Matter of Justin B. Dickey

01/05/2021
DA 20-0309
Case Number: DA 20-0309
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 3IN RE THE EXPUNGEMENT OF
MISDEMEANOR RECORDS OF
JUSTIN B. DICKEY,
Petitioner and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV-20-408(A)
Honorable Amy Eddy, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
David G. Tennant, Kaufman Vidal Hileman Ellingson PC,
Kalispell, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Rob Cameron, Deputy
Attorney General, Helena, Montana
Travis R. Ahner, Kalispell County Attorney, Amy Kenison, Deputy
County Attorney, Kalispell, Montana
Edward J. Hirsch, Bozeman City Attorney, Bozeman, Montana
Submitted on Briefs: November 4, 2020
Decided: January 5, 2021
Filed:
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__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Justin B. Dickey (Dickey) appeals from a May 28, 2020 Eleventh Judicial District
Court order vacating its prior order to expunge Dickey’s misdemeanor records. We affirm.
¶2 We restate the issues on appeal as follows:
Issue One: Whether the Rules of Civil Procedure apply to a proceeding brought
under the Misdemeanor Expungement Clarification Act.
Issue Two: Whether the District Court erred in determining that Dickey’s 2003
speeding violation in Kalispell was insufficient to establish proper venue in the
Eleventh Judicial District for expungement of misdemeanors under § 46-18-1105,
MCA.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On May 5, 2020, Dickey filed a petition for expungement of his misdemeanor
criminal records pursuant to the Misdemeanor Expungement Clarification Act, Title 46,
chapter 18, part 11, MCA (Expungement Act), in the Eleventh Judicial District Court,
Flathead County, Montana. The petition did not refer to any specific misdemeanor,
referring only to “misdemeanor criminal record(s)” generally. The petition requested the
District Court consider that Dickey had not been charged with any crimes in the fifteen
years since he was an underaged college student and had since become an upstanding
community member who was unlikely to reoffend and posed no danger to the public. The
petition contained no supporting documentation regarding either Dickey’s criminal record
or his successful rehabilitation. The Flathead County Attorney’s Office filed a response
on May 18, 2020, indicating it did not object to the expungement of “the only misdemeanor
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listed on the Defendant’s criminal history from Flathead County, which is a speeding ticket
from 2003.” The District Court granted the petition on May 20, 2020.
¶4 Two days later, the City of Bozeman filed a request for reconsideration alleging
Dickey had improperly delayed serving the City of Bozeman with a copy of the petition.
See § 46-18-1106, MCA (“A person seeking expungement shall serve a copy of the petition
for expungement to every prosecution office that prosecuted an offense for which
expungement is being requested.”). The City of Bozeman attached a response to Dickey’s
petition arguing that venue was improper and that Dickey had not met his burden of proof
necessary to entitle him to expungement. According to this filing, the City of Bozeman
was “aware of at least the following convictions” on Dickey’s record:
 March 6, 2003, Speeding, over 25 MPH in an Urban District, Kalispell City Court;
 April 4, 2004, DUI Alcohol and Drugs, Gallatin County Justice Court;
 August 26, 2004, Obstructing a Peace Officer, Gallatin County Justice Court;
 December 21, 2004, Public Nuisance, Obstructing a Peace Officer, Bozeman
Municipal Court.
¶5 After briefing, the District Court granted reconsideration and determined that venue
was improper, vacating its prior expungement order and dismissing the matter without
prejudice. Dickey subsequently brought this appeal.
STANDARD OF REVIEW
¶6 A district court’s venue determination that a pleading was not filed in the proper
county is a conclusion of law, which this Court reviews de novo. Lucero v. Ford Motor
Co., 2019 MT 150, ¶ 8, 396 Mont. 221, 444 P.3d 389. Questions regarding the adequacy
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of pleadings are questions of law, reviewed de novo. See Anderson v. ReconTrust Co.,
N.A., 2017 MT 313, ¶ 7, 390 Mont. 12, 407 P.3d 692 (“Whether an asserted claim fails to
sufficiently state a claim upon which relief may be granted is a question of law reviewed
de novo for correctness under the standards of M. R. Civ. P. 12(b)(6).” (citation omitted)).
DISCUSSION
¶7 Issue One: Whether the Rules of Civil Procedure apply to a proceeding brought
under the Misdemeanor Expungement Clarification Act.
¶8 Montana law allows a person convicted of one or more misdemeanor offenses to
petition a district court, once in their lifetime, for an order expunging records of those
misdemeanors. Section 46-18-1104, MCA. While expungement is presumed in some
cases, see § 46-18-1107, MCA, expungement is not presumed when a petitioner has
committed one or more specified offenses, including driving under the influence of alcohol
or drugs. See § 46-18-1108(1), MCA. When expungement is not presumed, a district court
must consider several statutory factors such as the length of time since the offense and the
likelihood that the petitioner will reoffend. Section 46-18-1108(2), MCA. A court’s
expungement determination is based on the preponderance of the evidence.
Section 46-18-1109(1), MCA.
¶9 Appellees the Montana Attorney General, Flathead County, and the City of
Bozeman argue that Dickey’s petition did not carry the evidentiary burden necessary to
entitle him to relief under the Expungement Act. The Montana Rules of Civil Procedure
address the scope of the Rules, clearly providing that they apply “in all civil actions and
proceedings in the district courts of the state of Montana.” M. R. Civ. P. 1. The
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Expungement Act created a new civil proceeding within Montana law and, as such, the
Rules of Civil Procedure apply. See In re Estate of Erickson, 2017 MT 260, ¶ 17, 389
Mont. 147, 406 P.3d 1 (holding that the Montana Rules of Civil Procedure govern probate
proceedings unless the Uniform Probate Code specifically provides otherwise). The Rules
require that a claim for relief must contain a short and plain statement of the claim
demonstrating the pleader is entitled to relief, and a demand for the relief sought.
