author: JUSTICE GRAY

text:
    STATE OF MONTANA, ex rel. DEPARTMENT OF HEALTH AND ENVIRONMENTAL SCIENCES, Plaintiff and Respondent, v. PEGASUS GOLD CORPORATION, Defendant, and ZORTMAN MINING, INC., Defendant and Appellant, ISLAND MOUNTAIN PROTECTORS, Intervenor and Respondent.
    No. 94-323.
    Submitted on Briefs December 15, 1994.
    Decided February 15, 1995.
    52 St.Rep. 64.
    270 Mont. 32.
    889 P.2d 1197.

      For Appellant: James B. Lippert, Alan J. Joscelyn; Gough, Shanahan, Johnson & Waterman, Helena.
    For Respondent: Robert J. Thompson, Special Ass’t Attorney General, Department of Health & Environmental Sciences, Helena.
    For Intervenor: Peter Michael Meloy, Attorney at Law, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Zortman Mining, Inc. (ZMI) appeals from an order of the First Judicial District Court, Lewis and Clark County, denying its motion to change venue to Phillips County. We affirm.

The State of Montana, through its Department of Health and Environmental Sciences (Department), filed a complaint and application for an injunction in the First Judicial District Court against defendants ZMI and Pegasus Gold Corporation (Pegasus). The Department alleged multiple violations of the Montana Water Quality Act at the Zortman and Landusky mines located in Phillips County. It also alleged that Pegasus owned or controlled the mines and that both Pegasus and ZMI did business in Lewis and Clark County, making that county a proper venue for trial.

ZMI moved for a change of venue to Phillips County, asserting that Pegasus was not a proper defendant and, as a result, could not be used to support the Department’s choice of venue; ZMI also contended that it was not doing business in Lewis and Clark County. Finally, ZMI argued that venue in Phillips County would promote the ends of justice and the convenience of witnesses because ZMI’s business is located there. ZMI filed a supporting affidavit from Rolin Erickson, its Project Manager, stating that ZMI is the owner of the mines; the mines are located in Phillips County; the operation of the mines is ZMI’s only business; and ZMI’s offices, and land under its control, are solely in Phillips County.

Pegasus filed a concurrent motion to dismiss it from the action or, in the alternative, for summary judgment; it asserted that the Department could not establish a genuine issue of material fact regarding whether Pegasus owned or controlled the Zortman and Landusky mines. Pegasus supported its motion with an affidavit of F. Alan Fletcher, its Vice President, General Counsel and Secretary, stating that ZMI’s only business is the day-to-day operation of the Zortman and Landusky mines and that Pegasus, which maintains its corporate headquarters in Spokane, Washington, maintained separate offices and mailing addresses and is, in all respects, a corporate entity separate from ZMI.

The Department opposed both motions and filed an affidavit from Thomas Reid, a Department Water Quality Specialist. Reid stated that Pegasus actively corresponds and negotiates with the Department regarding regulation of the Zortman and Landusky mines and that he was led to believe that Pegasus represented ZMI’s interests regarding water quality at the mines.

The District Court denied ZMI’s motion to change venue and Pegasus’ motion to dismiss. ZMI appeals the denial of its motion.

1. Did the District Court err in denying ZMI’s § 25-2-201(1), MCA, motion for a change of venue?

The District Court denied ZMI’s § 25-2-201(1), MCA, motion which contended that Lewis and Clark County was not a “proper county.” It determined that Pegasus was a named defendant and, under the facts alleged in the complaint, was located — and doing business — in Lewis and Clark County; thus, the court concluded, that county is a proper venue for the action. Because venue in Lewis and Clark County was proper for defendant Pegasus, the court further concluded that venue for defendant ZMI was proper in Lewis and Clark County even though ZMI maintained offices and was located in Phillips County. ZMI asserts error regarding both conclusions and we will address them separately.

A determination regarding whether a county is the proper place for trial under § 25-2-201(1), MCA, “is not a question of fact; it is a question of law involving the application of venue statutes to pleaded facts.” Minervino v. University of Montana (1993), 258 Mont. 493, 497, 853 P.2d 1242, 1245. We review a district court’s conclusion regarding venue to determine whether it is correct. Carter v. Nye (1994), [266 Mont. 226], 879 P.2d 729, 730; citing Emery v. Federated Foods, Inc. (1993), 262 Mont. 83, 87, 863 P.2d 426, 429.

The Department’s complaint named both ZMI and Pegasus as defendants and alleged that they had violated the Montana Water Quality Act (the Act) by discharging waste into surface water in the area of the mines. Section 75-5-614(1), MCA, specifically authorizes the Department to file its complaint “in the district court of the county in which the defendant is located or resides or is doing business ....” It is undisputed that Pegasus, a named defendant in the Department’s complaint, “is doing business” in Lewis and Clark County for purposes of § 75-5-614(1), MCA.

If an action is filed in a county which is not designated as a proper place of trial, a defendant may move for a change in venue. Section 25-2-114, MCA. The district court must grant such a motion to change venue if the county designated in the complaint is not a proper county. Section 25-2-201(1), MCA. It is axiomatic “that venue will be determined by the status of the parties and pleadings at the time of the complaint or at the time the moving party appears in the action.” Emery, 863 P.2d at 429 (citations omitted); see also Petersen v. Tucker (1987), 228 Mont. 393, 395, 742 P.2d 483, 484. Moreover, “[t]he averments of the complaint will be taken as true in considering the motion ....” Johnson v. Clark (1957), 131 Mont. 454, 461, 311 P.2d 772, 776.

