text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KENNETH TRASK, Defendant and Appellant.
    No. 88-263.
    Submitted on Briefs Aug. 26, 1988.
    Decided Oct. 27, 1988.
    Rehearing Denied Dec. 6, 1988.
    764 P.2d 1264.
    Moses Law Firm, Jay F. Lansing, Billings, for defendant and appellant.

      Mike Greely, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Curtis L. Bevolden, Deputy Co. Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Kenneth Trask, the defendant, appeals his conviction by the District Court of the Thirteenth Judicial District, Yellowstone County for the offense of felony assault, Section 45-5-202(2) (b), MCA. We affirm.

The sole issue presented on appeal is whether sufficient evidence existed to sustain the District Court’s verdict convicting Kenneth Trask of felony assault under Section 45-5-202(2)(b), MCA.

In January, 1987, Bonnie Gill and her fiance, Robert Aukshun, resided together in his trailer house on Highway 312, near Huntley, Montana. Gill had previously been married to Kenneth Trask, the defendant, from June 13, 1981 and until the dissolution of their marriage on July 12, 1985.

On January 23, 1987, Gill and Aukshun retired between 9:00 p.m. and 9:30 p.m. At approximately 10:00 p.m., Gill and Aukshun heard their puppy barking and then shortly thereafter, knocking on their trailer door. Both looked out the windows but were unable to see either lights or a vehicle. Aukshun then opened the front door a “little bit” and looked out, but was unable to see anyone. He did, however, notice that the safety chain on the screen door had been unlatched and the screen door, which had been latched and secured earlier in the evening, was wide open. Aukshun then poked his head out the front door, looked around, and noticed a man crouched down near the door, aiming a rifle at him. Aukshun quickly slammed the door, moved away from behind the door, and as he was attempting to lock the door, six shots were fired in rapid succession through the trailer door. A subsequent investigation revealed that the firearm used was a Ruger Mini-14 .223 semi-automatic rifle belonging to Trask and that the height and angle at which the bullets entered the door would have hit a person between the midsection and just below the hip, depending on where the person was standing.

Immediately after the shooting, Aukshun, in fear for his life, got his handgun and attempted to telephone the sheriff. The telephone, although working properly earlier in the evening, was dead. Auk-shun then ran approximately Vs mile to his nearest neighbor’s home and called the Yellowstone County Sheriff’s Office. In the meantime, Gill remained in the trailer, lying frightened in the bathtub and in the dark.

Deputy Steven Harms of the. Yellowstone County Sheriffs Office answered the call. The investigation revealed that the telephone line to the trailer had been cut with a sharp object, both before and after the line entered the junction box located on the outside of the trailer. The T.V. cable had also been cut. Footprints, later identified as belonging to Trask, were discovered both beneath the telephone box and where Aukshun testified that the man with the rifle had been kneeling. Gill told Deputy Harms that she thought that Trask was the one who fired the rifle and then relayed to Deputy Harms that she was once married to Trask and that Trask had told her that if she ever began dating other men he would kill her and the particular man involved.

Four days after the shooting, deputies located Trask at the Park-side Lodge Alcohol Treatment Center near Denver, Colorado. On January 27, 1987, following a Miranda warning, Detective Jensen obtained a statement from Trask. In his statement, Trask admitted that he remembered shooting at Aukshun’s trailer door on January 23, 1987 and burying his Ruger Mini-14 .223 rifle in some rocks near his sawmill because of his concern about firing it at Aukshun’s trailer door. Upon following Trask’s directions, Jensen was able to locate the buried Ruger Mini-14 .223 rifle along with several boxes of .223 ammunition. The Ruger Mini-14 .223 rifle, the ammunition, and the six cartridge casings collected near the Aukshun’s trailer door on January 23, 1987, were sent to a FBI laboratory for comparison. The FBI report concluded that the six cartridge casings were fired from Trask’s Ruger Mini-14 .223 rifle.

Trask also stated in his statement that prior to the shooting, he had spent the day drinking at a tavern and that he was intoxicated when he drove to Aukshun’s trailer. He stated that he bought the Ruger Mini-14 .223 rifle approximately two weeks prior to January 23, 1987 and that he recalled taking the rifle with him to the Auk-shun’s trailer. Trask acknowledged that he carried wire-cutting tools in his pickup and that he knew his ex-wife, Gill, was living at the trailer when he fired the six .223 rounds into it. He also recalls parking on the southside of the railroad tracks and driving, after the shooting, to a local tavern to cash a check and purchase more beer.

Trask was charged by information on March 4, 1987, with the offense of felony assault, Section 45-5-202(2) (b), MCA. Trask pled not guilty and on April 30, 1987, filed his notice, pursuant to Section 46-14-201(1), MCA, indicating he would rely on a mental disease or defect to prove that he did not have the particular state of mind which is an essential element of the offense charged. The District Court granted Trask’s motion for a psychiatric examination and he was subsequently examined by Dr. Joseph Rich, a psychiatrist.

Trask waived his right to a jury trial and the matter was tried before the District Court of the Thirteenth Judicial District. After the trial, the District Court filed its finding of facts and conclusions of law on October 2, 1987, finding that Trask had the requisite mental state and therefore finding him guilty of the offense of felony assault under Section 45-5-202(2)(b), MCA. Following a presentence investigation, the court sentenced Trask to eight years in the Montana State Prison for the offense of felony assault along with a consecutive two year term, pursuant to Section 46-18-221, MCA, because Trask used a firearm in committing the assault. The court subsequently ordered both sentences suspended subject to certain conditions. Trask appealed his conviction on February 16, 1988.

The sole issue presented on appeal is whether sufficient evidence existed to sustain Kenneth Trask’s conviction of felony assault under Section 45-5-202(2)(b), MCA.

Trask argues that the State failed to prove beyond a reasonable doubt that Trask had the requisite mental state to commit the offense of felony assault, Section 45-5-202(2)(b), MCA, when he fired the six shots at Aukshun’s trailer door. In arguing this contention, Trask primarily relies upon the opinion of the expert witness, Dr. Joseph Rich. After evaluating Trask, Dr. Rich concluded that Trask suffered from a mental disease, resulting from major depression and alcohol related problems, and therefore was incapable of acting knowingly or purposely. Trask then argues that the State failed to offer any testimony that would rebut Dr. Rich’s opinion regarding Trask’s mental state and therefore failed to prove beyond a reasonable doubt that Trask committed the offense of felony assault. We disagree.

The statute under which Trask was charged and convicted is Section 45-5-202(2)(b), MCA, which reads that “[a] person commits the offense of felony assault if he purposely or knowingly causes . . . reasonable apprehension of serious bodily injury in another by use of a weapon . . . .” The requisite mental state under this statute is either purposely or knowingly. The definition for ‘purposely’ includes when a person’s conscious object is to engage in a particular conduct or to cause a particular result. Section 45-2-101(58), MCA. The definition for ‘knowingly’ includes a person who is aware that it is highly probable that a particular result will be caused by his conduct. Section 45-2-101(33), MCA.

In the present case, the record reveals that approximately two weeks before the shooting, Trask bought the .223 caliber Ruger Mini-14 semi-automatic rifle that he used in the shooting incident. Detective Jensen testified that the ammunition used in the shooting was probably a full metal jacket variety, considered ideal for penetrating, especially an object such as a trailer house door. On January 23,1987, the day of the shooting, Trask voluntarily consumed excessive amounts of alcohol before and after the shooting incident. Before engaging in the shooting, Trask parked his truck approximately 286 feet from Aukshun’s trailer and on the opposite side of an eight foot high railroad embankment. The truck therefore was not visible from Aukshun’s trailer. Trask then traversed the 286 feet to the trailer and proceeded to cut the telephone line leading into the trailer and just outside the junction box. The telephone line, however, was also cut inside the junction box, which required unscrewing a small screw to remove the cover from the box.

The record also indicates that Trask unlatched and opened the screen door, such that anyone appearing at the door opening would be fully exposed. Trask had his rifle aimed at the door when Auk-shun opened it. Immediately after Aukshun slammed the door closed, Trask fired the six shots into the door. Trask then fled the scene, buried the rifle and ammunition, and subsequently checked himself into an alcohol treatment center near Denver, Colorado. In addition, the record reveals that he knew that his ex-wife, Gill, lived in the trailer with Aukshun and that he had previously made threats that if she ever began dating other men he would kill her and the particular man involved.

Trask’s contention that Dr. Rich’s opinion that he, Trask, was incapable of acting purposely or knowingly was uncontroverted is unfounded in light of the above evidence. Upon reviewing this issue, a conviction may not be overturned when the evidence presented, viewed in the light most favorable to the prosecution, would permit a rationale trier of fact to find the essential elements necessary to establish the offense. State v. Lundblade (Mont. 1986), [221 Mont. 185,] 717 P.2d 575, 577, 43 St.Rep. 732, 733-34 (citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560). This standard applies regardless of whether a judge, as in the present case, or a jury is acting as the trier of fact. See, e.g., State v. Tibbitts (Mont. 1987), [226 Mont. 36,] 733 P.2d 1288, 1290-92, 44 St.Rep. 439, 441-42. The trier of fact therefore is responsible for determining whether a defendant has the requisite mental state to be convicted under the statute charged. State v. Doney (Mont. 1981), [_ Mont. _,] 636 P.2d 1377, 1382, 38 St.Rep. 1707, 1712-13; State v. Hardy (1980), 185 Mont. 130, 135-36, 604 P.2d 792, 795-96; State v. Jackson (1979), 180 Mont. 195, 205, 589 P.2d 1009, 1015 (citing State v. Madden (1954), 128 Mont. 408, 416, 276 P.2d 974, 978). Mental state may be inferred from circumstantial evidence, including a defendant’s actions and evidence found surrounding the alleged offense. Hardy, 185 Mont. at 136-37, 604 P.2d at 796; Jackson, 180 Mont. at 205, 589 P.2d at 1015 (citing Madden, 128 Mont. at 416, 276 P.2d at 978). Further, the interpretation of an expert witness’s opinion and the amount of weight given to that opinion compared to the other evidence presented is within the province of the trier of fact. Doney, 636 P.2d at 1381, 38 St.Rep. at 1711; Hardy, 185 Mont. at 136, 604 P.2d at 796.

