MELTON v OLESON
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No. 12701 I N THE SUPREME COURT O THE STATE O M N A A F F OTN PERRY S. MELTON, P l a i n t i f f and Respondent, H. JAMES OLESON, F l a t h e a d County A t t o r n e y , M R Y TABORSKY, F l a t h e a d County C l e r k and ELN Recorder, and B A D O TRUSTEES OF FLATHEAD OR F VALLEY C M U I Y COLLEGE, O M NT Defendants and A p p e l l a n t s . Appeal from: District Court of t h e Eleventh J u d i c i a l D i s t r i c t , Hon. Robert C . Sykes, Judge p r e s i d i n g . Counsel of Record: For Appellants : H . James Oleson, County A t t o r n e y , a r g u e d , K a l i s p e l l , Montana M. Dean J e l l i s o n , Deputy County A t t o r n e y , a r g u e d , K a l i s p e l l , Montana F o r Respondent : White, Vadala, S p r i n g e r and A s t l e , K a l i s p e l l , Montana David L. A s t l e a r g u e d , K a l i s p e l l , Montana P a t r i c k M. S p r i n g e r a p p e a r e d , K a l i s p e l l , Montana Submitted: Decided : September 1 2 , 1974 DEC 2 0 1974 M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e Court. Defendants appeal from a judgment of t h e d i s t r i c t c o u r t , F l a t head County, ordering p l a i n t i f f ' s r e g i s t r a t i o n a s a v o t e r , voiding p l a i n t i f f ' s removal a s a c o l l e g e t r u s t e e , and awarding p l a i n t i f f $4,500 a t t o r n e y f e e s . P l a i n t i f f i s Perry S. Melton, a v o t e r r e s i d i n g i n - F l a t h e a d County, Montana, and a t r u s t e e of Flathead Valley Community College. Defendants a r e t h e Flathead county a t t o r n e y , t h e county c l e r k and r e c o r d e r and t h e board of t r u s t e e s of t h e c o l l e g e . The county a t t o r n e y was subsequently dismissed a s a p a r t y defendant. The m a t e r i a l f a c t s a r e undisputed. I n 1933, i n t h e United S t a t e s d i s t r i c t c o u r t i n Montana, Melton plead g u i l t y t o t h r e e viol a t i o n s of f e d e r a l l i q u o r laws. Counts one and two of t h e i n d i c t - ment involved t h e s a l e of l i q u o r t o Indians; Count t h r e e involved concealing l i q u o r with i n t e n t t o defraud t h e f e d e r a l government of t a x e s due thereon. Melton was sentenced t o 40 days i n j a i l on counts one and two and f i n e d $500 on count t h r e e . The f i n e was suspended and Melton was placed on probation f o r f i v e years. A f t e r 40 years i t i s impossible t o explain t h e s e sentences. The 40 day sentence was 20 days less than t h e minimum sentence set by s t a t u t e . The penalty f o r t h e s a l e of l i q u o r t o any Indian was, a t t h e time of t h e crime, a minimum sentence of 60 days i n j a i l o r a $100 f i n e , o r both, with a maxirmun of not more than 2 years imprisonment and a f i n e of n o t more than $300 f o r each offense. W can f i n d no a u t h o r i z a t i o n e i n t h e f e d e r a l law, a t t h e t i m e , a u t h o r i z i n g probation f o r a period of 5 y e a r s , some 3 years over t h e maximum sentence. Forty years l a t e r t h e Flathead county a t t o r n e y ' s o f f i c e f i l e d a c e r t i f i e d copy of t h e 1933 conviction with t h e county c l e r k and recorder. I t was accompanied by an opinion t h a t Melton h a d thus been convicted of a felony. The c l e r k and recorder thereupon s t r u c k h el ton's name from t h e voting r o l l s . The county a t t o r n e y ' s o f f i c e then advised t h e board of t r u s t e e s of Flathead Valley Community College t h a t Melton was no longer a r e g i s t e r e d v o t e r and t h a t h i s p o s i t i o n a s c o l l e g e t r u s t e e should t h e r e f o r e be declared vacant. The board subsequently s o declared. I n t h e meantime Melton had f i l e d s u i t i n t h e d i s t r i c t c o u r t of Flathead County seeking r e s t o r a t i o n of h i s voting r i g h t s and t o prevent h i s removal a s c o l l e g e t r u s t e