NO. 93-506 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

CITY OF MISSOULA, 

Plaintiff and Respondent, 

JAMES ASBURY, DEBORAH BAKER, 

LONNIE BOSTON, CLAIRE BRISENDINE, 

FRANK BRISENDINE, HELEN BROWN, 

THOMAS BRUECKNER, STEVEN EUKER, 

MIKE FARMER, JOHN GROVE, DEANA IRVINE, 

PATRICK KINSELLA, GAIL KRAUTTER, 

PATRICK MCCURDY, BRADLEY PRIGGE, 

KEITH SIMMONS, ROGER SMITH, BRADLEY 

STEPHENSON, and RALPH TURNER, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Patrick F. Flaherty, Attorney at Law, 

Great Falls, Montana 

For Respondent: 

Judith L. Wang, Assistant City Attorney, 

Missoula, Montana 

Submitted on Briefs: April 7, 1994 

Decided: April 27, 1994 

Filed: 
Justice Karla M. Gray delivered the Opinion of the Court. 

The numerous Appellants in this case appeal from an order of 

the Fourth Judicial District Court, Missoula County, affirming the 

judgment of the Municipal Court of the City of Missoula convicting 

them of criminal offenses. The assertions of error relate to 

alleged abuses of discretion by the Municipal Court in granting the 

City of Missoulats motion in limine excluding certain testimony and 

materials from evidence in the underlying criminal trial. We 

affirm. 

The relevant facts in this case are not in dispute. 

Appellants were among numerous people arrested at the Blue Mountain 

Clinic in Missoula on November 23, 1991, as a result of their 

activities in blocking the Clinic doors and interfering with people 

desiring to utilize the Clinic. All adult defendants were charged 

with trespass, criminal contempt and disorderly conduct; the City 

subsequently amended the charge of disorderly conduct to one of 

failure of disorderly persons to disperse. 

Certain defendants filed motions to dismiss the charges. A 

number of notices of affirmative defenses also were filed. The 

City of Missoula (City) filed a motion in limine requesting the 

Municipal Court to exclude evidence purportedly relating to 

defenses. The court denied the motions to dismiss and granted the 

City's motion in limine. 

A jury trial was held and Appellants were convicted of the 

three offenses with which they were charged. They appealed their 
convictions to the District Court on a variety of grounds, 

including the granting of the City's motion in limine. 

The District Court reviewed the record and questions of law 

pursuant to 5 3-6-110, MCA. ~t rejected Appellantst assertions of 

error, affirmed the judgment of the Municipal Court and remanded to 

that court for execution of the sentences imposed. On motion of 

the Appellants, the District Court subsequently stayed execution of 

the sentences pending appeal to this Court. 

Did the Municipal Court abuse its discretion in excluding 

evidence relating to whether life begins at conception? 

Appellants' assertions of error relating to the Municipal 

Court's granting of the City's motion in limine are premised on the 

principles that criminal defendants have a right to be heard and to 

present a defense. These principles and their importance in 

American jurisprudence are so fundamental and well-established as 

to need no discussion or citation to authority. 

It is equally clear, however, that limitations exist on the 

right to be heard and present a defense. "In the exercise of this 

right, the accused, as is required of the State, must comply with 

established rules of procedure and evidence designed to assure both 

fairness and reliability in the ascertainment of guilt and 

innocence." Chambers v. Mississippi (1973), 410 U.S. 284, 302, 93 

S.Ct. 1038, 1049, 35 L.Ed.2d 297, 313. 

In the case before us, the City filed a motion in limine-- 

primarily on relevance grounds--to exclude testimony and materials 

to be offered by Appellants in connection with their "defenses." 

The Municipal Court granted the motion. 

3 
"The purpose of a motion in limine is to prevent the 

introduction of evidence which is irrelevant, immaterial, or 

unfairly prejudicial." City of Helena v. Lewis (Mont. 1993), 860 

P.2d 698, 700, 50 St.Rep. 1103, 1104 (citation omitted). We will 

not overturn a court's grant of such a motion absent an abuse of 

discretion. Lewis, 860 P.2d at 700. 

The admissibility of the evidence to be offered by Appellants 

at trial is, in the first instance, a question of relevance. 

"Relevant evidence means evidence having any tendency to make the 

existence of any fact that is of consequence to the determination 

of the action more probable or less probable than it would be 

without the evidence." Rule 401, M.R.Evid. Relevant evidence 

generally is admissible; "[elvidence which is not relevant is not 

admissible." Rule 402, M.R.Evid. Relevant evidence in this case 

relates to whether the Appellants committed the charged offenses 

and whether any recognized defenses are applicable. 