The crucial determination for the trier of fact in this case is whether Trask acted purposely or knowingly. While Dr. Rich’s opinion may tend to establish that Trask suffered from a mental disease, the evidence is overwhelming that Trask nonetheless acted purposely or knowingly in connection with the shooting incident. The evidence presented allowed the trier of fact to determine that Trask acted purposely or knowingly when he attempted to shoot Aukshun, as well as when he performed successfully all the actions necessary that brought him to Aukshun’s trailer. Fleeing the scene afterwards and burying the rifle and ammunition is also evidence that demonstrates he acted purposely or knowingly.

Upon reading the District Court file, including the transcripts and the letters submitted by family, friends, acquaintances, and psychiatrists, we acknowledge that the file is replete with information supporting Trask and his progress towards becoming a contributing member of society. The District Court, which suspended Trask’s sentence subject to conditions, including refraining from visiting places where intoxicating beverages are the chief items of sale and continuing with necessary treatment, apparently took note of Trask’s pursuits and accomplishments.

The evidence and the law, however, supports the District Court. We therefore hold that substantial credible evidence exist to support the District Court’s finding that Trask, beyond a reasonable doubt, purposely or knowingly caused reasonable apprehension of serious bodily injury in another.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, McDONOUGH and WEBER concur.


source: Caselaw Access Project

author: MR. JUSTICE McDONOUGH

license: Public Domain

text:
    ERNEST E. TOOKE and Peggy Tooke, Plaintiffs and Appellants, v. The MILES CITY PRODUCTION CREDIT ASSOCIATION, a corporation, the Interstate Production Credit Association, a corporation, and Albert Van Hamlryck, Defendants and Respondents.
    No. 87-409.
    Submitted Sept. 13, 1988.
    Decided Oct. 31, 1988.
    763 P.2d 1111.

      Gene Huntley argued, Baker, for plaintiffs and appellants.
    George W. Huss, Brown and Huss, Miles City, John D. Alexander, Ugrin, Alexander, Zadick & Slovak, Great Falls, R. Alan Wight argued, Miller, Nash, Wiener, Hager & Carlsen, Portland, Or., for defendants and respondents.
    Brian J. Smith argued, Missoula, for amicus curiae Deschamps.
    Theodore Thompson argued, Havre, for amicus curiae Steretts.
    Warren C. Wenz argued, Great Falls, for amicus curiae R & C Farming and R5 Ranch.
    Kenneth R. Dyrud argued, Great Falls, for amicus curiae Kenneth Sollid & Son.
    Martin S. King, Missoula, for amicus curiae Western Mt. Production Credit.
    Brad L. Arndorfer, Billings, for amicus curiae Miller and D & M Farms.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from the Sixteenth Judicial District Court, Carter County. The only issue is whether the District Court properly dismissed Appellants Tookes’ tort claim against Respondents Miles City Production Credit Association, Interstate Production Credit Association, and Albert Van Hamlryck, (MCPCA), for lack of subject matter jurisdiction. We reverse. (Production credit associations in general are hereinafter referred to as PCA’s, and the Federal Tort Claims Act is hereinafter referred to as the FTC A).

This Court has already issued one opinion affirming the District Court. That opinion appears at 45 St.Rep. 641. Subsequent to issuing the first opinion this Court granted Tookes’ petition for rehearing, allowed further briefing by the parties and their amici, and heard oral argument. Our decision to reach a result opposite the first opinion issued is based on reconsideration of previously submitted authority, new authority, and recent federal district court decisions which continue to restrict federal subject matter jurisdiction in actions where PCA’s attempt to invoke the FTCA. We hereby order the first opinion withdrawn and substitute this opinion in its place.

Tookes alleged that MCPCA’s actions on the Tookes’ loan application amounted to breach of fiduciary duty and constituted constructive and actual fraud. MCPCA moved to dismiss the suit contending that under the Federal Tort Claims Act subject matter jurisdiction for torts alleged against PCA’s rested exclusively in federal court. See 28 U.S.C. Section 1346(b) (1982). The District Court agreed citing In the Matter of Sparkman (9th Cir. 1983), 703 F.2d 1097, and Towery v. Willamette PCA (Dist. Ct. Ore. Sept. 19, 1983), No. 83-28BE. Towery relied on Sparkman to dismiss a tort claim in state court against an Oregon PCA.

On appeal, Tookes argue that Sparkman does not apply, and that PCA’s are exempted from FTCA coverage. Their arguments are premised on the fact that; (1) Congress authorized suit against PCA’s in the Farm Credit System legislation, (2) Congress provided for an exemption for PCA’s in the FTCA, and (3) under the test set out in Lewis v. United States (9th Cir. 1982), 680 F.2d 1239, PCA’s are not instrumentalities for purposes of the FTCA.

Tookes present the further argument on rehearing that our first decision in this case effectively denies tort claimant’s access to court for prosecution of claims against PCA’s because the Montana Federal District Courts continue to deny federal jurisdiction of such causes of action. See Federal Land Bank of Spokane v. Stiles (D. Mont. 1988) 700 F.Supp. 1060 (citing Sterrett v. Milk River PCA (D. Mont. 1986), 647 F.Supp. 299). In particular, Tookes assert that the denial of a forum for their claim violates their rights under the Montana Constitution, Article II, Section 16.

MCPCA responds that: (1) Sparkman controls the extent of the waiver of sovereign immunity granted by the Farm Credit System legislation for tort claims against PCA’s, (2) PCA’s were not exempted from FTCA coverage even though some of the Farm Credit System’s components are arguably exempted, and (3) Sparkman provides the test for determining whether PCA’s are instrumentalities for purposes of the FTCA.

MCPCA also responds to Tookes’ argument on the rights guaranteed by the Montana Constitution, Article II, Section 16, by asserting that sovereign immunity protections fall outside the constitutional guarantees.

MCPCA points out that tort claims against instrumentalities acting primarily as agents of the United States must be pursued according to the FTCA. 28 U.S.C. Section 2671 (1982). And tort claims cognizable under the sovereign immunity waiver in the FTCA must be brought in federal district court. 28 U.S.C. Section 1346(b) (1982).

The farm credit enabling legislation provides instrumentality status for PCA’s. 12 U.S.C. Section 2091 (1982). And at least in regard to state taxation, Congress protected PCA’s by granting them instrumentality status. 12 U.S.C. Section 2098 (1982). MCPCA argues that these statutes and Sparkman demonstrate that PCA’s are instrumentalities for purposes of applying the FTCA.

Tookes argue that despite the instrumentality status of PCA’s, they are subject to state court jurisdiction on tort claims. Tookes point out that Sparkman relied on general principles of sovereign immunity rather than the FTCA to find protection from punitive damages for PCA’s. The more specific authority, Lewis, allows state court jurisdiction, according to Tookes. We agree with Tookes that Lewis controls over Sparkman.

In Sparkman the Ninth Circuit Court of Appeals reviewed a decision from bankruptcy court where the debtor’s counterclaim in tort sought punitive damages from the creditor PCA. The bankruptcy court refused to hold the PCA liable for punitive damages. The Court of Appeals relied on general principles of sovereign immunity to affirm the decision. Sparkman, 703 F.2d at 1100. The fact that Sparkman relied on general principles of sovereign immunity rather than the FTCA is evident by its citation of Painter v. Tennessee Valley Authority (5th Cir. 1973), 476 F.2d 943. Painter held that sovereign immunity protected the Tennessee Valley Authority from punitive damages. Painter, 476 F.2d at 944. However, Painter is not a FTCA case because the Tennessee Valley Authority is specifically exempted from the agencies and instrumentalities covered in the FTCA. 28 U.S.C. Section 2680(1)(1982). Thus, Sparkman did not decide the issue before us in this case.

Nevertheless, Sparkman stands for the proposition that current federal law grants some of the benefits of sovereign immunity to PCA’s. According to the Court,

“The sovereign, along with its agencies and instrumentalities, enjoys immunity from suit unless it waives that immunity. Federal Housing Administration v. Burr, 309 U.S. 242, 244, 60 S.Ct. 488, 490, 84 L.Ed. 724 (1940). A federal instrumentality, therefore, retains its immunity from punitive damages unless Congress explicitly authorizes liability for such damages.”

Sparkman, 703 F.2d at 1101 (emphasis in original). The case also makes it clear that the waiver of sovereign immunity as found in the sue and be sued provision in the PCA enabling legislation does not waive all sovereign immunity protections. Sparkman, 703 F.2d at 1101. And generally, waivers of sovereign immunity are to be strictly construed. Library of Congress v. Shaw (1986), 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250.

On the other hand, however, we agree with Tookes that sue and be sued provisions in general should be construed to include actions sounding in tort, as well as those sounding in contract. Keifer v. Reconstruction Finance Corp. (1939), 306 U.S. 381, 395-96, 59 S.Ct. 516, 520-21, 83 L.Ed. 784, 792-93. And unlike Shaw, Lewis considers the more specific issue of whether a particular entity should be classified as a government agency under 28 U.S.C. Section 2671, the applicable provision of the FTCA. Lewis, 680 F.2d 1240.

More recent authority persuades this Court that Sparkman should be distinguished, and Lewis should be applied in favor of Tookes’ argument. In the case of In re Hoag Ranches (9th Cir. 1988) 846 F.2d 1225, the Court considered the status of PCA’s to determine whether they should be considered government agencies under Rule 4(a)(1), F.R.App.P. Rule 4(a)(1) allows government agencies 60 days to file a notice of appeal, while private parties are allowed only 30 days. The Court in Hoag Ranches refused to allow the appealing PCA agency status under Rule 4(a)(1) reasoning as follows:

“Considering the history and current status of PCA’s, we conclude that they are not government agencies within the meaning of Rule 4(a)(1). We recognize that some factors weigh in favor of finding agency status. PCA’s undoubtedly further a government interest in improving the well-being of American farmers and ranchers, and the government was extensively involved in their establishment. At one time it was also actively involved in supervising PCA activities.
“We also take note of decisions suggesting that PCA’s are, for some purposes, arms of the government. In Schlake v. Beatrice Prod. Credit Ass’n the court found that because of the government’s pervasive involvement in the creation and operation of PCA’s, PCA action was a colorable basis for jurisdiction in an action alleging a fifth amendment violation. 596 F.2d 278, 281 (8th Cir. 1979). We ourselves have found that PCA’s are immune from punitive damages based on their status as federal instrumentalities. In re Sparkman, 703 F.2d 1097, 1101 (9th Cir. 1983).
“However, since these cases were decided, the government has withdrawn from management of PCA operations and has taken additional steps to establish PCA’s as private entities. The role of the Farm Credit Administration has been changed from supervisor to arms-length regulator. PCA’s are now privately owned, organized and operated; the government has no proprietary interest. These changes suggest that PCA’s, as they now stand, are not government agencies.”

