No. 91-253 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

F 

Plaintiff and Appellant, '8 

STATE OF MONTANA, 

-vsMARY KELLY YARNS, 

r~ili(n CF SilPREME COURT 

STATE OF MONTANA Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Marc Racicot, Attorney General, Helena, Montana; 

John Paulson, Assistant Attorney General, Helena, 

Montana; Mike Salvaqni, County Attorney, Bozeman, 

Montana : Gary Balaz, Deputy County Attorney, 

Bozeman, Montana. 

For Respondent: 

Marcelle C. Quist; Bolinqer & Quist, Bozeman, 

Montana. 

Filed: 

Submitted on Briefs: September 19, 1991 

Decided: February 12, 1992 
Justice Karla M. Gray delivered the Opinion of the Court. 

The appellant, State of Montana, appeals an order of the 

District Court of the Eighteenth Judicial District, Gallatin 

County, dismissing the State's appeal of a Justice Court order 

suppressing evidence, remanding the case to the Justice Court, and 

directing that the time of the appeal be charged to the State and 

that the Montana Department of Fish, Wildlife and Parks pay the 

fees of appointed defense counsel. We reverse and remand to the 

District Court for a trial de novo. 

The issues on appeal are: 

1. Did the District Court err in remanding the case to the 

Justice Court for trial after the State had appealed from the 

Justice Court's order suppressing evidence? 

2. Did the District Court err in ordering the fees of 

appointed defense counsel to be paid by the Montana Department of 

Fish, Wildlife and Parks? 

On March 11, 1990, officials of the Montana Department of 

Fish, Wildlife and Parks learned that approximately eighteen 

buffalo were at Horse Butte on Hebgen Lake, which is located ten 

miles northwest of West Yellowstone, Montana and five miles outside 

of Yellowstone National Park in Gallatin County. That evening a 

game warden notified three buffalo hunters that a hunt would take 

place on March 13, 1990. 

On the morning of March 13, the hunters met with several game 

wardens and other persons including a biologist, a researcher, 

2 
three State veterinarians, a national park ranger, and members of 

the news media. The group then traveled on snowmobiles to the 

Horse Butte area where the buffalo had last been seen. The buffalo 

were gone when the group arrived. Several State officials then 

searched for the buffalo, which were found being herded toward 

Yellowstone National Park by a group of eleven men and women. The 

officials were advised that this group was there to prevent the 

killing of the buffalo. 

Eventually, hunter Hal Slemmer shot one of the buffalo. As 

Mr. Slemmer was standing with a game warden near the buffalo, he 

was approached by a woman who was with the protest group. The 

woman, later identified as the defendant Mary Yarns, dipped her 

hand into the blood of the buffalo and wiped both of her cheeks 

with the blood. After making a comment to Mr. Slemmer, the 

phraseology of which is disputed by the parties on appeal, the 

defendant then wiped the blood from the buffalo down the middle of 

Mr. Slemmer's face. 

On July 3, 1990, the Gallatin County Attorney filed a 

complaint in the Justice Court, charging the defendant with 

misdemeanor assault in violation of 5 45-5-201(1)(~), MCA (1989). 

The complaint was supported by an affidavit of probable cause and 

alleged that on March 13, 1990, the defendant had purposely or 

knowingly made physical contact of an insulting or provoking nature 

with Hal Slemmer when she wiped Mr. Slemmer's face with the blood 

from a buffalo. The defendant was arrested on July 7, 1990. 

3 
Trial in Justice Court was set for December 20, 1990. On the 

morning of trial, but prior to its commencement, the State filed a 

motion in limine requesting a pretrial ruling on the admissibility 

of a videotape which depicted the events surrounding the hunt 

protest. The State argued that the entire tape was admissible 

under the transaction rule, 5 26-1-103, MCA (1989), and was 

necessary to show the defendant's purpose in going to the buffalo 

hunt location and her intent at the time she committed the assault. 

The Justice Court ruled that it would allow the State to present 

only that portion of the videotape showing the blood being placed 

on Mr. Slemmer's face and the scenes immediately following that 

event. The State was not allowed to present portions of the 

videotape showing another protest group member assaulting another 

hunter prior to the assault with which the defendant is charged. 