Defenses to criminal charges generally are matters of statute 

in Montana. Defenses available include c compulsion^^ and "use of 

force in defense of person," sometimes called the justifiable use 

of force defense, as defined in §§ 45-2-212 and 45-3-102, MCA. The 

compulsion defense merges the common law defenses of necessity, 

justification, compulsion, duress and "choice of two evils." State 

v. Ottwell (1989), 240 Mont. 376, 379, 784 P.2d 402, 404. 

Appellants herein do not specifically argue that any of the 

evidence excluded by the grant of the City's motion in limine is 

relevant to these, or any other, statutory defenses. Moreover, 
they appear to concede that, under Lewis, the compulsion defense is 

not available here because it does not excuse criminal conduct in 

response to imminent threat of harm to a third party. See Lewis, 

Appellants do present a lengthy discussion on when life 

begins. They assert that the Municipal Court abused its discretion 

in excluding evidence of their belief that life begins at 

conception, without citing to any defense to which that evidence 

might be relevant. 

Appellants apparently are attempting to argue that, if life 

begins at conception, they are entitled to rely on the justifiable 

use of force defense. Insofar as is relevant here, that defense 

justifies a person's "use of force . . . against another when and 

to the extent that he reasonably believes that such conduct is 

necessary to defend . . . another against such other's imminent use 

of unlawful force." Section 45-3-102, MCA. 

As best we can construct Appellants' argument, it is this: 

1. Appellantsr acts of trespass would be 

characterized as the "use of forcew against 

another--the Clinic; 

2. The Clinic's performing of abortions would be 

characterized as the "use of force"; 

3. Appellants believe that life begins at 

conception; 

4. Under Appellantst belief, the fetus would be 

against whom the use of force was 

imminent ; 

5. Thus, Appellantsv vvforciblevv trespass would be 

based on their "reasonable belief" that such 

conduct was necessary to defend the fetus 

against the imminent use of force by the 

Clinic. 

Even assuming (without so holding) that the first two 
characterizations were appropriate, the statutory justifiable use 

of force defense is not applicable to Appellants' conduct. 

Section 45-3-102, MCA, requires that the use of force against 

another alleged to be imminent, and to justify a corresponding use 

of force, must be uunlawful." In light of the continued efficacy 

of Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, 

the Clinic's activities cannot constitute the unlawful force 

required for application of the justifiable use of force defense as 

defined in 5 45-3-102, MCA. 

Appellants contend that our decision in Strzelczyk v. Jett 

(Mont. 1994), - P.2d -, 51 St.Rep. 206, supports their position 

that they were entitled to defend against criminal charges by 

discussing when life begins. We disagree. 

In Jett, we concluded that a full-term fetus is a "person" as 

defined in 5 27-1-513, MCA, for purposes of bringing an action for 

the tort of wrongful death. Jett, 51 St.Rep. at 208. We did not 

reference or discuss issues of viability or when life begins. 

Moreover, the concurring opinion in Jett specifically notes that 

the case did not relate to abortion in any way, and briefly 

discusses the differences between acts which might form the basis 

for a negligence action for wrongful death and those which result 

in a lawful abortion under Roe. Jett, 51 St.Rep. at 208 (Gray, J., 

specially concurring). 

We conclude that the Municipal Court did not abuse its 

discretion in excluding Appellants' evidence on when life begins. 
for Appellantsf conduct. 

Did the Municipal Court abuse its discretion in excluding 

"treaty" or "international lawn defenses? 

Several of the Appellants raised an issue of reliance on 

treaties entered into by the United States in their motions to 

dismiss in the Municipal Court. The City included reliance on the 

treaty in its motion in limine, which was granted by that court. 

In a section of their brief before us entitled "Whether the trial 

court erroneously excluded the defense of international laws,ff 

Appellants reassert that treaty issue here. The City responds that 

the treaty/international laws issue is not properly before us. We 

agree. 

As set forth above, the District Court reviewed this appeal 

from the Municipal Court under 3-6-110, MCA. Under that 

procedure, unlike Ifappealstf for trial de novo from justice court to 

district court, the district court acts as an appellate court and 

reviews questions of law presented on the record before it. See 5 

3-6-110, MCA; In the Matter of Municiual Court Appeals to District 

Court, Order of the Montana Supreme Court, dated May 12, 1992. 