Hoag Ranches, at 1228.

The method for determining PCA agency status in Hoag Ranches follows along the same lines used for determining FTCA coverage for federal reserve banks in Lewis. For example, in Lewis the Court considered; (1) whether the federal government controlled the entity’s detailed physical performance and day to day operations, (2) whether the entity was an independent corporation, (3) whether the government was involved in the entity’s finances, and (4) whether the mission of the entity furthered the policy of the United States. In Hoag Ranches each of these factors was addressed, and except for the issue of whether the mission of PCA’s furthers U.S. policy, the factors weighed for finding no agency status.

Similarly, in South Central Iowa PCA v. Scanlan (Iowa 1986), 380 N.W.2d 699, the Court found that application of the Lewis test lead to the conclusion that PCA’s could not claim agency status:

“In Lewis the court followed the approach suggested in [U.S. v. Orleans [425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976)] to determine whether federal reserve banks were federal instrumentalities within the meaning of the FTCA. The Lewis court considered several factors: whether the federal government controlled the daily physical performance of reserve banks; whether the bank in question was an independent corporation; whether the government was involved in the bank’s finances; and whether the mission of the bank furthered the policy of the United States. Lewis, 680 F.2d 1240-41. Applying these factors the court determined that the federal reserve bank was not a federal instrumentality for purposes of the FTCA.
“We believe that application of those same factors in this case reveals that PCA’s are essentially nongovernmental, independent entities which Congress did not intend the FTCA to cover. Like federal reserve banks, PCA’s are privately owned. Each PCA sells stock to obtain capital; however, only individual borrowers can purchase shares. 12 U.S.C. Section 2094(b). Each PCA is operated by an independent board of directors. 12 U.S.C. Section 2092, 2093. South Central employees are neither federal employees nor supervised by federal employees.”

Scanlan, 380 N.W.2d at 701. The authority provided by Scanlan, and the new authority provided by Hoag Ranches, leads this Court to conclude that PCA’s are not FTCA agencies under the test from Lewis.

MCPCA argues that Hoag Ranches does not apply to the case at bar because the Court in Hoag Ranches relied in part on the 1985 amendments to the Farm Credit Act which made the Farm Credit Administration more of an “arms length regulator” than a “hands on” supervisor. Hoag Ranches, at 1228. The case at hand arose prior to the amendments, and thus Hoag Ranches does not apply, according to MCPCA. However, in addition to the 1985 amendments, Hoag Ranches recognized that:

“there are other factors which have always weighed against treating PCA’s as agencies. PCA’s are not referred to as agencies in either Title 12 or the legislative history, and they have no greater access to federal court than do other private corporations. When they do go to court, they are represented by private, rather than government, counsel.... Finally, Federal Land Banks, which are comparable to PCA’s in many ways, are not considered government agencies. Cotton, 410 F.Supp. [169] at 171 [N.D. Ga. 1975].”

Hoag Ranches, at 1229. We are also convinced that even prior to 1985, PCA’s were

“privately organized, privately owned, and privately operated corporation^], albeit federally chartered.”

United States v. Haynes (M.D. Tenn. 1985), 620 F.Supp. 474, 477 (quoting Sparkman, 703 F.2d at 1102 n. 1 (Frye, J., dissenting)).

Moreover, the 1959 amendments to the Farm Credit Act removed federal ownership and control of the Farm Credit System. See Sterrett v. Milk River PCA (D. Mont. 1986), 647 F.Supp. 299, 302 (citing House Rep. No. 287, 86th Congress 1st, Sess. 1, reprinted in [1959] U.S. Code Cong. & Admin. News 2123). The lack of control, the most important factor in Lewis, existed when this claim arose, and it weighs heavily here for finding that MCPCA cannot claim agency status under the FTCA.

In addition to the authority provided by Lewis, this Court is reluctant to leave Tookes without access to court for pursuing their claims as guaranteed by the Montana Constitution, Article II, Section 16, which provides in part:

“Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character.”

(Emphasis added). The constitutional guarantee under Section 16 mandates that the courts be “accessible to all persons alike, without discrimination, at the time or times and the place or places appointed for their sitting, . . Shea v. North-Butte Mining Co. (1919), 55 Mont. 522, 533, 179 P. 499, 501. Conflicting decisions of the Montana Federal District Courts and this Court deny Tookes a forum for their claim even though there is no issue presently that their claim is cognizable in some court. In the face of these rulings, we are loathe to deprive court access to plaintiffs in these types of claims. Thus, we reverse and remand for further proceedings consistent with our finding that PCA’s may be sued outside the FTCA.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, SHEEHY, GULBRANDSON and HUNT concur.


author: MR. JUSTICE WEBER

text:
    SHEFFIELD INSURANCE COMPANY, Plaintiff and Respondent, v. LIGHTHOUSE PROPERTIES, INC., a Montana corporation, Gordon R. Harding, d/b/a Ancient Mariner Bar, Vince Kelly and Todd Tibbetts, Defendants and Appellants.
    No. 88-70.
    Submitted Sept. 22, 1988.
    Decided Oct. 31, 1988.
    763 P.2d 669.

      Boone, Karlberg & Haddon, Sam Haddon argued, Missoula, for defendants and appellants.
    Garlington, Lohn & Robinson, Steven S. Carey argued, Missoula, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This is a declaratory judgment action which arose out of a personal injury suit filed by Mr. Tibbetts against the bar that Sheffield Insurance Company (Sheffield) insures. The action requested dismissal of Sheffield as a defendant because of an insurance policy clause excluding coverage for so-called “liquor liability.” The District Court for the Twentieth Judicial District, Lake County, held that the policy language clearly and unambiguously excludes this claim and granted summary judgment to Sheffield. Mr. Tibbetts appeals. We affirm.

The issues are:

1. Did the District Court err in determining that Mr. Tibbetts’ personal injury claim is excluded by the terms of Sheffield’s insurance policy?

2. Did the District Court err in determining that no issues of fact were present and that summary judgment was proper?

The relevant facts forming the basis for the personal injury suit are as follows. Mr. Tibbetts was injured in an automobile accident on October 6, 1985, while riding as a passenger in a car driven by Vince Kelly. Mr. Tibbetts sustained a broken neck and was rendered a quadriplegic. He sued Mr. Kelly, the driver, and Mr. Harding, d/b/a Ancient Mariner Bar, for personal injuries. Mr. Tibbetts and Mr. Kelly had allegedly been drinking at the establishment the evening of the accident and both allegedly left the bar in an intoxicated state. In his complaint against the bar owner, Mr. Tibbetts alleged that Mr. Harding and his employees violated Sections 16-3-301 and 304, MCA, by selling alcohol to the driver, Mr. Kelly, when they knew or should have known of Mr. Kelly’s condition. The pleadings allege that Mr. Tibbetts’ injuries were the direct result of Mr. Harding’s negligence in selling alcohol to Mr. Kelly. Mr. Tibbetts also alleges negligence on the part of Mr. Harding in his management and supervision of bar employees.

At the time of the accident, Mr. Harding was insured by Sheffield. The policy covered liability for Harding arising from operations of the Ancient Mariner Bar unless that liability was imposed solely by reason of certain exclusions in the policy. The exclusion which was the subject of the declaratory judgment and also of this appeal states:

This insurance does not apply:

“(h) to bodily injury or property damage for which the insured or his indemnitee may be held liable
“(1) as a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages, or
“(2) if not so engaged, as an owner or lessor of premises used for such purposes,
“if such liability is imposed
“(i) by, or because of the violation of, any statute, ordinance or regulation pertaining to the sale, gift, distribution or use of any alcoholic beverage, or
“(ii) by reason of the selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person;
“but part (ii) of this exclusion does not apply with respect to liability of the insured or his indemnitee as an owner or lessor described in (2) above;”

The District Court interpreted this policy provision as exempting coverage. Mr. Tibbetts appeals this determination and challenges the use of a declaratory judgment and the granting of summary judgment.

I

Did the District Court err in determining that Mr. Tibbetts’ personal injury claim is excluded by the terms of Sheffield’s insurance policy?

Sheffield contends that the clear language of the policy excludes coverage because all of Mr. Tibbetts’ claims are based on the sale or service of alcohol. Mr. Tibbetts contends that the policy exclusions are to be narrowly construed and do not apply when a cause of action is based on a theory of negligence. He argues that tavern owners’ liability based on negligence is to be distinguished from liability imposed by reason of the sale or service of alcohol. Mr. Tibbetts’ reasoning is based on the case of Nehring v. LaCounte (Mont. 1986), [219 Mont. 462,] 712 P.2d 1329, 43 St.Rep. 93, in which this Court first recognized tavern owners’ liability for injuries arising from the sale of alcohol based on a theory of negligence.

In Nehring, this Court found the bar owner liable since “consumption of the alcoholic beverages served, subsequent driving, and the likelihood of an injury-producing accident are foreseeable intervening acts which do not relieve the tavern owner of liability for negligence.” Nehring, 712 P.2d at 1335. This Court held that violation of the alcoholic beverage control statutes was not negligence per se, and stated that, “Therefore we judicially adopt the alcoholic beverage control statutes as furnishing a standard against which negligence or due care can be measured.” Nehring, 712 P.2d at 1334.

Mr. Tibbetts contends that under Nehring, Sheffield’s exclusion clauses should be construed to exclude coverage only where liability is imposed per se as a violation of a statute or by the sale or service of alcohol. Since Sheffield’s exclusion clause only addresses the violation of a statute or sale or service of alcohol, Mr. Tibbetts contends that the exclusion language is not triggered if a cause of action is brought in negligence, and that the analysis should then proceed as outlined in Nehring. That analysis would necessarily include a factual determination on each of the elements of negligence which could preclude summary judgment.

