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A Missoula judge ruled this week that the criminal statute regarding the exploitation of the elderly is unconstitutionally vague.

Judge Robert “Dusty” Deschamps made the ruling on Tuesday in the case of an 80-year-old woman’s handling of her partner‘s money. Specifically, Deschamps wrote in his order, the statute doesn’t require criminal intent.

Rose-Marie Bowman is currently charged with exploitation of an older person. But after Deschamps’ ruling, Missoula County prosecutors will have to determine by Monday whether to appeal to the Montana Supreme Court, swap the charge with another, such as theft, or dismiss the case entirely.

Missoula County Attorney Kirsten Pabst said Thursday her office is in contact with the Attorney General's Office about the matter. If prosecutors decide to appeal Deschamps' ruling, the Attorney General's appellate attorneys make their case in the high court.

Pabst said while judges have struck down statutes because of vagueness before, the situation at hand is still "unusual."

This type of exploitation, according to the statute in question, occurs when someone knowingly “obtains or uses” an older, incapacitated or developmentally disabled person’s “funds, assets, or property with the intent to temporarily or permanently deprive” the respective victim.

In a June motion to dismiss the case, Bowman’s attorneys argued that the vagueness of the statute allows prosecutors to pursue a son who accepts a gift from his elderly mother. 

The rub hangs on the words “obtain” and “use,” Missoula attorney Lance Jasper contended, the definitions of which are not clearly outlined by the Legislature in the context of criminal exploitation.

Deschamps agreed in his order, filed Wednesday, writing that the law leaves vast discretion to police and prosecutors. He included examples of a grandmother giving a china set to a trusted family member or a financial adviser accepting payment from an elderly client as instances that potentially could produce exploitation charges.

“While these examples may sound ridiculous, the fact is that the statute is so broad and devoid of any requirement for proof of a criminal state of mind by the accused, a person is left to guess what specific acts might be allowed or prohibited by the statute,” he wrote.

In Bowman’s case, she had been withdrawing funds from an account for which she and Lanny Franzen were co-signors. Bowman has said she and Franzen had been in a platonic relationship for nearly 30 years, but Franzen in 2012 was diagnosed with early onset Alzheimer’s.

That year he signed a power of attorney that gave control of his finances to Bowman. In 2016, someone reported Bowman for potentially exploiting Franzen, and she was charged in 2017. Prosecutors allege she had manipulated Franzen into depositing money into the account, of which she was a joint owner.

The Montana Elder and Persons with Development Disabilities Abuse Prevention Act, also a part of state statute, defines exploitation as taking something with the use of “deception, duress, menace, fraud, undue influence, or intimidation.” That definition, however, does not appear to be connected to the criminal statute with which Bowman is charged.

The Supreme Court, where this argument could head next, has repeatedly ruled that a statute is unconstitutional if it fails to give someone fair notice that their conduct is illegal. In 1997, David Nathan Nye argued the state hate crime statute was unconstitutionally vague. He had placed stickers reading “NO I do not belong to CUT” on state and county road signs, mailboxes, and property belonging to the Church Universal and Triumphant (CUT).

When the case reached the state Supreme Court, Nye’s attorneys argued the law was too vague because the words “annoy” and “offend” were not defined in the specific context of the hate crime law. The alleged victims could be annoyed or offended by any act if they were sensitive enough, they said.

The Supreme Court, however, shot down Nye’s vagueness argument, saying the law did specify that defacing property was a violation of the hate crime statute, so there should have been no confusion as to Nye’s criminal intent.

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