Those prohibited portions of the videotape also show actions of 

other members of the group. 

The State then filed a notice of appeal from the Justice 

Court's order for trial & in the District Court of the 

Eighteenth Judicial District, Gallatin County, and moved to 

transfer the Justice Court record to the District Court. Trial in 

the District Court was set for March 25, 1991. 

On January 16, 1991, the defendant filed a motion to dismiss 

the State's appeal. The defendant's motion was briefed by the 

parties and argued to the District Court on February 19, 1991. On 

March 21, 1991, the District Court issued an order dismissing the 

4 
State's appeal, remanding the case to the Justice Court, and 

directing that the time of the appeal be charged to the State and 

that the Montana Department of Fish, Wildlife and Parks pay the 

fees of appointed defense counsel. The District Court relied on 

decisions from Kansas and Illinois as well as the American Bar 

Association Project on Standards for Criminal Justice in concluding 

that the State should be required to show that the suppression 

order seriously impeded the continuation of the prosecution in 

order for the State to exercise its right of appeal. The court 

concluded that the Justice Court's order did not seriously impede 

continuation of the prosecution and that the matter should be 

remanded for trial in the Justice Court. 

I 

Did the District Court err in remanding the case to the 

Justice Court for trial after the State had appealed from the 

Justice Court's order suppressing evidence? 

The State contends that the District Court exceeded its 

constitutional and statutory authority by assuming the role of an 

appellate court, reviewing the Justice Court's order, and remanding 

the case for trial. It asserts that the proper procedure in this 

case was a trial de novo in the District Court. 

Article VII, Section 4(2) of the Montana Constitution provides 

that the district court "[slhall hear appeals from inferior courts 

as trials anew unless otherwise provided by law." Section 46-17- 

5 
311, MCA (1989), in effect at the time of the State's appeal, sets 

forth the appeal procedure for criminal cases arising in justice 

court: 

Appeal. (1) Except as provided in 46-17-203 [plea of 

guilty in justice court waives right to trial de novo in 

district court], all cases on appeal from justices' or 

city courts must be tried anew in the district court. . .. 

(2) A party may appeal to the district court by 

giving written notice of his intention to appeal within 

10 days after judgment, except that the state may only 

appeal in the cases provided for in 46-20-103. 

... 

The scope of the State's right to appeal is set forth in 5 46-20- 

103, MCA (1989), which provides in pertinent part: 

Scope of appeal by state. (1) Except as otherwise 

specifically authorized, the state may not appeal in a 

criminal case. 

(2) The state may appeal from any court order or 

judgment the substantive effect of which results in: 

... 

(e) suppressing evidence; 

... 

In State v. Kesler (1987), 228 Mont. 242, 741 P.2d 791, this 

Court held that the constitutional and statutory provisions set 

forth above require the district court to try anew any appeal by 

the State from a justice court order, entered pretrial, suppressing 

evidence. As in the present case, the State in Kesler appealed to 

the district court from a pretrial suppression order of the justice 

court. The defendant moved to affirm the suppression order and 

6 
dismiss the appeal, contending that the district court had 

appellate jurisdiction to review the suppression order. We held 

that a district court does not have appellate jurisdiction to 

review a justice court order suppressing evidence and that the 

clear legislative intent of 5 46-17-311, MCA, is to require a trial 

__~ de novo on all appeals from justice court. 

Section 46-17-311(2), MCA, as amended, now permits 

the State to appeal justice court orders and judgments in 

certain circumstances. The clear intent of Section 46- 

17-311(1), MCA, is to require a trial de novo in district 

court on all appeals from justice court. The legislature 

could have prohibited a trial de novo in district court 

by amending Subsection (1) of Section 46-17-311, MCA. 

The legislature did not prohibit trial de novo when it 

amended the statute and we will not judicially amend the 

statute to create such a prohibition. 

Kesler, 228 Mont. at 245, 741 P.2d at 793. 

