author: JUSTICE ERDMANN JUSTICE NELSON

text:
    IN RE A.R.A., a minor child. PATRICK ERGER, Petitioner and Respondent, v. WILLIAM D. ASKREN, JR., Respondent and Appellant.
    No. 95-243.
    Submitted April 30, 1996.
    Decided June 20, 1996.
    53 St.Rep. 543.
    277 Mont. 66.
    919 P.2d 388.

      For Appellant: Rodd A. Hamman (argued) and Robin A. Wolff, Calton Hamman & Wolff, Billings.
    For Respondent: Damon L. Gannett (argued), Gannett, Anderson & Liechty, Billings.
    For Amicus Curiae: Hon. Joseph P. Mazurek, Attorney General, Patricia A. Jordan, Assistant Attorney General (argued), Helena.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

This is an appeal from a decision of the Thirteenth Judicial District Court, Yellowstone County, awarding custody of A.R.A. to Patrick J. Erger. We reverse and remand to the District Court for proceedings consistent with this opinion.

We restate the issues as follows:

1. Did the District Court err in awarding custody of the child to a stepparent over a natural parent based on the best interest of the child test?

2. Did the District Court err in failing to set forth reasons for denial of attorney fees?

FACTS

Tracy Erger and William (Bill) Askren were married in 1983. A.R.A. was bom to them in 1987. Tracy and Bill divorced in 1989 when A.R.A. was nineteen months old. In the divorce decree, Tracy was awarded custody of A.R.A. and Bill was given reasonable rights of visitation. Bill was ordered to pay child support in the amount of $200 per month but became delinquent on those payments. Bill moved out of state and was not able to exercise his visitation rights to their full extent. He did, however, keep in touch by telephone and saw A.R.A. approximately once a year for extended periods.

Bill remarried in 1989 to Colleen. They had a daughter in 1990 and were expecting another child at the time of trial. Colleen’s daughter from a previous marriage also lives with them. Colleen works as a secretary for the Salt Lake County Sheriff’s Department and Bill, while not employed, attends a junior college and is studying to become a paralegal.

Tracy married Patrick in 1990 and they had a son, Joshua, in February 1992. In September 1992, Patrick was transferred to Billings and Tracy, A.R.A., and Joshua moved shortly thereafter. Tracy was killed in an airplane crash on December 18, 1992. In her will, Tracy had named Patrick as A.R.A.’s guardian.

Bill, as the surviving natural parent, came to Billings to pick up A.R.A. Patrick refused to relinquish physical custody of A.R.A. to Bill and petitioned the court for custody pursuant to § 40-4-221, MCA. The District Corut held a hearing on the matter and ordered that Patrick was the appropriate individual to have custody under the best interest of the child test even though he was not the natural father. From that order, Bill appeals.

ISSUE 1

Did the District Court err in awarding custody of the child to a stepparent over a natural parent based on the best interest of the child test?

Patrick requested a custody hearing pursuant to § 40-4-221, MCA. That section provides:

(1) Upon the death of a parent granted custody of a child, custody shall pass to the noncustodial parent unless one or more parties named in subsection (2) request a custody hearing. The noncustodial parent shall be a party in any proceeding brought under this section.
(2) Upon the death of a parent granted custody of a child, any of the following parties may request a custody hearing and seek custody of the child:
(b) the surviving spouse of the deceased custodial parent;
(c) a person nominated by the will of the deceased custodial parent;
(3) The hearing and determination of custody shall be governed by this part.

According to part 2 of Title 40, Chapter 4, Montana Code Annotated, a court shall determine custody pursuant to the best interest of the child. Section 40-4-212, MCA. The factors relevant to the child’s best interest include the following:

(a) the wishes of the child’s parent or parents as to custody;
(b) the wishes of the child as to a custodian;
(c) the interaction and interrelationship of the child with the child’s parent or parents and siblings and with any other person who may significantly affect the child’s best interest;
(d) the child’s adjustment to home, school, and community;
(e) the mental and physical health of all individuals involved;
(f) physical abuse or threat of physical abuse by one parent against the other parent or the child; and
(g) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent.
(4) The following are rebuttable presumptions:
(a) A knowing failure to pay birth-related costs that the person is able to pay is not in the best interest of the child.
(b) Failure to pay child support that the person is able to pay is not in the best interest of a child in need of the child support.

The District Court found that there was a close relationship between Patrick and A.R.A.; that A.R.A. was attached to her brother Joshua; that Patrick’s parenting skills are superior to those possessed by Bill; that A.R.A. would be adversely affected by changing schools, therapists, and her primary residence; and that it was in her best interest that she remain in Billings in the family unit to which she had grown accustomed. Based on these findings, the court determined that A.R.A.’s best interest warranted the award of her custody to Patrick.

Bill contends that the court’s use of the best interest of the child test in awarding custody to a stepparent abrogates his constitutional right to parent his child. Patrick concedes that Bill has a constitutional right to parent his child but argues that A.R.A.’s fundamental liberty interest and right to privacy in the association with her family is also constitutionally protected. Patrick maintains that the District Court properly balanced the rights of both Bill and A.R.A. in using the best interest of the child test as directed by § 40-4-221, MCA.

The interpretation and application of a statute to a particular set of circumstances are matters of law. Denial of App. for Iss. of Beer/Wine Lic. (1994), 267 Mont. 298, 301, 883 P.2d 833, 835. We will therefore review the District Court’s interpretation of § 40-4-221, MCA, for its correctness. See Babcock v. Wonnacott (1994), 268 Mont. 149, 151, 885 P.2d 522, 524.

The District Court interpreted § 40-4-221, MCA, as giving the court the authority to award custody to a stepparent rather than a surviving natural parent using the best interest of the child test. A statute is to be construed according to the plain meaning of its language. Norfolk Holdings, Inc. v. Dept. of Revenue (1991), 249 Mont. 40, 43, 813 P.2d 460, 461. However, it is paramount that we give such construction to the statute as will preserve the constitutional rights of the parties. LaFountaine v. State Farm Mut. Auto. Ins. (1985), 215 Mont. 402, 406-07, 698 P.2d 410, 413.

We recognized the constitutional rights of a natural parent to parent his or her child in In re Doney (1977), 174 Mont. 282, 570 P.2d 575. Doney, 570 P.2d at 577. In a line of cases following Doney, we again stressed the constitutional protection of a natural parent’s right to the custody of his or her child. Babcock, 885 P.2d at 524; In re M.G.M. (1982), 201 Mont. 400, 406, 654 P.2d 994, 998; Pierce v. Pierce (1982), 198 Mont. 255, 260, 645 P.2d 1353, 1356; In re Aschenbrenner (1979), 182 Mont. 540, 544, 597 P.2d 1156, 1160. This constitutional protection is based upon the integrity of the family unit which necessarily includes the child’s right to be with his or her natural parent. Stanley v. Illinois (1972), 405 U.S. 645, 652, 92 S. Ct. 1208, 1213, 31 L. Ed. 2d 551, 559.

This careful protection of parental rights is not merely a matter of legislative grace, but is constitutionally required. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). “* * * The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra [262 U.S. 390], at 399, [43 S.Ct. 625], 67 L.Ed. [1042], at 1045, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra [316 U.S. 535], at 541 [62 S.Ct. 1110], 86 L.Ed. [1655], at 1660, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 14 L.Ed.2d 510, 522 (1965) (Goldberg, J., concurring).” Stanley, 405 U.S. at 651, 92 S.Ct. at 1213, 31 L.Ed.2d at 559.

Consequently, the state’s ability to intrude upon the parent/child relationship must be guarded. Schultz v. Schultz (1979), 184 Mont. 245, 247, 602 P.2d 595, 596; Doney, 570 P.2d at 577. For that reason, “[a] finding of abuse, neglect, or dependency is the jurisdictional prerequisite for any court-ordered transfer of custody from a natural parent to a third party.” Babcock, 885 P.2d at 524. Therefore, where a surviving parent does not voluntarily relinquish custody, the best interest of the child test can be used only after a showing of dependency or abuse and neglect by the natural parent. M.G.M., 654 P.2d at 998; Aschenbrenner, 597 P.2d at 1162.

Contrary to the above analysis, we have held that it was not error for a district court to apply the best interest of the child test rather than the dependency, abuse, and neglect test as set forth in Doney to determine custody between the natural father and the maternal grandmother. Brost v. Glasgow (1982), 200 Mont. 194, 199, 651 P.2d 32, 34. In Brost, we held that the 1979 Legislature, in § 40-4-221, MCA, changed the test to be used in determining custody when a custodial parent dies. Brost, 651 P.2d at 34. We again refused to require the stricter Doney standard in favor of the best interest of the child test in In re C.G. (1987), 228 Mont. 118, 740 P.2d 1139.

However, in Aschenbrenner and Henderson v. Henderson (1977), 174 Mont. 1, 568 P.2d 177, we held that the Uniform Marriage and Divorce Act (Title 40, Chapters 1 and 4) does not diminish the constitutionally protected rights of a natural parent to the custody of his or her child. Aschenbrenner, 597 P.2d at 1163; Henderson, 568 P.2d at 181-82. It follows that an amendment to the Uniform Marriage and Divorce Act, however limited, cannot infringe upon those same rights. Therefore, the use of the best interest of the child test, as referred to in § 40-4-221, MCA, is improper in that any showing that a nonparent may be able to provide a better environment than can a natural parent is irrelevant to the question of custody between the two in view of the constitutional rights of a parent to custody. Babcock, 885 P.2d at 524; Aschenbrenner, 597 P.2d at 1162. Accordingly, § 40-4-221, MCA, is unconstitutional to the extent that it allows the granting of a § -221 petition prior to the termination of the natural parent’s constitutional rights. We therefore overrule Brost and In re C.G. in their use of the best interest of the child test to award custody to a nonparent over a natural parent absent a finding of abuse and neglect or dependency.

