Dividing and conquering

I set up this blog two years ago and have had a delightful time writing on whatever topic I please—law, horses, grammar, politics, people I admire (and those I don’t), and in general, an inchoate mishmash!

Now it’s time to get serious.  I am dividing my blog into thirds.  Wahlerlaw.wordpress.com will remain—but sticking mostly to legal content.

My equestrian consulting and education posts are now moving to: wahlerequine.wordpress.com.  I shall continue to write about the world of horses, with equine law content cross-posted to both sites

Best of all, though, I’m starting a political blog. You heard it here first!  Introducing

Watching the Bull: Observations from the Big Sky Country, a freewheeling discussion of local, state, and national politics from a progressive Big Sky perspective.

Now you have a choice.  Focus on what matters to you the most, or follow all three blogs if you wish!

 

Advertisements

To Rein or to Reign?

“Uneasy lies the head that wears a crown.” Henry IV, part 2, William Shakespeare

“Miss Teen America had her driving privileges reined in during her reign after she was caught speeding in the rain.” — Me

Confusing “reign” for “rein” is my pet peeve.

So many phrases are linked to our equestrian history, yet the modern writer may be unaware of how the horse influenced language.1  When we are able to do whatever we want, we have a “free rein.” When we cannot, we are “reined in.” There is no such thing as  a “free reign.” (I hate to write it down, even with strikethrough.) Shakespeare noted the philosophical impossibility of power without responsibility, but “free reign” is also just plain dreadful, horrible, depressingly common—and incorrect—English.  Likewise, we may want someone who abuses power to not reign at all, but they have to be “reined in,” not “reigned in.”

My handy dictionary2 explains that to reign, as a verb, indicates holding a title or a royal office, to predominate or prevail, or perhaps to simply be the best.3 The noun reign is the time when one holds office, or predominates, or is the champion.  We speak of the reign of Henry VIII, Miss America, or the winning Superbowl team. The word originates from Middle English by way of Old French back to the Latin regnum, related to reg or rex, the word for king.

More to the point, the dictionary also notes that “free reign” is incorrect use of the idiom describing freedom from direction or control.

Rein is another word that comes to us by way of Old French and Middle English:  it derives from the Latin rentinere, to retain.  As a verb, it refers to directing or controlling things.  As a noun, even non-horse people know that an actual rein is a long strap, usually of leather, that attaches to the bit that goes into a horse’s mouth.*  Usually there are two, one on each side. Reins are held by a person and used to guide a horse (or mule, or other animal).  Used colloquially, “free rein” means to be free of control and is an idiom that was directly derived from equestrianism.

So  when we give a horse a free rein, we are allowing the animal to act without our guidance.  We apply the same concept to human action.

Sometimes this is a good idea. When asking a horse to climb a steep hill it allows for maximum effort without interference. A free rein when standing at ease allows rest and relaxation. But other times a free rein is a very bad idea. Giving a horse a free rein without a preexisting understanding between horse and rider of the behavior expected may result in an out of control disaster—a horse could wander off, run away, or get into a spat with another horse. Horses and trouble are often very good friends.

cowboy-849498_1920

This horse is standing with a free rein. We presume the horse has been trained to know that the human would prefer the horse not go running off at this particular moment. 
Source: Pixabay cc-0 public domain.

The same is true of humans.  If we understand the norms and rules of society, we wind up with the most freedom.  If we misuse our freedom, we often face consequences.  For example, we do not “reign” over the highway; we cannot drive at any speed we want4 or on the wrong side of the road.  But within the parameters of traffic laws, we have “free rein” go to any destination we choose.

Riding is a metaphor for life in many ways.  Horsemanship is an art that requires us to learn when to take control and when to let it go.  When we pick up our reins, we ask a horse to respond to our signals—and the more clear our communication, the better the result.  When we relax the reins, we are engaging in an act of trust—that the horse will not take advantage of this freedom to dump us in the dirt and run off!

So, the moral to the story is that the “free rein” is not only proper use of an English idiom, but a good reminder for life.  When we “pick up the reins,” we take control—of a horse, of ourselves or of life circumstances.  When we “relax the reins,” freedom of action is allowed, but generally within a set of unspoken rules everyone involved is supposed to understand.

Copyright 2017 Brenda Wahler

Please read disclaimer

*Yes, reins can also be used with non-bitted headgear, such as hackamores.

  1. For more on the topic of how horse domestication influenced the Indo-European language group and the progress of civilization itself, I recommend: Anthony, David W. (2010) The Horse, the Wheel, and Language: How Bronze-Age Riders from the Eurasian Steppes Shaped the Modern World. Princeton University Press. isbn 978-0691148182.
  2. Definitions paraphrased by the author from “reign” and “rein,” New Oxford American Dictionary, Mac OSX 10.11.6 edition, accessed February 15, 2017
  3. Yes, sometimes I split infinitives.  I blame Star Trek.
  4. Legal note: Contrary to popular rumor, Montana does have a speed limit. We lacked a numerical speed limit for a few years when the national 55 mph speed limit was repealed. But after law enforcement begged the Montana legislature for relief from the constant arguments they endured from NASCAR wannabees on I-90 and from our friendly Canadian visitors on I-15,  we put numbers back on our highway signs.

Bedlam is Local

With the intensity of the national election in 2016, many local “down ballot” issues are forgotten.  One of the most important in my community is asking the voters to fund a major remodel of the local jail.  It has the scintillating title, “General obligation bonds to design, remodel, equip, and furnish the county detention center facility.” On top of the $6.5 million ask, there is a second ballot measure, a 15-year mill levy to raise another $4 million for operations and maintenance.  The owner of a $200,000 home will see almost a $100 increase in annual property taxes if the bond and mill levy pass.1

But pass they must.  The Lewis and Clark County Detention Center is in crisis.


What crisis?

I’m a family law attorney; the county jail is not a place I visit as often as do our public defenders and attorneys who specialize in criminal law.  But sometimes I have clients who are involuntarily housed there, so I do visit from time to time.  And I have seen, beyond question, that the people in the building—both guards and inmates—need a better situation.  Built over 30 years ago to hold 58 people, and now officially said to average 82,2 the number of people actually in the jail every day sometimes exceeds 100.3 The overflow goes to jails in nearby communities, and our county picks up the extra tab.

