author: JUSTICE TRIEWEILER JUSTICE LEAPHART,

text:
    GREAT FALLS TRIBUNE COMPANY, INC., Petitioner and Appellant, v. RICK DAY, and THE STATE OF MONTANA, DEPARTMENT OF CORRECTIONS, Respondents and Cross-Appellants.
    No. 98-216.
    Heard May 26, 1998.
    Submitted May 26, 1998.
    Decided May 29, 1998.
    1998 MT 133.
    55 St.Rep. 524.
    959 P.2d 508.
    289 Mont. 155.

      See C.J.S. Records § 62.

      For Appellant: Peter Michael Meloy (argued); Meloy & Morrison; Helena.
    For Respondent: Diana P. Leibinger-Koch (argued), Matthew A. Robertson, and David L. Ohler; Montana Department of Corrections; Helena.
    For Amicus: Dal Smilie, Chief Legal Counsel; Montana Department of Administration; Helena.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 The petitioner, Great Falls Tribune Company, Inc., filed a petition in the District Court for the First Judicial District in Lewis and Clark County in which it sought an order restraining the respondent, Rick Day, as Director of the Department of Corrections for the State of Montana, from excluding members of the public from meetings of the Department’s Private Prison Screening and Evaluation Committee. The District Court held that neither the petitioner nor other members of the public had a right to observe the deliberations of the committee during the negotiation phase of its work, but that once its negotiations had been completed, the process by which it arrives at its conclusions must be open to public observation. Both the Tribune and the Department of Corrections appeal from the District Court’s order. We reverse that part of the District Court order which excludes the petitioner and other members of the public from the committee’s deliberations.

¶2 The issue on appeal is whether § 18-4-304, MCA, as applied by the Director of the Department of Corrections to the facts in this case, violates Article II, Section 9, of the Montana Constitution, which guarantees to the people of Montana the right to examine documents and observe deliberations of all public bodies or agencies of state government.

FACTUAL BACKGROUND

¶3 In 1997, the Montana Legislature enacted §§ 53-30-601 to -611, MCA, which authorize the Department of Corrections to contract for the private operation of correctional facilities in Montana. Section 53-30-605, MCA, requires that, prior to contracting for services with a private correctional facility, the Department must publish a request for proposals which “must include a description of the long-range correctional needs, objectives, and goals of the department and the state.” That statute also provides a detailed list of the information that each proposal must include.

¶4 On December 1,1997, the Department published a Request for Proposal (RFP) for the development and operation of a 500-bed private, adult male prison facility pursuant to § 18-4-304, MCA, §§ 53-30-601 to -611, MCA, and § 2.5.602, ARM. The RFP also stated, at paragraph 1.1.4.2, that “[pjrior to award of contract, proposal information submitted in response to this RFP will be disclosed only to the persons participating in the evaluation or contracting process. The proposals will not be publicly opened.” This provision of the RFP reflected the requirements of § 18-4-304(4), MCA, and § 2.5.602, ARM. Section 18-4-304(4), MCA, is part of the Montana Procurement Act which was enacted by the Legislature in 1983. Section 18-4-302, MCA, provides that all state contracts for services must be awarded by a selection process provided for in the Procurement Act. Section 18-4-303, MCA, provides for awards following competitive sealed bidding, and § 18-4-304, MCA, provides for awards following competitive sealed proposals. Subparagraph (4) of that statute provides as follows:

Proposals must be opened so as to avoid disclosure of contents to competing offerors during the process of negotiation. A register of proposals must be prepared in accordance with rules adopted by the department and must be open for public inspection after contract award. After the contract is executed, proposal documents may be inspected by the public, subject to the limitations of the Uniform Trade Secrets Act, Title 30, chapter 14, part 4.

Section 18-4-304(4), MCA.

¶5 In response to the Department’s RFP, five private companies submitted proposals for construction of a private correctional facility in Montana. Rick Day, Director of the Department of Corrections, appointed a twenty-one-member committee to review the proposals, evaluate them, and make recommendations to him regarding which company to select.

¶6 At the committee’s orientation meeting on March 16,1998, Day instructed the committee that:

Our goal is to select a new member of our partnership, a private prison contractor, through a neutral and objective process — a process which provides the best opportunity for Montana to obtain the most effective, professional, public safety-conscious, efficient prison service and which also provides evidence of strong local support. ...
This brings us to why we are here today. Each of you have been assigned to this extremely important committee. Your task will be to critically evaluate each submission. While performing your other jobs some of you must be prepared to make this assignment a three-or four-month priority.
State law requires that proposals be opened in a manner that avoids disclosure of contents to competing offerors, and prohibits the discussion of proposals which might reveal information to competing offerors (§ 18-4-304, MCA). What this means is that your work, evaluation, scoring and discussion is at this time confidential. Consequently, you cannot discuss this information with parties outside of this committee. In fact, if you are contacted you must advise the party that you cannot discuss the proposal information and you must immediately report this contact and any contact which may potentially influence the process to the Director’s Office. Although sometimes difficult to understand, this process is designed by law and recognizes the proposers’ legitimate expectation of privacy in their proposals. Once the contract is signed the proposals and related documents are open to public inspection.
... The work you do will have a lasting effect on Montana corrections well into the next century.

(Emphasis added.)

¶7 The Great Falls Tribune, Inc., is a daily newspaper circulated throughout the state of Montana with its headquarters in Great Falls. On April 3,1998, it petitioned the District Court to restrain Day and the Department’s committee from holding its meetings in private and to require that all papers associated with the meetings be open to public inspection. The Tribune alleged that Day’s directive to the committee that its work be done privately violates its rights guaranteed by Article II, Section 9, of the Montana Constitution, by denying it the right to observe deliberations and examine documents of a public body.

¶8 In response, the Department contended that the public’s right to observe the committee’s deliberations and review its records, including proposals, was outweighed by the five vendors’ rights to privacy in the information they had submitted. The Department contended that the proposals submitted by the five vendors included trade secrets and proprietary information and that the committee could not evaluate those proposals in public without revealing that information.

¶9 Following a hearing at which a reporter for the Tribune, two state officials, and three representatives from the private vendors testified, the District Court held that while the five vendors had no reasonable expectation of privacy after a contract has been awarded, they do have a reasonable expectation that their proposals will be kept confidential during the negotiation process. Without further analysis of the vendors’ privacy interest, as opposed to the public’s interest in open government, the District Court then concluded that during the negotiation phase of the committee’s work the committee may do its work privately and deny the public access to the vendors’ proposals. The District Court also concluded, however, that once the negotiations among the Department and the five vendors have been completed, the Department must open that part of the committee’s deliberations which relate to its analysis of the proposals to public observation and make the vendors’ proposals available for public inspection, subject to a trade secret exception. The District Court held that to the extent § 18-4-304, MCA, prohibited public observation or disclosure after negotiations have come to an end, it is unconstitutional.

¶10 The Tribune appeals that part of the District Court’s order which allows the Department to conduct negotiations in private. The Department appeals that part of the District Court’s order which opened its deliberations to public inspection prior to the time that a contract is awarded.

DISCUSSION

¶ 11 Does § 18-4-304, MCA, as applied by the Director of the Department of Corrections to the facts in this case, violate Article II, Section 9, of the Montana Constitution, which guarantees to the people of Montana the right to examine documents and observe deliberations of all public bodies or agencies of state government?

¶12 Whether § 18-4-304, MCA, as applied to the facts in this case, is constitutional is a question of law. We review a district court’s conclusion of law to determine whether it is correct. See State v. Small (1996), 279 Mont. 113, 116, 926 P.2d 1376, 1378.

¶13 Furthermore,

[t]he constitutionality of a legislative enactment is prima facie presumed, and every intendment in its favor will be presumed, unless its unconstitutionality appears beyond a reasonable doubt. State ex rel. Mills v. Dixon (1923), 66 Mont. 76, 84, 213 P. 227, 229. The question of constitutionality is not whether it is possible to condemn, but whether it is possible to uphold the legislative action which will not be declared invalid unless it conflicts with the constitution, in the judgment of the court, beyond a reasonable doubt.

Fallon County v. State (1988), 231 Mont. 443, 445-46, 753 P.2d 338, 339-40.

¶14 The Tribune’s petition is based on its asserted right to examine the documents and observe the deliberations of public bodies. Article II, Section 9, of the Montana Constitution, provides:

No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

¶15 The Department’s objection to the Tribune’s inspection of its private prison proposals and to the observation of its committee meetings is based on the aforementioned provision in § 18-4-304, MCA, which provides that the contents of proposals are not to be disclosed during the negotiation process, but only after a contract has been executed. The Department also contends that the proposals include trade secrets and proprietary information in which the vendors who submitted the proposals have an actual and reasonable expectation of privacy, and that on balance, that privacy interest is greater than the public’s interest in the inspection of those documents.

