                                                                                      September 18 2015


                                          DA 13-0565
                                                                                      Case Number: DA 13-0565

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2015 MT 279



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

LOUIS THOMPSON,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DC 12-309A
                       Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Wade Zolynski, Chief Appellate Defender, Chad R. Vanisko, Assistant
                       Appellate Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Michael S. Wellenstein,
                       Assistant Attorney General, Helena, Montana

                       Ed Corrigan, Flathead County Attorney, Kalispell, Montana



                                                   Submitted on Briefs: August 12, 2015
                                                              Decided: September 18, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Louis Thompson appeals from an order of the Eleventh Judicial District Court,

Flathead County, affirming the Justice Court’s denial of Thompson’s motion to dismiss.

In 2011, the State charged Thompson with driving under the influence of alcohol or

drugs. Thompson filed a motion to dismiss in Justice Court under § 46-13-401(2), MCA,

on the basis that he had not been brought to trial within six months of entering his

not-guilty plea. The Justice Court denied the motion, and the District Court affirmed,

both concluding that good cause existed to hold Thompson’s trial past the six-month

deadline provided in § 46-13-401(2), MCA.            On appeal to this Court, Thompson

seemingly concedes that pursuant to our decision in State v. Luke, 2014 MT 22, 373

Mont. 398, 321 P.3d 70, the Justice Court correctly denied his motion to dismiss.

However, Thompson requests that we overrule Luke. We decline to do so. We affirm the

decisions of the Justice Court and District Court.

¶2     We address the following issue on appeal: whether good cause existed for the

Justice Court to conduct Thompson’s trial past the six-month deadline provided in

§ 46-13-401(2), MCA.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     On October 11, 2011, the State charged Thompson with driving under the

influence of alcohol or drugs (DUI). On the same day, Thompson appeared in Justice

Court and pled not guilty. Thompson’s acknowledgment of rights upon his plea of not

guilty provided, in part: “I understand that I am required to attend an omnibus hearing



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and pretrial conference. I understand that if I fail to attend either the omnibus hearing or

the pretrial conference that I will have waived my right to a jury trial.”

¶4     The Justice Court conducted an omnibus hearing on December 27, 2011.

Thompson and his counsel appeared in person. The omnibus order, which Thompson

and his counsel both signed, stated that “if either party requests a jury trial, the court will

send the parties notice of the jury trial date and will set a pretrial conference a week

before trial.” The order further provided that the party requesting a jury trial shall

“[a]ppear and confirm the party’s intention to proceed to trial by jury.” The order

concluded with the following warning:

       If the party requesting a jury trial either fails to appear at the pretrial
       conference and to confirm the party’s intention to proceed to trial by jury or
       fails to file and serve proposed jury instructions and verdict form at or
       before the pretrial conference, the party shall be deemed to have waived the
       party’s right to trial by jury and the jury trial shall be vacated and the case
       re-set by the Court for a bench trial at the next available time.

Thompson requested a jury trial.

¶5     On December 29, 2011, the Justice Court notified Thompson that a jury trial

would be held on March 22, 2012 and that the pretrial conference would be held on

March 16, 2012. The notice of the pretrial conference stated: “The court hereby orders

the personal attendance of the defendant at this hearing.” Like the omnibus order, the

notice warned Thompson that if he failed to appear at the pretrial conference and confirm

his intention to proceed to trial by jury, he shall be deemed to have waived his right to

trial by jury and the “jury trial shall be vacated and the case re-set by the Court for a

bench trial at the next available time.”


                                              3
¶6     Thompson’s counsel appeared at the March 16, 2012 pretrial conference, but

Thompson did not appear. As a result of Thompson’s failure to appear at the conference,

the Justice Court vacated the March 22, 2012 jury trial and reset the case for a bench trial

on April 30, 2012.1

¶7     On May 1, 2012, Thompson filed a motion to dismiss the case on the basis that

trial was being held beyond the six-month deadline imposed by § 46-13-401(2), MCA.

