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                                                                No. 98-176



                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 202




STATE OF MONTANA,

Plaintiff and Respondent,



v.



CLAY TAYLOR and KAREN TAYLOR,



Defendants and Appellants.




APPEAL FROM: District Court of the Sixteenth Judicial District,

In and for the County of Garfield,

The Honorable Joe L. Hegel, Judge presiding.




COUNSEL OF RECORD:


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For Appellants:



Clay Taylor and Karen Taylor, Pro Se, Jordan, Montana



For Respondents:



Hon. Joseph P. Mazurek, Attorney General; C. Mark Fowler,

Assistant Attorney General, Helena, Montana



Nickolas C. Murnion, Garfield County Attorney, Jordan, Montana



Elizabeth Horsman, Special Prosecutor, Helena, Montana




Submitted on Briefs: March 16, 2000

Decided: July 20, 2000

Filed:




__________________________________________

Clerk



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Justice Terry N. Trieweiler delivered the opinion of the Court.

    1. ¶By Information filed in the District Court for the Sixteenth Judicial District in
         Garfield County, the Defendant, Clay Taylor, was charged with two counts of
         impersonating a public servant, a misdemeanor, in violation of § 45-7-209, MCA
         (1993), and the Defendant, Karen Taylor, was charged with impersonating a public
         servant by accountability, a misdemeanor, in violation of § 45-7-209, MCA (1993),
         and § 45-2-302(3), MCA (1993). Following a jury trial, the Taylors were convicted
         of the charged offenses. The District Court sentenced the Taylors to a two-year
         deferred sentence, community service, a $500 fine per charge and other conditions.
         The Taylors appeal their convictions and sentences. We affirm in part and remand in
         part.
    2.   ¶The following issues are presented on appeal:
    3.   ¶1. Did the District Court err when it instructed the jury on § 45-7-209, MCA
         (1993), the impersonating a public servant statute?
    4.   ¶2. Was there sufficient evidence to support Karen Taylor's conviction for
         impersonating a public servant by accountability?
    5.   ¶3. Were the Taylors denied their right to a speedy trial?
    6.   ¶4. Were the Taylors' sentences illegal?
    7.   ¶5. Were the Taylors deprived of due process and equal protection?



                                                FACTUAL BACKGROUND

    1. ¶The Defendants, Clay and Karen Taylor, are husband and wife who live on and
       work their ranch in Garfield County. The Taylors are associated with persons who
       reside in and around Garfield County, known as the "Freeman." In early 1994,
       several of the group's members were suffering financial difficulties due to debts
       owed to creditors such as GMAC, the IRS, and the Federal Land Bank.
    2. ¶On January 27, 1994, Richard Clark, Dan Peterson, Rodney Skurdal, and Gary
       Clark entered the office of JoAnn Stanton, the Clerk and Recorder of Garfield
       County, while a crowd of approximately 30 other people gathered outside of
       Stanton's office. The four men requested that Stanton file and record a document
       entitled "Writ of Habeas Corpus," which they stated would allow them to establish
       their own supreme court in Garfield County. Following Stanton's refusal to file the


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       document without a proper filing fee, the four men informed Stanton that they were
       going to conduct their own supreme court in the Garfield County courtroom that day.
    3. ¶Following the group's declaration that they were going to conduct their own
       supreme court in the Garfield County courtroom, Stanton called county attorney,
       Nickolas Murnion, who informed the group that they could not use the courtroom.
       Garfield County Sheriff, Charles Phipps, also arrived and informed the group that
       they could not use the courtroom. However, the group decided to use the courtroom
       anyway. Sheriff Phipps did not attempt to stop the group from using the courtroom,
       but remained in the courtroom and videotaped the group's proceedings.
    4. ¶Richard Clark presided over the proceedings and announced that the group was
       establishing their own common law court. The group prepared several documents
       entitled "Writ of Attachment," which included the heading "Justices' Court" and
       listed Clay Taylor's name as "Justice." The group requested that Sheriff Phipps serve
       the various writs on the named parties and threatened to serve a Writ of Attachment
       on the Sheriff's personal property if he refused. The group then ended the
       proceedings and left the Garfield County courtroom.
    5. ¶On February 8, 1994, in response to the group's activities of January 27, 1994, the
       Garfield County Commissioners passed Resolution 94-11 which stated that the
       group's supreme court of Garfield County:

[I]s a fictitious court with no basis under the Montana Constitution or the statutes of
Montana and no facilities owned and controlled by Garfield County including the
Courtroom of the Garfield County Courthouse shall be available for use of said fictitious
"Supreme Court of Garfield County/comitatus" from this time forward; and



BE IT FURTHER RESOLVED that any future proceedings of said fictitious "Supreme
Court of Garfield County/comitatus" on Garfield County facilities shall be considered
criminal trespass . . . .