ZMI challenges the District Court’s venue determination by focusing on Pegasus’ status as a defendant in the action. ZMI asserts that Pegasus does not own or control the mines at issue and, therefore, the fact that Pegasus “does business” in Lewis and Clark County by maintaining an office there is irrelevant to the court’s venue determination.

We rejected a substantially similar argument in Petersen. In that case, the plaintiffs filed an action in Missoula County alleging tortious conduct and civil rights violations against the Office of the State Auditor and several individual defendants residing in Lewis and Clark County. Petersen, 742 P.2d at 483. The defendants moved for a change of venue and to dismiss the State as a party asserting that, if the State were dismissed, the sole proper venue for the action would be Lewis and Clark County. Petersen, 742 P.2d at 484. We determined that the State was a named party in the complaint and had not been dismissed. Given that record, and the fact that the venue statute at issue allowed a plaintiff to bring an action against the State in the county where the plaintiff resides, we concluded that venue in Missoula County was proper. Petersen, 742 P.2d at 484-85.

The Petersen principles regarding the status of the parties in the action at the time of the motion apply here and dictate the same result. Pegasus is specifically named as a defendant and has not been dismissed from the suit. We conclude, therefore, that the District Court was correct in considering Pegasus’ status as a named defendant in making its determination regarding venue.

ZMI contends that the District Court erred by accepting the facts alleged in the complaint as true and not factoring the uncontradicted affidavits of Fletcher and Erickson into its decision. ZMI argues that proper consideration of the affidavits by the court would have resulted in a determination that Pegasus, a corporate entity separate from ZMI, was not a proper defendant and, thus, that Pegasus’ activities in Lewis and Clark County were irrelevant to the venue issue.

We previously have determined that district courts may consider affidavits relating to a motion to change venue. I.S.C. Distributors, Inc. v. Trevor (1993), 259 Mont. 460, 464, 856 P.2d 977, 979; citing Hopkins v. Scottie Homes, Inc. (1979), 180 Mont. 498, 501, 591 P.2d 230, 232. We also have stated that when affidavits submitted by one party are uncontradicted, the facts stated therein must be taken as true. Hopkins, 591 P.2d at 232 (citation omitted).

We note that ZMI supported its § 25-2-201(1), MCA, venue motion with Erickson’s affidavit; its motion neither referred to, nor relied upon, the statements in Fletcher’s affidavit filed in support of Pegasus’ motion to dismiss. Thus, ZMI cannot rely on the Fletcher affidavit.

Erickson’s affidavit simply states that ZMI’s operation and ownership of the mines occur solely within Phillips County. While Erickson addresses ZMI’s ownership of the mines, he does not state facts which contradict the allegation in the complaint that Pegasus, as ZMI’s parent, controls the operation of the mines. Indeed, Erickson’s affidavit relates primarily to whether ZMI is located, or doing business, in Lewis and Clark County. Based on this record, the District Court did not err in focusing on the allegations in the complaint to make its determination regarding venue based on the county in which Pegasus does business.

ZMI makes additional arguments relating to whether Pegasus is a proper party defendant in this action. ZMI cites to the Fletcher affidavit and contends that, if the District Court had properly considered that affidavit, it would not have felt “constrained” to keep Pegasus as a party to the action. ZMI’s argument clearly relates to the District Court’s denial of Pegasus’ motion to dismiss, rather than to the denial of its motion for change of venue.

In its order, the District Court explicitly stated that it would address ZMI’s motion for a change of venue prior to deciding other pending motions. This was the proper approach, given the court’s obligation to determine venue by the status of the parties and pleadings at the time of the complaint. See Emery, 863 P.2d at 429. After making its venue determination, the court went on to separately address Pegasus’ motion to dismiss.

Rule 4(c), M.R.App.R, specifically requires that “[t]he notice of appeal... shall designate the judgment, order or part thereof appealed from.” ZMI’s notice of appeal establishes that the appeal before us is “from the order denying its motion to change venue ....’’No appeal of the court’s denial of Pegasus’ motion to dismiss is before us; indeed, ZMI could not appeal from the denial of another party’s motion and, in any event, the denial of a motion to dismiss is not appealable under Rule 1, M.R.App.P. Therefore, our discussion is limited to the venue issue which is properly presented for review and we decline to address ZMI’s additional arguments. See Carter, 879 P.2d at 730; Petersen, 742 P.2d at 484.

As stated above, the District Court properly relied on Pegasus’ status as a named defendant and Pegasus’ activities within Lewis and Clark County in making a determination regarding venue. We hold that the District Court did not err in concluding, based on its application of the statutory venue rule to the pleaded facts, that venue is proper in Lewis and Clark County.

ZMI makes a separate argument that venue in Lewis and Clark County is not proper for ZMI under § 75-5-614(1), MCA, because it is not located in Lewis and Clark County and does not do business there. Section 25-2-117, MCA, provides that “[i]f there are two or more defendants in an action, a county that is a proper place of trial for any defendant is proper for all defendants. ...” Based on our holding that Lewis and Clark County is a proper venue for defendant Pegasus, we need not further address this argument.

2. Did the District Court err in not considering ZMI’s argument regarding promoting the ends of justice and convenience of witnesses?

ZMI’s final argument is that the District Court erred in not granting, or even alluding to, its § 25-2-201(3), MCA, motion for a change in venue to promote the ends of justice and for the convenience of witnesses. It asserts that requiring ZMI to submit to a court located hundreds of miles away and unfamiliar with the mining operation would be unjust. ZMI further asserts that requiring mine personnel to travel such distances and spend time away from work to provide testimony would cause a significant impact on ZMI’s operation.

