author: JUSTICE NELSON

text:
    STATE OF MONTANA, ex rel. JOHN C. TORRES, Petitioner, v. MONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY, and THE HONORABLE JOHN M. McCARVEL, Presiding Judge, Respondents.
    No. 93-572.
    Original Proceeding Submitted May 26, 1994.
    Decided July 6, 1994.
    51 St.Rep. 599.
    877 P.2d 1008.
    265 Mont. 445.

      For Petitioner: Stephen E. Hagerman & Marvin Anderson, Great Falls.
    For Respondent: Michael Fanning, Deputy Cascade County Attorney, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

BACKGROUND

This is an original proceeding. On February 9, 1993, John C. Torres, a/k/a John C. Hess, (Torres or the defendant) was charged by information in the Eighth Judicial District Court, Cascade County, with one count of Negligent Homicide, a felony, in violation of § 45-5-104(1), MCA, (1991), alleged to have been committed on or about June 20,1992. On February 23,1993, Torres entered his plea of not guilty and, by counsel, filed his Motion to Dismiss With Prejudice and a supporting brief. The grounds for his motion are not pertinent to our decision here. On March 5,1993, the State filed its brief in answer to Torres’ motion, and after arguments on March 25, 1993, the District Court orally denied Torres’ motion, and filed its written order to that effect on April 2, 1993.

Torres, subsequently, on August 30, 1993, filed various other pretrial motions with a supporting memorandum. Included in his motions were five additional motions to dismiss based on alleged violations of the year and day rule, destruction of evidence, violation of equal protection and due process, double jeopardy and the interests of justice. Again, for purposes of this opinion, we are not concerned with the underlying merits of Torres’ motions. On September 8,1993, Torres filed additional pretrial motions, including another motion to dismiss alleging outrageous government conduct on the part of the prosecution. The State did not file any written response to Torres’ pretrial motions filed August 30, 1993, or September 8, 1993, until November 16,1993, when it responded in writing to the motions filed September 8, 1993.

The record indicates that a hearing on Torres’ motions was held on September 9,1993, and that the District Court dismissed defendant’s motion to suppress and took his other motions under advisement.

On September 10, 1993, the District Court entered its written order setting forth various facts underlying the Negligent Homicide charge and the procedural history of not only that charge, but of a related charge of DUI to which Torres had entered a plea of guilty in Justice Court and on which he had been sentenced to and had served jail time, all prior to the filing of the Negligent Homicide charge. The District Court concluded that Torres’ state and federal constitutional rights to due process and fundamental fairness had been violated (1) by the State filing the Negligent Homicide charge; (2) because of outrageous government conduct (the court concluded that the prosecution had directed one of its potential witnesses, a highway patrolman, to cancel an appointment with defense counsel and to not talk with the defense without the prosecutor being present); (3) because the State failed to give adequate notice of its intention to introduce hospital medical records of the defendant’s blood alcohol level (his blood sample submitted to the State Crime Lab had been compromised); (4) because the court found “serious questions” about the cause of death of the victim due to evidence being destroyed; (5) because of the late filing of the State’s “Just” notice; and (6) under § 46-13-401, MCA, in furtherance of justice.

Following its “Judicial Conclusions” the District Court entered the following order: “Based upon the foregoing Conclusions, it is hereby ordered that this case is dismissed with prejudice.” (Emphasis added).

On September 16, 1993, the State filed its Motion to Reconsider and Memorandum in Support alleging factual and legal errors in the District Court’s September 10,1993, order of dismissal. The prosecution, concluding that the court’s order was based on findings of fact for which there was no evidence and that the court was led into error by assertions of the defense, requested that the District Court “... vacate its ruling and order a rehearing on the defendant’s motions.”

On September 20, 1993, the State filed its Motion for Expedited Hearing on its Motion to Reconsider, and on September 21,1993, the District Court entered its Order Setting Hearing. In that order, the court set an omnibus hearing and, without any explanation, rescinded its previous order of September 10,1993, dismissing the case with prejudice.

On November 17, 1993, Torres filed in this Court his Application for Writ of Supervisory Control or Other Appropriate Writ and Supporting Memorandum alleging that the District Court was without jurisdiction to rescind its order of dismissal with prejudice and that he should not have to stand trial. On January 20,1994, after ordering and reviewing a response from the State, we assumed jurisdiction and ordered the parties to submit briefs on the following issue:

Whether or not the District Court has the jurisdiction to rescind its order dismissing the information with prejudice and thereby reinstating the charge.

This case, having been deemed submitted on the parties’ briefs, is now ready for decision. Upon completion of our review we hold that the District Court was without jurisdiction to rescind its order dismissing the information with prejudice and, accordingly, we issue a writ of supervisory control and remand this case to the District Court with instructions that it enter an order vacating its September 21, 1993, order and reinstating its September 10,1993, order dismissing the information against Torres with prejudice.

DISCUSSION

I.

At the outset, we note that in its brief the Cascade County Attorney’s office changed the statement of the issue that we ordered briefed and, in addition to addressing Torres’ legal arguments, included in its briefs a lengthy recitation of alleged facts not pertinent to the legal question at issue, along with arguments not relevant to that legal question. We admonish counsel that such tactics simply waste the time of this Court and opposing counsel, add nothing to the merits and presentation of one’s case, delay our decision and may result in rejection of the offending brief.

II.

It is necessary that we also briefly address the appropriateness of our exercise of supervisory control in this case. The exercise of supervisory control by this Court is authorized by Article VII, Section 2(2) of the Montana Constitution and by Rule 17(a), M.R.App.P. Supervisory control, being an extraordinary remedy, we are extremely reluctant to entertain such proceedings, especially where our acceptance of jurisdiction will interfere with the trial of the underlying case on the merits and where the defendant has an adequate remedy of appeal. State ex rel. O’Sullivan v. District Court (1946), 119 Mont. 429, 431-432, 175 P.2d 763, 764.

We have also held, however, that supervisory control is appropriate where the district court is proceeding under a mistake of law and, in so doing, is causing a gross injustice, State ex rel. Forsyth v. District Court (1985), 216 Mont. 480, 484, 701 P.2d 1346, 1348; State ex rel. Fitzgerald v. District Court (1985), 217 Mont. 106, 114, 703 P.2d 148, 153-154, and where, as here, requiring the defendant to stand trial would result in unnecessary expenditures of time and resources. State ex rel. Fletcher v. District Court (1993), 260 Mont. 410, 414, 859 P.2d 992, 994; State ex rel. First Bank System v. District Court (1989), 240 Mont. 77, 84, 782 P.2d 1260, 1264.

It is fundamentally unfair and prejudicial, not to mention a waste of the taxpayers’ money and the limited time and resources of the court and counsel, to force a defendant in a criminal case to stand trial when the court does not have jurisdiction to hear the case.

Having concluded that, once it dismissed the information against the defendant with prejudice, the District Court here was without jurisdiction to reinstate the information. We therefore, also conclude, that it is appropriate that we assume jurisdiction of this case and exercise original jurisdiction under a writ of supervisory control in order to forestall a needless and expensive trial.

III.

Citing State v. Porter (1964), 143 Mont. 528, 391 P.2d 704, and other prior and more recent cases in accord, Torres argues that the District Court lost jurisdiction to reinstate the information in this case because of the doctrine that once a valid sentence has been pronounced, the court loses jurisdiction to vacate or modify the sentence, except as otherwise provided by statute. Torres also argues that our decision in State v. Onstad (1988), 234 Mont. 487, 764 P.2d 473, is dispositive.

The State argues that Onstad was wrongly decided since it applied the case law on final judgments to “simple orders.” Further, the State maintains that Onstad is no longer valid authority because the statutory language upon which our decision was based has been subsequently modified by the legislature.

We believe that the rationale expressed in Onstad is still valid, and, accordingly, it is necessary that we address our decision in that case.

In Onstad, an information was filed charging the defendant with various felonies. The defense filed a motion to dismiss for lack of jurisdiction along with a supporting brief based on the defendant being a member of an Indian tribe. While counsel had informally agreed that the State would have additional time in which to file its brief, the court was not made aware of that fact, and, in due course, no answer brief being submitted, the district court dismissed the information and charges. Our opinion does not indicate whether the dismissal was with or without prejudice. Through oversight, the court’s order was not served on counsel, but, subsequently, the county attorney learned of the order and filed his memorandum addressing the jurisdictional issue and a motion to set aside the court’s order of dismissal. The time for appealing the order of dismissal having expired, the court held a hearing, granted the State’s motion and entered an order reinstating the information. The defendant was then tried, convicted and sentenced. Onstad, 764 P.2d at 474.

On appeal, we addressed the jurisdiction of the district court to reinstate the information after having dismissed it. There being no responsive brief from the State on file as required by Rule II of the Uniform District Court Rules then in effect at the time the court entered its order of dismissal, we concluded that the district court properly dismissed the information on the grounds raised by the defendant, and we held that, upon filing the order dismissing the information, that order became final and was appealable. Onstad, 764 P.2d at 475, citing, State v. Enfinger (1986), 222 Mont. 438, 722 P.2d 1170; State v. Wirtala (1988), 231 Mont. 264, 752 P.2d 177; and State v. Spencer (1916), 37 S.D. 219, 157 N.W. 662.

As pointed out by the State, we did not distinguish in Onstad, between an order of dismissal and a judgment, and we cited cases in which a judgment had been entered. Under §§ 46-1-202(11), MCA, (1991), and 46-1-202(10), MCA, (1993), a judgment is:

... an adjudication by a court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court.

The order of dismissal in the instant case (and in Onstad) is not the same thing as a “judgment” as defined by our code of criminal procedure since the order did not adjudicate guilt. Accordingly, to equate a judgment in a criminal case with an order which does not adjudicate guilt, is not technically correct. For purposes of resolving the issue raised in this case, however, that distinction is more of academic interest than of substantive import.

