08/05/2025
DA 23-0096
Case Number: DA 23-0096
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 168
STATE OF MONTANA,
Plaintiff and Appellee,
v.
HARLAN G. VASKA,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC-21-170
Honorable Robert J. Whelan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tammy A. Hinderman, Appellate Defender Division Administrator,
Joshua James Thornton, Assistant Appellate Defender, Helena,
Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Cori Losing, Assistant
Attorney General, Helena, Montana
James A. Lapotka, Lake County Attorney, Polson, Montana
Submitted on Briefs: March 26, 2025
Decided: August 5, 2025
Filed:
Clerk
Justice Katherine Bidegaray delivered the Opinion of the Court.
¶1 The Defendant, Harlan Gerald Vaska (Vaska) appeals the order of the Twentieth
Judicial District Court, Lake County, denying his motion to dismiss on the grounds that
the twenty-one-day time delay between his initial appearance and the filing of the
information was reasonable.
¶2 We address the following restated issues:
1. Whether the District Court abused its discretion by concluding that the
twenty-one-day delay between the initial appearance and the probable cause
determination was reasonable.
2. Whether the District Court erred by imposing continuous alcohol monitoring
(SCRAM) as a parole condition.
3. Whether the District Court erred by imposing a $5,000 mandatory minimum fine
under § 61-8-731(3), MCA (2019).
We affirm in part, reverse in part, and remand with instructions.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Just after midnight on May 16, 2021, Lake County Sheriff’s Deputy Brooke
Livingston (Livingston) observed Vaska driving below the posted speed limit with tires
drifting onto the shoulder of Light Road near Pablo, Montana. Vaska subsequently
stopped his vehicle, and Livingston initiated an investigative stop. Livingston observed
signs of intoxication, and Vaska admitted to drinking alcohol. Vaska performed part of
the field sobriety tests before refusing further tests and a breath sample, ultimately
providing a blood sample pursuant to a search warrant. The sample indicated a blood
alcohol concentration of 0.195. Livingston cited Vaska with felony DUI.
2
¶4 At Vaska’s initial appearance for his DUI charge on June 2, 2021, the Justice Court
advised him of his rights; conditionally appointed counsel; notified him that his
preliminary examination hearing was set for June 28, 2021; and released him on his own
recognizance. However, Vaska remained incarcerated because his DUI arrest was a
probation violation on his sentence for a prior crime. Lake County follows a local policy
determining presumptive reasonableness of probable cause determinations for felony
charges based on whether a defendant is incarcerated. Under this policy, which is based
on its understanding of §§ 46-10-105 and 46-11-203, MCA, Lake County considers it
presumptively “within a reasonable time” to determine probable cause by filing an
information or holding a preliminary examination hearing within ten days for defendants
held on bond and within thirty days for defendants not detained specifically on the charged
offense. Consequently, on June 21, 2021, the State moved for leave to file an Information
charging Vaska with DUI, fourth or subsequent offense, a felony, in violation of § 61-8-401 (2019), MCA;1 on June 23, 2021, twenty-one days after Vaska’s initial appearance,
the District Court granted the State leave to file the Information, and the State filed the
Information.
¶5 Vaska moved to dismiss for lack of speedy trial and untimely probable cause
determination. On February 3, 2022, Vaska pleaded not guilty. On November 7, 2022,
the District Court denied Vaska’s motion to dismiss, finding the delays reasonable. After
a jury found Vaska guilty of felony DUI, the District Court committed him to the
1
Repealed by Sec. 44, Ch. 498, L. 2021.
3
Department of Corrections for five years, none suspended; fined him $5,000 pursuant to
§ 61-8-731(3), MCA (2019)2 (without considering his ability to pay the fine although it
determined he was unable to pay the public defender fee or the trial expense fee incurred
by the State); and required him to be fitted with a SCRAM bracelet if released within the
five years. Vaska timely appeals, arguing the twenty-one-day delay between his initial
appearance and the probable cause determination was not “within a reasonable time” as
required by § 46-10-105, MCA, and abandoning his speedy trial claim.
STANDARD OF REVIEW
¶6 We review a district court’s grant or denial of a criminal case, a question of law,
de novo. State v. Robison, 2003 MT 198, ¶ 6, 317 Mont. 19, 75 P.3d 301; State v. Haller,
2013 MT 199, ¶ 5, 371 Mont. 86, 306 P.3d 338. We review a district court’s
“determination of ‘reasonable time’ pursuant to § 46-10-105, MCA, for abuse of
discretion.” State v. McElderry, 284 Mont. 365, 370, 944 P.2d 230, 233 (1997) (citing
generally State v. Higley, 190 Mont. 412, 621 P.2d 1043 (1980) for the rule); Robison, ¶
6; Haller, ¶ 5.
¶7 We review de novo criminal sentences for legality. State v. Heath, 2004 MT 126,
¶ 13, 321 Mont. 280, 90 P.3d 426; State v. Gibbons, 2024 MT 63, ¶ 20, 416 Mont. 1,
545 P.3d 686; State v. Burch, 2008 MT 118, ¶ 12, 342 Mont. 499, 182 P.3d 66. A claim
that a criminal sentence violates a constitutional provision is also reviewed de novo.
Gibbons, ¶ 20. The determination of the retroactivity of a rule created through previous
2
Section 61-8-731(3), MCA (2019), was repealed in 2021 through Sec. 44, Ch. 498, L. 2021, and replaced by § 61-8-1008, MCA.
4
case law is a question of law that we review de novo. State v. Reichmand, 2010 MT 228,
¶ 6, 358 Mont. 68, 243 P.3d 423.
DISCUSSION
¶8 1. Whether the District Court abused its discretion by concluding that the
twenty-one-day delay between the initial appearance and the probable cause
determination was reasonable.
¶9 Under Montana law, prosecution of a felony may be commenced by “an
information following a preliminary examination or waiver of a preliminary
examination”;3 “an information after leave of court has been granted”;4 or “an indictment
upon a finding by a grand jury.”5 Sections 46-11-101, -102, MCA; see also Mont. Const.
art. II, § 20(1). A prosecutor must use one of these three ways to establish probable cause
to charge a felony. Here, probable cause determined by indictment is not at issue because
the Justice Court set a preliminary examination, prior to which the District Court granted
the State leave to file an Information.
¶10 As to timing for a felony probable cause determination, other than by return of an
indictment, § 46-10-105, MCA, requires a justice’s court to hold a preliminary
examination “within a reasonable time” after initial appearance unless “the defendant
waives [it]”;6 or “the district court has granted leave to file an information.”7 If the
prosecutor chooses to apply directly to the district court for leave to file an information,
3
Section 46-11-101(2), MCA.
4
Section 46-11-101(3), MCA.
5
Section 46-11-101(4), MCA.
6
Section 46-10-105(1), MCA.
7
Section 46-10-105(2), MCA.
5
the district court determines whether “there is probable cause to believe that an offense
has been committed by the defendant” and “grants leave to file the information” if it finds
probable cause. Section 46-11-201(2), MCA. If a justice’s court finds probable cause
after a preliminary examination or the district court grants the State leave to file an
information after finding probable cause, “the prosecutor shall file within 30 days in the
proper district court an information charging the defendant with the offense or any other
offense supported by probable cause.” Section 46-11-203(1), MCA. If the State does not
file an information “within 30 days[,]” “the court shall dismiss the prosecution.” Section
46-11-203(1)-(2), MCA.
¶11 Vaska argues the twenty-one-day delay between his initial appearance and the grant
of leave to file the information was unreasonable; he asserts that Lake County should
instead have determined probable cause to charge him within ten days because of his
continued incarceration even if it was on an unrelated probation violation. The State
argues the delay complied with local policy and federal guidelines permitting up to
twenty-one days for defendants not detained specifically on the charged offense. “The
determination of what constitutes a reasonable time pursuant to § 46-10-105, MCA, is
within the discretion of the district court.” State v. Gatlin, 2009 MT 348, ¶ 15, 353 Mont.
163, 219 P.3d 874. We have “held that no definite or ‘trigger’ deadlines are applicable in
determining the reasonableness of the time taken to file an information.” Robison, ¶ 10
(addressing the holding from McElderry). More specifically, we have found that a district
court’s “use of a ten-day deadline which automatically triggers an inquiry and places a
burden upon the State to demonstrate reasonableness is not consistent with our holding in
6
McElderry” (Robison, ¶ 12); that a district court did not abuse its discretion in dismissing
an information for an eleven-day delay (Robison, ¶ 15), a ten-day delay was reasonable
(Higley, 190 Mont. at 420, 621 P.2d at 1048); and in McElderry, we stated that “a
reasonableness inquiry must be ‘determined by the facts of the case.’” Robison, ¶ 12,
(citing McElderry, 284 Mont. at 370, 944 P.2d at 233). The factors identified in Robison
for considering timeliness under § 46-10-105, MCA, include: “length of delay, reasons
for delay, whether the defendant has been incarcerated or prejudiced, whether the
defendant has counsel, the seriousness or complexity of the charge, and other relevant
matters.” Robison, ¶ 12.