e . This a c t i o n became en- tangled i n a procedural morass t h a t d e f i e s d e s c r i p t i o n . I n our view t h e s e procedural complexities a r e n o t germane t o our d e c i s i o n and may be disregarded except a s h e r e a f t e r discussed i n connection w i t h a t t o r n e y fees. The end r e s u l t of t h e d i s t r i c t c o u r t proceedings was a judgment, (1) ordering t h e c l e r k and recorder t o r e g i s t e r Melton as a v o t e r , (2) d e c l a r i n g n u l l and void t h e a c t i o n of t h e c o l l e g e board of t r u s t e e s d e c l a r i n g Melton's s e a t vacant, and (3) ordering Flathead County t o pay m el ton's $4,500 a t t o r n e y f e e s . A l l de- fendants appeal from t h i s judgment. The c o n t r o l l i n g i s s u e s on appeal can be condensed t o t h r e e : (1) Was Melton convicted of a felony w i t h i n t h e meaning of ~ o n t a n a ' sv o t e r q u a l i f i c a t i o n laws? (2) Were permissible l e g a l remedies u t i l i z e d h e r e ? (3) Was t h e award of a t t o r n e y f e e s c o r r e c t ? The f i r s t i s s u e i s t h e p r i n c i p a l s u b s t a n t i v e i s s u e i n t h i s case. el ton's v o t i n g r i g h t s and h i s e l i g i b i l i t y a s c o l l e g e t r u s t e e t u r n on t h i s i s s u e . The d i f f i c u l t y a r i s e s because of c o n t r a r y d e f i n i - t i o n s of a felony under f e d e r a l and s t a t e law. A t a l l m a t e r i a l t i m e s , f e d e r a l law has defined a felony as I1 Any o f f e n s e punishable by death o r imprisonment f o r a t e r m ex- ceeding one year ** *." See 18 U.S.C.A., Sec. 1 and i t s predecessors. Under f e d e r a l law t h e p o s s i b l e punishment t h a t may be imposed determines whether a given crime i s a felony o r a misdemeanor without regard t o t h e sentence a c t u a l l y imposed. Ex p a r t e Margrave, 275 F. 200. A t t h e time of el ton's conviction, t h e crime of s e l l i n g l i q u o r t o Indians was punishable by a maximum imprisonment of two y e a r s and a f i n e of n o t more than $300 f o r each offense. Act of March 15, 1864, Ch. 33, 13 Stat. 29. The minimum sentence could have been a sentence of 60 days in jail or a fine of $100 or both. 29 Stat. 506. This offense is clearly a felony by federal definition despite the 40 day sentence actually imposed on Melton for both violations. A different definition of a felony is prescribed by Montana law. At the time of elt ton's conviction ~ontana's statute, Section 10723, R.C.M. 1921, declared: "A felony is a crime which is punishable with death or by imprisonment in the state prison. misdemeanor. II Every other crime is a The same statute further provided: "When a crime, punishable by imprisonment in the state prison, is also punishable by fine or imprisonment in a county jail, in the discretion of the court or jury, it is a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison. 11 Thus in Montana, the sentence actually imposed after conviction determines whether the defendant has been convicted of a felony. State v. Atlas, 75 Mont. 547, 244 P. 477. This same definition and classification of crimes has been preserved in ~ontana'snew Criminal Code of 1973. Section 94-2-lOl(15) and (31), R.C.M. 1947. We recognize that Montana's statutory definition of a felony relates only to crimes under state law and does not apply to crimes classified by federal statutes. Fousek, 91 Mont. 448, 8 P.2d 791. State ex rel. Anderson v. Nonetheless a fundamental difference of approach is apparent in this state's classification of crimes and the difference of approach between felonies and misdemeanors. The crux of the problem here is whether state or federal law determines the definition of a felony mandating cancellation of voter registration, At the time of cancellation of elt ton's voter registration state law, section 23-3014, R.C.M. 1947, provided in ma terial part : "1 ( ) The registrar [county clerk and recorder] shall cancel any [voter] registration card: "* * * ( e ) If a certified copy of a final judgment of conviction of any elector of a felony is filed * * *. I1 (Bracketed words added.) In construing section 23-3014, R.C.M. 1947, is Montana bound by the federal felony definition at odds with our own law? In 1932 this Court so held in construing a state statute relating to State ex rel. Anderson v. Fousek, forfeiture of a public office. 