What is critical here is that the District Court dismissed the information against Torres “with prejudice.” The technical distinction between such an order of dismissal and a judgment aside, we have held that:

The term “with prejudice” as used in a judgment of dismissal has a well-recognized legal import. It is the converse of the term “without prejudice,” and a judgment or decree of dismissal with prejudice is as conclusive of the rights of the parties as if the suit had been prosecuted to a final adjudication adverse to the plaintiff. (Citation omitted.)
The terms “with prejudice” and “without prejudice” have been recognized as having reference to, and being determinative of, the right to bring a future action. (Citation omitted.)

Schuster v. Northern Co. (1953), 127 Mont. 39, 45, 257 P.2d 249, 252.

Accordingly, an order of dismissal “with prejudice” in a criminal case, while not technically a judgment as that term is defined in our code of criminal procedure, nevertheless, acts as a final adjudication of the case and is as conclusive of the rights of the parties as is a final judgment. Hence, our statement in Onstad that “[u]pon the filing of the order dismissing the information the order became a final judgment and was appealable,” remains, for all intents and purposes, a correct statement of the law.

Moreover, in Onstad we concluded that § 46-13-106, MCA, (1985), implied that the dismissed information is no longer effective against the defendant though the court may retain custody over the defendant pending the filing of a new information; that the statute did not provide for reinstatement of the dismissed information; and that, since a valid information did not exist under which the defendant could be tried, his subsequent trial, conviction and sentence under the reinstated information is invalid. Onstad, 762 P.2d at 475.

Section 46-13-106, MCA, (1985), referred to in Onstad, provided that:

Effect of order of dismissal. If the court directs the action to be dismissed, the defendant must, if in custody, be discharged therefrom or, if admitted to bail, have his bail exonerated or money deposited instead of bail refunded to him. However, if the court grants a motion to dismiss based on a defect in the institution of the prosecution or in the indictment, information, or complaint or if it appears at any time before judgment that a mistake has been made in charging the proper offense, the court may also order that the defendant be held in custody or that his bail be continued for a specified time pending the filing of a new complaint, indictment, or information.

That section has since been amended, is now renumbered § 46-13-402, MCA, in both the 1991 and 1993 codes and provides that:

Effect of order to dismiss. If the court directs the action to be dismissed, the defendant must, if in custody, be discharged and, if admitted to bail, have bail exonerated or money deposited instead of bail refunded to the defendant.

Importantly, the first sentences of each statute are virtually identical, and we conclude that, based upon that language, our reasoning in Onstad remains correct. The dismissed information is no longer effective against the defendant, and the statute does not provide for reinstatement of the dismissed information. Onstad, 764 P.2d at 475.

Furthermore, as we pointed out in Onstad, while a district court may correct clerical errors to make the record speak the truth of what was actually decided, the court may not change what was originally intended. Citing State v. Owens (1988), 230 Mont. 135, 138, 748 P.2d 473, 474. “The reinstatement of the information was a reversal of the court’s decision on the motion to dismiss and is not permissible.” Onstad, 764 P.2d at 475. The same is true in the instant case.

Under § 46-20-103(2)(a), MCA, the State can appeal the dismissal of a case. Here, on the District Court’s dismissal of the information with prejudice on motion of the defendant, the appropriate remedy for the State was to appeal, not to request reconsideration of the court’s order. Onstad, 764 P.2d at 475.

We hold that, having dismissed the information against Torres “with prejudice,” the District Court was without jurisdiction to rescind its order of dismissal and to reinstate the information. Accordingly, we remand this case to the District Court for entry of an order vacating its September 21, 1993, order and for entry of an order reinstating its September 10, 1993, order dismissing with prejudice the information filed against Torres.

REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER, HUNT, HARRISON and WEBER concur.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BILL J. HENDERSON, Defendant and Appellant.
    No. 93-264.
    Submitted on Briefs February 17, 1994.
    Decided July 7, 1994.
    51 St.Rep. 606.
    877 P.2d 1013.
    265 Mont. 454.

      For Appellant: Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, Barbara Harris, Assistant Attorney General, Helena; Robert L. Deschamps, III, County Attorney, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

Bill Henderson was convicted of accountability for incest and sexual intercourse' without consent in the Fourth Judicial District Court, Missoula County. He correctly asserts error in the District Court’s refusal to grant a directed verdict on the accountability for incest charge and its admission of expert testimony. We reverse and remand.

Bill Henderson (Henderson) was the stepfather of A.C., D.C., and B.C., the natural children of his wife, Stacey Henderson. The children lived with the couple until moving to Alaska to live with their maternal grandparents in December of 1984.

In June of 1985, the children’s grandmother discussed the topic of sexual abuse with A.C. and asked if she had ever been sexually abused. A.C. responded that she had been abused by Henderson. The next day, the grandmother took A.C. to Anne Drake, a family therapist. A.C. repeated her sexual abuse allegations and Drake contacted the Alaska Division of Family and Youth Services, which initiated a criminal investigation. During the investigation, the children recounted acts of simulated sexual intercourse between A.C. and her brothers and acts of sexual intercourse between Henderson and A.C.

The State of Montana (State) charged Henderson with accountability for incest and sexual intercourse without consent; he was convicted of these offenses on June 10, 1988. Henderson failed to appear for sentencing and a bench warrant was issued. Henderson was apprehended four and one-half years later on December 31,1992.

In a written judgment dated March 19, 1993, the District Court sentenced Henderson to consecutive terms of incarceration totaling sixty years and recommended that Henderson not be eligible for parole. The parole board notified the District Court that the language in the judgment did not prevent Henderson from being paroled and, on April 9, 1993, the District Court entered an amended judgment precluding parole or participation in a supervised release program. Additional facts are included in our discussion of the issues.

Did the District Court abuse its discretion by denying Henderson’s motion for a directed verdict of acquittal on the accountability for incest charge?

The State charged that Henderson “knowingly before and during the commission of the offense of incest with the purpose to promote such commission solicited [B.C.] and [D.C.] to have sexual contact with their sister [A.C.].” (Emphasis added.) This charge stemmed from the children’s accounts of incidents where Henderson made D.C. and B.C. remove their clothes, lie on top of the naked A.C., and “move up and down.” While the children performed these simulated sex acts, Henderson masturbated nearby. At the close of the State’s case, Henderson moved for a directed verdict of acquittal on the accountability charge. The District Court denied the motion and the jury found Henderson guilty of the offense.

The grant or refusal of a directed verdict is within the trial court’s discretion. State v. Downing (1989), 240 Mont. 215, 217, 783 P.2d 412, 413. A directed verdict is appropriate only where there is no evidence upon which a trier of fact could base a guilty verdict. State v. Matson (1987), 227 Mont. 36, 42, 736 P.2d 971, 974.

Henderson argues that the District Court erred in denying his motion because the physical contact between the children did not constitute incest and, as a result, he cannot be convicted of accountability for that offense. We agree.

A person is legally accountable for the conduct of another when:

either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.

Section 45-2-302(3), MCA. A charge of accountability under § 45-2-302(3), MCA, must arise from the commission of an underlying offense. See Downing, 783 P.2d 412,414. The underlying offense here was the alleged incest involving A.C. and her brothers. Thus, the District Court properly denied Henderson’s motion for a directed verdict if the State produced evidence upon which a jury could find that the acts of simulated intercourse between A.C. and her brothers constituted the offense of incest.

Section 45-5-507(1), MCA, states in relevant part: “A person commits the offense of incest if he knowingly ... has sexual contact as defined in 45-2-101 with an ancestor, descendant, a brother or sister ..., or any stepson or stepdaughter.” Sexual contact is “any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party.” Section 45-2-101(60), MCA. This definition of sexual contact requires that either the person performing the touching or the person being touched engage in the touching for the purpose of sexual arousal or gratification. Therefore, the State was required to introduce evidence from which the jury could find that one of the children engaged in these simulated sex acts for the purpose of sexual arousal or gratification.

The State’s evidence did not establish that the children engaged in the intimate touching for this purpose. Indeed, the State’s witnesses established the opposite; the children were angry because of the coerced acts, considered the acts embarrassing, and did not want to participate in the acts. We conclude that the State failed to introduce evidence on which the jury could find that the children committed the offense of incest and, therefore, Henderson could not be legally accountable for that offense under § 45-2-302(3), MCA.

The State argues that the evidence established accountability for incest pursuant to § 45-2-302(1), MCA. We observe, however, that the State framed the accountability for incest charge using the language of § 45-2-302(3), MCA, and, in its argument opposing the motion for a directed verdict, the State clearly stated that the charge was based on subsection (3) of the statute. It is axiomatic that a party may not change the theory on appeal from that advanced in the district court. Donnes v. State ex rel. Superintendent of Public Instruction (1983), 206 Mont. 530, 537, 672 P.2d 617, 621. This principle is especially important in criminal prosecutions where the State must inform the defendant of the nature of the criminal charges so the defendant may present a defense. State v. Sanderson (1985), 214 Mont. 437, 453-54, 692 P.2d 479, 488. We decline to address the merits of this argument.

Absent evidence that the offense of incest was committed, there was no evidence upon which the jury could base a verdict of guilty on the accountability for incest charge. We hold, therefore, that the District Court abused its discretion in denying Henderson’s motion for a directed verdict of acquittal on that charge.

Did the District Court abuse its discretion in admitting the testimony of Anne Drake?

Anne Drake began counseling the children to address emotional problems associated with their move to Alaska. Her practice consisted primarily of family and marital counseling. She began counseling the children regarding the alleged sexual abuse, however, following A.C.’s disclosure to her grandmother in June of 1985.

During trial, the State offered Drake as an expert witness to testify to the validity of the children’s allegations of sexual abuse and A.C.’s statements identifying Henderson as the perpetrator. Over Henderson’s objection, the District Court accepted Drake as an expert witness and admitted her testimony.