¶12 Considering the timeliness factors suggested in Robison, the length of delay,
twenty-one days, was less than the thirty days the State would have had under
§ 46-11-203(1), MCA, to file an information even if probable cause had been determined
on the day of Vaska’s initial appearance. The main reason for the delay is Lake County’s
policy to require prosecutors to file felony charges sooner for defendants who are detained
than those who are not, a policy that reasonably considers both whether a defendant is
incarcerated and the prejudicial impact of incarceration. Lake County’s policy reasonably
distinguished defendants based on custodial status. Lake County was consistent in
applying its policy to Vaska because he remained incarcerated due to a probation violation
in another case, not the DUI charge itself. Moreover, Vaska was provided counsel
immediately at his initial appearance. Importantly, Vaska identified no specific prejudice
resulting from the delay. Given these considerations, and consistent with Robison and
7
McElderry, we conclude the District Court did not abuse its discretion in finding the
twenty-one-day delay reasonable. Thus, we affirm on this issue.
¶13 2. Whether the District Court erred by imposing continuous alcohol monitoring
(SCRAM) as a parole condition.
¶14 District courts may impose parole conditions only if explicitly authorized by
statute. Burch, ¶¶ 23-24. No statute, including § 46-18-201, MCA, and § 61-8-731, MCA
(2019), authorizes a court to impose SCRAM monitoring as a parole condition in a DUI
sentencing context. The State concedes the District Court lacked authority to impose this
condition directly, and we agree. However, rather than striking the condition entirely, we
remand to modify this parole condition into a recommendation to the Board of Pardons
and Parole, consistent with our precedent in State v. Heafner, 2010 MT 87, ¶ 11, 356
Mont. 128, 231 P.3d 1087.
¶15 3. Whether the District Court erred by imposing a $5,000 mandatory minimum fine
under § 61-8-731(3), MCA (2019).
¶16 Vaska challenges the $5,000 mandatory minimum fine imposed pursuant to
§ 61-8-731(3), MCA (2019), arguing it violates the Excessive Fines Clause (Mont. Const.
art. II, § 22), as recently interpreted in Gibbons. Specifically, he argues that this Court
correctly found, in Gibbons, that mandatory minimum fines are facially unconstitutional
because such fines inherently preclude sentencing courts from considering an offender’s
financial ability to pay and consequently fail to meet constitutional proportionality
requirements.
8
¶17 Since Gibbons was issued, the State has repeatedly sought to overturn it, asserting
primarily the same arguments it advanced in Gibbons. As such, we begin our analysis
mindful of the vital importance of stare decisis—a legal principle meaning to stand by
things decided where courts generally adhere to previously decided cases when ruling on
similar issues. “‘Stare decisis is the preferred course because it promotes the evenhanded,
predictable, and consistent development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived integrity of the judicial process.’”
State v. Kirkbride, 2008 MT 178, ¶ 13, 343 Mont. 409, 185 P.3d 340 (quoting Payne v.
Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2609 (1991)). “It is of fundamental and
central importance to the rule of law.” Kirkbride, ¶ 13 (internal citation and quotation
marks omitted). “[P]rinciples of law should be positively and definitively settled so that
courts, lawyers, and, above all, citizens may have some assurance that important legal
principles involving their highest interests shall not be changed from day to day.” State
v. Wolf, 2020 MT 24, ¶ 21, 398 Mont. 403, 457 P.3d 218 (citing State ex rel. Sparling v.
Hitsman, 99 Mont. 521, 525, 44 P.2d 747, 749 (1935)). We have previously set the
standard that a prior decision will be overturned only if it is manifestly wrong—a standard
much higher than merely wrong. Allstate v. Wagner-Ellsworth, 2008 MT 240, ¶ 39,
344 Mont. 445, 188 P.3d 1042.8
8
As Justice Rice has previously noted, quoting from Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 454, 135 S. Ct. 2401, 2408 (2015), “Respecting stare decisis means sticking to some wrong decisions.” Wolf, ¶ 45 (Rice, J., concurring in part and dissenting in part). And, as aptly noted by Justice Shea, “sometimes stare decisis compels us to dance with the one who brung us, even if it means getting our toes stepped on a little.” Wolf, ¶ 56 (Shea, J., concurring in part and dissenting in part).
9
¶18 The State fully presented its arguments in Gibbons and has repeatedly requested it
be overturned since. The Dissent presents similar arguments, arguing that the Excessive
Fines Clause standard should only consider gross disproportionality to the gravity of the
offense, excluding consideration of the offender’s financial circumstances. While we
understand the State and the Dissent would prefer to overrule Gibbons and believe they
have a better interpretation of the statute than the Court employs in Gibbons and today,
they have failed to establish that Gibbons is manifestly wrong.
¶19 As such, we reject the State’s invitation to overturn or narrow Gibbons. Our
decision in Gibbons was carefully considered, thoroughly reasoned, and is not manifestly
wrong. In reaching our holding, we explicitly examined and rejected the very arguments
the State and the Dissent raise here, including the contention that mandatory minimum
fines could be harmonized or upheld through as-applied analyses. We determined in
Gibbons that through the enactment of § 46-18-231, MCA, the Legislature introduced a
mandatory offender-proportionality analysis to be conducted by a court before imposing
any fine, thus ensuring the offender had the ability to pay. Section 46-18-231, MCA,
specifically requires that, when considering the amount of fine to impose, “the financial
resources of the offender, and the nature of the burden that payment of the fine and interest
will impose” must be considered. We concluded that the Legislature, through its
enactment of § 46-18-231, MCA, effectuated state and federal constitutional protections
against excessive fines and fees by codifying the inquiry that was to be made. Gibbons
reflected a considered interpretation of Montana’s Excessive Fines Clause and statutes,
10
consistent with both the language of Article II, Section 22, of the Montana Constitution
and our long-standing constitutional tradition of individualized justice.
¶20 It is particularly notable that, in Gibbons, we engaged in comprehensive and
deliberate analysis of Montana’s Excessive Fines Clause, examining expansive precedent,
constitutional text, historical context, and policy implications. Gibbons, ¶¶ 43-64. We
considered extensive briefing on precisely the points the State and the Dissent now
reassert. The Court carefully considered arguments that individualized assessments of a
defendant’s financial circumstances were unnecessary or inappropriate under our
Excessive Fines Clause jurisprudence. After thorough deliberation, we concluded that
Montana’s constitutional tradition requires proportionality analysis to incorporate
meaningful consideration of the defendant’s ability to pay. Contrary to the assertion in
the Dissent, Gibbons does not represent judicial overreach or departure from established
principles. Rather, Gibbons reflects a careful and deliberate interpretation of the plain
language and legislative purpose of § 46-18-231, MCA, and of Article II, Section 22, of
the Montana Constitution. Nothing the State presents, or the Dissent articulates,
demonstrates that our decision in Gibbons was manifestly wrong, demonstrably
unworkable, or disregarded constitutional boundaries. Neither the State nor the Dissent
present a “cogent reason” for departing from our considered judgment. To reconsider
Gibbons now, absent a compelling justification beyond mere disagreement or political
pressure, would undermine the principle of stare decisis.
¶21 Further, mandatory fines imposed without judicial discretion to consider individual
circumstances fail to meaningfully protect public safety (§ 46-18-101(2)(b), MCA). When
11
fines are assessed against individuals who lack any realistic ability to pay, they fail to
meaningfully enhance public safety, punish offenders commensurate with the harm
caused, or promote rehabilitation. Instead, such fines often result in greater recidivism
due to debt-related stressors and barriers to community reentry. See generally, Council of
Economic Advisers, Fines, Fees, and Bail: Payments in the Criminal Justice System that
Disproportionately Impact the Poor (December 2015).
¶22 Beyond issues relating to public safety, Gibbons acts as a safeguard against
incarceration for lack of ability to pay a fine. The Dissent asserts that because the 2019
version of the statute allowed a sentencing judge to impose incarceration or fine, or both,
§ 61-8-731(3), MCA, was not facially unconstitutional, but rather was an as-applied
challenge. Dissent, ¶ 36. We addressed this argument in Gibbons and rejected it, noting
that a choice between paying a fine and incarceration is no choice for someone who is
indigent and functions to incarcerate a person because they are poor. Gibbons, ¶ 61 (“Far
from remedying the constitutional deficiency, as the State argues, this application of the
ability-to-pay inquiry runs afoul of the basic prohibition against incarcerating an offender
solely for his poverty.”) (citations omitted).
¶23 Given that we decline to overturn Gibbons, it must retroactively apply to Vaska’s
case. Even-handed justice requires that new rules for the conduct of criminal prosecutions
be applied retroactively to all cases pending on direct review or not yet final. State v.
Egelhoff, 272 Mont. 114, 125-26, 900 P.2d 260, 267 (1995) (internal citations omitted).
Because Vaska’s case was still pending on direct appeal when Gibbons was decided, its
holding applies to Vaska retroactively.
