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Miles City man seeks to clear his name
An appeal from Dick Hay of Miles City was rejected last last week by the Montana Supreme Court. Hay wanted the court to overturn a District Court decision that denied Hay's request to have his name cleared by declaration or by granting him a trial.

A Miles City man who says he was falsely accused of a crime will get no relief from the Montana Supreme Court.

In a ruling issued last week, the high court rejected Dick Hay's appeal of a District Court decision that effectively denied Hay's request to have his name cleared by declaration or by granting him a trial in the case.

Hay, who does not intend to give up his fight, said he was disappointed but not surprised by the Supreme Court decision.

"They seem to think prosecutors can tell lies and are expected to," he said.

The case goes back to May 2004, when Hay, a part-time employee at the M&H Gas Station, was charged in City Court in Miles City with selling beer to a minor. From the beginning, Hay denied the charge, and he and his attorney, Jeffrey Simkovic of Billings, maintained that the police had no evidence but the testimony of the underage male who allegedly bought the beer.

In October 2004, city prosecutor Jeffrey Noble filed a motion to dismiss the charge, without prejudice, on the grounds that "there might not be enough evidence in this case available at this time to ensure a conviction."

Noble's motion also said that if dismissed without prejudice, the charge "can be refiled in the future if necessary, which shall provide the Defendant with an incentive to not commit any further violations of the law."

That's the part that stuck in Hay's craw. He said the wording of the motion implied that he had committed a crime, which is why he demanded a jury trial in hopes of clearing his name. Hay also objected to being accused of "unlawful transactions with children," which was the wording of the statute used in charging documents.

He eventually filed a suit in District Court against the city, the Police Department, Police Chief Lissa Power, prosecutor Noble and police officer Barney Murnin, who conducted the initial investigation of the alleged illegal beer sale.

In his suit, Hay asked District Judge Gary Day either to dismiss the charge against him with prejudice or to order a jury trial in the case. In November 2006, Day granted a summary judgment in favor of the defendants.

Day ruled that the statute of limitations on the original misdemeanor charge had expired, so it could not have been refiled, and he had no power to require the City Court to reopen a permanently dismissed case.

After Day issued his ruling, Hay took his case to the people of Miles City, mailing out 3,676 copies - one to every residential mailing address in town - of a seven-page letter in which he laid out his grievances and demanded justice.

Eventually, he also filed an appeal of Day's decision with the Montana Supreme Court.

In a decision dated Nov. 10 and written by Chief Justice Karla Gray, the high court upheld Day's summary judgment, saying the District Court had no authority to grant Hay's requests for declaratory, injunctive or other form of relief.

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Gray said that a District Court could not grant declaratory relief by ruling on factual determinations as to whether Hay's constitutional rights had been violated. Throughout his appeal, Gray said, Hay "has consistently indicated … that factual determinations would be necessary in order to decide whether his constitutional rights were violated."

Gray said Hay also failed to establish that the District Court had any authority to grant injunctive relief or that "the court could fashion equitable relief outside the restrictions for injunctive relief or declaratory judgments."

Hay, a retired newspaper publisher, commercial printer and rancher, said he still needs to speak with Simkovic in detail about the Supreme Court ruling. In the meantime, he is looking into other avenues of relief.

He said he is researching the possibility of petitioning the governor for some kind of order or declaration, as well as going to the Legislature for help. And he's busy writing again.

"I'm going to put out another newsletter here shortly," he said.

Contact Ed Kemmick at ekemmick@billingsgazette.com or 657-1293.

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