While we recognize that § 40-4-221, MCA, gives a nonparent standing to request a custody hearing, that section does not give the district court authority to deprive a natural parent of his or her constitutionally protected rights absent a finding of abuse and neglect or dependency. Accordingly, we hold that the District Court erred in awarding custody of A.R.A. to Patrick based on the best interest of the child test in view of the fact there were no allegations of abuse and neglect or dependency on the part of Bill. We therefore reverse the District Court and award custody of A.R.A. to Bill, the natural father.

ISSUE 2

Did the District Court err in failing to set forth reasons for denial of attorney fees?

The District Court denied attorney fees to Bill but did not set forth reasons for the denial. A district court may award attorney fees pursuant to § 40-4-110, MCA. In the past, we have held that a district court must indicate in the findings of fact, conclusions of law, or order why attorney fees were not awarded. In re Marriage of Gallinger (1986), 221 Mont. 463, 471, 719 P.2d 777, 782 (citing Lewis v. Lewis (1982), 198 Mont. 51, 55, 643 P.2d 604, 606). We said that a court’s failure to set forth specific findings constituted remandable error. Gallinger, 719 P.2d at 782.

However, we later considered that rule much too harsh to be applied on a general basis, and we held that a more appropriate standard of review for a decision not to award attorney fees is abuse of discretion. Gallinger, 719 P.2d at 783. In the present case, the record indicates that the District Court was informed of both parties’ financial resources as required by § 40-4-110, MCA. Based on that information, the District Court determined that the parties would pay their own attorney fees. That information has not changed. Notwithstanding the fact that we are granting custody of A.R.A. to Bill, we determine the District Court did not abuse its discretion in directing the parties to pay their own attorney fees.

Reversed in part and affirmed in part.

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

JUSTICE NELSON

specially concurs.

I concur in our opinion on both issues 1 and 2.1 write separately because I believe that several points not addressed in our opinion deserve mention.

First, it is only fair to point out that both Henderson v. Henderson (1977), 174 Mont. 1, 568 P.2d 177, and Matter of Guardianship of Doney (1977), 174 Mont. 282, 570 P.2d 575, were decided prior to the enactment of § 40-4-221, MCA, in 1979. Accordingly, the constitutional principles enunciated in those cases and relied upon here were neither considered nor addressed in the context of this statute.

Second, Brost v. Glasgow (1982), 200 Mont. 194, 651 P.2d 32, and Matter of Paternity of C.G. (1987), 228 Mont. 118, 740 P.2d 1139, were decided strictly on the basis of § 40-4-221, MCA. While in both cases we mentioned Doney, in neither Brost nor C.G. did we address the constitutionality of the best interest test mandated by this statute in light of our prior adoption of the principles enunciated in Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551. Having now done that, Brost and C.G. are correctly overruled.

Third, notwithstanding that we have overruled Brost and C.G. we have not discussed nor attempted to deal with other cases, which remain good law, wherein we have permitted persons other than biological parents to seek or obtain custody of a child to the exclusion of a natural parent without prior termination of the natural parent’s rights. I make no pretention that this list is all-inclusive, but see, for example: In re Custody of R.R.K. (1993), 260 Mont. 191, 859 P.2d 998 (grandparents entitled to seek custody of child under § 40-4-211, MCA; § 40-4-212 controls); In re Marriage of K.E.V. (1994), 267 Mont. 323, 883 P.2d 1246 (child awarded to non-biological father on the basis of equitable estoppel; neither natural mother’s nor natural father’s rights terminated); and Matter of Paternity of Adam (1995), 273 Mont. 351, 903 P.2d 207 (non-biological father allowed to adopt the child over objection of natural father on basis of presumption of paternity under Montana’s Uniform Parentage Act, Title 40, Chapter 6, MCA; best interest test controls).

I mention these cases here only from the standpoint that in the instant case we properly have grounded our decision in the fundamental constitutional rights implicit in the biological parent/child relationship and have rejected a statutory scheme that permits the invasion of that relationship absent there first being proof or demonstration of the loss, forfeiture or termination of those rights. The cases referred to in the preceding paragraph were decided under different statutory schemes, and/or on different factual scenarios and without the constitutional question at issue here. Hence, while, arguably, it is not proper that we discuss or analyze these and similar decisions here, nevertheless, it begs the question whether such decisions remain viable in the face of other statutory schemes or legal theories that, like § 40-4-221, MCA, permit custody to be awarded to a person other than a biological parent absent the rights of the natural parents) being first terminated or otherwise forfeited. Obviously, those skirmishes remain to be fought on future battlefields. Given our decision here, however, this may be an area of statutory law that should be addressed and clarified by the legislature.

Finally, it seems to me that the approach we have articulated in the instant case is as follows:

1. Section 40-4-221, MCA, and, by implication, other statutes that allow persons other than biological parents to seek custody of a child to the exclusion of a natural parent, do no more than provide a basis for standing to file a custody petition, assuming that the petitioner meets the statutory criteria specified.
2. In order for such a person to prevail on his or her petition, however, the petitioner must prove that:
(a) the rights of the natural parent(s) have been lost via:
(i) termination for abuse, dependency or neglect (Title 41, Chapter 3, MCA); or
(ii) death of both natural parents or the surviving natural parent (§ 40-4-221, MCA); or
(iii) some other statutory basis or procedure on which parental rights have been forfeited, relinquished, abandoned or terminated or have otherwise ceased to exist; and
(b)the best interest of the child will be served by granting the petition.

If the petitioner does not prove or demonstrate one of the subparagraphs under 2(a) above, then the court will not reach 2(b) (best interest of the child). If 2(a) is proven or demonstrated, but 2(b) is not, then the petition will still be denied. In this case, 2(a) has not been proven or demonstrated and, accordingly, Bill is entitled to custody of his daughter.

JUSTICE GRAY joins in the foregoing special concurrence.

      .I note that our statutory and case law provide that petitions alleging abuse and neglect must be brought by the county attorney, the attorney general, or an attorney hired by Department of Health and Public Services with the consent of either of those two officials. Section 41-3-401(1), MCA; Pierce v. Pierce (1982), 198 Mont. 255, 261, 645 P.2d 1353, 1357; Babcock v. Wonacott (1994), 268 Mont. 149, 154, 885 P.2d 522, 525.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE OF MONTANA, Petitioner and Appellant, v. LAWRENCE R. SHEPPARD, Defendant and Respondent.
    No. 95-444.
    Submitted on Briefs March 21, 1996.
    Decided June 20, 1996.
    53 St.Rep. 548.
    277 Mont. 76.
    919 P.2d 1057.

      For Appellant: David L. Ohler, Special Assistant Attorney General, Lois Adams and Diana P. Leibinger, Department of Corrections, Helena; Robert Deschamps, HI, Missoula County Attorney; Betty Wing, Deputy County Attorney, Missoula;
    For Respondent: William Boggs, Attorney at Law, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Lawrence Sheppard was found guilty and sentenced by the District Court for the Fourth Judicial District in Missoula County to thirty years in the Montana State Prison for the crime of sexual intercourse without consent. After two years of incarceration for his conviction, Sheppard filed a document with the Fourth Judicial District Court in which he moved the court to order that he be permitted to attend his annual parole review with counsel and that he be permitted to enroll in the Prison’s sexual offender program. On July 7, 1993, the District Court granted Sheppard’s motions. On June 20,1995, Sheppard filed a motion with the District Corut in which he sought another order from the court directing the Prison to enroll him in the sexual offender program. On July 14,1995, following a hearing, the District Court issued the requested order. The State appeals the District Court’s order. We affirm the order of the District Court.

This opinion is limited to the issue of whether service was properly effected in this case.

FACTUAL BACKGROUND

On September 13, 1989, Larry Sheppard was charged in the District Court for the Fourth Judicial District with the offense of sexual intercourse without consent. A jury found Sheppard guilty of the offense on December 8, 1989, and on January 31, 1990, the District Court sentenced Sheppard to thirty years in the Montana State Prison with fifteen years suspended. The District Court designated Sheppard a nondangerous offender for purposes of parole eligibility.

Sheppard had his first parole hearing on October 30,1991. Following the hearing, the State of Montana Board of Pardons issued a written decision in which it denied Sheppard parole. Although Sheppard had successfully completed Phase I of the Prison sexual offender program, the Board of Pardons appeared to make further consideration of his parole contingent on completion of Phase II of that program. However, although Sheppard applied several times for admission to Phase II, he was denied admission to the program due to his refusal to admit guilt to the crime for which he had been convicted. Sheppard admitted misdemeanor culpability but maintained he did not commit sexual intercourse without consent because no penetration had occurred.

Sheppard was eligible for annual review of his parole status in October 1992. On September 24, 1992, Sheppard’s counsel wrote to the Board of Pardons requesting that he be permitted to represent Sheppard at the October parole hearing. On October 5, 1992, the Board of Pardons denied that request and indicated that neither would Sheppard be permitted to attend the hearing.