M. R. Civ. P. 8(a); see Anderson, ¶ 8 (“The liberal notice pleading requirements of
M. R. Civ. P. 8(a) and 12(b)(6) do not go so far to excuse omission of that which is material
and necessary in order to entitle relief, and the complaint must state something more than
facts which, at most, would breed only a suspicion that the claimant may be entitled to
relief.” (internal quotations omitted)).
¶10 While Dickey does not contest the DUI conviction here, his petition provided almost
no information whatsoever regarding his criminal record. According to the City of
Bozeman, Dickey has at least one conviction for driving under the influence of alcohol or
drugs. By law, Dickey is not entitled to a presumption in favor of expungement, and
therefore must bear the burden of demonstrating, by a preponderance of the evidence, that
he is entitled to relief under the Expungement Act. See § 46-18-1108(2), MCA (listing
various factors a district court must consider in reaching a determination on a petition for
expungement). To satisfy that evidentiary burden, a petitioner must produce more than a
cursory petition with a general demand that all misdemeanors be expunged by providing
sufficient information to allow an adequate response.
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¶11 It stands to reason that, if the petitioner has the burden of proving that he is entitled
to relief under the Expungement Act, he must specifically identify each “offense for which
expungement is being requested” in the petition in addition to serving copies to every office
“that prosecuted an offense” listed. See § 46-18-1008(2), MCA. Further, § 46-18-1109(3),
MCA, provides: “If a representative of a prosecution office appears, the representative
must be given an opportunity to respond.” While the Expungement Act itself does not
specify the length of time a prosecution office has to respond, the necessary guidance can
be found in the Montana Rules of Civil Procedure.
¶12 Issue Two: Whether the District Court erred in determining that Dickey’s 2003
speeding violation in Kalispell was insufficient to establish proper venue in the
Eleventh Judicial District for expungement of misdemeanors under § 46-18-1105,
MCA.
¶13 Dickey challenges the District Court’s determination that the Eleventh Judicial
District Court was an improper venue for the Expungement Act proceeding, asserting that
he may file his petition wherever he chooses. Venue under the Expungement Act is proper
“in the district court of a judicial district in which the person was convicted of a
misdemeanor for which expungement is sought.” Section 46-18-1105, MCA.1 Dickey
does not specify the misdemeanors he seeks to be expunged and, as noted, his petition
contained no specific information regarding his criminal record. The only available
information regarding Dickey’s criminal history is contained in the responses filed to his
petition. The City of Bozeman listed four infractions from its records, while the Flathead
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As noted above, a petitioner must also give notice to each prosecution office that prosecuted
an offense for which expungement is sought. Section 46-18-1106, MCA.
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County Deputy Attorney described a 2003 speeding ticket as “the only misdemeanor listed
on the Defendant’s criminal history” in Flathead County. Based on the available
information, Dickey’s only violation in the Eleventh Judicial District is his March 6, 2003
speeding violation in Kalispell, ostensibly in violation of § 61-8-303, MCA (“[T]he speed
limit for vehicles traveling . . . in an urban district is 25 miles per hour.”).
¶14 Neither the Expungement Act nor Title 61, MCA, define “misdemeanor.” As
demonstrated by the Flathead County Deputy Attorney’s response filing, speeding has
sometimes been referred to as a misdemeanor. See, e.g., State v. Hurlbert, 2009 MT 221,
¶ 13, 351 Mont. 316, 211 P.3d 869 (relating how a defendant was charged with “speeding,
a misdemeanor, in violation of § 61-8-303, MCA”); State v. Larson, 2004 MT 345, ¶ 16,
324 Mont. 310, 103 P.3d 524 (describing a defendant as having been charged with “one
count of speeding, a misdemeanor, pursuant to § 61-8-303(1)(b), MCA”); State v. Sunford,
244 Mont. 411, 414, 796 P.2d 1084, 1085 (1990) (describing a defendant as having been
convicted of “one count of speeding, a misdemeanor”).
¶15 The term “misdemeanor” under Montana law describes a subset of criminal
violations. Section 45-2-101(42), MCA, defines “misdemeanor” under Title 45, MCA, as
an offense punishable by a fine and/or imprisonment up to one year. See also
Misdemeanor, Black’s Law Dictionary (11th ed. 2019) (defining “misdemeanor” as a
“crime that is less serious than a felony”). However, Dickey’s violation of § 61-8-303,
MCA, is not a criminal matter. While §§ 61-8-104 and -711(1), MCA, provide that
violations of Title 61, MCA, are generally misdemeanors, § 61-8-725(2)(a), MCA, enacted
in 1999, specifically provides that a “violation of a speed limit imposed pursuant to
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61-8-303 is not a criminal offense” under those statutory sections. Because a speeding
violation under § 61-8-303, MCA, is not a crime, it cannot be a misdemeanor as the term
is defined under Montana statute. We see no indication that the term “misdemeanor” has
a special meaning under the Expungement Act that would include civil, as well as criminal,
violations.
¶16 The persistent use of the term “misdemeanor” to describe speeding citations after
the enactment of § 61-8-725(2)(a), MCA, does not undermine the statute’s clear provision
to the contrary. As Dickey has shown no criminal misdemeanors on his record in the
Eleventh Judicial District, the District Court was correct in determining that venue was not
proper under § 46-18-1105, MCA.
CONCLUSION
¶17 The Montana Rules of Civil Procedure apply to proceedings brought under the
Expungement Act. Dickey has not shown that he has a misdemeanor conviction in the
Eleventh Judicial District. The District Court correctly determined that venue was not
proper under § 46-18-1105, MCA, and dismissed the petition without prejudice.
¶18 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE
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