author: MR. JUSTICE HARRISON

text:
    R. JOHN RUEGSEGGER and Delma Ruegsegger, Plaintiffs and Respondents, v. JEROME D. WELBORN and Sandra Welborn, Defendants and Appellants.
    No. 88-541.
    Submitted on Briefs March 31, 1989.
    Decided May 9, 1989.
    Rehearing Denied June 1, 1989.
    773 P.2d 305.

      Leonard J. Haxby, Butte, for defendants and appellants.
    Chester Lloyd Jones, Jones & Hoffman, Virginia City, for plaintiffs and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal comes from a judgment entered in the Fifth Judicial District, Beaverhead County, Montana. The parties signed an agreement at the conclusion of an earlier foreclosure action whereby the foreclosed purchasers were allowed to lease the property for an additional two and one-half months. The lessees remained on the property beyond the agreed lease period and the lessors commenced this action. We affirm.

In 1979, Jerome and Sandra Welborn (Welborns) contracted to purchase approximately 800 acres of agricultural property from R. John and Delma Ruegsegger (Ruegseggers). In 1985 the yearly payments became delinquent. The parties amended the contract to alter the time of the payments in order to accommodate the Welborns’ financial difficulties. However, when further payments remained unpaid, Ruegseggers filed a foreclosure action in 1986.

Judgment was entered against the Welborns on January 9, 1987. The judgment foreclosed all of the Welborns’ interest in the property and quieted title to the property in the Ruegseggers. Incorporated by reference in the judgment was an “Agreement and Release” signed by the parties. The agreement stated in part that the Welborns would lease the property until March 15, 1987, “to bring about an orderly transfer of possession of such real property . . .” The agreement reserved to the Ruegseggers and their agents the right to enter the property to plant crops and maintain irrigation facilities and fences. The agreement further provided:

“[N]o further notice to quit shall be necessary at the end of the lease term and in case the Welborns shall hold over beyond the end of the lease term provided for herein, rent shall be deemed due from Welborns at the rate of $75.00 per day.
“In the event either party is required to retain the services of an attorney to enforce any of the conditions contained herein, then the prevailing party shall be entitled to the recovery of reasonable attorney’s fees, costs and reasonable expenses incurred in connection therewith.”

During the period of the lease agreement, the parties attempted to reach agreement for lease of the property for an additional year. Just prior to March 15, 1987, Mr. Welborn informed Ruegseggers that unless a lease agreement was reached, he would file bankruptcy in order to keep the property. No lease agreement was reached, and on March 16, 1987, Welborns filed a Chapter 12 Bankruptcy petition.

The bankruptcy action automatically stayed any other proceeding against the Welborns. Ruegseggers filed a motion for summary judgment and sought relief from the stay in the bankruptcy court. On July 7, 1987, the United States Bankruptcy Court granted Ruegseggers’ motion for summary judgment and concluded Welborns’ interest in the property had been terminated by the state court decree and the terms of the agreement and release. 75 B.R. 243.

Ruegseggers filed this action on August 19, 1987. Welborns counterclaimed for restitution. Welborns argued Ruegseggers would be unjustly enriched unless they paid for the costs Welborns incurred in planting, irrigating, fertilizing and harvesting crops on the property during the holdover period. After a bench trial on August 11, 1988, the District Court entered findings of fact, conclusions of law and judgment. Ruegseggers were awarded $9,150 in holdover rent; return of a grain sweep, motor and generator removed from the property by the Welborns, or $300 in lieu thereof; and attorney’s fees and costs in the amount of $8,599.10, much of which was incurred in the bankruptcy action. This appeal followed.

Welborns raise these issues for our review:

1. Did the holdover rent clause of $75 per day constitute illegal liquidated damages and penalty?

2. Were Welborns entitled to planting and harvesting costs under a theory of unjust enrichment?

3. Did the District Court err in awarding attorney’s fees incurred during the bankruptcy proceedings?

Issue No. 1

Did the holdover rent clause of $75 per day constitute illegal liquidated damages and penalty?