On October 14, 1992, Sheppard filed a document with the Fourth Judicial District Court entitled “Alternative Motion or Habeas Petition,” in which he alleged that (1) his constitutional rights were violated when he and his counsel were not permitted to be present at his annual parole review; and (2) his Fifth Amendment and Due Process rights were violated when he was denied participation in Phase II of the sexual offender program until he admitted that he was guilty of the crime for which he had been convicted. On July 7,1993, the District Court issued its opinion and order. The court ordered that Sheppard be permitted to attend his annual parole review with counsel pursuant to § 46-23-204, MCA. The court further ordered that Sheppard was “entitled to participate in the [sexual offender] program regardless of his resolve to deny guilt.”

Despite the court’s order, Sheppard was not admitted to Phase II of the sexual offender program. Therefore, on June 20, 1995, Sheppard filed a document, entitled “Motions,” with the Fourth Judicial District Court. Among other motions, Sheppard sought an order from the court “directing the Montana State Prison to permit [Sheppard] to be enrolled in the I.T.U. Sexual Offender Program Phase II.” Sheppard served his motion on the Deputy County Attorney for Missoula County who had prosecuted him, but did not serve the attorney for the Department of Corrections. The County Attorney appeared at the hearing on July 11, 1995, and advanced the State’s position that “[Sheppard] has refused to accept responsibility for his crime, and consequently cannot be admitted to the Sexual Offender Program, Phase II, I.T.U.”

On July 14,1995, the District Court issued an order directing that Sheppard be admitted into and allowed to participate in Phase II of the sexual offender program at Montana State Prison. In that order, the court stated clearly that it was reaffirming and clarifying its previous July 7, 1993, order and that the rationale for its order remained unchanged.

DISCUSSION

On July 7, 1993, the District Court entered an opinion and order in which it concluded, in part, that Sheppard’s choice to exercise his Fifth Amendment rights should not preclude his participation in Phase II of Montana State Prison’s sexual offender program. When the Montana State Prison failed to enroll Sheppard in the sexual offender program following that order, the District Court entered another order reaffirming its previous decision. Although the State of Montana did not appeal the court’s July 7, 1993, order, it now appeals the court’s July 14, 1995, reaffirmation of that order and claims: (1) that the District Court did not have jurisdiction to order that Sheppard be enrolled in Phase II of the sexual offender program; (2) that the court’s order violated the Montana Constitution’s separation of powers clause, Article III, Section 1; and (3) that service of Sheppard’s second motion was improper because it was not made on the attorney for the Department of Corrections.

The issue of the court’s jurisdiction to order that Sheppard be enrolled in the sexual offender program and the separation of powers issue are substantive issues which the State could have raised in an appeal from the District Court’s 1993 order. Because the State failed to timely appeal that order, as provided by Rule 5(b), M.RApp.P., we hold that the State is bound by the 1993 order. The District Court’s 1995 order was simply an enforcement of its earlier decision which had become final due to the State’s failure to appeal. Accordingly, we decline to address the substantive issues raised by the State, and on appeal address only the procedural issue of whether service of Sheppard’s second motion was improper because Sheppard failed to serve the attorney for the Department of Corrections.

Rule 5(b), M.R.Civ.P., provides in part that: ‘Whenever ... service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney....” In this case, Sheppard filed a motion with the Fourth Judicial District Court on June 20, 1995. Sheppard served a copy of the motion on the Deputy County Attorney in Missoula County who had prosecuted him, but did not serve the attorney for the Department of Corrections who had responded to his 1993 motion. On appeal, the Department contends that Sheppard’s failure to serve its attorney in 1995 in the second action deprived the State of the opportunity to present evidence at the district court hearing. The Department further contends that “[t]he denial of an opportunity to be heard was material to the Court’s decision.”

Whether improper service is a reversible error requires an examination of the facts and the Montana Rules of Civil Procedure. Phennicie v. Phennicie (1979), 185 Mont. 120, 124, 604 P.2d 787, 789. In this case, Sheppard served a copy of his motion to compel the Montana State Prison to enroll him in the sexual offender program on the Missoula Deputy County Attorney who had prosecuted Sheppard on behalf of the State in the underlying criminal proceeding. The Deputy County Attorney appeared at the district court hearing on July 11, 1995, and presented the State’s position that “[Sheppard] has refiised to accept responsibility for his crime, and consequently cannot be admitted to [Phase II of] the Sexual Offender Program.” At the hearing, the County Attorney made no suggestion that she lacked authority to represent the State in this matter.

Pursuant to § 7-4-2716(1), MCA, a county attorney is required to attend the district court and ... represent the state in all matters and proceedings to which it is a party or in which it may be beneficially interested, at all times and in all places within the limits of his county.

In this case, Sheppard filed his motion against the State of Montana in the District Court in Missoula County and served the County Attorney for that county. Clearly, pursuant to § 7-4-2716(1), MCA, the County Attorney had authority to represent the State. Therefore, because the County Attorney in this case had the authority to and did in fact represent the State at the District Court hearing, the State was not denied an opportunity to be heard in this matter.

Furthermore, the Department of Corrections had already had the opportunity to advance its position in 1993 when Sheppard brought his first motion and when the same District Court addressed the identical issue. Prior to the District Court’s ruling, the Department of Corrections filed several documents in support of its position. It is clear from the District Court’s 1993 order that the court fully considered the Department’s arguments before it rendered its decision and order. The court’s 1995 order merely enforced its earlier decision.

Rule 61, M.R.Civ.P., which describes harmless error, provides that:

No error ... or defect... in anything done or omitted by the court or by any of the parties is ground for ... vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.

In this case, given the fact that the Department of Corrections had ample opportunity to present evidence in support of its position in 1993 when the District Court first addressed this issue, and given the fact that the State was adequately represented by the Missoula County Attorney at the District Court’s 1995 hearing, we hold that Sheppard’s failure to serve the Department of Correction’s attorney was not inconsistent with substantial justice. Because we conclude that failure to serve the Department’s attorney was, at most, harmless error, we affirm the July 14, 1995, order of the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and ERDMANN concur.


author: JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    CRAIG WILLIAM FRAZIER, ALL PAROLEES and PROBATIONERS SENTENCED PRIOR TO JULY 1, 1993, Plaintiffs and Appellants, v. MONTANA STATE DEPARTMENT OF CORRECTIONS, by and through MONTANA ADULT PROBATION and PAROLE, et al., Defendants and Respondents.
    No. 95-501.
    Submitted on Briefs May 9, 1996.
    Decided June 20, 1996.
    53 St.Rep. 551.
    277 Mont. 82.
    920 P.2d 93.

      For Appellants: Craig William Frazier, Pro Se, Deer Lodge.
    For Respondents: David L. Ohler, Lois Adams, Department of Corrections and Human Services, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Craig William Frazier (Frazier), pro se, appeals from the order and memorandum of the Second Judicial District Court, Silver Bow County, determining that the supervision fee in § 46-23-1031(l)(a), MCA, is constitutional. We affirm.

The following issue-is raised on appeal:

Did the District Court err in determining that § 46-23-1031(l)(a), MCA, does not violate the prohibition against ex post facto laws as applied to parolees and probationers sentenced prior to July 1,1993?

Frazier alleges that HB 673, passed by the 1993 Montana Legislature and codified at § 46-23-1031, MCA, which requires probationers and parolees to pay a $10 per month supervision fee violates the prohibition against ex post facto laws contained in Article I, § 10 of the United States Constitution and Article II, § 31 of the Montana Constitution. Section 46-23-1031, MCA, provides in relevant part:

(1) (a) Except as provided in subsection (l)(b), a probationer or parolee shall pay a supervisory fee of $120 a year, prorated at $10 a month for the number of months under supervision. The fee must be collected by the clerk of the district court with jurisdiction during the probationer’s or parolee’s period of supervision under this part.
(b) The court or thé board may reduce or waive the fee or suspend the monthly payment of the fee if it determines that the payment would cause the probationer or parolee a significant financial hardship.

The ex post facto clause, Article II, § 31 of the Montana Constitution, provides that “[n]o ex post facto law nor any law impairing the obligation of contracts, or making any irrevocable grant of special privileges, franchises, or immunities, shall be passed by the legislature.”

In reviewing a district court’s conclusions of law we determine whether the district court’s interpretation of the law is correct. Stratemeyer v. Lincoln County (1996), [276 Mont. 67], 915 P.2d 175, 177 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04). Here, the District Court concluded that:

Since the costs and fees assessed pursuant to § 46-23-1031, Mont. Code Ann., are for the costs of providing supervision and programs by the department and are not imposed as a penalty or punishment for the crime for which the offender was convicted, application of the monthly supervision fees to all offenders on active supervision on or after the effective date of the legislation does not constitute an ex post facto application of the statute.

Frazier asserts that he was sentenced prior to the enactment of § 46-23-1031, MCA, and that the statute cannot be retroactively applied to him and other probationers and parolees similarly situated. We disagree.

“[F]or a criminal or penal law to be ex post facto ... it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Bae v. Shalala (7th Cir. 1995), 44 F.3d 489, 492 (quoting Weaver v. Graham (1981), 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17). This Court has held that:

It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with a crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.

State v. Leistiko (1992), 256 Mont. 32, 36, 844 P.2d 97, 99-100 (quoting Beazell v. Ohio (1925), 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216).

