first prong test in Montana

1990In considering the first prong of this test, we have previously held that “prior acts need not be identical to the offense committed but be merely of ‘sufficient similarity’ in order to comply with this first criteria.” State v. Eiler, 762 P.2d at 216 , quoting State v. Tecca, 220 Mont. 168 , 714 P.2d 136 (1986).

1990In considering the first prong of this test, we have previously held that “prior acts need not be identical to the offense committed but be merely of ‘sufficient similarity’ in order to comply with this first criteria.” State v. Eiler, 762 P.2d at 216 , quoting State v. Tecca, 220 Mont. 168 , 714 P.2d 136 (1986).

2015In re N.A., 2013 MT 255, ¶ 23 , 371 Mont. 531 , 309 P.3d 27 . “[N]ot all errors of state law amount to deprivation of procedural due process; rather, we employ a flexible balancing test to determine whether a particular safeguard is required in a specific circumstance.” In re NA., ¶ 23 (citing Engle v. Isaac, 456 U.S. 107 , 121 n.21, 102 S. Ct. 1558 , 1568 n.21 (1982) and Mathews v. Eldridge, 424 U.S. 319, 334-35 , 96 S. Ct. 893, 902-03 (1976)).

2015In re N.A., 2013 MT 255, ¶ 23 , 371 Mont. 531 , 309 P.3d 27 . “[N]ot all errors of state law amount to deprivation of procedural due process; rather, we employ a flexible balancing test to determine whether a particular safeguard is required in a specific circumstance.” In re NA., ¶ 23 (citing Engle v. Isaac, 456 U.S. 107 , 121 n.21, 102 S. Ct. 1558 , 1568 n.21 (1982) and Mathews v. Eldridge, 424 U.S. 319, 334-35 , 96 S. Ct. 893, 902-03 (1976)).

2015In re N.A., 2013 MT 255, ¶ 23 , 371 Mont. 531 , 309 P.3d 27 . “[N]ot all errors of state law amount to deprivation of procedural due process; rather, we employ a flexible balancing test to determine whether a particular safeguard is required in a specific circumstance.” In re NA., ¶ 23 (citing Engle v. Isaac, 456 U.S. 107 , 121 n.21, 102 S. Ct. 1558 , 1568 n.21 (1982) and Mathews v. Eldridge, 424 U.S. 319, 334-35 , 96 S. Ct. 893, 902-03 (1976)).

2015In re N.A., 2013 MT 255, ¶ 23 , 371 Mont. 531 , 309 P.3d 27 . “[N]ot all errors of state law amount to deprivation of procedural due process; rather, we employ a flexible balancing test to determine whether a particular safeguard is required in a specific circumstance.” In re NA., ¶ 23 (citing Engle v. Isaac, 456 U.S. 107 , 121 n.21, 102 S. Ct. 1558 , 1568 n.21 (1982) and Mathews v. Eldridge, 424 U.S. 319, 334-35 , 96 S. Ct. 893, 902-03 (1976)).

2015In re N.A., 2013 MT 255, ¶ 23 , 371 Mont. 531 , 309 P.3d 27 . “[N]ot all errors of state law amount to 8 deprivation of procedural due process; rather, we employ a flexible balancing test to determine whether a particular safeguard is required in a specific circumstance.” In re N.A., ¶ 23 (citing Engle v. Isaac, 456 U.S. 107 , 121 n.21, 102 S. Ct. 1558 , 1568 n.21 (1982) and Mathews v. Eldridge, 424 U.S. 319, 334-35 , 96 S. Ct. 893, 902-03 (1976)).

2015In re N.A., 2013 MT 255, ¶ 23 , 371 Mont. 531 , 309 P.3d 27 . “[N]ot all errors of state law amount to deprivation of procedural due process; rather, we employ a flexible balancing test to determine whether a particular safeguard is required in a specific circumstance.” In re NA., ¶ 23 (citing Engle v. Isaac, 456 U.S. 107 , 121 n.21, 102 S. Ct. 1558 , 1568 n.21 (1982) and Mathews v. Eldridge, 424 U.S. 319, 334-35 , 96 S. Ct. 893, 902-03 (1976)).

2013State v. Couture, 2010 MT 201, ¶ 78 , 357 Mont. 398 , 240 P.3d 987 ; State v. Garcia, 2003 MT 211, ¶¶ 32-33 , 317 Mont. 73 , 75 P.3d 313 . ¶21 Nevertheless, in the instant case, while J.S.W.’s claim does implicate her fundamental right to testify, thereby meeting the first prong of the test for plain error review, she has failed to establish any factual basis for her contention that her right to testify was violated.

2013State v. Couture, 2010 MT 201, ¶ 78 , 357 Mont. 398 , 240 P.3d 987 ; State v. Garcia, 2003 MT 211, ¶¶ 32-33 , 317 Mont. 73 , 75 P.3d 313 . ¶21 Nevertheless, in the instant case, while J.S.W.’s claim does implicate her fundamental right to testify, thereby meeting the first prong of the test for plain error review, she has failed to establish any factual basis for her contention that her right to testify was violated.