As mentioned above, the parties entered into a written agreement which in part provided for the lease of the property by the Welborns until March 15, 1987, and for rent at the rate of $75 per day “in case the Welborns shall hold over beyond the end of the lease term.” Welborns now argue that $75 per day for the farmstead alone is unreasonable, and thus amounted to a penalty and illegal liquidated damages under § 28-2-721, MCA. They contend that since they were not entitled to harvest and profit from crops planted on the land, they were only obligated for the holdover rent on the house and outbuildings, which they estimated to be worth about $8 or $9 per day. We disagree with this conclusion. As stated in the District Court’s Memorandum:

“The $75 per day agreement, even if it were contrary to the statute of liquidation damages, (which it wasn’t) was considered by everyone as a reasonable rental. WELBORNS made this concession twice — at the time of the agreement and later by . . . [their attorney’s] letter . . . WELBORNS now argue that the figure is reasonable only when applied to a hold over of 365 days. This is not persuasive. Surely, the parties never contemplated a 365-day ‘hold over’ ”.

The agreement clearly contemplates more than mere use of the “farmstead” during the lease period. Although excluded from the lease agreement was a “second dwelling” which had been used by the Welborns’ employees, the agreement clearly stated:

“It is further understood and agreed that the Welborns’ possession of such premises during this lease term is for the purpose of residence, storage and sale of the personal property, crops and livestock, the feeding and pasturing of livestock owned by the Welborns and not that of another and is under no circumstances to be considered a lease for general agricultural purposes.”

The lease agreement anticipated more than mere residential usage. Additionally, Welborns’ argument that the rent was excessive has no basis in fact. Mr. Welborn testified that Ruegseggers offered to lease him the property for $37,500 per year, and that Welborn tentatively counteroffered to lease for $35,000. Both parties agreed that the holdover rent of $75 per day amounts to approximately $28,000 per year, substantially less than the worth of the property on a yearly basis.

Welborns have not shown the holdover rent provision to be excessive, unreasonable or illegal. The judgment for holdover rent is affirmed.

Issue No. 2

Were Welborns entitled to planting and harvesting costs under a theory of unjust enrichment?

Welborns claim they were entitled to restitution for their costs, incurred during the holdover period, for the planting and harvesting of crops which they lost when the Ruegseggers re-entered the property. This is an equitable claim under the theory of unjust enrichment and quasi-contract. We have held that equitable issues are a matter of discretion resting with the District Court and will be sustained unless an abuse of discretion is shown. Tope v. Taylor (Mont. 1988), [235 Mont. 124,] 768 P.2d 845, 848, 45 St.Rep. 2242, 2246; Madison Fork Ranch v. L & B Lodge Pole Timber Products (1980), 189 Mont. 292, 302, 615 P.2d 900, 906.

Welborns were holdover tenants during the period for which they seek restitution. They had no right to remain on the property. Any ownership rights Welborns may have had in the property were extinguished in the foreclosure and quiet title action. As stated by the United States Bankruptcy Judge in his order of July 7, 1987:

“I conclude that by the date of the Chapter 12 bankruptcy petition the Debtors held no valid property right or interest in the land and property sold under Contract For Deed of December 14, 1979, and such interest had fully terminated by the agreement of the parties.”

Welborns argue, however, that they acted under a mistake of law when they filed their bankruptcy petition, and thus should be entitied to restitution. We disagree. Section 53 of Restatement of the Law of Restitution states in part:

“(2) A person who, because of mistake of law, reasonably but erroneously believing that he, or a third person, on whose account he acts is the owner:
“(a) causes improvements to be made upon the land of another, is entitled to restitution for the value of the labor and materials used therein to the extent that the land is increased in value if the mistake is reasonable, as a condition to recovery by the owner of the land in equitable proceedings or in an action of trespass or other action for the mesne profits . . .” (Emphasis added.)

Additionally, § 42 of Restatement of the Law of Restitution states in part:

“(1) Except to the extent that the rule is changed by statute, a person who, in the mistaken belief that he or a third person on whose account he acts is the owner, has caused improvements to be made upon the land of another, is not thereby entitled to restitution from the owner for the value of such improvements; but if his mistake was reasonable, the owner is entitled to obtain judgment in an equitable proceeding or in an action of trespass or other action for the mesne profits only on condition that he makes restitution . . .” (Emphasis added.)

In Montana, a defendant in a quiet title action is entitled to recover the value of improvements if he was “holding under color of title adversely to the claim of the plaintiff, in good faith . . .” Section 70-28-Í10, MCA. Welborns, however, were not holding under “color of title,” but were merely holdover tenants. Additionally, it is apparent from Mr. Welborn’s testimony that the holdover and the bankruptcy petition were not “in good faith.”