The defendant argues that the Justice Court ruling was an 

evidentiary ruling rather than a suppression ruling and was 

therefore not appealable, citing People v. McCollins (Ill. App. Ct. 

1984), 468 N.E.2d 196. In McCollins, the Appellate Court of 

Illinois, Third District, made a distinction, for purposes of the 

state's right of appeal, between the suppression of evidence and 

the exclusion of evidence. The defendant argues that a similar 

distinction should be made in this case. We disagree. 

In State v. T.W. (1986), 220 Mont. 280, 715 P.2d 428, this 

Court addressed the issue of whether the district court's granting 

of the defendant's pretrial motion in limine, precluding the State 

from using certain evidence at trial, was appealable by the State 

pursuant to § 46-20-103(2) (e), MCA. Quoting from Rogers v. United 

7 
States (D.C. Cal. 1958), 158 F.Supp. 670, we stated that "suppress" 

means "to effectively prevent from using" and upheld the State's 

right to appeal from any pretrial order which effectively prevents 

the State from using evidence, regardless of whether the 

constitutional rights of the defendant are at issue. T.W., 220 

Mont. at 287, 715 P.2d at 432. 

The defendant further argues that the Justice Court's order 

was not appealable in light of this Court's decision in State v. 

Carney (1986), 219 Mont. 412, 714 P.2d 532. In Carnev, we held 

that a midtrial ruling sustaining an objection to the admission of 

evidence could not be appealed by the State under § 46-20- 

103 (2) (e), MCA. However, Carnev is clearly distinguishable from 

the present case where the order was entered and appealed pretrial 

and the jury had not yet been impaneled and sworn. As we stated in 

T.W.: 

There is an important distinction between 

interlocutory appeals on pre-trial rulings and those 

taken in the course of the trial. Mid-trial appeals 

place the defendant in double jeopardy in violation of 

the Fifth Amendment to the United States Constitution and 

Article 11, Section 5 of the Montana State Constitution 

and are not appealable. State v. Carney (Mont. 1986), 

1219 Mont. 413,] 714 P.2d 532, 43 St.Rep. 54. No 

jeopardy attaches here, as the jury had not yet been 

sworn. Crist v. Bretz (1978), 437 U.S. 28, 98 S.Ct. 

2156, 57 L.Ed.2d 24. Because there is no double jeopardy 

problem in this case the ruling is appealable. 

T.W., 220 Mont. at 287, 715 P.2d at 432. 

The District Court in the present case recognized that the 

Justice Court's order was an order suppressing evidence within the 

meaning of § 46-20-103(2)(e), MCA (1989). However, while the 

8 
District Court acknowledged the State's right to appeal, it 

conditioned that right upon a showing that the suppression order 

substantially impaired or seriously impeded the State's ability to 

prosecute the case. The District Court relied upon State v. Newman 

(Kan. 1984), 680 P.2d 257, and People v. Young (Ill. 1980), 412 

N.E.2d 501, to arrive at its conclusion that the State is required 

to make a showing of substantial impairment in order to appeal a 

suppression ruling. It also stated that the American Bar 

Association Project on Standards for Criminal Justice "recommends 

that the prosecution should not be permitted to appeal from pretrial orders suppressing evidence unless 'the effect is to 

seriously impede, although not completely foreclose, continuation 

of the prosecution.'" 

The State argues that this Court has not imposed such a 

condition upon the State's right to appeal. It further argues that 

the District Court's imposition of this condition, sua sponte and 

- ex & facto, exceeded its authority and deprived the State of its 

statutory right to a trial de novo. We agree. 

This Court in T.W. cited the Newman and Younq decisions in 

rejecting a narrow interpretation of the appeals statute which 

would have limited interlocutory appeals by the State to situations 

where evidence was suppressed because it was obtained in violation 

of a defendant's constitutional rights. We did not hold in T.W. 

that the State's right to appeal was conditioned upon a showing or 

certification of the effect of the suppression order on the State's 

9 
case. 

