No. 14472 

IN THE SUPREME COW OF THE STATE OF J!42WANA 

1979 

STATE OF MXJTANA, 

Plaintiff and Appellant, 

JAMES RICHAIiD JOHNSON, 

Defendant and Respondent. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Mntana 

Robert L. Deschamps 111, County Attorney, Missoula, Plbntana 

For Respondent: 

E&mrd Chgs, Missoula, Plbntana 

de, . ' 

Filed: i$!g 

Sukdtted on briefs: January 15, 1979 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Plaintiff, the State of Montana, appeals from an order 

of the Missoula County District Court granting defendant's 

motion to dismiss proceedings for an evidentiary hearing on 

suspension of defendant's driver's license and ordering that 

his driving privileges be restored to him. The motion was 

granted without notice or opportunity to be heard and was 

further based on a misreading of section 32-2142.2(a), 

R.C.M. 1947, now section 61-8-403 MCA. We reverse and 

remand the case for a hearing on the merits. 

Defendant was arrested for driving while intoxicated 

and, according to the arresting officer, refused to submit 

to a breath test as required by Montana's implied consent 

law, section 32-2142.1, R.C.M. 1947, now section 61-8-402 

MCA. Pursuant to this statute the Montana highway patrol 

board later requested surrender of defendant's driver's 

license for a period of sixty days beginning May 17, 1978. 

On May 31, defendant petitioned the District Court for 

a hearing pursuant to section 32-2142.2(a), and on June 1, 

obtained an order staying suspension of his license. On July 

20, the District Court scheduled the hearing for August 3. 

Cn August 1, defendant filed in the District Court and 

served on the county attorney a single page document entitled 

"motion to dismiss". The motion sought dismissal of the 

August 3 hearing for the court's failure to set a hearing 

within thirty days of written notice to the county attorney 

of defendant's petition for a hearing. At the bottom of 

this document, language stating that the motion was granted 

and that defendant's driving privileges be reinstated was 

typed in for the court's signature. The next day, August 2, 

combination 

the court granted defendant's motion by signing the/motion 

and order. The State appeals. 
The determinative issues on appeal are whether the 

District Court erred: (1) by denying the State an opportunity to be heard in resisting the motion and relief sought, 

and (2) by granting the motion on the basis of a misinterpretation of section 32-2142.2(a), R.C.M. 1947, now section 

61-8-403 MCA. 

The court granted defendant's motion only one day after 

he filed it in the District Court and served a copy on the 

State. In effect, the court granted an - ex parte motion to 

dismiss, and the adverse party was not given notice or 

opportunity to be heard. 

Rule No. II(1) of the Uniform Rules for District Courts 

of Montana states: 

''MOT IONS : 

"1. Upon serving and filing a motion under 

Rule 12, M. R. Civ. P., or within five days 

thereafter, the moving party shall serve and 

file a brief. The adverse party shall have 

ten days thereafter within which to serve and 

file an answer brief. A reply brief may be 

served and filed within ten days thereafter. 

Upon the filing of briefs, the motion shall 

be deemed made and submitted and taken under 

advisement by the Court, unless the Court 

orders oral argument of said motion . . . 

"Failure to file briefs within the prescribed 

time shall subject such motion to summary 

ruling, and the failure to file a brief by 

the moving party shall be deemed an admission 

that, in the opinion of counsel, the motion is 

without merit, and such failure to file a 

brief by the adverse party shall be deemed an 

admission that in the opinion of counsel, the 

motion is well taken . . ." 

Although this rule specifically governs procedure for 

motions in civil actions, we believe the substance of its 

provision for notice and opportunity to be heard by the 

adverse party should be observed in criminal proceedings to 

ensure fundamental fairness and a fully informed court. 

Since the State was given no such notice or opportunity to 

be heard in this case, the court erred in granting defendant's 

motion. 
This error is compounded by the fact that the order of 

dismissal was based on an obvious misconstruction of section 

32-2142.2(a), R.C.M. 1947, now section 61-8-403 which 

provides : 

". . . RIGHT TO APPEAL TO COURT. (a) Any 

person whose license or privilege to drive has 

been suspended, as hereinbefore authorized, 

the board shall immediately notify such person 

in writing and such person shall have the right 

to file a petition within thirty (30) days 

thereafter for a hearing in the matter in the 

district court in the county wherein such person 

shall reside and such court is hereby vested 

with jurisdiction -- and it shall be -- its duty to 

-- set the matter for hearing upon thirty (30)- 

days' written notice -- to the county attorney of 

the county wherein the appeal is filed . . ." 

(Emphasis added.) 

The State contends the phrase "it shall be [the ~istrict 

Court's] duty to set the matter for hearing upon thirty days 

written notice to the county attorney" requires thirty days 

written notice to the county attorney before the hearing is 

held, rather than requiring a hearing be set within thirty 

days of the filing of a petition. We agree. The statute 

clearly requires that the county attorney be given at least 

thirty days written notice before the matter can be heard. 

Dismissal was therefore doubly in error. 

In conclusion, we must add one word of caution. In 

light of the fact that the court order was so manifestly in 

error, procedurely and substantively, the State should more 

properly have moved for reconsideration by the District 

Court, rather than taking an appeal to this Court. By 

seeking all possible resolution of such matters in the 

District Court, economy and efficiency of the judicial 

process is better achieved. 

The cause is reversed and remanded to the District 

Court for a hearing on the merits- 
We Concur: 

Chief Justice 

/7 

Justices