Rule 1(b)(2), M.R.App.R, provides for an interlocutory appeal from an order changing or refusing to change the place of trial “when the county designated in the complaint is not the proper county ....” The quoted language of this Rule mirrors that contained in § 25-2-201(1), MCA. Thus, by its plain terms, Rule 1(b)(2), M.R.App.R, permits interlocutory appeals regarding venue only from orders denying or granting a motion to change venue which were made pursuant to § 25-2-201(1), MCA. ZMI’s motion to change venue on “justice” and “convenience” grounds was filed pursuant to § 25-2-201(3), MCA, and, therefore, is not appealable under Rule 1(b)(2), M.R.App.P. As a result, we do not address the merits of this argument.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, NELSON and WEBER concur.


source: Caselaw Access Project

license: Public Domain

text:
    IN THE MATTER OF THE MENTAL HEALTH OF R.M., Respondent.
    No. 94-331.
    Submitted on Briefs December 22, 1994.
    Decided February 15, 1995.
    52 St.Rep. 68.
    270 Mont. 40.
    889 P.2d 1201.

      For Appellant: Lonnie J. Olson and Allen Smith, Jr., Mental Disabilities Board of Visitors, Warm Springs.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Kathy Seeley, Ass’t Attorney General, Helena; Mike McGrath, Lewis & Clark County Attorney, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

R.M. appeals from the findings of fact, conclusions of law and order of the First Judicial District Court, Lewis and Clark County, committing him to the custody of the Montana Department of Corrections and Human Services (Department) for placement at the Montana State Hospital. We reverse, concluding that the District Court failed to follow the procedures set forth in §§ 53-21-122 and 53-21-123, MCA.

The facts are undisputed. R.M. is a forty-four year old male who was diagnosed with schizophrenia in 1978. Prior to April 1994, he had been residing at a boarding house in California and taking medication for his illness. On April 4, 1994, R.M. boarded a bus for Helena, Montana, for a two-week visit with his sister. He arrived in Helena April 17, 1994, with most of his supply of medication still on his person. No one is certain of R.M.’s whereabouts between the time he left California and the time he arrived in Helena. Shortly after his arrival, R.M. began acting confused, delusional and threatening. At one point, he believed his sister was his mother.

Concerned for his well-being, R.M.’s sister admitted him to St. Peter’s Hospital. While there, R.M. had trouble sleeping, threatened the hospital staff and stated openly that he wanted to “hang” his family. He also destroyed hospital property and inflicted minor physical harm on himself.

On April 27,1994, Lewis and Clark County (County) petitioned the First Judicial District Court for R.M.’s commitment, alleging that he was seriously mentally ill. Attached to the petition was a “Present Mental Status” report prepared by Carol Frazer (Frazer), the hospital employee who had requested that the County file the petition.

At 2:30 p.m. on April 27, 1994, R.M. was brought before the court and advised of his rights. The District Court immediately conducted a hearing on the County’s commitment petition. Frazer testified, relating the information provided in her mental status report and opining that R.M. was seriously mentally ill. No other witnesses were called. Following the hearing, the District Court filed its findings of fact, conclusions of law and order committing R.M. to the custody of the Department for placement at the Montana State Hospital at Warm Springs. The commitment was not to exceed 90 days.

Following the filing of the commitment order, the court filed another order directing that the commitment hearing would occur at 2:40 p.m. that day and that the Frazer report was “sufficient to meet the requirements of Section 53-21-123, MCA, and no further examination for the purpose of determining whether the hearing shall be held as scheduled is required.”

R.M. subsequently was committed to the Montana State Hospital and released 90 days later. He appeals from the order of commitment. We note at the outset that there is no dispute regarding the appealability of the order, despite the fact that R.M. already has been released. See Matter of E.P. (1990), 241 Mont. 316, 320, 787 P.2d 322, 325; § 53-21-131, MCA.

The dispositive issue in this case is whether the District Court complied with the requirements of §§ 53-21-122 and 53-21-123, MCA. This issue involves the application of statutes to undisputed facts, which is a question of law; we are not bound by the trial court’s interpretations of law. Lundberg v. Liberty Northwest Ins. Co. (1994), [268 Mont. 499], 887 P.2d 156, 158 (citations omitted).

Civil commitments in Montana are governed by Title 53, Chapter 21, MCA. Section 53-21-121, MCA, allows a county attorney to file a petition seeking the commitment of a person alleged to be seriously mentally ill upon the written request of a person having direct knowledge of the facts. When presented with such a petition, the district court must first consider whether probable cause exists to support the petition. Section 53-21-122(2)(a), MCA. If probable cause exists, the court must immediately appoint counsel for the respondent and hold an initial hearing at which the respondent must be advised of his or her constitutional rights and the substantive effect of the petition. Section 53-21-122(2)(b)(i), MCA. The court also must appoint a professional person to examine the respondent, appoint a friend for the respondent, and set a date and time for a hearing on the petition. Section 53-21-122(2)(b)(ii), MCA. A “professional person” is either a medical doctor or an individual who has been certified by the Department in accord with recognized national standards in the field of mental health. Sections 53-21-102 and 53-21-106, MCA.

Following the initial hearing, and without unreasonable delay, the appointed professional must examine the respondent and report to the county attorney and the court. Section 53-21-123(1), MCA. If the professional person recommends dismissal of the petition, the court ordinarily must dismiss the petition. Section 53-21-123(2)(a), MCA. On the other hand, if the professional person so recommends, the commitment proceedings continue and the court-ordered hearing on the petition is held as scheduled. Section 53-21-123(2)(b), MCA.