¶16 Although this controversy was submitted to the District Court on the assumption that the Department’s committee is a public body or agency, and on the further assumption that the proposals are documents of a public body, the Department has argued, for the first time on appeal, that its committee may, in fact, not be a public body to which Article II, Section 9, applies. While normally we would not consider an argument made for the first time on appeal, the logical first step in our analysis is to determine whether, in fact, this claim involves a public body or agency to which Article II, Section 9, would apply. For that purpose, we need look no further than the definitions provided by the Montana Procurement Act, and our recent decision in Common Cause v. Statutory Committee (1994), 263 Mont. 324, 868 P.2d 604. Article II, Section 9, applies, by its terms, to agencies of state government. “Governmental body” is defined at § 18-4-123(11), MCA, as “a department... committee... or other entity, instrumentality, or official of the executive, legislative, or judicial branch of this state ...,”

¶ 17 Pursuant to § 2-15-104, MCA, the Department is part of the executive branch of government. The screening and evaluation committee is, therefore, a committee of the executive branch of government, and a “governmental body” for purposes of procurement. Since the committee has been defined by the Legislature as a “governmental body” it necessarily follows that it is an agency of state government to which Article II, Section 9, applies. This conclusion is consistent with our recent decision in Common Cause, where we held that the committee established to recommend candidates for the office of Commissioner of Political Practices is a “public or governmental body.” We analogized to decisional law from the state of Michigan which concluded that an advisory committee appointed to assist in the selection of a university president was a “public body” for purposes of that state’s open meetings act. We stated:

Moreover, in a factually similar case, the Michigan Supreme Court determined that a selection committee and its advisory subcommittees organized to select a university president were “public bodies” under Michigan’s Open Meetings Act. Booth Newspapers v. University of Michigan (Mich. 1993), 507 N.W.2d 422, 429. The Michigan definition of “public body” focused on the entity’s ability to exercise governmental or proprietary authority. The Michigan Supreme Court held that the selection of a public university president constituted the exercise of governmental authority regardless of whether the authority was exercised by the nominating committee, the board or even the advisory subcommittees. Booth, 507 N.W.2d at 429. The same reasoning applies to the selection of the Commissioner in Montana. The “public or governmental” nature of the Committee’s purpose is obvious. Further, the Committee is created and organized by state statute to perform its governmental function.

Common Cause, 263 Mont. at 331, 868 P.2d at 608 (emphasis added).

¶18 The Department contends that Common Cause is distinguishable from this case on the basis that the committee with which that case was concerned was established by statute and that the Department’s committee was not established in that fashion. However, the Department misses the point of the Common Cause decision. That decision was not based upon the statutory authority for the committee. That decision was based on the “public or governmental” nature of the committee’s responsibilities. We conclude that the committee established by the Department to screen proposals for the construction of a private prison also involves governmental responsibility, and that based on not only the definition from the Montana Procurement Act, but our reasoning in Common Cause, the committee does constitute a public body and an agency of state government.

¶19 Furthermore, we conclude that the proposals submitted by private vendors to the Department’s screening and evaluation committee are documents of a public body or agency within the meaning of Article II, Section 9. Section 18-4-126(1), MCA (also part of the Montana Procurement Act), provides that “[procurement information is a public writing and must be available to the public as provided in 2-6-102 and 18-4-304.” Section 2-6-102 provides that every citizen has a right to inspect public writings of the state.

¶20 Having concluded that the Department’s screening and evaluation committee is a public body and that the proposals which were submitted to it are public writings to which Article II, Section 9, is applicable, we must next consider whether there is some exception to the public’s right to observe the committee’s deliberations and inspect its records. The only exception provided for by the plain language of Article II, Section 9, arises when “the demand of individual privacy clearly exceeds the merits of public disclosure.” We have established the following test to determine whether there is a privacy interest which must be considered:

This Court applies a two-part test to determine whether a person has a constitutionally protected privacy interest: whether the person involved had a subjective or actual expection of privacy and whether society is willing to recognize that expectation as reasonable.

Missoulian v. Board of Regents (1984), 207 Mont. 513, 522, 675 P.2d 962, 967.

¶21 We have previously held that corporations do have an interest in privacy protected by the Montana Constitution, and that a governmental agency can assert that right on behalf of the private interest. See Belth v. Bennett (1987), 227 Mont. 341, 345, 740 P.2d 638, 641.

¶22 The question in this case is whether the private vendors who submitted proposals had an actual expectation that all of the information in those proposals would be kept confidential. The Department contends that there was an actual expectation of privacy based on the assurances given in paragraph 1.1.4.2 of its RFP and the RFP’s reference in paragraph 1.1.4.1 to § 18-4-304, MCA, and § 2.5.602, ARM.

¶23 The Tribune contends that there could have been no actual expectation of privacy based on either the assurances in the RFP or the statutory or regulatory provisions relied upon. The Tribune points out that the RFP, § 18-4-304, MCA, and § 2.5.602, ARM, all provide for ultimate disclosure of the proposal’s contents once a contract has been executed, with the exception of trade secret information. The Tribune concedes that pursuant to § 18-4-304, MCA, and our prior decision in Mountain States Telephone & Telegraph Co. v. Department of Public Service Regulation (1981), 194 Mont. 277, 634 P.2d 181, the vendors do have a privacy interest in legitimate trade secrets which are an exception to the public disclosure requirements of Article II, Section 9, but that based on the Department’s own representations to the vendors, they had no other expectation of privacy in the information included in their proposals.

¶24 The record in this case includes testimony from two state officials and three representatives from vendors who had submitted proposals. This testimony demonstrates the actual reasons for excluding the public from the committee’s meetings and the vendors’ actual expectations regarding ultimate disclosure of the proposals they submitted.

¶25 Sheryl Motl is a Bureau Chief in the Purchasing Bureau for the Department of Administration, and in that capacity works in the procurement process. She testified that it is important to the RFP process that the contents of proposals not be publicly scrutinized until the State can complete its negotiation process. She explained that it is important that competitors not know what one another have proposed if the State is going to get “the best deal.” She felt that if the process was open, the State would not be able to negotiate effectively. She conceded, however, that at the end of the negotiation process, after a vendor is chosen and a contract executed, the information included in the proposals would be open to public inspection, except for trade secrets or other proprietary information.

¶26 Janie Wunderwald is the Contract Manager for the Department of Corrections, and in that capacity prepared the Department’s request for proposal. She testified that five companies responded to the request and provided twenty-six volumes of material, but that she knew of only one document in the twenty-six volumes which had been marked “trade secret.” She contended that the information included in the proposals would jeopardize security at the correctional facility if made public, but also acknowledged that after the contract is executed, all the proposals, except for those parts which constitute trade secrets or which relate to public safety would be released to the public. She admitted that the only reason the evaluations cannot be opened now, rather than in the future, is that it would jeopardize the Department’s ability to negotiate the best possible deal for the taxpayers of Montana.

¶27 Brad Wiggins is the Director of Business Development for the Corrections Corporation of America, which is one of the vendors submitting a proposal to the Department. Michael Murphy represents Management and Training Corporation, and Lawrence Barreras represents Cornell Corrections. Both of those companies also submitted proposals. All three gentlemen testified before the District Court. Although they all testified that they expected their proposals to be confidential during the negotiation phase, none of them testified that their companies would not have submitted a proposal had they known they would be publicly disclosed, and all acknowledged that when they submitted their proposal they were aware that, pursuant to law in Montana, the proposal would be subject to public inspection after a contract was executed.

¶28 It is clear from the language of the Department’s RFP, the terms of § 18-4-304, MCA, § 2.5.602, ARM, and the testimony of the State’s witnesses, that everyone involved in this process and, most importantly, the vendors who submitted proposals, had every expectation that the information included in the proposals, except for trade secrets or matters related to security, would ultimately be available for public inspection. The only question was one of timing, and the matter of timing was not related to the question of privacy, but instead to the Department’s concern that it get the “best deal.”

¶29 While we are in no way critical of the Department’s determination to get the “best deal” for the taxpayers of Montana, we must also necessarily conclude, based on the plain language of Article II, Section 9, and our prior decision, that economic advantage is not a sufficient reason for denying the public the opportunity to observe the deliberations of public bodies and inspect public documents. Economic advantage is not a privacy interest.

¶30 The State’s argument for privacy is analogous to the school board’s argument in Great Falls Tribune v. Great Falls Public Schools (1992), 255 Mont. 125, 841 P.2d 502. In that case, the Tribune sought admission to a meeting of the board of trustees for the Great Falls public schools at which the board intended to discuss negotiations for a new collective bargaining agreement with teacher aides and library aides. The board contended that they were entitled to hold these meetings privately pursuant to § 2-3-203, MCA, which provided that meetings to discuss collective bargaining strategy need not be held publicly. The district court denied the Tribune access to the board’s meetings based on the statutory provision. On appeal, the Tribune contended that the statutory exception was unconstitutional, in violation of Article II, Section 9, because it did not relate to individual privacy, but instead served a public agency’s interest in privacy. We agreed. We held that:

Article II, Section 9, of the Montana Constitution is unambiguous and capable of interpretation from the language of the provision alone. Great Falls Tribune v. District Court (1980), 186 Mont. 433, 437, 608 P.2d 116. Associated Press v. Board of Education (1991), 246 Mont. 386, 804 P.2d 376. In Associated Press, we noted Article II, Section 9, to be “unique, clear and unequivocal” and held that:
We are precluded, by general principles of constitutional construction, from resorting to extrinsic methods of interpretation.
Associated Press, 246 Mont. at 391, 804 P.2d at 379.

Great Falls Tribune, 255 Mont. at 129, 841 P.2d at 504.