Frazier relies on this Court’s opinion in Leistiko to support his argument that the supervision fee violates the prohibition against ex post facto laws. In Leistiko, we stated that in determining whether legislation violates the ex post facto clause a two-part test must be used. First, the law must be retrospective and, second, the law must disadvantage the affected offender. Leistiko, 844 P.2d at 100 (citing Miller v. Florida (1987), 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351). A law is retrospective if it changes the legal consequences of actions committed prior to the law’s effective date. Leistiko, 844 P.2d at 100. As to the second factor, in Leistiko, we determined that “the additional restitution ordered ... constitutes an unconstitutional increase in punishment which Leistiko could not have foreseen at the time he committed the crime ....” Leistiko, 844 P.2d at 100.

Leistiko is distinguishable from the instant case. In Leistiko, we determined that the district court erred in increasing Leistiko’s restitution obligation. Under the statute in effect at the time of Leistiko’s initial sentencing the district court did not have the discretion to add additional terms and conditions to the suspended sentence. A later amendment to the statute gave the district court this discretion. However, we determined that application of the later statute to Leistiko and imposition of an additional $10,000 in restitution violated the ex post facto prohibition and constituted an unconstitutional increase in punishment. Leistiko, 844 P.2d at 100. In the instant case, a civil administrative fee has been assessed against Frazier to help defray the costs of supervision. A civil sanction will implicate ex post facto concerns only if it can be fairly characterized as punishment. Bae, 44 F.3d at 492 (citing United States v. Halper (1989), 490 U.S. 435, 447-48, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487).

Relying on the legislative history, the Department of Corrections asserts that the purpose of the supervision fee is to help defray the costs of probation and parole by charging those people benefitting from the system. The sponsor of the legislation stated that he was not attempting to introduce punitive legislation, rather, he was attempting to implement better community based programs for probationers and parolees.

The District Court determined that the “intent of [the supervisory fee] is not to punish but to make the offender more responsible for his rehabilitation in the form of paying for supervision services rendered.” In addition, the District Court aptly noted that “the purpose of Montana’s imposition of probation and parole supervisory fees is to assist in making community corrections an effective alternative to incarceration through holding the offender accountable for his rehabilitation.” We agree. The supervisory fee facilitates community corrections which serve, not as punishment, but as an alternative to imprisonment.

Section 46-23-1031(l)(b), MCA, provides that the court or the board can “reduce or waive the fee or suspend the monthly payment of the fee if it determines that the payment would cause the probationer or parolee a significant financial hardship.” The Department asserts that “[i]f probationers and parolees fail to pay the fee, they have not been and will not be returned to [Montana State Prison].” The Department concludes that “[t]herefore, probationers and parolees should never experience financial hardship, nor parole revocation, solely as a result of a failure to pay the fee.”

Under the supervision fee statute, Frazier is not being punished for his criminal activities, rather, he is helping to pay the costs of his supervision. A civil sanction will be deemed to be punishment in the constitutional sense only if the sanction “may not fairly be characterized as remedial, but only as a deterrent or retribution.” Bae, 44 F.3d at 493 (citing Halper, 490 U.S. at 449, 109 S.Ct. at 1902). The legislative history of the supervision statute does not reveal an intent to punish. Further, we note that even if the supervision statute has a deterrent purpose that purpose does not automatically mark the statute as a form of punishment. Bae, 44 F.3d at 494 (citing Montana Department of Revenue v. Kurth Ranch (1994), 511 U.S. 767, _, 114 S.Ct. 1937, 1946, 128 L.Ed.2d 767). The United States Supreme Court has consistently required “ ‘unmistakable evidence of punitive intent’ to characterize a sanction as punishment.” Bae, 44 F.3d at 494 (citing Selective Serv. Sys. v. Minnesota Pub. Interest Research Group (1984), 468 U.S. 841, 855 n.15, 104 S.Ct. 3348, 3357 n.15, 82 L.Ed.2d 632; Flemming v. Nestor (1960), 363 U.S. 603, 619, 80 S.Ct. 1367, 1377, 4 L.Ed.2d 1435). In the instant case, there is no such “unmistakable evidence of punitive intent.”

The legislative intent of the supervision statute does not evidence an intent to punish, rather, the intent of the fee is to help defray the costs of supervision and to hold probationers and parolees accountable. These factors support our determination that the supervision fee is administrative as opposed to punitive in nature and cannot be fairly characterized as punishment. We hold, therefore, that the District Court was correct in concluding that the supervision fee set forth in § 46-23-1031, MCA, does not violate the prohibition against ex post facto laws.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, GRAY and ERDMANN concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion. I conclude that the supervision fee imposed on Craig William Frazier nearly seven years after the commission of his crime is indistinguishable from the additional restitution ordered in State v. Leistiko (1992), 256 Mont. 32, 844 P.2d 97, and that the same result is compelled by the reasoning in that case.

We held in Leistiko that:

We use a two-part test to determine whether a statute violates the ban on ex post facto laws: (1) the law must be retrospective, and (2) it must disadvantage the offender affected by it. Miller v. Florida (1987), 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351, 360-61. A law is retrospective if it changes the legal consequences of actions committed before its effective date. Miller, 482 U.S. at 430, 107 S.Ct. at 2451.

Leistiko, 256 Mont. at 36-37, 844 P.2d at 100.

In Leistiko the district court ordered that the defendant pay additional restitution to his victim pursuant to a change in the law which occurred after his conviction. We held that the order requiring additional restitution violated the prohibition against ex post facto laws because it added $10,000 to the cost of his crime and placed an additional condition on his parole which could subject him to additional incarceration. Leistiko, 256 Mont. at 37, 844 P.2d at 100. Both of those circumstances also exist in this case.

The supervisory fee imposed on Frazier was retrospective because it changed the legal consequences of crimes he committed before the effective date of the fee. It disadvantaged Frazier because it increased the legal cost of his crime by an amount in excess of $5000. Furthermore, contrary to the representations of the Montana State Department of Corrections, which the majority opinion accepts at face value, Frazier was served with a notice by his probation and parole officer that if he did not pay the supervisory fee he could have his “probation/parole revoked.” Therefore, both of the conditions which this Court found controlling in Leistiko exist in nearly the exact form in this case.

The majority attempts to distinguish this case from Leistiko on the grounds that Frazier is not being punished by the supervisory fee, but is merely helping to pay the cost of his supervision. Neither was Leistiko being punished by the requirement that he pay restitution. He was merely helping to pay his victim for the consequences of his crime. In this case, the State is being reimbursed. In Leistiko, the victim was being reimbursed.

The majority opinion attributes some significance to the fact that it was not the Legislature’s intent to punish those parolees who are required to pay thousands of dollars in supervision fees even though that requirement was not in existence at the time of their crimes. The Legislature’s intent is not relevant to our constitutional analysis of whether § 46-23-1031(l)(a), MCA, violates Article II, Section 31, of the Montana Constitution, which prohibits ex post facto laws.

There is no practical basis on which to distinguish the facts in this case from the facts in Leistiko. There is no justification for refusing to apply the test for ex post facto laws which we have previously articulated to the facts in this case.

For these reasons, I dissent from the majority opinion.

JUSTICE HUNT joins in the foregoing dissenting opinion.


author: JUSTICE NELSON

text:
    JOHN SMART, Appellant, v. THE MONTANA HISTORICAL SOCIETY, Employer, and STATE COMPENSATION MUTUAL INSURANCE FUND, Respondent.
    No. 95-532.
    Submitted on Briefs February 8, 1996.
    Decided June 21, 1996.
    53 St.Rep. 554.
    277 Mont. 89.
    918 P.2d 670.

      For Appellant: Linda M. Deola, Reynolds, Motl & Sherwood, Helena.
    For Respondent: Daniel J. Whyte, State Compensation Insurance Fund, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

John Smart (Smart) appeals a decision of the Workers’ Compensation Court finding that Smart is not entitled to permanent total disability benefits under § 39-72-701(1), MCA(1991), and limiting his benefits to a maximum award of $10,000 pursuant to § 39-72-405, MCA (1991). We affirm.

The sole issue presented for review is:

Did the Workers’ Compensation Court err in finding that Smart is not entitled to permanent total disability benefits under the Montana Occupational Disease Act?

Factual and Procedural Background

Smart filed a claim on October 29, 1992, for an injury arising out of and in the course of his employment with the Montana Historical Society. Smart had been employed by the Montana Historical Society as an archival photographer for 11 years. As a result of overexposure to toxic chemicals used in the photography process, Smart experienced nausea, headaches, chronic respiratory irritation, disorientation, memory loss, and depression. At the time of his injury, Smart was earning $16 per hour, plus benefits.

Smart’s claim was accepted pursuant to the Montana Occupational Disease Act (MODA), set forth at Title 39, Chapter 72, Montana Code Annotated. The examining physician determined that Smart suffered from an occupational disease, but that the effects were not permanent so long as Smart did not continue his work in the darkroom.

The State Compensation Insurance Fund (the State Fund) paid Smart temporary total disability benefits. When Smart reached maximum medical improvement, the State Fund offered him $10,000, the maximum amount of benefits allowed under § 39-72-405, MCA (1991). Smart rejected the offer claiming that he is permanently totally disabled and is therefore entitled to benefits in excess of $10,000.

The State Fund, through Independent Rehabilitation Providers of Montana, performed an employability assessment on Smart to determine whether other employment was available according to his education and experience. The assessment determined that there were a number of positions available to Smart, all of which paid considerably less than the $16 per hour he had been making previously

On July 22, 1994, Smart filed a Motion for Summary Judgment with the Workers’ Compensation Court claiming that the $10,000 limit in the MODA does not apply in his situation as he is permanently totally disabled. The court denied Smart’s motion and certified the matter as final for purposes of appeal to the Montana Supreme Court. Smart filed an appeal with this Court on October 25, 1994. We dismissed the appeal, without prejudice, on April 20,1995, holding that the appeal was premature as the Workers’ Compensation Court failed to decide the necessary substantive issues of claimant’s benefits.