    1. ¶Following the Garfield County Commissioners' Resolution, Stanton received
        several documents that she was requested to file and record. The documents
        included the typed statement, "Justice of the peace in and for Garfield County" and
        then the written signature of Clay Taylor. Some of the documents also included
        Karen Taylor's written signature and the words "Jurat in Law: Honorable Justice


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       Karen Taylor, in and for Garfield county."
    2. ¶In March 1994, Renee Moomey, an attorney representing GMAC, filed a
       complaint in the Garfield County District Court against Gary and Penelope Despois
       in which she sought the payment of a $2000 arrearage owed for the Despois' truck
       or, alternatively, the truck's repossession. Subsequently, Moomey received two
       documents, both captioned "State of Montana vs. Renee L. Moomey," one entitled
       "Common Law Affidavit by Penelope S. DesPois, sui juris" and the other entitled
       "Summons." Both documents bore Clay Taylor's signature as "Justice of the Peace,"
       and the "Summons" bore the signature of Karen Taylor as a "common law witness"
       and "Jurat in Law." The documents were personally "served" on Moomey by Dan
       Peterson.
    3. ¶Don Dahlseide, of the Small Business Administration, was a loan officer working
       on collection of the debt of William and Agnes Stanton. Dahlseide informed the
       Stantons that their loan with the Small Business Administration was delinquent.
       Following Dahlseide's contact with the Stantons he received a document captioned
       "State of Montana vs. U.S. Small Business Administration, Don Dahlseide et al.,"
       and entitled "Common Law Affidavit by William L. Stanton." The document was
       signed by Clay Taylor as "Justice of the Peace."
    4. ¶On November 4, 1994, following a jury trial in the Garfield County Justice Court,
       Clay Taylor was convicted of two counts of impersonating a public servant and
       Karen Taylor was convicted of impersonating a public servant by accountability. On
       December 8, 1994, the Taylors filed a notice of appeal with the District Court.
       Accordingly, the State filed an Information with the District Court on January 30,
       1995, charging Clay Taylor with two counts of impersonating a public servant, a
       misdemeanor, in violation of § 45-7-209, MCA (1993), and the Defendant, Karen
       Taylor, with impersonating a public servant by accountability, a misdemeanor, in
       violation of § 45-7-209, MCA (1993), and § 45-2-302(3), MCA (1993). The
       Information charged the following:

That the Defendant, Clay Taylor, falsely pretended to hold a position in the public service,
namely Justice of the Peace, with the purpose to induce Don Dahlseide to submit to such
pretended official authority or otherwise to act in reliance upon that pretense to his
prejudice, by Defendant's actions in issuing a Common Law Affidavit . . . .



That the Defendant, Clay Taylor, falsely pretended to hold a position in the public service,
namely Justice of the Peace, with the purpose to induce Renee L. Moomey to submit to

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such pretended official authority or otherwise to act in reliance upon that pretense to his
prejudice, by Defendant's actions in issuing a Summons and Common Law Affidavit . . . .



That the Defendant, Karen Taylor, with the purpose to facilitate the commission of the
offense of impersonating a public servant, aided or abetted Clay Taylor by Defendant's
actions in signing and affirming the appointment of Clay Taylor as "Justice of the
Peace" . . . .



    1. ¶On February 2, 1995, the State requested a change of venue for the place of trial.
       On February 28, 1995, the Taylors pled not guilty to the charges against them. The
       Taylors requested that the omnibus hearing be set after 60 days, and waived their
       right to a speedy trial for that 60-day period. On June 27, 1995, the Taylors
       requested a continuance in order to find new counsel. On August 4, 1995, the
       District Court granted the Taylors' request and ordered them to retain counsel by
       September 8, 1995. On September 25, 1995, the District Court issued its scheduling
       order which established January 17, 1996 as the date of trial. On October 23, 1995,
       the Taylors filed a motion to amend the scheduling order.
    2. ¶At the pretrial hearing on December 21, 1995, the Taylors requested that the
       District Court amend its scheduling order and requested additional time before trial.
       The District Court continued the trial until March 18, 1996. On March 4, 1996, upon
       its own motion, the District Court continued the trial until a later date, stating that
       following the District Court's ruling on defense motions the court would set a
       scheduling conference. On October 22, 1996, the District Court set forth its
       memorandum and order regarding defense motions and the state's motion for change
       of venue. On November 6, 1996, the Taylors filed a motion to dismiss for lack of
       speedy trial and a motion for disqualification of Judge Hegel. On June 10, 1997, the
       Taylor's motion to disqualify was denied. The District Court scheduled trial for
       November 17, 1997.
    3. ¶A jury trial was held on November 17 and 18, 1997. The Taylors were found guilty
       of the charges and sentenced to a two-year deferred sentence, 40 hours of
       community service, and a $500 fine for each charge. The Taylors now appeal their
       convictions and sentences.

