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No. 00-201 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 141 

STATE OF MONTANA, 

Plaintiff and Respondent,

v.

MICHAEL BRITTON,

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:

Eric Rasmusson, Attorney at Law, Boulder, Montana

For Respondent:

Joseph P. Mazurek, Attorney General; Micheal S. Wellenstein,

Assistant Attorney General, Helena, Montana

Valerie D. Wilson, Jefferson County Attorney; Leonard J. Haxby,

Deputy County Attorney, Boulder, Montana

Submitted on Briefs: January 11, 2001 

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Decided: August 2, 2001

Filed:

__________________________________________

Clerk

Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Michael Britton moved to dismiss hunting license-related charges against him in 

Jefferson County Justice Court on the basis that Montana's residency laws are so vague as 

to violate due process. After his motion was denied, Britton pled guilty to two counts of 

swearing and affirming to a false statement to obtain a Montana resident hunting license in 

violation of § 87-2-106, MCA, reserving the right to appeal to the Fifth Judicial District 

Court, Jefferson County, on his challenge to the residency laws. The Justice Court 

sentenced Britton and he appealed.

¶2 In the District Court, Britton again moved to dismiss the charges on vagueness grounds. 

At the hearing on his motion, Britton's counsel represented that Britton had registered to 

vote in Montana, obtained a Montana identification card, licensed his vehicle in Montana, 

and his wife had purchased real property in Jefferson County, Montana, on which they 

were building a residence. Britton neither testified nor filed his own affidavit. His 

argument was that § 87-2-102, MCA (1995), is vague because other Montana statutes 

define residency differently for purposes such as voting, dissolution of marriage, college 

attendance and taxation. The District Court rejected Britton's argument, determining that 

the fish and game residency requirements are neither vague nor ambiguous, and affirmed 

Britton's Justice Court conviction. Britton appeals to this Court and we affirm.

¶3 Did the District Court err in concluding that the residency requirements for obtaining a 

resident hunting license set forth at § 87-2-102, MCA (1995), are not facially 

unconstitutional on vagueness grounds?

¶4 Statutes are presumed constitutional and a party challenging the constitutionality of a 

statute bears the burden of proving, beyond a reasonable doubt, that the statute is 

unconstitutional. State v. Stanko, 1998 MT 321, ¶¶ 15-16, 292 Mont. 192, ¶¶ 15-16, 974 

P.2d 1132, ¶¶ 15-16 (citations omitted). We review a district court's constitutional 

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conclusions as we do other conclusions of law--to determine whether they are correct. 

MEIC v. Dept. of Env. Quality, 1999 MT 248, ¶ 40, 296 Mont. 207, ¶ 40, 988 P.2d 1236, ¶ 

40 (citation omitted).

¶5 A statute may be challenged as violative of the right to due process for its vagueness on 

two different bases: (1) the statute is so vague that it is void on its face; or (2) the statute is 

vague as applied in a particular situation. Stanko, ¶ 17 (citations omitted). Although 

Britton does not clearly state which basis he is claiming, he cites to the standards for facial 

vagueness and does not set forth an "as applied" argument.

¶6 The void-for-vagueness doctrine requires that a criminal statute define the offense with 

sufficient definiteness that ordinary people can understand what conduct is prohibited and 

in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. 

Lawson (1983), 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909. A vague 

law delegates basic policy matters to law enforcement officers, judges, and juries, for 

resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and 

discriminatory application. Grayned v. City of Rockford (1972), 408 U.S. 104, 108-09, 92 

S.Ct. 2294, 2299, 33 L.Ed.2d 222, 227. 

¶7 Section 87-2-102, MCA (1995), sets forth the criteria for "determining a resident for 

the purpose of issuing resident fishing, hunting, and trapping licenses[.]" It contains eight 

subsections, some of which have several subpoints, addressing the means by which 

members of the armed forces, students, job corps enrollees, unmarried minors and other 

individuals can meet the residency requirements for the referenced licenses. Section 87-2-

102(1) through (8), MCA (1995). In addition, subsection (9) of § 87-2-102, MCA (1995), 

defines when "a person is not considered a resident."