The admissibility of evidence rests within the discretion of the trial court and is reviewed only for a manifest abuse of that discretion. State v. Van Pelt (1991), 247 Mont. 99, 104, 805 P.2d 549, 552. Apartas assertion of error “must stand or fall on the ground relied on by the trial court.” State Dep’t of Highways v. DeTienne (1985), 218 Mont. 249, 256, 707 P.2d 534, 538.

A. Drake’s testimony regarding the validity of the children’s statements.

The parties argue for and against the retroactive application of cases determining the necessary qualifications for an expert witness on child sexual abuse which were decided between the 1988 trial of this matter and Henderson’s sentencing in 1993. Henderson argues for application of State v. Harris (1991), 247 Mont. 405, 808 P.2d 453, and State v. Scheffelman (1991), 250 Mont. 334, 820 P.2d 1293. Application of Scheffelman would mandate a conclusion that Drake did not possess the needed qualifications for expert witness status and, on that basis, that the District Court erred by admitting her testimony regarding the validity or credibility of the children’s statements. The State argues against application of those cases; according to the State, State v. Geyman (1986), 224 Mont. 194, 729 P.2d 475, should be applied to affirm the District Court’s admission of Drake’s testimony.

The parties’ arguments relate to whether Drake was qualified as an expert on child sexual abuse to offer an opinion on the credibility of the children’s statements. Our decision, however, addresses the issue raised by Henderson’s objection at trial. That objection, although somewhat ambiguous, essentially was that Drake’s opinion on the validity of the children’s statements lacked an adequate foundation.

Following Drake’s testimony regarding her professional background, Henderson voir dired Drake. Henderson inquired about the “generally accepted” criteria used in validating a child’s allegations of sexual abuse and whether Drake had experience in assessing the validity of such allegations. Drake responded that the means of establishing the validity of allegations made by a child A.C.’s age involved reviewing and determining the consistency of the child’s statements.

In response to questions regarding the statements she actually reviewed in forming her opinion, Drake indicated that she had not read any of the children’s statements or medical reports, viewed the videotaped depositions, or talked to any investigators assigned to the case. She testified that her determination that A.C.’s statements were consistent and, therefore, “valid” or credible, was based largely on the similarity of A.C.’s statements to Drake and her grandmother.

Henderson objected to Drake expressing an opinion on the validity of A.C.’s statements because, according to her own testimony, the opinion was not based on the generally accepted criteria for validating such statements. The District Court overruled the objection and allowed Drake to testify that she believed “that what the children told [her] did indeed happen to them,” and “[she] felt like they were quite honest and candid with [her].”

Rule 703, M.R.Evid., which was adopted verbatim from the federal rule, addresses the foundation necessary for expert opinion; it permits an expert to use sources and kinds of information which other experts in that particular field reasonably rely on to form an opinion on a particular subject. “In determining whether an expert’s reliance on information is reasonable, the courts evaluate the opinion and its foundation on a case-by-case basis.” 3 Weinstein’s Evidence ¶ 703[03], 703-24 (1993). In instances where the expert lacks an adequate basis, the trial court must reject the opinion testimony. See Cella v. U.S. (7th Cir. 1993), 998 F.2d 418, 423.

According to Drake, child sexual abuse experts form opinions regarding the validity of a child’s statements by reviewing and determining the consistency of the child’s various reports. Based on Drake’s own testimony that she did not determine the consistency of the children’s numerous statements and formed her opinion based on limited statements made by A.C., we conclude that Drake’s opinion on the validity of the children’s statements lacked an adequate foundation. We hold, therefore, that the District Court abused its discretion by admitting that opinion testimony.

B. Drake’s testimony repeating A.C.’s statements identifying Henderson as the perpetrator.

The State argues that Henderson failed to object to Drake’s testimony repeating A.C.’s out-of-court statements identifying Henderson as the perpetrator and, as a result, the issue is not properly before us. We disagree.

After hearing the parties’ arguments, the District Court determined that Drake’s testimony was admissible pursuant to the hearsay exceptions contained in subsections (4) and (24) of Rule 803, M.R.Evid. Henderson subsequently preserved his objection that the testimony was inadmissible pursuant to Rule 803(24), M.R.Evid., on the record prior to Drake’s direct examination. This procedure meets the requirement of Rule 103(a)(1), M.R.Evid., that a specific objection appear of record. Counsel are not required to restate an objection once it has been made and preserved. We conclude that this issue is properly before us.

Henderson urges the application of our 1991 Harris decision to resolve the issue of whether Drake’s testimony repeating A.C.’s statements identifying Henderson as the perpetrator was properly admitted. He contends that, under Harris, this testimony is inadmissible pursuant to the Rule 803(24), M.R.Evid., exception because A.C.’s own testimony at trial was the most probative evidence on the subject. The State does not address this issue separately but merely restates its opposition to applying any decisions retroactively to the time of the 1988 trial in this case.

No retroactive application is necessary to conclude that Drake’s testimony in this regard was inadmissible hearsay. Henderson was convicted on June 10,1988, and was scheduled to appear for sentencing on August 18,1988. Had he appeared for sentencing and thereafter appealed his conviction, our decision in State v. J.C.E. (1988), 235 Mont. 264, 767 P.2d 309, clearly would have applied to Henderson’s appeal.

In J.C.E., the district court excluded as hearsay a counselor’s testimony regarding a child incest victim’s out-of-court statements identifying the defendant as the perpetrator. On appeal, the State argued that the counselor’s testimony was admissible pursuant to Rule 803(4), M.R.Evid., the medical diagnosis and treatment exception to the hearsay rule. J.C.E., 767 P.2d at 313. We refused to expand that exception to allow the admission of a child’s hearsay statements regarding alleged incidents of sexual abuse through the testimony of a family counselor even where, as in J.C.E., the child victim did not testify at trial. J.C.E., 767 P.2d at 313. Our decision was based on the conclusion that the circumstantial guarantee of trustworthiness underlying the medical treatment exception is “less forceful” in cases involving children because a “child might not comprehend the necessity of telling a doctor the truth in order to aid diagnosis and treatment.” J.C.E., 767 P.2d at 314.

The District Court in this case faced a situation similar to that presented by J.C.E. in that the State sought to admit A.C.’s hearsay statements identifying Henderson as the perpetrator through Drake’s testimony. Here, the District Court admitted the testimony pursuant to Rule 803(24), M.R.Evid., the catch-all exception to the hearsay rule which allows admission of statements having circumstantial guarantees of trustworthiness comparable to the other exceptions listed in Rule 803. It reasoned that a child’s statements to a family counselor possessed a circumstantial guarantee of trustworthiness comparable to statements made to a medical doctor which are admissible pursuant to Rule 803(4), M.R.Evid. Having rejected such testimony in J.C.E., under the more direct Rule 803(4), M.R.Evid., exception for lack of sufficient guarantees of trustworthiness, we cannot conclude that the testimony at issue here possessed sufficient guarantees of trustworthiness to warrant admission under the “other exceptions” provided in Rule 803(24), M.R.Evid. We hold, therefore, that the District Court abused its discretion by admitting Drake’s testimony repeating A.C.’s hearsay statements identifying Henderson as the perpetrator.

Henderson raises two additional issues: whether the District Court had authority to amend the written judgment and whether the twenty-year sentence for accountability for incest was lawful. Our resolution of the above issues renders it unnecessary to address the additional issues.

Reversed and remanded for entry of a directed verdict of acquittal on the charge of accountability for incest and for a new trial on the charge of sexual intercourse without consent.

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


author: JUSTICE WEBER

text:
    ROCKY MOUNTAIN TIMBERLANDS, INC., a Montana Corporation, Plaintiff and Appellant, v. BETTY T. LUND, as County Clerk and Recorder of Ravalli County, Montana, Defendant and Respondent.
    No. 93-539.
    Submitted on Briefs April 7, 1994.
    Decided July 12, 1994.
    51 St.Rep. 653.
    877 P.2d 1018.
    265 Mont. 463.

      For Plaintiff and Appellant: John J. Jardine, Jardine & Fehlig, Whitehall; Patrick Dougherty, Worden, Thane & Haines, Missoula.
    For Defendant and Respondent: George H. Corn, Ravalli County Attorney, Gerald D. Williams, Deputy County Attorney, Hamilton.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a denial of writ of mandamus by the Twenty-First Judicial District Court, Ravalli County. We affirm.

We consider the following issues on appeal:

I. Did the District Court err in determining that a landowner cannot legally divide a large parcel of land into smaller parcels by executing a deed in which the grantor and the grantee are the same party?

II. Did the District Court err by determining that the Clerk and Recorder properly refused to record the deed in question and, therefore, a writ of mandamus was not appropriate?

The facts of this case are not disputed. Rocky Mountain Timber-lands, Inc. (RMT) is a Montana corporation located in Bozeman. It is engaged in the acquisition and subdivision of Montana land which is then marketed nationwide.

RMT bought several large tracts of land totalling 580 acres in rural Montana, located about one mile east of the town of Stevensville in Ravalli County. On February 25, 1993, RMT tendered 27 quitclaim deeds to the Ravalli County Clerk and Recorder, Betty T. Lund. The 27 deeds were all similar and had RMT listed as both grantor and grantee on each one. The deeds purport to quitclaim a l/32nd part of a government section (a 20-acre tract) of the aforementioned 580 acres of land purchased by RMT. Included in the 27 deeds recorded on February 25, 1993, was a deed describing the Sl/2,NWl/4,SEl/4 of Section 22, Township 9 North, Range 19 West, P.M.M. (20 acres) as an unsegregated part of the SE1/4 of Section 22.

Following her filing of these 27 deeds, the Clerk sought a legal opinion from the county attorney on the advisability of recording these 27 deeds in which the grantor and grantee were the same entity. The county attorney advised the Clerk that, in his opinion, these deeds were ineffective to pass property and, in essence, were void instruments unless the deeds had modified the nature of the interests held by the grantor and grantee.