2013State v. Couture, 2010 MT 201, ¶ 78 , 357 Mont. 398 , 240 P.3d 987 ; State v. Garcia, 2003 MT 211, ¶¶ 32-33 , 317 Mont. 73 , 75 P.3d 313 . ¶21 Nevertheless, in the instant case, while J.S.W.’s claim does implicate her fundamental right to testify, thereby meeting the first prong of the test for plain error review, she has failed to establish any factual basis for her contention that her right to testify was violated.

2013State v. Couture, 2010 MT 201, ¶ 78 , 357 Mont. 398 , 240 P.3d 987 ; State v. Garcia, 2003 MT 211, ¶¶ 32-33 , 317 Mont. 73 , 75 P.3d 313 . ¶21 Nevertheless, in the instant case, while J.S.W.’s claim does implicate her fundamental right to testify, thereby meeting the first prong of the test for plain error review, she has failed to establish any factual basis for her contention that her right to testify was violated.

2013The declarant who seeks medical treatment has a selfish motive in telling the truth, and the declarant knows that the effectiveness of the treatment received will depend in large part on the accuracy of the information provided. 14 Harris, 247 Mont. at 412-13 , 808 P.2d at 457 .

2013The declarant who seeks medical treatment has a selfish motive in telling the truth, and the declarant knows that the effectiveness of the treatment received will depend in large part on the accuracy of the information provided. 14 Harris, 247 Mont. at 412-13 , 808 P.2d at 457 .

1991State v. Eiler, [ 234 Mont. 38 , (1988)], 762 P.2d at 216 , quoting State v. Tecca, 220 Mont. 68 , 714 P.2d 136 (1986)...

1990In considering the first prong of this test, we have previously held that “prior acts need not be identical to the offense committed but be merely of ‘sufficient similarity’ in order to comply with this first criteria.” State v. Eiler, 762 P.2d at 216 , quoting State v. Tecca, 220 Mont. 168 , 714 P.2d 136 (1986).

2023This requires: (1) “the challenged conduct is inherently of limited duration, so as to evade review”; and (2) “there [is] a reasonable expectation the same complaining party [will] be subject to the same action again.” Havre Daily News, LLC v. City of Havre, 2006 MT 215, ¶ 34 , 333 Mont. 331 , 142 P.3d 864 (citing Spencer v. Kemna, 523 U.S. 1, 17-18 , 118 S. Ct. 978, 988 (1998)). ¶15 Ailer cannot establish the applicability of this exception because, even assuming the first prong of this inquiry can be met, he cannot show a reasonable expectation he will be subject to the same criminal charge

2023This requires: (1) “the challenged conduct is inherently of limited duration, so as to evade review”; and (2) “there [is] a reasonable expectation the same complaining party [will] be subject to the same action again.” Havre Daily News, LLC v. City of Havre, 2006 MT 215, ¶ 34 , 333 Mont. 331 , 142 P.3d 864 (citing Spencer v. Kemna, 523 U.S. 1, 17-18 , 118 S. Ct. 978, 988 (1998)). ¶15 Ailer cannot establish the applicability of this exception because, even assuming the first prong of this inquiry can be met, he cannot show a reasonable expectation he will be subject to the same criminal charge

2022Brenden, ¶ 16 (citing Kornec, 120 Mont. at 7-8 , 180 P.2d at 256 ; Keller, 111 Mont. at 38 , 108 P.2d at 611 ). ¶31 The first prong of the test for whether an employee committed or engaged in a particular unauthorized act or type of conduct within the scope or course of his or her employment—i.e., whether he or she committed or engaged in the unauthorized act or conduct incidental to an expressly or implicitly authorized act or conduct—requires proof that the unauthorized act or conduct both “arose out of” and was “closely related to,” or “intermingled with,” the “performance of an expressly o

2022Brenden, ¶ 16 (citing Kornec, 120 Mont. at 7-8 , 180 P.2d at 256 ; Keller, 111 Mont. at 38 , 108 P.2d at 611 ). ¶31 The first prong of the test for whether an employee committed or engaged in a particular unauthorized act or type of conduct within the scope or course of his or her employment—i.e., whether he or she committed or engaged in the unauthorized act or conduct incidental to an expressly or implicitly authorized act or conduct—requires proof that the unauthorized act or conduct both “arose out of” and was “closely related to,” or “intermingled with,” the “performance of an expressly o

2019Wilford , 50 N.E.3d at 375 -76 . [12] It is perfectly clear that the first prong of the test was met here.

2016Sartain , ¶ 11 (citations omitted). ¶11 Under the first prong of the test, the deficiency prong, counsel’s performance should be evaluated without the “distorting effects of *32 hindsight.” Strickland, 466 U.S. at 689 , 104 S. Ct. at 2065 .

2016Sartain , ¶ 11 (citations omitted). ¶11 Under the first prong of the test, the deficiency prong, counsel’s performance should be evaluated without the “distorting effects of *32 hindsight.” Strickland, 466 U.S. at 689 , 104 S. Ct. at 2065 .

