first part test in Montana

2011Ankeny , ¶ 53. ¶17 As to the first part of the test, Strickland provides that “a reviewing court ‘must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance’ and the defendant ‘must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’ ” Whitlow , ¶ 21 (quoting Strickland, 466 U.S. at 689 , 104 S. Ct. at 2065 ).

2011Ankeny , ¶ 53. ¶17 As to the first part of the test, Strickland provides that “a reviewing court ‘must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance’ and the defendant ‘must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’ ” Whitlow , ¶ 21 (quoting Strickland, 466 U.S. at 689 , 104 S. Ct. at 2065 ).

1984Gilmore v. Gilmore (1975), 166 Mont. 47 , 530 P.2d 480 . there must be a change of circumstances, but that change is not measured in a vacuum.

1984Gilmore v. Gilmore (1975), 166 Mont. 47 , 530 P.2d 480 . there must be a change of circumstances, but that change is not measured in a vacuum.

2022“We consider an act to be ministerial where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Beasley v. Flathead County Bd. of Adjustments, 2009 MT 120, ¶¶ 16-17 , 350 Mont. 171 , 205 P.3d 812 (citing Smith v. County of Missoula, 1999 MT 330, ¶ 28 , 297 Mont. 368 , 992 P.2d 834 ). ¶16 Yellowstone Disposal argues “[t]he expiration of [the MEPA statutory deadlines] imposed a clear legal duty on DEQ to issue Yellowstone Disposal’s requested license,” citing § 75-1-208(7)(a), MCA, which provide

2022“We consider an act to be ministerial where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Beasley v. Flathead County Bd. of Adjustments, 2009 MT 120, ¶¶ 16-17 , 350 Mont. 171 , 205 P.3d 812 (citing Smith v. County of Missoula, 1999 MT 330, ¶ 28 , 297 Mont. 368 , 992 P.2d 834 ). ¶16 Yellowstone Disposal argues “[t]he expiration of [the MEPA statutory deadlines] imposed a clear legal duty on DEQ to issue Yellowstone Disposal’s requested license,” citing § 75-1-208(7)(a), MCA, which provide

2022If the first part of the standard is not met—that is, if no clear legal duty is established— issuance of the writ is barred.’” Boehm, ¶ 9 (quoting Best v. Police Dep’t of Billings, 2000 MT 97, ¶ 14 , 299 Mont. 247 , 999 P.2d 334 ); see also § 27-26-102, MCA. ¶15 The “clear legal duty” must be a ministerial act that allows the agency no discretion.

2022If the first part of the standard is not met—that is, if no clear legal duty is established— issuance of the writ is barred.’” Boehm, ¶ 9 (quoting Best v. Police Dep’t of Billings, 2000 MT 97, ¶ 14 , 299 Mont. 247 , 999 P.2d 334 ); see also § 27-26-102, MCA. ¶15 The “clear legal duty” must be a ministerial act that allows the agency no discretion.

2022“We consider an act to be ministerial where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Beasley v. Flathead County Bd. of Adjustments, 2009 MT 120, ¶¶ 16-17 , 350 Mont. 171 , 205 P.3d 812 (citing Smith v. County of Missoula, 1999 MT 330, ¶ 28 , 297 Mont. 368 , 992 P.2d 834 ). ¶16 Yellowstone Disposal argues “[t]he expiration of [the MEPA statutory deadlines] imposed a clear legal duty on DEQ to issue Yellowstone Disposal’s requested license,” citing § 75-1-208(7)(a), MCA, which provide

2022“We consider an act to be ministerial where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Beasley v. Flathead County Bd. of Adjustments, 2009 MT 120, ¶¶ 16-17 , 350 Mont. 171 , 205 P.3d 812 (citing Smith v. County of Missoula, 1999 MT 330, ¶ 28 , 297 Mont. 368 , 992 P.2d 834 ). ¶16 Yellowstone Disposal argues “[t]he expiration of [the MEPA statutory deadlines] imposed a clear legal duty on DEQ to issue Yellowstone Disposal’s requested license,” citing § 75-1-208(7)(a), MCA, which provide

2015If personal jurisdiction exists under the first step of the test, we then determine whether the exercise of personal jurisdiction conforms with “the traditional notions of fair play and substantial justice embodied in the due process clause.” Cimmaron Corp. v. Smith, 2003 MT 73, ¶ 10 , 315 Mont. 1 , 67 P.3d 258 (citing Threlkeld v. Colorado, 2000 MT 369, ¶ 9 , 303 Mont. 432 , 16 P.3d 359 ). “[I]f personal jurisdiction does not exist under the first part of the test, further analysis under the second part of the test is unnecessary.” Cimmaron, ¶ 10. ¶19 M.