On April 6,1993, the legislature changed certain definitions within the statutes pertaining to the Subdivision and Platting Act. The amendments, Chapter 272, Laws of Montana, 1993, define “subdivision” as “a division of land or land so divided which creates one or more parcels containing less than 160 acres ...” This new limit of 160 acres within this definition effectively means that a plat must be filed of record before title to subdivided ground — any piece smaller than the 160 acres — can be sold or transferred. The prior statutory limit was 20 acres.

On April 20,1993, fourteen days after the new amendments to the Act went into effect, RMT made a deed conveying the Sl/2,NWl/4,SEl/4 of Section 22, T9N, R19W, to John Jardine. RMT attempted to have the deed recorded on April 22,1993, but the Clerk refused to accept it on the basis that it was not in compliance with the 1993 Legislature’s changes to the Montana Subdivision and Platting Act (the Act), §§ 76-3-101, et.seq., M.C.A. The Clerk took the position that because the underlying 20-acre deed purporting to convey the segregated parcel to RMT did not meet the requirements of the Act, any subsequent deed purporting to convey the parcel would first have to fall into compliance with the Act. Thus, because the 20 acre tract had not been surveyed, it could not be recorded.

On May 24, 1993, RMT petitioned the Ravalli County District Court for a Writ of Mandamus directed to the County Clerk. The Clerk appeared before the District Court on June 17, 1993, and contested the Writ. The parties stipulated to the facts of the case and submitted the case to the court on August 12, 1993, without a hearing.

The court issued its Memorandum and Judgment on August 27, 1993, concluding that RMT’s prior 27 quitclaim deeds to itself were void and inoperative for any purpose whatsoever, including the division of RMT’s lands into 20-acre parcels, and that RMT’s subsequent warranty deed failed to comply with Montana’s Subdivision Act as amended by the 1993 Legislature.

The District Court quashed, vacated, and set aside the Writ of Mandamus and affirmed the Clerk’s refusal to record RMT’s subsequent warranty deed. RMT appeals the August 27,1993 judgment of the District Court.

Standard of Review

Both issues which we here review concern matters of legal interpretation. We review the district courts’ legal interpretations as to whether they are correct. Steer Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

I.

Did the District Court err in determining that a landowner cannot legally divide a large parcel of land into smaller parcels by executing a deed in which the grantor and the grantee are the same party?

Appellant argues that the common law rule prohibiting the grantor and grantee of a land conveyance from being the same person is not followed in Montana because the legislature has made conveyancing subject to statutes. The appellant further argues that our statutes do not forbid the grantor and grantee being the same person. According to appellant, Montana has eliminated the requirement that the grantor and grantee in any land conveyance must be different persons, refusing to require a “strawman” in situations where land is conveyed by one person to himself or herself.

Respondents argue that the conveyancing law in Montana is statutory and the statutes do not abrogate the common law but incorporate it by reference. The District Court pointed out that the English common law held that a man cannot make a conveyance to himself. In further considering this aspect, the District Court determined that the cases involving establishment or severance of a joint tenancy are not applicable because a joint tenancy involves a conveyance of a different, or lesser, estate than the original one.

We do not consider common law concerning joint tenants because resolution of this issue pivots on purely statutory grounds. “The statutes establish the law of this state ...” Section 1-2-103, MCA. It is undisputed, here, that RMT’s whole purpose in recording the 27 deeds was to divide its 580 acre tract into smaller parcels minimally large enough to avoid the survey and platting requirements of the Subdivision and Platting Act then in effect. The Montana Subdivision and Platting Act in effect at the time of the original filing of the 27 alleged deeds is specific as to the ways in which land in this state can be divided:

(3) “Division of land” means the segregation of one or more parcels of land from a larger tract held in single or undivided ownership by transferring or contracting to transfer title to or possession of a portion of the tract or properly filing a certificate of survey or subdivision plat establishing the identity of the segregated parcels pursuant to this chapter. (Emphasis added.)

Section 76-3-103(3), MCA (1991).

Since 1895, the word “transfer” in connection with any conveyance of real property has been defined by Montana statute as follows:

Transfer defined. Transfer is an act of the parties or of the law by which the title to property is conveyed from one living person to another. (Emphasis added.)

Section 70-1-501, MCA (1991). Under the statute, a “transfer” of land requires a conveyance of title from one person to another. If the persons are the same, then a “transfer” does not occur. If there is no “transfer,” then there is no division of land under § 76-3-103(3), MCA.

We affirm the holding of the District Court that a landowner cannot divide a large parcel of land into smaller parcels by executing a deed in which the grantor and grantee are the same party.

II.

Did the District Court err by determining that the Clerk and Recorder properly refused to record the deed in question and, therefore, a writ of mandamus was not appropriate?

Appellant argues that the Clerk and Recorder had no discretion in recording the deed. According to appellant, the Clerk was under a statutory duty to record the deed so long as its fee was paid and it met statutory requirements.

Respondent contends that the Clerk was under a legal duty not to accept an improper deed.

The District Court found that the Clerk and Recorder had no mandatory duty to record every document presented to her office that is labeled a “deed.” Clerks are required only to record documents “authorized by law to be recorded.” Section 7-4-2617(1), MCA. The court determined that the legislative intent behind the statutes concerning the Clerk and Recorders’ duties is that judgments without affect on the title of or possession of real property are not necessarily recordable. Section 70-21-201(1), MCA. According to the court, the entire recording system is built upon the notion of notice of ownership to property. Therefore, it serves no purpose to have a Clerk record an erroneous deed because such action projects wrong information. A Clerk may refuse to record a deed if the Clerk has legal justification to do so. We agree.

The statute that covers the general procedures of the Clerk and Recorder to record documents states in part:

Procedure to record documents. (1) When any instrument, paper, or notice authorized by law to be recorded is deposited for record in the office of the county clerk, as ex officio recorder, and accompanied by the required fee, he must endorse upon the same the time it was received, noting the year, month, day, hour, and minute of its reception, and the reception of the instrument must be immediately entered in the county clerk and recorder’s reception book. (Emphasis added.)

Section 7-4-2617(1), MCA. This statute puts a caveat onto the mandatory duty of a clerk: the paper filed must be authorized by law. When a paper is not authorized by law, the statute does not hold the clerk to the requirement.

This interpretation is borne out by a more specific directive within the Montana Subdivision and Platting Act concerning clerks and recorders:

Restrictions on recording instruments relating to land subject to surveying requirements. (1) Except as provided in the subsection (2), the county clerk and recorder of any county may not record any instrument which purports to transfer title to or possession of a parcel or tract of land which is required to be surveyed by this chapter unless the required certificate of survey or subdivision plat has been filed with the clerk and recorder and the instrument of transfer describes the parcel or tract by reference to the filed certificate or plat.

Section 76-3-302(1), MCA. We have interpreted this statute to mean that the clerk and recorder has a mandatory duty not to accept and record an otherwise proper deed if it fails to comply with the survey requirement. Huttinga v. Pringle (1983), 205 Mont. 482, 668 P.2d 1068. This clerk responsibility is in line with the general purpose of the Act in regulating subdivisions on a local level. Section 76-3-102, MCA.

A former case presents the situation in which a smaller parcel of land had been segregated from the original tract and consisted of acreage less than the then required limit for suspension of a survey. See McDonald v. Jones (1993), 258 Mont. 211, 852 P.2d 588. The Clerk in McDonald did record the deed without having the statutorily required plat filed of record. We determined that the Clerk should not have recorded the deed because it did not have a plat filed of record and thus did not meet the requirements of the Act. McDonald, 258 Mont. at 215, 852 P.2d at 591.

In the present case, the Clerk recorded the original 27 deeds and then sought an answer to her question concerning whether such deeds were valid. Upon discovering that they were not valid and that the 27 pieces of paper alleged to be deeds had no effect at all, the Clerk subsequently refused to accept for filing and record the ensuing 20-acre deed because she did not have a statutorily required plat filed of record as required by the Act. The statute in effect at the time of the attempted transfer of the 20-acre deed required that any piece of property less than 160 acres must have a plat or survey filed of record before the clerk was “required” to record the deed. The Clerk properly refused to record the 20-acre deed because the original 27 deeds from RMT to RMT had no effect and thus, the ensuing 20-acre deed to Jardine was invalid.

We hold that the District Court did not err by determining that the Clerk and Recorder properly refused to record the deed in question.

We further hold that because the Clerk performed her official duties properly, the court did not err in refusing to issue a writ of mandamus. Section 27-26-102, MCA.

Affirmed.

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


author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    ESTATE OF ROBERT N. NIELSEN, JR., Deceased, Plaintiff and Appellant, v. MICHAEL H. PARDIS, d/b/a PARDIS CHIROPRACTIC CLINIC, Defendant and Respondent.
    No. 93-621.
    Submitted on Briefs May 5, 1994.
    Rehearing Denied July 26, 1994.
    Decided July 1, 1994.
    51 St.Rep. 591.
    878 P.2d 234.
    265 Mont. 470.

      For Appellant: Jeannette Ellen Berry, Berry Law Firm, Bozeman.
    For Respondent: Steve Reida, Landoe, Brown, Planalp & Braaksma, Bozeman.
   JUSTICE GRAY

delivered the Opinion of the Court.

The Estate of Robert N. Nielsen, Jr., appeals from orders of the First Judicial District Court, Lewis and Clark County, granting Michael H. Pardis’ motion for summary judgment and denying its motion for relief from judgment or, alternatively, to alter or amend the judgment. We affirm.

