text:
    STATE OF MONTANA, ex rel. DOUGLAS D. TURNER, Relator, v. MONTANA THIRD JUDICIAL DISTRICT COURT, POWELL COUNTY, the Honorable Edward P. McLean, Presiding, Respondent.
    No. 95-283.
    Decided June 15, 1995.
    52 St.Rep. 498.
    897 P.2d 1060.
    271 Mont. 392.
   OPINION AND ORDER

Douglas D. Turner, herein called Mr. Turner, through his counsel has filed an Application for Writ of Supervisory Control as well as a Memorandum of Authorities in Support. The Respondent, through the office of the Attorney General, has filed its Response to Application for Writ of Supervisory Control.

Key dates and determinations are as follows:

1. Mr. Turner was convicted of deliberate homicide by accountability on October 7,1991, and sentenced to death by the respondent court on March 18, 1992.

2. Mr. Turner’s conviction and death sentence were affirmed by this Court on October 20, 1993, in State v. Turner (1993), 262 Mont. 39, 864 P.2d 235.

3. Mr. Turner’s petition for rehearing was denied by this Court on December 10, 1993.

4. Mr. Turner’s petition for writ of certiorari was denied by the United States Supreme Court on October 3, 1994.

5. On January 17, 1995, the State moved the respondent court for a hearing to set an execution date for Mr. Turner and the court scheduled a hearing for March 24, 1995.

6. On March 24, 1995, the District Court set the date of execution for Mr. Turner for May 28, 1995. At the hearing on that date before the District Court, Mr. Turner registered objections to the State’s request for an execution date on the ground that the setting of that date prior to the expiration of the five year period provided by statute for filing a petition for post conviction relief violated Mr. Turner’s right to due process and equal protection. The District Court orally denied those objections.

7. On May 3, 1995, Mr. Turner filed a motion with the District Court to continue execution date. The District Court granted the motion for stay of execution and by order dated May 10, 1995, continued the date of execution to June 22, 1995.

8. Mr. Gollehon, in a companion case, filed an application for writ of supervisory control. By Opinion and Order, dated May 25, 1995, this Court denied his petition for supervisory control on the merits and the petition for stay of death sentence was also denied on the merits.

9. Mr. Turner filed a motion for stay of execution and brief in support together with affidavit of counsel in the District Court on June 7, 1995. In Mr. Gollehon’s companion case, the District Court heard Gollehon’s motion asking for a stay of execution on the afternoon of June 7, 1995; and during that hearing the District Court denied Mr. Gollehon’s request. Mr. Turner’s counsel states that during the Gollehon hearing the District Court denied Mr. Gollehon’s request on the ground that the court lacked any jurisdiction or authority to grant a stay beyond the 90 day limit specified in § 46-19-103(1), MCA.

10. The execution date set by the District Court is June 22, 1995, and a death warrant has been issued.

Pursuant to the requirements of Rule 17, M.R.App.P., this Court accepts supervisory control and addresses the merits of issues raised by Mr. Turner in his petition.

In substance Mr. Turner contends that § 46-19-103(1), MCA, which requires a district court to set his execution date after a stay has been dissolved within 20 to 90 days, directly conflicts with the provisions of § 46-21-101 and following sections, MCA, which mandate a five year period within which a convicted person may file a petition seeking post conviction relief. In substance Mr. Turner contends that the setting of a date for execution deprived him of the remedies preserved under the post conviction statutes and, therefore, violated his constitutional rights under both state and federal constitutional provisions.

Without detailing such contentions, we point out that Mr. Turner contends that the setting of the date of execution before the expiration of the five year period for filing a petition for post conviction relief violates Mr. Turner’s rights to due process under the state and federal constitutions; suspends the privilege of the writ of habeas corpus in violation of state and federal constitutions; violates Mr. Turner’s right of access to the courts under the Montana Constitution; and finally violates Mr. Turner’s rights to equal protection under state and federal constitutions.

In our Opinion and Order dated May 25, 1995, in Gollehon v. District Court of the Third Judicial District (1995), [271 Mont. 363], 897 P.2d 1058, 52 St.Rep. 447, this Court pointed out that Mr. Gollehon contended that the five year time period for filing a post conviction petition controlled and overrode any time period otherwise provided; and that he contended that such statute created a liberty interest which is superior to the State’s right to carry out the death sentence during the five year period within which a post conviction petition could be filed. The key conclusions and holdings on the part of this Court in Gollehon are as follows:

We conclude that a criminal defendant does not have a constitutional right to the collateral review which is present through State post conviction procedures. See Coleman v. Thompson (1991), 501 U.S. 722, 756. When considering Mr. Gollehon’s claims, we conclude that the State does have a legitimate state interest at stake which justifies the resetting of an execution date as soon as a stay is dissolved, which of course requires capital defendants to file collateral claims, such as post conviction relief claims, without delay. ...
We conclude that § 46-21-102, MCA, which provides that a petition for post conviction relief “may be filed” at any time within five years of the date of conviction does not override the sentencing requirements of § 46-19-103, MCA, ...
We hold that the provisions of § 46-19-103, MCA, control and that the post conviction provisions of § 46-21-102, MCA, do not override § 46-19-103, MCA. As a result, we hold that the Petition for Supervisory Control is denied on the merits and the Petition for Stay of Death Sentence also is denied on the merits.

While the constitutional claims on the part of Mr. Turner are worded on somewhat different theories than the contentions of Mr. Gollehon, we find that our holding in Gollehon is controlling. We reemphasize the conclusion in Gollehon that a criminal defendant does not have a constitutional right to the collateral review which is present through Montana post conviction procedures. We further emphasize that the Gollehon conclusion that § 46-21-102, MCA, providing for the filing of post conviction relief petitions within five years of date of conviction does not override the sentencing requirement of § 46-19-103, MCA. We reaffirm the holding of Gollehon which is as follows:

We hold that the provisions of § 46-19-103, MCA, control and that the post conviction provisions of § 46-21-102, MCA, do not override § 46-19-103, MCA.

In view of the foregoing principles, we conclude that the constitutional arguments on the part of Mr. Turner are insufficient as a matter of law. As a result, we hold that Mr. Turner’s petition for supervisory control is denied on the merits.

We next consider the granting of a stay of execution in order that Mr. Turner’s counsel may prepare his petition for post conviction relief for presentation to the District Court. In Mr. Turner’s motion for stay of execution filed with the District Court on June 7, 1995, counsel pointed out that additional time is needed to thoroughly review the files and records, which includes the review of the District Court record, including approximately 1500 pages of trial transcript, the Supreme Court record on appeal and various other documents relating to the petition for writ of certiorari as well as the files of Mr. Turner’s trial and appeal counsel. We here note that Mr. Hooks, of the Appellate Defender’s Office, has been appointed by the District Court, on March 24, 1995, to represent Mr. Turner in this matter. Counsel lists a number of grounds which potentially should be included in the petition for post conviction relief. Counsel further states in his motion that “[t]his motion is submitted in good faith, and not merely for the purpose of delay.” In his supporting brief, counsel for Mr. Turner emphasizes the critical importance in a post conviction proceeding to explore all possible claims before filing the petition. He refers to American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases which establish the extensive nature of the efforts required on the part of post conviction counsel. In Mr. Hooks’ sworn affidavit attached to the motion for stay of execution, he establishes the workload which is presently facing him and points out that to require his office to assume the burden of fully investigating and reviewing the criminal case and doing appropriate legal research and drafting a petition for post conviction relief by the June 22,1995 execution date, jeopardizes Mr. Turner’s rights.

In view of the short time available before the June 22, 1995 date of execution, and the indicated intent of counsel for Mr. Turner to prepare and file a petition for post conviction relief, this Court concludes that it is appropriate to grant a stay of execution.

IT IS ORDERED that the order of the District Court setting the execution date of Douglas D. Turner for June 22,1995, is vacated and a stay of execution is hereby granted to October 20,1995, in order to allow the counsel for Mr. Turner time in which to file a petition for post conviction relief on behalf of Mr. Turner.

IT IS FURTHER ORDERED that any petition for post conviction relief in behalf of Mr. Turner must be served and filed on or before October 20,1995.

IT IS FURTHER ORDERED that after the filing of a petition for post conviction relief, or as soon after October 20,1995, as practical, this Court shall make such additional orders as may be appropriate concerning the stay of execution of Mr. Turner.

Notice of this Opinion and Order shall be given by telephone to District Judge Edward P. McLean, to counsel for Mr. Turner, and to the Attorney General for the State of Montana; and in addition, written copies of this Opinion and Order shall be mailed to them.

DATED this 15th day of June, 1995.

/S/J. A. TURNAGE, Chief Justice

/S/ KARLA M. GRAY, Justice

/S/ WILLIAM E. HUNT, SR., Justice

/S/ TERRY N. TRIEWEILER, Justice

/S/JAMES C. NELSON, Justice

/S/ FRED J. WEBER, Justice.

JUSTICE LEAPHART did not participate in this matter.


source: Caselaw Access Project

author: JUSTICE WEBER JUSTICE NELSON JUSTICE TRIEWEILER

license: Public Domain

text:
    THE GREENS AT FORT MISSOULA, LLC, Petitioner and Appellant, v. CITY OF MISSOULA, Respondent, and SAVE THE FORT, INC. Intervenor.
    No. 94-395.
    Heard April 7, 1995.
    Submitted April 18, 1995.
    Decided June 19, 1995.
    52 St.Rep. 501.
    897 P.2d 1078.
    271 Mont. 398.