¶31 We held that the board’s asserted interest in effective collective bargaining did not involve a matter of individual privacy which would serve as an exception to the open meeting law and, therefore, that:

The collective bargaining strategy exception is an impermissible attempt by the Legislature to extend the grounds upon which a meeting may be closed. We conclude that Sec. 2-3-203(4), MCA, is unconstitutional and the District Court is reversed.

Great Falls Tribune, 255 Mont. at 131, 841 P.2d at 505.

¶32 Likewise, the Department’s committee meetings have not been closed in this case for reasons of privacy; they have been closed to gain economic advantage. However, there is no exception provided in the plain language of Article II, Section 9, for the State’s economic advantage. As we noted in Great Falls Tribune, a public agency’s desire for privacy does not provide an exception to the public’s constitutional right to observe its government at work.

¶33 Furthermore, we conclude that the actual private vendors who are involved in this case had no reasonable expectation that the information included in their proposals, other than trade secrets, would remain confidential. They were all informed and were aware, prior to submitting their proposals, that the proposals would ultimately be available for public inspection. They were only led to believe that the proposals would be confidential while it was in the State’s economic interest to avoid disclosure. We conclude that in this case there is no privacy interest in the entirety of the vendors’ proposals to balance against the merits of public disclosure. We therefore conclude that the petitioner, Great Falls Tribune Company, Inc., has a constitutional right pursuant to Article II, Section 9, of the Montana Constitution, to observe the deliberations of the Department of Corrections Committee for Private Prison Screening and Evaluation and to examine its documents, including the proposals which have been submitted to it. The only exception to this right relates to information in which there is a privacy interest. That interest includes legitimate trade secrets, pursuant to our decision in Mountain States, and matters related to individual safety, pursuant to our decision in State ex rel. Great Falls Tribune v. Eighth Judicial District (1989), 238 Mont. 310, 777 P.2d 345. In other words, the Department can legitimately withhold no more information from public scrutiny during the negotiation process that it can withhold after the contract is executed. To the extent that § 18-4-304(4), MCA, or § 2.5.602, ARM, require exclusion of the public, including the petitioner, from the committee’s meetings, or prevent the public’s inspection of the committee’s documents, other than as previously provided, we conclude that those provisions violate Article II, Section 9, of the Montana Constitution, and, therefore, are unenforceable as applied.

¶34 This case involves the perception of State officials that private negotiations are in the State’s short-term economic interest. However, the delegates to the Constitutional Convention made a clear and unequivocal decision that government operates most effectively, most reliably, and is most accountable when it is subject to public scrutiny. It is that fundamental principle of this State’s constitutional law which is the basis for this Court’s decision.

¶35 While on any given occasion there may be legitimate arguments for handling government operations privately, the delegates to our Constitutional Convention concluded that in the long-term those fleeting considerations are outweighed by the dangers of a government beyond public scrutiny. As we have in the past, with this decision, we reinforce that conclusion.

¶36 For these reasons, the judgment of the District Court is reversed in part and affirmed in part.

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

Due to unavoidable circumstances, and the urgency with which this opinion was issued, Justice William E. Hunt, Sr., was unable to sign the final opinion. However, he concurs with the result.

JUSTICE LEAPHART,

concurring in part and dissenting in part.

¶37 I concur in the Court’s conclusions that 1) the committee is a public body and an agency of the state government; and 2) the proposals submitted by the private vendors to the Department’s screening and evaluation committee are documents of a public body within the meaning of Article II, Section 9 of the Montana Constitution. I also agree that § 18-4-304, MCA, is unconstitutional in that it protects proposals from public scrutiny during the negotiation stage. The purpose of this provision is to provide the State with an economic advantage. Although this is a laudable objective, it is not a privacy concern within the ambit of Article II, Section 9 of the Montana Constitution.

¶38 I dissent from the Court’s conclusion that there is no privacy interest in the entirety of the vendors’ proposals. In so concluding, the Court has failed to recognize that, if the vendors were provided a procedure to assert and adjudicate claims of trade secret or constitutionally-protected privacy, such claims may encompass the entirety of any one vendor’s proposal. There is an underlying assumption in the Court’s opinion that the trade secrets, if any, would constitute only a small part of each proposal. Given the nature of the project (construction of a private prison), I would assume just the opposite. That is, each vendor is attempting to sell the State a package, the essence of which is security — securing the public and the prison personnel from the prisoners and the prisoners from one another. The security features of a proposal are achieved through various means: architectural floor plans, building materials, alarms systems, surveillance techniques, staff numbers and locations, etc. Although the Court clearly leaves the door open to protecting “trade secrets” from public disclosure, it assumes that a trade secret is necessarily something less than the whole and forecloses the possibility that the trade secret doctrine may, under certain circumstances, encompass most, if not all, of the prison proposal.

¶39 The parties did not litigate the question of what constitutes a “trade secret” nor do I purport to resolve that issue here. Suffice it to say that “trade secret,” as defined in the Uniform Trade Secret Act, is a very general and amorphous concept which includes information, formulae, patterns, devices, methods, techniques and processes. Section 30-14-402(4), MCA. Prior to adoption of the Uniform Act in 1985, we held that trade secret may encompass a design, system or process which gives a competitive edge. See Mountain States Tel. & Tel. Co. v. Dept. of Public Service Regulation (1981), 194 Mont. 277, 284, 634 P.2d 181, 186. In other jurisdictions, trade secret has been held to include such things as blueprints and drawings, American Precision Vibrator Co. v. National Air Vibrator Co. (Tex. App. 1988), 764 S.W.2d 274, 278; Ecolaire Inc. v. Crissman (E.D. Pa. 1982), 542 F.Supp. 196, 206; drawings of assembly-line layout and design, Weed Eater, Inc. v. Dowling (Tex. Civ. App. 1978), 562 S.W.2d 898, 901-02; as well as the architectural layout and design of a chain restaurant, Taco Cabana Int’l, Inc. v. Two Pesos, Inc. (5th Cir. 1991), 932 F.2d 1113. The prison vendor, like the above vendors, derives economic benefit from his or her product. The argument for recognizing the layout and design of the prison as a trade secret is, however, much more compelling than in the above-cited cases. To a much greater extent than the blueprints or designs of a factory or a restaurant, the prison layout and design have serious implications for the individual safety of the personnel working in the prison as well as for the prisoners and the public.

¶40 As the Court points out, the vendors were aware that their proposals (with the exception of trade secrets) would be subject to public inspection once the contract was executed. However, until the prison vendors are given a chance to assert their claims to “trade secrets” and the trial court has had an opportunity to adjudicate those claims, I would not rule, as a matter of law, that a vendor has no privacy interest in the entirety of its proposal(s).

¶41 Article II, Section 9 of the Montana Constitution guarantees the right of privacy. That right is guaranteed to corporations as well as individuals. Belth v. Bennett (1987), 227 Mont. 341, 345, 740 P.2d 638, 641 (citing Mountain States, 634 P.2d at 188). The question presented here is whether the prison vendors had a subjective or actual expectation of privacy in their security package and whether society is willing to recognize that expectation as reasonable. Missoulian Inc. v. Board of Regents of Higher Educ. (1984), 207 Mont. 513, 522, 675 P.2d 962, 967. Although the right of privacy protects trade secrets, it cannot, by legislative fíat, be limited to trade secrets. It includes interests in security/safety measures as well. In State ex rel. Great Falls Tribune Co., Inc. v. Montana Eighth Judicial District Court (1989), 238 Mont. 310, 777 P.2d 345, we recognized that a probationer’s interest in physical safety was a reasonable expectation of privacy which outweighed the public’s right to know and thus the district court was justified in excluding the press from the revocation of probation hearing. Although the majority, in passing, recognizes the privacy interest in public safety, it fails to acknowledge that it may have been entirely reasonable for the vendors to assert, or the Department to assert on behalf of the vendors, a right of privacy in the security/safety features of the prison proposals, regardless of whether those features qualify as trade secrets.

¶42 As pointed out above, the safety of the prison personnel, the prisoners and the public depends upon the architectural design, building construction materials, alarms, and staffing of the prison. The safety of those individuals will be greatly compromised if, for example, the designs, drawings, blueprints and alarms system plans are disclosed to the public and printed in the newspaper for consumption by prospective inmates. In my view, the vendors, in the interests of insuring the safety of their employees (as well as the public), have every reason to expect that their building plans, blueprints, alarm systems and staffing plans will remain confidential. Since it is society (through its legislature) that seeks to construct this private prison for its own protection, we would be hard pressed to conclude that society is not willing to recognize the legitimacy of the vendors’ safety concerns for the safety and security of their personnel.

¶43 In conclusion, I submit the real problem presented by this appeal lies in the procedural deficiencies of the Montana Procurement Act. The Act does not require that vendors mark materials as trade secrets upon submission, nor does it provide a method whereby the vendor can designate materials as trade secret or claim privacy interests before information is disclosed to the public after execution of the contract. Since the Act does not afford an opportunity for the vendors to claim and specify secrecy or privacy interests nor for the Department to balance the right of privacy against the public’s right to know, the issues of trade secret and privacy have not been properly framed or adjudicated. Instead, we are left attempting to resolve constitutional issues based upon those interests the Department chose to broadly assert on behalf of the vendors without knowing the scope of what the vendors themselves, if given the opportunity, might claim as secret or private.