The principles set forth in Nehring do not suggest to us a basis for disregarding the unambiguous language in Sheffield’s insurance policy. The policy explicitly excludes coverage for liability imposed by violation of a statute or by reason of the sale or service of alcoholic beverages. Nehring did not consider a duty on the part of a bar owner which was not connected to the sale or service of alcohol. While Mr. Tibbetts attempts to argue that there is a basis to consider his allegations of negligence separately from sale or service of alcohol, our analysis of the pleadings and affidavits considered in connection with the granting of summary judgment leads us to conclude that Mr. Tibbetts has failed to set forth a theory of negligence separate and apart from the sale or service of alcohol. As a result, we hold that coverage is specifically excluded by the language of the policy.

Mr. Tibbetts contends that coverage should not be excluded for negligent acts of the bar owner in failing to properly manage the bar and to properly supervise the bar employees. We do recognize that the management and supervision of employees could involve matters not related to the sale or service of alcohol. However, as we analyze the facts presented in support of Mr. Tibbetts’ position, we conclude that claims of improper employee supervision or mismanagement of the bar directly relate to the sale or service of alcohol. Mr. Tibbetts has failed to set forth facts which lead us to conclude otherwise. We hold that Mr. Tibbetts’ claim is excluded from coverage by the express language of the Sheffield insurance policy.

II

Did the District Court err in determining that no issues of fact were present and that summary judgment was proper?

Mr. Tibbetts contends that the personal injury action filed necessarily embraces factual issues which were inherent in the declaratory judgment action in which summary judgment was granted. Since we have concluded that all of Mr. Tibbetts’ claims arise from the sale or service of alcohol and are therefore excluded from coverage, there is no cause of action in negligence which would raise any issues of fact not already considered by the District Court. The granting of summary judgment was proper. We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, GULBRANDSON, McDONOUGH and HUNT concur.


author: MR. JUSTICE SHEEHY

text:
    In re the MARRIAGE OF VICKIE LYNN LARSON, Petitioner and Respondent, and LONNIE EINAR LARSON, Respondent and Appellant.
    No. 88-219.
    Submitted on Briefs Aug. 26, 1988.
    Decided Oct. 31, 1988.
    763 P.2d 1109.

      Lonnie E. Larson, Helena, pro se.
    Dowling Law Firm, Thomas F. Dowling, Helena, for petitioner and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Lonnie Einar Larson, acting without counsel, appeals from the judgment of marital dissolution, property settlement, and child support entered by the District Court, First Judicial District, Lewis and Clark County, in the dissolution of his marriage from Vickie Lynn Larson. We affirm the District Court judgment on all counts and remand the case to the District Court for determination of proper attorney fees to be awarded respondent on appeal.

Lonnie and Vickie Larson were married on November 10, 1983. No children were born of the marriage but Vickie is the mother of a girl who will be 16 years old on December 26,1988. During the course of the marriage, Lonnie adopted the girl on March 15, 1984.

The decree of marital dissolution was entered on January 26, 1988. The District Court divided the marital property and ordered Lonnie to pay Vickie $185 per month as child support for the minor girl, to terminate when she reaches the age of 18, marries, or is otherwise emancipated. Husband was awarded reasonable rights of visitation, and wife was awarded sole custody.

In this case, husband has discharged two attorneys during the course of the civil action, and on appeal, represents himself. His objections on appeal against the judgment are not well articulated. His brief does not include a statement of the issues for review, as required by Rule 23(a)(2), M.R.App.Civ.P. Because he is without counsel, we are not insisting on the formal clarity ordinarily reserved for briefs filed by lawyers. In our examination of his contentions, we find him objecting principally to the division of the marital estate, and to the award of child support.

We look first at the marital property division. The District Court awarded the wife the following:

(a) A 1986 Honda Accord
(b) Her public employment retirement system benefits, her deferred compensation ($918) and an IRA account ($2,000)
(c) All personal property presently in her possession with the exception of the Ashley wall unit, 2 brass end tables and two lamps.

The District Court award of marital property to the husband included:

(a) A 1985 Honda Prelude
(b) His public employment retirement system benefits, his deferred compensation (not spelled out in the findings, but from the transcript, in excess of $5,000) and his IRA’s ($4,000)
(c) Personal property presently in his possession plus the Ashley wall unit, 2 brass end-tables and two lamps.

The court provided each of the parties would be responsible for debts incurred by him or her after the date of separation. Husband was charged with paying the balance owing on the MasterCard bill (not specified) and the loan at the State Capital Employees Credit Union.

In his brief, husband argues that he brought into the marriage assets of $52,118.75 or 97% as compared with the wife’s $1,025.00 or 3% of the marital assets. During the course of their marriage, they bought a home and sold it and applied the profits to pay outstanding bills and to pay for the two automobiles. Husband also had other property which was sold during the marriage. Some of the personal property apparently had been used by him for business purposes.

Husband’s brief does not suggest in what way the division of the property by the District Court should be revised or modified by us. From the modest amount of personal property divided and the apparent effort of the District Court to make certain that each of the parties had an automobile, the retirement benefits owned by each through their employments, and their own personal property, one can find little or no basis to state that the District Court abused its discretion in dividing the personal property, regardless of which party brought the greater amount of property into the marriage. In Brown v. Brown (1978), 179 Mont. 417, 587 P.2d 361, we stated that the standard for reviewing a property division in a marital dissolution decree is that the apportionment made will stand unless there has been a clear abuse of discretion as manifested by a substantially inequitable division of the marital assets resulting in substantial injustice. We have followed that standard fairly consistently. Applying that standard of review to this case, we find a complete lack of any reason to reverse or modify the District Court’s division of the marital property.

With regard to child support, the District Court determined that the husband should pay the wife $185 per month as child support for the minor girl. Husband’s principal objection to the payment of the child support seems to be that the wife induced him to adopt the minor child, knowing that she would eventually seek a divorce from him. In this way, husband implies he was “fraudulently” led into a support duty for the minor child. Nothing in the transcript supports this innuendo. Under Section 40-8-125, MCA, after a final decree of adoption is entered, the relation of parent and child, and all the rights, duties and other legal consequences of the natural relation of child and parent exists between the adopted child and the adoptive parent. A marital dissolution action is no place for a collateral attack upon an adoption.

When a final child support award is attacked on appeal, the standard of review is whether an abuse of discretion has occurred which results in substantial injustice. Brown v. Brown, supra; In Re Marriage of Benner (1985), [219 Mont. 188,] 711 P.2d 802, 42 St.Rep. 1943.

The task of the District Court in this case to determine the amount of the husband’s net income available for child support was made difficult by the deductions that the husband took for deferred compensation and a credit union. The court noted, for example, that his pay slip for the two-week pay period, ending November 20, 1987, showed a net income for that period of only $135.76, and a year-to-date income of $2,382.14. Yet his year-to-date gross income for that period was $14,559.00 and his gross income for the two-week period was $614.00. It appears that husband had deducted a considerable amount for deferred compensation and the credit union. He also had extra money withheld for his taxes. The court found that the amount of his paycheck was misleading in helping in any determination of net income available for child support. The court did take into consideration various factors and determined that husband had available for purposes of child support an income of $865.00 per month from his employment from the State of Montana. He had in addition a monthly income of $395.00 from a corporate liquidation, which will run far beyond the period of his child support payments.

Wife, on the other hand, is an employee of the State of Montana, who has a net annual income for child support purposes of $10,459.00. Her take-home pay is $402.30 for each two-week pay period. In addition, she has done part-time work as a hostess at a local restaurant, and had some minor income for modeling.

The evidence shows the child’s support needs amounted to $300.00 per month, of which husband was ordered to pay $185.00 or 61.7 percent. In view of their available incomes for child support purposes, the amount awarded by the court is well within the child support guidelines promulgated by this Court for such cases, effective January 13, 1986 (cause No. 86-223). We find no abuse of discretion in the amount of child support awarded.

Husband further claims that in this case he is entitled to attorney fees of $2,000.00. Our determination is that attorney fees should be awarded the other way, in favor of wife. Husband’s appeal is obviously trifling, without substantial basis, and perhaps mean-spirited. We are satisfied from the record and the presentation of the appeal in this civil case that the same was taken without substantial or reasonable grounds, and merits an award of damages under Rule 32, to the other party, in the form of her counsel fees incurred in this appeal.

Accordingly, we affirm the judgment and decree of the District Court, and remand this cause to the District Court for the further purpose of determining proper attorney fees on appeal to be awarded to Vickie Lynn Larson, in addition to her ordinary costs of appeal.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HUNT, GULBRANDSON and McDONOUGH concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ERNIE LEE HOCH, Defendant and Appellant.
    No. 87-526.
    Submitted Sept. 29, 1988.
    Decided Nov. 1, 1988.
    763 P.2d 1119.
    Ernie Lee Hoch, Spokane, Wash., pro se.
    Mike Greely, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, James A. McCann, County Atty., Wolf Point, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The defendant, Mr. Hoch, was found guilty of sexual assault by a jury in the District Court of the Fifteenth Judicial District, Roosevelt County. He was sentenced to five years in prison with three years suspended. Mr. Hoch appeals his conviction and sentence. We affirm. The issues are:

1. Did the District Court err in denying the defendant’s request for disqualification of the judge?

2. Was the defendant denied the effective assistance of counsel?

In May 1986, Mr. Hoch’s 13-year-old sister-in-law came to live with the Hochs and their two children because her own home life was unstable. The sister-in-law testified that she had been sexually abused on one occasion by her natural father and was undergoing counseling for that abuse while living with the Hochs. She testified that during a counseling session, she admitted to the psychologist that she had also been fondled once by her brother-in-law, Mr. Hoch. According to her testimony, the incident involved a touching of one of her breasts while Mr. Hoch was rubbing suntan lotion on her back to relieve a sunburn. The sister-in-law testified that she consented to having Mr. Hoch apply the lotion, but was “shocked” and “scared” when his hand moved to her breast. The psychologist testified that the sister-in-law exhibited many of the symptoms of child abuse victims, including severe depression, embarrassment, and an attempted suicide, indicating that she was unable to cope with the effects of abuse.