12
¶24 In this case, the District Court explicitly determined Vaska’s inability to pay other
monetary obligations (including fees for appointed counsel and trial expenses) yet
imposed the mandatory minimum fine without assessing Vaska’s financial circumstances.
This inconsistency underscores precisely the unconstitutional and problematic nature of
mandatory fines: they compel courts to impose penalties wholly divorced from reality and
individual circumstance.
¶25 Accordingly, we reiterate clearly and unequivocally: we apply stare decisis and
decline to overrule Gibbons. We reverse the $5,000 mandatory fine and remand for
resentencing. On remand, the District Court shall reconsider imposition of a fine in
accordance with the constitutional principles articulated herein and in Gibbons, explicitly
evaluating Vaska’s financial resources and ability to pay.
CONCLUSION
¶26 We affirm the District Court’s decision that the twenty-one-day delay in
determining probable cause was reasonable. We reverse the District Court’s imposition
of the parole condition requiring continuous alcohol monitoring and remand for
modification as a recommendation to the Board of Pardons and Parole. Finally, we reverse
the imposition of the mandatory minimum $5,000 fine and remand for individualized
reassessment in accordance with constitutional principles articulated in State v. Gibbons.
On remand, the District Court shall explicitly evaluate Vaska’s financial resources and
ability to pay, imposing a fine only if it finds that doing so is consistent with the
proportionality requirements clearly established in Gibbons and mandated by Montana’s
Excessive Fines Clause.
13
¶27 Affirmed in part, reversed in part, and remanded to the District Court for further
proceedings consistent with this opinion.
/S/ KATHERINE M BIDEGARAY
We Concur:
/S/ INGRID GUSTAFSON
/S/ LAURIE McKINNON
Justice James Jeremiah Shea, specially concurring.
¶28 I join the Court’s Opinion as to Issues 1 and 2. I specially concur with respect to
Issue 3 because I continue to believe, as I stated in my Dissent in Gibbons, that this issue
did not—and does not—need to be resolved on constitutional grounds. But I would like
to start by pointing out that all seven Justices agree this matter must be remanded to the
District Court to determine Vaska’s ability to pay before any fine can be imposed. After
sifting through all the Sturm and Drang, the dispute here boils down to just how much
discretion the District Court does or does not have in assessing the fine after making that
determination.
¶29 In my Dissent in Gibbons, I laid out my belief that the fine imposed by
§ 61-8-731(3), MCA (2019), could be harmonized with § 46-18-231, MCA’s requirement
that the district courts consider a defendant’s ability to pay before imposing fines. See
Gibbons, ¶¶ 68-77 (Shea, J., concurring in part and dissenting in part). That was, and
continues to be, my preferred route to the conclusion reached by the Court’s Opinion
because it properly avoids the constitutional issues that are evident in the multiple opinions
14
issued in Gibbons and again in this case. See Gibbons, ¶ 78 (Shea, J., concurring in part
and dissenting in part) (internal quote and citation omitted) (“Following our directive to
avoid constitutional issues whenever possible, I would . . . decline to consider Gibbons’s
constitutional challenge to § 61-8-731, MCA.”). A great deal of ink has now been spilled
across two cases hashing out a constitutional issue I still believe can and should be
avoided.1
¶30 But I ultimately specially concur because I also believe that stare decisis and
constitutional avoidance counsel just as heavily against revisiting Gibbons in this case, as
they did against diving into this constitutional melee in the first place. Overruling Gibbons
in this case would require us to make yet another constitutional determination—this time
that the constitutional reasoning of Gibbons was not only wrong, but manifestly wrong.
And even though Gibbons was decided fairly recently, each time we kick up the
constitutional dust we create a cloud of confusion for the citizens of Montana.
¶31 Sometimes getting a little dusty is necessary. But in my view this case illustrates
the precise situation where it isn’t. Mindful of our own admonition to “avoid
constitutional issues whenever possible,” State v. Russell, 2008 MT 417, ¶ 19, 347 Mont.
301, 198 P.3d 271, we should not lose sight of the practical ramifications of this
constitutional dispute, specifically in the case before us. Every member of this Court
agrees that the $5,000 fine the District Court imposed on Vaska should be vacated and the
1
I recognize that I contributed to the multiple Opinions in Gibbons and the irony is not lost on me that I am lamenting that multitude in yet another separate Opinion in this case. But there are some situations where you have to be part of the problem to at least try to be part of the solution.
15
matter remanded for the District Court to determine Vaska’s ability to pay. Assuming the
District Court determines Vaska has the ability to pay—an assumption that is far from
certain—the dispute here boils down to whether the District Court is required to impose
a fine between $5,000 and $10,000, or whether it has the discretion to impose whatever
fine it deems appropriate, but which could include a fine in the exact same range. And
until the District Court has actually determined Vaska’s ability to pay on remand—as we
all agree it is required to do—these lofty debates of constitutional law and stare decisis
are just theoretical disputes that will all be rendered moot if the District Court determines
Vaska can’t pay the fine anyway.
¶32 As in Gibbons, I continue to believe this matter can, and should, be resolved
without wading into the constitutional issue. But notwithstanding my dissent in Gibbons,
I am reluctant to revisit and potentially overturn a precedent of this Court in order to
resolve a theoretical dispute over whether the District Court can or must fine Vaska $5,000
if it determines on remand that he has the ability to pay and which will be nothing more
than an academic resolution if it decides he can’t. As the Court so astutely observed,
“sometimes stare decisis compels us to dance with the one who brung us, even if it means
getting our toes stepped on a little.” Opinion, ¶ 17, n. 8 (quoting Wolf, ¶ 56) (Shea, J.,
concurring and dissenting). True enough, but this is not the case that calls for starting a
donnybrook on the dance floor over who’s driving to the afterparty.
/S/ JAMES JEREMIAH SHEA
Chief Justice Cory J. Swanson, concurring and dissenting.
16
¶33 I join the Opinion on Issues 1 and 2, but dissent from the holding on Issue 3 that the
$5,000 fine for a fifth offense DUI conviction is unconstitutional. That holding relies upon
Gibbons, which we must now recognize as manifestly wrong. We should overrule
Gibbons’s holding and correct our interpretation of the Montana constitutional guarantees
against excessive fines before we inject any more confusion into our caselaw.
¶34 Overruling our prior precedent should never be taken lightly. It is necessary on this
occasion because Gibbons is manifestly wrong for five reasons: (1) it unnecessary reached
a constitutional holding instead of resolving the case through statutory interpretation and
harmonization; (2) the Excessive Fines Clause standard is gross disproportionality to the
offense, not ability to pay; (3) Excessive Fine Clause challenges are appropriately
as-applied and not facial; (4) it wrongly elevated § 46-18-231, MCA, to a constitutional
status to strike down other statutes; and (5) the Gibbons holding is contrary to the United
States Supreme Court and places this Court as an extreme outlier among all courts in
America on Excessive Fines jurisprudence.
¶35 Along the way, Gibbons expressly or impliedly overruled six of our prior cases that
had already addressed these issues in whole or in part, and it sped past rulings on statutory
grounds or as-applied constitutional challenges to unnecessarily and wrongly strike down
a statute as facially unconstitutional. As such, our adherence to stare decisis and sound
jurisprudence requires us to recognize Gibbons must be overruled.
17
1. Gibbons should have been resolved by statutory interpretation and should not have even reached the constitutional issue.
¶36 Gibbons addressed a fifth or subsequent offense DUI conviction, under the same
statute at issue in this case. The 2019 statute stated if a person was convicted for his fifth
DUI after having been previously sentenced to an in-custody treatment program, “the
person shall be sentenced . . . for a term not less than 13 months or more than 5 years or be
fined an amount of not less than $5,000 or more than $10,000 or both.”
Section 61-8-731(3), MCA (2019) (emphasis added). The use of the conjunction “or” is
significant because it grants the court discretion to impose a fine or a custodial sentence,
or both. The court could decide to omit a fine for a custodial sentence, or vice versa.
¶37 The fine has been routinely referred to as a “minimum mandatory” fine under this
statute. But the disjunctive “or” instead of “and” establishes a district court is not required
to impose a fine. If it does so, then the fine must be imposed in the range of $5,000 to
$10,000. It is not truly a minimum mandatory fine, then. It is a discretionary fine, with a
mandatory range of $5,000 to $10,000, if imposed.1
¶38 This understanding brings us to the application of § 46-18-231, MCA. This law,
originally enacted in 1981, provides judges discretion to impose a fine in some instances
when a custodial sentence is inappropriate. The “court may impose a fine, . . . in lieu of or
1
Unlike a fifth or subsequent DUI, the fine for a fourth DUI (also a felony) is mandatory in the range of $5,000 to $10,000. Section 61-8-731(1)(a)–(b), MCA (2019). The Legislature has subsequently amended and reorganized the DUI statutes and now the fines for all DUI offenses, including fifth or subsequent, are mandatory. See § 61-8-1009, MCA (2023).
18
in addition to a sentence of imprisonment.” Section 46-18-231(1), MCA (1981). The
statute conditioned the court’s discretion in two ways.