The District Court concluded that the Welborns’ act in holding over was wrongful and that their claims were “a flagrant violation of the [lease] agreement ...” The District Court carefully considered the issues of this case and concluded that the Welborns did not “come into this Court with clean hands.” As the court stated in its Memorandum:

“This Court ordinarily would, and has, stretched the law to the limit in an effort to provide equitable relief to a distressed rancher/ farmer caught up in the depressed agricultural economy of the times. To do so, however, there must be some peg to hang the equitable hat. None exists in this case. If it ever existed, it was extinguished on December 30, 1986, by the ‘AGREEMENT & RELEASE’ incorporated into a judgment of this Court.
“The equities now lie with the RUEGSEGGERS and primarily because of the desperate but wrongful acts of the WELBORNS.”

The District Court followed the maxim “He who seeks equity must do equity” and properly denied the claim for restitution. Welborns have failed to show any abuse of discretion.

Issue No. 3

Did the District Court err in awarding attorney’s fees incurred during the bankruptcy proceedings?

Welborns argue that attorney’s fees incurred during the bankruptcy proceedings should not have been awarded by the District Court because they were not awarded by the bankruptcy judge and thus the issue is “res judicata.” We conclude this argument completely misses the mark.

The District Court awarded attorney’s fees to Ruegseggers, some of which were incurred during the adversary action in the bankruptcy court, because the “Agreement and Release” specifically provided that either party could recover attorney’s fees incurred in connection with enforcing the agreement. Ruegseggers were dragged into bankruptcy court and were stayed from enforcing the agreement in state court. After the Ruegseggers were successful in having the automatic stay lifted, they removed the Welborns from the property through a writ of execution and proceeded to enforce the agreement in state court. The bankruptcy court was not asked to enforce the agreement. Nor did the bankruptcy court make any ruling on attorney’s fees; none were requested by the Ruegseggers. The issue was not res judicata and Ruegseggers were not precluded from recovering attorney’s fees as provided for by the agreement.

The judgment of the District Court is affirmed.

MR. JUSTICES GULBRANDSON, SHEEHY, WEBER and Mc-DONOUGH concur.


source: Caselaw Access Project

license: Public Domain

text:
    PORTLAND GENERAL ELECTRIC COMPANY, Plaintiff and Appellant, v. MONTANA DEPARTMENT OF REVENUE, et al., Defendants and Respondents.
    No. 88-160.
    Submitted Feb. 28, 1989.
    Decided May 10, 1989.
    773 P.2d 1189.

      Donald R. Murray, Murphy, Robinson, Heckathorn & Phillips, Kalispell, Thomas H. Nelson argued, Stoel Rives, Boley, Jones & Grey, Portland, Or., for plaintiff and appellant.
    Larry G. Schuster argued, Dept, of Revenue, Helena, for defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant, Portland General Electric (hereinafter PGE), appeals an order entered by the Honorable Henry Loble, First Judicial District Court, Lewis and Clark County, Montana, denying injunctive and declaratory relief. We affirm.

This case concerns the imposition of beneficial use taxes, pursuant to § 15-24-1203, MCA (1983), for appellant’s use of the Hot Springs to Idaho Border portion of the BPA 500 kilovolts (KV) transmission line system within the State of Montana.

“[Tjhere is imposed and shall be collected a tax upon the possession or other beneficial use enjoyed by any private individual, association, or corporation of any property, real or personal, which for any reason is exempt from taxation . . . The tax shall be imposed upon the possession or other beneficial use of an electric transmission line and associated facilities, except that lines and facilities of a design capacity of less than 500 kilovolts shall not be subject to the tax.”

Section 15-24-1203, MCA.

Much of the factual background surrounding this case has previously been discussed in our decision, Pacific Power & Light Co. v. Department of Revenue, (1989) [237 Mont. 77,] 773 P.2d 1176, [46 St.Rep. 636]. Therefore, we will limit the extensive background discussion and instead focus on the additional facts relevant to this case.

PGE is an investor-owned utility which provides retail electric utility service to customers located in the State of Oregon. PGE owns an undivided 20% interest in Colstrip Units III and IV, which began operation in October of 1983 and 1985, respectively. The other four Colstrip owners are Pacific Power & Light Company, Washington Water Power Company, Puget Sound Power & Light Company, and Montana Power Company. Collectively, these companies are referred to as the “Colstrip Owners.”

