prepared in time for the commissioners' meeting scheduled for the next day, January 6. At that time the plan was to be presented to the third commissioner, Barbara Evans. Evans did not participate in any of the discussions. Both respondents admit they consciously excluded Evans from the discussions and did not want her to know about them or the reorganization plan prior to the January 6 board meeting.
Thereafter, the incident was investigated by the Missoula County Attorney and the Attorney General. They concluded that there was probable cause to believe that there had been a violation of Montana's open meeting law and the official misconduct statute, section 45-7-401(1)(e), MCA. The pertinent open meeting statutes and the official misconduct statute are set out below:
On March 6, 1981, the County Attorney filed an affidavit and motion for leave to file an information charging the defendants with official misconduct. The affidavit set forth facts essentially as outlined above. On April 27, 1981, the District Court denied the State's motion by an opinion and order. This appeal followed.
The issues on appeal are:
1. Whether the allegations in the affidavit establish probable cause that the defendants committed the crime charged.
2. Whether section 45-7-401(1)(e), MCA, is void for vagueness.
We affirm the trial court's decision and find the State's motion for leave to file an information was properly denied.
Initially, we find the affidavit establishes probable cause of a violation of Montana's open meeting law. The allegations in the affidavit must be taken as true. See, Little v. Rhay (1973), 8 Wash.App. 725, 509 P.2d 92, and State v. Wolfe (1968), 156 Conn. 199, 239 A.2d 509. These allegations directly allege that Brooke's plan was approved by Palmer and Conrad on January 5 and that "both (Palmer and Conrad) admitted that they consciously excluded Evans from their discussions and did not want her to know about them or their reorganization plan prior to the January 6th Board Meeting." We have previously held that a county commissioners' meeting conducted between two commissioners by telephone in which the third commissioner had no notice and did not participate violated Montana's open meeting law. Board of Trustees etc. v. Board of County Commissioners (1980), Mont., 606 P.2d 1069, 37 St.Rep. 175.
In Board of Trustees, supra, we held:
"The record also indicates that due to the framework in which the meeting was held, i.e., by means of telephone conversation, and due to the fact that Commissioner McClintock was not informed of the meeting, it was not an 'open meeting' as required in Montana...
"This type of clandestine meeting violates the spirit and letter of the Montana Open Meeting Law." 606 P.2d at 1073, 37 St.Rep. at 180.
Having found that probable cause existed under the allegations of the affidavit, we next consider whether section 45-7-401(1)(e), MCA, is void for vagueness. In doing so we note the legislative history of the open meeting law contained in the District Judge's scholarly opinion and order:
In Connally v. General Construction Co. (1926), 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, the United States Supreme Court established a standard for the determination of vagueness which has been followed to this day:
"That 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, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law." 269 U.S. at 391, 46 S.Ct. at 127, 70 L.Ed. at 328.
The Court reiterated this standard in Winters v. New York (1948), 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840, quoting from State v....
To continue reading
Request your trial-
State v. Stanko, 98-106
...of the conduct prohibited and to provide a meaningful differentiation between culpable and innocent conduct. State v. Conrad (1982), 197 Mont. 406, 412, 643 P.2d 239, 242-43; State v. Bush (1981), 195 Mont. 475, 478-79, 636 P.2d 849, 851. However, "statutes are not automatically invalidated......
-
Goyen v. City of Troy
...sworn statement, the meeting was still subject to the open meeting laws set forth in §§ 2-3-201 through -221, MCA. In State v. Conrad (1982), 197 Mont. 406, 643 P.2d 239, we reviewed the legislative history of the open meeting law and said, "while the original section [now § 2-3-203, MCA] r......
-
State v. Stanko
...be required to speculate as to whether his contemplated course of action may be subject to criminal penalties. State v. Conrad, 197 Mont. 406, 412, 643 P.2d 239, 243 (1982). State v. Crisp (1991), 249 Mont. 199, 202, 814 P.2d 981, ¶23 In Grayned v. City of Rockford (1972), 408 U.S. 104, 92 ......
-
Eatinger v. First Nat. Bank of Lewistown
...the irregular endorsements. This sworn affidavit must be taken as true on motion for summary judgment. See, State v. Conrad (1982), Mont., 643 P.2d 239, 39 St.Rep. 680. The notice here was certainly given within a reasonable time under section 30-4-207(4), MCA. See, Twellman, supra, where t......