We consistently have held that “Montana’s civil commitment laws are to be strictly followed.” Matter of S.J. (1988), 231 Mont. 353, 355, 753 P.2d 319, 320 (citations omitted). The procedural safeguards contained in those laws are of critical importance because of the “calamitous effect of a commitment[,]” including loss of liberty and damage to a person’s reputation. Matter of Shennum (1984), 210 Mont. 442, 450-451, 684 P.2d 1073, 1078.

Here, the District Court complied with portions of § 53-21-122, MCA. After impliedly concluding that probable cause existed to believe that R.M. may be seriously mentally ill, the court appointed counsel for R.M. and advised him of his rights and the substantive effect of the petition. The court also appointed a friend for R.M. and set a time for a hearing on the petition. Each of these steps conformed to the initial hearing requirements set forth in § 53-21-122, MCA.

The court did not, however, appoint a professional person for R.M., as required by § 53-21-122(2)(b)(ii)(A), MCA. As a result, the court failed to have R.M. examined by the appointed professional person and to consider the results of that examination before proceeding further. The statutory requirements for a civil commitment clearly were not strictly followed.

The District Court’s conclusion that the Frazer report was sufficient to meet the statutory requirements regarding examination by a professional person apparently was based on the fact that Frazer is a certified professional person under § 53-21-106, MCA. Under such a circumstance, the court apparently determined that the statutory requirements of §§ 53-21-122 and 53-21-123, MCA, had been met, as a practical matter, in that Frazer had examined R.M. and concluded that he was seriously mentally ill. The statutes do not contemplate such shortcuts, however practical.

Section 53-21-122(2)(b)(ii)(A), MCA, mandates the appointment of a professional person after the court has made a probable cause determination, appointed counsel, and brought the respondent before the court for an initial hearing. Here, no appointment was ever made by the court. Instead, the court relied on an examination of R.M. performed before the commitment proceeding was initiated, and by the very person who requested that the commitment petition be filed.

The court’s failure to comply with the requirements of § 53-21-123, MCA, flowed inexorably from its failure to appoint a professional person pursuant to § 53-21-122, MCA; as a result, little additional discussion is required. Suffice it to say that § 53-21-123, MCA, was violated as follows: no examination of R.M. occurred “[flollowing the initial hearing,” no report of that examination was provided to the court, and no decisions by the court regarding further proceedings were based on such an examination.

The State argues that R.M.’s failure to object to the procedures utilized by the District Court precludes him from raising the issue here. We disagree.

We previously have addressed the combined issues of the mootness of an appeal once a person has been released from an involuntary commitment and the failure to raise an issue at the district court. In an appeal following an involuntary civil commitment, we rejected the State’s reliance on the general rule that issues cannot be raised for the first time on appeal. Matter of N.B. (1980), 190 Mont. 319, 323, 620 P.2d 1228, 1231. We concluded that an exception existed where, as in the case of a civil commitment, the substantial rights of an individual were involved. Matter of N.B., 620 P.2d at 1231.

The State attempts to distinguish Matter of N.B. by characterizing the statutory requirements regarding the appointment of, and examination by, a professional person as not relating to the “heart” of the commitment proceeding. We reject such a distinction based on our long-standing requirement that the statutory procedures for the commitment of an allegedly mentally ill individual must be strictly followed. The “heart” of a civil commitment proceeding is as much the individual steps which lead a court to the careful conclusion that a person is seriously mentally ill, as is the conclusion itself. The purpose of these statutory requirements is to insure that the government does not invade an individual’s freedom or liberty without due notice, cause and process. See Matter of Shennum, 684 P.2d at 1076.

We hold that the District Court erred in failing to comply with the requirements of §§ 53-21-122 and 53-21-123, MCA.

Reversed.

JUSTICES HUNT, TRIEWEILER, NELSON and WEBER concur.


author: CHIEF JUSTICE TURNAGE

text:
    VELMA MORAN n/k/a VELMA FUGATE, Petitioner, Respondent and Cross-Appellant, v. SHOTGUN WILLIES, INC., Respondent, Appellant and Cross-Respondent.
    No. 94-361.
    Submitted on Briefs January 12, 1995.
    Rehearing Denied March 16, 1995.
    Decided February 15, 1995.
    52 St.Rep. 71.
    270 Mont. 47.
    889 P.2d 1185.

      For Appellant: Phillip R. Oliver and Patrick E. Kenney, Oliver, Graves, Toennis & Gustafson, P.C., Billings.
    For Respondent: Jeffrey T. Renz & Associates Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Shotgun Willies, Inc. (Shotgun Willies), appeals a judgment of the District Court for the Thirteenth Judicial District, Yellowstone County. That court ordered the Montana Human Rights Commission to adopt the findings and conclusions of its hearing examiner, which the Commission had previously rejected. The court’s ruling reinstated a decision in favor of Velma Moran, n/k/a Velma Fugate (Fugate), on her complaint of employment discrimination by Shotgun Willies. We affirm.

The issues are:

1. Did the District Court apply the proper standard of review of an administrative agency order?

2. Must the decision of the Montana Human Rights Commission be upheld because the Commission properly followed statutory procedure?

On cross-appeal, Fugate argues that the Commission incorrectly denied punitive damages.