The Justice Court denied Thompson’s motion, concluding that there was good cause for

the delay. The court found that if Thompson had appeared at the pretrial conference, the

scheduled March 22, 2012 jury trial would have occurred and Thompson would have

been brought to trial within six months after pleading not guilty. The court found that

Thompson’s “vacating of the jury trial is what necessitated finding additional time or

other time on the court’s calendar aside from Thursdays . . . which is the day reserved for

jury trials in this court and the next time available on the court’s calendar for a one-hour

bench trial . . . was April 30, 2012.” After the court denied Thompson’s motion, he pled

guilty to DUI and the court sentenced him to a six-month sentence, with all but 24 hours

suspended. Thompson reserved his right to appeal the denial of his motion to dismiss for

lack of a speedy trial.

¶8     Thompson appealed his conviction to the District Court, which affirmed the denial

of his motion to dismiss. The District Court reasoned that the delay in the trial was

attributable to Thompson, because there was a direct connection between Thompson’s

1
 The bench trial was later continued to accommodate a material witness. Thompson does not
contend that the Justice Court improperly continued the bench trial beyond the April 30, 2012,
date.
                                              4
failure to appear at the pretrial conference and the delay in his trial. The court noted that

Thompson had been clearly advised that if he failed to appear at the pretrial conference,

his jury trial would be vacated and a bench trial would be rescheduled for the Justice

Court’s next available date. The District Court concluded that good cause existed to

justify the delay in Thompson’s trial.

¶9     Thompson appeals.

                               STANDARD OF REVIEW

¶10    Whether the right to a speedy trial under § 46-13-401(2), MCA, has been violated

is a question of law, which we review for correctness. Luke, ¶ 10.

                                         DISCUSSION

¶11 Whether good cause existed for the Justice Court to conduct Thompson’s trial past
the six-month deadline provided in § 46-13-401(2), MCA.

¶12    Section 46-13-401(2), MCA, provides that “[a]fter the entry of a plea upon a

misdemeanor charge, the court, unless good cause to the contrary is shown, shall order

the prosecution to be dismissed, with prejudice, if a defendant whose trial has not been

postponed upon the defendant’s motion is not brought to trial within 6 months.” The

statute itself serves as the “sole standard of whether ‘good cause’ for the delay has been

shown.” State v. Bertolino, 2003 MT 266, ¶ 13, 317 Mont. 453, 77 P.3d 543 (citing State

v. Ronningen, 213 Mont. 358, 362, 691 P.2d 1348, 1350 (1984)). “Good cause

necessarily depends on the totality of the facts and circumstances of the particular case.”

Luke, ¶ 15.




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¶13       In Luke, we held, under facts that are indistinguishable from the case at bar, that

the justice court had good cause for conducting the defendant’s trial beyond the

six-month deadline provided in § 46-13-401(2), MCA. Luke, ¶ 22. In that case, the State

charged Luke with five misdemeanor offenses in Flathead County Justice Court.2 Luke,

¶ 3. Luke indicated his desire to be tried by a jury and the court warned him that if he

failed to personally appear at the pretrial conference his jury trial would be vacated and a

bench trial would be scheduled. Luke, ¶ 4. Like Thompson, Luke failed to appear at the

conference. Luke, ¶ 5. As a result, the justice court vacated his jury trial and scheduled a

bench trial at the next available date on the court’s calendar, which was eight days past

the six-month deadline. Luke, ¶ 6. On the day of the bench trial, Luke moved to dismiss

his case on speedy trial grounds, arguing that trial was being held beyond the deadline

imposed by § 46-13-401(2), MCA. Luke, ¶ 6. The justice court denied the motion,

reasoning that good cause existed to hold the trial past the deadline, based on Luke’s

failure to appear at the pretrial conference, which necessitated delay. Luke, ¶ 7.

¶14       On appeal to this Court, Luke asserted that his failure to attend the “pretrial

conference did not disrupt the Justice Court’s schedule,” and posited that with the jury

trial already scheduled the court “should have simply converted” the jury trial date into a

bench trial date and heard evidence that day. Luke, ¶ 18. We affirmed the justice court.

We explained that a justice court “must retain a measure of flexibility over scheduling to

hear cases on its docket.” Luke, ¶ 19 (quoting State v. Fitzgerald, 283 Mont. 162, 167,

940 P.2d 108, 111 (1997)). We rejected the rule proposed by Luke that would have

2
    The justice court in Luke was the same justice court in this case.
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required a court to convert a scheduled jury trial into a bench trial when the defendant has

waived his right to a jury trial by failing to appear at a mandatory pretrial conference.