On May 1,1995, Smart and the State Fund filed a joint Motion for Reconsideration before this Court. We denied this motion on May 9, 1995. On October 31,1995, the Workers’ Compensation Court issued a Decision and Final Judgment wherein the court ruled that Smart was not entitled to permanent total disability benefits under § 39-72-701(1), MCA (1991), and was limited to a maximum award of $10,000 pursuant to § 39-72-405, MCA (1991). Smart now appeals the Decision and Final Judgment of the Workers’ Compensation Court.

Discussion

Did the Workers’ Compensation Court err in finding that Smart is not entitled to permanent total disability benefits under the Montana Occupational Disease Act?

The Workers’ Compensation Court determined that, even though Smart cannot return to his former work, he is physically able to perform other available work for which he is qualified, thus he is not permanently totally disabled and not entitled to benefits under § 39-72-701(1), MCA (1991). The court found that compensation for Smart’s injury is limited under the MODA, specifically by § 39-72-405, MCA (1991), to an award of up to $10,000.

We employ two standards of review for Workers’ Compensation Court decisions: we review the court’s findings of fact to determine if they are supported by substantial credible evidence, and we review the court’s conclusions of law to determine if they are correct. Turjan v. Valley View Estates (1995), 272 Mont. 386, 390, 901 P.2d 76, 79 (citing Caekaert v. State Comp. Mut. Ins. Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 498). There are no contested facts in the case before us, only questions of statutory interpretation.

Smart argues that the Workers’ Compensation Court erred in its interpretation of the MODA as it pertains to his injury. He maintains that § 39-72-405, MCA (1991), refers to a nondisabling occupational disease and that only when an individual has such a nondisabling occupational disease may compensation be limited to $10,000. Section 39-72-405, MCA (1991), provides, in part:

(2) When any employee in employment on or after January 1, 1959, because he has an occupational disease incurred in and caused by such employment which is not yet disabling, is discharged or transferred from the employment in which he is engaged or when he ceases his employment and it is in fact, as determined by the medical panel, inadvisable for him on account of a nondisabling occupational disease to continue in employment and he suffers wage loss by reason of the discharge, transfer, or cessation, the department may allow compensation on account thereof as it considers just, not exceeding $10,000.

Smart contends that this does not apply to him as his injury fits the definition of “disabling” found at § 39-72-102, MCA (1991), which provides, in part:

(4) “Disablement” means the event of becoming physically incapacitated by reason of an occupational disease from performing work in the worker’s job pool.

Smart argues that his “job pool” is photography and since he cannot return to work in that field, he is disabled under this definition. Smart does not claim that he is physically unable to perform other types of work. He agrees with the State Fund and the Workers’ Compensation Court that he is only unable to perform photography work.

The State Fund, on the other hand, argues that the terms “not yet disabling” and “nondisabling” in § 39-72-405, MCA (1991), mean that a person can have an occupational disease that prevents them from returning to their time of injury employment but does not prevent them from returning to other employment. As the State Fund points out, the “not yet disabling” language in § 39-72-405, MCA, (1991), also takes into consideration the likelihood that an injured worker may become totally disabled at some time in the future, allowing for a change in status to permit payment of permanent total disability benefits.

The State Fund contends, and we agree, that, only when a person is unable to physically perform any employment are they entitled to either temporary total disability benefits or permanent total disability benefits under the MODA. Smart does not fit within the definition of permanent total disability found in § 39-71-116(16), MCA, and made applicable to the MODA by § 39-72-701, MCA, because Smart is physically able to perform other types of employment. Section 39-71-116(16), MCA, provides in part:

(16) “Permanent total disability” means a condition resulting from injury as defined in this chapter, after a worker reaches maximum healing, in which a worker has no reasonable prospect of physically performing regular employment. Regular employment means work on a recurring basis performed for remuneration in a trade, business, profession, or other occupation in this state.

Contrary to Smart’s contention that his “job pool” includes only jobs in the field of photography, the State Fund argues that Smart’s “job pool” includes all jobs that he is physically capable of performing and that he is qualified for based on his age, education and experience. The phrase “worker’s job pool” is not defined within the MODA, nor is it defined within the Workers’ Compensation Act. In attempting to determine the meaning of this phrase, the Workers’ Compensation Court, in its order denying Smart’s Motion for Summary Judgment, looked to the plain meaning of the statute, but found that, on its face, the term has no plain, commonly understood meaning. The court found that the phrase is ambiguous and resorted to looking at the legislative history of the statute to determine the legislature’s intent.

The only definition of “worker’s job pool” that the Workers’ Compensation Court was able to find was in a portion of the Workers’ Compensation Act that was repealed by the Montana Legislature in 1991. This statute provided, in part:

(a) ‘Worker’s job pool” means those jobs typically available for which a worker is qualified, consistent with the worker’s age, education, vocational experience and aptitude and compatible with the worker’s physical capacities and limitations as the result of the worker’s injury. Lack of immediate job openings is not a factor to be considered.
(b) A worker’s job pool may be either local or statewide, as follows:
(i) a local job is one either in a central city that has within its economically integrated geographical area a population of less than 50,000 or in a city with a population of more than 50,000 as determined by the division; or

(ii) a statewide job is one anywhere in the state of Montana. Section 39-71-1011(7), MCA (1987) (Repealed).

In its denial of Smart’s Motion for Summary Judgment, the Workers’ Compensation Court adopted this definition of “worker’s job pool.” Smart contends that the court erred in applying this definition as the definition had been repealed in 1991. He argues that the MODA should be applied in a manner most favorable to the injured worker. In support of this proposition, Smart relies on § 39-72-104, MCA (1985) (Repealed) (requiring liberal construction in the interpretation of any part of this chapter).

Ordinarily, legislative intent can be gleaned from the plain meaning of the statute. Holly Sugar v. Department of Revenue (1992), 252 Mont. 407, 412, 830 P.2d 76, 79.

If the language is clear and unambiguous, no further interpretation is required, and we will resort to legislative history only if legislative intent cannot be determined from the plain wording of the statute.

Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088 (citing Lovell v. State Comp. Mut. Ins. Fund (1993), 260 Mont. 279, 285, 860 P.2d 95, 99).

The term “worker’s job pool” was inserted into both the Workers Compensation Act and the MODA during the 1987 Montana legislative session. In addition, the 1987 Legislature added the definition of “worker’s job pool” to the Workers’ Compensation Act. We agree with the State Fund and the Workers’ Compensation Court that the legislature intended that the same definition apply to both acts since the legislature did not construct a different definition of “worker’s job pool” for the MODA.

In 1991, the Montana Legislature adopted new standards for rehabilitation in the Workers’ Compensation Act, repealing the standards set forth in 1987. Along with the elimination of the term “worker’s job pool” in the Workers’ Compensation Act, the 1991 Legislature repealed the definition of that term found in the Workers’ Compensation Act, but did not eliminate the term from the MODA. Repeal of the definition of “worker’s job pool” from the Workers’ Compensation Act does not mean that any other definition was ever intended for this term by the legislature. It is reasonable, as the State Fund and the Workers’ Compensation Corut surmised, that the definition would remain the same.

Since the legislature’s intention in using the phrase “worker’s job pool” cannot be determined from the plain meaning of that phrase, we find no error in the Workers’ Compensation Court resorting to legislative history and adopting the definition of this phrase set out at § 39-71-1011(7), MCA(1987) (Repealed). In addition, we do not find persuasive Smart’s contention that the MODA should be applied in a manner most favorable to the injured worker as the statute Smart cites for this proposition was repealed by the 1987 Montana Legislature at the same time the phrase “worker’s job pool” was inserted into the MODA and the Workers’ Compensation Act.

Accordingly, we hold that the Workers’ Compensation Court was correct in concluding that Smart is not entitled to permanent total disability benefits under the MODA since he is physically able to perform other types of employment.

Affirmed.

JUSTICES TRIEWEILER, GRAY, HUNT and LEAPHART concur.


author: JUSTICE HUNT

text:
    KENNETH GORDON, Plaintiff and Appellant, v. DONALD E. “GENE” HEDMAN and HEDMAN, HILEMAN & LACOSTA, Defendants and Respondents.
    No. 95-432.
    Submitted on Briefs March 2, 1996.
    Decided June 25, 1996.
    53 St.Rep. 558.
    277 Mont. 96.
    918 P.2d 680.

      For Appellant: Sara R. Sexe, Jason G. Dykstra, Marra, Wenz, Johnson & Hopkins, Great Falls.
    For Respondent: Tracy Axelberg, Axelberg & Kalkstein, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Kenneth Gordon, filed a complaint in the Eleventh Judicial District Corut, Flathead County, alleging professional malpractice by respondent and his law firm. Respondent filed a motion to dismiss which the District Court granted. Appellant appeals that decision.

We reverse and remand.

We restate the dispositive issues as follows:

1. Did the District Corut err in ruling that absent a relationship of subrogation, Home Insurance Company was unable to substitute itself as the real party in interest pursuant to Rule 17(a), M.R.Civ.P.?

2. Did the District Court err in dismissing the action for failure to state a claim upon which relief could be granted?

FACTS

The facts and allegations as set forth in appellant’s complaint are as follows: All parties to this action are residents of Flathead County, Montana. Appellant and respondent began their attorney-client relationship in the fall of 1990 when respondent agreed to represent appellant in an action arising from the termination of appellant’s disability benefits from the Anaconda Ahiminum/ARCO Long-Term Disability Plan.