      For Appellant: Robert J. Phillips, Phillips & Williams, Missoula.
    For Respondent: Jim Nugent, Missoula City Attorney, Missoula; Mark S. Connell, Connell, Beers & Alterowitz, Missoula.
   JUSTICE WEBER

delivered the Opinion of the Court.

This case is before us on grant of summary judgment to City of Missoula and Save the Fort, Inc. by the Fourth Judicial District Court, Missoula County. We affirm.

We consider the following issue:

Did the District Court err in granting summary judgment to the City of Missoula and Save the Fort based upon the court’s ruling that a City-wide referendum concerning Ordinance No. 2877 was an appropriate function of the power of referendum?

This action involves an 82.31 acre tract of land known as Fort Missoula located in Missoula County. Fort Missoula U.S. Military Reservation was established in 1877 and has served many purposes of historical significance over the years. In 1966, the federal government conveyed this property to the State Board of Education for the use and benefit of the University of Montana. In 1990, the University conveyed the property title to the University of Montana Foundation, a non-profit corporation which acts as agent or trustee for the University by coordinating all fund raising for that institution. The Foundation then sold the property to the Green’s predecessor in interest, Divot Development, for $450,000.

Divot began action to have the bulk of the property annexed to the City and to have the City then zone it. On December 13, 1993, the City annexed the property. At that point the tract became an unzoned part of the City.

Divot had requested zoning of the tract, asking that the property be rezoned as P-I (Open Space District) [with a Planned Unit Development (PUD) overlay]. The County had originally zoned the tract as CP-I (County Zone.) On December 20,1993, the Missoula City Council enacted Ordinance No. 2877, which called for residential housing as well as carefully designed protection for historical buildings and open areas on the property. Following passage of this ordinance, a group of Missoula County and City residents formed under the name “Save the Fort” and circulated a petition in the City with the final outcome projected to be a referendum which would repeal the ordinance. On January 17,1994, the petition was filed with the Missoula County Elections Office.

The Greens filed a declaratory judgment action against respondent City of Missoula, seeking to have the court refuse the referendum process for this issue.

The District Court permitted the community group Save the Fort, Inc. to intervene in the action. The Greens, the City, and Save the Fort all moved for summary judgment. The motions were briefed and argued on May 13, 1994. The court ruled from the bench that the Greens’ motion was denied and the City’s and the Intervenors’ motions were granted. The court then issued an Order and Opinion on May 24, 1994. On Tuesday, June 7, 1994, the City of Missoula electorate voted to repeal the City of Missoula Zoning Ordinance No. 2877 as above described.

The Greens commenced this action against the City of Missoula and Save the Fort was allowed to intervene permissively.

Did the District Court err in granting summary judgment to the City of Missoula and Save the Fort based upon the court’s ruling that a City-wide referendum concerning Ordinance No. 2877 was an appropriate function of the power of referendum?

The Greens argue that Ordinance No. 2877 rezoned the property in question and, therefore, the action was administrative and not legislative. According to the Greens, administrative and quasi-judicial actions by a governmental body are not subject to referendum, only legislative actions can spawn referendum. Further, the Greens argue that our holding in City of Shelby v. Sandholm (1984), 208 Mont. 77, 676 P.2d 178, controls and makes the repeal of Ordinance No. 2877 unconstitutional because not all of the electors who participated in the referendum are affected by the ordinance. The Greens contend that the District Court gave a new expansive reading of the referendum statute in opposition to the prevailing case law in Montana.

The City argues that the District Court should be affirmed because Montana’s statutes and Constitution encourage public participation in municipal government affairs and decisions. The City contends that the facts of this case make it unique when compared to past Montana cases considering the right of referendum. Also, the City states that the property in question has never been zoned by the City. According to the City, both zoning and rezoning are legislative acts which permit referendum.

Save the Fort argues that the Montana Constitution permits referendum on any enactment by the legislature except an act of appropriation.

The District Court determined that the act of zoning the newly annexed City property was legislative in nature and, therefore, subject to referendum by the electorate. The District Court found that no substantive difference existed between initial zoning and amendatory rezoning:

Whether Ordinance No. 2877 was a zoning ordinance, as the Court concludes, or a rezoning makes no substantive difference. In substance the questioned ordinance was the original zoning classification of this land by the City, and it was a legislative act.... Here, the City Council has made a new land use policy, in absence of an established municipal land use policy, for a sizeable parcel of previously undeveloped property on the edge of the urban area. The ordinance in question signifies both a new zoning policy as to this land and a fundamental change from pre-existing county zoning and guidelines for development of this area. ... The Court does not agree that subjecting original zoning classification ordinances or amendatory rezoning ordinances to referendum powers will lead to significant delays and undue burdens on development. Minor zoning decisions which do not excite broad public interest in a city will be unlikely to generate the degree of controversy necessary to place the issue before the voters. The very fact that this is the first known case of this nature, despite Montana’s long history of municipal zoning, is itself indicative that it would not frequently arise. (Emphasis added.)

The 1972 Constitution included a provision that made the people’s right to a referendum applicable to the actions of local governments. Art. Ill, Sec. 5 and Art. XI, Sec. 8, Mont.Const. (1972). In response, the 1977 legislature passed a bill which created the following statutory directive to the electorate of the state:

Right of initiative and referendum. (1) The powers of initiative and referendum are reserved to the electors of each local government. Resolutions and ordinances within the legislative jurisdiction and power of the governing body of the local government, except those set out in subsection (2), may be proposed or amended and prior resolutions and ordinances may be repealed in the manner provided in 7-5-132 through 7-5-137.

(2) The powers of initiative shall not extend to the following:

(a) the annual budget;
(b) bond processings, except for ordinances authorizing bonds;
(c) the establishment and collection of charges pledged for the payment of principal and interest on bonds; or
(d) the levy of special assessments pledged for the payment of principal and interest on bonds. (Emphasis added.)

Section 7-5-131, MCA. The statute permits the electorate to propose, amend, or repeal ordinances and resolutions. The statute does not distinguish between zoning ordinances and rezoning ordinances. It simply refers to “prior ordinances.” A prior ordinance could either be a zoning or rezoning ordinance. Thus, the District Court correctly interpreted this statute to mean that referendum by the people was appropriate for both zoning ordinances and “amended” zoning ordinances (or rezoning). We will not insert into statutes something that is not contained therein. Section 1-2-101, MCA. This is not an expansive reading of the statute, but one that is taken from the clear meaning of the language used.

The legislature did not provide within the statute any differences in procedure to be used with public involvement in zoning as opposed to rezoning ordinances. Both acts are within the “legislative jurisdiction and power of the local governing body” and are, therefore, subject to the referendum power of the people.

The Greens argue that we must follow the precedent of Lowe v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551, which stated that there is a “sound” distinction between zoning and rezoning. Lowe, 165 Mont. at 44, 525 P.2d at 554. We first point out that the 1977 statute which we are interpreting in this case did not differentiate between zoning and rezoning for referendum purposes. In addition, in Schanz v. City of Billings (1979), 182 Mont. 328, 597 P.2d 67, we expressly departed from the holding in Lowe:

Areview of authorities reveals no elemental distinction between the act of “zoning” and the act of “rezoning.” A rezoning ordinance, like a zoning ordinance, is a legislative enactment, and is entitled to the presumption of validity and reasonableness. [Citations omitted.]
[W]e depart here from the distinction expressed in Lowe between the acts of zoning and rezoning ...

Schanz, 182 Mont. at 335, 597 P.2d at 71. In order to eliminate any confusion, we conclude it is necessary to overrule the contradictory language in Lowe. We expressly overrule the following language:

There is under Montana statutes and case law a sound distinction between “zoning” and the act of “rezoning” or granting or refusing a variance. The former constitutes a legislative act while the latter is more of an administrative or quasi-judicial act in applying provisions of existing ordinance or law.

Lowe, 165 Mont. at 44, 525 P.2d at 554. In doing so, we do not express any opinion on granting or refusing variances.

Also, the Greens argue that the repeal of Ordinance No. 2877 is unconstitutional under the holding of this Court in City of Shelby v. Sandholm (1984), 208 Mont. 77, 676 P.2d 178. However, the Sandholm case can be distinguished from the case before us.

Sandholm dealt with a vote by all of the electorate in the city of Shelby with regard to one special improvement district which constituted only part of the city. Special Improvement Districts (SID’s) are defined statutorily as improvements that “will be of special benefit to the property within the boundaries of any district created pursuant to the provisions of this part.” (Emphasis added.) Section 7-12-1102, MCA. SID’s do not affect an entire City.

Perhaps an example would best exemplify the distinction found between the unique facts of this case and the facts of the Sandholm holding. In Sandholm, we held that an entire city could not vote on the propriety of one SID because the entire city was not physically and financially affected by that SID:

But here the special improvement district encompasses less than all of the real property in the City, and there are qualified voters in the City who could vote on the referendum but who are not physically or financially affected by the special improvement district. Clearly, the property owners who will be benefited by the improvement, as well as assessed for the costs of the project, should control whether the project succeeds or fails. Section 7-12-4110, MCA, provides the protest procedure for those affected by the special improvement district, but the protest here was insufficient because it did not represent 50 percent or more of the property within the district, and the trial court so found.