¶39 First, for certain listed offenses, a court can only impose a fine in addition to, and
not in lieu of, a sentence. These offenses include mitigated deliberate homicide, assault,
kidnapping, sexual assault, and other serious offenses. Legislators expressed concern that
wealthy individuals who committed these serious offenses might attempt to avoid prison
time by paying a large fine, and this limitation was included to foreclose that possibility.
Senate Judiciary Committee, Hr’g on S.B. 14 at 2–3 (January 13, 1981); House Judiciary
Committee, Hr’g on S.B. 14 at 1 (March 10, 1981).
¶40 Second, the Legislature conditioned the court’s discretion on subsection (3), which
stated:
The court may not sentence a defendant to pay a fine unless the defendant is
or will be able to pay the fine. In determining the amount and method of
payment, the court shall take into account the nature of the crime committed,
the financial resources of the defendant, and the nature of the burden that
payment of the fines will impose.
Section 46-18-231(3), MCA (1981). The operative text remained the same over the years,
except modernizing updates have changed “defendant” to “offender” and added ability to
pay the fine and interest. Section 46-18-231(3), MCA (2023).
¶41 We previously held in State v. Mingus, this statute applies only to discretionary
fines, not to mandatory fines such as DUI convictions. State v. Mingus, 2004 MT 24,
¶¶ 14-15, 319 Mont. 349, 84 P.3d 658 “When a fine is statutorily mandated, the court has
no discretion as to whether to impose the fine, irrespective of the defendant’s ability to
pay.” Mingus, ¶ 15.
19
¶42 Justice Shea’s concurrence in Gibbons correctly interpreted the fine and the ability
to pay statute to avoid the constitutional holding striking down the DUI fine. Gibbons,
¶ 68 (Shea, J., concurring). He noted the text of § 61-8-731(3), MCA (2019), grants the
court discretion to impose a fine and not impose a custodial sentence. Gibbons, ¶ 73
(Shea, J., concurring). When exercising that discretion to impose the fine, the judge must
fulfill his or her § 46-18-231(3), MCA, obligation to consider the defendant’s ability to pay
and the gravity of the offense. And if the judge decided to impose a fine, the fine was
required to fall within the statutory range of $5,000 to $10,000. Finding no record the
judge conducted such an ability to pay analysis in Gibbons, Justice Shea recommended
remanding the case back to the district court to analyze the ability to pay before deciding
to impose the fine. Gibbons, ¶ 78.
¶43 Surprisingly, the Gibbons Court did not take this off-ramp to correctly construe the
two laws together and avoid a constitutional holding striking down a statute. Indeed, three
years previously, Justice McKinnon, the author of Gibbons, made nearly the identical
argument in her dissent in State v. Yeaton, 2021 MT 312, 406 Mont. 465, 500 P.3d 583. “I
see no logical construction of § 61-8-731(3), MCA (2019), supporting the contention that
the fine was mandatory. I would conclude the fine imposed on Yeaton was discretionary.”
Yeaton, ¶ 36 (McKinnon, J., dissenting). Justice McKinnon then stated the district court
was required to conduct the ability to pay analysis under § 46-18-231(3), MCA. Yeaton,
¶ 37 (McKinnon, J., dissenting).
¶44 As Justice Shea noted, Gibbons should not have created an overbroad constitutional
holding. The statute in Gibbons was not a mandatory minimum fine, because the
20
conjunction “or” gave a judge the discretion to not impose the fine. The Gibbons Court
declared mandatory minimums unconstitutional when addressing a statute which was not
a mandatory minimum. Similarly here, the fine imposed upon Vaska was not a mandatory
minimum fine, because the court had the authority to not impose a fine.
¶45 Here, the District Court concluded Vaska was unable to pay the OPD fee and various
trial fees. However, the court did not determine if Vaska was able to pay the $5,000 fine.
Because under § 61-8-731(3), MCA (2019), the court is authorized to not impose a fine,
the imposition of the $5,000 fine was discretionary. This case should be remanded to the
District Court to evaluate Vaska’s ability to pay under § 48-16-231(3), MCA.
2. The standard for the Excessive Fines Clause is gross disproportionality to the offense, not the offender’s ability to pay.
¶46 The Excessive Fines Clause can trace its roots all the way back to the 12th century
and the Charter of Liberties of Henry I. Timbs v. Indiana, 586 U.S. 146, 160, 139 S. Ct.
682, 693 (2019) (Thomas, J., concurring in judgement). Considered the predecessor of the
Magna Carta, King Henry I issued the Charter of Liberties upon his ascension to the throne
in 1100, in which he promised his barons and men “shall only make amends according to
the extent of the crime” they committed. Albert Beebe White & Wallce Notestein, Source
Problems in English History 369 (1915). Punishment was proportional to the crime.
¶47 More than a century later, following a rebellion against King John, the Magna Carta
was signed in 1215. The Magna Carta reiterated what was promised in the Charter of
Liberties. It protected Earls, Barons, and the Church as against amercements2 except in the
2
See Timbs, 586 U.S. at 151, n.2, 139 S. Ct. at 688 n.2, regarding amercements and fines.
21
“quantity of [their] offence.” 1 Eng. Stat. at Large 5, § 14 (1225). The Magna Carta did
pay some attention to the personal circumstances of the offender, as it specifically
prohibited the taking of items necessary for the person to practice his trade (such as taking
a serf’s plow). 1 Eng. Stat. at Large 5, § 14 (1225) (“villain . . . shall be likewise amerced,
saving his wainage”). Such livelihood-destroying seizure would increase the magnitude of
the fine through its collateral consequences. The English Bill of Rights subsequently
declared “That excessive Bail ought not be required, nor excessive Fines imposed; nor
cruel and unusual Punishments inflicted.” 3 Eng. Stat. at Large 441, § 10 (1689). It
“reaffirmed Magna Carta’s guarantee” after the abusive Stuart kings were overthrown in
the Glorious Revolution. Timbs, 586 U.S. at 152, 139 S. Ct. at 688.
¶48 The Virginia Declaration of Rights, largely considered the predecessor of the Bill
of Rights, adopted these words verbatim: “excessive bail ought not to be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” Browning-Ferris
Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266, 109 S. Ct. 2909, 2915
(1989) (quoting Solem v. Helm, 463 U.S. 277, 285 n.10, 103 S. Ct. 3001, 3007 n.10
(1983)). And that language became the Eighth Amendment: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.
Const. amend. VIII.
¶49 The United States Supreme Court “has had little occasion to interpret, and has never
actually applied, the Excessive Fines Clause” until United States v. Bajakajian, 524 U.S.
321, 327, 118 S. Ct. 2028, 2033 (1998). There, “Bajakajian attempted to leave the United
States without reporting, as required by federal law, that he was transporting more than
22
$ 10,000 in currency.” Bajakajian, 524 U.S. at 324, 118 S. Ct. at 2031. The statute
provided for the forfeiture of the entire property, $357,114. Bajakajian, 524 U.S. at 325,
118 S. Ct. at 2032. The Supreme Court held “full forfeiture of [Bajakajian’s] currency
would be grossly disproportional to the gravity of his offense.” Bajakajian, 524 U.S.
at 324, 118 S. Ct. at 2031. In determining the standard for excessiveness of a fine, the
Court first looked to the Magna Carta, English Bill of Rights, dictionaries from the
founding era, and the history of the clause, concluding, “None of these sources suggests
how disproportional to the gravity of an offense a fine must be in order to be deemed
constitutionally excessive.” Bajakajian, 524 U.S. at 336, 118 S. Ct. at 2037. Ultimately,
the Court adopted the Cruel and Unusual Punishment test, “hold[ing] that a punitive
forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity
of a defendant’s offense.” Bajakajian, 524 U.S. at 334, 118 S. Ct. at 2036 (emphasis
added). The Court reasoned gross disproportionality is necessary because “judgments
about the appropriate punishment for an offense belong in the first instance to the
legislature” as “any judicial determination regarding the gravity of a particular criminal
offense will be inherently imprecise.” Bajakajian, 524 U.S. at 336, 118 S. Ct. at 2037
(citation omitted). The Court then classified Bajakajian’s offense as a “reporting offense”3
and determined the fine “bears no articulable correlation to any injury suffered by the
Government.” Bajakajian, 524 U.S. at 340, 118 S. Ct. at 2039.
3
The federal district court found “the funds were not connected to any other crime and [Bajakajian] was transporting the money to repay a lawful debt.” Bajakajian 524 U.S. at 326, 118 S. Ct. at 2032.
23
¶50 The United States Supreme Court officially incorporated the Excessive Fines Clause
against the states via the Fourteenth Amendment in Timbs, 586 U.S. at 150, 139 S. Ct.
at 687. While the Court outlined the history of the Excessive Fines Clause to conclude the
clause was “fundamental to our scheme of ordered liberty, with dee[p] root[s] in [our]
history and tradition,” the Court did not address how to determine proportionality. Timbs,
586 U.S. at 149, 139 S. Ct. at 686–87; see also State v. Timbs, 169 N.E.3d 361, 366
(Ind. 2021) (On remand, Indiana Supreme Court highlighted how the Timbs opinion “did
not spell out how courts should determine whether an in rem fine is excessive.”).