A brief factual and procedural outline of this case will set the stage for the legal issues before us. While Robert Nielsen (Nielsen) and his wife June were vacationing in Montana in August of 1988, Nielsen was treated by Michael H. Pardis, a chiropractic physician in Helena, Montana, doing business as Pardis Chiropractic Clinic (Pardis). Pardis treated Nielsen over a span of several days; x-rays were taken, and examinations and manual manipulations were performed.

Nielsen filed his chiropractic malpractice complaint on August 8, 1991, alleging that his right clavicle was subluxed, dislocated or broken from his sternum by Pardis’ treatments. Pardis answered in December of 1991, denying that he breached the duty of care and that Nielsen was injured as a result. Nielsen died in January, 1992, and the Estate of Robert N. Nielsen, Jr. (the Estate), subsequently was substituted as plaintiff. Nielsen’s death was not related to the chiropractic malpractice alleged in this case.

The case proceeded through the usual pre-trial stages. Discovery was to close on November 13,1992, with trial set for February 1,1993. On the Estate’s motion, discovery was extended until January 15, 1993, and the trial was rescheduled for February 22,1993. The Estate moved to continue that trial date because June Nielsen had broken her ankle and was unable to travel. Over Pardis’ objection, the court rescheduled the trial for September 7, 1993. The discovery deadline of January 15, 1993, was not extended.

On July 30, 1993, with approximately five weeks remaining until the trial date, Pardis filed his motion for summary judgment. He asserted entitlement to summary judgment based on the Estate’s failure to produce evidence of the applicable standard of care, any violation of that standard, and causation. The motion was heard on August 27, 1993. On the date of the hearing, Pardis conducted a deposition of Woodrow Fowler, D.C. (Fowler), the Estate’s expert witness. He also conducted a deposition of June Nielsen four days later. On September 1, 1993, the District Court granted Pardis’ motion for summary judgment; the court’s memorandum of decision followed on September 17,1993.

The Estate filed its alternative Rule 60(b) and Rule 59(g), M.R.Civ.P, motion on September 27, 1993, In conjunction with its motion, the Estate requested Pardis to file or make available for filing the depositions of Fowler and June Nielsen, asserting that the deposition testimony constituted newly discovered evidence. Pardis objected to the filing of the depositions. The District Court denied the Estate’s motion for relief from or, alternatively, to alter or amend the summary judgment. The Estate appeals.

Did the District Court err by granting summary judgment for Pardis?

The District Court granted summary judgment to Pardis based on the Estate’s failure to produce expert medical testimony regarding the applicable standard of care and a violation of that standard. The court declined to apply the doctrine of res ipsa loquitur to establish the Estate’s malpractice claim.

Our standard for reviewing a grant of summary judgment is the same as that used by the district court. Emery v. Federated Foods, Inc. (1993), 262 Mont. 83, 90-91, 863 P.2d 426, 431. We determine whether there is an absence of genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. The party moving for summary judgment has the initial burden of establishing the absence of any genuine issue of fact and entitlement to judgment as a matter of law. Brinkman and Lenon v. P & D Land Enterprises (1994), 263 Mont. 238, 242, 867 P.2d 1112, 1115, 51 St.Rep. 36, 37. The burden then shifts to the nonmoving party to set forth specific facts, by affidavit or as otherwise provided in Rule 56, M.R.Civ.P, establishing a genuine issue of material fact. Minnie, 849 P.2d at 214.

As the party moving for summary judgment, Pardis met his burden. He demonstrated that there was no genuine issue as to any material fact because the Estate had not established a prima facie medical malpractice claim; it failed to produce the expert medical testimony regarding standard of care and departure from that standard generally required in malpractice cases. Mont. Deaconess Hosp. v. Gratton (1976), 169 Mont. 185, 189, 545 P.2d 670, 672; Baylor v. Jacobson (1976), 170 Mont. 234, 240, 552 P.2d 55, 58. The burden then shifted to the Estate to establish a genuine issue of material fact regarding the malpractice claim.

The Estate does not contend that it met this burden by affirmatively producing the required expert medical testimony. The Estate contends, however, that the District Court erred in failing to conclude that it had presented a prima facie case under the doctrine of res ipsa loquitur. We disagree.

While res ipsa loquitur “permits proof of what happened to be made by circumstantial evidence,” plaintiff is still required to present a prima facie case that defendant breached a duty of care. Clark v. Norris (1987), 226 Mont. 43, 48, 734 P.2d 182, 185. We have specifically rejected the notion that res ipsa loquitur can be used to supplant the expert testimony regarding standard of care and breach thereof required in a malpractice case. Dalton v. Kalispell Reg. Hospital (1993), 256 Mont. 243, 248, 846 P.2d 960, 963.

Furthermore, we agree with the District Court that a causal connection between the purported negligence and the injury must be established before res ipsa loquitur can be applied. The doctrine of res ipsa loquitur provides:

“[W]hen an instrumentality which causes injury without any fault of the injured person, is under the exclusive control of the defendant at the time of the injury, and the injury is such as in the ordinary course of things does not occur if one having such control uses proper care, then the law infers negligence on the part of the one in control as the cause of the injury.”

Clark, 734 P.2d at 185 (emphasis added, citations omitted).

Here, the Estate presented no evidence prior to the court’s grant of summary judgment that Pardis’ chiropractic treatment caused the dislocation of Nielsen’s clavicle from his sternum. Indeed, the record reflects the opposite. X-rays taken in August of 1988, February of 1989, and August of 1991, and a chest CT scan taken in February of 1989, did not reveal a separation in the joint. While M. Brooke Hunter, M.D., who examined Nielsen shortly after the chiropractic treatment, diagnosed a sternoclavicular joint aggravation, he could not determine its cause. Absent a causal connection, the Estate cannot rely on res ipsa loquitur to infer negligence by Pardis.

Because the Estate failed to produce medical expert testimony establishing the applicable standard of care and a departure from that standard, it did not make a factual showing placing Pardis’ breach of a standard of care at issue. Thus, the core element of a medical malpractice claim is missing and Pardis is entitled to summary judgment as a matter of law. We hold that the District Court did not err by granting summary judgment in his favor.

Did the District Court err by refusing to grant the Estate’s motion for relief from or, in the alternative, to alter or amend the summary judgment?

Pardis conducted depositions of Fowler, the Estate’s expert witness, and June Nielsen on August 27 and 31,1993, respectively. The depositions were not transcribed or part of the record at the time of the summary judgment hearing or when the court granted summary judgment to Pardis on September 1,1993.

According to the Estate, Fowler’s deposition testimony established that it was more likely than not that Pardis’ failure to meet the applicable standard of care caused Nielsen’s sternoclavicular injury and that June Nielsen’s deposition testimony generally supported that position. On the basis of this “newly discovered” evidence, the Estate moved for relief from judgment under Rule 60(b)(2) and (6), M.R.Civ.P. Alternatively, it moved the court to alter or amend the judgment under Rule 59(g), M.R.Civ.P.

Rule 60(b), M.R.Civ.P., Motion for Relief from Judgment

The District Court determined that the Estate could not request relief from judgment under both subsections (2) and (6) of Rule 60(b), M.R.Civ.P., relying on Koch v. Billings School Dist. No. 2 (1992), 253 Mont. 261, 833 P.2d 181. On that basis, the court considered the Estate’s motion solely under Rule 60(b)(2), M.R.Civ.P. It declined to grant relief under that provision, determining that the deposition testimony of Fowler and June Nielsen was neither new evidence nor evidence which could not have been produced with due diligence.

Our review of a district court’s decision to grant or deny a Rule 60(b) motion depends on the issues involved. Where, as in the case before us, the district court engages in the discretionary appraisal or weighing of the facts to dispose of the motion, we determine whether the district court abused its discretion. Marriage of Barnes (1992), 251 Mont. 334, 336, 825 P.2d 201, 203.

The Estate first contends that the District Court erred by failing to allow alternative grounds for relief from judgment under subsections (2) and (6) of Rule 60(b), M.R.Civ.P. We disagree.

The first five subsections of Rule 60(b), M.R.Civ.P., set forth specific bases pursuant to which a court may relieve a party from a final judgment. Under subsection (2), such relief may be granted in the event of “newly discovered evidence which by due diligence could not have been discovered in time ...” Subsection (6) allows a judgment to be set aside for “any other reason justifying relief from the operation of the judgment.”

In Koch, we stated that a party cannot seek relief under Rule 60(b)(6), M.R.Civ.P., if it seeks relief under any other subsection of the rule. Koch, 833 P.2d at 183. We subsequently have clarified that a party is precluded from seeking relief under Rule 60(b)(6), M.R.Civ.P., when the facts or circumstances would bring the case under one of the first five subsections. Moulding v. Hardman (1993), 257 Mont. 18, 25, 847 P.2d 292, 297. Here, the Estate premised its entitlement to relief under subsection (6) on the purported “newly discovered” evidence which formed the basis for its subsection (2) request for relief. Because the Estate’s subsection (6) request was based on the same facts as its subsection (2) request, the District Court properly considered the Estate’s motion for relief from judgment solely under Rule 60(b)(2), M.R.Civ.P.

The Estate next contends that Halse v. Murphy (1989), 237 Mont. 509, 774 P.2d 418, mandates relief from judgment under Rule 60(b)(2), M.R.Civ.P. In Halse, a physician moved for summary judgment based on plaintiff’s failure to produce expert medical testimony to support her medical malpractice claim. Before the physician’s motion could be ruled on, plaintiff’s counsel withdrew. Her subsequent attorney requested and received three extensions to obtain expert medical testimony and to respond to the summary judgment motion. When a response was not filed within the allotted time, the district court dismissed plaintiff’s malpractice claim.

One month later, plaintiff obtained the affidavit of a medical expert indicating negligence by the treating physician and moved for relief from judgment under Rule 60(b)(2), M.R.Civ.P. In support of the motion, plaintiff’s attorney testified by affidavit that plaintiff “had made every effort” to locate expert testimony to support the malpractice claim. The district court denied the motion.