Sandholm, 208 Mont. at 80, 676 P.2d at 179. We are unable to say in the present case that only part of the City electorate would be affected by what transpires on this tract of land. The land in question here has historical and social significance for the entire City. The public has used this property for many years for various community-wide functions. Were the land to become used for the multitude of private residential housing units that are planned, the entire community could be affected by the added pressures — financial, social, and environmental. Thus, the community as a whole is affected by what happens to this property, despite not every member of the community abutting the property in question.

In recognition of this, the District Court stated in its Opinion:

The Court does not accept the myopic view of the developer that this action should be viewed as a single quasi-judicial zoning decision affecting one landowner’s private property. ... The proposed construction of housing for several hundred people in what has historically been publicly accessible open space on the edge of the City affects prospective development residents, public services and schools, the city housing market, nearby residents and facilities, city traffic and development patterns. ... The number of landowners whose property is being zoned is not material to the issue at hand.

It is the proposed zoning’s potential effect upon the City that distinguishes the present case from Sandholm. The entire community of Shelby was not affected by the storm sewers in one SID. The SID created in Sandholm had no significance or importance to anyone other than the landowners who would be required to pay for the proposed storm sewers.

As a result, we held in Sandholm as follows:

We agree, under the facts of this case, that the City’s action creating a special improvement district, was not... subject to referendum. (Emphasis added.)

Sandholm, 208 Mont. at 79, 676 P.2d at 179. While the foregoing conclusion is appropriate as to Sandholm, we further conclude that it cannot be applied to the facts of this case. Under the facts of this case, we need do nothing beyond interpreting § 7-5-131, MCA, as including both zoning and rezoning “ordinances” under the umbrella of the “legislative jurisdiction and power of the governing body of the local government.” Such an inclusion entitles the electorate of Missoula to subject the applicable “ordinance” to a referendum vote in order to repeal the ordinance.

The distinction between administrative/quasi-judicial acts and those that are legislative need not concern us under the facts of this case. As quoted above, Schanz determined that a rezoning ordinance, like a zoning ordinance, is a legislative enactment and that there is no distinction between the act of zoning and the act of rezoning. Section 7-5-131, MCA, makes no distinction between zoning and rezoning with regard to the referendum power of the people. As pointed out in Schanz, both a zoning ordinance and a rezoning ordinance are legislative enactments. As a result, we do not find it necessary to attempt to distinguish between a zoning and rezoning ordinance for referendum purposes.

We conclude that, under the facts of this case, Ordinance 2877 is subject to the people’s referendum power pursuant to § 7-5-131, MCA. We do not here consider whether this statute is narrower than the constitutional directives that engendered it, as that must remain for some future case. We hold that the District Court did not err in allowing the June 7, 1994 voter referendum concerning the City zoning of Fort Missoula.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and TRIEWEILER concur.

JUSTICE NELSON

specially concurs.

I concur in the result of our opinion but not in our rationale. Basically, we affirm the District Court because we conclude that the ordinance at issue here is a zoning ordinance and that zoning and rezoning are indistinct, both being legislative enactments subject to the right of referendum.

While I do not disagree with those conclusions as far as they go, our opinion, by default, perpetuates the long-articulated notion relied upon by the District Court and discussed in other cases in Montana that acts of the legislative body which are characterized as “legislative” are subject to referendum, while “administrative” or “quasi-judicial” acts of that body are not. See, for example, Carlson v. City of Helena (1909), 39 Mont. 82, 102 P. 39; Allen v. City of Butte (1918), 55 Mont. 205, 175 P. 595; City of Billings v. Nore (1966), 148 Mont. 96, 417 P.2d 458; Chouteau County v. Grossman (1977), 172 Mont. 373, 563 P.2d 1125; Dieruf v. City of Bozeman (1977), 173 Mont. 447, 568 P.2d 127; Lowe v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551; Little v. Board of County Commissioners (1981), 193 Mont. 334, 631 P.2d 1282; Schanz v. City of Billings (1979), 182 Mont. 328, 597 P.2d 67. It is with that proposition that I disagree.

Rather than perpetuate a fiction that is without constitutional validity, I would simply hold that § 7-5-131, MCA, is unconstitutional as being in violation of Article III, Section 5 of the Montana Constitution to the extent that the statute restricts the power of referendum to “legislative” acts of the local governing body.

It is axiomatic that the Constitution is the supreme law of the state, Associated Press v. Bd. of Public Educ. (1991), 246 Mont. 386, 391, 804 P.2d 376, 379, and that constitutional provisions are conclusive upon the legislature and prevent the enactment of any law which extinguishes or limits the powers conferred by them. Noll v. City of Bozeman (1975), 166 Mont. 504, 507, 534 P.2d 880, 881.

To determine the meaning of a constitutional provision we employ the same rules of construction employed to construe statutes. The intent of the framers of a constitutional provision is controlling. The intent should be determined from the plain meaning of the words used. If that is possible we apply no other means of interpretation. (Citations omitted.)

Great Falls Tribune v. Public Schools (1992), 255 Mont. 125, 128-29, 841 P.2d 502, 504. We are to simply “ascertain the meaning of the Constitution as written, neither to add to nor to subtract from, neither to delete nor to distort.” Rankin v. Love (1951), 125 Mont. 184, 188, 232 P.2d 998, 1000.

In Article V, Section 1, of the Montana Constitution the people expressly reserved unto themselves the power of referendum. In furtherance of that reservation of power, the language of Article III, Section 5, of the Montana Constitution is unambiguous and explicit.

Section 5. Referendum. (1) The people may approve or reject by referendum any act of the legislature except an appropriation of money. ... (Emphasis added.)

As that language of the Constitution clearly provides, the people of Montana reserved unto themselves the power to approve or to reject by referendum any act of the legislature — not simply ‘legislative” acts, but any acts, including “administrative” acts and “quasi-judicial” acts. Moreover, at Article XI, Section 8, the people directed the legislature to extend the “... referendum powers reserved to the people by the constitution to the qualified electors of each local government unit.”

While § 7-5-131, MCA, was enacted in an attempt to fulfill that latter constitutional mandate, the statute, nonetheless, restricts the referendum powers extended to the people to “Resolutions and ordinances within the legislative jurisdiction and power of the governing body of the local government, except as set out in subsection (2) ...” subsection (2) being not at issue here. (Emphasis added.) Unfortunately that language, fortified by numerous decisions of this Court cited above, has perpetuated the notion that ‘legislative” acts, resolutions and ordinances are subject to approval or rejection by referendum, while “administrative” or “quasi judicial” acts are not. In fact and in law, the Constitution makes no such distinction.

In our interpretations of Article III, Section 5, we have stated that we are guided by the principle that the “referendum provisions of the Constitution should be broadly construed to maintain the maximum power in the people ...” Chouteau County v. Grossman (1977), 172 Mont. 373, 378, 563 P.2d 1125, 1128; Nicholson v. Cooney (1994), 265 Mont. 406, 411, 877 P.2d 486, 488. Yet, in this case and in the various other legislative act versus administrative act cases cited above, we have lost sight of that principle and have, to the contrary, narrowed the broad power of referendum reserved in the people by restricting that power to ‘legislative” acts. Certainly, if the people had wanted to limit their power of referendum to “legislative” acts, they could have done so, as they clearly did with respect to “appropriations of money.” See Art. III, Sec. 5, Mont.Const.

No legislative act versus administrative or quasi judicial act distinction appears in the language of the Constitution, and it is improper and in violation of our well established rules of construction to read such a provision into that document. Section 7-5-131, MCA, restricts the constitutional right of the people to approve or reject by referendum any act of the governing body of the local government guaranteed by Article III, Section 5 of the Montana Constitution. To that extent, the statute is in derogation of the Constitution and, therefore, cannot stand. The District Court, and now this Court, have arrived at the right result but for the wrong reason. In the former I concur; in the latter I cannot.

JUSTICES GRAY and LEAPHART join in the foregoing special concurrence.

JUSTICE TRIEWEILER

specially concurring.

I concur with the majority opinion based on the oft-stated principle that “it is elementary that courts should avoid constitutional questions if an issue can be resolved otherwise.” Common Cause v. Statutory Committee (1994), 263 Mont. 324, 329, 868 P.2d 604, 607 (citing Wolfe v. Montana Dept. of Labor and Industry (1992), 255 Mont. 336, 339, 843 P.2d 338, 340).

I do not, by concurring in the majority opinion, mean to infer that I necessarily disagree with anything said in the concurring opinion of Justice James C. Nelson.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GREG PRICE, Defendant and Appellant.
    No. 95-059.
    Submitted on Briefs May 25, 1995.
    Decided June 20, 1995.
    52 St.Rep. 527.
    897 P.2d 1084.
    271 Mont. 409.
    For Appellant: Robert G. McCarthy; Hennessey, Joyce, McCarthy & Wing, Butte.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Ass’t Attorney General, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Greg Price (Price) appeals from an order of the Eighth Judicial District Court, Cascade County, dismissing his appeal from City Court. We reverse and remand.

On July 29, 1994, a jury in the City Court of Great Falls convicted Greg Price of the offenses of driving under the influence of alcohol and resisting arrest. He was sentenced on the same date.

Price filed a notice of appeal in City Court on August 12,1994, and the file subsequently was transferred to the District Court. The City of Great Falls moved for dismissal of the notice of appeal on the basis that the appeal was not timely filed and, absent a timely appeal, the District Court lacked jurisdiction over the case. After briefing by the parties, the District Court entered its order dismissing the appeal. Price appeals from that order.

