HD4 candidate argues partner assault charge unconstitutional

A judge in Lincoln County has dismissed a charge of partner family member assault after Kalispell lawyer and Republican House District 4 candidate Tim Baldwin argued the commonplace charge is unconstitutional.

Baldwin recently represented defendant Dale James Miller, who was arrested May 12 and charged with partner family member assault in Lincoln County Justice Court.

In his argument to dismiss the charge, Baldwin wrote that PFMA creates two classes of people based on sexual orientation and punishes heterosexuals to a greater degree than homosexuals convicted of the same act.

His brief notes that PFMA defines “partner” as spouses, former spouses, people who have a child in common, and those in an ongoing intimate relationship with a person of the opposite sex.

Based on his interpretation of the charge, a homosexual person could not be charged with PFMA. Rather, they would be charged with assault.

PFMA carries a more severe penalty than an assault charge, Baldwin argued. A charge of PFMA carries a fine of up to $1,000 and up to one year in county jail. A third conviction of PFMA can be a felony and carries a fine of up to $50,000 and up to five years in prison.

A charge of assault carries a fine not to exceed $500 and up to six months in county jail.

Baldwin cited the 14th Amendment and Montana’s equal protection provisions in his argument.

“The state can no more discriminate against the heterosexual class of persons than it can discriminate against the homosexual class of persons similarly situated,” Baldwin wrote. “Were the PFMA to enhance penalties only against homosexual partners, it would be facilely unconstitutional, and presumable, the state would have little hardship in recognizing its violation of equal protection.”

In judge Stormy Langston’s opinion, she said that the law, on its face, classifies partners to only include those in heterosexual relationships.

“This classification does not consider those engaged in homosexual dating or ongoing intimate relationships, nor those who may have a child in common. Thus, leading to different treatment for different groups of persons, who are described by some suspect trait, namely, their sexual orientation.”

“This court does not believe that there is any rational basis for the distinction of “opposite sex” in the partner definition,” Langston wrote. “It appears that while the legislature was trying to preserve its traditional and historical views of opposite sex relationships, it instead created a gross flaw in the statute.”

Baldwin told the Pilot he doesn’t have a set opinion as to if the state should eliminate the charge of PFMA altogether, or if the definition of partner should be amended.

“During the hearing on my motion to dismiss, the state argued it had a compelling interest to protect marriage as defined by our constitution, which it arguably does,” Baldwin said in an email to the Pilot. “However, the PFMA does not protect just spouses of marriage — it protects all forms of heterosexual relationships: pre-marital, extra-marital, etc. For the state to comply with its own position under the current version of the PFMA, it would have to exclude all sexual relationships from PFMA except for heterosexual marriage.”

The state has filed a notice of appeal and Lincoln County District Court Judge James Wheelis will decide the appeal. Baldwin thinks the matter will eventually go to the Montana Supreme Court.