Cox v. Bell
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 30 Motion for Summary Judgment filed by Yellowstone County, Montana, 44 Findings and Recommendations. IT IS HEREBY ORDERED that Judge Ostby's Findings and Recommendations are adopted in their entirety and the County's Motion for Summary Judgment is DENIED.Summary Judgment is entered in favor of Plaintiff. Signed by Judge Richard F. Cebull on 6/13/2011. (Copy mailed to James B. Cox) (ACL, )
11- E~ 0
IN THE UNITED STATES DISTRICT COURT:";- It:
FOR THE DISTRICT OF MONTAN~11 lJUN 11
JAMES B. COX,
DE PUT Y C7Er~K"--'-
ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE
On April 26, 2011, United States Magistrate Judge Carolyn Ostby entered
Findings and Recommendations (Doc. 44) in this case. Judge Ostby
recommended that Defendant Yellowstone County's (County) Motion for
Summary Judgment (Doc. 30) be denied. Judge Ostby concluded that the
County's application of Montana's agisters' lien statute, codified at Mont. Code
Ann. § 71-3-1203, resulted in an unconstitutional denial of Plaintiff's right to due
process of law provided by the Fourteenth Amendment of the Constitution of the
Upon service of a magistrate judge's findings and recommendation, a party
has 10 days to file written objections. 28 U.S.C. § 636(b)(I). In this case, the
County filed an objection on May 11, 2010 (Doc. 45). Plaintiff filed no response.
The County's objection requires this Court to make a de novo
determination of those portions of the Findings and Recommendations to which
objection is made. 28 U.S.C. § 636(b)(1). In this case however, the County
states that it "does not object to the recommendation by the magistrate judge."
(Doc. 45, p. 2). Rather, the County seeks clarification as to whether the Findings
and Recommendations would render Montana's agisters' lien statute
unconstitutional as applied or as written. See Id. The County goes on to request
that the Court make a finding that the statute is unconstitutional as written.
The Court does not take a request to find a state statute unconstitutional
lightly. Nevertheless, after reviewing de novo Judge Ostby's well reasoned
Findings and Recommendations, and considering established precedent, the Court
agrees with the County and can conceive of no set of circumstances under which
Montana's agisters' lien statute could pass constitutional muster in view of
procedural due process requirements. Particularly, the need to provide a
meaningful opportunity to be heard prior to a government deprivation of property.
After reviewing the record and the applicable law, IT IS HEREBY
ORDERED that Judge Ostby's Findings and Recommendations are adopted in
their entirety and the County's Motion for Summary Judgment (Doc. 30) is
DENIED. Pursuant to Fed.R.Civ.P. 56(1)(1) summary judgment is entered in
favor of Plaintiff. Furthermore, for the reasons articulated in the Findings and
Recommendations, the Court finds that the enforcement provision of Montana's
agisters' lien statute, Mont Code Ann. § 71-3-1203, is unconstitutional as written.
The Clerk of Court is directed to notify the parties of the making of this
Order, enter judgment ~f Plaintiff and close this case.
day ofJune, 2011.
CHARD F. CEBULL
CHIEF U. S. DISTRICT JUDGE
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