Upon learning of the incident involving Mr. Hoch, the psychologist reported to social services, who contacted the Roosevelt County Attorney’s office. The police report of the county sheriff’s office became the basis of an information charging Mr. Hoch with sexual assault.

I

Did the District Court err in denying the defendant’s request for disqualification of the judge?

Prior to the arraignment hearing, the defendant appeared in his own behalf and filed with the District Court an “Asseveration and Exception of Accusation.” The asseveration stated in relevant part:

“That Judge M. James Sorte, is a defendant in a deprivation of rights suit commenced by the herein accused in February of 1987 . . . That by the above Asseveration of Fact, Judge M. James Sorte’s prejudice and bias is obvious and therefore Judge M. James Sorte is hereby recused whether he leaves the bench or not and all orders, permissions, and/or warrants made, granted, or issued by him, past, present, or in the future are null and void.”

During the arraignment proceeding, Mr. Hoch appeared pro se and objected to Judge Sorte presiding over the matter because of his bias and prejudice. Following this hearing Judge Sorte addressed Mr. Hoch’s concerns as follows:

“Although it was not altogether clear to the Court, it seemed that Ernie Hoch was asking that this Judge be disqualified and although the Defendant is not timely in his request to disqualify the Judge, the Judge will deem the disqualification as appropriate and will be deemed disqualified [sic] by Ernie Hoch.
“To keep this matter from being delayed, Judge Sorte will request the Honorable Leonard H. Langen to assume jurisdiction to hear this cause on the 22nd day of June, 1987, during the jury trial proceedings.”

After Judge Sorte disqualified himself, Mr. Hoch attempted to make a peremptory challenge of Judge Langen, but was refused on the grounds that he had previously exercised his one peremptory disqualification on Judge Sorte. Mr. Hoch then retained counsel and attempted to disqualify Judge Langen for cause, which was denied as untimely.

Mr. Hoch contends that his disqualification of Judge Sorte was for cause and that Judge Langen wrongly treated it as a peremptory challenge so as to preclude the exercise of a second peremptory challenge against Judge Langen. Section 3-1-802, MCA (1985), required that in a disqualification for cause, a timely and sufficient affidavit must be filed, alleging facts which establish personal bias or prejudice on the part of the judge. The statute also required that the affidavit be accompanied by a certificate of counsel of record stating that it has been made in good faith. Mr. Hoch contends that the asseveration qualifies as an affidavit, in which he states that Judge Sorte “is a defendant in a deprivation of rights suit commenced by the herein accused in February of 1987,” and that “by the above Asseveration of Fact, Judge Sorte’s prejudice and bias is obvious . . .”

Judge Langen found that Mr. Hoch had not complied with the statutory criteria in that no timely or sufficient affidavit was filed showing Judge Sorte to be biased or prejudiced against Mr. Hoch, and concluded Mr. Hoch was attempting to disqualify Judge Sorte for cause merely by filing a suit pro se against him. The District Court further concluded that we cannot condone efforts on the part of litigants to render the court impotent by filing suit against each substitute judge and then disqualifying him for cause. We agree with the District Court that Mr. Hoch failed to show any bias or prejudice on behalf of Judge Sorte which would disqualify him for cause. Furthermore, no certificate of good faith was filed as required by statute. While we recognize Mr. Hoch’s pro se status, this Court has previously noted the importance of the accompanying certificate when characterizing the nature of the disqualification in a pro se matter. See State v. Poncelet (1980), 187 Mont. 528, 540, 610 P.2d 698, 705. We conclude that Mr. Hoch’s disqualification of Judge Sorte was not for cause.

It is true that Mr. Hoch did not file a formal peremptory challenge against Judge Sorte in the words and form required by Section 3-1-802, MCA (1985). However, Judge Langen determined that the defendant’s challenge to Judge Sorte had the same effect as a peremptory challenge and that Judge Sorte treated it as such. He then concluded that, “Since the Defendant exercised his only peremptory disqualification in order to recluse [sic, recuse]” Judge Sorte, he had exhausted the peremptory challenges allowed by Section 3-1-802, and his attempt to disqualify the undersigned Judge by peremptory challenge is void.” Section 3-1-802, MCA, allowed a defendant only one substitution of a judge in a criminal case. Judge Langen was correct in determining that Mr. Hoch’s peremptory challenge against him was of no effect.

II

Was the defendant denied the effective assistance of counsel?

The principles governing a claim of ineffective assistance of counsel were set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. This Court adopted the two-part test from Strickland to resolve these claims in State v. Boyer (Mont. 1985), [215 Mont. 143,] 695 P.2d 829, 42 St.Rep. 247:

“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Boyer, 695 P.2d at 831.

Mr. Hoch first contends that the failure of his attorney to correct the attempt at disqualification constitutes ineffective assistance of counsel. We do not agree. We find that Mr. Hoch’s dissatisfaction with the attempts to disqualify Judge Langen is attributable to his own procedural errors rather than any subsequent attempts of the attorney. By the time Mr. Hoch retained counsel, the judge had made his determination. Therefore, no deficient performance on the part of the attorney has been shown.

Mr. Hoch also contends that his attorney’s comments to the jury on breast touching during voir dire and closing argument constitute ineffective assistance of counsel. Specifically, he objects to the statement made during voir dire: “The mere fact that Mr. Hoch has touched her breasts should not be enough to convict him . . .” and the statement made in closing argument: “In my lifetime, I have touched the breasts of women other than my wife more then [sic] a thousand times, in the course of walking down hallways, riding down or up elevators, and doing things like that.”

Given the nature of the charge and the facts of this case, it was neither deficient nor prejudicial for defense counsel to comment in this manner. Counsel was merely emphasizing the prosecutor’s duty to prove sexual intent on the part of the defendant. In this case, the prosecutor must prove intent to make sexual contact for the purpose of arousing or gratifying the sexual desire of either party, as opposed to an accidental touching. We conclude that the record does not support the defendant’s claim of ineffective assistance of counsel.

Affirmed.

MR. JUSTICES HARRISON, SHEEHY, McDONOUGH and GULBRANDSON concur.


author: MR. JUSTICE HARRISON MR. JUSTICE WEBER,

text:
    HOAGY CARMICHAEL, Relator, v. The WORKERS’ COMPENSATION COURT of the State of Montana, The Honorable Timothy Reardon, Presiding, and Arco Metals, Inc., Respondents.
    No. 87-545.
    Submitted Sept. 1, 1988.
    Decided Nov. 1, 1988.
    763 P.2d 1122.

      Bothe & Lauridsen, Laurie Wallace argued, Columbia Falls, for relator.
    Murray, Kaufman, Vidal & Gordon, James Ramlow argued, Kalispell, for respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Hoagy Carmichael petitioned this Court for a writ of supervisory control challenging the 1987 amendments to the Workers’ Compensation Act concerning dispute resolution and mediation, Sections 39-71-2401 and -2406 through -2411, MCA. We granted the writ for the purpose of determining whether these statutes are constitutional as applied to cases where the injury occurred before the effective date of the amendment, but no petition was filed with the Workers’ Compensation Court until after that date. We find such a retroactive application unconstitutionally impairs a contractual obligation.

Hoagy Carmichael was injured on August 8, 1985, while working in the course and scope of his employment with the respondent, Arco Metals, Incorporated (Arco). Arco is a self insured employer and accepted Carmichael’s compensation claim. Arco commenced the payment of benefits, but subsequently notified Carmichael in a letter dated July 24, 1987, that the benefits would be reduced from temporary total disability to permanent partial disability. In response, on August 3, 1987, Carmichael filed a petition for an emergency hearing before the Workers’ Compensation Court. In his petition, Carmichael stated that due to his disability he was unable to return to work and he had no means of support for his family other than his workers’ compensation benefits.

On September 15, 1987, Arco filed a motion to dismiss Carmichael’s claim based on Section 39-71-2408, MCA, which requires both parties to submit to nonbinding mediation regarding any issue concerning benefits before either party may file a petition in the Workers’ Compensation Court. Section 39-71-2408, MCA, became effective July 1, 1987 and is part of a group of statutes added to the Montana Workers’ Compensation Laws by the 1987 Montana Legislature providing for mandatory nonbinding mediation. Sections 39-71-2401 and -2406 through -2411, MCA. Carmichael resisted the motion claiming the retroactive mandatory mediation deprived him of procedural due process and the right to a speedy remedy for his injury. .

In an opinion filed November 20,1987, the Workers’ Compensation Court determined the retroactive application of the mandatory mediation process did not violate claimant’s constitutional rights. The court recognized the mediation may result in some delay, but the delay was not so substantial as to render the process unconstitutional. While noting the mandatory mediation may cause some hardship, the court also rejected Carmichael’s due process argument. However, the court did review the Administrative Rules which elaborate on the implementation of the mandatory mediation, allowing a maximum of 100 days to complete the mediation process, and concluded this maximum time period must not exceed 49 days. The court adopted the 49-day time period based on Section 39-71-610, MCA, permitting the Division upon petition and at the Division’s discretion, to extend benefits for 49 days after the termination of benefits. By making this modification, the court hoped to relieve some of the potential hardship caused by delays during mediation. The court granted the defendant’s motion to dismiss and ordered the mediation process be completed within 49 days.

On December 16, 1987, Carmichael filed an application for a writ of supervisory control. On February 8, 1988, this Court granted the writ and decided to hear the following issue:

Whether the 1987 amendments to the Workers’ Compensation Act concerning dispute resolution and mediation, Sections 39-71-2401 and -2406 through -2411, MCA, apply, and if so, are constitutional as applied, to cases in which the injury occurred before July 1, 1987, but no petition was filed with the Workers’ Compensation Court until after that date.

Both parties hold the position that the mediation statutes, as written, apply to the facts of this case. The relator, Carmichael, chose to divide the remaining constitutional issue into four sub-issues:

Do the mandatory, nonbinding mediation requirements of Section 39-71-2401 et seq., MCA, unconstitutionally:

1. impair the obligation of contracts as between Workers’ Compensation insurers and those injured workers receiving benefits prior to July 1, 1987;

2. violate the due process clause of the Federal and State Constitutions as applied to termination-of-benefits disputes;

3. deprive Workers’ Compensation claimants of the remedy to petition the Workers’ Compensation Court for a 49-day extension of benefits when those benefits are disputed;

4. deny Workers’ Compensation claimants of a speedy remedy for an injury to a vested property right?