The District Court's conditioning of the State's right to 

appeal upon a showing that the suppression order substantially 

impaired or seriously impeded the continuation of the prosecution 

is contrary to the clear legislative intent of 5 46-17-311(1), MCA 

(1989). As we stated in Kesler, the clear intent of that statute 

is to require a trial de novo on all appeals from justice court; a 

district court cannot assume appellate jurisdiction to review a 

justice court order suppressing evidence. Kesler, 220 Mont. at 

245-46, 741 P.2d at 793-94. 

Moreover, the legislature has not limited the State's right to 

appeal a justice court order suppressing evidence in the manner 

imposed by the District Court. The plain language of § 46-20- 

103(2)(e), MCA (1989), provides that the State may appeal from an^ 

court order the substantive effect of which results in suppressing 

evidence. To allow a court to formulate a standard for 

appealability of such an order would be to empower that court to 

determine the State's right to appeal, in derogation of a clear 

statutory right. Such a court action is necessary under 

circumstances such as those we addressed in Carney involving 

constitutional impediments. Absent such circumstances, however, it 

is not the role of the courts to insert into a statute that which 

has been omitted. Section 1-2-101, MCA. The proper procedure in 

this case was a trial de novo by the District Court. 

The defendant presents two additional arguments in support of 

10 
the District Court's order which we will address briefly. First, 

the defendant argues that her motion to dismiss was "effectively a 

motion for summary judgment" under the Montana Rules of Civil 

Procedure and that the District Court's ruling was not appealable 

"until appeal of the final judgment in this case is had." This 

argument lacks merit. Title 46, MCA, governs the procedure in the 

courts of Montana in all criminal proceedings except as otherwise 

specifically provided by law. Section 46-1-101, MCA (1989), 

repealed (recodified as 5 46-1-103, MCA (1991)). The scope of the 

State's appeal is governed by 5 46-20-103, MCA (1989). The State 

is not required to await final judgment in order to exercise its 

right of appeal since double jeopardy considerations would preclude 

any appeal by the State in the event of an acquittal, and the State 

has no right to appeal following a conviction. See State v. Cool 

(1977), 174 Mont. 99, 568 P.2d 567; State v. Armstrong (1980), 189 

Mont. 407, 616 P.2d 341. 

The defendant further argues that the Justice Court's ruling 

on the admissibility of the videotape was a discretionary 

evidentiary ruling which should not be overturned unless an abuse 

of discretion is shown. Whether the Justice Court abused its 

discretion is not at issue in this case. The District Court does 

not have appellate jurisdiction to review the Justice Court's 

ruling. Kesler, 228 Mont. 242, 741 P.2d 791. 

We also note that, in its order dismissing the State's appeal 

and remanding the case to the Justice Court, the District Court 

11 
directed that the time of appeal be charged to the State. It 

appears from the record before us that the issue of allocation of 

delay for speedy trial purposes was not raised in the motion to 

dismiss or argued by the parties. In light of our holding in this 

case, the District Court's allocation of delay to the State is 

vacated. 

We hold that the District Court erred in remanding the case to 

the Justice Court for trial after the State had appealed from the 

Justice Court's order suppressing evidence. We remand the case to 

the District Court for trial de novo. 

I1 

Did the District Court err in ordering the fees of appointed 

defense counsel to be paid by the Montana Department of Fish, 

Wildlife and Parks? 

In its order dismissing the State's appeal and remanding the 

case to the Justice Court, the District Court cited § 46-8-201, MCA 

(1989), as authority for ordering the Montana Department of Fish, 

Wildlife and Parks to pay the fees of appointed defense counsel. 

The record does not support the court's order. 

Section 46-8-201(2)(b), MCA (1989), provides that when there 

has been an arrest by aqents of the Department of Fish, Wildlife 

and Parks and the charge is brought and prosecuted by personnel of 

that State agency, the expense of court-appointed defense counsel 

must be borne by the agency; otherwise, the expense is chargeable 

12 
to the county in which the proceeding arose, the Department of 

Commerce, or both, as provided in 5 3-5-901, MCA (1989). Here, the 

complaint and warrant of arrest indicate that the defendant was 

charged with misdemeanor assault and is being prosecuted by the 

Gallatin County Attorney's office. Although officials of the 

Department of Fish, Wildlife and Parks were at the scene of the 

incident, the record does not show any further involvement by 

department personnel. Accordingly, we hold that the District Court 

erred in ordering the Department of Fish, Wildlife and Parks to pay 

the fees of appointed defense counsel. 