Appellant’s complaint alleges that respondent failed to timely or properly pursue an action for breach of fiduciary duty by Thomas L. Jacobs, the administrator of the disability plan. The complaint asserts that, although respondent did file an action on behalf of appellant, it was filed after the time allowed by the applicable statute of limitations. Moreover, the complaint alleges that respondent improperly filed in State District Court, rather than in Federal District Court, and that respondent failed to invoke the appropriate sections of the Employees Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, et seq. Appellant asserts that this claim, if successful, would have provided certain equitable, remedial, and legal remedies.

The complaint further alleges that, because of the attorney-client relationship, respondent had a duty to represent appellant with the reasonable care, skill and diligence possessed and exercised by an ordinary attorney under similar circumstances. Appellant asserts that respondent breached his professional duty by failing to adequately represent appellant’s interests and that, consequently, appellant suffered damages.

In May 1995, respondent filed a motion to dismiss appellant’s complaint. In his brief in support of the motion, respondent alleges that appellant had made similar claims in an earlier proceeding against another attorney who had represented appellant. Respondent attached a copy of the complaint. According to respondent, that action was ultimately settled and dismissed with prejudice. Respondent contends that as part of the settlement, appellant signed a release by which he unconditionally assigned any and all claims he had against respondent and the respondent law firm to the Home Insurance Company, the first attorney’s malpractice carrier. The issue of whether a professional negligence claim can be assigned is not raised by the parties or addressed by this Court.

Respondent alleges the proper plaintiff is Home Insurance Company as the purported assignee of any rights held by appellant and that, accordingly, appellant does not have standing to pursue this claim and the complaint should be dismissed.

Moreover, respondent argues that, even if appellant could proceed, he had signed an unequivocal release of any and all damages. Therefore, appellant had nothing to assign to the Home Insurance Company for the purpose of future action and, accordingly, the complaint failed to state a claim upon which relief could be granted.

Following the submission of the motion to dismiss, appellant filed two ratifications of the present action pursuant to Rule 17(a), M.R.Civ.R The law firm that first represented appellant and the Home Insurance Company filed documents reflecting ratification of the action brought by appellant. Both parties agreed to be bound by the result.

Following submission of the ratifications, the District Court granted respondent’s motion to dismiss. In the order, the court found that the release appellant signed in conjunction with the settlement of the earlier lawsuit did not create a right of subrogation in Home Insurance Company. Absent subrogation, the court concluded that “the substitution/ratification provision of Rule 17(a)” did not apply. Moreover, the District Court concluded that appellant could not state a claim upon which relief could have been granted.

Appellant appeals.

ISSUE ONE

Did the District Court err in ruling that absent a relationship of subrogation that Home Insurance Company was unable to substitute itself as the real party in interest pursuant to Rule 17(a), M.R.Civ.R?

An action must be prosecuted by the real party in interest. Rule 17(a), M.R.Civ.R Rule 17 also provides that no action will be dismissed until a reasonable time has been allowed for ratification, substitution or joinder of the real party. The rule reads, in part, as follows:

Rule 17(a). Real party in interest. Every action shall be prosecuted in the name of the real party in interest. A personal representative, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought; ... No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder, or substitution of, the real party in interest; and such ratification, joinder, or substitution, shall have the same effect as if the action had been commenced in the name of the real party in interest.

The rule was intended to protect individuals from harassment and multiple suits by persons not bound by the claim. See 6 Wright, Miller and Kane, Federal Practice and Procedure § 1543 (1990).

Here, respondent correctly objected to appellant’s role as plaintiff. Following respondent’s objection, Bothe & Lauridsen and the Home Insurance Company both executed ratifications of Gordon’s action. These documents were submitted prior to the court’s ruling on respondent’s motion to dismiss. In the order dismissing the complaint, the court concluded that neither substitution or ratification of this action was possible under Rule 17(a), M.R.Civ.P., because of the nature of the relationship between appellant and the insurance company.

Appellant argues that the District Court erred in this conclusion. In support of his argument, appellant refers to the last sentence of Rule 17(a), M.R.Civ.P.: “No action shall be dismissed ... until a reasonable time has been allowed after objection for ratification ....” Appellant contends that Rule 17(a), M.R.Civ.P., was satisfied because the purported real party in interest, Home Insurance Company, ratified the action. Furthermore, appellant argues that a decision regarding the method of compliance with Rule 17(a), M.R.Civ.P., rests solely with the real party. In support of this argument, appellant cites State ex. rel. Nawd’s T.V. v. District Court (1975), 168 Mont. 456, 543 P.2d 1336.

In Nawd’s, the plaintiff sought a writ of supervisory control after the district court had issued an order requiring “substitution and joinder” of the plaintiff’s insurer in the action. We held that Rule 17(a), M.R.Civ.P., “plainly provides that a reasonable time will be given to allow the real party in interest to bind himself to the suit by ratification, joinder, or substitution.” Nawd’s, 543 P.2d at 1339 (emphasis omitted).

This Court reviewed the question of whether a district court had the discretion to decide which method a real party had to use in order to bind itself to litigation under Rule 17(a), M.R.Civ.P. In that decision, the parties included fully and partially subrogated insurance carriers, and this Court held that partially subrogated insurance carriers had the option of choosing the method of ratification. Nawd’s, 543 P.2d at 1339.

In this case, the District Court concluded that despite appellant’s efforts to create a right of subrogation through assignment, appellant and the Home Insurance Company were not in the position of subrogor to subrogee, and, therefore, the action was not amenable to substitution or ratification pursuant to Rule 17(a), M.R.Civ.P., citing to State ex. Rel. Slovak v. District Court (1975), 166 Mont. 485, 534 P.2d 850. Consequently, the court granted respondent’s motion, and dismissed appellant’s complaint.

According to the release document, appellant assigned all of his interest in the present action to Home Insurance Company, Bothe, and Bothe and Lauridsen as part of the settlement in the earlier lawsuit. Since appellant had assigned his entire claim to the Home Insurance Company, this Court agrees with the District Court that appellant had no claim to file. Absent a claim to file, Home Insurance does not have a claim to ratify.

However, just because Home Insurance Company may not be able to ratify the current action does not mean it cannot substitute itself as the real party in interest pursuant to Rule 17(a), M.R.Civ.P. The rule provides that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder, or substitution of, the real party in interest. Rule 17(a), M.R.Civ.P., does not distinguish between the party who has obtained an interest in an action through subrogation and the party who has obtained an interest through assignment by contract.

The plain language of Rule 17(a), M.R.Civ.P., gives the real party in interest the option of binding itself to litigation by “ratification, joinder, or substitution.” State ex. rel. Bohrer v. District Court (1976), 171 Mont. 116, 118, 556 P.2d 899, 900. Although the real party in interest did not have the option of ratification as the assignee of plaintiff’s claim, the role of the district court is to make sure that one of these methods has been adhered to after an objection has been made under Rule 17. Bohrer, 556 P.2d at 900. Once the objection to appellant as plaintiff was made, the real party had the option of binding itself to the suit through substitution. Bohrer, 556 P.2d at 900.

Following Home Insurance Company’s attempt at ratification, the court simply granted respondent’s motion to dismiss. Home Insurance Company was not given an opportunity to substitute itself as the real party in interest. Accordingly, we reverse the District Court in order to allow the real party in interest a reasonable time in which to substitute itself as the real party in the present action.

ISSUE TWO

Did the District Court err in dismissing this action for failure to state a claim upon which relief could be granted?

In the present action, the court looked to documents outside of the original pleadings. By doing so, the court constructively converted respondent’s motion to dismiss into a motion for summary judgment without notice. See Rule 12(b)(6), M.R.Civ.R This Court has consistently held that it is incumbent upon a district court to give parties formal notice of a conversion to summary judgment. Gebhardt v. D.A. Davidson & Co. (1983), 203 Mont. 384, 661 P.2d 855. After a party has been notified of the court’s intentions, the parties then have a reasonable opportunity to present all material made pertinent to such a motion. State ex rel. Dept. of H. & E. S. v. City of Livingston (1976), 169 Mont. 431, 435, 548 P.2d 155, 157.

However, since we are reversing in order to allow the real party in interest the opportunity for substitution, the court’s error in failing to notify the parties of its intent to convert the Rule 12(b)(6), M.R.Civ.P. motion to one for summary judgment is harmless error.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and LEAPHART concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GARY ATKINS, Defendant and Appellant.
    No. 95-459.
    Submitted on Briefs April 4, 1996.
    Decided June 25, 1996.
    53 St.Rep. 561.
    277 Mont. 103.
    920 P.2d 481.

      For Appellant: Michael B. Grayson, Public Defender Project Office, Anaconda.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Christopher G. Miller, Powell County Attorney, Deer Lodge.
   JUSTICE HUNT

delivered the Opinion of the Court.

A jury in the Third Judicial District Court, Powell County, found Gary Atkins (Atkins) guilty of one count of felony assault and one count of possession of a deadly weapon by an inmate. Atkins appeals the denial of his motion to dismiss for lack of a speedy trial, as well as the denial of his motion for a mistrial.

We affirm.

Atkins raises the following issues on appeal:

1. Did the District Court err by denying Atkins’ motion to dismiss the charges because his constitutional right to a speedy trial allegedly had been violated?