¶44 Until such time as the legislature (or, in the absence of legislation, this Court) provides a mechanism for vendors to assert and specify privacy and secrecy claims and for the Department to balance those claims against the public’s right to know, we should not be concluding that a trade secret is necessarily something less than the whole proposal or, in effect, denying a vendor the opportunity to assert a privacy interest in its safety/security features which could conceivably encompass the entirety or bulk of its proposal.


source: Caselaw Access Project

author: JUSTICE LEAPHART JUSTICE TRIEWEILER

license: Public Domain

text:
    STEVEN M. CAMERON, Plaintiff and Appellant, v. TEX L. MERCER, Defendant and Respondent.
    No. 97-619.
    Submitted on Briefs March 26, 1998.
    Decided May 29, 1998.
    1998 MT 134.
    55 St.Rep. 531.
    960 P.2d 302.
    289 Mont. 172.

      See C.J.S. Motor Vehicles § 526(31).
    For Appellant: James T. Harrison, Jr.; Harrison, Loendorf, Poston & Duncan Helena.
    For Respondent: Mark S. Williams; Williams & Ranney, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶ 1 Appellant Steven M. Cameron (Cameron) appeals from the decision of the Fourth Judicial District Court, Missoula County, denying his motion for a directed verdict on the issue of liability. We affirm.

¶2 We address whether the District Court erred in refusing to grant a directed verdict on liability where the facts showed that Respondent Tex Mercer (Mercer) skidded across the center line and collided with Cameron’s oncoming vehicle.

Factual and Procedural Background

¶3 In the early morning of May 10, 1995, Cameron was traveling westbound on Highway 10, a two-lane road, a few miles west of Missoula, Montana. Cameron was driving a Chevy sedan on his way to his job at a construction site. Mercer was traveling eastbound on Highway 10 in a Ford Bronco. He was on his way to work as a bus driver for Mountain Line bus service in Missoula. It was still dark, and both drivers were using their headlights. Neither driver was speeding.

¶4 Just after Mercer rounded a curve in the road, he drove over the fog line, out of his lane, and off the road onto the gravel shoulder. The parties dispute whether Mercer’s departure from the road was at a gradual angle or caused by an abrupt swerve. As he attempted to drive back onto the road, Mercer’s vehicle skidded in a sideways “yaw.” Cameron, attempting to avoid a collision, moved to the far outside of his lane. However, Mercer’s vehicle skidded across both lanes of travel and collided with Cameron’s vehicle. The collision occurred between the fog line and shoulder on Cameron’s side of the roadway. Cameron’s vehicle rolled, and both vehicles sustained damage.

¶5 Cameron filed suit in the District Court, alleging that Mercer was negligent in the operation of his vehicle. At trial, Cameron testified that Mercer had told him at the scene that he had swerved to miss an animal on the roadway. Montana Highway Patrol Officer Christopher Schultz (Officer Schultz) testified that he interviewed Mercer at the emergency room at St. Patrick’s Hospital following the accident and that Mercer never mentioned any oncoming cars. Officer Schultz testified that Mercer’s only explanation for the accident was that a small, furry animal had caused him to swerve off the roadway. Officer Schultz investigated the scene and concluded that Mercer’s vehicle had traveled off the paved surface of the roadway for about 81 feet and that when Mercer attempted to return to the roadway, his vehicle skidded across the road in a sideways “yaw.”

¶6 Mercer’s sister, Sandra Lee (Lee) was present during Mercer’s interview with Officer Schultz and testified that Mercer told the officer that he swerved to avoid some headlights in his lane. Lee testified that Mercer told Officer Schultz that after he swerved to avoid the oncoming car, he saw a small animal running across the roadway.

¶7 At the close of his case-in-chief, Cameron moved for a directed verdict on liability. The District Court reserved ruling on the motion. After all of the evidence had been presented and the jury instructions had been settled, the court denied Cameron’s motion for a directed verdict. The jury returned a verdict for Mercer. Subsequently, Cameron moved for a new trial, and the District Court denied the motion.

Standard of Review

¶8 We review a motion for a directed verdict to determine, as a matter of law, whether the non-moving party could prevail upon any view of the evidence including the legitimate inferences to be drawn therefrom. Ryan v. City of Bozeman (1996), 279 Mont. 507, 928 P.2d 228. Courts will exercise the greatest self-restraint in interfering with the constitutionally-mandated process of jury decision. Ryan, 928 P.2d at 229. Thus, unless there is a complete absence of any credible evidence in support of the verdict, a motion for a directed verdict is not properly granted. Ryan, 928 P.2d at 230 (citing Barmeyer v. Montana Power Company (1983), 202 Mont. 185, 191, 657 P.2d 594, 597 (overruled on other grounds)).

Discussion

¶9 Cameron argues that the District Court erred in refusing to grant a directed verdict on the issue of liability. Cameron contends that because Mercer violated several traffic statutes § 61-8-322, MCA (passing on the right); § 61-8-328, MCA (driving within a single lane); § 61-8-321, MCA (driving on the right side of the roadway)— the court should have found that he was negligent as a matter of law. However, as the district court noted, we have held that the fact that a vehicle is being driven outside of its lane on the wrong side of the highway at the time of a collision does not itself make the driver guilty of negligence as a matter of law. Lyndes v. Scofield (1979), 180 Mont. 177, 589 P.2d 1000.

¶10 In Lyndes, 589 P.2d at 1001, the parties were traveling in opposite directions on 39th Street in Missoula, Montana. Because the roadway was covered with ice, both parties were driving about 25 m.p.h., well below the posted 35 m.p.h. limit. Lyndes, 589 P.2d at 1001. Defendant Scofield struck a pothole in the roadway with her right front tire, causing the rear of her vehicle to swing out and be struck by an oncoming vehicle. Lyndes, 589 P.2d at 1001. The impact caused her vehicle to swing violently to the right and then back across the center lane into the path of the vehicle driven by plaintiff Lyndes. Lyndes, 589 P.2d at 1001.

¶11 Lyndes filed suit, alleging that Scofield had negligently operated her vehicle. Lyndes, 589 P.2d at 1001. The jury returned a verdict in Scofield’s favor, and Lyndes moved for a new trial. Lyndes, 589 P.2d at 1001. The district court granted his motion, holding that the evidence was not sufficient to uphold the jury’s verdict and that Scofield was negligent as a matter of law for violating the basic rule statute (current version at § 61-8-303, MCA) and the statute requiring drivers to keep to the right side of the roadway (current version at § 61-8-321, MCA). Lyndes, 589 P.2d at 1001-02.

¶12 On appeal, this Court reversed the district court. Lyndes, 589 P.2d at 1004. We held:

It is undisputed that at the time of the accident, Scofield’s vehicle was skidding down the road in the left-hand lane and that at the point of collision, the Lyndes’ vehicle was well within its proper lane of traffic. The question simply is, does this mean Scofield was negligent as a matter of law? We conclude it does not....
The District Court erred in concluding that violation of the statute constituted negligence as a matter of law. It is well established that involuntary violation of a statute in an emergency due to circumstances beyond the actor’s control does not constitute negligence per se. Rather, Scofield’s presence in the incorrect lane is only prima facie evidence of negligence which may be rebutted. This raises a factual issue which must be left to the jury to decide.

Lyndes, 589 P.2d at 1004 (citations omitted).

¶13 In this case, the fact that Cameron was in Mercer’s lane of travel at the time of the collision does not warrant a finding that he was negligent as a matter of law. As discussed below, Mercer presented the jury with evidence that he had swerved to avoid hitting an oncoming vehicle and then lost control trying to regain the roadway. Under Lyndes, the District Court correctly allowed the jury to weigh the evidence and decide whether Mercer acted with reasonable care under the circumstances.

¶ 14 In Lyndes, this Court also held that the jury had sufficient evidence before it to resolve the factual issues in favor of Scofield. Lyndes, 589 P.2d at 1002-03. In that case, the jury heard testimony on the condition of the roadway, the weather, and the size and location of the pothole. Lyndes, 589 P.2d at 1001. Scofield testified that she was driving carefully at a safe speed and that her car was in good condition. Scofield also testified that she had driven on 39th Street about two weeks prior to the day of the accident and had not noticed the pothole. Lyndes, 589 P.2d at 1001. We held that the jury was entitled to believe Scofield’s testimony and find that she had not driven negligently. Lyndes, 589 P.2d at 1003.

¶15 In this case, the parties presented conflicting theories as to the cause of the accident. Cameron’s theory was that Mercer, after falling asleep or because he was not paying attention, allowed his vehide to drift off of the roadway and then over-corrected and skidded out of control. Mercer’s theory was that any statutory violations were involuntary; that is, that he was forced to swerve off of the roadway by an oncoming car and that he did everything he could to keep control of bis vehicle and avoid an accident. The jury chose to accept Mercer’s version of events, and we hold that the record contains sufficient evidence to support the verdict.

¶16 Mercer had been a bus driver for 13 years prior to the accident. At the time of the accident, he was not speeding, and his vehicle was in good condition. Mercer testified that when he saw headlights in his lane, he “reacted reflex and swerved to the right.” He stated that his vehicle was only off of the roadway for a few seconds and that he did all he could to regain control. Officer Schultz testified that the appropriate driver response in this situation is to avoid braking and steer back onto the roadway. Officer Schultz found no skid marks to indicate that Mercer had applied his brakes.