There is no workable alternative to adding more space at the jail.  This bond issue is not a complete or long-term solution, but the previous ballot issue asking for an entire new building failed.  As long as the public insists on longer sentences and mandatory minimums, the voters must remember that if this inn is full but people keep coming, public safety is compromised—both inside the facility and out. According to the National Institute of Corrections of the Department of Justice, “A crowded jail can result in the loss of system integrity.”4

Today, the Lewis and Clark County Detention Center is overcrowded and asked to do too much with insufficient resources.  While it is not yet Bedlam, it is closer than we should be in the 21st century. Perhaps it sounds as if I am engaging in editorial hyperbole, but if anything, I am understating the situation.


Behind the Scenes

Jails are not happy places. Few people other than inmates and law enforcement staff see behind the scenes.  But when attorneys visit clients who land behind bars and need our help, we get a snapshot of the problems facing both the incarcerated and those who work with them. And our view is the tip of the iceberg.

The staff is overworked, underpaid, and always at risk of injury from people who choose to violently express their displeasure at being involuntarily housed at county expense. Inmates are also at risk from one another: even separated by mandatory classifications (men from women, youths from adults), a group of inmates housed together might run the gamut from the 18-year-old first-time DUI offender serving her mandatory 24 hours to a hardened felon awaiting a new sentence.  Nationally, 60% of jail inmates are pretrial detainees, not yet tried, let alone convicted.5  If a person cannot make bail and cannot get the court to grant a bond reduction, they have to stay behind bars; both they and the jail have limited options.

Even when you aren’t an inmate, a visit to the jail is disconcerting:  hearing the sound of an electronic lock engaging behind you is chilling.  The building smells funny; there’s a unique odor combining not-quite-clean bodies, dust, and institutional food.  It settles in your nostrils for hours after you leave and taints your saliva until your next meal. Jails are either overheated or have too much A/C.  There are no soft surfaces, no escape from dull overhead fluorescent light.  A county jail, even at its best, is “hard time”: too little to do, not enough privacy, poor ventilation. It’s a place with few windows.  In many areas inside, you cannot tell day from night.  The world is a palette of various shades of gray and brown accented by people in bright orange clothing.  Except the holding cells. They’re pink, kind of.


The Real Bedlam

william_hogarth_019

From A Rake’s Progress by William Hogarth, 1733. “The Madhouse,” Public domain. Source: Wikimedia Commons

By the early 15th century, the Bethlam Royal Hospital in London, housing the mentally ill and other unfortunate indigents, became known as “Bedlam” and became a byword for “a scene of uproar and confusion.”  People from the outside world visited Bedlam for entertainment, to gape at the mentally ill as if attending a sideshow.  People were chained to walls or locked in cells.  Medical care was scarce and primitive.  Treatment was non-existent. For too many of the people committed there, the only exit was death itself.

We are more enlightened today, but enlightenment is fragile.  While we have long since stopped chaining people to walls, “a scene of uproar and confusion” lurks close to the surface of an overcrowded modern jail:  The staff in an overcrowded facility cannot follow the safest protocols and may risk injury themselves.  Insufficient funding for mental health services and addiction treatment puts law enforcement on the front lines of care for some people in crisis.  Our local jail manages to keep inmates fed, clean, healthy, and—when needed—on suicide watch with access to mental health providers.  But without places to properly house the many different types of people who are not allowed to freely walk the streets, the most vulnerable can be harmed—or harm themselves.

Our local jail is so crowded that people with short sentences to serve are sometimes asked to schedule their detention—to serve their time on days with a low census—almost as if they were reserving a room at a popular hotel. On arrival, some are “clocked in” so their time served begins while they are waiting for another inmate to be discharged to free up a spot.  They might arrive at 8:00 a.m. and wait for several hours before jail space is available.  Some detainees who have pled guilty to a crime are given a presentence release, allowed to live and home and work so long as they check in with the probation office on a daily or near-daily basis.  That’s asking for a lot good faith behavior on the part of a person convicted of a crime, but what’s amazing about Montana is how many people actually follow through.

On a recent visit on a day when the county jail roster exceeded 100, I cooled my own heels for a half hour in the waiting area while the Detention Center shuffled inmates, rearranged visiting rooms, and tried to make it safe for me to visit an incarcerated client.  Bless them.  While I waited, I shared the space with two men who were waiting to “check in” to the jail.  They mostly looked at their phones while sitting in hard plastic chairs.

Once admitted inside, I walked past the booking cells, all full—and not all with the recently arrested; they double as space to separate certain people:  One young man, clearly psychotic, was yelling and arguing with the voices inside his head.  His window was covered with brown paper except for a small opening a few inches square, mostly for privacy, but as I walked by, he was looking through the gap, saw me and pounded violently on the door while his debate with his voices rose to a scream.  The pink walls didn’t help much.  Bedlam indeed.

As I signed in at the desk, another inmate began shouting through the plexiglass:  “ARE YOU A LAWYER? I NEED A LAWYER!” I made the mistake of briefly glancing in his direction, and he shouted to me that he had been  waiting—and waiting—for a bed at a mental health facility, could I help him get there?  When I visited again a couple days later that man was still in the same holding cell, now on a first-name basis with the staff.  Still wanting both a lawyer and an institutional bed.

Bedlam can be loud.

It can also be filled with quiet desperation.

People on suicide watch at our local jail are also housed in holding cells near the front desk. Again, brown paper covers all but a fraction of the windows. In those cases it provides a modicum of privacy for people in crisis.  Some are the far-too-many addicted and brokenhearted young women busted for drugs, coming down off of methamphetamine, some knowing their children are now in foster care.  Ashamed, hating themselves, wanting to die.

Some visits, I have tripped over the bedding and foam mattresses left in hallways—placed on the floor in order to house one or two more people.  Sometimes, the only place I can visit with a client is in that same hallway, sitting on a short bench, side by side, or with one of us sitting cross-legged on the floor.  Sometimes that client outweighs me by 100 pounds or more and is not in a good mood. I may be able to hold a semi-private conversation, but I have to be cautious about delivering bad news or expressing disagreement with their point of view.  There is no table to lay out papers, the light is poor.  It’s a challenge to advise people under these conditions and attorney-client privilege is seriously compromised.

But why should law-abiding citizens care about any of this?  Because an overcrowded jail cannot meet the needs of the community for safety, it puts our friends and neighbors who work there at risk, and it cannot provide the services needed to help keep troubled people away from the revolving door of the system.  It might also be your friend or relative who is locked up in there.

When the previous ballot measure failed, opponents fell into two camps.  Both groups opposed, but for near-opposite reasons:  One group believed that we incarcerate too many people, that community release and more generous bail conditions would alleviate overcrowding.  I’m sorry, my friends, but every effort is already made to avoid putting people in jail.  Deferred and suspended sentences in exchange for plea deals are routine.  Minor offenders are offered ankle bracelets and house arrest if they can afford it, and the detention center staff not-so-subtly reminds the courts and the prosecutors of the daily jail census.  People are not sent to jail if any reason can be found to avoid it. Some people who should be behind bars won’t be until they’ve commited multiple felonies.

On the other side, some opponents to jail expansion think that  a “fancy jail” means that “criminals are coddled,” that miserable jails are appropriate punishment, and that society just needs to “lock ’em up and throw away the key.”  That’s also unrealistic.  Most offenses that land people in jail are misdemeanors or low-level felonies; theft, assaults, drug possession, or assorted misbehavior while intoxicated.  People will get out—and relatively soon.  Further, that “criminal” might be your kid, who went along with the lemmings in their trip over the cliff because it sounded like fun at the time. That “criminal” could even be you—in the wrong place at the wrong time, guilty or not.

I urge my fellow local voters to support the jail expansion ballot issues. Vote yes for the bond and the mill levy, folks.  Our community needs it.

Copyright 2016, Brenda Wahler

FOLLOW UP December 16, 2016:  Sadly, the bond issue passed, but the mill levy failed.  People don’t seem to understand that if you build it, you also have to staff and maintain it.  Local officials are scrambling to see if they can use some of the bond money to at least create a temporary fix.  Jail census was at 118 this week.

Please read disclaimer.


Sources:

Bennett, David M.  and Donna Lattin. Jail Capacity Planning Guide: A Systems ApproachNational Institute of Corrections, United States Department of Justice, 2009, page xii.  Accessed 10/21/2016 at http://static.nicic.gov/Library/022722.pdf

  1. $12.44 for the bond issue and $85.72 for the mill levy.  Source: “General Election Publication Ballot.”  Accessed online 10/21/2016.
  2. “Welcome to the Lewis and Clark County Detention Center”. Lewis and Clark County, Montana.  Accessed online 10/21/ 2016.
  3. This should not be a surprise when you combine a natural population increase with the “get tough on crime” approach of the past 30 years.  In 1990, the first decennial census completed after the jail was built, the population of Lewis and Clark County was 47,495.  In the 2010 census it was 63, 395, and today is estimated at 66,418. (Source:  https://www.census.gov)  Between then and now, longer sentences and more mandatory minimum sentences have become part of the criminal justice landscape. (Source: Bennett, page v.)
  4. Bennett, page xii.
  5. Bennett, page xiii.

Riding while intoxicated

CMR_Xmas_greeting

1914 Christmas message, C.M. Russell
Source: Montana Historical Society MacKay Collection, Helena, MT

Not long ago, Montana newspapers reported on a Montana Supreme Court case involving a woman who was allegedly riding while intoxicated.

Except she wasn’t.

In spite of sensationalistic headlines describing the case as a “drunken horse ride,” police actually encountered the woman leading her horse and attempting to get on the animal, but failing. The news reports also stated that the officers let her go “because she was on foot,” implying that they might have arrested her if she had been riding.

Except they probably wouldn’t have done so.

Here we have a great example of how most journalists aren’t legal experts.  The woman wasn’t arrested for riding under the influence; she wasn’t even on the horse.  The Montana Supreme Court  stated that—at 7:15 in the morning— the police “observed that [the woman] was stumbling and had difficulty maintaining her balance.”  But, “because she was not committing a crime, they allowed her to leave the area. The officers observed that she was physically unable to mount her horse, and after repeated unsuccessful attempts to stay on the horse, she led it away from the area.” State v. Ellis-Peterson, 2016 MT 159N, ¶2. So the police let her go, not because she dismounted, but because she was not breaking the law—yet.  It had nothing to do with riding the horse.

In Montana, you cannot be arrested solely for public intoxication.  That said, the police can still pick you up and either take you home  or hold you to be sure you are not a risk to yourself or to others. MCA §§ 53-24-107, -303.  (But see below—you can still be arrested in Montana if you are disorderly while drunk, and in some other states, you can be arrested for riding while under the influence.)

The woman got home safely, somehow, but then called 911 to complain that she should be allowed to ride her horse without being “pulled over.” As a result of her call, the police visited her to do a welfare check.* After a long and convoluted series of events, she told the police she was “just drunk” and had opened the door—naked—to yell at them. They still were not ready to arrest her.  (Note that all of this happened before noon.) The actual DUI charge came when the woman decided—only 20 minutes after the police finished their welfare check—to drive off in her pickup.  Driving a motor vehicle under the influence of alcohol was the reason for her arrest.  Not riding a horse. 2016 MT 159N ¶4-6.

In short, in spite of the clickbait headline, this individual was not arrested for any of her shenanigans:  not for riding a horse while intoxicated—or even for yelling at the police while standing naked in her own doorway.   She was arrested because she got behind the wheel of a pickup and drove off.

The crux of the Montana Supreme Court decision was that, because of all her prior behavior, the police had probable cause to arrest her, and the Court upheld her conviction even though she had not been given a standard field sobriety test.  2016 MT 159N at ¶9-10.

So does this case stand for the proposition that it is illegal in Montana to ride a horse while intoxicated?  No.   The headlines were attention-getting (but wrong), newspaper explanations of the court’s holding were generally “overbroad” (hence, wrong), and in short we have a great example of a misleading headline leading the reader to an erroneous conclusion.

On the other hand, in 2010, the Montana Department of Transportation’s Plan2Live campaign aired an ad showing a horse acting as a “friend” and being a “designated driver”of sorts for an intoxicated young man.  Many people questioned if this ad meant it was OK to ride a horse if you were drunk, and it generated a story in USA Today that quoted a colleague of mine, Luke Berger, who is now a District Court Judge, saying, “I wouldn’t recommend that anyone does that, but . . . you can ride your horse after drinking.”

So, it is not illegal to ride a horse while intoxicated in Montana. MCA § 61-8-401 states that you have to be in control of a “vehicle”.1 The definitions statute, MCA §61-1-101 (90) defines a “vehicle” to specifically exempt “devices moved by animal power,” which, implicitly, includes horses, both ridden and driven.

But is it a really bad idea to ride while under the influence?  Yes.  Is it dangerous?  Yes!  I’ll go a bit farther than the honorable Judge Berger and state, unequivocally, just don’t do it! 

First off, it’s dangerous for you.  You are not in control of the horse, the horse will think for itself, and not necessarily on your behalf. You can fall off, get bucked off, or have the horse run off.  You can be stepped on, kicked, and any number of other disasters can occur.  As the woman in the court case discovered, even getting on and staying on a perfectly well-behaved horse can be fraught with hazards if you are inebriated. The horse might know its way home; but it also may decide the grass is greener elsewhere.  The horse might take pity on you, but he or she might also decide it’s a good time to dispose of your sorry self and head for the back 80.

Second, it’s bad for the horse. Your coordination —and your common sense —is impaired. You could bump, hit, or kick your horse, jerk its mouth, yell at it, or just make a lot of confusing noises and movements. Quite possibly, you’ll be abusive.  At the very worst, your actions could get both you and the horse injured.

Even in Montana, if you ride while intoxicated, you could find yourself arrested for other things, such as disorderly conduct. MCA §45-8-101.  In some states and jurisdictions, such as Louisiana, you can be arrested for public intoxication, or, as happened in a Florida case, be charged with cruelty to animals.  And in any state, if your horse has to be impounded while you are hauled off in a vehicle with flashing lights, the horse could wind up boarded at public expense. If you don’t pay up, you could be subject to an agister’s lien for the boarding fees—the person boarding your horse could sell it to pay the board bill! MCA §71-3-1211.

So, yes, it may be legal to ride under the influence in Montana, but for you and your horse’s sake, please don’t.  And for your own safety and the safety of all the rest of us, never, ever, get behind the wheel of a vehicle if you aren’t 100% sober. That is life-threatening for you and others, even if you’re under the legal limit. Have a designated (human) driver. Be safe.

*By and large, police in Montana do spend a lot of time doing “welfare checks” on people when worried friends or neighbors call in.  We’re still a small enough state that people are still seen as unique individuals.  It’s one of the nice things about living here.

  1. MCA § 61-8-401 (3)(b) also excludes bicycles, for those who are interested.

Copyright 2016, Brenda Wahler

This article is premised solely upon Montana law.  If you do not live in Montana, some of the material contained in this article may not be applicable in your jurisdiction.  Please consult an attorney licensed in your state for personal legal advice.  Please read my general disclaimer.  (Also, I do not practice in the area of DUI defense.)

A plea for planning

Please read my general disclaimer. The following article is premised solely upon Montana law.  If you do not live in Montana, some of the material contained herein may not be applicable in your jurisdiction.  Please consult an attorney licensed in your state for personal legal advice.

AVAYA_9611G_IP_Phone

This is a “lawyer phone,” waiting to ring in 5…4…3…
Credit: Wikimedia commons

I can predict with regularity that the phone at my law office will begin to ring off the hook about two weeks prior to: 1) the start of the school year, 2) the end of the school year and 3) Christmas vacation. Inevitably, it is because an existing parenting plan has a transition for the child that is, for some reason, not working. Unfortunately, unless law enforcement or ambulances are involved, a call at the last minute generally will not get a parenting plan changed until long after the immediate crisis has passed, so this is my plea to parents: PLAN AHEAD.

There is an adage, “justice delayed is justice denied.”1  Unfortunately for people with recurring family law matters, and especially parenting plans that need to be modified post-decree, our modern world has crowded court dockets that prioritize crimes and other calamities.  Therefore, anything but the most urgent emergencies are, in fact, delayed.  So, to avoid justice denied, advance planning of legal action in a family law case is a good idea because it can take far longer than you think to get into court.

The only way to quickly change a parenting plan in Montana is in “an emergency situation … in the child’s present environment” that, as the law states, “endangers the child’s physical, mental, or emotional health and an immediate change in the parenting plan is necessary to protect the child.” MCA § 40-4-220 (2)(a)(ii).

But, many times, when a client wants me to file an emergency, ex parte motion to change a parenting plan, the judge says it’s not a crisis.   Other times an order of protection is granted, only to be dissolved at the show cause hearing that the court sets about 21 days out.   Even when the judge grants an emergency motion, there is still a need for final resolution.  One way or the other, the parenting plan at the root of the crisis still needs to be changed.

So, generally, most family crises between divorced or separated parents are not going to meet the legal definition of “an emergency situation” and will take considerable time to resolve.  An emergency hearing can be scheduled, but only if the judge considers the situation an emergency in the first place.  Getting an ordinary short, half-day merits hearing on an ordinary contested motion to amend a parenting plan is, at a minimum, months out.  A full-day hearing will take even longer to get to court.  And we are lucky in my local venue, we can get our clients in front of a judge sooner than in many other places.  But if you need to have a psychological evaluation performed, or a parenting evaluation, or obtain expert witness testimony, more months may pass.

In other words, if a call in May is about fixing the summer break schedule, there may not be a hearing or a decision until the current summer break is over—the parenting plan won’t be fixed until next summer!  Similarly, if Christmas break isn’t working out, the time to call your friendly lawyer is in January; don’t wait until after Thanksgiving!  If there is going to be a problem with where the child goes to school for the next academic year, try to anticipate this in October; it could take the whole academic year to get to a contested merits hearing.

A parenting plan can break down due to ongoing issues between the parents or the children.  Other times a poorly-designed plan was unworkable in the first place, and sometimes changed circumstances have arisen. These are often legitimate concerns, but not emergency ones.  Post-divorce or post-breakup problems need to be anticipated, as best as is humanly possible, and when possible, a mediated solution developed without going to court at all.

Frankly, the best form of legal planning is to communicate with your child’s other parent like a mature, rational adult.  That said, many relationships end in part because people weren’t necessarily mature or rational, so this advice isn’t always helpful.  But even so, try to address a problem situation before it becomes a crisis. Also, if you think that going in front of the judge will solve everything, remember:  just because you initiate legal action does not mean you are going to win!

If parents can’t agree on changes, mediate first. Most parenting plans in Montana now have a provision where the parents are required to seek mediation before filing a legal action. (There are exceptions.2)  And it’s a good idea; you may resolve the case faster and for less money than via an emergency order or a contested hearing.

Sometimes one party or the other views mediation as a waste of time, but if the parenting plan has a mandate, it needs to be followed.  Furthermore, most judges will grant at least one motion to compel mediation; some order it from the get-go. See  MCA §40-4-301 (though see also footnote 2).   In most cases, mediation will result in a settlement.  It may not be the perfect solution, but I call it “Rolling Stones justice”: You can’t always get what you want, but if you try, (sometimes…) you get what you need.

That said, some crises do fit the definition.  Certainly if witnesses to be called at a hearing include law enforcement, medical personnel or mental health providers, those witnesses can establish if, in their neutral, third-party professional judgment, there is an emergency that endangers the child.  Do not downplay a serious problem;  just because many things that people consider a crisis aren’t a legal emergency does not mean that true emergencies don’t occur.  Clearly they do.  Also, if you have reasonable cause to suspect that child abuse, neglect or abandonment is occurring or a child may be at risk of the same, Montana’s Child and Family Services has a child abuse hotline at 1-866-820-5437 (1-866-820-KIDS).

Last but not least, sometimes a parent’s concerns are born of the issues surrounding the breakup of the relationship between the parties or the child’s responses to the breakup.  Then, what is required is not legal action, but counseling.  A lawyer is sometimes called a “counsellor at law”, but we don’t do this type of work!  Please call a mental health care provider (they also charge less per hour than a lawyer and insurance may cover your sessions).  A licensed counselor can help you figure out if problems can be resolved other than by legal action.

Here are some steps you can take to think ahead about your parenting plan and, perhaps, avoid a court hearing:

  1. Realize that your child’s other parent is important. Your child needs both of you and trying to cut the other parent out of a child’s life is, in most cases, not OK.  Transitions are hard enough on kids.  Further, do not use the child as a weapon against your child’s other parent.  Montana law is clear:  MCA §40-4-212(1)(l) states, in pertinent part, “. . .frequent and continuing contact with both parents . . . is considered to be in the child’s best interests unless the court determines, after a hearing, that contact with a parent would be detrimental to the child’s best interests.”
  2. Anticipate that your child may have issues about the parental breakup. Having parents split up is tough on kids and finger-pointing doesn’t help;  it is what it is.  My local court has recommended the book, Don’t Divorce Us! : Kids’ Advice to Divorcing Parents as a resource for people who file for a parenting plan in my judicial district.
  3. Anticipate the changing developmental needs of your child; disputes often arise as the child enters kindergarten, middle school and high school.  It might take a year to get a parenting plan changed.  Think ahead.
  4. Don’t make big changes to the parenting plan on a verbal agreement.  If you both agree to a change, document it. Even if you don’t have a lawyer to draft a formal amendment (though I advise you consult one), at the very least, write down what both parents agree to, both parents sign and date the document (ideally with notarized signatures), and have it placed in the court file.3  A simple signed paper in the court file is not a court order and thus is not enforceable by law (unless you prepared proper documents with an Order for the judge to sign—again, call your attorney), but at least you are on record.
  5. Anticipate that either parent may move and decide how to help the child have a sense of stability:
    1. If the move is within the local area, it might mean that a change in neighborhood school could occur.  Try to avoid that, and especially try not to change schools mid-year (at least as long as your child is happy at his or her school). Most schools in Montana are reasonable and are not going to force you to move your child in the middle of the year if you move across town.  Also try to avoid switching schools every year; kids build friendships and their school can be an anchor of familiarity to a child.  Work with the other parent and the school to make it happen.
    2. If one of the parents moves out of town, the moving parent usually knows this well in advance.  If there will be a dispute, both sides usually suspect that too, so just call your friendly mediator and set up your dispute resolution process sooner rather than later.  The 30-day notice provisions of MCA §40-4-217 (which is usually boilerplate in any Montana parenting plan), provide insufficient time for a contested hearing on a parenting plan revision.
    3. Don’t be sneaky.  Giving your child’s other parent only 30 days notice of intent to move with a big “SURPRISE!” when you know they are apt to object is only going to result in your move being  held up or your child being placed in limbo.  Keep in mind that the burden is—at least informally—often on the parent who wants to move.  Some courts, notably the Fourth Judicial District (Missoula and Mineral Counties), will not allow the child to be moved out of town (absent special circumstances) until there is either a stipulation (written, signed agreement) or a hearing on the merits.
  6. Anticipate that people will not stay single forever.  Another time I guarantee my phone will ring is when a parent brings a new significant other into their family.  It’s a coin toss who will start the legal drama (and often everyone involved contributes some responsibility), but it starts.  And, this generally  is not  a crisis.  (Unless the person is profiled at ConWeb or the Sexual or Violent Offender Registry (SVOR), in which case you might—or might not—have a situation.  Best to call law enforcement if you are concerned.)  Remarriage or moving with someone often triggers a new round of emotions related to the breakup.  In such times, try to be respectful to your child’s other parent.
  7. Anticipate that people are going to travel for fun, on holidays, and for family milestones such as weddings and funerals.  You already know if your child’s other parent has out of state relatives, and children do have a right to get to know these people. Most people like to take their children somewhere like Disney World or Hawaii or (for Montanans) Silverwood.  If you are vacationing, inform the other parent well in advance—but also, don’t gloat about it.  Always provide emergency contact information. If you’re the parent who has to stay home, try not to show resentment or jealousy in front of your child or the child’s other parent.  And please, don’t send 10,000 texts a day to the child or the other parent while they are on their trip.

In short, when a parenting plan needs to be changed, it usually is obvious long before a crisis erupts. It is best to plan ahead so there is some chance that notice, negotiation and mediation can settle any disputes before court action has to be filed. Your lawyer appreciates advance planning and so will your child.

Always remember: BE A GROWNUP.  Plan ahead.  Take the high road.  Be the bigger person.  Your child will thank you for it.


Footnotes:

1. Attributed to William Gladstone, British politician (1809 – 1898)

2. Where there is domestic violence, MCA §40-4-301 allows survivors to opt out of mediation in some circumstances.  For more on this issue, the case  Hendershott v. Westphal, 2011 MT 73, as modified by subsequent statute, addresses the issue.  See this article for a layperson’s discussion, and this article for a law review discussion.

3. Ideally, the parties prepare a stipulated amended parenting plan, they both sign and notarize the document and  prepare an order for the judge to sign.  A lawyer can help you do this and it is not as expensive as a contested case arising from misunderstandings and restraining orders. MCA §40-4-219 governs amendment of parenting plans.

Good Fences

Please read my general disclaimer. The following article is premised solely upon Montana law.  If you do not live in Montana, some of the material contained herein may not be applicable in your jurisdiction.  Please consult an attorney licensed in your state for personal legal advice.

Today my mind is drifting to the topic of rural life and mentally streaming some narrative blend of Garrison Keillor and Lyndel Miekle. Springtime in Montana is weeks ahead of schedule, and tuning up the fences on our own property is a task that is not very poetic in practice, but so very necessary.  With cow-calf pairs next door to horses, with my mares across the fence from the neighbor’s geldings, livestock drama often ensues.

Why IS the grass always greener on the other side the fence—and in both directions?  Perhaps a brief poetry break can answer the question:

P8140378_1

You never know when neighborly goodwill is going to be needed…

Before I built a wall I’d ask to know
What I was walling in or walling out,
And to whom I was like to give offense.
Something there is that doesn’t love a wall,
That wants it down. I could say ‘Elves’ to him,
But it’s not elves exactly, and I’d rather
He said it for himself. I see him there
Bringing a stone grasped firmly by the top
In each hand, like an old-stone savage armed.
He moves in darkness as it seems to me,
Not of woods only and the shade of trees.
He will not go behind his father’s saying,
And he likes having thought of it so well
He says again, ‘Good fences make good neighbors.’

—from Mending Wall by Robert Frost (1874 – 1963)

Frost’s narrator may have grumbled about the need of a wall for the purpose of separating pine and apple trees, but the neighbor, “an old-stone savage armed,” had it right.  Good fences actually do make good neighbors.  (At least sometimes.2)  And with equine “elves” definitely amongst those “that doesn’t love a wall, That wants it down,”  I get a lot of questions about fence laws in Montana.  Though they are complicated to read and scattered through several parts of the Montana Code, their practical application is simple:  Keep your fences up!

Big Belts

This appears to be a legal fence1

The open range doctrine is not dead in Montana, but it’s on life support, particularly for horse owners or anyone living close to town, and especially if an animal gets loose on most state or federal highways.  A livestock owner can be civilly liable for any damages their animals cause if the critters are loose where they are not supposed to be.  (Example: §60-7-203, MCA)  You can also be charged with a misdemeanor and subject to fines. (Example:  §81-4-209, MCA)

While much of rural Montana is still technically open range, many Montana horse owners live within herd districts, where the legal duty is to keep livestock fenced in.  There also are many, many exceptions to the general open range doctrine.  (An example of tragic consequences here and here.3) Your legally safest approach is to assume you have a duty to keep your horses contained and that you could be liable for any damage they cause if they escape.

If you have a “legal fence,” that does reduce your liability exposure, but the laws in Montana are archaic and confusing when applied to modern horse owners and modern fencing materials.   I don’t want barbed wire enclosing my horses, yet cattle are often oblivious to anything more subtle.  Wood or synthetic rails get very pricey for enclosing pastures. So a combo of electric fence and smooth wire is my compromise, and I try very hard to keep the juice flowing.  But the courts have seldom interpreted the legal fence question and decisions are generally very fact-specific.

The law states that if the fence isn’t as described in statute, you are liable; it describes any other kind of fence as “defective.” §81-4-103, MCA.  Now, as a lawyer, you could pay me a lot of money to test that presumption, but a better solution is probably to just do what I do along one of my own fencelines that abuts a cattle ranch:  The neighboring landowner installed his four-strand barbed wire fence, and I installed offset electric wire and a visible top line of electrifiable web (which could be lit up, but isn’t) on the other side of the same set of fenceposts.  (I could probably also install woven wire on “my” side, or even a separate fence, but this solution works.)

A few basics:

  • Title 81, Chapter 4 of the Montana Code Annotated (MCA) has most, though not all, of the Montana statutes governing containment of livestock. (Title 60, part 7 has a few crucial statutes about horses and roadways, and other relevant laws are sprinkled throughout the Montana Code)
  • Legally, horses are livestock. §15-1-101 (1)(l), MCA, §60-7-102, MCA.
  • Stallions can’t run loose on the open range ever, even where there is open range. §81-4-204, MCA.
  • There are no other special fencing rules for stallions.  (This means yes, in Montana, your neighbor could put a stallion next door to your mare with only a four-foot high, three-strand barbed wire fence between them.  Just saying…)
  • Horses can’t run “at large” in a herd district.  §81-4-324, MCA. To find out if you live in one, call your local County Commissioners’ office.
  • Herd districts are established by and tracked in each county by a rather complex process. §81-4-301, MCA. These generally are areas where cultivation of land or residential development is common.  For the most part, herd districts were created by farmers many decades ago to keep cattle off of their crops.
  • Horse herd districts can be created more easily than a general herd district.  §81-4-322, MCA. Historically, this statute was enacted in part due to large numbers of feral horses let loose to roam open land during the Great Depression.
  • Even on the open range, if animals break into someone else’s property (at least, if it has a legal fence), the livestock owner can be liable for damages. §81-4-215, MCA.  Similarly, on the open range, highway safety dictates that livestock owners keep their animals of the highway. Larson-Murphy v. Steiner, 2000 MT 334, 272 Mont. 64, 15 P. 3d 1205.
  • A “Highway” includes the right of way. §60-1-103, MCA.  Though many roads in Montana run through open range, the right of way is mandated to be fenced.
  • A legal fence is defined at  §81-4-101, MCA.  A legal fence can include the following (see the statute for all the details on height, fencepost placement, and so on):
    • a four-board, -rail, or -pole fence,
    • a three-strand barbed wire fence,
    • woven wire topped with two strands of barbed wire,
    • “electric fences consisting of three or more wires”  — but the law is unclear if all three wires must be electrified or if electric wires combined with non-electric wires would meet the definition of a legal fence.
  • Interestingly, there is no legal definition of “wire” in the MCA.  There is also no definition of “board, rail or pole” in the code, either (nor is size/diameter specified for any of the above). There is also no discussion of whether non-electrified smooth wire or coated high-tensile wire could meet the definition of a legal fence.
  • Fallen-down wire fences are considered a public nuisance and the owner has to fix them—or at least clean up the wire. §81-4-105, MCA.
  • Owners are obligated to keep fences in good repair. §81-4-104, MCA
  • While “open range” is defined in law as land ” not enclosed by a fence of not less than two wires in good repair,”  §81-4-203, MCA, be aware that a two-strand barbed wire fence which converts open range land is not adequate to constitute a “legal fence.” (see dissent of Indendi, cited below)
  • Adjacent landowners have equal responsibility to repair and maintain a common fenceline, though only to the minimum standards of a “legal fence.”  (i.e. if your neighbor wants barbed wire and you don’t, you will probably be picking up the cost of anything more expensive.)  Details at §70-16-205, MCA.
  • If your pasture borders a railroad, there are entirely different laws. (See, e.g.,  §69-14-701, MCA.)

So, watch your gates, keep your fences in good repair, and make friends with your neighbors.   You never know when goodwill is going to be needed.


Footnotes:

  1. Said fence has not been adjudicated by any court of law to be a legal fence, but appears to consist of at least three strands of barbed wire in good repair and within the height requirements provided by Montana law.
  2. “…Whereas in Robert Frost’s New England good fences make good neighbors, in Montana, generally speaking, messing with your neighbor’s fence is a good way to start trouble that comes cheap and leaves expensive.”  James C. Nelson, Guthrie v. Hardy, 2001 MT 122, ¶38citing State v. Mumford (1924), 69 Mont. 424, 222 P. 447 (wherein “defendant accuses neighbor of cutting down his fence, which neighbor denies; gun play ensues resulting in neighbor’s death and defendant’s conviction for manslaughter”)
  3. See Indendi v. Workman272 Mont. 64, 899 P.2d 1085 (1995).  A horse and a mule got out onto a state highway near Norris at night and the horse was hit and killed by a vehicle. The driver was injured and her vehicle was totaled.  Be aware that parts of this case have been superceded by amended statutes and other case law, but this is an example of what can happen; the law often places responsibility on the livestock owners.  The legal issues in this case were superceded by Larson-Murphy v. Steiner, 2000 MT 334, 272 Mont. 64, 15 P. 3d 1205, wherein a driver was severely injured in a collision with a bull, and the Court found that even on open range, a duty of care was owed by a livestock owners to motorists.  That decision has also been altered by some subsequent statutory changes.

Copyright 2016, Brenda Wahler

Disclaimer

The Reluctant Cavalryman

Schreck 1920

A large version of this U.S. Cavalry recruitment poster adorned the reception area in Judge Hunt’s personal office area at the Montana Supreme Court.
artist: Horst Schreck, 1920

Rest in peace, Bill.

“Judge Hunt” was one of the reasons I am a lawyer today. To me, he is best remembered as a strong-minded but humble man; someone who did remarkable things yet never tooted his horn about it.  He fought—vigorously—for what he believed in, yet never felt he was better than anyone else; a voice for civility, graciousness and modesty against our current age of rage and vicious aggrandizement. Though I was not a part of his inner circle of friends and family, his influence on me was profound.


When I got a call at the small Macintosh computer repair business I ran back in the mid-1990s, I didn’t know it would change my life. The voice on the phone was an older-sounding fellow who said, “this is Bill Hunt, I need someone to look at my Mac.”

I drove over to a modest home in Helena’s Sunhaven neighborhood, where I was greeted by Bill’s wife, Mary.  She took me down to the basement, where a home office occupied half the rec room, dominated by a state-of-the-art (for the 1990s) Mac and all possible accessories, along with a plethora of scattered books and papers.  A fellow keeping busy in retirement, it seemed.  Bill, then a rumpled-looking gentleman in his 70s, was having trouble with his new trackball, and a bit of troubleshooting revealed that a software upgrade plus a driver installation could solve the problem.  That settled, Mary offered me refreshments and after a brief chat, I was on my way.

What a nice couple, I thought.  Over subsequent months, Bill’s penchant for gadgets and his embrace of technological innovation with modest skills made him one of my more regular customers. Mary’s usual offer of simple drinks and a chat before I left made the kitchen as familiar as the basement office.

I’ve got a bit of tunnel vision when I’m solving a computer problem, so it took a few visits before I began to look around.  I finally noticed a campaign poster with “HUNT” on it, propped in a neglected corner of the basement.  Wait a minute, I thought, I’ve seen that poster before.  Was Bill the judge who ran for the Montana Supreme Court?  He never mentioned that!

A quick web search confirmed it.  Yes, and he was still on the court. Not simply a nice retired fellow at all!  Oh dear.  I suddenly was in a quandary.  Aren’t judges supposed to be addressed with honorifics, and here I’ve been calling this man “Bill?”  Shouldn’t it be “your honor” or something? I once asked him, gingerly, should I say “Judge” or “Justice?” No, just Bill.  I took a deep breath. OK, Bill. Onward.  And how are you doing with that new laser printer?

In those years, (the 1990s are now a generation ago!)  judges kept a lower partisan profile in public, but I’d always been aware that Bill and Mary’s house was one place where I didn’t have to smile and nod while the customer ranted about how the problem with these damn computers was Al Gore inventing the internet.*  Bill was a liberal democrat, and he was not shy about it.  Refreshments in Bill and Mary’s kitchen often included discussions of politics as well as computers.

His preference for informality aside, he was “Judge Hunt” at the office, and I visited the Court for the first time in 1997 when he helped me with the fledgling YMCA Model Supreme Court program for teenagers I was developing. As I waited for him and chatted with his secretary, I saw a U.S. cavalry recruitment poster in his reception area, (reproduced here) and my eyes lit up. “The horse is Man’s noblest companion?”  Oh yes! “Join the Cavalry and have a courageous friend?” What a perfect way to draw horse-loving recruits in those days!  Was my computer-client-and-important-justice actually a fellow horse lover?  He never mentioned that!

As he emerged from his office, as rumpled at work as at home, I complimented the poster. “Yeah,” he said, “I was in the Cavalry when I first joined up.”  Oh wow, I thought, one of the last of the horse cavalrymen.  Bill didn’t tell me he had been a horse person …  “My kids gave that to me.” What a knowledge of history, military training, horsemanship… my brain began to gallop off…a person fond of horses…

“I hated those dumb S.O.B.s” he said.

Oh.  My balloon deflated.  Well, not a fellow horse lover.  OK.  We went on with our meeting. A lot of people of his generation had military service and could not resist using such an opening to tell war stories. He wasn’t one of those folks.  We began to exchange email with ideas for the youth court program, and his signature was always a simple “WEH” (William E. Hunt).  No “the honorable,” no “Justice,” not even “judge” or even “esq.,” which so many of us lawyers can’t resist appending to our signatures.

Bill helped me meet the other members of the court,** and tipped me off to good opportunities to observe oral arguments.  Finally  the YMCA program launched and in the process, I fell in love with the law and the dance of argument at the appellate level.*** Perhaps, I thought, it was time to change my life as a typical “fully employed” Montanan—which meant I held down three part-time jobs that all paid squat—and consider going to law school.  Bill had opened a door to two worlds where I felt welcome: in the Hunt kitchen having a soft drink with Bill and Mary, and inside the courtroom at the Montana Supreme Court.

In 1999, I asked Bill if he’d write me a letter of recommendation to  UM Law—his own alma mater.  He said yes. In typical style, when he handed me the letter, he remarked, “It’s not much, but all they’re going to notice is the letterhead anyway.”  It was “much” though; he spoke with genuine warmth of how great I’d be at law if they let me in.  It worked.

I talked with him about working part time while attending law school; he told me he had done so, working nights for the railroad. “We weren’t supposed to work and go to school back in my day, but I did anyway.” I fretted about being a first generation college graduate going to law school.  “I was, too.” he said.  He made it; I made it.  Thank you, Bill.