With the development of Colstrip Units III and IV, additional transmission capacity was needed from the Colstrip facilities to the west. To accommodate the increased generation, Colstrip Owners initially converted one 230 KV line extending from the generating facilities to a substation near Broadview, Montana, to 500 KV and constructed a second 500 KV line. From the Broadview substation, the Colstrip Owners’ 500 KV lines extend westward to a point near Townsend, Montana. At Townsend, the Colstrip Owners’ 500 KV lines interconnect with the Bonneville Power Administration’s (BPA) 500 KV lines. The portion extending from Townsend to the BPA’s Garrison substation is referred to as the Montana Intertie, and is extensively discussed in our previous opinion, Pacific Power & Light Co. In 1986, anticipating the completion of Colstrip Unit IV, the BPA, at the request of the Colstrip Owners, completed the Garrison-West lines connecting the Garrison substation to the Taft, Montana, substation and points to the west. Prior to the completion of the Garrison-Taft 500 KV transmission lines, the Hot SpringsDworshak lines were the only existing 500 KV lines providing access to the west.

From the BPA substation at Garrison, Montana, the transmission of Colstrip power is governed by separate contracts, commonly referred to as the Garrison-West Agreement. These contracts continue for a period of 22 years, with a right to renew at comparable terms. Under each Owners’ separate contract with the BPA, power would be introduced at the Garrison substation and transmitted across the entire BPA “main grid” which included both 230 and 500 KV lines. Notably, appellant entered into no other agreement for the transmission of its Colstrip power to points west.

Under the terms of PGE’s agreement with the BPA, PGE requested BPA provide adequate transmission facilities west of Garrison, Montana, to transmit power on a firm basis over the Federal Transmission System to PGE’s system load at the Pearl substation in Oregon. PGE made available and BPA was required to accept scheduled power not to exceed the reserved transmission demand set forth on Exhibit D of the Garrison-West Agreement. Exhibit D provided that from the date of commercial operation of Colstrip Unit III until the date when the 500 KV transmission lines connecting Garrison to the Federal 500 KV transmission system first became available for scheduling power (the Garrison-Taft lines), the transmission demand for PGE was zero. However, a footnote to Exhibit D provided for the five Colstrip owners to allocate BPA’s available 330 megawatts transmission capacity.

At this point, a brief explanation describing the 330 megawatt limitation is in order. From the Garrison substation to points west, the BPA lacked transmission line capacity to accommodate full transmission of Colstrip power to the Owners’ individual system loads. This lack of transmission capacity is due to a gap in the 500 KV lines between the Garrison substation and the Hot Springs substation, referred to in this litigation as the “bottleneck.” Between the two substations, the BPA had only 230 KV lines, which proved insufficient to accommodate the total scheduled Colstrip power. Recognizing its inability to fulfill obligations under the Garrison-West Agreements, the BPA imposed a 330 megawatt limitation upon the amount of power which could be scheduled west of the Garrison substation, until the Garrison-Taft 500 KV lines were completed.

On December 20, 1983, a Montana Power Company representative contacted BPA officials indicating Colstrip Owners had reached an agreement on the allocation of BPA’s 330 megawatts. Respectively, PGE was allocated 65 megawatts transmission demand. The reserved amount is reflected in a revised Exhibit D to the PGE’s Garrison-West Agreement. In turn, the BPA responded on February 4, 1984, stating:

“This is to confirm that each of your companies [Colstrip Owners] has sent BPA a letter agreeing with the allocation, contained in The Montana Power Company’s letter dated December 20, 1983, of the 330 MW of transmission capacity available to the Colstrip owners on BPA’s Garrison-Hot Springs transmission line during the period starting with commercial operation of Colstrip Unit No. 3 and ending at 2400 hours on the date when the Garrison-Taft 500 KV transmission line is available for scheduling power, pursuant to existing contracts for wheeling Colstrip power.

Transmission Company Bonneville Contract No. Demand
Portland DE-MS79-81BP00167 65 MW

Once scheduling of Colstrip power over the Hot Springs to border line began, PGE was required to pay BPA a monthly charge calculated pursuant to the terms of the Garrison-West Agreement. The transfer of energy was “deemed” to have occurred whether or not there was actual physical transmission.' Therefore, the monthly charge was due BPA regardless of PGE’s actual transmission flow across the lines.