Did the District Court err in dismissing Price’s appeal?

Section 46-17-311(2), MCA, requires that appeals from a city court to a district court for a trial de novo be undertaken “by filing written notice of intention to appeal within 10 days after a judgment is rendered following trial.” Price’s notice of appeal was filed 14 days after he was convicted and sentenced.

The District Court relied on State v. Hartford (1987), 228 Mont. 254, 741 P.2d 1337, in dismissing Price’s appeal. In Hartford, we stated that the right to appeal from a court of limited jurisdiction to a district court is purely statutory and that a district court does not acquire jurisdiction absent timely compliance with § 46-17-311, MCA. Hartford, 741 P.2d at 1338. There, the notice of appeal was not given within the statutory 10-day period and, as a result, we affirmed the district court’s dismissal of the appeal. Hartford, 741 P.2d at 1338. We reaffirmed the Hartford approach in State v. Arthur (1988), 234 Mont. 75, 761 P.2d 806.

Subsequent to the court’s order dismissing Price’s appeal, however, we decided State v. Schindler (1994), 268 Mont. 489, 886 P.2d 978. Schindler is controlling and dispositive here.

The issue in Schindler was whether the notice of appeal from justice court to district court was timely. We observed that both the Montana Justice and City Court Rules of Civil Procedure (Rules of Civil Procedure) and the Montana Uniform Rules for Justice and City Courts (Uniform Rules) had been adopted since Arthur. Schindler, 886 P.2d at 979. Rule 21 of the Uniform Rules provides that time is to be computed under Rule 6 of the Rules of Civil Procedure; Rule 6 provides that intermediate weekend days and legal holidays are excluded in computing time periods prescribed by statute. Schindler, 886 P.2d at 979-980. Applying those Rules to Schindler’s notice of appeal, we concluded that the notice of appeal was timely filed. Schindler, 886 P.2d at 980.

We reach the same result here. Price had 10 days after July 29, 1994, within which to file his notice of appeal pursuant to § 46-17-311(2), MCA. Excluding four intervening weekend days, the tenth day was August 12, 1994. That is the day on which Price filed his notice of appeal.

We conclude that Price’s notice of appeal was timely filed. We hold, therefore, that the District Court erred in dismissing the appeal.

Reversed and remanded for further proceedings.

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


author: JUSTICE NELSON

text:
    IN THE MATTER OF DAVID CLARKE, Petitioner/Appellant, v. SCOTT MASSEY, d/b/a ALL SEASONS CONSTRUCTION, Respondent/Respondent.
    No. 95-106.
    Submitted on Briefs June 1, 1995.
    Decided June 27, 1995.
    52 St.Rep. 538.
    897 P.2d 1085.
    271 Mont. 412.

      For Appellant: Mark E. Jones, Missoula.
    For Respondent: Kristine L. Foot, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

David Clarke (Clarke) appeals from the Workers’ Compensation Court’s order and judgment dated January 27,1995, dismissing with prejudice his petition for attorney fees under § 39-71-611, MCA. We affirm.

Background

This case began with Clarke’s claim for compensation for on-the-job injuries sustained in February 1990. As it turned out, Clarke’s employer, Scott Massey d/b/a All Seasons Construction and Truss Fabrication (Massey), did not carry workers’ compensation insurance. Accordingly, Clarke’s workers’ compensation benefits were paid by the Uninsured Employers’ Fund (Fund), which, in turn, assessed a penalty against Massey and asserted its right to be repaid for benefits it had paid to Clarke. Massey brought suit against the Fund and Clarke contending that Clarke was either an independent contractor or acting outside the scope of his employment when he was injured. On November 12, 1991, the Workers’ Compensation Court issued its decision finding that Clarke was Massey’s employee and directing that Massey reimburse the Fund for all amounts expended on Clarke’s claim subject to the limitations prescribed by § 39-71-504, MCA. The Workers’ Compensation Court denied Clarke’s claim for attorney fees as having been made for the first time in proposed findings filed after trial.

Prior to that decision, however, in January 1991, Clarke filed an action against Massey in District Court in Missoula County seeking damages, attorney fees and costs under §§ 39-71-515 and 516, MCA. In that action, Clarke contended, among other things, that he was entitled to an award of attorney fees against Massey incurred in both the Workers’ Compensation Court and District Court proceedings. The District Court awarded Clarke damages against Massey for lost wages and medical expenses (subject to the § 39-71-518, MCA, offset and the § 39-71-511, MCA, reimbursement obligation for benefits paid) and for attorney fees and costs in the District Court action. It denied Clarke’s claim for attorney fees in the Workers’ Compensation Court proceedings, however, on the basis that the District Court did not have jurisdiction to award fees in those proceedings.

The Workers’ Compensation Court file was closed February 7, 1992. Notwithstanding, on March 9, 1994, Clarke filed a motion in that court requesting an award of some $3,900 in attorney fees incurred in his defense of the underlying 1991 Workers’ Compensation Court action. The court reopened the file, and on June 8, 1994, entered an order denying, without prejudice, Clarke’s motion and permitting the filing of a new petition. The Workers’ Compensation Court concluded that the previous denial of Clarke’s demand for attorney fees was the law of the case, but since that prior ruling had been on procedural, as opposed to substantive, grounds, the filing of a new petition for attorney fees was not precluded. On July 14,1994, the court again closed the Workers’ Compensation Court’s file.

Clarke filed his petition requesting attorney fees on August 25, 1994. Following the filing of Massey’s response, both parties filed cross motions for summary judgment supported by briefs. On January 27,1995, the Workers’ Compensation Court issued its final order and judgment granting Massey’s motion for summary judgment, denying Clarke’s motion and dismissing with prejudice Clarke’s petition. Clarke appeals.

Issue

Did the Workers’ Compensation Court err in granting Massey’s motion for summary judgment and in dismissing Clarke’s petition for attorney fees? Underlying that question is the issue of whether the Workers’ Compensation Court properly interpreted the provisions of § 39-71-611, MCA (1989), in this case.

Standard of Review

The standard of review for an appeal from the Workers’ Compensation Court’s grant or denial of a motion for summary judgment is the same as that used by a district court. 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. Our review of the court’s conclusions of law is plenary; we simply determine whether its legal conclusions are correct. Murer v. State Compensation Mut. Ins. (1994), 267 Mont. 516, 519-20, 885 P.2d 428, 430. Here, there are no material facts in dispute, and the resolution of the issue presented hinges upon the Workers’ Compensation Court’s interpretation of § 39-71-611, MCA (1989).

Discussion

Clarke presents two arguments on appeal. First he contends that reading §§ 39-71-117, MCA, 39-71-401, MCA, and 39-71-611, MCA, together leads to the conclusion that Massey was an employer; that he was, therefore, required by law to carry workers’ compensation insurance under one of three plans; and that, since he did not enroll in either the state fund or retain the services of a private insurer, “he should be consider [sic] a self-insured for the purposes of MCA 39-71-611.” While creative, Clarke cites no persuasive authority for his position, and we conclude that it is without merit. Common sense and the plain language of the statutes at issue dictate that an employer cannot, at once, be both insured and uninsured for the same workers’ compensation claim.

Secondly, Clarke argues that we should look behind the plain language of § 39-71-611, MCA, and somehow glean a legislative intent that the statute, nevertheless, applies to uninsured employers because, “[i]t stretches credulity that any legislature would intend that an individual who violates one law should benefit by such a violation.” Clarke’s references to words of wisdom from Justices Holmes and Hand and from Judge Traynor notwithstanding, we, similarly, conclude that this argument is without any basis whatsoever in law.

At the outset, we note that the 1989 codes apply to Clarke’s 1990 injury. Buckman v. Montana Deaconess Hosp. (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Section 39-71-611, MCA (1989), permits the Workers’ Compensation Court to award reasonable attorney fees against insurers who have unreasonably denied benefits due a claimant. That section provides:

Costs and. attorneys’ fees payable on denial of claim or termination of benefits later found compensable. (1) The insurer shall pay reasonable costs and attorney fees as established by the workers’ compensation court if:
(a) the insurer denies liability for a claim for compensation or terminates compensation benefits;
(b) the claim is later adjudged compensable by the workers’ compensation court; and
(c) in the case of attorneys’ fees, the workers’ compensation court determines that the insurer’s actions in denying liability or terminating benefits were unreasonable.
(2) A finding of unreasonableness against an insurer made under this section does not constitute a finding that the insurer acted in bad faith or violated the unfair trade practices provisions of Title 33, chapter 18.

In construing a statute, “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. The rules of statutory construction require the language of a statute to be construed according to its plain meaning. If the language is clear and unambiguous, no further interpretation is required, and we will resort to legislative history only if legislative intent cannot be determined from the plain wording of the statute. Lovell v. State Comp. Mut. Ins. Fund (1993), 260 Mont. 279, 285, 860 P.2d 95, 99. Where the intention of the legislature can be determined from the plain meaning of the words used in a statute, the courts may not go further and apply any other means of interpretation. Tongue River Elec. Coop. v. Mont. Power Co. (1981), 195 Mont. 511, 515, 636 P.2d 862, 864.