Luke, ¶ 19. We reasoned:

       In this State, we do not have juries available on standby for one defendant,
       waiting to see whether that defendant will plead guilty, request a
       continuance, or request a bench trial. Trial courts, therefore, must
       maximize the presence of a jury panel by setting several trials on the day
       for which it has issued juror summonses. . . . [T]his is, in fact, the only way
       in which Montana trial courts can assure defendants that they will receive
       the jury trial to which each of them is entitled.

Luke, ¶ 19. Luke also relied heavily on State v. Bertolino, 2003 MT 266, 317 Mont. 453,

77 P.3d 543, in which we held that Bertolino’s passive disregard for court-ordered

deadlines did not constitute good cause for delaying her trial beyond the six-month time

limit. Bertolino, ¶ 15. We distinguished Bertolino by explaining that “[u]nlike Bertolino,

where there was no indication that Bertolino’s failure to comply with court orders

necessitated a continuance of the trial, there is a clear and direct connection between

Luke’s failure to appear punctually for the pretrial conference and his trial date[] being

rescheduled” beyond the six-month deadline. Luke, ¶ 17.

¶15    Here, in arguing the State failed to establish good cause for the delay in his case,

Thompson concedes that Luke is factually indistinguishable, but contends that Luke

should be revisited.   To support his contention, Thompson reiterates Luke’s former

arguments. He argues that his absence from the court-ordered pretrial conference “was a

mere technicality,” posits that the court should have simply “conducted a bench trial

during the time scheduled for a jury trial,” and relies heavily on Bertolino. Additionally,



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Thompson relies on this Court’s recent decision in City of Helena v. Broadwater, 2014

MT 185, 375 Mont. 450, 329 P.3d 589, and argues it also supports reversal of Luke.

¶16   We have explained that under the doctrine of stare decisis “principles of law

should be positively and definitely settled in order that courts, lawyers, and, above all,

citizens may have some assurance that important legal principles involving their highest

interests shall not be changed from day to day, with the resultant disorders that of

necessity must accrue from such changes.” Certain v. Tonn, 2009 MT 330, ¶ 19, 353

Mont. 21, 220 P.3d 384 (quoting St. ex rel. Sparling v. Hitsman, 99 Mont. 521, 525, 44

P.2d 747, 749 (1935)) (internal brackets omitted). While stare decisis is not a rigid

doctrine that “forecloses the reexamination of cases when necessary, ‘weighty

considerations underlie the principle that courts should not lightly overrule past

decisions.’”   Certain, ¶ 19 (quoting Allstate Ins. Co. v. Wagner-Ellsworth,

2008 MT 240, ¶ 39, 344 Mont. 445, 188 P.3d 1042).

¶17   We decline to revisit Luke as we continue to find our reasoning there persuasive.

We again reject the adoption of a rule that would require a court to convert a scheduled

jury trial into a bench trial to accommodate the defendant’s right to be brought to trial

within six months when the defendant has waived his right to a jury trial by failing to

appear at a court-ordered pretrial conference. Luke, ¶ 19. A court “must retain a measure

of flexibility over scheduling to hear cases on its docket.”        Luke, ¶ 19 (quoting

Fitzgerald, 283 Mont. at 167, 940 P.2d at 111). As we explained in Luke, we do not have

juries available on standby in Montana, and thus trial courts “must maximize the presence

of a jury panel” by holding jury trials on the day for which they have issued juror

                                            8
summonses. Luke, ¶ 19. This is “the only way in which Montana trial courts can assure

defendants that they will receive the jury trial to which each of them is entitled.” Luke,

¶ 19.

¶18     We also find Thompson’s reliance on Broadwater to be misplaced.                     In

Broadwater, we held that the City failed to establish good cause for delaying

Broadwater’s trial beyond the six-month time limit. Broadwater, ¶ 19. There, the City’s

exclusive “good cause” argument for the delay was that the municipal court’s docket was

crowded. Broadwater, ¶ 18. In rejecting the City’s argument, we explained that the City

presented “no evidence of any actions it took in an attempt to ensure that Broadwater’s

trial would be held in a timely manner.”             Broadwater, ¶ 18.        Broadwater is

distinguishable from the instant case in the same way that we concluded in Luke that

Bertolino was factually distinguishable from that case.         Unlike in Broadwater and

Bertolino, where there was no connection between the defendant’s conduct and a delay in

the trial, here the delay, as in Luke, is directly attributable to the defendant. There existed

a “clear and direct connection” between Thompson’s failure to appear at the conference

and the delay in his trial. Luke, ¶ 17. The Justice Court provided Thompson with a jury

date within the six-month statutory period and had Thompson appeared at the

court-ordered pretrial conference he would have received a trial within that period.