¶51 Timbs did not change our caselaw on the test for excessiveness of a fine. Montana
enacted its first Excessive Fines Clause in the 1889 Constitution. It was identical to the
Eight Amendment. Mont. Const. of 1889 art. III, § 20 (“Excessive bail shall not be
required, or excessive fines imposed, or cruel and unusual punishments inflicted.”). It
remained the same in the 1972 Constitution. Mont. Const. art. II § 22. As both the
Montana and federal Excessive Fines clauses are identical in language, we interpreted them
in the same way. State v. Good, 2004 MT 296, ¶ 20, 323 Mont. 378, 100 P.3d 644,
overruled on other grounds in State v. Johnson, 2018 MT 277, 393 Mont. 320, 430 P.3d
494.
¶52 In Good, we looked to Bajakajian to determine “a restitution award ‘violates the
Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s
offense.’” Good, ¶ 23, (quoting Bajakajian, 524 U.S. at 334, 118 S. Ct. at 2036)
(overruled in Johnson, where we held restitution was not a fine). We also noted we “first
24
turn to the legislature’s determination as to what constitutes an appropriate punishment.”
Good, ¶ 23, (citing Bajakajian, 524 U.S. at 336, 118 S. Ct. at 2037).
¶53 In State v. Tam Thanh Le, we upheld a mandatory fine in drug cases calculated at
35% of the market value of the illegal drugs in the case. State v. Tam Thanh Le, 2017 MT
82, ¶ 15, 387 Mont. 224, 392 P.3d 607. We correctly held a fine or punitive assessment
violates the Excessive Fine Provision of the Montana Constitution if it is “grossly
disproportional to the gravity of a defendant’s offense.” Le, ¶ 15 (citing Good, ¶ 23,
following the United States Supreme Court). We held the fine was not grossly
disproportional to the offense. Le, ¶ 15.
¶54 In Johnson, we partially overruled Good on other grounds and concluded a
restitution award is not a fine in the context of the excessive fines clause. Johnson, ¶ 26.
In doing so, we once again reiterated a fine “violates the Excessive Fines Clause ‘if it is
grossly disproportionate to the gravity of a defendant’s offense.’” Johnson, ¶ 26 (citation
omitted).
¶55 Without any real constitutional analysis, Gibbons modified the Excessive Fines
Clause standard and held, “the proportionality analysis required by the Montana and federal
constitutions must include—not only a proportionality to the offense which the Legislature
has determined when establishing the penalty for an offense—a proportionality to the
offender as well.” Gibbons, ¶ 56 (emphasis in original). The justification for this new
standard is elusive. It certainly did not come from any federal or state constitutional
scholarship. In fact, in the next sentence, the opinion expressly disclaims the necessity of
relying upon the United States Supreme Court’s holding in Timbs, but instead invokes the
25
Legislature’s enactment of the ability-to-pay statute, § 46-18-231, MCA, and then claims
this statute is “tethered” to the federal and state guarantee against excessive fines. Gibbons,
¶ 56. This analysis is flawed as explained below.
3. Excessive Fines Clause claims are more appropriately considered as-applied and not as facial challenges to an entire statute.
¶56 We began incorrectly applying the Excessive Fine Clause in facial challenges in
State v. Yang, 2019 MT 266, 397 Mont. 486, 452 P.3d 897. Yang was a 52-year-old
immigrant mother, who did not speak English, lived on $893 in social security and food
stamp benefits, and was caught as a passenger in her ex-husband’s car while he was
transporting 144 pounds of marijuana from California to Minnesota.4 Yang, ¶ 2. Yang
claimed, likely truthfully, she did not know about the marijuana until after she departed
California. Yang, ¶ 5. She pleaded guilty to possessing dangerous drugs, a felony. Yang,
¶ 4. The statute required a fine equal to 35% of the market value of the drugs; in her case,
the court set the fine at $75,600. Yang, ¶ 6. In a parallel proceeding, her ex-husband
received a fine of $4,000. Yang, ¶ 7.
¶57 However, Yang did not raise an Excessive Fines Clause challenge in the district
court. It was an unfortunate oversight, because it meant her as-applied challenge was
waived on appeal. See State v. DeMarie, 2025 MT 115, ¶ 26, 422 Mont. 208, 569 P.3d
602 (as-applied constitutional challenge is waived if not raised in the district court, facial
challenge may be brought for the first time on appeal). Understandably sympathetic to
4
At the time of publishing of Yang, California had legalized marijuana, Minnesota and Montana had not. Montana passed Initiative 190 less than a year later during the 2020 election, and Minnesota legalized marijuana in 2023.
26
Yang’s plight, the Court prescribed a cure worse than the illness by unnecessarily striking
down the 35% penalty statute as facially unconstitutional. It did so by sua sponte declaring
§ 46-18-231(3), MCA, the constitutional embodiment of the Excessive Fines Clause. The
statute was not at issue in the case, and Yang did not address the statute on appeal. That
did not stop the Yang Court from finding the ability-to-pay statute was the Legislature’s
implementation of the Excessive Fines Clause. Yang, ¶¶ 17–21. In words that would haunt
us just a few years later, the Yang Court approvingly cited the mandatory minimum fine
for felony DUI offenses, because the fine was necessarily capped at no more than $10,000,
as a constitutionally acceptable fine, in contrast to the theoretically unlimited fine for the
drug cases at issue. Yang, ¶ 23.
¶58 Justice Rice dissented, criticizing the court for striking down the statute as facially
unconstitutional. Yang could not prove the fine would be excessive in all its applications,
particularly where this Court had already held the 35% fine was constitutional in Le, only
two years before Yang. As Justice Rice noted, “the inquiry should end there.” Yang, ¶ 39
(Rice, J., dissenting). Justice Rice correctly noted the Court erred in finding the
ability-to-pay statute “embodies the Eighth Amendment such that other statutes must
conform to it to also be constitutional.” Yang, ¶ 41 (Rice, J., dissenting) (emphasis in
original).
¶59 Justice Baker’s concurrence and dissent agreed with Justice Rice’s and clarified
Yang had clearly sought an as-applied challenge, not a facial challenge. Yang. ¶ 29 (Baker,
J., concurring in part and dissenting in part). Justice Baker accurately noted the correct
resolution of Yang’s case would have been to grant plain error review and allow her to
27
present an as-applied challenge. Yang, ¶ 32 (Baker, J., concurring in part and dissenting in
part). She may have prevailed because her fine was quite large and possibly grossly
disproportionate to her level of criminality, like in Bajakajian.
¶60 But the Yang Court went beyond the correct resolution of the case, and well beyond
the bounds of sound constitutional analysis, to strike down a criminal penalty law in all its
applications. It did so despite its ink-barely-dry holding in Le that there was at least one
case where the 35% penalty was constitutionally applied. Because the standard for
excessive fines is whether they are grossly disproportional to the defendant’s offense, they
necessarily require case-specific inquiry. “[W]hether a fine is constitutionally excessive
calls for the application of a constitutional standard to the facts of a particular case . . . .”
Yang, ¶ 30 (Baker, J., concurring in part and dissenting in part) (quoting Bajakajian,
524 U.S. at 336 n.10, 118 S. Ct. at 2037 n.10). That requires the defendant to assert an
as-applied constitutional challenge; the Court should decline opportunities to entertain
facial challenges except in the most extreme circumstances, which were not present here.
4. Gibbons impermissibly elevates § 46-18-231, MCA, to constitutional status.
¶61 Federal and state caselaw prior to Gibbons correctly understood the Legislature has
constitutional primacy to determine appropriate punishments and fines. Good, ¶ 23 (citing
Bajakajian, 524 U.S. at 336, 118 S. Ct. at 2037). It necessarily follows that the
Legislature’s enactment of a mandatory minimum fine would not automatically be
constitutionally suspect. The Gibbons Court got around that problem by following Yang
28
to elevate § 46-18-231(3), MCA, into a legislative codification and enactment of Excessive
Fine Clause protections and grant subsection (3) constitutional status.
¶62 This maneuver permitted the Gibbons majority to create, out of thin air, a newly
pronounced standard whereby to interpret not only the Montana, but also the United States
Constitution’s Excessive Fines Clause. Doing so permitted the Court to essentially declare
all mandatory minimum fines unconstitutional. This claim lacks in legitimacy what it
possesses in chutzpah.
¶63 The relevant text states:
The sentencing judge may not sentence an offender to pay a fine unless the
offender is or will be able to pay the fine and interest. In determining the
amount and method of payment, the sentencing judge shall take into account
the nature of the crime committed, the financial resources of the offender,
and the nature of the burden that payment of the fine and interest will impose.
Section 46-18-231(3), MCA.