Beginning in the tax year 1985, the Department of Revenue (DOR) imposed taxes upon appellant for its “beneficial use” of the BPA 500 KV transmission lines from Hot Springs to the Idaho border. The assessment was based upon a report submitted by PGE, pursuant to Rule 42.22.107, ARM, stating that it “had no possession or use of a government-owned transmission line in 1984; it had only a contract right to certain services provided by the Bonneville Power Administration (“Bonneville”) on the 500-kilovolt transmission line” between Townsend-to-Garrison and Hot Springs-to-Idaho border. The other Colstrip Owners did not submit similar reports to the DOR. The DOR prepared a beneficial use assessment for PGE using the unitary approach. Initially, the DOR assessed PGE’s use of the Hot Springs to border lines based upon the capitalized payments made by PGE to the BPA in 1984. However, shortly before trial, depositions revealed such payments represented charges for the use of both 230 and 500 KV lines. Thereafter, the DOR prepared a revised assessment excluding the effect of tax-exempt 230 KV lines.

Appellant presents eight issues on appeal, each of which would invalidate the imposition of the challenged taxes. Three of the issues arise under the United States Constitution, three under the Montana Constitution and two are statutory challenges. However, our decision in Pacific Power & Light, Co. forecloses appellant’s arguments of the first seven issues. Therefore, our opinion will deal exclusively with appellant’s eighth issue contending that a portion of the beneficial use tax assessment was attributable to exempt property.

This case comes to us against a backdrop of extensive technological changes in the electrical transmission industry. Goldberg v. Sweet (1989),_U.S__, 109 S.Ct. 582, 102 L.Ed.2d. 607. As noted in the factual discussion, BPA’s entire integrated network is used to schedule power. The power transmitted across electrical lines can not be accurately identified, and indeed, the path taken is often indirect and bears no relation to contract requisites. Instead, we have only the input point and the eventual withdrawal of energy at a specified location. Between the two, various factors indicate a likely, though not actual, transmission path.

Initially, we discuss our determination that PGE possessed a “beneficial use” within the meaning of the statute. Contrary to appellant’s argument, no physical possession, exclusive use or control of the facilities is necessary. Rather, “beneficial use” has long been defined as a right recognized by law and enforceable by the courts.

“The expression ‘beneficial use’ or ‘beneficial ownership or interest’ in property is quite frequent in the law, and means, in this connection, such a right to its enjoyment as exists where the legal title is in one person and the right to such beneficial use or interest is another, and where such right is recognized by law, and can be enforced by the courts, at the suit of such owner or of some one in his behalf.” Montana Catholic Missions v. Missoula County (1906), 200 U.S. 118, 127-128, 26 S.Ct. 197, 200, 50 L.Ed. 398, 402; See also Harrison v. City of Missoula (1965), 146 Mont. 420, 407 P.2d 703; Pacific Power & Light, Co. To advance its commercial activities, and thereby increase profits, PGE contracted for firm transmission capacity over the BPA lines. This is an enforceable contract interest in firm megawatts of power. While PGE may not possess the lines, nonetheless, the power flowing through the lines remain under PGE’s ownership. Finally, PGE pays for the use of the lines regardless of the actual transmission flow. We find the reservation of firm transmission demand grants PGE an exclusive right taxable under § 15-24-1203, MCA.

The physical wheeling of energy is not specific as to which line it passes through, but rather the energy can travel through various lines as long as the delivery point is where the contract specifies. However, the facts reflect the essential nature of the Hot SpringsDworshak lines. PGE contracts to transmit bulk transfers of power, necessitating the use of the higher voltage, lower impedance, 500 KV lines. Without the Hot Springs lines, the transfer capability of Col-strip power to the west would be substantially affected. Indeed, BPA officials indicated that it could not fulfill contract obligations absent the Hot Springs lines. Clearly, the Hot Springs lines are a vital portion of the BPA’s main grid.

Appellant contends the DOR’s assessment erroneously assumed that only 500 KV facilities would be used in providing services, ignoring the fact that a substantial portion of the transmission facilities consist of tax exempt 230 KV lines. PGE argues that in reality, the power is scheduled over the entire BPA transmission system and generally no line or path is associated with a particular power schedule.