91 Mont. 448, 455, 8 P.2d 791. In Fousek a city police lieutenant was convicted in federal court of conspiracy to violate federal liquor laws and sentenced to pay a fine of $100. The crime involved carried a maximum punishment of a $10,000 fine and two years imprisonment. This Court held: I t * * -he character of an offense, i.e., whether a a felony or a misdemeanor, must be determined by the laws of the-jurisdictionwhere the crime was committed. As federal law classified the offense as a felony because the maximum punishment exceeded one year, the police lieutenant's position was declared vacant because of "His conviction of a felony" within the meaning of section 511, R.C.M. 1921. Several weaknesses are apparent in this holding and the statutory construction supporting it. It is the responsibility of the Montana legislature to establish qualifications for holding public office (as in Fousek) the instant case). and voting qualifications (as in On what basis are we to imply that they dele- gated this responsibility to another legislative body, be it Congress or the legislature of another state, absent explicit statutory language to that effect? Yet that would be the result of the holding in Fousek--that Montana is bound by foreign classifications of crimes. Glaring injustices would result in many cases. For example, by federal definition the following federal offenses are felonies: Using profanity in a IIhad'radio transmission, 18 U.S.C.A. 5 1464; purchasing a field jacket from a member of the Armed Forces, 18 U.S.C.A. 5 1024; attempting to mail a letter using a stamp which has already been cancelled if committed by a postal employee, 18 USCA .... 5 1720. Did our Montana legislature intend to deny its citizens the right to vote for offenses like these? In the instant case none of the three violations of which Melton was convicted would constitute a felony under our statutory definition and classification of crime. The more recent and persuasive authorities from our sisterstates hold that persons violating federal liquor laws are not disqualified from voting or holding public office where, as here, the offenses would not be felonies under state law. See Elder v. County Election Board, (Okla. 1958), 326 P.2d 776; Yocham v Horn, 201 Okla. 647, 207 P. . 2d 919; State ex rel. Arpagaus v Todd, 225 Minn. 91, 29 N.W.2d . 810. We hold that in construing state statutes relating to voter disqualification, a Montana voter cannot be denied the right to vote because of conviction of an offense in federal court that would not be a felony by Montana statutory definition. We expressly overrule the holding in Fousek that "The character of an offense, i e whether a felony or misdemeanor, must be determined by the .. laws of the jurisdiction where the crime was committed." Therefore, Melton was not disqualified from voting rights; and his position as college trustee was not vacant. Defendants in their second issue contend that the wrong remedies were pursued by Melton in seeking restoration of his voting rights and in seeking to prevent his removal as college trustee. Melton sought a writ of mandate to compel the county clerk and recorder to reinstate his voting registration. The judgment of the district court did not grant such writ of mandate, but simply ordered the clerk and recorder to "register Melton as a voter and Flathead County elector". The district court apparently considered this equivalent to a writ of mandate as it subsequently held a hearing and awarded attorney fees as damages. A writ of mandate is a permissible remedy I1to compel