From May 1988 to February 1989, Fugate worked as a bartender and cocktail waitress at Shotgun Willies, a bar in Yellowstone County, Montana, featuring nude female dancers. On February 14,1989, the owner of Shotgun Willies informed Fugate and another female bartender that they were laid off. He told the two women that a third bartender, a male, had resigned and been rehired.

Fugate filed a complaint with the Montana Human Rights Commission. At the hearing on her complaint, she testified that when the owner of Shotgun Willies laid her off, he told her he planned to hire only male bartenders from then on. She also presented evidence that the only females hired as bartenders between the date of her discharge and the date she filed her complaint with the Commission also worked as nude dancers at Shotgun Willies.

It was Shotgun Willies’ position that Fugate was laid off in the course of management reorganization and as a result of poor job performance. Additionally, the owner of Shotgun Willies testified that Fugate and the other female bartender, like the male bartender, were given the option of reapplying for their jobs, but that they did not take advantage of that option.

After hearing the evidence presented by both parties, the hearing examiner for the Montana Human Rights Commission found that “[b]etween February 1989 and May 1989, nude dancing was a condition of hire for women who would tend bar” at Shotgun Willies. This constituted unlawful discrimination on the basis of sex, concluded the hearing examiner. She entered extensive findings and conclusions in which she found in favor of Fugate and proposed that Fugate be awarded back pay, front pay for six months from the date of the hearing, and $5,000 in damages for emotional distress.

The Human Rights Commission reviewed each finding of fact and conclusion of law of the hearing examiner. The Commission comprehensively modified the findings and conclusions of the hearing examiner and reversed the decision, dismissing the case. Fugate appealed to District Court.

The District Court engaged in an extensive written review of the findings and conclusions of both the hearing examiner and the Commission. It determined that the Human Rights Commission had exceeded its authority in reversing the findings and conclusions of its hearing examiner. The court ordered that the findings and conclusions of the hearing examiner be adopted by the Commission. Shotgun Willies appeals.

Issue 1

Did the District Court apply the proper standard of review of an administrative agency order?

Actions brought before the Montana Human Rights Commission are subject to the requirements of the Montana Administrative Procedure Act (MAPA). The standard of review of an agency decision under MAPA is set forth at § 2-4-704(2), MCA. That statute provides, in relevant part:

The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because: (a) the administrative findings, inferences, conclusions, or decisions are:
(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion [.]

Section 2-4-704(2)(a)(vi), MCA.

This Court has held that it is an abuse of discretion pursuant to the above subsection for an agency to modify the findings of a hearing examiner in violation of § 2-4-621(3), MCA. Brander v. Director, Dept. of Inst. (1991), 247 Mont. 302, 307-08, 806 P.2d 530, 533. That statute provides, in relevant part:

The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the [hearing examiner’s] proposal for decision but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record and states with particularity in the order that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

Section 2-4-621(3), MCA.

Shotgun Willies points out that there is no provision in § 2-4-621(3), MCA, prohibiting an agency from substituting its judgment for that of the hearing examiner as to the weight of the evidence on questions of fact. It argues that it is within an agency’s discretion to reject its hearing examiner’s findings.

Section 2-4-621(3), MCA, allows an agency to reject findings of a hearing examiner if the agency first determines that the findings “were not based upon competent substantial evidence.” Whether findings are supported by substantial evidence is an issue of law. Carman v. Montana Cent. Ry. Co. (1905), 32 Mont. 137, 139, 79 P. 690, 691; see Brander, 806 P.2d at 533-34. As to issues of law, the standard of review is whether the agency’s determination was correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601. An agency’s reversal of the findings of fact of its hearing examiner will not pass muster on judicial review unless the court determines as a matter of law that the hearing examiner’s findings are not supported by substantial evidence.

Shotgun Willies argues that if the District Court’s standard of review is to look at the findings of the hearing examiner de novo, then the presumption accorded to an agency decision under § 2-4-704(2), MCA, is lost. However, the presumption in favor of an agency on matters within its expertise normally includes a presumption in favor of the hearing examiner. The presumption is “lost” to the agency only when the agency disagrees with its own hearing examiner. This is consistent with the deference properly given to the original finder of fact — in this case, the hearing examiner.

A hearing examiner, when one is used, is in the unique position of hearing and observing all testimony entered in the case. In the present case, none of the Board members heard the evidence “live;” they were limited to reviewing a cold record. The findings of the hearing examiner, especially as to witness credibility, are therefore entitled to great deference.

Brackman v. Board of Nursing (1993), 258 Mont. 200, 205-06, 851 P.2d 1055, 1058.

In this case, the District Court described its standard of review under §§ 2-4-621(3) and 2-4-704(2), MCA, as follows:

As to any finding of fact made by the hearing examiner which is rejected or modified by [the Commission] the Court should itself review such finding of the hearing examiner to determine whether it was “based upon competent substantial evidence” under § 2-4-621(3), MCA. If the Court makes a determination that such finding was so supported it should then determine that the rejection or modification by [the Commission] of such finding was “characterized by abuse of discretion or clearly unwarranted exercise of discretion” under § 2-4-704(2)(a)(vi), MCA.

We agree with the District Court’s description of its standard of review. We conclude that the District Court applied the proper standard of review of an agency decision.

Issue 2

Must the decision of the Montana Human Rights Commission be upheld because the Commission properly followed statutory procedure?