We reversed the district court, determining that the medical testimony obtained by plaintiff was “newly discovered” evidence under Rule 60(b), M.R.Civ.P. We emphasized that the failure to produce such evidence prior to the court’s grant of summary judgment was not caused by the plaintiff’s lack of due diligence, observing that plaintiff had sought several extensions over a period of years to obtain the required expert testimony to defend against summary judgment. Halse, 774 P.2d at 422. Plaintiff’s medical expert also testified that he was unable to render an opinion concerning plaintiff’s malpractice claim prior to the grant of summary judgment because he had not had the opportunity to review the notes and records of plaintiff’s treating physician. Halse, 774 P.2d at 422-23.

Halse is clearly distinguishable from the case before us. Here, the Estate did not exercise due diligence in producing the required expert testimony. It had obtained its expert by at least the January 4,1993, disclosure of his name to Pardis via discovery. Notwithstanding, the record indicates that the Fowler affidavit submitted by the Estate in opposition to Pardis’ summary judgment motion did not contain the required medical testimony.

Moreover, to the extent June Nielsen’s testimony regarding breach of any applicable standard of care was at all relevant, she was an obvious witness for the Estate from the outset of the lawsuit in August of 1991. The Estate advances no explanation — much less a compelling one — for its failure to produce the required testimony from its own witnesses. Indeed, the record does not contain any affidavit indicating that the Estate had made every effort to locate and produce the necessary expert testimony as was the case in Halse.

The Estate also contends that State Medical Oxygen & Supply, Inc. v. American Medical Oxygen Co. (1988), 230 Mont. 456, 750 P.2d 1085, required the District Court to consider the Fowler and June Nielsen depositions when ruling on Pardis’ motion for summary judgment. However, that case does not address Rule 60(b)(2), M.R.Civ.P. and, thus, provides no support for the Estate’s position that the deposition testimony of Fowler and June Nielsen constitutes “newly discovered” evidence under that rule.

Furthermore, Medical Oxygen is distinguishable from the case before us. There, we determined that the district court’s failure to consider three depositions taken the morning of the summary judgment hearing was fatal to its grant of summary judgment against the plaintiff. Medical Oxygen, 750 P.2d at 1089. Although the factual basis on which Medical Oxygen was decided is not entirely clear from the opinion, the appeal briefs indicate that the plaintiff scheduled and conducted the depositions. In addition, as the opinion notes, the plaintiff specifically did not waive the introduction and consideration of the depositions as relevant to the summary judgment issue. Medical Oxygen, 750 P.2d at 1088.

Here, on the other hand, it was Pardis, not the Estate, who scheduled and conducted the depositions, presumably to timely prepare for trial in the event he did not prevail on summary judgment. In addition, nothing in the record before us suggests that the Estate timely requested the court to postpone its decision until the as yet unavailable (and, as to June Nielsen, untaken) depositions were transcribed. Nothing in Medical Oxygen required the District Court to consider these depositions at either the summary judgment or post-trial motion stage of the proceedings.

We conclude that the Estate’s failure to exercise due diligence in producing the testimony it needed to withstand summary judgment precludes the Fowler and June Nielsen depositions from being “newly discovered” evidence under Rule 60(b)(2), M.R.Civ.P. We hold, therefore, that the District Court did not abuse its discretion in denying the Estate’s motion for relief from judgment.

Rule 59(g) Motion to Alter or Amend Judgment

The District Court did not rule on the Estate’s Rule 59(g), M.R.Civ.P., motion to amend the judgment and, therefore, it was deemed denied by operation of law. The amendment of a judgment is within the discretion of a district court. See Marriage of Grounds / Coward (1993), 256 Mont. 397, 402-03, 846 P.2d 1034, 1037-38; Marriage of Vakoff (1992), 252 Mont. 56, 59-60, 826 P.2d 552, 554. Thus, we review the District Court’s denial of the Estate’s motion to amend for an abuse of discretion. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603.

In neither the District Court nor this Court has the Estate advanced any basis for amending the summary judgment apart from the arguments supporting its motion for relief from judgment. Because we have determined that the court properly declined to grant relief from judgment under Rule 60(b)(2), M.R.Civ.P., we hold that the court did not abuse its discretion in denying the Estate’s Rule 59(g), M.R.Civ.P, motion to amend the judgment.

Affirmed.

JUSTICES HARRISON, HUNT and WEBER concur.

JUSTICE TRIEWEILER

specially concurring.

I concur that based on the facts in this case, the doctrine of res ipsa loquitur was inapplicable and that based on lack of proof that the defendant was negligent, the District Court properly granted summary judgment.

I don’t agree that professional negligence may not under other circumstances be established by the doctrine of res ipsa loquitur and without expert testimony.

I also agree that the District Court did not abuse its discretion when it denied the estate’s motions under Rules 60(b)(2) and 59(g), M.R.Civ.P., and therefore concur with the result of the majority opinion.


author: JUSTICE GRAY JUSTICE NELSON

text:
    DAVID K. CLARK, Missoula County Justice of the Peace, Petitioner and Respondent, v. ANN MARY DUSSAULT, BARBARA EVANS and JANET STEVENS, Missoula County Commissioners, Respondents and Appellants, and ANNE P. GUEST, Intervenor and Appellant.
    No. 93-451.
    Submitted on Briefs May 23, 1994.
    Rehearing Denied Aug. 4, 1994.
    Decided July 12, 1994.
    51 St.Rep. 642.
    878 P.2d 239.
    265 Mont. 479.

      For Intervenor and Appellant: Larry Jones, Missoula.
    For Petitioner and Respondent: Stacey Weldele-Wade, Milodragovich, Dale & Dye, Missoula.
    For Respondents and Appellants: Nancy K. Moe, Ellingson & Moe, and Michael W. Sehestedt, Deputy County Attorney, Missoula.
    For Amici Curiae: Jim Nugent, City Attorney, City of Missoula, Missoula (Missoula and League of Cities and Towns)
   JUSTICE GRAY

delivered the Opinion of the Court.

Anne Guest (Guest) and the Missoula County Board of Commissioners (County Commissioners) appeal from the grant of summary judgment to David Clark (Clark) by the Fourth Judicial District Court, Missoula County. The summary adjudication was based on the court’s conclusion that Clark was not bound by the grievance procedures applicable to county employees because of his inherent authority as Justice of the Peace and the doctrine of judicial immunity. Clark cross-appeals the court’s denial of his motion to amend the judgment to add an award of attorneys’ fees. We reverse the court’s grant of summary judgment and affirm its denial of the motion to amend the judgment.

Guest was employed by Missoula County as office manager for the Missoula County Justice Court (Justice Court). The Justice Court is comprised of Courts 1 and 2, presided over by Clark and Michael Morris (Morris), respectively. In May of 1991, Clark presented a “supervisory plan” to Guest, setting forth new guidelines and priorities to be followed by her and the clerical staff in Court 1. Morris declined to implement the plan in Court 2.

Several weeks later, Clark felt that Guest was not attempting to institute the desired changes and verbally reprimanded her. Guest submitted a six-page memorandum responding to the verbal reprimand and, while Clark was on vacation during the last part of June, detailed her role as manager under the supervisory plan to the clerical staff.

Early in July, County Commissioners Ann Mary Dussault (Dussault), Barbara Evans (Evans) and Janet Stevens (Stevens) requested Clark to attend a meeting to address concerns raised by his clerical staff. Before that meeting could be held, Clark scheduled a meeting with his staff to resolve their differences. Stevens and Dussault advised Clark that they would attend any such meeting. Two meetings were held; one was attended by Dussault, Stevens, Clark and his clerical staff, including Guest, and the other by all three County Commissioners, Clark, members of the Personnel Department, and Deputy County Attorney John Devore.

Subsequent to the meetings, Clark placed a written reprimand in Guest’s personnel file. In the reprimand, Clark stated that Guest was insubordinate because she failed to implement the supervisory plan, made unconscionable misrepresentations in her six-page memorandum, and disrupted the clerical staff. He also indicated that further disciplinary action was being contemplated.

Clark remained unhappy with Guest’s implementation of his supervisory plan. On August 12,1991, he suspended Guest without pay for seven days. Morris refused to acknowledge the suspension and directed Guest to continue working. The Missoula County Personnel Department also directed Guest to ignore the suspension absent an agreement by both justices of the peace.

Guest filed a grievance to contest the suspension on August 16, 1991, pursuant to the Missoula County Personnel Policies Manual (County Manual). She sought to have the notice of suspension and all related documents removed from her file. A grievance hearing before the County Commissioners was scheduled for December 19, 1991. The County Commissioners refused Clark’s request to recuse themselves from hearing the grievance.

On December 17, Clark filed separate petitions for a writ of prohibition and an alternative writ of prohibition requesting the District Court to order the County Commissioners to stop interfering with his operation of Court 1. The District Court immediately issued the alternative writ, cancelling the grievance hearing scheduled two days later. The court also ordered the County Commissioners to appear at a January 10,1992, hearing and show cause why a permanent writ should not be issued. The show cause hearing subsequently was continued and, apparently, never held.

In J anuary of 1992, Guest filed a motion to intervene in the District Court proceeding pursuant to Rule 24(a), M.R.Civ.P. She argued that she was entitled to a hearing regarding Clark’s disciplinary action under notions of due process and that her participation in the litigation was necessary to protect that interest in light of the court’s cancellation of the grievance hearing. Clark opposed the motion.

While Guest’s motion was pending, Clark filed an amended petition. In addition to the permanent writ of prohibition previously requested, Clark sought declaratory relief. He requested the court to determine that he had the inherent authority to suspend Guest under §§ 3-1-111 and 3-1-113, MCA, without interference by the County Commissioners and that judicial immunity, codified at § 2-9-112(2), MCA, precluded Guest’s grievance. He also requested reimbursement of his attorneys’fees and court costs.