                                                            DISCUSSION


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                                                                 ISSUE 1

    1. ¶Did the District Court err when it instructed the jury on § 45-7-209, MCA (1993),
       the statute which sets forth the offense of impersonating a public servant?
    2. ¶The standard of review of jury instructions in criminal cases is whether the
       instructions, as a whole, fully and fairly instruct the jury on the law applicable to the
       case. See State v. Johnson, 1998 MT 289, ¶ 28, 291 Mont. 501, ¶ 28, 969 P.2d 925,
       ¶ 28. Additionally, we recognize that a district court has broad discretion when it
       instructs the jury. See State v. Weaver, 1998 MT 167, ¶ 28, 290 Mont. 58, ¶ 28, 964
       P.2d 713, ¶ 28.
    3. ¶Section 45-7-209, MCA (1993), provides:

(1) A person commits the offense of impersonating a public servant if he falsely pretends
to hold a position in the public service with purpose to induce another to submit to such
pretended official authority or otherwise to act in reliance upon that pretense to his
prejudice.



    1. ¶The Taylors assert that the District Court erred by not instructing the jury that the
       proper interpretation of this statute requires that the State prove that Clay Taylor
       pretended to be a specific person in the public service, for example, that Clay Taylor
       was impersonating the actual Justice of the Peace of Garfield County. The Taylors
       contend in the alternative that the statute is void for vagueness.
    2. ¶The District Court gave the following jury instruction:

A person commits the offense of Impersonating a Public Servant if he falsely pretends to
hold a position in the public service with purpose to induce another to submit to such
pretended official authority or otherwise to act in reliance upon that pretense to his
prejudice.



    1. ¶Section 1-2-101, MCA, provides the following rule of statutory interpretation:

In the construction of a statute, the office of the judge is simply to ascertain and declare
what is in terms or in substance contained therein, not to insert what has been omitted or to
omit what has been inserted.


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    1. ¶The portion of the statute at issue states: "falsely pretends to hold a position in the
       public service." Clay Taylor was charged with impersonating a public official based
       on his representation that he was a "Justice of the Peace." Clearly, the statute does
       not include language requiring that a person must falsely pretend to hold a specific
       position in the public service. In this case, it did not require that Clay Taylor
       pretended to be the actual Justice of the Peace of Garfield County. The Taylors'
       assertion that the statute should be interpreted in such a manner violates the rule of
       statutory construction set forth in § 1-2-101, MCA. Accordingly, we conclude that
       the District Court's jury instruction accurately explained the statutory law applicable
       to the case pursuant to § 45-7-209, MCA (1993).
    2. ¶The Taylors alternately contend that if the statute is not interpreted by this Court in
       the same manner as the Taylors interpret the statute, then the statute is void for
       vagueness.

    1. ¶We presume that all statutes are constitutional. It is the duty of courts, if possible,
       to construe statutes in a manner that avoids unconstitutional interpretation. See State
       v. Nye (1997), 283 Mont. 505, 510, 943 P.2d 96, 99. When the constitutionality of a
       statute is challenged, the party making the challenge bears the burden of proving,
       beyond a reasonable doubt, that the statute is unconstitutional, and any doubt is to
       be resolved in favor of the statute. See Nye, 283 Mont. at 510, 943 P.2d at 99.
    2. ¶In State v. Crisp (1991), 249 Mont. 199, 202, 814 P.2d 981, 983, we stated the
       following test for whether a statute is void on its face for vagueness:

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. No person should be required to speculate as
to whether his contemplated course of action may be subject to criminal penalties.



(Citations omitted.)