There is absolutely nothing in the plain language of § 39-71-611, MCA (1989), that would make its provisions applicable to uninsured employers, nor is there any indication whatsoever from that language of any legislative intent that the statute be so applied. The statute refers to insurers and to no one else. Under 39-71-116(8), MCA(1989), an “ ‘[i]nsurer’ means an employer bound by compensation plan No. 1, an insurance company transacting business under compensation plan No. 2, the state fund under compensation plan No. 3, or the uninsured employers’ fund provided for in part 5 of this chapter.” It is undisputed that Massey does not fit into any category of that statutory definition. He is simply an uninsured employer, and § 39-71-611, MCA (1989), is inapplicable to him by its clear and unambiguous terms.

We hold that the Workers’ Compensation Court correctly interpreted § 39-71-611, MCA(1989), in this case and, in doing so, properly granted Massey’s motion for summary judgment and dismissed with prejudice Clarke’s petition for attorney fees.

AFFIRMED.

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


author: JUSTICE LEAPHART JUSTICE NELSON

text:
    IN THE MATTER OF THE ESTATE OF WINIFRED MILLS FIREBAUGH, Deceased, JOHN E. FIREBAUGH, Petitioner and Respondent, v. KENNETH M. FIREBAUGH, Respondent and Appellant.
    No. 94-601.
    Submitted on Briefs June 1, 1995.
    Decided July 6, 1995.
    52 St.Rep. 571.
    897 P.2d 1088.
    271 Mont. 418.

      JUSTICE NELSON specially concurs and dissents, joined by JUSTICE GRAY.
    For Appellant: Terry Wallace, Attorney at Law, Missoula.
    For Respondent: Martin S. King; Worden, Thane & Haines, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Kenneth Firebaugh, one of the decedent’s two sons, appeals from the decision of the District Court holding that debts Kenneth owed to his deceased mother were to be offset against his share of her estate, despite the fact that the debts had been previously discharged in bankruptcy. John Firebaugh cross appeals. We affirm in part, reverse in part and remand.

Winifred Mills Firebaugh died on November 25,1991 in Missoula, Montana. She left a will dated April 24, 1984. Winifred Firebaugh was survived by two sons; John Firebaugh of Missoula and Kenneth Firebaugh of Kalispell. The two sons are named as the co-personal representatives and are the sole heirs and beneficiaries under her will. The value of Winifred’s estate at the time of her death was $151,427.71. Of that sum, approximately $62,111.54 was equally distributed to John and Kenneth from an Edward D. Jones account and approximately $9,292.19 was used to satisfy estate expenses.

In May of 1989, Kenneth sold his 1/4 undivided interest in some Kansas real estate to his mother for $42,000. His mother paid Kenneth in cash. After receipt of the cash, Kenneth purchased a condominium in California and filed a homestead exemption on that property. The District Court concluded that the sales price of $42,000 was clearly excessive; that the 1/4 interest only had a value of $30,475.

At the time of her death, Winifred’s son John was indebted to Winifred in the sum of $26,000. Her son Kenneth was indebted to her in the sum of $68,695. However, in August of 1989, Kenneth filed a petition in bankruptcy under Chapter 7 in the Eastern District of California. In that proceeding, Kenneth listed his mother as an unsecured creditor in the sum of $55,395. Kenneth received a discharge in bankruptcy on January 12, 1990. Winifred, who was Kenneth’s single largest creditor, received no distributions from that bankruptcy proceeding.

Sometime in 1991, Winifred met with Edward D. Jones account executive Scott Wilson to discuss the distribution of her Edward D. Jones account upon her death. At the time of that discussion, she prepared a note which stated: “On my death, John to have top $57,000 — rest divided equally.” The District Court found that this note evidenced her desire that the pre-bankruptcy debt of Kenneth be considered for the purpose of calculating her sons’ respective shares of the estate.

Winifred’s last will and testament provides, in part, as follows:

If either of my two sons are indebted to me at the time of my death, I forgive such debt or debts and direct my personal representatives not to collect such indebtedness, but to cancel and return any evidences thereof to my son or sons having his indebtedness canceled. If, at the time of my death, either of my sons are indebted to me, but not in equal amounts, or if one of my sons is indebted to me and the other is not, I direct my personal representatives to pay to my son who is not indebted the same amount of money as the amount of indebtedness of my other son that was forgiven; or if one son is indebted to me to a lesser extent than the other, an amount of money sufficient to equalize the indebtedness of my other son forgiven under this provision, taking into consideration any indebtedness of each son forgiven. It is my intention that each of my sons be treated equally.

The District Court concluded that, based on the provisions of the will, since Kenneth was indebted in a greater amount than John, the difference between the two debts would be paid to John. With John indebted in the amount of $26,000 and Kenneth indebted in the amount of $68,695, the difference was $42,695. Accordingly, from the $112,023 (the value of the estate less the Kansas property valued at $30,475) the first $42,695 was to be distributed to John leaving a balance of $69,328.52 to be divided equally.

John contends that under § 72-2-501, MCA (1991), his mother’s intent to treat her sons equally is controlling and thus the District Court’s decision to offset the debt of Kenneth should be affirmed. Appellant Kenneth contends that, under the provisions of § 72-3-912, MCA, the court should have treated his debt as having been discharged. Section 72-3-912, MCA, provides as follows:

The amount of a noncontingent indebtedness of a successor to the estate if due, or its present value if not due, shall be offset against the successor’s interest; but the successor has the benefit of any defense which would be available to him in a direct proceeding for recovery of the debt.

Standard of Review:

In determining whether the provisions of the will or § 72-3-912, MCA, control distribution of the estate, the District Court was making a legal conclusion. “[W]e review conclusions of law to determine whether the district court’s interpretation of the law is correct.” In re Marriage of Barnard (1994), 254 Mont. 103, 106, 870 P.2d 91, 93. Issue:

Whether, in light of Winifred Firebaugh’s testamentary intent to treat her sons equally, her son Kenneth’s share under the will may be offset by his indebtedness to his mother even though a portion of said indebtedness has been discharged in bankruptcy?

Discussion:

Kenneth and John each rely upon statutory provisions in effect at the time of their mother’s death in 1991. Kenneth invokes § 72-3-912, MCA, and contends that his discharge in bankruptcy would constitute a valid defense to any attempt by the estate to recover the debt. John relies on § 72-2-501, MCA (1991), (which has since been repealed) for the proposition that the testatrix’s intent is controlling.

Kenneth is correct in claiming that his discharge in bankruptcy qualifies as a valid defense under § 72-3-912, MCA. However, as the District Court observed, to ignore Kenneth’s pre-bankruptcy debt of $55,395 would thwart the clear intent of Winifred as reflected in her will.

At the time Winifred made her will, the law provided that her intent, as expressed in her will, would be the controlling consideration. That statutory provision, although repealed in 1993, remained in effect at the time of her death in 1991. We must thus assume that Winifred died believing that her intent would be the controlling consideration. Her intent, as expressed in the four comers of her will, is clearly to treat her two sons equally. If Kenneth’s debt of $55,395 is not offset against his share, Winifred’s intent is subverted. Faced with a conflict between § 72-3-912, MCA, and the terms of the will, we determine that Winifred’s clear intent controls. That is, “[i]n construing a will the paramount rule is that the testator’s intent gathered from the words of the will governs the interpretation of the will.” State v. Keller (1977), 173 Mont. 523, 526, 568 P.2d 166, 168. Similarly, in Matter of Estate of Ellison (1990), 243 Mont. 258, 260, 792 P.2d 5, 6, we held: “[T]hat intention of a testator, as expressed in his Will, controls the legal effect of his disposition.”

Given the clear language of the second paragraph of her will, there is no question but that Winifred intended the sons’ shares of her estate be adjusted to reflect monies that the sons had received from her as loans during her lifetime. We hold that as of the time of Winifred’s death in November 1991, testamentary intent takes precedence over the provisions of § 72-3-912, MCA.

Cross Appeal:

Issue:

Whether the District Court erred in refusing to order disposition of an interest in real property owned by the estate but located in the State of Kansas?

With regard to Winifred’s interest in real estate located in Kansas, the District Court concluded that Kenneth should not be able to share equally in property that he transferred to his mother at an inflated price. However, the District Court declined to order disposition of the Kansas property, instead, deferring to the jurisdiction of the Kansas court in an ancillary probate. John Firebaugh cross appeals contending that under Montana law the District Court should be directed to order distribution of the Kansas property in conformity with its Findings of Fact and Conclusions of Law and Order dated August, 29, 1994.

We affirm the District Court’s refusal to order distribution of the Kansas property. However, in doing so, we note that the District Court was in error in concluding that Kenneth should not be allowed to share equally in the Kansas property since he transferred that property to his mother at an inflated price. Kenneth sold his share of the property to his mother in May of 1989, some two years six months before her death in November of 1991. There is nothing in the record indicating that Winifred objected to the sales price at the time of the purchase or during the subsequent two and one-half years of her life. Nor did she seek to challenge the transaction in Kenneth’s bankruptcy proceeding. Accordingly, there is no basis for the District Court to determine that Kenneth’s share of the estate is (or should be) subject to an offset as a result of that transaction.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER and HUNT concur.

JUSTICE NELSON

specially concurs and dissents as follows:

I respectfully dissent from our decision on the issue on appeal and concur with our decision on the issue on cross-appeal. Section 72-11-304, MCA, (1991), provides that extrinsic evidence is inadmissible in the construction of a will unless there is some alleged mistake or imperfection in the writing, unless the validity of the will is in dispute, or unless it is necessary to explain the circumstances under which the will was made or to which it relates, to explain an extrinsic ambiguity or to establish illegality or fraud. None of those exceptions are raised here. Winifred’s will is clear and unambiguous, and there is no need to delve into what her supposed intention was in making her will.