¶ 17 Cameron argued that Mercer had drifted off of the roadway because he was tired or inattentive and suggested that Mercer fabricated the story about swerving to avoid an oncoming car. However, Mercer presented ample evidence to rebut Cameron’s theory. Officer Schultz testified that Mercer “had swerved to miss something, obviously.” Lee testified that she was present in the emergency room when Mercer told Officer Schultz the same story he told at trial — that he had swerved to avoid an oncoming car. The jury could infer from Officer Schultz’s measurements that Mercer’s vehicle left the roadway rapidly, consistent with an abrupt swerve. Further, the accident occurred just after Mercer had successfully negotiated a curve in the roadway, which contradicts Cameron’s suggestion that Mercer had fallen asleep.

¶18 Conflicts of evidence, including witness credibility, are properly resolved by the finder of fact. Whiting v. State (1991), 248 Mont. 207, 810 P.2d 1177. We have held that it is “an abuse of discretion for the trial court to grant a new trial solely because it chooses to believe testimony different than that believed by the jury. To do so would create a bench supremacy and sap the vitality of jury verdicts.” Brookings v. Thompson (1991), 248 Mont. 249, 252, 811 P.2d 64, 65. While a jury’s decision can, at times, surprise and amaze, it must be given the greatest deference by the courts. In this case, the jury resolved the conflicts of evidence in Mercer’s favor, and we will not disturb its findings.

¶19 Based on the foregoing, we affirm the decision of the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and GRAY concur.

JUSTICE TRIEWEILER

specially concurring.

¶20 I concur with the majority’s conclusion that there was sufficient evidence to support the jury’s verdict for the defendant based on the instructions that were given to the jury. Furthermore, since the adequacy of the instructions has not been raised as an issue on appeal, I would not reverse the judgment of the District Court for failure to properly instruct the jury. However, I write separately to clarify that, in my opinion, it would be a rare situation in which violation of a motor vehicle statute would not constitute negligence per se.

¶21 We have repeatedly held that violation of a statute enacted for the safety of the public, including those which regulate the operation of motor vehicles on the public highways, is negligence per se. See Kudrna v. Comet Corp. (1977), 175 Mont. 29, 38-39, 572 P.2d 183, 188-89.

¶22 The principle of negligence per se, as it pertains to the operation of motor vehicles, is an important principle. We must be careful to avoid its reduction to a meaningless concept capable of evasion by the flimsiest of excuses (i.e., the sudden appearance of a small, nondescript, furry animal). Liability laws exist for the purpose of allocating the cost of motor vehicle accidents. Motor vehicle laws are enacted to provide for the safe and predictable movement of vehicles. The principle of negligence per se has been adopted for the purpose of allocating liability based on noncompliance with motor vehicle laws when negligence would be otherwise difficult to prove.

¶23 The theory on which the rule of negligence per se is based is that as between two drivers — one who has been free from fault and violated no law, and one who has violated a law on which the other depended — fault should, as a matter of policy, be attributed to that person who violated the law. Carving out exceptions for anything but the most compelling reasons reverts to the days of “unavoidable accidents,” and destroys the necessary predictability of motor vehicle operator liability. The notion of “unavoidable accidents” was discarded in Montana over thirty years ago. See Graham v. Rolandson (1967), 150 Mont. 270, 290-91, 435 P.2d 263, 273-74.

¶24 In this case, the plaintiff was proceeding in a lawful manner in his own lane of travel and had a right to occupy that lane of travel without interference from the defendant’s vehicle which had been proceeding in the opposite direction. Instead, the defendant lost control of his vehicle, skidded across plaintiff’s entire lane of travel, and collided with the plaintiff between the fog line and shoulder on the plaintiff’s side of the road.

¶25 Based on principles of negligence per se, defendant should have had a stronger burden than was imposed on him by the District Court’s instructions to excuse his presence on the plaintiff’s side of the road. The defendant’s interference with the plaintiffs right to safely operate his vehicle on the highway violated at least three separate motor vehicle statutes. Section 61-8-321, MCA, required that the defendant keep his vehicle on the right half of the highway; § 61-8-322, MCA, required that vehicles proceeding in opposite directions pass each other to the right, and that each vehicle give the other at least one-half of the main traveled portion of the roadway; and § 61-8-328, MCA, required that the defendant operate his vehicle entirely within his own lane of travel unless it was safe to do otherwise. The plaintiff had a right to rely on compliance with all of those statutes and the jury should have been so instructed. The jury should have been instructed that failure to comply with those statutes constituted negligence per se.

¶26 Not only was the jury not instructed on the significance of violation of motor vehicle statutes, the effect of that omission was compounded when the court instructed the jury that:

The mere happening of an accident, in itself, is not evidence of negligence. The law does not require that for every injury there must be a recovery of damages, but only imposes liability for breach of a legal duty by defendant, which is the cause of injury to the plaintiff.

¶27 The “mere happening of an accident” instruction is an anachronism which has been disapproved by this and other courts for at least twenty years. In Helmke v. Goff (1979), 182 Mont. 494, 500, 597 P.2d 1131, 1134, we noted that:

“In Graham v. Rolandson (1967), 150 Mont. 270, 435 P.2d 263, an ordinary negligence action, we condemned an ‘unavoidable accident’ instruction. There we concluded that it injected a straw issue into the case and is confusing to the jury. This is somewhat akin to ‘the mere fact of an injury’ instruction as was given in this case. In Gagosian v. Burdick’s Television & Appliances (1967), 254 Cal.App.2d 316, 62 Cal.Rptr. 70, California eliminated ‘the fact of an injury’ instruction from ordinary negligence actions, stating:
‘... Since it but elucidates the obvious to the jury, and need not be given to meet any rule of appellate procedure, we join heartily in the recommendation of its authors for its “decent burial”. The trial judge who strikes the “mere happening” instruction from his instruction book and completely erases it from his memory will save time in instruction and much in retrial after reversal.’
We also conclude that in an ordinary negligence action that such instruction should be given a ‘decent burial’ in this State.” [Hunsaker v. Bozeman Deaconess Foundation (1978), 179 Mont. 305,] 588 P.2d at 506, 507.
The evil in giving such an instruction in a Res ipsa case is that the jury may consider that they are foreclosed from considering the evidence provided by the happening of the accident itself. Jensen v. Minard (1955), 44 Cal.2d 325, 282 P.2d 7, 9. Therefore we hold the instructions here to be so incompatible as to require reversal.

¶28 Likewise, under the circumstances of this case in which the defendant’s conduct violated at least three separate motor vehicle statutes, the mere happening of the accident instruction was incompatible with the usual presumption that the defendant’s conduct constituted negligence as a matter of law.

¶29 I concur that we have, in the past, held that an involuntary violation of a statute in an emergency does not constitute negligence per se. In Lyndes v. Scofield (1979), 180 Mont. 177, 185, 589 P.2d 1000, 1004, we held that:

It is well established that involuntary violation of a statute in an emergency due to circumstances beyond the actor’s control does not constitute negligence per se. Duchesneau v. Silver Bow County (1971), 158 Mont. 369, 377, 492 P.2d 926, 930. Rather, Scofield’s presence in the incorrect lane is only prima facie evidence of negligence which may be rebutted. McGinnis v. Phillips (1922), 62 Mont. 223, 228, 205 P. 215, 216.

¶3 0 However, I would apply this limited exception to the principle of negligence per se in only the most extreme situations. For example, where the defendant’s presence on the wrong side of the road is caused by the plaintiff’s own prior negligence. See, e.g., Shannon v. Hulett (1983), 205 Mont. 345, 668 P.2d 228. However, I would not apply the exception under any circumstance where the party accused of being negligent is on the wrong side of the road due to his or her own conduct. Examples where I would not apply the exception are the driver’s failure to observe and avoid the chuckhole which caused her to slide out of control in the Scofield case, and a driver’s calculated decision to avoid a small furry animal at the expense of oncoming traffic, as was established by the investigating patrolman’s initial investigation in this case.

¶31 Furthermore, I believe it is necessary for a jury’s proper application of the law to disputed facts that it first be properly instructed on the law. This jury should have been instructed about the general rule of negligence per se, and the motor vehicle statutes which were violated. It should then have been instructed about the very narrow circumstances in which the rule would not apply. None of that was done. However, since the court’s instructions to the jury are not the basis for the plaintiffs appeal, and since I concur with the majority that on the very narrow issue which has been raised there was sufficient evidence to support the jury’s verdict, I concur with the majority’s conclusion that the judgment of the District Court should be affirmed.

JUSTICES HUNT, NELSON, REGNIER join in the foregoing specially concurring opinion.


author: JUSTICE REGNIER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID MAURICE DAHLIN, JR., Defendant and Appellant.
    No. 97-465.
    Submitted on Briefs March 26, 1998.
    Decided May 5, 1998.
    1998 MT 113.
    55 St.Rep. 446.
    961 P.2d 1247.
    289 Mont. 182.

      See C.J.S. Infants S58 .
    For Appellant: Kirk S. Bond, Attorney at Law; Seattle, Washington.