2. Did the District Court err by denying Atkins’ motion for a mistrial after “other crimes” evidence was introduced at trial?

Atkins is an inmate at the Montana State Prison at Deer Lodge. On December 1, 1994, the unit manager for a one of the housing facilities at the prison received information indicating Atkins might be in possession of a “shank,” which is prison vernacular for a homemade weapon such as a knife. The unit manager directed two correctional officers to conduct a “shakedown” of Atkins — that is, to search him for weapons. The correctional officers stopped Atkins on his way back from lunch and took him into an office. They then informed him that the purpose of drawing him aside was to conduct a shakedown and told him to empty his pockets. Atkins became agitated and refused to empty his pockets or to allow the search. He kept one hand in his pocket and admitted that he was in fact in possession of a shank. He told the unarmed correctional officers to stay away from him or he would stab one of them. At some point, he took the shank from his pocket — a sharpened piece of chain-link fencing with a handle made of tape — and either kept it in his hand (according to the officers) or set it on the desk and kept his hand right above it (according to Atkins).

Atkins asked to speak to the unit manager, who spoke to him briefly on the phone and Informed Atkins that he would be right down. The unit manager then picked up two more correctional officers who accompanied him to the office in question. When these officers entered the office, the shank was on the desk but Atkins had his hand over it. As the office became more crowded, one of the officers grabbed the shank off the desk while several others subdued Atkins. He was then placed in handcuffs, advised of his rights, and taken to Maximum Security.

Because of the incident, Atkins was charged with one count of felony assault and one count of possession of a deadly weapon by an inmate. After trial, a jury found him guilty of both counts. Atkins appeals.

Issue 1

Did the District Court err by denying Atkins’ motion to dismiss the charges because his constitutional right to a speedy trial allegedly had been violated?

Atkins was read his rights and transferred to Maximum Security immediately after the incident in question occurred on December 1, 1994. On December 14, 1994, he was formally charged. The trial began on June 26,1995. Two weeks previously, on June 11, Atkins moved that the charges be dismissed because he had not received a speedy trial. The District Court denied the motion and Atkins appeals.

A defendant’s right to a speedy trial is guaranteed by both the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution. The United States Supreme Court has set out a four-part test to determine whether a defendant’s right to a speedy trial has been violated. Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. This Court adopted the Barker test in State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 568 P.2d 162.

Under the Barker test, when deciding a speedy trial issue the court must evaluate:

(1) the length of the delay;
(2) the reason for the delay;
(3) the assertion of the right by the defendant; and
(4) the prejudice to the defendant.

State v. Gould (1995), 273 Mont. 207, 214, 902 P.2d 532, 537; State v. Barker (1993), 261 Mont. 379, 382, 862 P.2d 1112, 1114.

First, if the length of delay is not long enough to be presumptively prejudicial, no speedy trial issue is triggered and a court need not consider the remaining three factors of the Barker test. If however, the delay is of such duration that it is presumptively prejudicial, the burden shifts to the State to rebut the presumption by providing a reasonable explanation of the delay and showing that the defendant was not prejudiced by it. Gould, 902 P.2d at 537 (citing State v. Curtis (1990), 241 Mont. 288, 299, 787 P.2d 306, 313).

In its appellate brief, the State contends that the roughly 200-day delay in this case need not be presumed to be prejudicial. At trial, however, the county attorney informed the District Cotut that “the State concedes that the length of delay here is sufficient to require you to enter into the balancing test in Barker v. Wingo.” Since the State conceded the point at trial, this Court will assume that the length of the delay in this case was long enough to be presumptively prejudicial.

The second factor in the speedy trial analysis is the reason for the delay. In this case, both parties concede that the delay was purely institutional. Neither party cultivated delay by moving for continuances or procedurally impeding the process of the case. Yet, given the trial calendar of the District Court, it took approximately 200 days to bring this matter to trial. Such institutional delay must be charged to the State. State v. Van Voast (1991), 247 Mont. 194, 201, 805 P.2d 1380, 1384. However, institutional delay weighs less heavily against the State than other kinds of delay because it is not a delay the State actively pursued or encouraged. Van Voast, 805 P.2d at 1384 (citing Curtis, 787 P.2d at 315).

Turning to the third factor, the State concedes that Atkins asserted his right to a speedy trial in a timely manner by moving to dismiss on speedy-trial grounds prior to trial. State v. Stewart (1994), 266 Mont. 525, 531, 881 P.2d 629, 633.

The fourth factor to be considered is the prejudice to the defendant. In deciding whether a defendant was prejudiced by a delay, a court will assess the impact of the delay on the following interests, which are protected by the right to a speedy trial:

(1) the prevention of oppressive pretrial incarceration;
(2) the minimization of the defendant’s anxiety and concern; and
(3) the limitation of impairment of the defense.

Gould, 902 P.2d at 538; Barker, 862 P.2d at 1115.

It is undisputed that Atkins was incarcerated prior to trial. However, as an inmate serving an extended sentence, he would have remained incarcerated in any event. As this Court held in Gould, “incarceration on a different charge negates any prejudice resulting from incarceration while awaiting trial.” Gould, 902 P.2d at 539 (citing State v. Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 416). Nor did Atkins exhibit notable anxiety and concern regarding the disposition of the charges. He testified that he was inconvenienced by the charges in that he decided not to begin taking certain classes at the Prison until the charges were resolved, because a finding of guilt meant he would have to abandon the classes. His concerns focused on the fact that, in his opinion, his ability to go to school depended on an ultimate resolution of the charges, although he was not in fact precluded from enrolling in classes.

The record reflects that Atkins did not assert that he had suffered any increased anxiety during the pendency of the charges. While anxiety or distress are difficult to prove, it is nearly impossible for the State to prove such emotional states do not exist. Consequently, we have held that “the State’s burden to show a lack of anxiety becomes considerably lighter in the absence of more than marginal evidence of anxiety.” Curtis, 787 P.2d at 316. In this case, the record shows no evidence whatsoever of anxiety or undue concern.

Atkins, however, argues that his ability to defend the charges was impaired because one of his potential witnesses disappeared prior to trial. Atkins wanted to subpoena a teacher from the prison, whom he asserts would have testified regarding Atkins’ apprehension that another inmate would attack him. This in turn would corroborate Atkins’ explanation of why he made and carried the shank. The teacher in question disappeared while the trial was pending, and Atkins was unable to subpoena him. Atkins asserts that his inability to have this teacher testify seriously prejudiced his defense. The burden remains on the State to show that Atkins was not in fact prejudiced by the teacher’s failure to testify.

At the hearing on his motion to dismiss, Atkins’ testified that he had spoken to two teachers, one male and one female, regarding his apprehension about the other inmate. He testified, however, that he had told the female teacher, who testified at trial, “a little less” than he told the male teacher, who is missing, “because I got along with him better and I trusted him more.”

Atkins planned on using the missing teacher’s testimony to substantiate his own apprehension in an attempt to justify possession of the shank. The State points out that Atkins, without objection, was allowed to testify to the substance of his conversation with the missing teacher. He further testified to the conversation he had with the female teacher, and this was in turn corroborated by her testimony. Thus, the jury heard uncontroverted evidence that he had conveyed his concerns to both teachers.

Even if the missing teacher had testified, he could only have confirmed the validity of Atkins’ representations regarding the substance of their conversation. In fact, however, the State never challenged the validity of Atkins’ testimony. The teacher’s testimony, therefore, would have been cumulative and repetitive of Atkins’ own testimony. The State has shown that the evidence which the teacher would have presented was in fact presented by Atkins himself, without objection. It has therefore demonstrated that the presentation of Atkins’ defense was not impaired by the teacher’s absence.

If a speedy trial inquiry is triggered, the State must either show a reasonable excuse for the delay or show that the defendant was not prejudiced thereby. State v. Mooney (1991), 248 Mont. 115, 118, 809 P.2d 591, 594 (citing State v. Ackley (1982), 201 Mont. 252, 653 P.2d 851). In this case, the State has shown that the delay was purely institutional and not prejudicial to Atkins’ defense. The District Court did not err by refusing to dismiss the charges based on lack of a speedy trial.

Issue 2

Did the District Court err by denying Atkins’ motion for a mistrial after “other crimes” evidence was introduced at trial?

During the confrontation in the prison office, a correctional officer tried to persuade Atkins to surrender the shank, noting that there could be serious consequences if he refused. According to the officer, Atkins replied that “he was doing time for two homicides and he wouldn’t be eligible for parole until he was 75, [so] he didn’t care.” Before trial, the defense moved in limine to exclude evidence of any crimes other than the ones at issue in this case. The State agreed not to present any “other crimes” evidence, provided the defense would stipulate that Atkins was an inmate.

During direct examination at trial, however, the correctional officer related the substance of Atkins’ comment before the jury. Defense counsel immediately objected, and the District Court admonished the jury to disregard the correctional officer’s comment. Defense counsel then moved for a mistrial, which motion the District Court denied. Before deliberations, the jury was also provided with a jury instruction again admonishing them not to consider any other crimes but those for which Atkins was currently on trial. On appeal, Atkins asserts that the District Court abused its discretion by denying his motion for a mistrial. He contends that the officer’s comments were so prejudicial the District Court’s admonishment and jury instruction could not sufficiently cure the error.

The standard of review for denial of a motion for mistrial is whether there is clear and convincing evidence that the trial court’s ruling was erroneous. State v. Greytak (1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098 (citing State v. Benton (1992), 251 Mont. 401, 404, 825 P.2d 565, 567-68). A district court properly grants a motion for a mistrial only when a manifest necessity exists to do so. Greytak, 865 P.2d at 1098; State v. Seaman (1989), 236 Mont. 466, 475, 771 P.2d 950, 956.