Thompson’s failure to appear at the court-ordered pretrial conference directly caused his

trial to be continued past the six-month deadline provided in § 46-13-401(2), MCA.

¶19     The Justice Court “was not required to convert the jury trial into a bench trial in

order to accommodate [Thompson’s] speedy trial right when he had failed to comply

                                              9
with the court’s order requiring him to appear at the pretrial conference.” Luke, ¶ 19.

Thompson’s “notice of the pretrial conference, his notice of the consequences of not

appearing personally at the conference, his unexcused absence from the conference, and

the Justice Court’s prompt rescheduling of his trial constituted, together, good cause for

holding his trial” past the six-month deadline. Luke, ¶ 20

¶20    We conclude the Justice Court did not err in denying Thompson’s motion to

dismiss. We accordingly hold the District Court did not err in affirming the Justice

Court’s decision.

¶21    Affirmed.


                                                   /S/ LAURIE McKINNON

We concur:


/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE


Justice Michael E Wheat, dissenting.

¶22    My dissent in this case conforms to my dissent in State v. Luke, 2014 MT 22,

¶¶ 24-31, 373 Mont. 398, 321 P.3d 70. I conclude once again, under Bertolino, that a

defendant’s passive mistakes or omissions do not constitute “good cause” for purposes of

avoiding dismissal.     State v. Bertolino, 2003 MT 266, ¶¶ 14-16, 317 Mont. 453,

77 P.3d 543. Section 46-13-401(2), MCA, requires dismissal of a misdemeanor charge

against a defendant if, after the entry of a plea, the defendant is not brought to trial within


                                              10
six months, the State fails to show good cause for the delay, and trial has not been

delayed by any motion of the defendant. Thompson’s failure to personally appear at the

pre-trial hearing in this case is a technicality that did not delay process and, in my

opinion, does not meet the standard for “good cause” because the delay was not “[a

postponement] upon the defendant’s motion. . .”. Section 46-13-401(2), MCA.

¶23    Under Bertolino, the State has the burden of showing good cause for delay to

overcome its statutory obligation to bring the case to trial in six months. The State

cannot point to any motion or action taken by Thompson that delayed the trial date in this

case; it only points to Thompson’s failure to attend a hearing where his attorney was

present. By contrast, I note that this case is not similar to Fitzgerald where we found

“good cause” because Fitzgerald’s motions and conduct clearly delayed the proceedings

beyond the six-month deadline. Here, unlike Fitzgerald, there is no evidence in the

record showing similar conduct that is evidence of good cause. In my view, the State has

not met its burden of showing good cause for the delay sufficient to alleviate its statutory

obligation to bring the case to trial within six months.

¶24    Thompson and Luke both fall within a no man’s land between the clearly set out

rules in Bertolino and Fitzgerald. This situation is created by a justice court rule that the

State uses to the disadvantage of the defendants. Thompson and Luke both violated a

justice court requirement for personal appearance at the pre-trial conference that waived

their right to trial by jury, even though they were represented by counsel at the hearing.

While I respect the Justice Court’s significant workload and need for economy in docket

management, I do not believe it is proper to take away a defendant’s right to a jury trial
                                             11
based upon the failure of “personal appearance” at a pre-trial hearing when the

defendant’s attorney is present and can make final trial preparations. Further, the State

should not be using this technicality to its advantage to deprive defendants of a jury trial

and to further delay their trials beyond the six-month deadline.

¶25    The State has not shown “good cause” for its failure to bring Thompson to trial

within the period specified by the statute. I cannot join in the majority’s opinion that the

District Court correctly resolved this matter.     I would reverse the District Court’s

determination and grant Thompson’s motion to dismiss.


                                                 /S/ MICHAEL E WHEAT




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