State v. Vickers, 97-502

• Decision Date: 20 August 1998
• Docket Number: No. 97-502,97-502
• Citation: 1998 MT 201,290 Mont. 356,964 P.2d 756
• Parties: , 1998 MT 201 STATE of Montana, Plaintiff and Appellant, v. Byron Dean VICKERS and Patricia Elaine Vickers, Defendants and Respondents.
• Court: Montana Supreme Court

Page 756

964 P.2d 756

290 Mont. 356, 1998 MT 201

STATE of Montana, Plaintiff and Appellant, v. Byron Dean VICKERS and Patricia Elaine Vickers, Defendants and Respondents.

No. 97-502.

Supreme Court of Montana.

Submitted on Briefs April 16, 1998.

Decided Aug. 20, 1998.

Joseph P. Mazurek, Attorney General, C. Mark Fowler, Assistant Attorney General, Helena; Gerald Navratil, Dawson County Attorney, Scott W. Herring, Deputy Dawson County Attorney, Glendive, for Plaintiff and Appellant.

Lorraine A. Schneider, Simonton, Howe, Schneider, Glendive, for Defendants and Respondents.

HUNT, Justice.

¶1 On October 29, 1996, Byron Dean Vickers and Patricia Elaine Vickers(collectively the Vickers) were each charged by information in the Seventh Judicial District Court, Dawson County, with felony theft and several counts of felony and misdemeanor drug-related offenses. By order of the District Court, the two actions were joined. On January 15, 1997, the Vickers filed a motion to suppress evidence seized pursuant to two search warrants issued on October 12 and 14, 1996, claiming that the substitute justice of the peace who issued the warrants, Mitzi Barney, was not duly authorized to act as substitute justice of the peace. On June 11, 1997, the District Court issued its memorandum and order granting the Vickers' motion to suppress. The State of Montana (the State) appealed. We affirm the order of the District Court.

¶2 The sole issue on appeal is whether Mitzi Barney was duly authorized to act as substitute justice of the peace pursuant to §§ 3-10-202(1) and -231, MCA (1995), when she issued the October 12 and 14, 1996 search warrants.

BACKGROUND

¶3 Robert A. Larsen (Judge Larsen) was the duly elected justice of the peace for Dawson County at all times pertinent to this action. Judge Larsen's current term of office began in January 1995. Within thirty days after the commencement of his new term, Judge Larsen selected three persons, including Mitzi Barney (Barney), to serve as substitute justices of the peace in his absence. Although Judge Larsen did not memorialize his selections on a separate list as required by § 3-10-231(2), MCA, he submitted to the Commission on Courts of Limited Jurisdiction (Commission) written requests for waivers of training for the proposed substitutes in accordance with § 3-10-231(2), MCA, and Rule 5C, Commission Rules. The Commission approved the waiver of training for Barney on July 18, 1995. On March 7 ¶4 On October 12, 1996, Judge Larsen notified the Glendive Police Department dispatcher that he would be out of town October 12-14, 1996, and that either Wibaux County Justice of the Peace Bill Franks (Judge Franks), Prairie County Justice of the Peace Fran Fleckenstein (Judge Fleckenstein), or Mitzi Barney, could act as substitute justice of the peace in his absence. Judge Larsen did not call Judge Franks, Judge Fleckenstein, or Barney directly to request that they be substitute justices in his absence.

1995, a written oath of office was administered to Barney pursuant to § 3-10-202(1) and-231(2), MCA. However, the oath administered to Barney did not exactly conform to the oath of office prescribed for judicial officers in Article III, Section 3 of the Montana Constitution, and § 3-10-202(1), MCA. The oath administered to Barney contained the same pledge to protect and defend the Constitutions of the United States and Montana, but omitted the pledge to "discharge the duties of my office with fidelity," and replaced it with the pledge to "serve in the capacity of substitute Justice of the Peace or City Judge to the best of my abilities."

¶5 That same day, October 12, 1996, Dawson County Sheriffs Deputy Wally Peter (Deputy Peter) applied for a warrant to search the Vickers house for drug-related evidence and contraband. Deputy Peter first tried to contact Judge Franks without success. Deputy Peter then contacted Judge Fleckenstein. Judge Fleckenstein told Deputy Peter she had little experience with search warrant applications, and suggested that he call another justice of the peace with more experience in the area of search warrants. Deputy Peter then contacted Barney, who agreed to come to the courthouse to act as substitute justice of the peace. Barney reviewed Deputy Peters application and, finding probable cause to search, issued the search warrant.