      For Respondent: Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena; Thomas P. Meissner, Fergus County Attorney; Lewistown.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 David Maurice Dahlin, Jr., was charged by information on January 15,1997, with the offenses of felony driving under the influence of alcohol, misdemeanor driving without a valid driver’s license, and misdemeanor failure to have liability protection in effect. The Tenth Judicial District Court, Fergus County, conducted a nonjury trial and found Dahlin guilty of driving under the influence of alcohol, fourth offense, and driving without a valid driver’s license. The District Court sentenced Dahlin to a term of four years, with two years suspended upon certain conditions, on the charge of felony driving under the influence of alcohol, and to a concurrent term of six months on the driving without a valid driver’s license charge. Dahlin appeals from the sentence and the judgment of the District Court. We reverse.

¶2 The sole issue on appeal is whether the District Court erred by allowing Dahlin to waive his right to a jury trial without filing a written waiver.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On January 15,1997, Dahlin was charged by information in the Tenth Judicial District Court, Fergus County, with violations of: (1) § 61-8-401, MCA, DUI, a fourth lifetime offense, a felony; (2) § 61-5-102, MCA, driving without a valid driver’s license, a misdemeanor; and (3) § 61-6-301, MCA, failure to have liability protection in effect, a misdemeanor. These charges stem from an investigatory stop of Dahlin’s vehicle on January 3, 1997, in Lewiston, Montana.

¶4 Dahlin, represented by attorney Torger S. Caas, appeared in court on January 21, 1997, and entered pleas of not guilty to the charges. An omnibus hearing was held on February 25, 1997, and a jury trial was set for May 2, 1997.

¶5 On May 2,1997, the court conducted a bench trial on the charges against Dahlin. A minute entry dated May 2, 1997, notes:

Non-Jury Trial commenced at 9:10 a.m. with Judge John R. Christensen presiding. ...Attorney Torger S. Oaas present with the Defendant, David Maurice Dahlin. Attorney Oaas states Defendant has waived the right to Jury Trial and is ready to proceed with a Non-Jury Trial at this time.

The District Court record does not contain a written waiver of a jury trial and consent to nonjury trial.

¶6 The court proceeded to hear testimony and consider the evidence presented. At the end of the day, the court found Dahlin guilty of driving under the influence of alcohol and driving without a valid driver’s license. The court found Dahlin innocent of failure to have liability insurance in effect. The court entered an order setting forth its findings on May 12,1997.

¶7 A sentencing hearing was held on June 10,1997. In an order filed on June 13,1997, the District Court sentenced Dahlin to the Department of Corrections for a term of four years with two years suspended for felony driving under the influence of alcohol. For the charge of driving without a valid driver’s license, Dahlin was sentenced to a concurrent term of six months in the county jail.

¶8 On June 18,1997, Dahlin filed a notice of appeal. Dahlin appeals from the sentence and judgment of the District Court.

DISCUSSION

¶9 Did the District Court err by allowing Dahlin to waive his right to a jury trial without filing a written waiver?

¶10 The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. State v. Rushton (1994), 264 Mont. 248, 254-55, 870 P.2d 1355, 1359. When we review a district court’s findings of fact, the standard of review is whether those findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906.

¶11 On appeal, Dahlin argues that the District Court erred by convicting him in a bench trial without obtaining a written waiver of jury trial signed by him and the prosecution as required under § 46-16-110(3), MCA. That statute provides: “Upon written consent of the parties, a trial by jury may be waived.” Section 46-16-110(3), MCA. Therefore, Dahlin contends that the court could not rely upon the oral representation of his counsel that he had waived his right to a jury trial and proceed to convict him in a bench trial.

¶ 12 The State points out that Dahlin did not raise his right to jury trial or the issue of a lack of a written waiver of jury trial in the District Court before, during, or after the trial. He did not ask the District Court for any relief, nor did he make any objection with regard to a nonjury trial or the lack of written consent at any time during the proceedings.

¶13 We have consistently held that “[t]his Court will not consider issues raised for the first time on appeal when the appellant had the opportunity to make an objection at the trial level.” State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491. The contemporaneous objection rule at § 46-20-104, MCA, and the limitations set forth at § 46-20-701, MCA, preclude appellate consideration of alleged errors unless a timely objection was made at trial, or unless certain statutory criteria are met. Dahlin does not assert that he made a timely objection, nor does he contend that this claim falls within one of the narrow statutory exceptions found at § 46-20-701, MCA.

¶14 Therefore, review of Dahlin’s right to jury trial or a lack of written waiver claim by this Court can only be conducted pursuant to the common law plain error doctrine. We will discretionarily review alleged errors that implicate a criminal defendant’s fundamental constitutional rights, even if no contemporaneous objection is made and notwithstanding the inapplicability of the criteria set forth in § 46-20-701(2), MCA, where failing to review the alleged error would either: (1) result in a manifest miscarriage of justice; (2) leave unsettled the question of the fundamental fairness of the trial or proceedings; or (3) compromise the integrity of the judicial process. State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215.

¶15 In order for the plain error doctrine to be invoked, this Court must first determine whether the error alleged by Dahlin implicates fundamental constitutional rights. See State v. Sullivan (1996), 280 Mont. 25, 927 P.2d 1033. Dahlin argues that the District Court’s failure to obtain written consent of Dahlin’s waiver of right to a jury trial violated his right to trial by jury under Article II, Sections 24 and 26, of the Montana Constitution. Article II, Section 24, of the Montana Constitution provides in relevant part that “[i]n all criminal prosecutions the accused shall have the right to ... a speedy public trial by an impartial jury.” Article II, Section 26, of the Montana Constitution provides that:

The right of trial by jury is secured to all and shall remain inviolate. But upon default of appearance or by consent of the parties expressed in such manner as the law may provide, all cases may be tried without a jury or before fewer than the number of jurors provided by law. In all civil actions, two-thirds of the jury may render a verdict, and a verdict so rendered shall have the same force and effect as if all had concurred therein. In all criminal actions, the verdict shall be unanimous.

Undeniably, the right to a jury trial is a fundamental constitutional right, clearly provided for in the Montana Constitution. Given the importance of the legal issue raised, and notwithstanding Dahlin’s failure to contemporaneously object or claim error pursuant to § 46-20-701(2), MCA, failure by this Court to review Dahlin’s claim would leave unsettled a question as to the fundamental fairness of his trial.

¶16 Having concluded that Dahlin’s claim affects fundamental constitutional rights, we must next determine whether the lack of written consent waiving his right to a jury trial violated his right to a trial by jury under Article II, Section 26, of the Montana Constitution. Dahlin argues that the District Court erred by allowing him, through the oral representation of his attorney, to waive his right to a jury trial and consent to a nonjury trial without the filing of a written waiver and consent signed by both parties pursuant to § 46-16-110(3), MCA.

¶17 The State responds that although Dahlin has a constitutional right to a jury trial, that right may be waived by a criminal defendant during the course of the proceedings. In this case, the State contends that Dahlin should be bound by the oral representation of his attorney that he had given consent to waive his right to a jury trial. Furthermore, the State argues that strict compliance with the writing requirements of § 46-16-110(3), MCA, is unnecessary in this case to show that Dahlin knowingly and voluntarily waived his right to a jury. Rather, the State relies on State v. McCartney (1978), 179 Mont. 49, 585 P.2d 1321, to argue that this Court should continue to determine the existence of a waiver pursuant to § 46-16-110(3), MCA, by examining the totality of the circumstances.

¶ 18 As stated above Article II, Section 26, of the Montana Constitution provides that a jury trial is guaranteed in all criminal cases unless waived in the manner provided by law. We have held that under the language of Article II, Section 26, of the Montana Constitution, the Legislature is free to set forth the procedure for waiver of trial by jury in criminal cases. See State ex rel. Nelson v. Ninth Judicial Dist. Court (1993), 262 Mont. 70, 863 P.2d 1027. The Legislature has clearly done so by enacting § 46-16-110, MCA.

¶19 As stated above, § 46-16-110(3), MCA, provides that “[u]pon written consent of the parties, a trial by jury may be waived.” When the language of a statute is clear and unambiguous, we look no further than to the plain meaning of the statute for its interpretation. State v. Long (1995), 274 Mont. 228, 237, 907 P.2d 945, 950. We conclude that the language of § 46-16-110(3), MCA, is clear and unambiguous.

¶20 Under § 46-16-110(3), MCA, both parties must consent and sign a written waiver before a defendant may waive his right to a jury trial. In this case, both Dahlin and the State agree that no written waiver was ever filed with the District Court. The only evidence that Dahlin may have waived his right to a jury trial is the court’s minute entry dated May 2,1997, which provides, in relevant part, “Attorney Oaas states [Dahlin] has waived his right to Jury Trial and is ready to proceed with a Non-Jury Trial at this time.” We determine that this minute entry, or an oral representation by Dahlin’s attorney, is not sufficient under § 46-16-110(3), MCA, for Dahlin to have waived his right to a jury trial.

¶21 Furthermore, we decline to follow our decision in McCartney. In McCartney, the defendant, like Dahlin, argued that his waiver of a jury trial was ineffective because it was not reduced to writing and signed by both parties as required by statute. At the time, we determined that the statutory requirement of written consent was not such a mandate that failure to comply would render the trial a nullity. McCartney, 179 Mont. at 55, 585 P.2d at 1325. Rather, we concluded that under the situation at hand, we should examine the totality of the circumstances to determine whether the defendant did, in fact, make a voluntary and intelligent waiver. McCartney, 179 Mont. at 56, 585 P.2d at 1325. In McCartney, we noted that our decision was clearly at odds with § 95-1901(d), RCM (1947), a predecessor statute to § 46-16-110(3), MCA, which also provided that a right to a jury trial in a criminal case may be waived upon written consent of the parties. McCartney, 179 Mont. at 56, 585 P.2d at 1325.