The 500 KV lines from Hot Springs to the Idaho border are in the direct transmission path of PGE’s bulk energy transfers to its Pearl substation. It is significant to note that no 230 KV lines exist parallel to the 500 KV lines. This fact strengthens the assumption that the 500 KV lines are essential to PGE’s energy transfers in this case, and are properly taxed.

It is not disputed that the DOR did not rely on actual transmission flows. Rather, the assessment was based exclusively upon PGE’s Garrison-West Agreement with the BP A providing for firm transmission rights. To eliminate any influence of 230 KV lines in the assessment, the DOR requested BPA to provide detailed information regarding the actual cost of the installed Hot Springs lines located within the State of Montana, and information regarding the total capacity of the lines and date of installation. From the total cost, the DOR applied a straight line depreciation to the amount, awarding 13 years depreciation based upon a 35 year life. To the depreciated cost, the DOR multiplied a fraction isolating PGE’s interest in the lines, (denominator represents the lines’ capacity; and the numerator consists of PGE’s firm transmission demand). This value was then integrated into PGE’s centralized assessment, and thereby subject to a 40% weighting figure which the DOR ascribes to the cost indicator. Puget Sound Power and Light Co. v. Department of Revenue (Mont. 1988), [232 Mont. 314,] 761 P.2d 336, 45 St.Rep. 1078.

A tax for the beneficial use of property, as distinguished from a tax on property itself, is commonplace. Likewise, the United States Supreme Court decisions support a tax measured by the value of the tax-exempt property:

“In measuring such a use tax it seems neither irregular nor extravagant to resort to the value of the property used; indeed no more so than measuring a sales tax by the value of the property sold ... In our Judgment it was not an impermissible subterfuge but a permissible exercise of its taxing power for [the State] to compute its tax by the value of the property used.”

United States v. City of Detroit (1958), 355 U.S. 466, 470, 78 S.Ct. 474, 476, 2 L.Ed.2d 424, 427; United States v. Boyd (1964), 378 U.S. 39, 84 S.Ct. 1518, 12 L.Ed.2d 713.

Reviewing the facts, we conclude that the tax was imposed on the privilege of using the property. The assessment reflects PGE’s contractual reserve arrangement with the BP A, thereby ignoring actual flows and the lines’ West to east transmission capacity.

Affirmed.

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


author: MR. JUSTICE WEBER MR. JUSTICE HUNT,

text:
    PAUL B. EASTMAN, Claimant and Appellant, v. ATLANTIC RICHFIELD COMPANY, Employer, Defendant and Respondent.
    No. 88-452.
    Submitted on Briefs March 9, 1989.
    Decided May 10, 1989.
    Rehearing Denied Aug. 31, 1989.
    777 P.2d 862.

      Paul B. Eastman, Kalispell, pro se.
    Andrew J. Utick, Utick & Grosfield, Helena, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The claimant, Paul Eastman, appeals from a final decision of the Workers’ Compensation Court denying him benefits under the Workers’ Compensation Act and affirming a compensation award of $10,000 under the Occupational Disease Act. We affirm.

Mr. Eastman appears pro se and requests this Court to review the decision of the Workers’ Compensation Court in two respects. First, we are asked to determine the constitutionality of the Occupational Disease Act, and then to review the sufficiency of the evidence to support the lower court’s determination. We phrase the issues as follows:

1. Does the treatment of employees suffering work-related diseases under the Occupational Disease Act violate equal protection or deny a claimant’s right to full legal redress?

2. Did the Workers’ Compensation Court err in determining that Mr. Eastman is entitled to benefits under the Occupational Disease Act rather than the Workers’ Compensation Act?

3. Is claimant entitled to reasonable costs and attorney fees and a 20% penalty?

Paul Eastman began working for Atlantic Richfield Company (ARCO) at its Columbia Falls Aluminum plant in June 1977. He was employed as a welder, and continued in that position until he was laid off on April 26, 1985, following the closure of the Columbia Falls plant. Two weeks prior to the lay off, Mr. Eastman was exposed to an unusually large and concentrated dose of fumes while welding at the plant. He was working with a heavy metal pot in which aluminum ore is refined, when the welding debris dripped onto plastic and tar below the area and ignited those materials. The smoke and fumes from the burning materials were much more intense and concentrated than normal.

Following the incident, Mr. Eastman left work and drove himself to the emergency room at Kalispell Regional Hospital for treatment. He was hospitalized for three days, during which time he was given large doses of steroids. Following hospitalization, Mr. Eastman returned to work until he was laid off two weeks later.