In this case, the correctional officer’s reference to Atkins’ criminal record surprised the State as well as the defense. Atkins does not allege that the State purposely elicited the testimony, but, nevertheless, the jury heard it. Atkins asserts that the fact that the jury heard this testimony is reversible error because the comment was so prejudicial that “[a] jury could not and will not forget or disregard [it].” He speculates that the jury disregarded both the District Court’s admonishment and the specific jury instruction. Speculation, however, is not the clear and convincing evidence necessary to reverse a district court’s denial of a motion for a mistrial.

In any event, any declaration, act, or omission which itself forms part of the transaction in dispute is admissible. Section 26-1-103, MCA. As we held in State v. Wing (1994), 264 Mont. 215, 224, 870 P.2d 1368, 1375, “[w]hether an act is referred to as part of the res gestae or as part of the ‘transaction,’ that act is evidence which is part of the same litigated event.” In this case, Atkins’ reference to his existing sentence took place during the short stand-off in the prison office. It explained why he was indifferent to the consequences of his actions and why he would not peacefully surrender. Evidence which is closely related to and explanatory of the offense may be admissible. Wing, 870 P.2d at 1374 (citing State v. Cameron (1992), 255 Mont. 14, 20, 839 P.2d 1281, 1285). Accordingly, even if the jury considered the disputed evidence despite the District Court’s admonishment and jury instruction not to do so, such consideration is not reversible error. Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES ERDMANN, LEAPHART and TRIEWEILER concur.


author: JUSTICE ERDMANN

text:
    GARY D. FJELSTAD, as conservator of MAREIA ELLEN FJELSTAD, a Protected Person, Plaintiff and Appellant, v. STATE OF MONTANA, acting through its Department of Highways, Defendant and Respondent.
    No. 95-480.
    Submitted on Briefs June 4, 1996.
    Decided June 25, 1996.
    53 St.Rep. 565.
    277 Mont. 112.
    918 P.2d 674.

      For Appellant: Donald W. Molloy, Molloy Law Offices, Billings; Theodore R. Dunn and Richard Dolan, Goetz, Madden & Dunn, Bozeman.
    For Respondent: R. H. Bellingham and Harlan B. Krogh, Moulton, Bellingham, Longo & Mather, Billings.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

This is an appeal of the judgment and jury verdict entered by the Sixteenth Judicial District Court, Treasure County. We reverse and remand for a new trial.

The issues on appeal are as follows:

1. Did the District Court err in not approving the stipulation for change of venue?

2. Did the District Court err in refusing to remove two jurors for cause?

3. Did the District Court err in regard to the requirements of Senate Bill 212, as amending § 27-1-703, MCA?

FACTS

This case was previously before this Court in Fjelstad v. State (1994), 267 Mont. 211, 883 P.2d 106. Ellen Fjelstad was driving her car west on Interstate 94 in 1988 when she swerved, left the highway, and struck the end of a guardrail. There were three passengers in the car; two of Ellen’s daughters and another young girl. Ellen and the other girl died, and Ellen’s daughter, Mareia, suffered significant injuries.

Gary Fjelstad, as conservator for Mareia, sued the State of Montana to recover damages she had sustained resulting from its alleged negligent design, placement, installation, or maintenance of the guardrail section at which the accident occurred. The case went to trial and the jury found for the State.

Fjelstad’s attorney filed a motion for a new trial and also requested sanctions, alleging that the State had failed to disclose certain documents in discovery. The attorney had discovered, through conversations with another attorney, that the State had letters in its possession which related to updating outdated guardrails and increasing the height of the guardrails when an overlay was conducted. The attorney for the State had these letters in his possession when the discovery request was made, but determined that they were not relevant to the request and therefore did not disclose them. The District Court determined, however, that the letters were relevant and could have resulted in a different verdict. On that basis, the District Court ordered a new trial but denied sanctions. The State appealed and Fjelstad cross-appealed.

This Court affirmed the District Court’s grant of a new trial, reversed the District Court on the sanctions issue, and remanded the matter for a hearing on the sanctions. The District Court ultimately awarded fjelstad $30,000 based on the State wrongfully withholding the information.

Prior to the second trial, at the hearing on the sanctions, the State’s attorney approached Fjelstad’s attorney and suggested that the parties stipulate to a change of venue. Fjelstad’s attorney agreed and the matter was presented in open court. Both parties stipulated to a change of venue and it was later memorialized in a written document and filed with the court. Despite the stipulation, the District Court denied the venue change.

The matter was tried in Hysham, and following a three-day trial the jury again returned a verdict for the State. Fjelstad appeals from the judgment adopting the jury verdict and the alleged errors of the District Court regarding venue, jury selection, and the requirements of § 27-1-703, MCA.

DISCUSSION

Did the District Court err in not approving the stipulation for change of venue?

We have previously stated that the standard of review of a trial court’s interpretation of the law is whether the court correctly interpreted the law. Common Cause v. Statutory Committee (1994), 263 Mont. 324, 328, 868 P.2d 604, 606; Bankers Life and Casualty Co. v. Peterson (1993), 263 Mont. 156, 158, 866 P.2d 241, 242.

Section 25-2-202, MCA, provides:

All the parties to an action, by stipulation or by consent in open court entered in the minutes, may agree that the place of trial may be changed to any county in the state. Thereupon the court must order the change as agreed upon.

(Emphasis added.)

The predecessor to this statute was the identical provision set forth in § 9102, RCM (1921). This Court considered that provision in State ex rel. Bonners Ferry Lumber Co., Ltd. v. District Court (1925), 74 Mont. 338, 240 P. 388. In Bonners Ferry the parties had agreed to a change of venue and the district court granted the change. However, it retained jurisdiction of the case for purposes of ruling on a separate matter. We held that the agreement to change venue, tantamount to a stipulation, required the court to order the change and to pass upon any further collateral issues. Bonners Ferry, 240 P. at 390.

The State argues that the present case is distinguishable from Bonners Ferry. Its argument is based on the fact that one of the parties in that case was a foreign corporation with its primary place of business in Libby, and therefore, it had an additional statutory right to change venue which does not exist in this case. This argument fails to address the plain language of § 25-2-202, MCA, which does not require any additional statutory reason to exist before the court is bound to grant a stipulation for change of venue.

The State relies on our holding in Montana Wholesale Accounts v. Penington (1988), 233 Mont. 72, 758 P.2d 759, to assert that the District Court had discretion to deny the change of venue in spite of the stipulation. In that case, the parties had entered into two agreements for the purchase and installation of signs. The agreements contained a clause setting forth Yellowstone County as the proper venue for any suit for action upon the contract. A suit was commenced in Yellowstone County in accordance with the venue clause.

The defendant filed a motion for change of venue pursuant to § 25-2-121, MCA, which places venue for actions upon contracts. The motion was denied. The defendant then filed a motion to change venue for the convenience of witnesses pursuant to § 25-2-201(3), MCA, which was also denied. On appeal, we held that when faced only with a provision equivalent to a stipulation of venue the district court must place venue in the stipulated county. Montana Wholesale, 758 P.2d at 760. While there was language in Montana Wholesale indicating that a court could consider the convenience of the witnesses where there was a stipulation for venue, those comments were in response to defendant’s motion for change of venue for convenience of witnesses pursuant to § 25-2-201(3), MCA.

In the present case, unlike Montana Wholesale, there was no motion for change of venue for the convenience of the witnesses. Both parties were concerned with the size of the jury pool in Treasure County. A stipulation, initiated by the State, was discussed and agreed to in open court as required by § 25-2-202, MCA. The stipulation was executed and filed with the Court.

The State argues that the denial of the stipulation considered the convenience of the witnesses and/or the ends of justice. However, there was no motion pursuant to § 25-2-201(3), MCA, and the record does not reflect that the District Court considered the convenience of the witnesses and/or the ends of justice in denying the stipulated change of venue.

The State goes on to argue that it withdrew the stipulation prior to trial and it was therefore no longer in effect at the time the trial began. This ignores the fact that the District Court denied the venue change nearly two months prior to trial and that the Court’s incorrect interpretation of § 25-2-202, MCA, occurred at that time. Finally, the State argues that the second trial in Hysham did not result in any prejudice to Fjelstad. Since the District Court erred as a matter of law in regard to the venue stipulation, we need not reach the issue of prejudice.

We have previously held that when the statute contains the word “must,” this clearly indicates that the statutory commands are mandatory and not discretionary. OEA Research, Inc. v. McGee (1985), 217 Mont. 321, 325, 704 P.2d 1042, 1045; Butte Country Club v. Dept. of Revenue (1980), 186 Mont. 424, 429, 608 P.2d 111, 114. It is well established that when the terms of a statute are plain, unambiguous, direct, and certain, the statute speaks for itself and there is nothing for this Court to construe. State v. Mummey (1994), 264 Mont. 272, 277, 871 P.2d 868, 871.

Thus, where, as here, there was no motion to change venue based on convenience of the witnesses, under the plain language of § 25-2-202, MCA, the District Court erred in its interpretation of the law and did not have discretion to deny the stipulation for change of venue to Billings.

Having disposed of the venue issue in favor of Fjelstad, we need not address the issues of juror selection or the requirements of § 27-1-703, MCA.

Reversed and remanded for a new trial consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, GRAY and LEAPHART concur.