¶8 Britton does not claim that the words or terms used in § 87-2-102, MCA (1995), are 

vague. Nor does he claim that, when viewed alone, § 87-2-102, MCA (1995), is void for 

vagueness. 

¶9 Britton does assert that Montana's various residency statutes, taken as a group, are void 

for vagueness. He points out that residency is defined in approximately seven different 

ways under Montana statutes and administrative rules. Section 1-1-215, MCA, provides 

general rules for determining residence. Section 13-1-112, MCA, sets forth rules for 

determining residency pertaining to voter registration. Section 18-1-103, MCA, addresses 

residence for purposes of bidding on public contracts. Section 61-3-712, MCA, defines 

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"legal residence" for purposes of motor vehicle registration. Section 87-2-102, MCA 

(1995), defines residency for purposes of issuance of fishing, hunting, and trapping 

licenses. Finally, the administrative rule for determining residency for taxation purposes 

appears at Rule 42.15.102, A.R.M. 

¶10 Relying on the general principles regarding vagueness challenges set forth in Stanko, 

¶¶ 21-23, Britton asserts the existence of these various statutory definitions of residency 

may confuse a person of ordinary intelligence and operate as a trap for the innocent. He 

does not argue--and, indeed, could not successfully argue--that our decision in Stanko

holding Montana's "reasonable and prudent" speed statute as unconstitutionally vague 

controls the outcome of this case involving a number of definitional statutes on residency. 

Nor does Britton advance any authority under which a statute has been declared void for 

vagueness on similar grounds. As a result, we address only briefly the statutes Britton 

argues are, when taken together, unconstitutionally vague.

¶11 Section 1-1-215, MCA, Montana's general residency statute, provides "[i]f a person 

claims a residence within Montana for any purpose, then that location is the person's 

residence for all purposes unless there is a specific statutory exception." Section 1-1-215

(2), MCA. "[U]nless there is a specific statutory exception" sounds a clear warning that 

other residency requirements or definitions may apply to particular circumstances, and § 

87-2-102, MCA (1995), clearly provides a specific statutory exception to the general 

definition of residence for purposes of obtaining a Montana fishing, hunting, or trapping 

license.

¶12 In addition, other statutory residency provisions to which Britton refers clearly 

provide that they are for specific acts or purposes other than obtaining a hunting license. 

Section 13-1-112, MCA, states, "[f]or registration, voting, or seeking election to the 

legislature, the residence of an individual must be determined . . . ." (Emphasis added.) 

Section 18-1-103, MCA, states "[f]or the purpose of 18-1-102, 18-1-111, and this section 

[all dealing with bidders for public contracts], the word 'resident' includes . . . ." (Emphasis 

added.) Section 61-3-712, MCA, specifically provides that its definition of "legal 

residence" applies only as used "in § 61-3-711 through § 61-3-733" (regarding state 

registration of motor vehicle fleets). It strains credulity to suggest that a person of ordinary 

intelligence would be confused into believing that any of these statutes define residency 

for the purpose of obtaining a resident hunting license. Moreover, § 87-2-102, MCA 

(1995), could not state more clearly that its provisions apply in "determining a resident for 

the purpose of issuing resident fishing, hunting, and trapping licenses[.]"

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¶13 Finally, Britton asserts one could be lulled into believing one had met the residency 

requirements for a hunting license because the residency requirements for a driver's 

license had been met. This argument is specious. The printed language on Britton's 

hunting licenses and tags states, immediately above the space for the licensee's signature, 

"I declare that I am a legal resident of Montana for Fish and Game Licensing purposes, as 

defined in Section 87-2-102, M.C.A." 

¶14 We conclude Britton has failed to establish that the residency requirements for 

obtaining a resident hunting license set forth in § 87-2-102, MCA (1995), are facially 

unconstitutional on vagueness grounds. We hold, therefore, that the District Court did not 

err in denying his motion to dismiss on that basis.

¶15 Affirmed. 

/S/ KARLA M. GRAY

We concur:

/S/ PATRICIA COTTER

/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

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