¶6 Two days later, on October 14, 1996, Deputy Peter applied for a second warrant to search the Vickers' vehicles. For approval of the second warrant, Deputy Peter directly contacted Barney, without first trying to contact Judge Franks or Judge Fleckenstein. Barney reviewed the application and issued the second search warrant.

¶7 Execution of the two search warrants led to the seizure of five pounds of marijuana and methamphetamine, other drug-related contraband, and stolen property. The Vickers were each charged with several felony and misdemeanor drug offenses and felony theft. The Vickers filed a motion to suppress the evidence obtained during the two searches on the ground that Barney was not a duly authorized justice of the peace when she issued the search warrants.

¶8 The court granted the Vickers' motion based on two procedural errors in securing the validity of the search warrants. First, the court found several procedural flaws in securing Barney's authority to act as substitute justice of the peace pursuant to §§ 3-10-202(1) and -231, MCA, and Potter v. Dist. Ct. of 16th Jud. Dist. (1994), 266 Mont. 384, 391, 880 P.2d 1319, 1324. Second, the court found that Judge Larsen failed to use the proper method of calling in a substitute justice of the peace as prescribed by § 3-10-231, MCA, and Potter, 266 Mont. at 391, 880 P.2d at 1324. The court concluded that these procedural errors rendered the search warrants issued by Barney void ab initio. In reaching this conclusion, the court relied heavily on Potter. The court stated:

Action by substitute justices is strictly controlled.... The plain meaning interpretation of the statutes involved here is mandated, not merely directory.... The failure to have search warrants issued by a properly appointed, independent magistrate renders them void. While in the instant case, there was substantial compliance with the qualified requirements, it appears clear from the holding in Potter, supra, that only properly qualified persons may act as judges.... [T]he teachings of Potter are clear: unless the statutory procedures and Commission Rules imparting judicial authority are faithfully honored, no such authority exists.... Judicial authority should not [sic] and is not easily given; "close enough" is an inappropriate and unacceptable standard. The authorization statute provides legitimacy to the court and justices, and serves to protect citizens'

rights. To meet these goals, the statute must be followed. (Citations omitted.)

DISCUSSION

¶9 Was Mitzi Barney duly authorized to act as substitute justice of the peace pursuant to §§ 3-10-202(1) and -231, MCA (1995), when she issued the October 12 and 14, 1996 search warrants?

¶10 This Court reviews a district court's findings of fact regarding suppression hearing evidence to determine whether they are clearly erroneous. State v. Hermes (1995), 273 Mont. 446, 449, 904 P.2d 587, 588-89. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if this Court is left with a definite and firm conviction that the District Court made a mistake. Hermes, 273 Mont. at 449, 904 P.2d at 589. We review a district courts conclusions of law de novo to ensure that the courts interpretation of the law was correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

¶11 We note at the outset that the Montana Legislature enacted significant amendments to § 3-10-231, MCA, effective March 25, 1997. See 1997 Mont. Laws, Ch. 150. These amendments were enacted in response to Potter, where we raised concerns regarding the efficacy of the statutory qualification procedures for substitute justices of the peace. 1997 Mont. Laws, Ch. 150; Potter, 266 Mont. at 394-95, 880 P.2d at 1326-27 (Turnage, C.J., concurring). The amendments to § 3-10-231, MCA, went into effect after the events giving rise to this action occurred, but before the District Court issued its ruling. We have held that the canon of statutory construction which states that courts should apply the law in effect at the time it renders its decision applies only to the application of judicial decisions, not to the application of statutes, ordinances, or regulations. Porter v. Galarneau (1996), 275 Mont. 174, 184-85, 911 P.2d 1143, 1149-50 (holding that pursuant to § 1-2-109, MCA, a statute is not retroactive unless expressly so declared). Because no clause appears in the 1997 amendments to § 3-10-231, MCA, making them retroactive, we must apply the pre-1997 version of § 3-10-231, MCA, to this case.

%p 12 Montana law provides specific procedures for authorizing persons to act as a substitute justice of the peace. As of October, 1996, Montana law provided that before a person is legally qualified to serve as a substitute justice of the peace, the following criteria must be met:

1. Within 30 days of taking office, the elected justice of the peace must provide a list of persons qualified to act in the sitting justice's absence when no other justice or city judge is available;

2. The persons listed must be of good moral character, and have community support, a sense of community standards, and a basic knowledge of court procedure;

3. The persons listed must receive a waiver of judicial training from the commission on courts of limited jurisdiction established by the Supreme Court; and

4. The persons listed must subscribe to the constitutional oath of office and file the oath with the county clerk.

Sections 3-10-231(2) and -202(1), MCA; Rule 5C, Commission Rules; Potter, 266 Mont. at 391, ...