    1. ¶The conduct proscribed by § 45-7-209, MCA (1993), is not unconstitutionally
        vague. The statute clearly sets forth that anyone who pretends to hold a position in
        the public service with the purpose to induce another to submit to that authority or
        which causes another to rely upon that pretense to his benefit, is within the conduct
        proscribed by the statute. The language of § 45-7-209, MCA (1993), is sufficient to

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        give a person of ordinary intelligence fair notice that conduct such as the Taylors' is
        forbidden. Accordingly, we conclude that § 45-7-209, MCA (1993), is not
        unconstitutionally vague on its face.

                                                                 ISSUE 2

    1. ¶Was there sufficient evidence to support Karen Taylor's conviction for
       impersonating a public servant by accountability?
    2. ¶We review the sufficiency of the evidence in a criminal case to decide whether,
       upon viewing the evidence in a light most favorable to the prosecution, any rational
       trier of fact could have found the essential elements of the offense beyond a
       reasonable doubt. See State v. Heffner, 1998 MT 181, ¶ 22, 290 Mont. 114, ¶ 22,
       964 P.2d 736, ¶ 22.
    3. ¶Section 45-2-302, MCA (1993), states the following, in relevant part:

A person is legally accountable for the conduct of another when:



....



(3) either before or during the commission of an offense with the purpose to promote or
facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other
person in the planning or commission of the offense.



    1. ¶Karen Taylor asserts that the evidence presented at trial was insufficient to support
       her conviction for impersonating a public servant by accountability. Karen contends
       that evidence of the required intent or purpose to promote or facilitate Clay Taylor's
       actions was not presented.
    2. ¶However, the evidence reveals that Karen was present on January 27, 1994, when
       the group of citizens took over the Garfield County courtroom in order to set up
       their own supreme court of Garfield County. Joann Stanton, the Clerk and Recorder
       of Garfield County testified that she received a document entitled "Common Law
       Affidavit," which was signed by Karen Taylor, among others, which purported to
       remove the Garfield County Commissioners from office. Stanton also testified that

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      she was requested to file a document which set forth Clay Taylor's appointment as
      "Justice of the Peace, in and for Garfield County" which was also signed by Karen
      Taylor.
   3. ¶Stanton testified that she received another document, entitled "Writ of Protection,"
      issued by Karen Taylor, which identifies Clay Taylor as "Justice of the Peace," and
      bears Clay's written signature as well as Karen's written signature. Additionally, the
      document entitled "Summons" received by attorney Renee Moomey, which
      contained the caption "State of Montana vs. Renee L. Moomey" and was signed by
      Clay Taylor as "Justice of the Peace" was also signed by Karen Taylor as "Jurat in
      Law."
   4. ¶Based on the testimony and evidence presented at trial, viewed in a light most
      favorable to the prosecution, we conclude that there existed sufficient evidence from
      which a rational jury could have found that Karen Taylor, with the purpose to
      facilitate Clay Taylor's impersonation of a Justice of the Peace, aided or abetted
      Clay Taylor as required by § 45-2-302, MCA. Accordingly, we conclude that there
      was sufficient evidence to support Karen Taylor's conviction for impersonating a
      public servant by accountability.

                                                                ISSUE 3

   1. ¶Were the Taylors denied their right to a speedy trial?
   2. ¶The Taylors assert that they were denied their right to a speedy trial because 1074
      days passed between the date of appeal de novo from their Justice Court conviction
      and the date of their District Court trial. The Taylors contend that of the 1074 days,
      921 days are chargeable to the State, and that during this time period they were
      prejudiced by the media coverage of the Freeman stand-off, as well as the personal
      anxiety and family problems which resulted from having criminal charges pending
      against them for such a long period of time.
   3. ¶In response, the State asserts that this issue is not reviewable as part of this appeal
      because the District Court record before this Court does not include the District
      Court's order deciding the Taylors' motion to dismiss for lack of speedy trial, nor a
      transcript of any proceeding at which the motion was heard. In the alternative, the
      State contends that this Court should remand this issue to the District Court for
      consideration pursuant to this Court's recent decisions in City of Billings v. Bruce,
      1998 MT 186, 290 Mont. 148, 965 P.2d 866, and State v. Hardaway, 1998 MT 224,
      290 Mont. 516, 966 P.2d 125, for development of the record and entry of written
      findings of fact, conclusions of law, and an order.

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    4. ¶Because the District Court's decision regarding the Taylors' motion to dismiss for
        denial of speedy trial cannot be found in the District Court's record, we conclude
        that it is necessary to remand this issue to the District Court for a hearing to consider
        the Taylors' motion to dismiss for lack of speedy trial, applying the test and analysis
        set forth in Bruce and Hardaway.

