The Hamilton Rotary invited local officials and legislators to a luncheon forum last week to discuss the problem of Driving Under the Influence in the state. County Attorney George Corn was the featured speaker, but Ravalli County Sheriff Chris Hoffman and Montana Highway Patrol Captain Tom Hamilton also spoke. Legislators Jim Shockley, Gary McLaren and Bob Lake were also in attendance.

“We have the opportunity to save not just one life, but perhaps hundreds across the state,” said Hamilton Rotarian Win Smith before introducing the speakers. Smith is passionate about the issue and hopes to rally Rotary clubs across the state to work with local and state officials and the legislature to strengthen the laws against drunk driving and change what many consider to be a mindset that minimizes the seriousness of the offense.

“There is not one silver bullet, no single solution to this problem,” County Attorney George Corn told the gathering. He said what was needed and what could work is a comprehensive program involving the legislature and society as a whole. He said that three key aspects of the effort would have to be education, deterrence, and rehabilitation and that a lot of work needs to be done in all those areas.

Corn noted that the state’s first felony DUI law was passed in 1995 making a person’s fourth DUI a felony offense punishable by up to 10 years in prison. The maximum penalty was later reduced to 5 years. A subsequent attempt to reduce it to 3 years failed, however. Corn said that stronger laws can work as a deterrent.

“There is a cost associated with stronger penalties,” said Corn, “But my view is the cost to society of these offenses is greater.”

Corn recited some statistics. First time convictions for DUI rose 19 percent from 2004 to 2008. Repeat offenses rose 16 percent. 24 percent of people stopped for DUI refused to consent to a breath or blood test. Out of 249 fatal car crashes between 2004 and 2007, 123 were DUI related.

Corn said that he tries hard to convict drunk drivers and had an 80 percent success rate in cases tried in 2006 and a 79 percent success rate in 2007.

Highway Patrol Captain Tom Hamilton said that tougher laws would help, such as criminal punishment for refusing a breathalizer test. He felt stiffer punishment all around would serve as a deterrent.

“But the biggest help,” said Hamilton, “would be societal shame.” He said it was a societal problem that called for a societal solution. He said Montanans needed to be able to look each other in the eye and tell family members, neighbors and friends that they are ashamed of them when they get behind the wheel and drive while intoxicated.

Some ideas presented at the meeting to address the problem included funneling DUI fines to the county in which the offense occurred to fund a probation officer to work with misdemeanor DUI cases, a sticker or license plate to identify those convicted of a DUI, or a mandatory service program requiring those convicted to do public service while wearing an orange jump suit, or mandatory breath tests on a regular basis at the local sheriff’s office for those convicted.

“There is an outcry for solutions that needs to be heard,” Smith said. He asked the legislators to work with the Rotary and other civic organizations around the state to come up with some legislative solutions that the organizations could get behind and support.

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Judge rules on pre-trial motions in floodplain case

By Michael Howell

District Court Judge James Haynes has issued a lengthy 73-page ruling on several pre-trial motions in the case of Tom and Charlotte Robak versus Ravalli County. The couple took the county to court after the county issued a cease and desist letter asking them to stop construction on their new home located along the banks of the West Fork of the Bitterroot River until it could be determined if the activity was in violation of the county floodplain regulations.

The Robaks bought the property in 2001 and began construction activity on the property in 2004. The County did issue a septic permit for the new home in 2005 and a foundation was poured in 2007. However, in December of 2007, then-Floodplain Administrator Laura Hendrix wrote a letter to the Robaks asking that they cease and desist construction on the home until it could be determined whether it was being constructed in the floodplain without a permit. She asked them to provide a survey showing the house was not in the floodplain and to provide information asking when and how much fill had been placed on the property and where. It is illegal to place fill in the floodplain. There was some question as to whether fill had been illegally brought in to raise the house above the level of the floodplain.

The Robaks did stop construction on the house and eventually provided a survey showing that the house was above the floodplain but provided no information about placing fill on the property, arguing that it was irrelevant.

In September of 2008, however, they filed suit against the County, claiming that their private property rights were being violated. They argued that the County had no right to issue a cease and desist order, that their house was out of the floodplain and that no fill had been brought onto the property. They argued further that by issuing a septic permit the county had led them to believe that construction of the home was legal. They also argued that Hendrix had no right to enter their property along with Environmental Health Department employees during the septic approval process. It was her observations on that visit that led her to eventually question the need for a floodplain permit before any construction on the property.

The Robaks submitted information in the lawsuit denying that they had placed any fill upon the property and provided statements from Nathan Griffin, Lorin Collins, and John Sain, Jr. that no fill was brought onto the property. The excavator working on the home construction for the Robaks, Mike Morris, also provided an affidavit stating that no fill was used to raise the home site.

In a pre-trial hearing in May of 2009, Haynes ruled that the County could enter the property and conduct further investigation to see if it could be determined that fill had been illegally placed on the property. That on-site investigation was limited to one day and the results were inconclusive. Further testing was requested. In the meantime, the County determined by other means that at least 460 cubic yards of fill had been brought onto the property by Morris and another man, Wade Cox. Morris’ affidavit was subsequently revised to reflect this fact.