2013In my judgment, the District Court’s conclusion was not only correct, but also consistent with that of numerous courts which have considered a public employee’s expectation of privacy and decided that an Internet use policy negates any such expectation. ¶74 In U.S. v. Angevine, 281 F.3d 1130 (10th Cir. 2002), a university professor did not have a reasonable expectation of privacy in the contents of his computer given that the university had a computer policy explaining appropriate computer use and stating that usage could be monitored.

2013Yellowstone Co., ¶ 20 (citing Lincoln Co. Commn. v. Nixon, 1998 MT 298, ¶ 16 , 292 Mont. 42 , 968 P.2d 1141 ). ¶73 In this case, the District Court observed that neither party had disputed the first prong of the test—actual or subjective expectation of privacy—and the District Court thus found that “the Employees did expect the fact they were disciplined for having misused public computers and the specifics regarding that misuse would be and remain private.” The District Court further determined, however, that the Employees’ subjective expectations of privacy were unreasonable in light of thei

2013Yellowstone Co., ¶ 20 (citing Lincoln Co. Commn. v. Nixon, 1998 MT 298, ¶ 16 , 292 Mont. 42 , 968 P.2d 1141 ). ¶73 In this case, the District Court observed that neither party had disputed the first prong of the test—actual or subjective expectation of privacy—and the District Court thus found that “the Employees did expect the fact they were disciplined for having misused public computers and the specifics regarding that misuse would be and remain private.” The District Court further determined, however, that the Employees’ subjective expectations of privacy were unreasonable in light of thei

2011She quotes this language from two observations made in our Lovegren decision: first, that ‘“[ejncounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime,’ ’’Lovegren, ¶ 16 (emphasis added) (quoting Terry, 392 U.S. at 13 , 88 S. Ct. at 1876 ), and second, that “ ‘[ljocal police officers ... frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, i

2011She quotes this language from two observations made in our Lovegren decision: first, that ‘“[ejncounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime,’ ’’Lovegren, ¶ 16 (emphasis added) (quoting Terry, 392 U.S. at 13 , 88 S. Ct. at 1876 ), and second, that “ ‘[ljocal police officers ... frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, i

2005General Motors Corp. v. Romein (1992), 503 U.S. 181, 186 , 112 S.Ct. 1105, 1109 , 117 L.Ed.2d 328, 337 . 16 In determining impairment, we will consider the extent to which the industry has been regulated in the past.

2005General Motors Corp. v. Romein (1992), 503 U.S. 181, 186 , 112 S.Ct. 1105, 1109 , 117 L.Ed.2d 328, 337 . 16 In determining impairment, we will consider the extent to which the industry has been regulated in the past.

2004In re Marriage of Gerhart, 2003 MT 292, ¶ 29 , 318 Mont. 94, ¶ 29 , 78 P.3d 1219, ¶ 29 .

2004In re Marriage of Gerhart, 2003 MT 292, ¶ 29 , 318 Mont. 94, ¶ 29 , 78 P.3d 1219, ¶ 29 .

2003Berlin, 268 Mont. at 458 , 887 P.2d at 1189 . ¶30 Many of the determinative factors in Toenyes, Drilcon and Berlin are present in this case.

2003Berlin, 268 Mont. at 458 , 887 P.2d at 1189 . ¶30 Many of the determinative factors in Toenyes, Drilcon and Berlin are present in this case.

2000We have previously recognized the suggestive nature of this type of identification procedure and the State concedes that this identification procedure was impermissibly suggestive, satisfying the first prong of the test. ¶21 “Under the second prong of the test, we must determine whether, under the totality of the circumstances, the identification procedure gave rise to a substantial likelihood of irreparable misidentification.’’ Schoffner, 248 Mont. at 266 , 811 P.2d at 552 .

2000We have previously recognized the suggestive nature of this type of identification procedure and the State concedes that this identification procedure was impermissibly suggestive, satisfying the first prong of the test. ¶21 “Under the second prong of the test, we must determine whether, under the totality of the circumstances, the identification procedure gave rise to a substantial likelihood of irreparable misidentification.’’ Schoffner, 248 Mont. at 266 , 811 P.2d at 552 .

1998MW Golden argues that its purchase of the Swimlift from Spectrum was a condition unilaterally imposed by a third party, exempting it from Montana jurisdiction under this first prong of the test, citing May v. Figgins (1980), 186 Mont. 383 , 607 P.2d 1132 .

1998MW Golden argues that its purchase of the Swimlift from Spectrum was a condition unilaterally imposed by a third party, exempting it from Montana jurisdiction under this first prong of the test, citing May v. Figgins (1980), 186 Mont. 383 , 607 P.2d 1132 .

1997State v. Weldy (1995), 273 Mont. 68, 74 , 902 P.2d 1, 5 (citing State v. Tecca (1986), 220 Mont. 168, 172 , 714 P.2d 136, 138 ).