Winifred’s will provides at paragraph Second:

If either of my two sons are indebted to me at the time of my death, I forgive such debt or debts and direct my personal representatives not to collect such indebtedness, but to cancel and return any evidences thereof to my son or sons having his indebtedness cancelled. If, at the time of my death, either of my sons are indebted to me, but not in equal amounts, or if one of my sons is indebted to me and the other is not, I direct my personal representatives to pay to my son who is not indebted to me the same amount of money as the amount of indebtedness of my other son that was forgiven; or if one son is indebted to me to a lesser extent than the other, an amount of money sufficient to equalize the indebtedness of my other son forgiven under this provision, taking into consideration any indebtedness of each son forgiven. It is my intention that each of my sons be treated equally. [Emphasis added.]

As the language quoted from her will clearly states, Winifred provided that a son’s debts were to be offset against his share of her estate, if and to the extent that son was indebted to her at the time of her death. In point of fact, Kenneth was not indebted to Winifred at the time of her death. His debt to her had been discharged in bankruptcy — a proceeding in which she was listed as' the principle creditor for the debts offset here, but in which she did not file a creditor’s claim.

Section 72-11-307, MCA (1991), requires that all parts of a will are to be construed in relation to each other so as to, if possible, form one consistent whole. By improperly and unnecessarily attempting to divine Winifred’s intention in order to achieve what appears to be a more equitable result in the distribution of her estate, we have simply written out of her will that language which conditions her direction that her sons be treated equally on the provision that one or the other of her sons be indebted to her at the time of her death.

I cannot agree in that approach. It is not the prerogative of this or of any other court to rewrite the clear and unambiguous provisions of a decedent’s will simply because of a judicial perception of inequity in the distribution of the testatrix’ estate. Accordingly, on the issue on appeal, I respectfully dissent.

JUSTICE GRAY concurs in the foregoing dissent and' special concurrence.


text:
    FIRST CALL, INC., Plaintiff/Respondent. v. CAPITAL ANSWERING SERVICE, INC., Defendant/Appellant.
    No. 95-121.
    Submitted on Briefs May 19, 1995.
    Decided June 15, 1995.
    52 St.Rep. 496.
    898 P.2d 96.
    271 Mont. 425.
    For Appellant: James T. Harrison, Jr., Harrison, Loendorf & Poston, Helena.
    For Respondent: R. J. Sewell, Jr., Bruce M. Spencer, Smith Law Firm, Helena
   JUSTICE NELSON

delivered the Opinion of the Court.

Capital Answering Service, Inc., (Capital Answering), appeals from an order of the First Judicial District Court, Lewis & Clark County, dismissing the complaint of First Call, Inc., (First Call) without prejudice. We reverse and remand for further proceedings consistent with this opinion.

The issue on appeal is whether a dismissal pursuant to Rule 41(e), M.R.Civ.P., shouldbe with prejudice and, thus, accorded res judicata effect.

First Call filed an action for breach of contract against Capital Answering in the District Court, Lewis & Clark Comity on September 9, 1991, as Cause No. ADV 91-1480, and a summons was issued the same date. That summons, however, was not served within the three year period specified in Rule 41(e), M.R.Civ.P. An amended summons was issued August 30, 1994, and was served on September 13, 1994, prior to the running of the statute of limitations on First Call’s cause of action. Capital Answering moved to dismiss on the basis of Rule 41(e), M.R.Civ.P., and in an order dated November 9, 1994, the District Court granted Capital Answering’s motion, dismissing First Call’s complaint. The court’s dismissal was, however, without prejudice. Capital Answering timely appealed, contending that the dismissal should have been with prejudice.

The District Court based its determination to dismiss First Call’s complaint without prejudice on our decision in Whitcraft v. Semenza (1965), 145 Mont. 94, 399 P.2d 757, and cited the following language from our opinion:

It must be borne in mind that the Rule is nothing more than a rule of procedure, designed to encourage promptness in the prosecution of actions. Dismissal thereunder is not based upon the absence of a claim, nor upon any defect in the substantive right, nor is the Rule a statute of limitation barring the claim after lapse of the specified time. While an action may be dismissed the claim remains. An order of dismissal is not res judicata, it does not constitute a bar to another suit on the same claim.

Whitcraft, 399 P.2d at 759.

Our review of the District Court’s conclusions of law is plenary. We simply determine whether the court’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

Rule 41(e), M.R.Civ.P. provides, in pertinent part:

Failure to serve summons. No action heretofore or hereafter commenced shall be further prosecuted as to any defendant who has not appeared in the action or been served in the action as herein provided within 3 years after the action has been commenced, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said 3 years. ...

Here, it is undisputed that the District Court properly dismissed First Call’s complaint because the summons was not served within the three years specified in the Rule. Rather, the issue is whether the trial court correctly dismissed First Call’s complaint without prejudice, thus allowing First Call to file another complaint on its claim, so long as the statute of limitations on that claim had not ran.

Based upon our decision in Whitcraft, the District Court was compelled to rule as it did. Moreover, subsequent to Whitcraft, we again interpreted Rule 41(e), in a manner consistent with our decision in that case. In State ex rel. Equity Supply Co. v. District Court (1972), 159 Mont. 34, 494 P.2d 911, we stated:

As Rule 41(e) is now written, an order of dismissal is a bar to another suit on the same claim, if, as here, the statute of limitations as well as the period provided for by the rule, have rim.

Equity Supply, 494 P.2d at 914.

Both Whitcraft and Equity Supply contain discussions of the history of Rule 41(e) which we find unnecessary to reiterate here. Suffice it to say, that having carefully reconsidered our decisions in both of those cases, we now conclude that our interpretation of the clear and unambiguous language of the Rule was incorrect.

In his specially concurring opinion in Equity Supply, Chief Justice Haswell, concisely pointed up the fallacy inherent in this Court’s opinions in that case and in Whitcraft:

The operative words of Rule 41(e) that are pertinent here provide:
“* * % actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced * * * unless summons shall have been issued within one year * *
The purpose of this Rule is not only to promote diligent prosecution of claims once suit has been filed thereon, but also to bar further prosecution of lached lawsuits. The Commission Note to amended Rule 41(e) makes this clear ...
This purpose is completely defeated by interpreting Rule 41(e), M.R.Civ.P., to permit a subsequent refiling of a lached lawsuit previously dismissed so long as the statute of limitations has not expired.

Equity Supply, 494 P.2d at 915.

It is an oft repeated rule of statutory construction, equally applicable to our interpretation of the rules governing practice and procedure in the courts of this State, that “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. Moreover, if the language is clear and unambiguous, no further interpretation is required. See Lovell v. St. Comp. Mut. Ins. Fund (1993), 260 Mont. 279, 285, 860 P.2d 95, 99.

As pointed out by Chief Justice Haswell, the language of Rule 41(e), is unmistakably clear in its direction:

No action heretofore or hereafter commenced shall be further prosecuted ... and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced ... [unless the summons is served within the 3 years specified in the Rule].

Interpreting Rule 41(e), to allow the refiling of claims dismissed under the Rule not only flies in the face of the unambiguous language of the Rule itself, but such an interpretation also completely defeats the purpose of the Rule to promote the diligent prosecution of claims once suit is filed and to bar the further prosecution of lached lawsuits.

We have considered the arguments of counsel and the various authorities cited in their briefs on appeal in support of and in opposition to our previous interpretations of Rule 41(e). Having done that, we, nevertheless, conclude that on the plain language of Rule 41(e), our prior interpretations of that Rule in Whitcraft and in Equity Supply were simply wrong. Necessarily, Whitcraft and Equity Supply are overruled.

We hold that dismissals under Rule 41(e), M.R.Civ.P. are dismissals with prejudice and must be given res judicata effect. Accordingly, we reverse the District Court’s order dismissing First Call’s complaint without prejudice and remand for entry of an order dismissing its complaint with prejudice.

JUSTICES GRAY, HUNT, TRIEWEILER and WEBER concur.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ALBERT D. BARTLETT, Defendant and Appellant.
    No. 94-419.
    Submitted on Briefs May 19, 1995.
    Decided June 20, 1995.
    52 St.Rep. 520.
    898 P.2d 98.
    271 Mont. 429.

      For Appellant: William F. Hooks, Appellate Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, and Jennifer Anders, Assistant Attorney General, Helena; Robert McCarthy, County Attorney, and Brad Newman, Deputy County Attorney, Butte.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Albert D. Bartlett was charged with criminal possession of dangerous drugs with intent to sell. Prior to trial, the District Court for the Second Judicial District, Silver Bow County, denied the motion of Bartlett’s standby counsel that Bartlett undergo a mental examination. Bartlett proceeded to trial and was convicted. He appeals. We reverse.

The dispositive issue is whether the District Court erred when it denied the motion for mental examination.

In November 1993 two men, Smith and Patterson, were detained by Butte, Montana police officers minutes after they were seen breaking into a 1971 Ford Maverick and taking two duffle bags from it. Marijuana was found in the possession of the two men. Patterson told the officers that the marijuana had been inside a duffle bag taken from the Maverick.

