NO. 94-593

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

v.

RICHARD A. STILL,

Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Jefferson,

The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

James Maher, Basin, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Kathy

Seeley, Assistant Attorney General, Helena,

Montana; Deborah F. Butler, Acting Jefferson County

Attorney, Boulder, Montana

Filed:

Submitted on Briefs: July 27, 1995

Decided: September 14, 1995

Clkrk
Justice James C. Nelson delivered the Opinion of the Court.

Appellant Richard A. Still (Still) was charged in Jefferson

County Justice Court with five misdemeanor violations of § 87-2-

106, MCA, for affirming to a false statement in order to obtain

resident "AU and 11 B II deer licenses, an elk license, a

conservation/fishing license, and an antelope license. The Justice

Court sentenced Still to pay $974 in fines. Still appealed to the

Fifth Judicial District Court, Jefferson County. The District

Court dismissed the appeal and let the Justice Court's decision

stand. Still appeals from the decision of the Fifth Judicial

District Court. We affirm.

We address the following issue on appeal:

Did the District Court err in dismissing Still's appeal and in

letting the Justice Court's decision stand?

BACKGROUND

Still and his family moved to Montana in late April of 1993.

He immediately took steps to establish his residency in the state

by renting a post office box, registering to vote, and applying for

a driver's license. On May 6, 1993, Still purchased a resident

deer "A" license, a resident elk license, a resident

conservation/fishing license, and a resident archery stamp. On

September 25, 1993, Still purchased a resident deer "B" license.

On each license application, Still stated that he had been a

resident for six months. On February 18, 1994, the Department of

Fish Wildlife and Parks issued five citations to Still for

affirming to false statements on his applications in violation of

2
§ 87-2-106, MCA. This statute governs applications for licenses,

penalties for violations, and forfeiture of privileges.

The charges were brought in Jefferson County Justice Court.

The State moved to dismiss the charge of affirming to a false

statement to obtain a resident antelope license. The Justice Court

dismissed the charge without prejudice. Still then withdrew his

not guilty pleas, pleaded guilty to four misdemeanor counts of

violating § 87-2-106, MCA, and reserved his right to appeal. The

Justice Court sentenced Still to pay $974 in fines. Still

subsequently appealed to the Fifth Judicial District court,

Jefferson County. The District Court considered the briefs filed

in the Justice Court and found for the State, dismissing Still's

appeal and letting the Justice Court's decision stand. Still

appeals the District Court's decision.

DISCUSSION

Did the District Court err in dismissing Still's appeal and in

letting the Justice Court's decision stand?

We review a district court's conclusions of law to determine

whether the tribunal's interpretation of the law is correct. State

v. Barker (1993), 260 Mont. 85, 88, 858 P.2d 360, 362 (citing

Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75,

803 P.2d 601, 603).

Still argues that § 87-z-102, MCA, violates his constitutional

rights to equal protection, due process, and travel and that the

six-month durational residency requirement in § 87-2-102, MCA, does

not apply to Montana citizens. The State correctly argues that we

3
need not address the constitutional or the statutory questions

concerning § 87-2-102, MCA, because Still's violations of a

separate statute, § 87-2-106, MCA, are dispositive.

This Court has repeatedly recognized that "courts should avoid

constitutional issues whenever possible." Wolfe v. State Dept. of

Labor & Ind. (1992), 255 Mont. 336, 339, 843 P.2d 338, 340 (citing

Ingraham v. Champion Intern. (1990), 243 Mont. 42, 46, 793 P.2d

769, 771). Certain constraints govern the Court's power to

determine the constitutionality of statutes. Among those

constraints is the principle that we will not rule on the

constitutionality of a legislative act if we are able to decide the

case without reaching constitutional considerations. Inqraham, 193

P.2d at 771; Wolfe, 843 P.2d at 340 (citing Taylor v. Dept. of

Fish, Wildlife & Parks (1983), 205 Mont. 85, 90, 666 P.2d 1228,

1231); see also State ex rel. Hammond v. Hager (1972), 160 Mont.

391, 400, 503 P.2d 52, 57.

In the instant case, the State brought charges against Still

for violating 5 87-2-106, MCA. Section 87-z-106, MCA, provides in

87-2-106. Application for license -- penalties for

violation -- forfeiture of privileges. (1) . . . The

applicant shall state the applicant's name, age,

occupation, place of residence, post-office address, the

qualifvinq lenqth of time as a resident in the state of

Montana, whether a citizen of the United States or an

alien, and other facts, data, or descriptions as may be

required by the department. . .

(6) It is unlawful to subscribe to any statement,

on any application or license, that is materiallv false.

?uy material false statement contained in an application

renders the license issued pursuant to it void. A person

violatins anv provision of this statute is quiltv of a

misdemeanor.

4
(7) (a) A person notmeetinq the residency criteria

set out in 87-2-102 who is convicted of affirminq to a

false statement to obtain a resident license shall be:

(i) fined not less than the greater of $100 or

twice the cost of the nonresident license that authorized

the sought-after privilege or more than $1,000;

(ii) imprisoned in the county jail for not more than

6 months; or

(iii) both fined and imprisoned.

(b) 1n addition to the penalties specified in

subsection (7) (a), upon conviction or forfeiture of bond

or bail, the person shall forfeit any current hunting,

fishing, and trapping licenses and the privilege to hunt,

fish, and trap in Montana for not less than 18 months.

. . . [Emphasis added. 1

When Still applied for his resident licenses, he affirmed that he

had been a resident for six months, when in fact, he had been a

resident for less than two weeks for four of the applications and

for approximately five months for one application. Section 87-Z106, MCA, states that it is unlawful to subscribe to a statement on

the application that is materially false and a person violating a

provision of the statute is guilty of a misdemeanor. Regardless of

whether Still disagrees with the six-month durational residency

requirement for a resident fishing, hunting, or trapping license,

he subscribed to statements that were materially false.

Still's violations of the statute governing applications for

fishing, hunting, or trapping licenses are separate and distinct

from any constitutional or statutory challenge of the statute

defining residency for the above licenses. The convictions stand

independently of the statutory residency requirement. Had Still

wished to challenge the six-month durational residency requirement

on both constitutional and statutory grounds, he should have filled

out the application truthfully and, if denied the license, then

5
challenged the denial of the license. See Baldwin v. Montana Fish

& Game Comm'n (1978), 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354

(challenging the State's statutory licensing requirements which

impose higher fees on nonresidents than on residents); Monroe v.

State (1994), 265 Mont. 1, 873 P.2d. 230 (seeking a declaratory

judgment that the statute defining "resident" for purposes of

issuing resident fishing, hunting, and trapping licenses was void

for vagueness).

Still did not fill out the applications truthfully, but

instead attested to false statements. His violations of § 87-2-

106, MCA, are dispositive. As a result, we need not discuss the

issues of statutory construction of § 87-2-102, MCA, and the

alleged violations of Still's right to equal protection, right to

due process, and right to travel. Accordingly, we hold that the

District Court correctly interpreted the applicable law.

/

Affirmed.

6
September 14, 1995

CERTIFICATE OF SERVICE

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

following named:

James Maher

Attorney at Law

P.O. Box 81

Basin, MT 59631

Hon. Joseph P. Mazurek, Attorney General

Kathy Seeley, Assistant A.G.

Justice Bldg.

Helena, MT 59620

Jefferson County Attorney

Deborah F. Butler, Acting County Attorney

Courthouse, P.O. Box H

Boulder, MT 59632

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA