STATE v FITZPATRICK

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No. 84-154 I N THE SUPREME COURT OF THE STATE OF MONTANA 1984 THE STATE OF MONTANA, P l a i n t i f f and Respondent, -vsBERNARD JAMES FITZPATRICK, Defendant and Appellant. APPEAL FROM: D i s t r i c t Court of t h e Thirteenth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Big Horn, The H o n o r a b l e C h a r l e s L u e d k e , J u d g e p r e s i d i n g . COUNSEL OF RECORD: For Appellant: Stephens & Cole; Robert L. Stephens, Jr. argued, B i l l i n g s , Montana Timothy K. F o r d , S e a t t l e , Washington For Respondent : Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana J o h n H. Maynard a r g u e d , A s s t . A t t y . G e n e r a l , I I e l e n a L a n c e P e d e r s e n , C o u n t y A t t o r n e y , H a r d i n , Montana Submitted: !! L , '- 1984 Decided: Filed: June 2 0 , July 25, 1984 : ~11384 L Clerk Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court. Petitioner, Bernard J. Fitzpatrick was convicted in 1978 of deliberate homicide, robbery and aggravated kidnapping. After exhausting his remedies, petitioner sentencing. state appellate was (A detailed proceedings may be and post-conviction remanded to District Court account of Fitzpatrick's found at Fitzpatrick v. 1983), 671 P.2d 1, 40 St.Rep. 1598.) State for court (Mont. On December 8, 1983, petitioner was sentenced to die pursuant to Montana's death statute, section 46-19-103, MCA. Petitioner objected on the grounds that the statute, which had been presented to the 1983 Montana Legislature unconstitutional bill of as Senate Rill attainder. The 394, is objection an was overruled and this appeal followed. " Bills of attainder are matter what their form, ... that legislative acts, no apply either to named individuals or to easily ascertainable members of a group in such a way as judicial trial to inflict punishment on them without . . .. 'I a U.S. v. Lovett (1946), 328 U.S. 303, 315-316, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252, 1259. attainder are unconstitutional. Rills of See U.S. Const. Art. I, 59, c1.3 and Mont. Const. Art. 11, 530. The adoption of Senate Bill 394 resulted in three amendments to section 46-19-103, MCA. 1. It provided an optional provision for death by lethal injection at the election of the defendant in addition to the previously mandated death by hanging. 2. It changed the place of execution from the county in which the defendant was convicted to the state prison, and provided that the prison warden, rather than the county sheriff, is responsible for the supervision of an execution. 3. It provided that the act applies to death sentences whenever pronounced, whether before or after the effective date of the act. Petitioner contends that the statute inflicts punishment on him without benefit of a trial by (1) legislatively creating an additional form of punishment for homicide death by lethal injection; and (2) depriving him of the opportunity to pursue his claim that hanging is a cruel and unusual punishment. We find no merit to either contention. Death by lethal injection is not a legislatively created punishment. The punishment is the sentence of death. Petitioner's punishment was pronounced by a District Court judge following a trial and numerous other court proceedings. Banging and lethal injection are merely alternate methods for imposing that punishment. When South Carolina replaced death by hanging with death by electrocution, Joe Malloy objected to his sentence of death by electrocution on the basis that the new sta.tute was ex post facto legislation with respect to his offense. The United States Supreme Court disagreed stating, "(t)he statute under consideration did not change the penalty - death - for murder, but only the mode of producing this v. South Carolina (1915), 237 U.S. 509, 59 L.Ed. 905, 907. . . .." Malloy 180, 185, 35 S.Ct. 507, Although Malloy involved ex post facto legislation, its rationale is applicable here a.s both ex post facto law and bills of attainder involve "legislative denunciation and condemnation of an individual" or specific group, either prospectively or retroactively. Z. Chafee Jr., in the of 1787, pp. 92-33 Three Human Rights - - Constitution - (1956). Turning to the second contention, petitioner has already pursued his punishment. claim that hanging is a cruel and unusual Our rejection of that claim can be found at Fitzpatrick v. State (Mont. 1981) , 638 P.2d 1002, 1011, 38 St.Rep. 1448, 1456-1457. Further, nothing in the statute prevents the pursuance of such a claim (with respect to e i t h e r mode o f p u n i s h m e n t ) . For t h e reasons set f o r t h i n t h i s opinion, w e hold t h a t s e c t i o n 46-19-103, MCA i s n o t a b i l l o f a t t a i n d e r and a f f i r m p t h e D i s t r i c t Court's d e n i a l of Fitzpat__ric/kfs e t i t i o n . W e concur: s ~ -i e f ,J u sdE e $ & Ch ti (cd - - - - - - . Honorable Gordon R. B e n n e t t sitting for J u s t i c e J o h n C.Sheehy

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