Because we determine the nonbinding mediation requirements unconstitutionally impair a contractual obligation when applied to the facts of this case, we need not go beyond an analysis of the first issue.

Generally, Carmichael’s argument is based on the fact that his injury occurred prior to the time the legislature enacted the nonbinding mediation requirements. The. enactment applies to all injured workers regardless of the date of injury. 1987 Mont. Laws 464, Section 72. Carmichael argues the retroactive change results in a significant procedural delay substantially impairing his contractual rights.

“This Court has assumed for a number of years that the Workers’ Compensation statutes in effect on the date of injury set the contractual rights between the parties.” Buckman v. Montana Deaconess Hosp. (Mont. 1986), [224 Mont. 318,] 730 P.2d 380, 384, 43 St.Rep. 2216, 2222 (citing Trusty v. Consolidated Freightways (Mont. 1984), 210 Mont. 148, 681 P.2d 1085, 1087, 41 St.Rep. 973, 975). Both the United States and Montana Constitutions prohibit state laws impairing the obligation of a contract. Art I, Sec. 10, U.S.Const.; and Art. II, Sec. 31, Mont.Const. Carmichael recognizes this prohibition is not absolute, but contends there has been a substantial impairment of a contractual right within the meaning of the United States and Montana Constitutions under the facts of this case. Carmichael argues that following his injury and after his benefits began, he obtained a vested contractual and property right. After this right vested and prior to July 1, 1987, he had the right to directly petition the Workers’ Compensation Court if his benefits ceased. The mandatory mediation statutes retroactively altered this right to directly petition the Workers’ Compensation Court. Carmichael concludes since the mediation may result in a substantial delay causing him a significant hardship, the new mediation procedure is a substantial impairment of his vested contractual right.

Arco agrees that Carmichael has a contractual right which vested at the time of his injury and that his benefits cannot be subsequently altered by legislation. E.g., Buckman, 730 P.2d at 384-85, 43 St.Rep. at 2222. However, Arco states Carmichael is confusing his contractual right to workers’ compensation benefits with an alleged right to uninterrupted payments in all circumstances. Arco argues the legislature has implemented a procedural change to encourage settlements and reduce the caseload of the Workers’ Compensation Court. Arco concludes this is merely a modification of the system for determining the eligibility for benefits, and in no way alters the benefits to which Carmichael may or may not be entitled.

In analyzing a contract clause challenge, this Court has often implemented a three-tiered analysis set forth by the United States Supreme Court in Energy Reserves Group, Inc. v. Kansas Power and Light Co. (1983), 459 U.S. 400, 103 S.Ct. 697, 74 L.Ed.2d 569: (1) Is the state law a substantial impairment to the contractual relationship? (2) Does the state have a significant and legitimate purpose for the law? (3) Does the law impose reasonable conditions which are reasonably related to achieving the legitimate and public purpose? See, Neel v. First Federal Sav. and Loan Assoc. (1984), 207 Mont. 376, 392, 675 P.2d 96, 104-105. See also, Buckman, 730 P.2d at 385, 43 St.Rep. at 2007. Although this Court clearly recognizes that our state constitution provides rights and protections separate from those afforded by the federal constitution, “[w]e have generally interpreted the contract clauses found in Art. II, Section 31, 1972 Mont. Const, and Art. I, Section 10(1), United States Constitution as interchangeable guarantees against legislation impairing the obligation of contracts.” Buckman, 730 P.2d at 384, 43 St.Rep. at 2221, (citing Neel, 675 P.2d at 103, 41 St.Rep. at 25). In analyzing this issue, we will implement the three-tiered analysis stated above.

The initial inquiry therefore, is whether the mandatory mediation statutes operate as a substantial impairment of the contractual relationship between workers’ compensation insurers and workers injured prior to July 1, 1987. If the answer is no, there need be no further inquiry. “Total destruction of contractual expectations is not necessary, and a law which restricts a party to gains reasonably expected from a contract is not a substantial impairment.” Neel, 207 Mont. at 392, 675 P.2d at 105. Prior to the passage of the mediation statutes, an injured worker had the right to directly petition the Workers’ Compensation Court to resolve disputes concerning benefits under the Workers’ Compensation Act. Section 39-71-2905, MCA, (1985). As previously noted, the mandatory nonbinding mediation process must now be satisfied prior to filing such a petition. Section 39-71-2908, MCA, (1987). In the opinion filed by the Workers’ Compensation Court, it was noted that the mediation may result in a delay of 100 days. With the exception of his workers’ compensation benefits, the record indicates Carmichael is without financial resources to support his family. The delay presented by the current mediation statutes is an additional delay not existing on the date Carmichael was injured, which was the date his contractual rights vested. Buckman, 730 P.2d at 384, 43 St.Rep. at 2222. We find the delay caused by the mandatory mediation statutes represents a substantial impairment of those contractual rights.

Next, we must ask whether the state has a legitimate and significant purpose for the law. The general purpose of the new mediation statutes is to encourage out of court settlements and thereby lessen the volume of cases filed in the Workers’ Compensation Court. Section 39-71-2406, MCA. This appears to represent a legitimate state purpose.

The final step of the analysis is whether the law imposes reasonable conditions reasonably related to achieving the legitimate purpose stated above. As was noted in Neel, “unless the State is a party to the contract, courts will properly defer to legislative judgment on this step.” 207 Mont. at 392, 675 P.2d at 105. Since the Workers’ Compensation Court is a named respondent, we consider the state a party to this action and will consider this third question.

The record indicates insufficient evidence to demonstrate the mandatory nonbinding mediation presents conditions reasonably related to achieving the stated purpose as applied to those workers injured before the effective date of the statutes. Certain vague statistical evidence was presented tending to show the mediation procedures were encouraging settlement, but the statistics fail to give any clear answers. Certainly there is insufficient evidence to demonstrate the mediation process will achieve a more manageable caseload for the Workers’ Compensation Court when applied to claimants injured prior to July 1, 1987; those claimants whose contractual rights to benefits vested on the date of injury.

Carmichael demonstrates a substantial impairment of his contractual rights and there is insufficient evidence to demonstrate the mediation statutes achieve their purpose as applied to claimants injured prior to the effective date of the statute. We hold the retroactive application of the mandatory nonbinding mediation statutes unconstitutionally impairs a contractual obligation. Accordingly, Carmichael may directly petition the Workers’ Compensation Court.

For the foregoing reasons, we reverse the decision of the Workers’ Compensation Court and remand for further consideration consistent with this opinion.

MR. JUSTICES SHEEHY, McDONOUGH and HUNT concur.

MR. JUSTICE WEBER,

dissenting:

Statutes have a strong presumption of constitutionality. The burden is upon the party attacking the statute to prove unconstitutionality, and it is the duty of the court to resolve all doubts in favor of validity whenever possible. Reeves v. Ille Electric Co. (1976), 170 Mont. 104, 109, 551 P.2d 647, 650. With this rule in mind, I dissent from the majority’s conclusion that the mediation requirement of Sections 39-71-2401 and -2406 through -2411, MCA, unconstitutionally impairs contractual obligations as it is retroactively applied to Mr. Carmichael. I further conclude that Mr. Carmichael has not shown the requirement to be unconstitutional by the other arguments he raised.

In the order appealed from, the Workers’ Compensation Court ruled that the mediation requirement is constitutional as applied to Mr. Carmichael and others whose benefits have been paid and then terminated. The court further ruled that in such cases the mediation process must be completed within 49 days after the request for mediation. It also provided that such claimants would have the option of seeking an interim order from the Division of Workers’ Compensation under Section 39-71-610, MCA. That section allows disputed benefits to be reinstated for up to 49 days.

The majority uses the three-tier test set forth in Energy Reserves in concluding that application of the mediation requirement in this case unconstitutionally impairs a contractual obligation. That test requires that if a state law substantially impairs a contractual right, the state must show a significant and legitimate purpose which the law imposes reasonable conditions toward achieving. The majority initially concludes that the delay caused by the mandatory mediation statutes represents a substantial impairment of contractual rights.

In my opinion, there has been no showing that the mediation requirement substantially impairs any contractual right. The requirement does not affect Mr. Carmichael’s right to workers’ compensation payments; it only presents the possibility of a delay in his receiving compensation, provided that he shows he is entitled to it. Even under the previous statute, workers had no vested right to uninterrupted compensation payments between the time the employer terminated them for ineligibility and the ruling by the Workers’ Compensation Court. Because he raised this matter on supervisory control before proceeding through mediation, Mr. Carmichael has made no showing that he is entitled to reinstatement of his benefits. Second, Mr. Carmichael has made no showing of an actual delay in his case. We don’t know whether or not the use of the mediation plus the court process might have resulted in a shorter period of time in the present case. I therefore disagree with the theory set forth in the majority opinion that the delay presented by mediation is an “additional delay” not existing on the date Mr. Carmichael was injured. Third, this Court has recognized that in heavily regulated industries, which description fits the area of workers’ compensation law, it is inappropriate to assume that procedural regulations will remain static. Neel v. First Federal Sav. and Loan Assoc. (1984), 207 Mont. 376, 392-93, 675 P.2d 96, 105.

As a result of my conclusion that there has been no substantial impairment of any contractual right of Mr. Carmichael’s, I would not need to proceed to the other 2 tiers of the Energy Reserves test. However, because the majority concludes that there was an impairment of a contractual right, I will briefly discuss the remaining 2 tiers. I agree with the majority conclusion that the second tier is met because encouraging out of court settlements and thereby lessening the volume of cases filed in the Workers’ Compensation Court is a legitimate and significant purpose.