On February 12, 1992, the District Court granted Guest’s motion to intervene. Shortly thereafter, the court issued an order dissolving the alternative writ of prohibition and establishing interim operating procedures for the Justice Court. Pursuant to the order, Guest’s employment as office manager continued, but only in relation to the operation of Morris’ court. The order prohibited all contact between Clark and Guest.

Following the filing of stipulated facts in October of 1992, Clark moved for summary judgment. Respondents and Guest opposed the motion and, in November, filed separate cross-motions for summary judgment. On May 10, 1993, the District Court granted Clark’s motion for summary judgment, concluding that he did not have to comply with the grievance procedures because they interfered with his inherent authority to ensure the proper functioning of the Justice Court. The court also concluded that judicial immunity precluded Guest from maintaining her grievance against Clark.

The judgment entered by the court on its grant of summary judgment did not award attorneys’ fees and costs to Clark. He subsequently moved the court to amend the judgment pursuant to Rule 59(g), M.R.Civ.P., to include such an award. The motion was denied.

Guest and the Commissioners appeal the District Court’s grant of summary judgment to Clark. Clark cross-appeals, asserting error in the court’s denial of his motion to amend the judgment. The Montana League of Cities and Towns and the City of Missoula appear as amici curiae.

As a threshold matter, we address Clark’s contention that this case is moot because Guest left county employment in June of 1993. A case may become moot for the purpose of appeal where it has lost any practical importance to the parties because of a change in circumstances prior to the appellate decision. Matter of T.J.F. (1987), 229 Mont. 473, 475, 747 P.2d 1356, 1357. Aparty seeking to establish that an issue raised on appeal is moot has a heavy burden. Butte-Silver Bow Local Gov’t v. Olsen (1987), 228 Mont. 77, 82, 743 P.2d 564, 567.

Pursuant to Clark’s request for declaratory relief, the District Court determined he had the inherent authority to discipline and discharge court personnel without consulting with the County Commissioners. It also determined that judicial immunity barred the filing of a grievance against Clark, the final step of which is a review by the County Commissioners. Guest’s departure from county employment does not negate the legal effect of the District Court’s judgment on Clark’s relationship with the Commissioners and, therefore, does not render the case moot as to them.

Nor is this appeal moot as to Guest. She filed her grievance when she was a county employee pursuant to the grievance provisions of the County Manual. Clark cites no authority for his position that Guest’s right to maintain the grievance terminated when she left county employment. Thus, the District Court’s judgment barring a grievance against Clark pursuant to judicial immunity remains of practical importance to Guest. We conclude that this case is not moot.

Did the District Court err by granting summary judgment to Clark?

Our standard for reviewing a grant of summary judgment is the same as that used by the District Court. Emery v. Federated Foods (1993), 262 Mont. 83, 863 P.2d 426, 431. We determine whether there is an absence of genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. Here, summary judgment was based on stipulated facts filed by the parties. Thus, we focus on the court’s conclusions supporting the summary adjudication. Our review of legal conclusions is plenary. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

Inherent Power

According to the District Court, a justice of the peace has the inherent power to take steps necessary to ensure the proper functioning of the justice court, including the authority to make personnel decisions. Although the court recognized established personnel procedures are to be followed “as much as possible,” it stated that a justice of the peace could exercise inherent power when the established procedures failed, citing Hillis v. Sullivan (1913), 48 Mont. 320, 137 P. 392, and its progeny.

Applying those principles to the case before it, the District Court determined that Clark had adequately complied with the personnel procedures in the County Manual by following the progressive disciplinary steps. It concluded, however, that Clark did not have to comply with the grievance procedures because they were inconsistent with his inherent power.

Appellants contend the established personnel procedures that Clark was required to follow before exercising his inherent authority under Hillis included the grievance procedures. We agree.

Justice courts undoubtedly possess the inherent power to do those acts necessary to ensure their proper functioning. The concept of inherent power is codified at § 3-1-113, MCA, which provides that when jurisdiction is conferred on a court or judicial officer, all the means necessary for the exercise of that jurisdiction are also given.

A court’s exercise of inherent power, however, is not without limitations. In Hillis, we determined that a court could exercise its inherent power only when the established methods for addressing the court’s needs failed or when an emergency arose that was not remedied by the established methods. Hillis, 137 P. at 395. On that basis, we concluded that a district court could not exercise its inherent powers to obtain “attendants” necessary for the court’s functioning without first approaching the county commissioners or the sheriff, who were statutorily required to provide them. We subsequently have reiterated the limitations on a court’s exercise of its inherent power set forth in Hillis and consistently have required that inherent power be exercised only when established methods fail or an emergency arises. See Browman v. Wood (1975), 168 Mont. 341, 543 P.2d 184; Board of Commissioners v. Eleventh Jud. Dist. Court (1979), 182 Mont. 463, 597 P.2d 728; Butte-Silver Bow Local Gov’t v. Olsen (1987), 228 Mont. 77, 743 P.2d 564.

The established methods for disciplinary action against Guest, a county employee, are contained in the County Manual. Progressive disciplinary actions of oral reprimand, written reprimand or warning notice, suspension, demotion and dismissal are required. The disciplinary procedures also give the employee the right to grieve and appeal all disciplinary actions imposed. Thus, under Hillis, Clark was required to comply with these established methods — including the grievance process — before he could exercise the inherent powers of the court to suspend Guest.

Clark contends that a grievance hearing before the County Commissioners on Guest’s suspension would violate the separation of powers doctrine. According to Clark, the hearing would interfere with the independence of the court by requiring him to be an adverse witness against court personnel, allowing his decision on personnel matters to be overruled by another branch of government, and possibly requiring him to accept an employee he believes is unsatisfactory.

We disagree that the separation of powers doctrine precludes compliance with the grievance procedure. In Hillis, we determined that the county commissioners’ hiring of a clerk to assist the district court did not violate the separation of powers. We stated:

The separation of the government into three great departments does not mean that there shall be “no common link of connection or dependence, the one upon the other in the slightest degree” [citation omitted]; it means that the powers properly belonging to one department shall not be exercised by either of the others [citation omitted].

Hillis, 137 P. at 395. In addition, the County Commissioners are statutorily required to provide Clark with the clerical assistance necessary to perform his judicial duties. Sections 3-10-103 and 7-4-2401, MCA. Thus, the County Commissioners’ hiring of Guest to supervise Clark’s clerical staff is consistent with the separation of powers. We do not see how a grievance hearing before the County Commissioners regarding Clark’s suspension of Guest could violate the separation of powers doctrine when the County Commissioners’ independent hiring of Guest as office manager of the Justice Court is consistent with that doctrine. Furthermore, we are not persuaded that the County Commissioners’ hearing of a grievance constitutes an exercise of authority belonging to the judicial branch.

We hold that the District Court erred in concluding that Clark’s inherent power as a justice of the peace precluded a grievance hearing before the County Commissioners.

Judicial Immunity

The District Court concluded that Clark was entitled to judicial immunity for his suspension of Guest under Mead v. McKittrick (1986), 223 Mont. 428, 727 P.2d 517. Mead is distinguishable, however, from the present case.

In Mead, a newly-elected district court judge terminated the employment of his predecessor’s personal secretary in order to hire his own. We began our analysis by setting forth Montana’s codification of the common law doctrine of judicial immunity, whereby a judge is “immune from suit for damages arising from his lawful discharge of an official duty associated with judicial actions of the court.” Section 2-9-112, MCA. We observed that district court judges have the exclusive authority to choose their own secretaries because of the “distinct and unique status” a personal secretary occupies among court employees. Mead, 727 P.2d at 519. We concluded that the appointment and removal of a personal secretary — a “key court employee” — was a “judicial action” to which judicial immunity applied pursuant to the statute. Mead, 727 P.2d at 519.

Here, Guest is not a “key employee” under our Mead analysis. Guest was not a member of Clark’s personal staff over whom Clark had exclusive appointment and removal authority. She was hired by Missoula County. Furthermore, Guest was hired as an office manager for the combined Justice Court operations of Justices of the Peace Clark and Morris; as such, she was not the type of personal and “key” employee to both justices of the peace as the personal secretary was to the district court judge in Mead. Nor were her duties of the confidential and close nature of those generally associated with a personal secretary.

Because Guest was not a “key employee,” her suspension was not a judicial act entitled to immunity under Mead. We conclude that the District Court erred in applying judicial immunity to bar the maintenance of a grievance hearing regarding the suspension.

As a result of our conclusions on inherent authority and judicial immunity, no basis remains for the grant of Clark’s motion for summary judgment. Therefore, we hold that the District Court erred in granting summary judgment in Clark’s favor.

Did the District Court err by denying Clark’s motion to amend the judgment to award attorneys’ fees?

The District Court determined that Clark’s Rule 59(g), M.R.Civ.P., motion for attorneys’ fees was based on the County Commissioners’ alleged breach of a contract to pay such fees. The court declined to rule on the merits of the breach of contract claim, however, and determined that granting attorneys’ fees on the basis of the breach of contract claim was premature.

The amendment of a judgment is within the discretion of a district court. See Marriage of Grounds / Coward (1993), 256 Mont. 397, 402-03, 846 P.2d 1034, 1037-38; Marriage of Vakoff (1992), 252 Mont. 56, 59-60, 826 P.2d 552, 554. Thus, we review the District Court’s refusal to amend the judgment for an abuse of discretion. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04.

Clark first contends that the District Court was required to award attorneys’ fees based on his breach of contract claim. According to Clark, the County Commissioners entered into an agreement to pay his attorneys’ fees in November of 1991 and refused to pay the fees incurred after March 24, 1992.