¶22 The Legislature has expressly set forth in § 46-16-110(3), MCA, the manner in which the constitutional right to a jury trial in a criminal case may be waived. That statute allows a criminal defendant to waive his right to a jury trial only upon written consent of the parties. In the absence of written consent, the statute does not allow this Court to review the totality of the circumstances to determine whether a defendant has knowingly and voluntarily waived his right to a jury trial.

¶23 After a review of § 46-16-110(3), MCA, and mindful of the constitutional protections afforded criminal defendants, including the right to a trial by jury, we now hold that in order for a criminal defendant to waive his right to a jury trial, that waiver must be in writing with the consent of both parties and filed with the district court. Consequently, State v. McCartney (1978), 179 Mont. 49, 585 P.2d 1321, and any other case that has held that a criminal defendant may waive his right to a jury trial without written consent signed by both parties, is hereby overruled to that extent.

¶24 In the present case, the record affirmatively demonstrates that Dahlin did not file a written consent signed by both parties waiving his right to a jury trial pursuant to § 46-16-110(3), MCA. Therefore, we hold that Dahlin’s right to a jury trial was violated and conclude that the District Court erred in conducting a bench trial and convicting him.

¶25 Reversed.

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


text:
    IN RE DECLARING E.W., C.W., AND A.W. Youths in Need of Care.
    No. 97-439.
    Submitted on Briefs April 16, 1998.
    Decided June 2, 1998.
    1998 MT 135.
    55 St.Rep. 536.
    959 P.2d 951.
    289 Mont. 190.

      See C.J.S. Infants § 58.
    For Appellant: Daniel P. Buckley; Berg, Lilly, Androlio & Tollefson, PC.; Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Stephen C. Bullock, Assistant Attorney General; Helena; Marty Lambert, Gallatin County Attorney; Gary Balaz, Deputy County Attorney; Bozeman.
    For Guardian Ad Litem: Todd Hillier, Attorney at Law, Bozeman.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 J.A. appeals from an order of the Eighteenth Judicial District Court, Gallatin County, terminating her parental rights over E.W., C.W., and A.W. For the reasons stated below, we affirm. The sole issue on appeal is whether the District Court erred in terminating J. A.’s parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 J.A. and L.W. married in 1986, and are the natural parents of E.W., C.W., and A.W., the three minor children involved in the present matter. Their first child, E.W., was born on November 22, 1988. The Department of Public Health and Human Services, formerly the Department of Family Services, first began providing services to J.A. in June 1989 when E.W. was seven months old. On September 1, 1989, J.A. and the Department entered into a service treatment agreement designed to help J.A. provide proper care for her son. On October 15, 1990, the Department filed a petition for temporary investigative authority and emergency protective services. The court issued an order for emergency protective services, and appointed a guardian ad litem for E.W. At the October 30,1990, show cause hearing, the parties informed the court they had reached an agreement, and the Department entered into a service treatment plan with J.A. and L.W. The District Court issued an order granting the Department temporary investigative authority over E.W. for the six-month period due to expire on January 30, 1991. The parties subsequently agreed to terminate supervision, and on January 14,1991, the District Court terminated the matter.

¶3 J.A. and L.W. had their second child, C.W., on August 4, 1991. Their third child, A.W., was born nearly a year later, on July 1,1992. J.A. and L.W. divorced in 1993, and J.A. married T.A. on July 17,1994. The record indicates there were numerous referrals during this period of time, and the Department thus continued its involvement with J.A.

¶4 On July 14,1994, the Department filed a second petition in response to a referral of physical, emotional, and medical neglect, this time seeking temporary investigative authority and protective services for E W, C.W., and A.W. T.A. subsequently left the state, thereby violating the conditions of his probation, and J.A. was evicted from her apartment in August 1994. The children were placed in foster care on August 19,1994, where they have since remained. On August 30, 1994, the District Court entered an order granting the Department’s petition for temporary investigative authority and protective services for a six-month period.

¶5 On September 28,1994, J.A. entered into a court ordered contract and treatment plan designed to “reunite the family by helping [J.A.] learn appropriate parenting skills and how to provide a safe environment for the children.” On February 22,1995, the Department filed a petition seeking temporary custody for an additional six-month period, on the grounds that J.A. had failed to fulfill her obligations under the September 1994 treatment plan. The court granted the Department’s petition on March 14, 1995, providing the Department with another six-month period of temporary custody, and ordering that J.A. “successfully complete her treatment plan.”

¶6 Six months later, the Department again petitioned the court to extend its temporary custody over E.W., C.W., and A.W. for an additional six months and asked for a revised treatment plan. In support of its September 11,1995, petition, the Department cited to J.A.’s continuing failure to complete the requirements of her existing treatment plan. The parties agreed to another six-month period of temporary custody, and on September 20,1995, the District Court entered an order continuing the Department’s temporary custody until March 1996. The District Court appointed counsel for J.A., and the parties negotiated a revised contract and treatment plan, approved by the court on January 10, 1996.

¶7 On April 19,1996, the Department filed a petition to terminate J.A.’s parental rights. Arguing J.A. had failed to comply with the requirements of her January 1996 treatment plan, the Department sought to terminate J.A.’s parental rights on the stated grounds “that the treatment plan has not been successful and the mother’s conduct or condition rendering her unfit is unlikely to change within a reasonable time.”

¶8 In May 1996, the District Court conducted a five-day hearing on the petition to terminate parental rights. On June 3,1997, the court issued its findings of fact, conclusions of law, and order, terminating J.A.’s parental rights to E.W., C.W., and A.W. It is from the District Court’s order terminating her parental rights that J.A. presently appeals.

STANDARD OF REVIEW

¶9 We review a district court’s decision to terminate parental rights to determine whether the court interpreted the law correctly and whether its findings of fact are clearly erroneous. In re K.F.L. and N.L. (1996), 275 Mont. 102, 104, 910 P.2d 241, 243.

¶10 In In re D.H. and F.H. (1994), 264 Mont. 521, 524, 872 P.2d 803, 805, we clarified the standard of review for cases involving a youth in need of care and termination of parental rights. The appropriate standard of review to be applied to purely factual findings in a termination of parental rights proceeding is the clearly erroneous standard as set forth in Interstate Production Credit Association v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. In DeSaye, we explained that, pursuant to the clearly erroneous standard of review,

[flirst, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of the evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended the Court may still find that “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed.” U[nited] S[tates] v. U.S. Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746.

DeSaye, 250 Mont. at 323, 820 P.2d at 1287 (citations omitted).

¶11 We review conclusions of law in a termination proceeding to determine if those conclusions are correct. In re D.H. and F.H., 264 Mont. at 525, 872 P.2d at 805.

¶ 12 This court has recognized that “a natural parent’s right to care and custody of a child is a fundamental liberty interest, which must be protected by fundamentally fair procedures.” In re R.B., Jr. (1985), 217 Mont. 99, 103, 703 P.2d 846, 848. Accordingly, prior to terminating an individual’s parental rights, the district court must adequately address each applicable statutory requirement. In re R.B., Jr., 217 Mont. at 103, 703 P.2d at 848. Moreover, “the party seeking termination must present clear and convincing evidence to the district court that the prerequisite statutory criteria for termination have been met.” In re J.L., D.L., and A.G. (1996), 277 Mont. 284, 288, 922 P.2d 459, 461.

¶13 In the context of parental rights termination cases, we have defined clear and convincing evidence as

simply a requirement that a preponderance of the evidence be definite, clear, and convincing, or that a particular issue must be clearly established by a preponderance of the evidence or by a clear preponderance of the proof. This requirement does not call for unanswerable or conclusive evidence.

In re J.L., D.L., and A.G., 277 Mont. at 289, 922 P.2d at 462 (quoting In re Interest of S.M.Q. (Kan. 1990), 796 P.2d 543, 545).

¶14 We presume that the district court’s decision is correct and will not disturb it on appeal unless there is a mistake of law or a finding of fact not supported by substantial evidence that would amount to a clear abuse of discretion. In re J.R. and S.D. (1992), 253 Mont. 434, 440-41, 833 P.2d 1063, 1067; In re J.J.C.H. and C.M.H. (1992), 252 Mont. 158, 162, 827 P.2d 812, 815.

DISCUSSION

¶ 15 Did the District Court err in terminating J. A.’s parental rights?

¶16 The Department petitioned to terminate J.A. parental rights pursuant to § 41-3-609(l)(c), MCA (1995) (since renumbered § 41-3-609(l)(e), MCA), which provided as follows:

The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:
(c) the child is an adjudicated youth in need of care and both of the following exist:
(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.

¶17 Relying on § 41-3-609(l)(c), MCA (1995), the Department sought to terminate J.A.’s parental rights due to her alleged failure to comply with the January 1996 treatment plan, and on the grounds “that the treatment plan has not been successful and the mother’s conduct or condition rendering her unfit is unlikely to change within a reasonable time.”