The final tier is whether the law imposes reasonable conditions toward achieving its purpose. I conclude that a mediation process is an appropriate means to address the Legislature’s purpose. The hearing examiner for the Workers’ Compensation Court submitted an affidavit to this Court which compared case filings before and after the mediation requirement was adopted and showed dispositions of cases mediated in the first 10 months. The affidavit showed that in the 10 months in which the mediation requirement had been in effect, filings of petitions in the court were reduced from over 900 to 167. The affidavit also showed that 300 mediations had been completed during that period, 159 of which were resolved by mediation. We have substantial evidence that the Legislature’s chosen means is working satisfactorily for a large number of claimants. I would therefore conclude that the mediation requirement meets the three-tier test set forth in Energy Reserves.

Because it found the contracts clauses of the U.S. and the Montana Constitutions were violated by application of the mediation requirement in Mr. Carmichael’s case, the majority did not consider the three other arguments against the new statutes. I will address them briefly.

Mr. Carmichael argues that the mediation requirement violates his due process rights. He has not cited any authority that a delay in reestablishing a right which has been unchallengedly taken away is a deprivation of due process. Further, under the former statutes, there was no right to a decision by the Workers’ Compensation Court within any particular time. The 60-day hearing rule is a procedural rule of the Workers’ Compensation Court, not a right established by statute. I conclude that there is no due process problem because there was no right to a continuation of benefits between termination by the employer and a decision by the Workers’ Compensation Court.

Mr. Carmichael argues that the mediation requirement deprives him of his remedy of 49 days of payment of disputed benefits, as provided by Section 39-71-610, MCA. However, payment of these benefits remains, as it has always been, a discretionary matter with the division once a petition for hearing on termination of benefits has been filed. Mr. Carmichael has not been deprived of the opportunity to request disputed benefits.

Lastly, Mr. Carmichael argues that the mediation requirement deprives him of a speedy remedy for injury to a vested property right in his benefits. We do not have proof properly before us that the delay caused by the mediation requirement exceeds the delay caused by the previous backlog of cases before the Workers’ Compensation Court. This Court has recognized, in Linder v. Smith (Mont. 1981), [_Mont._,] 629 P.2d 1187, 38 St.Rep. 912, that reasonable requirements of first seeking administrative resolution may be placed upon persons without depriving them of their right to access to the courts.

I would therefore affirm the ruling of the Workers’ Compensation Court that the mediation requirement of the 1987 amendments to the workers’ compensation laws is constitutional as applied in Mr. Carmichael’s case and as limited by the Workers’ Compensation Court’s order.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE GULBRANDSON concur in the foregoing dissent.


author: MR. JUSTICE GULBRANDSON

text:
    In re the MARRIAGE OF DALE H. MALQUIST, Petitioner and Appellant, and SANDY J. MALQUIST, Defendant and Respondent.
    No. 88-162.
    Submitted on Briefs Sept. 23, 1988.
    Decided Nov. 1, 1988.
    763 P.2d 1116.

      Dale M. Malquist, Lincoln, pro se.
    Dennis G. Loveless, Helena, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Dale H. Malquist appeals from the findings of fact and conclusions of law entered by the District Court of the First Judicial District, Lewis and Clark County after remand by this Court, in In re the Marriage of Malquist (Mont. 1987), [227 Mont. 413,] 739 P.2d 482, 44 St.Rep. 1193, for further findings in this dissolution of marriage case. Upon remand, the District Court found that the family home and surrounding 20.1 acres were not part of a trust and thereafter awarded such property to Sandy J. Malquist. We affirm.

Appellant raises the following issues upon appeal:

1. Whether the District Court erred in finding that the house and surrounding acreage were not part of the irrevocable trust?

2. Whether the District Court abused its discretion by making findings of fact and conclusions of law on issues not remanded for further findings?

3. Whether the District Court abused its discretion by making findings of fact and conclusions of law which substantially altered the Montana Supreme Court’s judgment?

On November 3,1986, the District Court issued a decree dissolving the seventeen-year marriage of Dale and Sandy Malquist. The court awarded the family home and surrounding 20.1 acres to Sandy. Dale filed an appeal on November 21, 1986. He contended that the court could not award the disputed property to Sandy because it was held in trust for the benefit of the two Malquist children. In July of 1987, this Court remanded the case for further findings on the terms of the trust and for support of the distribution of trust fund property.

To briefly summarize the facts, the trust fund which is the subject of this appeal was established by an irrevocable written trust agreement signed September 12, 1984. The trust agreement named Sandy as the settlor, Anne Rowlins and Daryl Malquist as trustees with the responsibility of administering the trust, and Dale and the two children as beneficiaries. The agreement expressly stated that the trust contained all property itemized on the Schedule A attached to the agreement. Sandy subsequently typed up and affixed Schedule A to the agreement in January of 1985.

The attached schedule listed only a 1977 Chevrolet Blazer and a checking account; no mention was made of the family home and surrounding acreage. Respondent testified that she erroneously listed the home as part of the trust on the 1985 and 1986 fiduciary income tax return filed on behalf of the trust. She did not at any time list the underlying 20.1 acres as part of the trust. Moreover, the Lewis and Clark County Treasurer’s Office addressed its notice of taxes assessed on the property to Sandy, and not to the D & B Trust. A trust indenture signed by the parties on November 25, 1983, indicated that Dale had deeded his interest in the property to Sandy. Sandy did not subsequently execute a written assignment of the property to the trust.

Following the remand hearing on December 16, 1987, the District Court upheld the original award of the house and acreage to Sandy. The court found that the trust contained only the 1977 Chevrolet Blazer, a checking account, and Dale’s 1984-85 electrical contractor’s license. Although the license was not listed on Schedule A of the trust agreement, the license itself specifically named the D & S Trust as the owner. The court further found that Dale had orally disclaimed his interest in the trust during the remand hearing.

The court also ruled on the motions filed by each party prior to the remand hearing. The court ordered Sandy to immediately turn over to the respondent any items of personal property listed in the motion which were still at her residence. However, the court denied respondent’s motion that she be held in contempt should she fail to turn over all listed items. Several of the items listed were either missing or had been sold prior to the divorce decree to provide support for herself and the two children while respondent was incarcerated. The court ordered Dale to reimburse petitioner for all monies expended on their children’s health care, but denied petitioner’s motion that Dale be held in contempt for violating the dissolution decree by failing to pay for medical insurance for the two children and for those medical expenses incurred by them. Judge Honzel reasoned that Dale had been generally unable to pay such expenses because he had failed to secure permanent work following his release from prison.

This appeal followed.

The first issue raised upon appeal questions the sufficiency of the evidence to support the District Court’s determination that the house and surrounding twenty acres were not part of the trust. The party who asserts the existence of a trust has the burden of proving its existence and contents by “evidence which is unmistakable, clear, satisfactory and convincing.” First Nat’l Bank of Twin Bridges v. Sant (1973), 161 Mont. 376, 386, 506 P.2d 835, 841. The respondent, as the one asserting that the house and property were part of the trust, thus had the burden of proving that such property was placed in trust.

A trust may be either a voluntary or involuntary trust. A voluntary trust in relation to real property may only be created by an instrument indicating with reasonable certainty the subject, purpose, and beneficiary of the trust and the trustor’s intent to create the trust. Section 72-20-107, MCA, Section 72-24-102, MCA.

In our case, an existing written trust agreement expressly stated that the 1977 Blazer and checking account were held in the voluntary trust. The court also correctly found that the 1984-85 contractor’s license, which expressly listed on its face that the owner was the D & S Trust, constituted a written instrument sufficient to indicate that the parties intended it be held in trust. However, no such clear and convincing evidence exists to indicate that the house and acreage were part of a voluntary trust. Schedule A of the trust agreement fails to list the disputed property. Further, the trust indenture listed Sandy as the owner of the disputed property, and the county addressed its notice for taxes assessed on the property to Sandy.

Respondent similarly failed to prove that the real property in dispute was part of an involuntary trust. An involuntary trust is one which arises by operation of law. Section 72-20-103, MCA. Two kinds of involuntary trusts exist by operation of law: Constructive and resulting. Constructive trusts arise because of fraud, mistake, undue influence, the violation of a trust, or other wrongful acts. Neither party expresses an intent to create a trust and the court does not presume any intent. The court simply “creates the trust to work an equitable result.” Eckart v. Hubbard (1979), 184 Mont. 320, 326, 602 P.2d 988, 991. We need not engage in any further discussion of this type of involuntary trust, for the record is virtually silent as to any such fraudulent or wrongful acts which would justify the implication of a constructive trust.

A resulting trust generally arises when:

“[T]he parties have used ambiguous language which the court construes as showing a trust intent, or where the parties have expressed no intent to create a trust by words, but have performed acts from which the court infers that a trust was intended.”

Eckart, 602 P.2d at 991. The trust agreement in this case, however, does not contain ambiguous language. It clearly states that the trust includes that property listed on Schedule A. Further, neither party acted in such a way as to indicate that the parties intended the house and surrounding acreage to be held in trust. Dale and Sandy signed a trust indenture deeding the property to Sandy, not to the trust. Sandy, and not the trust, paid the taxes assessed on the property.

The property clearly was not held in a resulting trust, and the house affixed to the property likewise was not included in such a trust. A building permanently affixed to property generally is considered part of the realty and passes with it. See Hauf v. School Dist. No. 1 (1916), 52 Mont. 395, 158 P. 315; see generally Sections 70-15-101, -103, MCA (these sections define “real property” and “affix”). Sandy’s unquestionable lawful ownership of the land therefore included ownership of the house affixed to it. We hold that her later inclusion of the house, but not the land, on fiduciary income tax returns filed on behalf of the trust was insufficient to overcome all the evidence demonstrating that the house and land were owned by Sandy and not by the trust.

We will not reverse the District Court’s decision unless it is clearly erroneous because it exceeds “the bounds of reason in view of all the circumstances,” as it is unsupported by clear and convincing evidence. See, e.g, In re the Marriage of Buxbaum (Mont. 1984), [214 Mont. 1,] 692 P.2d 411, 42 St.Rep. 2243. In the instant case, sufficient credible evidence existed to support the District Court’s determination that the house and land were not part of either a voluntary or involuntary trust. The District Court thus did not err in its findings on this issue.

The second issue raised by appellant is without merit. Appellant contends that the District Court exceeded the scope of issues remanded for hearing when the court determined Dale gave up his interest in the trust. However, the Montana Supreme Court remanded this case for “findings to support the distribution of the trust fund and its assets.” Marriage of Malquist, 739 P.2d at 484. The District Court’s finding that the appellant voluntarily gave up his interest in the trust supports the decision to then award the trust to respondent.