The record indicates, however, that Clark did not raise the alleged breach of contract in his amended petition or motion for summary judgment or, indeed, at any time prior to the court’s entry of summary judgment in his favor. While Clark made a passing mention of the alleged agreement to pay attorneys’ fees in his 22-page Statement of Facts in Support of Motion for Summary Judgment, the motion itself contained no claim for attorneys’ fees based on a breach of contract theory. That claim was first raised in Clark’s motion to amend the judgment; even then, it was supported only by a postjudgment affidavit by Stacey Weldele-Wade (Weldele-Wade), Clark’s attorney, attached to his reply brief in support of his motion to amend the judgment. We agree with the District Court that it was premature to award attorneys’ fees based on a breach of contract claim that had not been raised and argued by the parties in any meaningful or appropriate fashion.

Furthermore, it is clear that the summary judgment could not be amended to award attorneys’ fees because a factual dispute exists regarding the scope of the parties’ agreement. Clark contends that the attorneys’ fees agreement was unconditional. The County Commissioners argue that the agreement pertained only to attorneys’fees incurred by Clark in regard to the grievance hearing. On that basis, they assert that the agreement allowed them to terminate the payments when it became clear that a grievance hearing was unlikely. In her affidavit, Weldele-Wade supported Clark’s position and, to the extent that she stated the County Commissioners approved payment of the attorneys’ fees “up to and through the date of the grievance hearing,” the County Commissioners’ position as well.

Clark also argues that the District Court erred by failing to award attorneys’fees under §§ 2-9-305(4), 27-26-403,7-4-2711(2) and 25-10-701, MCA. These claims fail for the same reason as his breach of contract claim. The statutes were not asserted as grounds for an award of attorneys’ fees prior to the court’s grant of summary judgment and, indeed, Clark first raised his § 25-10-701, MCA, claim in his reply brief in support of his motion to amend the judgment, giving the County Commissioners no opportunity to respond. Furthermore, Clark premised his § 7-4-2711(2), MCA, claim on the fact that he was unrepresented when the County Commissioners contracted counsel for Guest. This fact is not of record and, indeed, is disputed by the County Commissioners. For these reasons, an award of attorneys’ fees based on any of the statutes is premature unless and until an appropriate record is created and the parties have a full and fair opportunity to address the issues.

Finally, Clark argues that he was entitled to attorneys’ fees because he “effectively” obtained a writ of prohibition when the court declared that the grievance procedures were inconsistent with his inherent power and successfully prosecuted his judicial immunity claim. We decline to address these arguments based on our disposition of the first issue.

In Montana, attorneys’ fees generally will not be awarded absent an authorizing contractual provision or statute. Joseph Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 505, 605 P.2d 1107, 1112. Here, an adequate record has not been made regarding Clark’s breach of contract claim and the statutory claims which might provide a basis for an award of attorneys’ fees. Thus, the resolution of such claims is premature. We hold that the District Court did not abuse its discretion by denying Clark’s motion to amend the judgment to add an award of attorneys’ fees. We emphasize that nothing in this opinion should be construed as a comment on the merits of, or to foreclose Clark from pursuing, the breach of contract or statutory claims for attorneys’ fees.

Reversed in part, affirmed in part, and remanded for the entry of judgment consistent with this opinion.

JUSTICES HARRISON and HUNT concur.

JUSTICE NELSON

specially concurs.

While agreeing with our discussion of the other issues in this case, I specially concur in the Court’s opinion with respect to the issue of judicial immunity. Our opinion on that issue is limited to distinguishing Mead v. McKittrick (1986), 223 Mont. 428, 727 P.2d 517, inasmuch as the District Court grounded its decision in that case, (although it appears that the District Judge favored using the “functional approach” discussed below). Nevertheless, it is my opinion that a dispositive decision handed down by the United State’s Supreme Court since Mead, mandates our decision here.

One of the key cases that we relied on in deciding Mead was Forrester v. White (7th Cir. 1986), 792 F.2d 647. We cited that case for the proposition that, “[I]f an employee’s duties are intimately related to the functioning of the [judicial] process, then personnel decisions regarding that employee are also part of the process.” Mead, 727 P.2d at 519. Following our decision in Mead, the Seventh Circuit’s decision in Forrester was reversed on appeal to the United States Supreme Court. See, Forrester v White (1988), 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed. 2d 555.

As in the instant case, Forrester involved a personnel dispute between an employee working for the court and a state court judge. In Illinois, the presiding circuit judge had authority to hire adult and juvenile probation officers, who were removable at his discretion. The respondent state court judge hired Forrester as an adult and juvenile probation officer and, some two years later, promoted her to a position of increased supervisory responsibilities. A year later the judge demoted Forrester to a nonsupervisory position and, a few months after that, he fired her. Forrester sued in federal district court alleging federal civil rights violations. The jury found that the judge had engaged in unlawful sex discrimination and awarded Forrester compensatory damages. Subsequent to the verdict, the judge’s motion for summary judgment was granted on the ground that he was entitled to judicial immunity from a civil damages suit. Forrester, 484 U.S. at 222, 108 S.Ct. at 541-42.

On appeal, a divided panel of the Seventh Circuit affirmed. The Circuit Court held that the judge was entitled to absolute judicial immunity, reasoning that Forrester performed functions that were “inextricably tied to discretionary decisions that have consistently been considered judicial acts,” and that, absent the judge being able to freely replace the employee, the quality of his own decisions might decline. Forrester, 792 F.2d at 657.

The U.S. Supreme Court rejected the Circuit Court’s analysis. While acknowledging that immunity doctrines function to free government officials from the threat of personal liability for actions taken pursuant to their official duties and to encourage such officials to make impartial, objective and imaginative decisions without such decisions being skewed by an excess of caution and by fear of suit, the Court also pointed out that, running though the immunity cases is, "... a “functional” approach to immunity questions ...”. Forrester, 484 U.S. at 224, 108 S.Ct. at 542.

Under that approach, we examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and we seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.

Forrester, 484 U.S. at 224, 108 S.Ct. at 542.

While observing that judges, as a class, have long enjoyed a comparatively sweeping, if not perfectly well-defined, form of immunity, Forrester, 484 U.S. at 225, 108 S.Ct. at 543, the Court, nevertheless, pointed out that, as in the instant case, “[difficulties have arisen primarily in attempting to draw the line between truly judicial acts, for which immunity is appropriate ...,” (i.e. “... paradigmatic judicial acts involved in resolving disputes between parties who have invoked the jurisdiction of a court”) and "... acts that simply happen to have been done by judges.” “Here, as in other contexts, immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.” Forrester, 484 U.S. at 227, 108 S.Ct. at 544. (Emphasis added to last phrase).

In Forrester the Court drew the immunity line between judicial acts and "... the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform,” Forrester, 484 U.S. at 227, 108 S.Ct. at 544, observing that administrative decisions, while essential to the very functioning of the courts, are not regarded as judicial acts. Forrester, 484 U.S. at 228, 108 S.Ct. at 544-45.

Focusing on the facts in Forrester, the Court then concluded that the state-court judge was acting in an administrative capacity when he demoted and discharged Forrester. “Those acts — like many others involved in supervising court employees and overseeing the efficient operation of a court — may have been quite important in providing the necessary conditions of a sound adjudicative system,” [but] “... were not themselves judicial or adjudicative.” Forrester, 484 U.S. at 229, 108 S.Ct. at 545.

Without ruling on the question of whether qualified immunity might be available to judges who make discretionary employment decisions, and noting that absolute immunity is “ ‘strong medicine, justified only when the danger of [officials’ being] deflect[ed from the effective performance of their duties] is very great,’ ” the Court held that the state-court judge was not entitled to absolute immunity for his decisions to demote and discharge Forrester. Forrester, 484 U.S. at 230, 108 S.Ct. at 545-46.

In like fashion, the U.S. Supreme Court has on three occasions applied a “functional approach” in deciding absolute immunity questions involving prosecutors. See Buckley v. Fitzsimmons (1993), 61 USLW 4713, 113 S.Ct. 2606, 125 L.Ed.2d 209; Burns v. Reed (1991), 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547; and Imbler v. Pachtman (1976), 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128.

Accordingly, the functional approach to absolute immunity questions is firmly rooted in the cases decided by the U.S. Supreme Court and, in my view, is binding precedent on this Court. Under the functional approach, it is the nature of the function performed, not the identity of the actor who performs it, that drives immunity analysis.

In the instant case, Judge Clark was not involved in “paradigmatic judicial acts involved in resolving disputes between parties who had invoked the jurisdiction of a court.” He was, in fact, performing the very same functions — supervising court employees and overseeing the efficient operation of a court — that the Court in Forrester found to be neither judicial nor adjudicative. Judge Clark was acting in an administrative capacity when he disciplined Guest, and, under Forrester, he is not entitled to absolute judicial immunity from suit.

On appeal Judge Clark argues that Forrester is inapplicable because § 2-9-112(2), MCA, grants immunity from suit to members of the judiciary where the performance of the official duty at issue is “associated” with “judicial actions of the court.” Section 2-9-112(2), MCA. Judge Clark’s argument, however, is erroneously premised on his conclusion that disciplining an employee is a “judicial action.” Clearly, under Forrester, it is not. Such an action is administrative, and acts “associated” with the performance of an administrative action of the court are no more clothed with statutory immunity under Montana law than are such acts clothed with absolute immunity under the functional approach adopted in the federal case law. Accordingly, § 2-9-112(2), MCA, supports, rather than conflicts with, the application of the functional approach.

As with the Court’s decision in Forrester, I express no opinion on the applicability of the doctrine of qualified immunity to Judge Clark’s actions in this case. It is clear, however, that in disciplining Guest, he was performing an administrative, rather than a judicial or adjudicative function, and that under both the functional approach and under § 2-9-112(2), MCA, Judge Clark is not entitled to absolute judicial immunity from suit.

Accordingly, I specially concur with the Court’s decision on the immunity issue and concur with its discussion on all other issues.

JUSTICE TRIEWEILER concurs in the foregoing special concurrence.