Archive | McGrath, C.J. (concurring)

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Carbon County Resource Council v. Mont. Bd. of Oil & Gas Conservation

Carbon County Resource Council v. Mont. Bd. of Oil & Gas Conservation, 2016 MT 240 (Sept. 27, 2016) (Baker, J.; McGrath, C.J., concurring) (5-0, rev’d)

Issue: Whether Plaintiffs’ claims were ripe for judicial review.

Short Answer: Yes.


Facts: In October 2013, Energy Corporation of America announced plans to develop oil and gas leases in the Beartooth Mountains. Energy Corp. filed an application with the Board for a permit to drill an exploratory oil and gas well in Carbon County, the Hunt Creek 1–H well. Carbon County Resource Council and Northern Plains Resource Council objected to the permit. The Board held a hearing, after which it approved the permit, stating that Energy Corp. did not propose hydraulic fracturing (fracking) at the site.…

Petaja v. Montana Public Employees’ Association (MPEA)

Petaja v. Montana Public Employees’ Association (MPEA), 2016 MT 143 (June 8, 2016) (Rice, J.; McGrath, C.J., concurring) (5-0, aff’d)

Issue: (1) Whether substantial evidence supported the jury verdict finding MPEA breached its duty of fair representation; (2) whether the jury verdict was contrary to the instructions and the law; (3) whether Petaja’s claim was barred by res judicata; and (4) whether the district court had authority to award attorney fees. 

Short Answer: (1) Yes; (2) no; (3) this claim was waived for purposes of appellate review; and (4) no.


Facts: Petaja was terminated from her position with Lewis and Clark County as the clinic coordinator of the WIC program. The county claimed Petaja was terminated due to reorganization; she claims she was terminated because of her age, 59.…

Sparks v. Emmert

Sparks v. Emmert, 2016 MT 43 (Feb. 23, 2016) (McKinnon, J.; McGrath, C.J., concurring) (5-0, rev’d)

Issue: Whether the district court erred in granting summary judgment to Emmert.

Short Answer: Yes.


Facts: Kurt Heigis executed a quitclaim deed conveying his home to Frances Emmert in 2001. According to Emmert, on the day the deed was executed, June 17, 2001, Heigis personally delivered it to Emmert at her home in Reed Point, Montana. He told Emmert to keep it and not record it until something happened to him. Emmert contends that she and Heigis agreed Heigis would continue to live on his property, maintain it and pay all expenses. Emmert stored the deed in her safe.…

City of Missoula v. Duane

City of Missoula v. Duane, 2015 MT 232 (Aug. 11, 2015) (Cotter, J.; McGrath, C.J. concurring) (5-0, aff’d)

Issue: (1) Whether allowing Dr. Sjolin to testify against Duane via Skype offended Duane’s rights under the Confrontation Clause; and (2) whether the district court erred in concluding M.R. Evid. 611(e) does not apply to criminal cases.

Short Answer: (1) No; and (2) yes, but it was a harmless error.


Facts: Duane and two others were charged with misdemeanor cruelty to animals after police responded to a report of a dead puppy, found filthy conditions and no water, and a necropsy revealed the puppy died of blunt force trauma.

Before trial, the city requested that Dr. Sjolin, the veterinarian who performed the necropsy, be allowed to testify via Skype, or that her supervisor be allowed to testify to Sjolin’s report, as Sjolin had moved to California.…