Reversed and remanded to the District Court for trial de novo. 

We concur: 

Chief Justi 

13 
Justice Terry N. Trieweiler dissenting. 

I dissent from the opinion of the majority. 

The majority decision repeatedly refers to the District 

Court's obligation pursuant to statute and the Montana Constitution 

to hear appeals from Justice Court denovo. However, before the 

District Court has an obligation to try appeals from the Justice 

Court denovo, it has a right to determine whether there was a proper 

statutory basis for appeal in the first place. In this case, I 

disagree with the majority's conclusion that there was a proper 

basis for appeal. 

Section 46-17-311(2), MCA, provides in relevant part that 

"[tlhe prosecution may only appeal in the cases provided for in 

46-20-103." The only part of 5 46-20-103, MCA, which is applicable 

to this case is subsection (2) (e) which allows for an appeal by the 

State from an order which results in "suppressing evidence.'' 

In my opinion, there is a significant difference between the 

"suppression of evidence" and an evidentiary ruling which excludes 

material or information which is offered but is neither relevant to 

nor probative of the issues in the case. 

In this case, on the day the trial was scheduled to begin in 

Justice Court, with the Justice Court ready to begin and the jury 

panel standing by, the prosecutor filed a pretrial motion seeking 

permission to play a video tape of a protest over Montana's bison 

hunt. The Justice of the Peace ruled that the defendant's conduct, 

14 
granted the defendant's motion in limine was to suppress 

evidence. If not, then the order does not become 

appealable simply because the State certified that its 

ability to prosecute is substantially impaired. 

As the Illinois Supreme Court has recognized, 

defining that which constitutes an order of suppression 

and determining whether a trial court's ruling falls 

within that definition is a difficult task. (People v. 

Young (1980), 82 I11.2d 234, 45 I11.Dec. 150, 412 N.E.2d 

501.) In the context of Supreme Court Rule 604(a)(1), a 

distinction must be made between the suppression of 

evidence and the exclusion of evidence. This distinction 

is not merely semantic. Rule 604 was not intended to 

give the State the right to appeal from every ruling 

excluding evidence offered by the State. (People v. 

VanDeRostyne (1976), 63 I11.2d 364, 368, 349 N.E.2d 16, 

19.) It is suppression orders, as distinguished from 

evidentiary rulings, that are appealable under the rule. 

Peoplev. Flatt (1980), 82 I11.2d 250, 258, 45 I11.Dec. 158, 

162, 412 N.E.2d 509, 513. 

.... 

. . . As stated above, it is suppression orders, not 

evidentiary rulings, that are appealable under the rule. 

We find that the trial court's order which granted the 

defendant's motion inlimine is not a suppression order as 

that term is used in Supreme Court Rule 604 (a) (1) and, 

therefore, is not appealable. 

hfccolhs, 468 N.E.2d at 197-98. 

The effect of the majority's decision is to provide the State 

with the option of divesting justice courts of jurisdiction to try 

misdemeanor cases whenever the State chooses to do so. I do not 

believe that was the result intended by the legislature, and 

therefore, believe that the decision of the Illinois court is the 

better reasoned approach to defining the scope of appeal intended 

16 
under 5 46-20-103, MCA. I would affirm the District Court's 

dismissal of the State's appeal. 

I concur in the foregoing dissent of Justice Trieweiler. 

/ 

Justice -- 

17 
February 12, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

A. Michael Salvagni, County Attorney 

Gary Balaz, Deputy 

615 S. 16th Ave., Rm. 100 

Bozeman, MT 59715 

Marcelle C. Quist 

QUIST LAW OFFICE 

1805 Landmark Center 

Building 2, Suite 1A 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE -OF MONTANA