In two separate pre-trial motions the Robaks asked the Court to make summary and declaratory judgments in their favor. In the first they asked the Court to rule that the house is out of the floodplain, that the cease and desist order issued by the County was invalid and that the County should not be able to stop the completion of the residence.

In his opinion and order Haynes ruled that the house was indeed above the floodplain, but portions of the garage were not and that further testing and mapping was required. He concluded that the County had a “reasonable basis” for entering the property to investigate and the duty to do so under the law.

Haynes states in his ruling that the County has no authority to issue a cease and desist order, but it could and did send a “letter of request” asking the Robaks to cease and desist as part of its administrative duties.

“The Robaks were free to disregard the letter, albeit at the risk of facing civil and criminal action brought by the county,” states Haynes. He said that the “letter of request” appears both fair to the Robaks and essential to the fulfillment of the county’s duties.

Haynes also denied that by issuing a septic permit the County had implicitly approved any construction in the floodplain without a permit.

In an amended motion for summary judgment the Robaks asked the Court to rule that the house and garage are not in the floodplain and not subject to the County’s jurisdiction in this regard and the County should be stopped from taking action against the Robaks for floodplain violations. They ask the Court to declare that the County cannot ask them to prove compliance and has no authority to enter the property and investigate it. They claim it violates their constitutional rights.

Haynes reiterates, in his opinion and order, that the house is not in the floodplain but that portions of the garage are. He states that the Robaks were already on notice that their property may lie in the floodplain when construction began in 2004 and it was up to them to apply for a permit or not.

“As well, as the Robaks correctly point out,” wrote Haynes, “they had the separate option to ignore the laws, decline to cooperate, provide evasive compliance information, and criticize the State’s regulation of their Property interests.”

“The Robaks’ argument that ‘they do not have to prove compliance’ is correct in the sense that Robaks were free to see what they could get away with before they got caught, and before this lawsuit began. Once a civil lawsuit commences, such as this one, the parties are required to truthfully divulge all properly requested information,” wrote Haynes.

The Court also noted that the Robaks may have a claim for $1.00 in damages for the initial “trespass” by the Floodplain Administrator, who failed to give proper notice that she was accompanying the Sanitarian officials in their septic permit examination.

“Instead, the Robaks attempt to transform the County’s error into a ‘get out of jail free’ card, essentially arguing that since they were able to conceal almost 3 years of illegal floodplain activity from the County, they should be excused from further regulatory floodplain oversight…The Court dismisses offhand Robak’s implicit argument that ‘two wrongs make a right’,” wrote Haynes.

The County, in a counter motion, asked the Court to dismiss the Robaks’ claims with prejudice because they “threatened, instigated, and prosecuted this lawsuit in order to evade Ravalli County’s lawful inquiries about fill dumped on the riverside property.”

The County claimed that the Robaks should be sanctioned and the case dismissed because they knowingly dumped fill on their property in violation of the law long before the County ever contacted them about any potential violation, then failed to disclose the fact, and then submitted false claims to the court that no fill had been placed on the property.

Judge Haynes agreed that the Robaks’ misrepresentations to the Court about the facts was grounds for sanction under the law, but ruled that dismissal of the case was “too extreme.” Instead Haynes ruled that payment by the Robaks for the unnecessary expenditure of taxpayer resources is more appropriate.

The Robaks also asked for dismissal of the County’s claims of abuse of process, defamation, public nuisance and punitive damages.

The Court dismissed the County’s claim of abuse of process because “a citizen’s challenge to a governmental regulation does not equate to an ulterior motive,” one requirement for sustaining such a claim. The Court states that, in the absence of county regulations to address a situation where a property owner commences fill and construction, declines to cooperate, and expresses a belief that no floodplain permit is required, going to court was the only option for either party.

The Court states that the defamation claim involving Hendrix should be dismissed as moot since both parties already stipulated to her dismissal as a party and removed her from the case.

The Court notes that charging the Robaks with creating a public nuisance is an available remedy under the law and may apply in this case and thus should not be dismissed, but carried forward and considered at trial.

The Court also refused to dismiss the County’s claim for punitive damages against the Robaks and ordered that this issue should go to trial as well. The court also granted the County the right to enter on the Robak property again, this time with a backhoe, to do further testing. The County was also allowed to amend its complaint to bring it into conformance with the facts that have been discovered in the case so far concerning the placement of fill on the property.

A hearing has been set for Wednesday, March 3, at 1:30 p.m. to set the amount of monetary sanctions against the Robaks and to clarify the parameters for further testing and sampling on the property.

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County updating addresses for emergency response

Ravalli County is in the process of updating its emergency 911 dispatch system to a computer-assisted enhanced-911 system. The new system will aid dispatchers and emergency responders in locating residences in the event of an emergency. But in order for the system to function properly, physical address numbers must comply with certain requirements. These include properly named streets and logically ordered address numbers.