The third issue raised by appellant is also without merit. Appellant contends that the District Court substantially altered this Court’s prior judgment by failing to order respondent to turn over all the items of personal property listed in his motion. New evidence introduced at the remand hearing indicated that several of the items listed by appellant were sold prior to the divorce decree. Consequently, any inclusion of these items in the dissolution decree was improper, as a court only may equitably apportion those properties and assets belonging to the parties. See Section 40-4-202, MCA. Additionally, this Court notes that the original dissolution decree did not specifically award appellant many of these items listed in his motion. The District Court thus did not abuse its discretion by ordering respondent to immediately turn over to the appellant those remaining personal items belonging to him.

We affirm the judgment of the District Court.

MR. JUSTICES HARRISON, SHEEHY, WEBER and HUNT concur.


text:
    The DEPARTMENT OF REVENUE of the State of Montana, Petitioner and Respondent, v. GALLATIN OUTPATIENT CLINIC, INC., INSURANCE COMPANY, Respondent and Appellant.
    No. 88-196.
    Submitted on Briefs Aug. 26, 1988.
    Decided Nov. 1, 1988.
    763 P.2d 1128.

      Dorsey & Whitney, Stephen D. Bell, Billings, for respondent and appellant.
    Larry Schuster, Dept, of Revenue, Helena, for petitioner and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The District Court, Eighteenth Judicial District, Gallatin County, determined that Gallatin Outpatient Clinic, Inc. was not a “hospital,” and therefore its personal property was not exempt from state taxation. In so holding the District Court reversed the decision of the State Tax Appeal Board (STAB) which had concluded that Gallatin Outpatient Clinic was a hospital within the personal property exemption statute, and that the personal property of the Gallatin Outpatient Clinic was being used for hospital purposes. The Outpatient Clinic has appealed the decision of the District Court to this Court. We affirm the District Court, holding that Gallatin Outpatient Clinic is not a “hospital” which would be entitled to a personal property tax exemption.

Gallatin Outpatient Clinic also known as Same Day Surgery Center (Clinic) filed an application for a property tax exemption with the property assessment division of the Montana Department of Revenue (Department). The exemption was denied on April 14, 1986. The Clinic appealed the Department’s decision to the State Tax Appeal Board.

On May 22, 1986, the Gallatin County Treasurer assessed the Clinic $11,299.54 as taxes on the Clinic’s personal property. The Clinic paid the sum to the Gallatin County Treasurer under protest.

In the contested proceedings before STAB, after a hearing and a tour of Gallatin Outpatient Clinic by members of STAB, that agency made findings of fact and conclusions of law. It found that the Clinic was a corporation organized under the laws of the state of Montana and that its primary business was to provide outpatient surgical services and nonsurgical procedures to patients in the Bozeman, Montana area. It was licensed by the Montana Department of Health and Environmental Sciences.

STAB further found that the purpose of the Clinic was to lower medical costs and provide high quality medical services for patients whose surgeries did not require an overnight stay. It found the physical facilities of the Clinic were essentially identical to those found in any outpatient surgery area in any hospital. It also determined that the personal property which was the subject of the appeal before STAB included anesthesia equipment, oxygen and carbon dioxide equipment, a “crash cart” available to resuscitate patients, suction machines, eye surgery laser, gurneys, sterilization equipment for surgical instruments, special surgical lighting, and other property used for surgical and medical procedures. It determined that the same kind of equipment would be found in the outpatient surgical area of any hospital. The Clinic’s nonsurgical procedures included chemotherapy, transfusions and dialysis. STAB further found that the Clinic’s only source of income was its billings to patients and that if its tax-exemption were denied, the Clinic would have to increase patient charges.

Thereupon, STAB made a conclusion of law that Gallatin Outpatient Clinic was a “hospital” within the meaning of Section 15-6-201(l)(c), MCA; that the use of the personal property by the Clinic fell within the purpose of exempting personal property for hospitals; and that therefore the personal property of the Clinic was exempt from taxation under Montana law.

The Department of Revenue appealed the decision of STAB to the District Court. In mixed findings of fact and conclusions of law, the District Court determined:

“Section 15-6-201(l)(c), MCA, exempts from taxation property used exclusively for hospitals. The 1987 legislature substituted ‘nonprofit health care facilities for hospitals.’ The record clearly establishes that respondent does not operate a hospital. While it may perform minor surgeries, it did not have x-ray, laboratory, rehabilitation, major surgery, in-patient, obstetrical, pharmacological, blood banking, full time nursing staff, or emergency room facilities. As the name implies, the facilities in question are for minor ‘same-day’ surgeries.
“Clearly, the Same Day Surgery Center is a profit enterprise, not a hospital. It is closer to a doctor’s office than to a full-service hospital. We do not permit doctors to exempt their own equipment, even though it is used in a hospital-like fashion. I do not believe that the legislature intended to apply the exemption for a mutually owned service facility.”

Thereupon, the court entered its order reversing the decision of STAB and directed that taxes be levied against the personal property for the years 1986 and 1987.

On appeal to this Court, the Clinic propounds these issues: (1) Does substantial credible evidence support STAB’s finding that the Clinic’s property was used exclusively for hospital purposes? 2) Did STAB correctly hold that the definition of “hospital” in Section 50-5-101(23), MCA, (1985) does not control whether the Clinic is a hospital for the purposes of tax exemption? (3) Did STAB correctly focus on how the personal property was used and the legislative intent with respect to that use? and (4) Does the surgery center have to be a non-profit organization to qualify for the tax exemption?

In response on appeal, the Department of Revenue contends that the District Court properly reversed STAB under the applicable law; that the Clinic is not a hospital and so not entitled to the personal property tax exemption; and that the legislative intent with respect to tax exemptions did not include property used by outpatient clinics.

The District Court correctly divined that the principal issue came down to whether the personal property must be used in a hospital to be exempt, or merely be put to use for hospital-like purposes, as the Clinic urged. We hold that under the applicable statutes, only hospitals are entitled to the property tax-exemption, and that the Clinic is not a hospital.

The statute in effect at the time is clear and brooks no argument:

“Section 15-6-201. Exempt categories. (1) The following categories are exempt from taxation:
“(c) Property used exclusively for agricultural and horticultural societies, for educational purposes, and for hospitals. (Emphasis supplied.)”

In Montana Deaconess Hospital v. Cascade County (1974), 164 Mont. 256, 260, 521 P.2d 203, 205 in construing a nearly identical statute, this Court adhered to the well accepted principle of statutory construction that the function of this Court is to interpret the intention of the legislature, if at all possible, from the plain meaning of the words used, and if the meaning of the statute can be determined from the language used, this Court is not at liberty to add or detract language from the statute in question. The property tax-exemption in this case applies only to property used “for hospitals.” The statute does not apply to property used “for hospital purposes.” The careful wording of the statute to limit the exemption to property used “for hospitals” excludes the exemption for personal property owned by entities which are not hospitals, even though the personal property may have been used for hospital purposes. Unless, therefore, the entity is a “hospital”, its personal property is not entitled to the exemption.

In the proceedings before it, STAB recognized that the entity must be a “hospital”. It made a specific conclusion of law that the Clinic was a hospital within the meaning of Section 15-6-201(l)(c), MCA. That conclusion of law is a determination of a legal question, which when reviewed by a court is subject to a broader scope of review than are findings of fact made by an administrative agency. City of Billings v. Billings Firefighters (1982), 651 P.2d 627, 200 Mont. 421. The expertise of courts in determining legal questions supersedes the deference owed to administrative determinations.

We have statutes which were in effect at the time and which define various health care facilities. Both a hospital and an outpatient facility were “health care facilities.” Section 50-5-101(18), MCA, (1985). An outpatient facility was defined as follows:

“ ‘Outpatient facility’ means a facility, located in or apart from a hospital, providing, under the direction of a licensed physician, either diagnosis or treatment, or both, to ambulatory patients in need of medical, surgical, or mental care. An outpatient facility may have observation beds. (Emphasis supplied.)”

Section 15-5-101(33), MCA.

On the other hand, our statutes defined a hospital as follows:

“ ‘Hospital’ means a facility providing, by or under the supervision of licensed physicians, services for medical diagnosis, treatment, rehabilitation, and care of injured, disabled, or sick persons. Services provided may or may not include obstetrical care, emergency care, or any other service as allowed by state licensing authority. A hospital has an organized medical staff which is on call and available within 20 minutes, 24 hours per day, 7 days per week, and provides 24-hour nursing care by licensed registered nurses. This term includes hospitals specializing in providing health services for psychiatric, mentally retarded, and tubercular patients.”

Section 50-5-101(23), MCA.

As STAB determined, the Clinic in this case was licensed by the Department of Health and Environmental Sciences. Its license must have been acquired under Section 50-5-201, MCA. It could be licensed as a health care facility only as an outpatient facility under the definitions above set out.

STAB was not deterred by the obvious definitional differences between a hospital and an outpatient facility under the statutes. It concluded that the definition of “hospital” in Section 50-5-101, MCA, was applicable to only parts 1 through 4 in Chapter 5 of Title 50, relying on the first sentence of that statute which said “as used in parts 1 through 4 of this chapter, unless the context clearly indicates otherwise, the following definitions apply.” Here STAB incorrectly limited the application of the definitions for hospital and outpatient facilities. However, Section 1-2-107, MCA, provided then and still provides that whenever the meaning of a word or phrase is defined in any part of our code, that definition is applicable to the same word or phrase wherever it occurs, except where a contrary intention plainly appears. The use by the legislature in Section 50-5-101, MCA, of the phrase “as used in parts 1 through 4 of this chapter” does not show the legislature’s plain intent that the definitions were only to be applied in those parts of the code. Those words only indicate that the legislature intended the particular application of the definitions in those parts of the code, without limitation to the general use of the definitions in other parts of the code, pursuant to Section 1-2-107, MCA.

The tax-exemption was limited to property used “for hospitals.” The outpatient clinic here is not a hospital. Therefore we affirm the District Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, HUNT and GULBRANDSON concur.