2015If personal jurisdiction exists under the first step of the test, we then determine whether the exercise of personal jurisdiction conforms with “the traditional notions of fair play and substantial justice embodied in the due process clause.” Cimmaron Corp. v. Smith, 2003 MT 73, ¶ 10 , 315 Mont. 1 , 67 P.3d 258 (citing Threlkeld v. Colorado, 2000 MT 369, ¶ 9 , 303 Mont. 432 , 16 P.3d 359 ). “[I]f personal jurisdiction does not exist under the first part of the test, further analysis under the second part of the test is unnecessary.” Cimmaron, ¶ 10. ¶19 M.

2015If personal jurisdiction exists under the first step of the test, we then determine whether the exercise of personal jurisdiction conforms with “the traditional notions of fair play and substantial justice embodied in the due process clause.” Cimmaron Corp. v. Smith, 2003 MT 73, ¶ 10 , 315 Mont. 1 , 67 P.3d 258 (citing Threlkeld v. Colorado, 2000 MT 369, ¶ 9 , 303 Mont. 432 , 16 P.3d 359 ). “[I]f personal jurisdiction does not exist under the first part of the test, further analysis under the second part of the test is unnecessary.” Cimmaron, ¶ 10. ¶19 M.

2015If personal jurisdiction exists under the first step of the test, we then determine whether the exercise of personal jurisdiction conforms with “the traditional notions of fair play and substantial justice embodied in the due process clause.” Cimmaron Corp. v. Smith, 2003 MT 73, ¶ 10 , 315 Mont. 1 , 67 P.3d 258 (citing Threlkeld v. Colorado, 2000 MT 369, ¶ 9 , 303 Mont. 432 , 16 P.3d 359 ). “[I]f personal jurisdiction does not exist under the first part of the test, further analysis under the second part of the test is unnecessary.” Cimmaron, ¶ 10. ¶19 M.

2014Threlkeld , ¶ 9; Nasca v. Hull, 2004 MT 306, ¶ 26 , 323 Mont. 484 , 100 P.3d 997 . ¶23 The District Court determined that the first part of the test was not met.

2014Threlkeld , ¶ 9; Nasca v. Hull, 2004 MT 306, ¶ 26 , 323 Mont. 484 , 100 P.3d 997 . ¶23 The District Court determined that the first part of the test was not met.

2010And, as to the second part of the test, we have stated that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Crosley , ¶ 55 (quoting State v. Harris, 2001 MT 231, ¶ 19 , 306 Mont. 525 , 36 P.3d 372 , overruled in part by Robinson v. State, 2010 MT 108 , 356 Mont. 282 , 232 P.3d 403 ). ¶55 Before this Court may reach the merits of an ineffective assistance of counsel claim on direct appeal, we must determine whether the allegations are properly before us.

2010And, as to the second part of the test, we have stated that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Crosley , ¶ 55 (quoting State v. Harris, 2001 MT 231, ¶ 19 , 306 Mont. 525 , 36 P.3d 372 , overruled in part by Robinson v. State, 2010 MT 108 , 356 Mont. 282 , 232 P.3d 403 ). ¶55 Before this Court may reach the merits of an ineffective assistance of counsel claim on direct appeal, we must determine whether the allegations are properly before us.

2010And, as to the second part of the test, we have stated that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Crosley , ¶ 55 (quoting State v. Harris, 2001 MT 231, ¶ 19 , 306 Mont. 525 , 36 P.3d 372 , overruled in part by Robinson v. State, 2010 MT 108 , 356 Mont. 282 , 232 P.3d 403 ). ¶55 Before this Court may reach the merits of an ineffective assistance of counsel claim on direct appeal, we must determine whether the allegations are properly before us.

2010And, as to the second part of the test, we have stated that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Crosley , ¶ 55 (quoting State v. Harris, 2001 MT 231, ¶ 19 , 306 Mont. 525 , 36 P.3d 372 , overruled in part by Robinson v. State, 2010 MT 108 , 356 Mont. 282 , 232 P.3d 403 ). ¶55 Before this Court may reach the merits of an ineffective assistance of counsel claim on direct appeal, we must determine whether the allegations are properly before us.

2009Even if we were to assume that the first part of the test had been met here, Pruyn has failed to establish that the facts in this case meet the second part of the test, i.e., that “a prudent person, acting in good faith, under the circumstances, would reasonably believe the authority to be.” Youderian, 285 Mont. at 10 , 945 P.2d at 914 .