Unfortunately, according to Ravalli County Clerk and Recorder Regina Plettenberg, a significant number of residences in the county have already been determined to be out of compliance with those requirements. As a result she has mailed out over 1,200 letters to local residents urging them to bring their resident addresses into compliance by contacting her office and having a new address issued and road name changes made if necessary.

“For instance,” said Plettenberg, “if there are three or more homes sharing the same driveway, the driveway needs to be a named road.”

The county usually charges a fee of $10 for issuing a new address and a $125 fee for road naming or road name changes. But these fees will be waived if the changes are made by March 26, 2010, according to Plettenberg. However, a $5 fee will be charged if the resident wants to purchase new reflective address numbers from the county.

The new 911 emergency response software will be installed and activated in May, making it vitally important for anyone needing changes to have them made by the March 26 deadline. Changes made after that date will be assessed the appropriate fees. Anyone with questions about the process for changing addresses or road names should call the County Clerk and Recorder’s Office at 375-6555 or come by the office located in the County Administration building at 215 South 4th Street in Hamilton.

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Hamilton police officer involved in shooting back on the job

By Michael Howell

Hamilton Police Chief Ryan Oster told the Hamilton City Council last week that Officer Ross Jessop, who was involved in a fatal shooting last January, had been cleared of any wrongdoing in the incident and was returning to work.

In the wee hours of the morning last January 2, 2010, Jessop made a traffic stop that turned deadly for the driver of the vehicle that was stopped, Raymond Thane Davis. According to a press release from the Hamilton Police Department at the time, as officer Jessop approached the vehicle the driver pulled a gun and fired at the officer. Jessop returned fire and Davis re-entered his vehicle and drove away only to crash a short time later into the Ravalli County Search and Rescue building located on Fairgrounds Road. Davis was pronounced dead at the scene. He died from a single gunshot wound.

The Missoula Police Department then instituted an investigation of the incident and Jessop was put on paid leave pending the outcome of that investigation.

Chief Oster told the City Council last week that the investigation into the incident by the Missoula Police Department was “more or less complete” pending the results of some lab analysis. He said that the report found that the officer’s actions during the incident were justified and they were not recommending any criminal charges against the officer involved. Oster said that his office had also completed a critical incident review and the results of the Missoula Police investigation and found that no department policies or state laws were violated by the officer during the incident.

He said that in this case there were a few minor problems with equipment that surfaced in the review and these would be addressed to help the department be more prepared for any such future incidents.

“There are always things to be learned from every incident to improve our performance,” said Oster.

Jessop, who was placed on administrative leave pending the outcome of the investigation, went back to work Monday morning February 8. Jessop has worked for the Hamilton Police Department for just over a year.

A coroner’s inquest concerning the shooting incident is scheduled for April 13, where a jury will finally determine if any criminal charges could be made against Jessop.

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Stevi Main Street Association seeks funds for streetscape improvement project

By Michael Howell

The Stevensville Main Street Association (SMSA) approached the County Commissioners last week seeking some of the county’s Community Transportation Enhancement Program funds to help pay for planned streetscape improvements through downtown Stevensville. The state’s CTEP funds are distributed to counties for final disbursement and the County currently sits on about $400,000 in available funds. They expect to receive another $186,000 in July.

The SMSA has been working with WGM Engineering out of Missoula and has devised a preliminary plan for improvements, including sidewalk improvements, a bike path and tree plantings, that would stretch from the U.S. Forest Service building on the north of town to Middle Burnt Fork Road on the south.

The organization is currently focusing only on a core set of improvements along three blocks of the central downtown, however. That portion of the project has an estimated price tag of about $500,000. The group currently has about $30,000 in cash dedicated to the project. But more will be needed to meet the matching fund requirements attached to any CTEP grant.

The Commissioners gave the request a sympathetic hearing and expressed a real interest in helping to fund the project but cautioned SMSA board member Cinda Holt and director Joan Prather that the commission was also expecting Corvallis to submit a request for the current CTEP funds for a few projects in that area and that a year of CTEP funding had also been promised to the city of Hamilton for some planned improvements along Fairgrounds Road when that project gets off the ground.

But Commission Chairman Greg Chilcott noted that the other communities in the county had all been granted CTEP funds in the relatively recent past while Stevensville has not received any CTEP monies for at least the last 15 years.

“I think it’s Stevensville’s turn,” said Chilcott, “but we have to get all our ducks in a row.”

The ducks that need to be gotten into a row include the matching funds needed to secure enough CTEP grant money to fully fund the project.

Holt is optimistic that SMSA will be able to raise that money quickly enough to secure enough grant money to fund the full $500,000 core downtown part of the project this year. If not an alternative would be to scale back the project so that the first phase would require only a $175,000 grant which could be matched by the organization’s existing $30,000 cash on hand.

Chilcott encouraged the organization to apply for the whole $500,000.

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