The good judge retired from the court in 2000.  At his retirement party—at Helena’s upscale Montana Club, where he seemed a bit outside his comfort zone—his son Jim (also a lawyer in Helena), showed slides that included a Time-Life photo of Bill during World War II—at Normandy on D-Day.  My god.  He’d stormed the beaches.  Though to people who knew him better, he described the experience as one that profoundly shaped his life, he’d never mentioned that to me, either; even with an opening like the cavalry poster. He was one of the true veterans, one who didn’t have to aggrandize his war experience to every person who gave him an opening.

I encountered Bill less often after he retired and I graduated from law school. We had coffee at Flicker’s, where he was pleased that I’d taken my first legal job at the Department of Labor and we talked about his time as the workers’ compensation judge.  His passion for helping the ordinary person was still alive and kicking.  Another time, when I moved to a different job and wondered out loud if I should consider private practice, he was blunt—he warned me that family law was very difficult emotionally.

It is sad to see old friends age; Bill and Mary were about the same age as my own parents, and they all were declining as the 2000s wore on.  I’d gone a year or two without seeing Bill when we ran into each other at the post office; I felt the sadness of generations passing as I could tell he recognized me but struggled to remember my name.  I saw Mary at a few Democratic functions from time to time, moving slower, using oxygen.  Mary passed on before Bill, and when he went into a nursing home in his final years, I didn’t know that, either.  At his funeral, at the Cathedral of St. Helena, I was touched to see how very large his family contingent was:  children,  grandchildren, great-grandchildren, cousins, nephews and nieces; the two men in front of me at the guest book were both relatives who came in from out of state.  The cathedral itself was filled with a who’s who of the Montana legal community and most of the current Montana Supreme Court.  He had touched many, many lives.

Rest in Peace, Bill and Mary.  Your spirit carries on in our memories.  Bless you both.

Copyright 2016, Brenda Wahler
More:

Former Justice William E. Hunt dies at 92

*Actually, Al Gore never said he invented the internet, but his awkward offhand remarks have become a cautionary tale for politicians in general.

**The Montana Supreme Court in the 1990s has subsequently been described as the “Camelot” period in court history due to the multiple landmark decisions it issued, including Gryczan, Armstrong, and MEIC v. Montana DEQ.

***Most appellate cases in Montana are decided on written briefs.  Few cases even request oral argument before the court and fewer yet are granted it.

Are you in a horse club?

Please read my general disclaimer. The following article is premised solely upon Montana law.  If you do not live in Montana, some of the material contained herein may not be applicable in your jurisdiction.  Please consult an attorney licensed in your state for personal legal advice.

Are you a member of a horse club—or any other club, group, association, or membership organization for that matter?  Worse yet, did you let yourself get talked into (or flattered, guilt-tripped, bribed, manipulated, drafted or heroically charged into) becoming an officer or a board member?

If so, my condolences.

Well, now that you’ve agreed to volunteer, and if you can’t weasel your way out of it, then you may already suspect that, to quote Spiderman (and Justice Elena Kagan, who also quoted Spiderman): “with great power there must also come—great responsibility”?   (Yes, the US Supreme Court has quoted a comic book, who says the law has no sense of humor?)

Admittedly, in the case of a local horse club, it’s minor power at best, and often minor responsibility; but even with minor responsibility comes great potential for personal liability unless you take appropriate precautions.  I have been ranting about this in various horse clubs I’ve been in for years, as many clubs are very careless about incorporating, even more careless about keeping their incorporation current, and some even question the absolute necessity to have proper insurance for their activities and events.

Some people think that Montana’s Equine Activity Liability statutes mean “you can’t get sued if someone gets hurt by a horse.”  WRONG.  First off (as I am often reminding my clients), anyone can almost always sue anyone else for any reason.  Nothing stops a person from walking into the local courthouse and filing a lawsuit, even if the reasons are not legally supportable.  They might lose, but in the meantime, if they name you, you must respond or risk a “default judgement” – a ruling in their favor because you didn’t show up to defend yourself!

But more to the point, Montana’s Equine Liability statutes, MCA § 27-1-725, -726 and -727, are narrowly drawn:

“It is the policy of the state of Montana that a person is not liable for damages sustained by another solely as a result of risks inherent in equine activities if those risks are or should be reasonably obvious, expected, or necessary to persons engaged in equine activities.”  (emphasis added) The statutes go on to define “risks inherent in equine activities”, “equine professional”  and other terms very carefully and outline limitations on liability.

Montana law also contains a major caveat:  “It is the policy of the state of Montana that an equine activity sponsor or equine professional who is negligent and causes foreseeable injury to a participant bears responsibility for that injury in accordance with other applicable law.” (emphasis added

In other words, ouch.  All anyone has to do is allege negligence or foreseeable injury and they are not only over the threshold of the courthouse, they probably “state a claim for which relief can be granted” (thus surviving the first challenge to a lawsuit, what we lawyers call a Rule 12(b)(6) motion to dismiss).   So if you are personally named in a complaint, you most likely will need to pony up a deposit with your friendly neighborhood tort defense attorney to answer the complaint—unless you or your club has insurance coverage that pays for the lawyer.

So, there are two steps that help protect you.  First, if you are a member of a club, be sure your club is incorporated (usually as a nonprofit corporation) and KEEP YOUR INCORPORATION CURRENT!  Your club needs to register  as a corporation (and even not-for-profit clubs are a corporate “business entity” in this respect) AND your club must also file annual reports (people often forget about the annual report requirement).  While a corporate shield doesn’t completely protect you from personal liability, it is a critical first line of defense.

Second, liability insurance is also a must.  Just like health insurance, which doesn’t prevent illness or injury, it just pays for medical care if you need it; liability coverage does not prevent someone from filing a lawsuit, but it pays for an attorney.

Horse accidents are not uncommon at events a horse club might sponsor, and if incorporation and insurance are not in place, YOU as an individual club member could be financially liable in the event of an accident! (Usually officers and directors are most at risk, but a person with an injury might reach out for any legal remedy they can find, so incorporation and insurance protects all club members).  Event liability insurance is not terribly expensive and is well worth the price.  Some clubs also obtain liability insurance for their officers and board of directors, especially if they handle big events or significant amounts of money.

Consult an attorney for more information on club member liability and incorporation.  Talk to an insurance agent about appropriate coverage.

If you want to learn more about becoming a nonprofit corporation in Montana, the Montana Secretary of State’s web site has more information.

Read more on club liability here, from The Horse:
Are Horse Club Boards Liable for Club-Related Injuries?

Ride safe!

Copyright 2016, Brenda Wahler

Please read disclaimer