2009Even if we were to assume that the first part of the test had been met here, Pruyn has failed to establish that the facts in this case meet the second part of the test, i.e., that “a prudent person, acting in good faith, under the circumstances, would reasonably believe the authority to be.” Youderian, 285 Mont. at 10 , 945 P.2d at 914 .

2004Therefore, we adopt that test, as well as the Ninth Circuit’s additional language relating to the first part of the test, namely, that a trial court “has wide discretion to decide whether a defendant who has a propensity for violence poses a security risk and warrants increased security measures.” Morgan, 24 F.3d at 51 .

2004Consequently, we conclude the due process clause in Article II, Section 17 of the Montana Constitution does not provide more protection with regard to shackling than the United States Constitution. ¶16 The seminal case on shackling a criminal defendant during trial is Illinois v. Allen (1970), 397 U.S. 337 , 90 S.Ct. 1057 , 25 L.Ed.2d 353 .

2004Consequently, we conclude the due process clause in Article II, Section 17 of the Montana Constitution does not provide more protection with regard to shackling than the United States Constitution. ¶16 The seminal case on shackling a criminal defendant during trial is Illinois v. Allen (1970), 397 U.S. 337 , 90 S.Ct. 1057 , 25 L.Ed.2d 353 .

2003Bi-Lo Foods, Inc. v. Alpine Bank, Clifton, 1998 MT 40, ¶ 15 , 287 Mont. 367, ¶ 15 , 955 P.2d 154, ¶ 15 . ¶11 Rule 4B(1), M.R.Civ.P., provides in pertinent part, that: All persons found within the state of Montana are subject to the jurisdiction of the courts of this state.

2003Bi-Lo Foods, Inc. v. Alpine Bank, Clifton, 1998 MT 40, ¶ 15 , 287 Mont. 367, ¶ 15 , 955 P.2d 154, ¶ 15 . ¶11 Rule 4B(1), M.R.Civ.P., provides in pertinent part, that: All persons found within the state of Montana are subject to the jurisdiction of the courts of this state.

2001Interstate Production Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323 , 820 P.2d 1285, 1287 .

2001Interstate Production Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323 , 820 P.2d 1285, 1287 .

2000The issue before this Court is not whether the District Court erred in finding no rule violation concerning disqualification, but rather whether the District Court erred in finding that no disqualification of the Marra firm was necessary under the facts. ¶172 The majority cites Carlson v. Morton (1987), 229 Mont. 234 , 745 P.2d 1133 , to support its position that a district court cannot consider a Rules of Professional Conduct violation because such a violation is the exclusive jurisdiction of the Court.

2000The issue before this Court is not whether the District Court erred in finding no rule violation concerning disqualification, but rather whether the District Court erred in finding that no disqualification of the Marra firm was necessary under the facts. ¶172 The majority cites Carlson v. Morton (1987), 229 Mont. 234 , 745 P.2d 1133 , to support its position that a district court cannot consider a Rules of Professional Conduct violation because such a violation is the exclusive jurisdiction of the Court.

1999Stump, 435 U.S. at 362 , 98 S. Ct. at 1107 .

1999Stump, 435 U.S. at 362 , 98 S. Ct. at 1107 .

1959The fatal portion of the instruction, given in the case relied upon by appellant, State v. Garney, 122 Mont. 491, 493 , 207 P.2d 506, 508 , is: "And under the laws of this state, when an unlawful act is shown to have been committed with a malicious purpose of injuring another, it is presumed to have been committed with a malicious and guilty intent." This portion infects the entire instruction and is fatal error if given in a case where specific intent is the very gist of the offense.

1959The fatal portion of the instruction, given in the case relied upon by appellant, State v. Garney, 122 Mont. 491, 493 , 207 P.2d 506, 508 , is: "And under the laws of this state, when an unlawful act is shown to have been committed with a malicious purpose of injuring another, it is presumed to have been committed with a malicious and guilty intent." This portion infects the entire instruction and is fatal error if given in a case where specific intent is the very gist of the offense.

1937The first part of this inquiry — whether a reputation can arise— depends on the nature of the matter; the second part depends on the situation of the person in question.” (And compare Maxwell Land Grant Co. v. Dawson, 151 U. S. 586 , 14 Sup. Ct. 458, 38 L.

1937The first part of this inquiry — whether a reputation can arise— depends on the nature of the matter; the second part depends on the situation of the person in question.” (And compare Maxwell Land Grant Co. v. Dawson, 151 U. S. 586 , 14 Sup. Ct. 458, 38 L.

1937Ed. 279 .) This court, in Griswold v. Boley, 1 Mont. 545 , has held that evidence of reputed ownership is admissible to rebut the allegation of fraud and deception on the part of plaintiff, and to show that defendants had not been deceived as to the ownership of the property.