The Maverick belonged to Albert D. Bartlett. When the police officers interviewed him about the incident, they found his response suspicious and uncooperative. Based upon Bartlett’s behavior and the recovery of the marijuana, they arrested him and obtained a warrant to search the car. They found six bundles of marijuana taped under the rear seat. The bundles contained a total of 6.79 pounds of marijuana.

Prior to trial, Bartlett had several changes of counsel. His initial court-appointed attorney withdrew by mutual agreement. Bartlett’s subsequent efforts to locate privately-retained counsel were unsuccessful. A second court-appointed attorney moved to be allowed to withdraw due to a conflict of interest.

On February 28, 1994, the District Court held a hearing to determine Bartlett’s competence to waive his right to counsel. Following the hearing, the court ordered that Bartlett would be allowed to proceed pro se. It later allowed Bartlett’s second attorney to withdraw and appointed a third attorney, Deirdre Caughlan, as standby counsel for Bartlett.

At the next pretrial hearing, on March 28,1994, Caughlan submitted a written motion and orally moved for a mental examination of Bartlett. She stated her belief, pursuant to § 46-14-202, MCA, “that a question exists that Defendant is fit to proceed in that it is believed that he may suffer from a mental condition, disease or defect which may affect his ability to assist in his own defense” and that he may have been unable to form a particular state of mind which is an essential element of the offense charged. Caughlan represented that it was “vital to the defense of Defendant that such an examination and accessment [sic] be conducted, particularly to determine if the Defendant is capable in assisting in his own defense.”

Following Caughlan’s oral motion at the hearing, Bartlett immediately stated, “She’s fired, period. Her word is without merit, as far as I’m concerned. She works for the Court, for the Police Department.” He also declared that Caughlan had failed to file motions he had asked her to file for him.

The prosecutor opposed the motion for a mental examination. He argued that while Bartlett was “difficult” to deal with, he was competent and it was “time to move this case toward some kind of a disposition.”

The District Court denied the motion for a mental examination. It reasoned:

The Court notes that Defendant and the State opposed such motion. The Court finds that Defendant has appeared competent, and aware of the charges and consequences of this action, in all of his previous appearances before the Court. Defendant has appeared capable of acting with purpose or knowledge and has exhibited the ability to act in his own defense.

The court did not relieve Caughlan of her duties as standby counsel.

The case eventually proceeded to jury trial, with Bartlett conducting his own defense and Caughlan assisting him. He was convicted and sentenced to the maximum term of twenty years’ imprisonment.

Did the District Court err when it denied the motion for mental examination?

The statutory procedures for determining one’s competency to stand trial include the right of an accused to be examined for determination of his fitness to proceed.

46-14-202. Examination of defendant. (1) If the defendant or the defendant’s counsel files a written motion requesting an examination or if the issue of the defendant’s fitness to proceed is raised by the district court, prosecution, or defense counsel, the district court shall appoint at least one qualified psychiatrist or licensed clinical psychologist or shall request the superintendent of the Montana state hospital to designate at least one qualified psychiatrist or licensed clinical psychologist, which designation may be or include the superintendent, to examine and report upon the defendant’s mental condition.

As originally enacted, the statute provided that when “there is reason to doubt [the defendant’s] fitness to proceed ... the court shall appoint ...” See § 95-505, R.C.M. (1947). The statute was amended in 1981 to provide that the defendant or his counsel could raise the matter of the defendant’s fitness to be tried. In 1991, it was further amended to allow the court or the prosecution, as well as the defense, to raise the issue.

Section 46-14-202, MCA, does not require that the defendant must agree to a mental examination. If one of the listed persons files a written motion, or if the issue of the defendant’s fitness to proceed is raised by one of the listed persons, the court “shall” arrange for such an examination. The word “shall” is compulsory. However, the statute does not directly answer the question of whether standby counsel’s motion for a mental examination of the defendant must be granted.

A criminal defendant may not be tried unless he is competent. Godinez v. Moran (1993),_U.S._, 113 S.Ct. 2680, 125 L.Ed.2d 321. The State argues that Bartlett had been ruled competent to represent himself and that therefore he had the right to refuse a mental examination. However, courts have a continuing duty to review the issue of competency in criminal proceedings.

Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.

Drope v. Missouri (1975), 420 U.S. 162, 181, 95 S.Ct. 896, 908, 43 L.Ed.2d 103, 119.

The State further contends that allowing standby counsel to force a mental examination would deprive Bartlett of his Sixth Amendment right to self-representation, citing Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.

The right to self-representation imposes some limitations on standby counsel’s unsolicited participation. McKaskle v. Wiggins (1984), 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122. In proceedings held in the presence of the jury, the pro se defendant must be allowed to preserve actual control over the case he chooses to present to the jury, and standby counsel must not make or substantially interfere with any significant tactical decisions, control the questioning of witnesses, or speak instead of the defendant on any matter of importance. McKaskle, 465 U.S. at 178, 104 S.Ct. at 951. For proceedings outside the jury’s presence:

Faretta rights are adequately vindicated ... if the pro se defendant is allowed to address the court freely on his own behalf and if disagreements between counsel and the pro se defendant are resolved in the defendant’s favor whenever the matter is one that would normally be left to the discretion of counsel.

McKaskle, 465 U.S. at 179, 104 S.Ct. at 951.

As set forth above, under § 46-14-202, MCA, either the prosecution or the defense in a criminal case, or the court itself, may initiate a mental examination of the defendant. As further noted above, the statute requires that if one of the entities listed raises the issue, the court shall order an examination. Therefore, we conclude that this is not a decision which would normally be left to the discretion of defense counsel. We further conclude that granting such a request does not infringe upon the defendant’s ability to present his case to the jury.

In this instance, we are faced with sometimes competing constitutional rights of a criminal defendant to represent himself if he competently so chooses, and not to be tried if he is incompetent to stand trial. Standby counsel for a pro se criminal defendant will commonly have greater exposure to and knowledge of the mental state of the defendant than will either the prosecution or the court. We conclude that the issue of defendant’s competence to stand trial, when raised by standby counsel, must be treated with as much deference as if the issue were raised by the prosecution or the court itself. We therefore hold that a motion by standby counsel for mental examination under § 46-14-202, MCA, must be granted as a matter of right.

Having thus concluded that the District Court violated § 46-14-202, MCA, we reverse Bartlett’s conviction and remand for further proceedings consistent with this Opinion.

JUSTICES GRAY, HUNT, TRIEWEILER and LEAPHART concur.


author: JUSTICE LEAPHART

text:
    MARTIN E. WEINSTEIN, Plaintiff, Appellant and Cross-Respondent, v. THE UNIVERSITY OF MONTANA, at MISSOULA, MONTANA, a Montana Educational Entity, GEORGE M. DENNISON, and ROBERT L. KINDRICK, Defendants, Respondents and Cross-Appellants.
    No. 95-097.
    Submitted on Briefs May 18, 1995.
    Decided July 6, 1995.
    52 St.Rep. 578.
    898 P.2d 101.
    271 Mont. 435.

      For Appellant: Dexter L. Delaney, Brian L. Delaney; Mulroney, Delaney & Scott, Missoula.
    For Respondents: William L. Crowley, Sam E. Haddon; Boone, Karlberg & Haddon, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Martin E. Weinstein (Weinstein) appeals from an order of the Fourth Judicial District Court, Missoula County, which granted the defendants, the University of Montana (University), George M. Dennison (Dennison), and Robert L. Kindrick (Kindrick), partial summary judgment. The defendants cross-appeal the District Court’s order certifying its partial summary judgment order as a final judgment. Because we reverse the District Court’s order certifying its previous partial summary judgment order as a final judgment, we decline to address the merits of Weinstein’s appeal.

Background

Without delving into great detail, the following facts are necessary for an understanding of the case’s background to date. Dennison is the president of the University and Kindrick is the provost. The University established the Maureen and Mike Mansfield Center to further the work of Mike Mansfield in the areas of ethics in public affairs and modem Asian studies. On May 27,1992, Weinstein accepted the position of Mansfield Center Director. Weinstein spoke with Dennison and Kindrick before he accepted the position. Weinstein alleges that certain representations regarding the powers of the Mansfield Center Director were made to him before he accepted the position.

On June 2, 1992, Dr. Deni Elliot, a finalist for the director’s position, accepted a position as the Mansfield Center Professor of Public Affairs and Ethics. Weinstein alleges that he was not given the opportunity to contribute to the decision of whether to hire Elliot. There was great friction between Weinstein (as Elliot’s supervisor) and Elliot during the 1992-1993 academic year. On May 18,1993, Kindrick informed Weinstein that he would be terminated as Mansfield Center Director effective June 30, 1993. Weinstein’s contract stated that he would receive at least one year’s notice before termination.

On May 28, 1993, Weinstein filed a complaint against the University, Dennison, and Kindrick. Weinstein later amended his complaint. OnFebruary22,1994, Weinstein filed his second amended complaint. Weinstein’s second amended complaint sought damages from the University for breach of contract and breach of the implied covenant of good faith and fair dealing. Weinstein sought damages from Dennison and Kindrick for tortious interference with his contractual relationship with the University.

Weinstein’s complaint listed five factual allegations supporting relief under each of his theories:

1. The defendants hired Elliot without Weinstein’s approval.

2. Elliot was removed from Weinstein’s supervision.

3. Weinstein was threatened with dismissal from his post as Mansfield Center Director unless he signed an agreement that varied from his employment contract.