¶64 The Gibbons Court supplied the Legislature’s intent in passing this law, calling it:
an enlightened response to the increasing punitiveness in the American approach to
criminal justice, an acknowledgment that imposition of mandatory fines on
impoverished defendants are unlikely to reduce future crime, and a recognition that
the impact of mandatory minimum fines is disproportionate on families of poor
defendants and minority communities, particularly those of color.
Gibbons, ¶ 54. The opinion went on to explain how fines trap people in cycles of debt and
incarceration. Gibbons, ¶ 55. “Mandatory minimum fines thus disproportionally impact
minority communities and people of color.” Gibbons, ¶ 55. The opinion states the fine
impacts the offender’s entire family, and its “symbiotic harm” greatly affects the women
in the offender’s family. Gibbons, ¶ 55.
29
¶65 All of that may or may not be true, but it was invented out of whole cloth for the
purposes of the Gibbons opinion. The opinion did not cite to such information in the
record, because the parties did not supply any, and the Legislature did not include any of
this analysis or purpose in its legislative history. The members of the 1981 Montana
Legislature would have been surprised to learn just how enlightened they were, when the
Excessive Fines Clause, not to mention the symbiotic harm to the wives and mothers of
people of color, was never mentioned a single time in the bill’s passage.
¶66 In the Senate Judiciary Committee hearing, Mike Steven, a proponent of the bill on
behalf of the Association of Counties, explained the bill gives judges flexibility and “saves
the taxpayers money if a defendant were to pay a fine rather than go to jail.” Senate
Judiciary Committee, Hr’g on S.B. 14 at 2–3 (January 9, 1981). He pointed out “the cost
to the county of keeping an individual in jail runs as high as sixteen to thirty dollars per
day,” and imposing a fine in lieu of a sentence “would realize some reimbursement for the
crime from the fines levied.” Senate Judiciary Committee, Hr’g on S.B. 14 at 3 (January 9,
1981). Senator Towe, the chief sponsor of the bill, highlighted how, for certain
white-collar offenses, incarceration might not be a likely solution, so this statute gives the
courts discretion to implement a fine in lieu of a sentence in those situations. House
Judiciary Committee, Hr’g on S.B. 14 at 4 (March 6, 1981).
¶67 Additionally, during the hearings on the bill, critics raised concern over sexual
assault being omitted from crimes which only allowed fines in addition to, and not in lieu
of, the imprisonment. Senate Judiciary Committee, Hr’g on S.B. 14 at 2 (January 9, 1981).
Legislators were worried this omission might result in defendants avoiding prison
30
sentences for sexual assaults by paying a fine. This concern was again raised as to other
offenses, and modifications were made to include other offenses “against the body.”
Senate Judiciary Committee, Hr’g on S.B. 14 at 1 (January 13, 1981); House Judiciary
Committee, Hr’g on S.B. 14 at 4 (March 6, 1981). The only discussion about the
excessiveness of a fine was the decision to restrict a judge’s ability to impose a fine over
$50,000. House Judiciary Committee, Hr’g on S.B. 14 at 3 (March 6, 1981).
¶68 Representatives opposing the bill criticized its effect of increasing judicial
discretion in sentencing and fines, highlighting the need for the primacy of the Legislature
in these areas. House Judiciary Committee, Hr’g on S.B. 14 at 3 (March 10, 1981).
Further, those Representatives, who ascribed to the “enlightened view” about helping the
poor, actually labeled this bill as regressive. They argued it would allow wealthier
defendants to pay fines and avoid jail, while disproportionately sending poor people to
custodial punishment. House Judiciary Committee, Hr’g on S.B. 14 at 1 (March 10, 1981).
¶69 While we should not ascribe meaning to a statute based on the comments of a single
legislator or proponent, the legislative history is informative in rejecting the Gibbons
contention this statute was the embodiment of the Excessive Fines Clause. The legislative
history does show one thing: the absolute and glaring absence of discussion of the
Excessive Fines Clause. Nothing in the history of the statute suggests § 46-18-231, MCA,
was intended to be the implementation of the Excessive Fines Clause. This is the proverbial
dog that did not bark in the night.
¶70 Gibbons claims the ability-to-pay statute “codifies [ ] the proportionality analysis
required by the Montana and federal constitutions,” Gibbons, ¶ 56, without analyzing
31
whether these protections even needed legislative codification, because they don’t. The
Excessive Fines Clause is self-executing. See City of Boerne v. Flores, 521 U.S. 507, 524,
117 S. Ct. 2157, 2166 (1997) (superseded by statute) (“The first eight Amendments to the
Constitution set forth self-executing prohibitions on governmental action, and this Court
has had primary authority to interpret those prohibitions”). To determine whether the
provision is self-executing, we ask whether the Constitution addresses the language to the
courts or to the Legislature. If addressed to the Legislature, the provision is
non-self-executing; if addressed to the courts, it is self-executing. Columbia Falls
Elementary Sch. Dist. No. 6 v. State, 2005 MT 69, ¶ 16, 326 Mont. 304, 109 P.3d 257
(internal citations omitted).
¶71 The clause creates a floor, under which the state may not go. And the Court, not the
Legislature, has primary interpretation authority in protecting those rights. The Gibbons
Court surely did not mean to create the absurd result whereby the Legislature can amend
the Montana (and federal?) Constitution by mere passage of a statute, and where the
Legislature takes the front seat in interpreting these fundamental rights, displacing this
Court. While the Legislature may exceed the protections granted by a constitutional
provision, a statute cannot amend the meaning of a constitutional provision. “Although
state and federal statutes may expand upon constitutional protections by creating new
statutory rights, statutes do not alter the protections afforded by the Constitution itself.”
Parents for Priv. v. Barr, 949 F.3d 1210, 1232 (9th Cir. 2020). See also Mont. Const.
art. XIV, §§ 8, 9 (methods of amending the Montana Constitution). As such, any statute,
so far as it exceeds constitutional protections, must be interpreted alongside other
32
provisions in the Montana Code. See generally Title 1, chapter 2, part 1, MCA (provisions
on statutory construction). The Gibbons Court’s refusal to correctly interpret the
ability-to-pay statute along with the mandatory fines for specific offense statutes, created
a manifestly erroneous holding.
¶72 Moreover, the Excessive Fines Clause was dormant in 1981 because the United
States Supreme Court, until Bajakajian, “had little occasion to interpret, and has never
actually applied, the Excessive Fines Clause.” Bajakajian, 524 U.S. at 327, 118 S. Ct.
at 2033. It is neither logical nor historically accurate to conclude the Legislature had the
foresight to implement a nearly forgotten constitutional clause first interpreted 17 years
later by the United States Supreme Court in Bajakajian. Nor is it plausible that it included
a factor, the ability to pay, which only began to be considered by certain state supreme
courts decades after the Bajakajian opinion. And the Legislature did all this without
mentioning the Excessive Fines Clause in its proceedings.
¶73 Finally, the statute’s text does not support the Gibbons holding that it implemented
the Excessive Fines Clause, yet only applied it piecemeal. The statute only applies to fines
for felonies and misdemeanors, omitting administrative fines, civil penalties, or in rem
forfeitures. See Johnson v. Becerra, 674 F. Supp. 3d 949, 955 (D. Mont. 2023) (The
Ninth Circuit “has applied the Excessive Fines Clause in the context of civil penalties for
‘trafficking’ in food stamps, civil fines levied under the Agricultural Marketing Agreement
33
Act, and municipal parking fines.”).5 Gibbons creates a stricter proportionality standard
for felony and misdemeanor fines, but maintains the gross disproportionality standard in
non-criminal penalties and civil asset forfeitures. Applying a more deferential standard to
civil penalties, where on at least some occasions the gravity of the offense is less than in
criminal prosecutions, would create an absurd result.
¶74 Gibbons is the culmination of an error that began in Yang, striking down two
different criminal fine statutes well beyond the requirements of each case or justification
within our Constitution. This double strike is both staggering in its effect and unsettling in
its methodology. The Court did not even analyze, let alone demonstrate, these two statutes
were unconstitutional beyond a reasonable doubt. And the Court intentionally ignored all
the constitutional jurisprudence and precedent available to reach its pre-ordained and
manifestly wrong results.
¶75 The correct reading of the DUI fine and ability to pay statutes is as follows: Where
a mandatory minimum fine is present, the fine is legal unless it is grossly disproportionate
to the offense, and thereby violates the Excessive Fines Clause. If it is a discretionary fine,
the judge must analyze the factors present in § 46-18-231(3), MCA. If there is a permissive
fine of a specified range (as here and in Gibbons), the judge must make a finding as to
ability to pay within the range mandated by the Legislature. If the defendant has the ability
5
Examples within Montana law of civil penalties which, arguably, would not be covered by § 46-18-231, MCA, include: § 50-65-110, MCA, which imposes civil penalties on selling defective cigarettes, § 50-2-124, MCA, which imposes penalties on violations of rules imposed by local boards of health, or § 75-2-413, MCA, which provides for civil penalties in lieu of criminal penalties. Section 75-2-413, MCA, grants the Department of Environmental Quality the discretion to consider the ability to pay. See § 75-1-1001(2), MCA.