The Appellants filed a ffDefendantsf Opening Brief,If together 

with an appendix to that brief, in their appeal to the District 

Court. The City filed a responsive brief. No further briefs were 

filed. We have scrutinized the Appellantsf brief in the District 

Court closely. It advances no issue regarding the treaty as 

paramount law; indeed, the treaty Appellants attempt to rely on 

here is never mentioned therein. 

The principle that this Court will not address an issue not 

8 
Did the Municipal Court abuse its discretion in excluding 

evidence of biblical or moral justification? 

Appellants also assert that the Municipal Court abused its 

discretion in precluding their ability to rely on biblical or moral 

justification as a defense to the criminal charges against them. 

As set forth above, defenses to criminal charges are statutory in 

Montana. Appellants' individual religious and moral beliefs are 

neither included in, nor relevant to, those statutory defenses. 

In affirming a district court's rejection of biblical or moral 

justifications for actions substantially similar to those of 

Appellants here, we quoted with approval the following language 

from Cleveland v. Municipality of Anchorage (Alaska 1981), 631 P.2d 

"[tlhey [philosophers and religionists discussing civil 

disobedience] have been in general agreement that while 

in restricted circumstances a morally motivated act 

contrary to law may be ethically justified, the action 

must be non-violent and the actor must accept the penalty 

for his action. In other words, it is commonly conceded 

that the exercise of a moral judgment based upon 

individual standards does not carry with it legal 

justification or immunity from punishment for breach of 

the law. I'

Lewis, 860 P.2d at 702-703. The same reasoning applies here. 

Appellants' beliefs are sincere and fervent and Appellants are 

entitled to hold and act upon them. Those personal beliefs, 

however, do not provide legal justification for, or immunize 

Appellants from the consequences of, acts which violate the 

criminal laws of Montana. 

We conclude that the Municipal Court did not abuse its 

discretion in excluding evidence of biblical or moral justification 
presented to the trial court is well-established. State v. 

Thompson (1993), 259 Mont. 62, 65, 853 P.2d 1188, 1190. The 

rationale underlying the principle--while seldom stated--is that 

both fairness and judicial economy necessitate bringing alleged 

errors to the attention of each court involved, so that actual 

error can be prevented or corrected at the first opportunity. See 

State v. Applegate (Or. App. 1979), 591 P.2d 371, 373. Here, of 

course, the "treaty1I issue was presented to the trial court which, 

in this instance, was the Municipal Court. However, the treaty 

issue was not presented to the first-level appellate court--here, 

the District Court. 

While we have little experience in Montana with two-tiered 

appeals such as that presently before us, the expressed rationale 

clearly carries over into a two-tiered appeal. Thus, based on the 

Appellants1 failure to raise the treaty issue at the first 

appellate level in the District Court, we conclude that the issue 

is not properly before us. As a result, we decline to address it. 

i 

AFFIRMED. 

We concur: . 

--... 
April 27, 1994 

CERTIFICATE OF SERVICE 

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

to the following named: 

Roderick K. Ermatinger 

ATTORNEYS INC., P.C. 

301 West Spruce 

Missoula, MT 59802 

Robert C. Kelleher, Sr. 

Attorney at Law 

P. 0. Box 397 

Butte, MT 59703 

Patrick F. Flaherty 

Attorney at Law 

625 Central Ave. W, #I01 

Great Falls, MT 59404 

Frank and Claire Brisendine 

731 Stuart 

Helena, MT 59601 

Helen A. Brown 

233 Many Lakes Dr. 

Kalispell, MT 59901-8365 

Steven M. Euker 

213 Glacier Drive 

Lolo, MT 59847 

Gail S. Krautter 

524 First St. 

Helena, MT 59601 

John T. Lewis 
P. 0. Box 4594 

Butte, MT 59702 

Patrick & Amanda McCurdy 

106 Dunbar Avenue 

Helena, MT 59601 

Bradley Prigge 

2618 Phillips St. 

Butte, MT 59701-4134 

Keith Simmons 

P. 0. Box 4012 

Missoula, MT 59806 

Roger C. Smith 

800 Cleveland 

Missoula, MT 59801 

Bradley & Shelley Stephenson 

P. 0. Box 1402 

Fort Benton, MT 59442-1402 

Ralph Turner 

509 Grandview Drive 

Stevensville, MT 59870 

Judith Wang 

Deputy City Attorney 

Missoula City Hall 

Missoula, MT 59802 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATkOF MONTANA