¶18 In its June 3,1997, order terminating J.A.’s parental rights, the District Court concluded that “[a]ll of her treatment plans have met with mixed results, but [J.A.] cannot parent these children in the near or distant future.” The court also concluded the termination of J.A.’s parental rights was warranted because it was “not in the interests of these children’s physical, mental and emotional needs to place them on hold any longer.”

¶19 On appeal, J.A. argues the court erred in so concluding, and generally asserts that, because the Department failed to meet its burden of presenting clear and convincing evidence in support of its petition for termination, the court’s findings of fact are thus clearly erroneous, and its conclusions of law incorrect. More specifically, J.A. argues the court improperly disregarded testimony by a number of professionals who opposed the termination of her parental rights and instead “supported the return of the children.” J.A. asserts the evidence of record, including testimony by all three professionals integrally involved in the case, demonstrates that she complied with the January 1996 treatment plan, and that the treatment plan was successful. Based on the foregoing, J.A. argues the evidence of record demonstrates “by clear and convincing proof that [J.A.] is a competent mother,” and asserts the court erred in concluding J.A. is unfit to parent her children and in terminating her parental rights.

¶20 In support of her argument that the 1996 treatment plan was successful, J.A. relies in part upon the testimony of counselor Barbara Boik, who explained that, were J.A. to “have a good support system in line and get the help that she needed,” Boik “would really like to see the children with her.” J.A. also points generally to testimony by Eleanor Truitt, a licensed clinical social worker, who explained that she believed J.A. could, with proper help, parent her children, and that the children should thus “be able to return to their mother.” J.A. also relies upon the opinion of case aid Joyce VanderVoort who testified that because J.A. had made a concerted effort to improve her parenting skills, she was deserving of a chance to “use the skills.” Moreover, J.A. notes that clinical psychologist Dr. McElhinny, although called as a witness by the Department, conceded that the opinions expressed by Boik, Truitt, and VanderVoort regarding the placement of the children would be important. Finally, J.A. points to similar testimony by clinical social worker Suzy Saltiel who stated that she “would like to see these children with their mother.” Pointing to testimony by the foregoing individuals, J.A. argues that all of the professionals who “were integral to the treatment plan” believed she had successfully completed the plan and supported the return of her children.

¶21 The Department, in response, points to contrasting testimony by a number of witnesses who expressed their ongoing concerns about J.A.’s ability to parent her children, and who concluded that the treatment plan had been unsuccessful. For example, the Department notes that Meg Babits, the children’s guardian ad litem, expressly testified that, in her opinion, “[t]he treatment plan has not been successful.” The Department also relies upon testimony by social worker Elizabeth Hoyt-Leonard, who explained that she did not think the January 1996 treatment plan had been effective. The Department additionally points to testimony by Steven Ware, a member of J.A.’s treatment team, who explained that he continued to have concerns about J.A. neglecting her children and not being able to look out for their emotional well-being. The Department also relies upon the opinion of Ellen Berglund, the children’s trained therapeutic foster mother, who testified that she thought J.A. was unable to change and had neglected to remedy the circumstances that led to the removal of her children. Finally, the Department notes that Dr. James Feist, the children’s pediatrician for nearly six years, testified that the children were “high needs” children, and that J.A. did not have the ability to “respond to their needs.”

¶22 As demonstrated by the parties’ respective arguments, the record contains conflicting evidence and testimony with regard to the success or failure of J.A.’s 1996 treatment plan. Under these circumstances, it is not our function on appeal to reweigh the conflicting evidence of record, substitute our “evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses." In re J.L., 277 Mont. at 290, 922 P.2d at 462 (quoting In re Interest of S.M.Q. (Kan. 1990), 796 P.2d at 545.) That there exists conflicting evidence of record “does not automatically preclude a finding that clear and convincing evidence to support a given position exists.” In re J.L., 277 Mont. at 290, 922 P.2d at 462.

¶23 In its order terminating J.A.’s parental rights, the District Court recognized that the record contained conflicting evidence regarding J.A.’s ability to parent her children, as well as the success or failure of her January 1996 treatment plan. The court made 284 findings of fact, many of which chronicled conflicting testimony by various witnesses regarding the implementation and success of the treatment plan at issue. For example, the court recounted testimony by Babits and Hoyt-Leonard, each of whom believed that the 1996 treatment plan had not been effective or successful. The court did acknowledge, however, that there existed conflicting testimony by a number of individuals. For example, the court recognized in its findings of fact that Boik believed “the children would be better off with their mother, so long as she had a support system around her.” The court also acknowledged that Truitt “was of the opinion that [J.A.] could parent her children with help” and that “[s]he favored a return of the children to [J.A.], so long as [J.A.] received parenting aid, and respite day care.” Finally, the court noted that VanderVoort thought J.A. deserved a chance to use her newly acquired skills and parent her children with support from the Department.

¶24 Thus, although J.A. argues the District Court failed to give proper consideration to testimony by Boik, Truitt, and VanderVoort, review of the District Court’s lengthy findings of fact indicates otherwise. The court clearly considered the testimony of each witness before concluding that all of J.A.’s treatment plans, including the 1996 treatment plan, had “met with mixed results, but [J. A.] cannot parent these children in the near or distant future.” After considering all of the evidence before it, the court concluded that J.A.,

the mother of these three children, by proof beyond all doubt, will never be a competent mother. She has been given every service available by the department. Although it is true, the department should have stepped in much sooner, given her services and then terminated her rights if she could not improve, the fact still remains that she will never be able to parent these three children adequately, given the intensive parenting they require and her level of parenting skills.

¶25 Review of the District Court’s findings of fact and conclusions of law indicates it did not, as J.A. suggests, “ignore[] the recommendation of the three primary professionals who were integral to and a part of the treatment plan.” Instead, the court evaluated all pertinent evidence and testimony before effectively concluding J. A.’s treatment plan had been unsuccessful, and ordering the termination of J. A.’s parental rights. Having reviewed the record and the District Court’s order, we conclude the court’s findings of fact are supported by substantial evidence, and are not clearly erroneous. We hold the court did not err in concluding that J. A.’s treatment plan had met with only “mixed results” and was thus unsuccessful.

¶26 As noted above, J.A. also argues that the evidence of record demonstrates she complied with the January 1996 treatment plan, and suggests the court thus erred in concluding she was unfit to parent her three children. Pursuant to § 41-3-609(l)(c), MCA (1995), a court may order the termination of parental rights upon a finding that a court-approved treatment plan has been unsuccessful or has not been complied with, and a finding that “the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.” In other words, “a parent must not only comply with the treatment plan, but the treatment plan must also be successful.” In re S.C. (1994), 264 Mont. 24, 29, 869 P.2d 266, 269.

¶27 In the present case, the Department expressly petitioned to terminate J.A.’s parental rights on the grounds “that the treatment plan has not been successful and the mother’s conduct or condition rendering her unfit is unlikely to change within a reasonable time.” In light of our determination that the District Court correctly concluded that J.A.’s treatment plan had met with only mixed results, and was thus unsuccessful, whether J.A. complied with the 1996 treatment plan is immaterial. Accordingly, we decline to address J.A.’s argument that she in fact complied with the requirements of the January 1996 treatment plan and that the District Court thus erred in terminating her parental rights.

¶28 Section 41-3-609(l)(c), MCA (1995), also required that to order the termination of parental rights a district court must find “the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.” That the District Court in this case evaluated this statutory requirement is evidenced by its conclusion that, “by proof beyond all doubt,” J.A. “will never be a competent mother” and “will never be able to parent these three children adequately, given the intensive parenting they require and her level of parenting skills.”

¶29 On appeal, J.A. generally argues it was error for the court to conclude she was, and would continue to be, an unfit mother. Having reviewed the record, however, we hold otherwise. As it did with respect to the implementation of J.A.’s treatment plan, the court made numerous findings of fact regarding her ability to parent her children. For example, the court pointed to testimony from various witnesses which indicated J.A. had failed to maintain regular visitation, did not properly medicate her children, missed medical appointments, dressed her children inappropriately, did not wake up in the morning to care for her children, and failed to pick them up after school. Moreover, the court noted the Department’s six-year involvement with J.A. and her children, concluding she had “been given every service available by the department” but was still unable to properly parent her children. Having reviewed the record, we conclude the court’s findings of fact are supported by substantial evidence, and are not clearly erroneous. We hold the court did not err in effectively concluding the conduct or condition which rendered J.A. unfit to parent her children was unlikely to change within a reasonable time, and on that basis ordering the termination of her parental rights.

¶30 Based on the foregoing, we affirm the order the District Court, and hold the court did not err in terminating J.A.’s parental rights on the grounds that her treatment plan had been unsuccessful and the conduct rendering her unfit was unlikely to change within a reasonable time.

JUSTICES GRAY, LEAPHART, NELSON and TRIEWEILER concur.

      . The Department additionally petitioned to terminate L.W.’s parental rights. On June 3,1997, the District Court denied the Department’s petition to terminate L.W.’s parental rights, instead ordering that he be “granted the care, custody and control of the children, subject to department supervision.” The record indicates that L.W. has since relinquished his parental rights to all three children, and the District Court thus entered an order on January 6,1998, terminating L.W.’s parental rights.