34
to pay within the range mandated by the Legislature, the judge may lawfully impose the
fine. If the defendant cannot afford to pay within that range, the judge shall decline to
impose it. That rule would properly harmonize the statutes and restore this Court’s holding
in Mingus.
5. Gibbons is out of step with the United States Supreme Court, all federal courts, and every other state court. (That’s everyone but us.)
¶76 Since Bajakajian, federal circuit courts have adopted more specific tests for
excessiveness of fines. Using different but similar factors, three different tests have
emerged. The Second, Third, Fifth, Seventh, and D.C. Circuits, set forth these factors:
(1) the essence of the crime of the defendant and its relation to other criminal
activity; (2) whether the defendant fits into the class of persons for whom the
statute was principally designed; (3) the maximum sentence and fine that
could have been imposed; and (4) the nature of the harm caused by the
defendant’s conduct.
United States v. Varrone, 554 F.3d 327, 331 (2d Cir. 2009) (citation omitted; cleaned up);
see also United States v. Castello, 611 F.3d 116, 120 (2d Cir. 2010); United States v.
Suarez, 966 F.3d 376, 385 (5th Cir. 2020); United States v. Malewicka, 664 F.3d 1099,
1104 (7th Cir. 2011); United States v. Bikundi, 926 F.3d 761, 795 (D.C. Cir. 2019)
(D.C. Circuit omits “and its relation to other criminal activity” from the first factor.).
¶77 The Ninth, Fourth, and Sixth Circuits differ slightly in the test, looking to “(1) the
nature and extent of the crime, (2) whether the violation was related to other illegal
activities, (3) the other penalties that may be imposed for the violation, and (4) the extent
of the harm caused.” United States v. 100,348.00 in United States Currency, 354 F.3d
1110, 1122 (9th Cir. 2004) (citing Bajakajian, 524 U.S. at 337–40, 118 S. Ct. at 2038–39);
35
see also United States v. Bennett, 986 F.3d 389, 399 (4th Cir. 2021); United States v. Bates,
784 F. App’x 312, 341 (6th Cir. 2019) (Fourth and Sixth Circuits apply the same test as the
Ninth Circuit, although the test structured differently). The Ninth Circuit has also
specifically “decline[d] to incorporate a means-testing requirement for claims arising under
the Excessive Fines Clause.” Pimentel v. City of Los Angeles, 115 F.4th 1062, 1072
(9th Cir. 2024), cert. denied sub nom. Los Angeles, CA v. Pimentel, No. 24-1045, 2025 WL
1496501 (U.S. May 27, 2025).
¶78 Three different tests have also emerged in state courts after the United States
Supreme Court incorporated the Eight Amendment against the states. Ohio, Indiana, and
Washington have been the leaders, each employing a varying amount of deference to the
state legislatures for their determination of proportionality. O’Hear, Michael M., Our
Anemic Excessive Fines Clause: Are State Courts Following the Federal Lead, 60 Wake
Forest L. Rev. (forthcoming) (manuscript at 15), https://perma.cc/RDJ2-CQXE
[hereinafter O’Hear]. No state has gone so far as to declare all mandatory minimums
unconstitutional.
¶79 Washington has been the most defendant friendly state.6 In City of Seattle v. Long,
198 Wash. 2d 136, 493 P.3d 94 (2021), the Washington Supreme Court, applying the Ninth
Circuit gross disproportionality test, included a fifth factor, the ability to pay. Long, ¶¶ 62,
6
Colorado, a rival to Washington in this contest, has also adopted ability to pay analysis in Colorado Dep’t of Lab. & Emp. v. Dami Hosp., LLC, 2019 CO 47M, ¶ 38, 442 P.3d 94. The Colorado case stated ability to pay is relevant in determining the severity of a penalty. Colorado still maintains mandatory minimum fines and sentences. See, e.g., Colo. Rev. Stat. Ann. § 18-1.3-401(13)(a) (requiring the court to sentence a defendant to a midpoint of a presumptive range when the defendant knew the victim was pregnant).
36
72. Long was a homeless man living in his car, which was parked in a city-owned parking
lot. Long, ¶ 2. After the car was parked for 72 hours, the city towed the car and imposed
an impoundment fee of $547.12. Long, ¶ 4. Long challenged the fee under Washington’s
Homestead Act, Article I, § 7 of the Washington Constitution, and the Excessive Fines
Clause. The Washington Supreme Court found the fine, as-applied to Long, violated the
Homestead Act and the Excessive Fines Clause. Long, ¶¶ 80, 81 (“This decision is not
intended to suggest that Seattle can never impound vehicles or impose costs associated
with towing. Nor does it require city parking enforcement officers to determine a vehicle
owner’s ability to pay at the issuance of a parking infraction . . . .”).
¶80 Long illustrates a unique case where a defendant’s financial circumstance is relevant
to gross disproportionality analysis, because Long’s crime was directly caused by his
financial circumstances. Long parked his car in the city parking lot because he was
homeless, and was placed in “life circumstances over which [he had] little control and
hence for which [he had] little culpability.” O’Hear, at 26. Where the crime is directly
caused by a defendant’s poverty, and where it is an offense of little to no criminal
culpability, then it may be grossly disproportional under Bajakajian, 524 U.S. at 340,
118 S. Ct. at 2039. Long does not easily translate from a (relatively) high fine imposed for
a low-criminality offense of over-duration parking, to a repeat criminal conviction such as
fifth and subsequent DUI conviction in Gibbons and this case. The Gibbons Court
overreached when relying on Long in support of its ability to pay analysis. Gibbons, ¶ 49
n.1.
37
¶81 Despite an exhaustive search, I have been unable to find a single federal or state
holding which has stricken a statute as facially unconstitutional under the Excessive Fines
Clause.7 This Court has now done it twice, both times unnecessarily and contrary to prior
precedent. Despite claiming to follow the United States Supreme Court’s interpretation of
the Eighth Amendment’s identical language as the Montana Constitution’s protection
against excessive fines, we have strayed mightily from that Court and every other
American court that has considered this question. The Montana Supreme Court is now the
extreme outlier on this issue.
6. Stare Decisis
¶82 Having determined Yang and Gibbons incorrectly interpreted the applicable statutes
and pronounced an unsupportable constitutional standard at odds with every other court’s
reading of the Excessive Fines Clause, we must next consider whether the doctrine of stare
decisis counsels continued acceptance of Gibbons and Yang.
¶83 Stare decisis plays an important role in our caselaw, serving many valuable ends. It
protects the interests of those who have acted in reliance on a past decision. Payne v.
Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2609 (1991). It fosters evenhanded
7
Relying on United States Supreme Court’s Apprendi decision, as extended in Alleyne v. United States, Arizona’s appellate court struck down under the Sixth Amendment right to jury trial— because the factual issue was determined by the judge—a mandatory minimum fine equal to “three times the value as determined by the court of the dangerous drugs involved in or giving rise to the charge.” State v. Angulo-Chavez, 247 Ariz. 255, ¶ 11, 448 P.3d 296 (Ct. App. 2019); see also Alleyne v. United States, 570 U.S. 99, 112, 114–115, 133 S. Ct. 2151, 2160, 2162 (2013) (declaring mandatory sentence enhancement, which required judicial determination of a fact triggering a higher mandatory minimum, unconstitutional under Sixth Amendment’s right to jury trial.). Arizona excised the portion calling for the judicial determination of the value, maintained the “three times the value of the drug” mandatory minimum, and found the defendant was not prejudiced by the judicial determination of the value of the drugs. Angulo-Chavez, ¶¶ 14, 16.
38
decision making by requiring that like cases be decided in a like manner. State v. Spagnolo,
2022 MT 228, ¶ 8, 410 Mont. 457, 520 P.3d 330. It “contributes to the actual and
perceived integrity of the judicial process.” Spagnolo, ¶ 8 (citation omitted). Stare decisis
also provides a “way of accumulating and passing down the learning of past generations, a
font of established wisdom richer than what can be found in any single judge or panel of
judges.” Neil Gorsuch, A Republic, If You Can Keep It 217 (2019).
¶84 However, “Court decisions are not sacrosanct, . . . and stare decisis is not a
mechanical formula of adherence to the latest decision. Indeed, we have held that stare
decisis does not require us to follow a manifestly wrong decision.” McDonald v. Jacobsen,
2022 MT 160, ¶ 30, 409 Mont. 405, 515 P.3d 777 (quoting State v. Gatts, 279 Mont. 42,
51, 928 P.2d 114, 119 (1996)) (emphasis removed).