4. Dennison and Kindrick failed to approve Weinstein’s application for tenure as a professor of Political Science.

5. Contrary to his employment agreement, Weinstein was given less than one year’s notice of termination from his position as Director of the Mansfield Center.

On June 16, 1994, the defendants moved for partial summary judgment on three issues. The University sought summary judgment on Weinstein’s claim that the University breached his contract by hiring Elliot without Weinstein’s consent. Dennison and Kindrick sought summary judgment on Weinstein’s claim that Dennison and Kindrick tortiously interfered with his contractual relationship with the University. The defendants also moved for summary judgment to have Weinstein’s contractual damages limited to a one-year period from the date he received notice of termination. On September 1, 1994, the District Court entered its judgment granting defendants’ motion for partial summary judgment.

On September 23, 1994, Weinstein moved the court to certify its order granting defendants partial summary judgment as a final judgment pursuant to Rule 54(b), M.R.Civ.P. On January 9, 1995, the court certified its previous order granting defendants partial summary judgment as a final judgment. Weinstein appeals from the order granting partial summary judgment and the defendants cross-appeal from the District Court’s order certifying its partial summary judgment order as a final judgment.

The dispositive issue raised in the cross-appeal is: Whether the District Court erred in certifying its order of partial summary judgment as a final judgment.

Standard of Review

We have stated that “[i]t is in the discretion of the District Court to grant or deny a request for a Rule 54(b) certification.” Roy v. Neibauer (1980), 188 Mont. 81, 85, 610 P.2d 1185, 1188 (citations omitted). However the decision to allow an appeal to proceed in such a situation should not be entered lightly. Roy, 610 P.2d at 1188. We review discretionary rulings to determine if the district court abused its discretion. Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125.

Discussion

Rule 54(b), M.R.Civ.P., states:

When multiple claims for relief or multiple parties are involved in an action, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

If a district court abuses its discretion in certifying an order as final under Rule 54(b), we are without jurisdiction to entertain the appeal. Reidy v. Anaconda-Deer Lodge County (1981), 196 Mont. 127, 130, 637 P.2d 1196, 1197 (citation omitted).

Rule 54(b), M.R.Civ.P., is substantially patterned after Federal Rule 54(b). We have looked previously to federal courts’ interpretations of the federal rule for guidance in our own cases. See Roy, 610 P.2d at 1188; citing Allis Chalmers Corp. v. Philadelphia Electric Co. (3rd Cir. 1975), 521 F.2d 360; United Bank of Pueblo v. Hartford Acc. & Indem. Co. (10th Cir. 1976), 529 F.2d 490.

The defendants first argue that the District Court’s order granting partial summary judgment was a partial adjudication of a single claim. In support, the defendants cite Sussex Drug Products v. Kanasco, Ltd. (3rd Cir. 1990), 920 F.2d 1150, 1154, in which the Third Circuit Court of Appeals stated:

Hesitant to slog through an exhaustive survey of opinions in search of an elusive decisive formula, we will mention but a few of the governing considerations discussed in case law. Alternative theories of recovery based on the same factual situation are but a single claim, not multiple ones. Allegheny County Sanitary Auth. [v. EPA (3rd Cir. 1984)], 723 F.2d [1167] at 1172. An order that eliminates two of several elements of damages flowing from a single claim does not qualify for Rule 54(b) certification. [Citation omitted.]

We adopt the language from Sussex Drug to the effect that in analyzing Rule 54(b) certification issues, we will consider alternative theories of recovery that are based on the same factual situation as a single claim.

The defendants further argue that since the partial summary judgment was only a partial adjudication of a single claim, the court’s order was not properly certified as a final judgment under Rule 54(b). We would agree if it were not for the fact that there are multiple parties to this action, and two of the three defendants, Kindrick and Dennison, were effectively dismissed from the case by the District Court’s grant of partial summary judgment.

Before it was amended, federal Rule 54(b) applied to multiple claims but not multiple parties. After it was amended to include multiple party actions, the United States Supreme Court had occasion to address Rule 54(b) in Liberty Mutual Ins. Co. v. Wetzel (1976), 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435. In Liberty Mutual, the Court noted that, following an adverse ruling in a previous case that involved multiple parties but only one claim, “Rule [54(b)] was amended to insure that orders finally disposing of some but not all of the parties could be appealed pursuant to its provisions.” Liberty Mutual, 424 U.S. at 743, n. 3, 96 S.Ct. at 1206, n. 3.

Here, the District Court’s order disposes of Dennison and Kindrick, but the University remains as a defendant in the litigation. Because its order disposed of some, but not all, of the parties, the District Court could conduct Rule 54(b) analysis. However, that is only the beginning of our inquiry.

In Roy, we listed several factors for a district court to consider in cases where parties seek Rule 54(b) certification. Depending on the particular case, some or all of the factors may bear upon the propriety of the order granting Rule 54(b) certification. We must apply those factors to determine whether the District Court abused its discretion. The factors listed in Roy are:

1. The relationship between the adjudicated and unadjudicated claims;
2. the possibility that the need for review might or might not be mooted by future developments in the district court;
3. the possibility that the reviewing court might not be obliged to consider the same issue a second time;
4. the presence or absence of a claim or counterclaim which could result in a setoff against the judgment sought to be made final;
5. miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, triviality of competing claims, expense, and the like.

Roy, 610 P.2d at 1189 (citation omitted).

Here, the District Court found that it was significant that Weinstein’s adjudicated and unadjudicated claims are legally distinct. However, we find it more important that Weinstein’s theories all are based on the same set of facts. Thus for Rule 54(b) purposes, there is but a partial adjudication of a single claim. This factor militates against the granting of a Rule 54(b) certification.

The District Court did not determine whether future developments in that court might moot the necessity of review of the issues presently before this Court.

Next, the District Court found that it is not likely that this Court would have to decide the same issues again if we address them now. Weinstein alleged the same facts in each count against the University as in his count against Dennison and Kindrick. When Rule 54(b) certification is sought with regard to the dismissal of two of three defendants, and the factual allegations against the dismissed defendants overlap with the factual allegations against the remaining defendant, the appellate court is requested to decide issues which remain pending in the district court. The appellate court may thus have to cover the same ground later on a direct appeal. See N.A.A.C.P. v. American Family Mutual Ins. Co. (7th Cir. 1992), 978 F.2d 287, 292, stating that:

Ideally the facts and theories separated for immediate appeal should not overlap with those retained; to the extent they do, the court of appeals is “deciding” claims still pending in the district court, and may have to cover the same ground when the district court acts on the residue.

N.A.A.C.P., 978 F.2d at 292. This “overlap” factor militates against the granting of a Rule 54(b) certification.

As the District Court correctly found, there is no possibility of a set-off against the judgment at issue here. This factor does not bear upon the propriety of a Rule 54(b) certification of this case.

As to the miscellaneous factors, the District Court found that it would be unusually harsh not to certify this case because its order limited damages to a one-year period from Weinstein’s receipt of notice of termination. However, an order that eliminates elements of damages flowing from a single claim does not qualify for Rule 54(b) certification. Sussex Drug Products, 920 F.2d at 1154.

The District Court also believed that certification was beneficial because it would “enhance opportunities to resolve the case by settlement” and would be desirable because a decision by this Court could be used to “control the balance of litigation in District Court.” We think it is undesirable to rely on such considerations in determining whether to grant a Rule 54(b) motion for certification. Such reliance leads to requests of this Court to render advisory opinions in order to facilitate settlement or to speed the process in district courts. We believe such advisory opinions are beyond the scope of Rule 54(b) and we caution district courts against the temptation to certify difficult issues to this Court in order to provide guidance for the remainder of the case.

In addition, the court apparently found it significant that Weinstein strongly opposed summary judgment and promised an eventual appeal if Rule 54(b) certification were not granted. This is a non-factor. Every party seeking a Rule 54(b) certification may eventually appeal the judgment in question. If a promise of an appeal were seriously considered in analyzing every Rule 54(b) case, then virtually every party seeking Rule 54(b) certification would be successful. Rule 54(b) certifications, and piecemeal litigation, are generally disfavored. Rule 54(b) certification is to be granted only in the “ ‘infrequent harsh case’ meriting a favorable exercise of discretion ....” Roy, 610 P.2d at 1188; citing Allis Chalmers Corp., 521 F.2d at 365.

Under the Roy factors, Weinstein failed to meet his burden of demonstrating that this case is the infrequent harsh case. We hold that the District Court abused its discretion in granting Weinstein’s motion for Rule 54(b) certification of the court’s partial summary judgment as a final judgment.

We conclude with these considerations for Rule 54(b) analysis.

1. Several theories based on the same set of facts are considered as a single claim for purposes of Rule 54(b) analysis.

2. A partial adjudication of a single claim generally is not properly certified under Rule 54(b).

3. Ajudgment which dismisses some but fewer than all parties in a case involving multiple parties may be proper for certification under Rule 54(b), depending upon the analysis of the factors listed in Roy.

4. A case involving multiple parties in which no parties are dismissed, and which involves a partial adjudication of a single claim, is not proper for Rule 54(b) certification.

Because the District Court abused its discretion in certifying its partial summary judgment order as final under Rule 54(b), we are without jurisdiction to hear Weinstein’s appeal. We reverse the District Court’s order certifying its partial summary judgment order as a final judgment. We dismiss Weinstein’s appeal without prejudice. We reverse and remand for further proceedings.

JUSTICES NELSON, HUNT, GRAY and WEBER concur.