the performance of an act which the law specifically enjoins as a duty resulting from an officet'. It also is available "to compel the admission of a party to the use and enjoyment of a right *** to which he is entitled and from which he is unlawfully precluded." Section 93-9102, R.C.M. 1947. The d i f f i c u l t y here i s t h a t t h e r e w a s no c l e a r l e g a l r i g h t i n Melton t o r e s t o r a t i o n of h i s voting r i g h t s and no c l e a r l e g a l duty on t h e p a r t of t h e c l e r k and recorder t o r e i n s t a t e him a s a voter. =sou was t h e law of Montana a t t h e time of t h e events from which Melton sought r e l i e f . Under Fousek f e d e r a l law and n o t s t a t e law determined whether Melton had been convicted of a felony, and under f e d e r a l l a w a t l e a s t two of t h e o f f e n s e s of which I t i s only by reason of he was convicted were c l e a r l y f e l o n i e s . our d e c i s i o n h e r e i n s p e c i f i c a l l y o v e r r u l i n g t h e Fousek r u l e t h a t Melton i s e n t i t l e d t o p r e v a i l . Nor does a w r i t of mandate l i e t o c o r r e c t o r undo a c t i o n a l r e a d y taken. S t a t e ex r e l . Thompson v. Babcock, 147 Mont. 46, The county c l e r k and r e c o r d e r had a l r e a d y determined 409 P.2d 808. t h a t a c e r t i f i e d copy of a f i n a l judgment of el ton's conviction of a felony had been f i l e d with h e r , which required h e r t o cancel h i s voting r e g i s t r a t i o n . She thereupon cancelled i t . Her acts preceded t h e f i l i n g of Melton's s u i t . W hold t h a t a w r i t of mandate i s n o t a permissible remedy. e But f o r every r i g h t t h e r e i s a remedy. 1947. Section 49-115, R.C.M. el ton's a c t i o n i s c l e a r l y a s u i t f o r e q u i t a b l e r e l i e f and a d j u d i c a t i o n of h i s r i g h t s which he i s c l e a r l y e n t i t l e d t o i n s t i t u t e and prosecute. It i s unnecessary t o d i s c u s s t h e a v a i l a b i l i t y of a w r i t of review t o t e s t t h e v a l i d i t y of t h e a c t i o n of t h e board of t r u s t e e s of t h e c o l l e g e i n d e c l a r i n g become moot by el ton's s e a t vacant. The i s s u e has el ton's subsequent e l e c t i o n t o t h e board, and t h e r e i s no i s s u e concerning a t t o r n e y f e e s on a w r i t of review. The t h f r d i s s u e of defendants i s t h e l e g a l i t y of t h e award of $4,500 a t t o r n e y fees. The only b a s i s f o r such award i s t h e s t a t u t o r y a u t h o r i z a t i o n t o include such award i n judgments g r a n t i n g writs of mandate. thereunder. Section 93-9112, R.C.M. 1947, and c a s e s c i t e d Having found t h a t a w r i t of mandate i s n o t a permis- s i b l e remedy h e r e , t h e award of a t t o r n e y f e e s i s vacated and set aside. In summary, we hold t h a t : Melton was not convicted of a felony within t h e meaning of ~ o n t a n a ' svoter d i s q u a l i f i c a t i o n law; Melton i s e n t i t l e d t o be r e g i s t e r e d a s a voter and e l e c t o r of Flathead County, Montana; the award of attorney f e e s against Flathead County i s vacated and s e t a s i d e ; and, c o s t s a r e awarded t o p l a i n t i f f i n the d i s t r i c t court and upon appeal. W remand t h e case t o the d i s t r i c t court of Flathead County e f o r en t r y of j udgmen t accordingly W e Concur: ................................. Chief J u s t i c e Justices. . Chief Justice James T. Harrison concurring in part and dissenting in part: I concur in the holding that Melton is now entitled to be registered as a voter and elector, and the vacating and setting aside of the attorney fee award. I dissent to the holding that Melton was not convicted of a felony, and the overruling of State ex rel. Anderson v Fousek, . 91 Mont. 448, 455, 8 P.2d 791. ............................... Chief Justice
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