¶85 Many factors have been identified by this Court and the United States Supreme
Court in past cases. These factors help determine if the dispute is one of differing
interpretations, or if the prior opinion is one that is based on exceptionally weak grounds
and must be overruled. The relevant considerations in this case are: (1) the type of right
implicated in the error; State v. Running Wolf, 2020 MT 24, ¶ 22, 398 Mont. 403, 457 P.3d
218 (citation omitted); (2) the nature and quality of the precedent’s reasoning; McDonald,
¶ 30 (citation omitted); (3) the individual or societal reliance interests in the precedent;
Lawrence v. Texas, 539 U.S. 558, 577, 123 S. Ct. 2472, 2483, (2003); (4) the precedent’s
age, consistency with previous decisions, or reliance upon by subsequent decisions; and
(5) the workability of the precedent; Payne, 501 U.S. at 827, 111 S. Ct. at 2609. All these
factors counsel against the continuing validity of Yang and Gibbons.
39
Type of Right Implicated in the Error
¶86 The errors in our prior cases are both constitutional and matters of statutory
interpretation. Yang incorrectly interpreted the ability-to-pay statute and therefore initiated
a stream of flawed constitutional analysis. Gibbons showed the error will not be confined
to a discrete set of cases or situations. Indeed, this flawed reasoning has wide-ranging
implications. For an issue of statutory interpretation, the error must not be simply a dispute
between two viable alternative statutory interpretations. Instead, the precedent must be
based on an incorrect reading of the statute. In Running Wolf, we overruled our statutory
interpretation where we concluded “the legislature could not have intended” the prior
interpretation. Running Wolf, ¶ 23.
Nature and Quality of Reasoning
¶87 The nature and quality of the reasoning in Yang and Gibbons call for reversal. Both
cases were a distinct departure from on-point prior holdings of the Court, and both relied
upon fictional legislative intent and spurious constitutional analysis to reach their results.
Their interpretation of § 46-18-231(3), MCA, is manifestly wrong. This argument is not a
dispute between two viable alternate interpretations of statutory text. The Gibbons and
Yang interpretation is simply not viable. The plain text of the statute shows the Legislature
could not have intended the suggested interpretation. The legislative history shows the
Legislature did not intend this interpretation of the statute. This interpretation has created
bad law, and will continue to do so.
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Reliance
¶88 There has been little reliance on Gibbons thus far. In this case, any reliance would
not be upset. Any defendant sentenced without the DUI fine will not have it reimposed,
and any fines imposed in the pre-Gibbons era are undisturbed. A defendant may still raise
an as-applied Excessive Fines Clause challenge. In cases where the defendant has waived
his or her challenge, we will consider plain error review if appropriate. Had the Court
entertained such a challenge in Yang, this mess may have been avoided.
Consistency with Prior Precedent
¶89 As for consistency with prior precedent, Yang and Gibbons took a wrecking ball to
this Court’s previous holdings and interpretation of the issues. Together, they overruled,
impliedly or expressly, all or parts of the following cases: Mingus, Good, Johnson, Le,
Yang, and Yeaton. They unnecessarily struck down two statutes on the demonstrable
fiction they could never be applied in a constitutional manner. And despite the Court’s
claim that we follow the United States Supreme Court on interpreting the Excessive Fines
Clause, these two cases have taken this Court where all others fear to tread.
¶90 The Opinion chides this Dissent with a well-cited and well-reasoned admonition on
the importance of following our precedent. Opinion, ¶¶ 17–18. I’m thrilled to see the
Court has now found religion on the doctrine of stare decisis. It was notably lacking only
a year ago when the Gibbons Court gave short shrift to the sanctity of our prior precedents
without pausing to ponder the far-reaching consequences of its quantum leap in judicial
law-making: “stare decisis is not an inexorable command . . . it is weakest when we
interpret the Constitution . . . we place a high value on getting it right, because citizens
41
must live with a bad decision unless we correct our mistake . . . when governing decisions
are badly reasoned or insufficiently reasoned, we are not constrained to follow precedent.”
Gibbons, ¶ 62 (citations and quotations omitted). Now having moved the Court to a
newly-discovered constitutional interpretation (discovered by no one else), it defends the
newly occupied terrain by raising the banner of STARE DECISIS and scolding anyone
lamenting the jurisprudential casualties in our wake. I’m not convinced by these post-hoc
rationalizations.
Workability
¶91 Gibbons and Yang are not workable as guiding lights to correctly understand and
apply Excessive Fines Clause jurisprudence. Hundreds of sentencing hearings must now
be redone after remand on appeal or other postconviction proceedings. The Court is now
entertaining creative challenges to various even minimal mandatory fines or jail sentences.
The courts will see litigation from defendants seeking to overturn their otherwise
proportional fine because their sentencing did not involve an inquiry by a district court
judge. Why? Because any statute slightly divergent from § 46-18-231(3), MCA, is
unconstitutional under Gibbons.
¶92 And now we get to the real crux of the issue: what happens when the Legislature
amends § 46-18-231, MCA, as it might? If it is the embodiment of the Excessive Fines
Clause, and other statutes are unconstitutional because they do not follow its dictates, how
do we respond if the Legislature changes it? Does the mandatory fine suddenly become
constitutional again because the Legislature no longer requires an inquiry into ability to
42
pay? This conundrum exposes the truth that Gibbons and Yang are a constitutional edifice
built upon sand.
¶93 I would overrule Yang and Gibbons consistent with this Dissent. I would hold under
Mingus and Yeaton that the $5,000 to $10,000 fine for a felony DUI is not grossly
disproportionate for an offense wherein the offender has been previously convicted of at
least four prior DUI offenses and already sent to a custodial treatment program. And I
would remand the case back to the District Court to determine whether Vaska has the
ability to pay the discretionary fine for a fifth offense DUI under the 2019 statute, with the
understanding that if the court imposes a fine, it must be in the mandatory range of $5,000
to $10,000.
/S/ CORY J. SWANSON
Justice Jim Rice joins the Concurrence and Dissent of Chief Justice Cory J. Swanson.
/S/ JIM RICE
Justice Beth Baker, dissenting in part.
¶94 I join the Court’s Opinion on Issues 1 and 2. With respect to Issue 3, I do not join
the Chief Justice’s Dissent but am persuaded for several of the same reasons that our
decision in Gibbons should be overruled. The State has not requested that we overrule
Yang, however, and I accordingly would not do so. Yang is distinguishable on its facts
and by the nature of the statute there considered.
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¶95 I am a strong adherent to the doctrine of stare decisis, particularly in matters of
statutory construction. See, e.g., City of Missoula v. Sadiku, 2021 MT 295, ¶ 13, 406
Mont. 271, 498 P.3d 765; State v. Spagnolo, 2022 MT 228, ¶¶ 8, 15, 410 Mont. 457, 520
P.3d 330; Est. of Woody v. Big Horn Cnty., 2016 MT 180, ¶ 20, 384 Mont. 185, 376 P.3d
127; In re B.W., 2014 MT 27, ¶ 38, 373 Mont. 409, 318 P.3d 682 (Baker, J., dissenting);
State v. Stiffarm, 2011 MT 9, ¶¶ 23-24, 359 Mont. 116, 250 P.3d 300 (Baker, J.,
dissenting). But that principle is not as compelling here. Gibbons has been the law for
little more than a year, so reliance on the decision is not a big factor. Compare Stiffarm,
¶ 23 (Baker, J., dissenting) (noting thirty-year consistency in the Court’s interpretation of
statute at issue). More so, Gibbons overturned some twenty years of precedent. See
Gibbons, ¶ 79 (Rice, J., dissenting).
¶96 The Court observes that the State “has repeatedly sought to overturn” Gibbons,
“primarily” on the same arguments it advanced in that case. This is our first opportunity
to consider those arguments. In my view, the State has brought additional light to the
inquiry, as has the Chief Justice’s Dissent, most notably in its historical examination of
§ 46-18-231, MCA, and the Excessive Fines Clause. Despite my reluctance to reexamine
a case decided only a year ago (see In re B.W., ¶ 38 (Baker, J., dissenting)), I am convinced
that Gibbons was wrongly decided and that we should not perpetuate the error.
¶97 It continues to be my position, as I expressed in Yang, that a defendant in many
cases will be able to challenge a mandatory fine on an as-applied basis. See Yang, ¶ 30
(Baker, J., dissenting) (“[W]hether a fine is constitutionally excessive calls for the
application of a constitutional standard to the facts of a particular case[.]”)
44
(quoting Bajakajian, 524 U.S. at 336 n.10, 118 S. Ct. at 2037 n.10). But I cannot agree
that the statute Vaska challenges in this case is facially unconstitutional. As Gibbons
compels a contrary conclusion, I would overrule it.
¶98 The conflict between § 46-18-231(3), MCA, and statutes mandating a minimum
fine presents a matter of statutory interpretation. In this case, however, the 2019 statute
under which Vaska was sentenced makes the imposition of a fine discretionary.
See 61-8-731(3), MCA (2019) (providing that a person with Vaska’s history—this being
his tenth overall DUI and third felony DUI—“shall be sentenced to the department of
corrections for a term of not less than 13 months or more than 5 years or be fined an
amount of not less than $5,000 or more than $10,000, or both.” [Emphasis added]). I
therefore agree with the Chief Justice that the case should be remanded for consideration
of the fine applying the 2019 statute under which Vaska was sentenced.
/S/ BETH BAKER
45