                                                                 ISSUE 4

    1. ¶Were the Taylors' sentences illegal?
    2. ¶In State v. Lafley, 1998 MT 21, 287 Mont. 276, 954 P.2d 1112, we held that "in a
       direct appeal, the defendant is limited to those issues that were properly preserved in
       the district court and to allegations that the sentence is illegal or exceeds statutory
       mandates." Lafley, ¶ 26. Further, we have held that "a sentence is not illegal when it
       is within the parameters provided by statute." Lafley, ¶ 26.
    3. ¶The Taylors challenge their two-year deferred sentence and total fines of $1500, on
       the bases that they were indigent and therefore a fine was not allowed, and that the
       District Court failed to clearly explain the reasons for their sentences in violation of
       § 46-18-102(3)(b), MCA.
    4. ¶The State contends that the sentences imposed on the Taylors were not illegal. The
       State further asserts that because the Taylors failed to object at the time of
       sentencing to the sentence imposed on them, or the District Court's explanation of
       their sentences, this issue is waived on appeal.
    5. ¶Section 46-18-201, MCA, provides the following in relevant part:

(1)(a) Whenever a person has been found guilty of an offense upon a verdict of guilty or a
plea of guilty or nolo contendere, a sentencing judge may defer imposition of sentence,
except as otherwise specifically provided by statute, for a period:



....



(ii) not exceeding 2 years for a misdemeanor . . . if a financial obligation is imposed as a
condition of sentence . . . .




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    1. ¶Section 46-18-231(3), MCA, provides:

The sentencing judge may not sentence an offender to pay a fine unless the offender is or
will be able to pay the fine . . . .

    1. ¶The Taylors have failed to cite to anything in the record which would support their
       assertion that the fine portion of their sentences is illegal because of their inability to
       pay the fines. The District Court had no information regarding the Taylors' alleged
       indigency at the time of sentencing, nor did the Taylors object to the imposition of
       the fine at the time of sentencing based on an inability to pay the fines. Accordingly,
       absent facts which would support the Taylors' assertion that the imposition of a fine
       was illegal because of the Taylors' alleged indigency, we conclude that the Taylors
       have waived this issue on appeal by failing to object at the time of sentencing.
    2. ¶Additionally, our review of the sentencing hearing transcript discloses that the
       Taylors failed to object to the sufficiency of the District Court's reasons for the
       imposition of the sentence. Accordingly, the Taylors have also waived this issue on
       appeal.

                                                                 ISSUE 5

    1. ¶Were the Taylors deprived of due process and equal protection?
    2. ¶The Taylors assert that the District Court denied them due process and equal
       protection because of the District Court's bias, which is evidenced by the District
       Court's failure to rule in the Taylors' favor on their motions and objections. The
       Taylors set forth twelve instances which they allege support their contention that
       they have been denied due process and equal protection. The Taylors, however, do
       not set forth any legal authority in support of their assertions.
    3. ¶The State points out that the Taylors failed to specifically object to any of the
       instances of alleged bias of the District Court and, therefore, asserts that this is a
       constitutional argument that the Taylors did not make to the District Court.
       Consequently, the State contends that the Taylors have failed to preserve this issue
       for appeal. We agree.
    4. ¶Section 46-20-701(2), MCA, provides:

Any error, defect, irregularity, or variance that does not affect substantial rights must be
disregarded. A claim alleging an error affecting jurisdictional or constitutional rights may
not be noticed on appeal if the alleged error was not objected to as provided in 46-20-104,


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unless the convicted person establishes that the error was prejudicial as to the convicted
person's guilt or punishment and that:



(a) the right asserted in the claim did not exist at the time of the trial and has been
determined to be retroactive in its application;



(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the
convicted person or the convicted person's attorney that prevented the claim from being
raised and disposed of; or



(c) material and controlling facts upon which the claim is predicated were not known to
the convicted person or the convicted person's attorney and could not have been
ascertained by the exercise of reasonable diligence.



    1. ¶Because the Taylors failed to object to the constitutional errors they now allege as
       provided for in § 46-20-104, MCA, and because none of the exceptions set forth in §
       46-20-701(2), MCA, apply in this case, we conclude that the Taylors have waived
       this issue and cannot raise it for the first time on appeal.
    2. ¶For these reasons, we affirm the District Court in part and remand to the District
       Court for further proceedings consistent with this opinion.



/S/ TERRY N. TRIEWEILER




We Concur:



/S/ J. A. TURNAGE

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/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ JIM REGNIER




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