Shotgun Willies argues that an agency may overturn findings of fact if it follows proper procedure “and states with particularity in the order that the findings of fact were not based upon competent substantial evidence,” pursuant to § 2-4-621(3), MCA. It points out that the Commission diligently reviewed each finding of fact and conclusion of law of the hearing examiner and gave specific reasons for each of its modifications and rejections of her findings. Shotgun Willies argues that once the agency has complied with the procedural requirements, there no longer can be an abuse of discretion. It points out that here, unlike in Brackman or Brander, no substantial procedural errors are present.

As noted above under Issue 1, a determination of whether findings of fact are supported by substantial evidence is an issue of law. Not only must the agency state that the findings were not based upon substantial evidence, but that statement must be true, as a matter of law.

The District Court determined that the Human Rights Commission improperly weighed inconsistent testimony to determine what inference was to be drawn from such testimony. The court agreed with Fugate that this case turned on the conflicting testimony of four witnesses — Fugate and the other female bartender who was laid off, the owner of Shotgun Willies, and the male bartender who resigned and was rehired. The hearing examiner found the testimony of the owner and the male bartender not credible.

We have reviewed the record and the hearing examiner’s findings of fact, including the examples raised by Shotgun Willies. We agree with the District Court that:

In totality the findings of fact of the hearing examiner were supported by competent substantial evidence in the record or reasonable inferences to be drawn from such evidence.

Therefore, we conclude that while the procedure followed by the Montana Human Rights Commission was correct, its legal conclusions concerning the sufficiency of the evidence to support the hearing examiner’s findings were incorrect. The District Court did not err in reversing the Commission.

Cross-appeal

Did the Commission incorrectly deny punitive damages?

Fugate argues as follows: In prohibiting discrimination, Article II, Section 4 of the Montana Constitution creates a legal and enforceable right. The remedies for violation of that right may not be changed, abridged, or eliminated by the legislature. At the time the Montana Constitution was adopted, a victim of an intentional act could recover exemplary damages. Therefore, interpreting § 49-2-509(7), MCA, to prohibit punitive damages based on her constitutional claim renders that statute unconstitutional.

The flaw in Fugate’s reasoning lies in inferring that her constitutional right to nondiscrimination results in a right to the remedy of punitive damages. There is no constitutional right to an award of punitive damages. Romero v. J. & J. Tire (1989), 238 Mont. 146, 150, 777 P.2d 292, 295, citing White v. State (1983), 203 Mont. 363, 370, 661 P.2d 1272, 1275, overruled on other grounds, Meech v. Hillhaven West, Inc. (1989), 238 Mont. 21, 776 P.2d 488.

We affirm the decision of the District Court.

JUSTICES GRAY, TRIEWEILER, NELSON and WEBER concur.


text:
    IN RE THE MARRIAGE OF TAMARA KAY NJOS, formerly known as Tamara Kay Allard, Plaintiff and Respondent, and ROBERT DALE ALLARD Respondent and Appellant.
    No. 94-329.
    Submitted on Briefs December 8, 1994.
    Decided February 15, 1995.
    52 St.Rep. 74.
    270 Mont. 54.
    889 P.2d 1192.

      For Appellant: Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena.
    For Respondent: John L. Hollow, Attorney at Law, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Robert Dale Allard (Robert) appeals from orders of the First Judicial District Court, Lewis and Clark County, temporarily modifying his visitation rights with his daughter and requiring him to undergo a sex offender evaluation. We affirm.

Robert married Tamara Njos (Tamara) in 1982. Their marriage was dissolved by a North Dakota court in 1987 and Tamara was awarded sole custody of the couple’s two minor children: a son, Dustin Allard, born February 4, 1983, and a daughter, Bobbi Allard, born September 30, 1986. Robert was granted weekly and alternating holiday visitation.

The decree was modified in 1988 to provide for visitation by Robert every other weekend, one full month in the summer, and scheduled holidays determined by court order. The North Dakota court allowed Tamara to move to Montana with the children in 1989, and again modified Robert’s visitation to provide for two months of summer visitation and alternating Christmas and spring vacations.

On March 16, 1994, Tamara filed a petition in the First Judicial District Court seeking recognition of the North Dakota dissolution decree. Seven days later, she moved to modify visitation, to object to visitation pursuant to § 40-4-217(6), MCA, and for an ex parte order, under § 40-4-220(2)(a)(ii), MCA, requiring that Robert’s visitation with his daughter Bobbi be supervised. Tamara supported the motion with her own affidavit; counseling notes pertaining to alleged sexual assaults by Robert against Tamara’s sister, Tracy; transcripts of sworn testimony from two women who allegedly had been sexually assaulted by Robert while he was a junior high school teacher in the 1980s; and a copy of the criminal complaint arising out of the incidents with Robert’s students. The District Court issued an ex parte order temporarily modifying Robert’s visitation rights by requiring supervised visitation with Bobbi.

The parties subsequently appeared before the District Court for a show cause hearing. Tracy Njos testified that, unbeknownst to her sister Tamara, Robert had sexually assaulted her on various occasions between 1984 and 1985, when she 14 to 15 years old. When the hearing continued several weeks later, Tamara’s other sister, Cindy Hayden, testified that Robert had sexually assaulted her in 1985, when she was 12 years old. Tamara, Robert, and Robert’s mother, Linda Allard, also testified, as did Ron Silvers (Silvers), a licensed therapist specializing in the psychological treatment of sexual assault offenders and victims. Following the hearing, the District Court ordered that the temporary modification of Robert’s visitation rights continue and that he undergo a sex offender evaluation. Robert appeals from the District Court’s ex parte and post-hearing orders.

1. Did the District Court err by proceeding under 40-4-220, MCA, rather than § 40-4-217(3), MCA, in ruling on the motion for temporary supervised visitation?

The District Court predicated its ex parte order modifying Robert’s visitation on § 40-4-220(2)(a), MCA, which provides for temporary modification of custody ex parte when the moving party shows by affidavit that the child’s physical or emotional health is endangered and an immediate change would protect the child’s physical or emotional health. Robert asserts that § 40-4-217, MCA, applies and that the court was not authorized to proceed pursuant to § 40-4-220, MCA. We review a district court’s legal determinations to ascertain whether they are correct. In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93.

We address first the underlying question of whether § 40-4-220(2), MCA, which refers by its plain language to an ex parte request for temporary “custody” or modification thereof, is applicable to Tamara’s ex parte request for temporary modification of “visitation.” We previously have determined that visitation is an inherent part of child custody and that the district courts have broad powers to determine all problems concerning custody and visitation. In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723 (citation omitted). Under that rationale, and given our primary responsibility of focusing on the well-being of the children (see In re Marriage of Hickey (1984), 213 Mont. 38, 44, 689 P.2d 1222, 1225), it is clear that the statutorily-authorized ex parte practice regarding a temporary custody request must necessarily extend to ex parte practice regarding temporary visitation issues. A contrary determination would prevent a district court from acting expeditiously and on a temporary basis, in appropriate cases, to protect the interests of minor children whose physical or emotional health may be at risk.

In this case, Tamara’s ex parte request for temporary modification of Robert’s visitation was supported by materials sufficient to raise the issue of whether Bobbi’s visitation environment with Robert might endanger her physical or emotional health. We conclude that § 40-4-220(2), MCA, authorizes a district court to address ex parte requests for temporary modifications of visitation arrangements, as well as requests for temporary custody or modification thereof.

Robert argues that the court’s temporary order for supervised visitation in this case constitutes a “restriction” on his visitation rights pursuant to § 40-4-217(3), MCA. On that basis, he asserts that compliance with the procedural requisites of § 40-4-217, MCA, was necessary before the District Court could order supervised visitation with Bobbi.

Section 40-4-217(1), MCA, provides that a noncustodial parent is entitled to reasonable visitation rights unless, after a hearing, the court finds that visitation would seriously endanger the child’s physical, mental, moral or emotional health. Section 40-4-217(3), MCA, specifically provides that visitation cannot be restricted absent such a serious endangerment finding by the court.

Robert relies on a Commissioners’ Note to § 40-4-217, MCA, in asserting that he is entitled to a hearing and a serious endangerment finding prior to entry of an order “restricting” his visitation to supervised visitation. The Note states that a court cannot deprive the noncustodial parent of all visitation rights without meeting the hearing and serious endangerment standards of the statute. Neither the language of the Note nor our case law interpreting § 40-4-217, MCA, support Robert’s position.

The Note clearly states that the hearing and serious endangerment requirements of § 40-4-217, MCA, apply where a court “deprive [s] the noncustodial parent of all visitation rights.” Here, the court did not totally deprive Robert of his visitation rights. Indeed, it did not reduce Robert’s visitation time in any way. The court simply, and temporarily, required that Robert’s visitation with Bobbi be supervised.

Moreover, we previously have rejected a similar argument attempting to impose the requirements of § 40-4-217, MCA, on an order for supervised visitation. In Marriage of Hickey, 689 P.2d 1222, the father appealed from an order granting custody of the children to the mother and providing him with reasonable and supervised visitation. Relying on Firman v. Firman (1980), 187 Mont. 465, 610 P.2d 178, Hickey argued that the limitation of his visitation rights was erroneous absent a finding that unrestricted visitation would seriously endanger the physical or emotional health of the child as set forth in § 40-4-217, MCA. We concluded that Firman was distinguishable in that both the statute and that case referred to a reduction in the amount of visitation time granted, whereas Hickey’s visitation time was merely to be supervised. Marriage of Hickey, 689 P.2d at 1225.

We reach the same conclusion here. Section 40-4-217, MCA, applies when visitation time is reduced or, as indicated in the Commissioners’ Note, totally eliminated. A requirement that visitation be supervised is not a restriction of visitation rights under § 40-4-217(3), MCA.

Robert argues in this regard that our recent decisions in Romo v. Hickok (1994), 264 Mont. 341, 871 P.2d 894, and In re Marriage of Reininghaus (1991), 250 Mont. 86, 817 P.2d 1159, support the opposite conclusion; namely, that supervised visitation is a restriction of visitation rights under § 40-4-217, MCA, which requires a serious endangerment finding. While language in those decisions may have inadvertently clouded the question, neither reached a conclusion different from Marriage of Hickey.

As discussed above, we concluded in Marriage of Hickey that either a reduction in the amount of time for visitation or a total elimination of visitation constituted a “restriction” bringing § 40-4-217, MCA, into play. Marriage of Hickey, 689 P.2d at 1225. We did not deviate in any way from that conclusion through 1987, when we reiterated affirmatively in State ex rel. Sorenson v. Roske (1987), 229 Mont. 151, 156-157, 745 P.2d 365, 369, the distinction between reduction in visitation and supervision of visitation vis-a-vis § 40-4-217, MCA. St. ex rel. Sorenson, 745 P.2d at 369; citing Marriage of Hickey, 689 P.2d at 1225 and In re Marriage of Jacobson (1987), 228 Mont. 458, 463, 743 P.2d 1025, 1027.

We decided Marriage of Reininghaus in 1991. There, the mother was granted sole custody of the minor children and the father was awarded reasonable visitation. The father argued on appeal that the district court’s order for supervised visitation was not supported by a serious endangerment finding as required by § 40-4-217, MCA. We noted factually that the district court had not ordered supervised visitation, but had ordered reasonable visitation. We stated — in passing and without explanation — that § 40-4-217(1), MCA, which refers to a noncustodial parent’s right to reasonable visitation, “requires a showing of endangerment.” Marriage of Reininghaus, 817 P.2d at 1161. We did not analyze, interpret or apply the § 40-4-217(3), MCA, “restriction” language argued by Robert here.

In Romo, decided in 1994, the district court ordered supervised visitation upon release from prison of an incarcerated father. The father’s parents argued that his visitation should not be restricted. Citing to the Commissioners’ Note to § 40-4-217, MCA, we stated that “[t]he proper standard to apply where the custodial parent seeks restriction of the noncustodial parent’s visitation is the serious endangerment standard.” Romo, 871 P.2d at 896. We did not define “restriction” as utilized in the statute in any way; as a result, we certainly did not revise the interpretation of “restriction” set forth in Marriage of Hickey and continued thereafter. See Marriage of Hickey, 689 P.2d at 1225; Marriage of Sorenson, 745 P.2d at 369.

We conclude again that a requirement for supervised visitation is not a “restriction” of visitation rights under § 40-4-217(3), MCA, which imposes upon a district court the hearing and serious endangerment requirements of § 40-4-217, MCA. We hold, therefore, that the District Court did not err in proceeding pursuant to § 40-4-220(2), MCA, rather than § 40-4-217(3), MCA, on Tamara’s motion for temporary supervised visitation.

2. Did the District Court abuse its discretion by continuing the order to supervise visitation following the show cause hearing?

Robert next argues that, under the circumstances, the continuing order requiring supervised visitation was an abuse of the District Court’s discretion. This Court’s standard of review for custody and visitation is whether substantial credible evidence supports the District Court’s judgment. Marriage of Hunt, 870 P.2d at 723. We will overturn a court’s custody or visitation decision only when the court’s findings and conclusions clearly demonstrate an abuse of discretion. Marriage of Hunt, 870 P.2d at 723.

During the show cause hearing, Tracy Njos testified that Robert had assaulted and forced her to have intercourse with him when she was 14 years old. Cindy Hayden, another younger sister of Tamara’s, also testified that Robert had sexually assaulted her at age 12.

Based on this and other testimony at the show cause hearing, the District Court determined that a question existed as to whether Robert “poses a risk to the children during their visitation.” It is clear that substantial evidence supports the court’s determination. We hold, therefore, that the District Court did not abuse its discretion in continuing the temporary order requiring supervised visitation followng the show cause hearing.

3. Did the District Court abuse its discretion in requiring Robert to undergo a sex offender evaluation?

Robert’s final contention is that the District Court abused its discretion in ordering him to undergo a sex offender evaluation. We review a district court’s discretionary ruling to determine whether the court abused its discretion. In re Marriage of Bonamarte (1994), 263 Mont. 170, 172, 866 P.2d 1132, 1133 (citation omitted).

Robert does not challenge the court’s authority to order the evaluation under § 40-4-215, MCA. He argues that ordering the evaluation was an abuse of the court’s discretion because the results would not constitute relevant and admissible evidence.

Relevant evidence assists in establishing the existence of any fact which is of consequence to resolution of the action. Rule 401, M.R.Evid. The determination of the admissibility of evidence is within the discretion of the trial court; the court is not guided by fixed rules, but must consider the nature of the evidence and the circumstances of a particular case. In re Marriage of Starks (1993), 259 Mont. 138, 145, 855 P.2d 527, 531-532.

In essence, Robert’s argument requests evidentiary rulings regarding sex offender evaluation results which do not yet exist. For the most part, the relevance and admissibility of this evidence cannot be determined by any court until the evaluation is performed.

Robert is correct, however, with regard to the admissibility of one aspect of the as-yet-unperformed sex offender evaluation. Relying on State v. Staat (1991), 248 Mont. 291, 811 P.2d 1261, he argues that the results of any polygraph examination performed as part of the sex offender evaluation are inadmissible. In Staat, which involved use of the results of a court-ordered polygraph examination in revoking an appeal bond, we quoted § 37-62-302, MCA, which prohibits the introduction or admission of polygraph results as evidence in a court of law. Staat, 811 P.2d at 1261. We went on to state as a rule of law that “[pjolygraph-evidence shall not be allowed in any proceeding in a court of law in Montana.” Staat, 811 P.2d at 1262. We quoted and applied that rule of law in State v. Hensley (1991), 250 Mont. 478, 483, 821 P.2d 1029, 1032, in reversing a district court’s consideration of polygraph results in sentencing a criminal defendant.

Here, we apply the Staat rule in a proceeding involving custody and visitation of children. We conclude that the results of any polygraph examination performed during the court-ordered sex offender evaluation are not, and will not be, admissible evidence in subsequent proceedings in this action.

Robert also argues that the District Court, having refused to consider Silvers’ testimony recommending the sex offender evaluation because Silvers was not properly qualified as an expert, abused its discretion by ordering the evaluation. He cites no authority requiring expert testimony before a court can order a sex offender evaluation or any other investigation or report authorized by § 40-4-215, MCA. Moreover, the testimony presented at the hearing from persons other than Silvers clearly alerted the court to the potential risk Robert posed to his minor daughter. We conclude, therefore, that the District Court did not abuse its discretion in ordering Robert to undergo a sex offender evaluation.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON, and TRIEWEILER concur.