Mr. Eastman had a history of asthma prior to the incident of April 8, 1985. He first began to experience shortness of breath in 1973 during periods of heavy exercise. He continued to experience shortness of breath during exertion while employed with ARCO between 1978 and 1980, during which time he also experienced recurring bouts of bronchitis. By 1983, Mr. Eastman’s condition had developed into full-blown, severe asthma, which was medically diagnosed as Chronic Obstructive Pulmonary Disease. He was first treated with antibiotics and steroid medication in April, 1983, under the care of Dr. Rosetto. The steroid treatments have continued on and off since that time. Dr. Rosetto described Mr. Eastman as “steroid dependent,” meaning that the claimant is unable to go off the medication without his asthma flaring to the point where he either couldn’t do anything or would end up in the hospital. Dr. Rosetto testified that the claimant’s steroid dependency had existed prior to the incident which occurred in April, 1985. The medication he must take to control his asthma has severe physical and emotional side effects, which the claimant testified affects his ability to find and perform work.

Since his layoff in April, 1985, Mr. Eastman has conducted an extensive job search through the Montana Department of Social and Rehabilitative Services. Despite applying for 20 to 30 jobs, Mr. Eastman has failed to find steady employment. He worked as a retail clerk in 1986, but had to quit after one day because the job required him to lift and carry 10 pound boxes which exacerbated his breathing problems and precipitated an asthma attack. A vocational counselor for the Career Exploration and Development Center testified that Mr. Eastman has the work habits, grooming, and aptitudes of competitive employment and has many transferable skills. With the exception of one day of employment, the claimant did not work at all between April 1985 and June 1987.

Mr. Eastman filed a claim for compensation with the Division of Workers’ Compensation on May 21, 1985. The Division designated the claim as one for benefits under the Occupational Disease Act, although the claimant later filed a petition alleging that he was entitled to benefits under the Workers’ Compensation Act because of his April 8, 1985 “injury.” The determination of “injury” was consolidated with the claimant’s appeal from the Division’s final decision regarding compensation under the Occupational Disease Act. In that order, the Division determined that Mr. Eastman suffered from a nondisabling occupational disease and was awarded the maximum statutory allowance of $10,000 pursuant to § 39-72-405(2) MCA.

The Workers’ Compensation Court affirmed the decision of the Division that the claimant’s occupational disease was nondisabling. The court also addressed the “injury” issue, noting that the claimant did not elect to pursue either form of compensation, but instead presented both theories of recovery for determination. The court held that the unexpected occurrence of abnormally dense fumes at work on April 8, 1985, caused an aggravation of the claimant’s preexisting asthma condition, and therefore qualified as an “injury.” However, the court then concluded that,

“. . . the medical evidence from claimant’s treating physician Dr. Rosetto clearly indicates that the claimant’s medication during his three days of hospitalization returned him to his pre-exacerbation state. The claimant was then released from the hospital to return to his full-time work which he continued until he was laid off some two weeks later. Although the claimant’s incident is technically an “injury,” his asthma condition returned to its pre-injury state with no loss of wages or impairment being established.

“Having satisfied the statutory criteria for an injury, the Court’s function has not ended. The overwhelming medical evidence is that claimant’s April 8, 1985 exposure was disabling only for a few days and upon receiving medication he was essentially restored to his pre-April 8, 1985 condition. That condition, as well as his health after the three-day hospital stay, was a product of an occupational disease exposure as found by the Division.”

Although the court determined that Mr. Eastman suffered an injury on April 8, 1985, it concluded that the injury was noncompensable under the Workers’ Compensation Act. The court also concluded that the claimant was not entitled to a 20% increase in award pursuant to § 39-71-2907, MCA, nor was he entitled to reasonable costs and attorney fees under § 39-71-612, MCA. It is from this judgment that Mr. Eastman appeals.

I

Does the Occupational Disease Act violate equal protection or deny a claimant’s right to full legal redress?

The employer argues that this Court should not address the claimant’s constitutional arguments because he failed to present them before the lower court. It is a general rule that new issues may not be raised for the first time on appeal. Bauer v. Kar Products, Inc. (Mont. 1988), [230 Mont. 422,] 749 P.2d 1385, 1388, 45 St.Rep. 322, 326. However, this Court “reserves to itself the power to examine constitutional issues that involve broad public concerns,” and even if raised for the first time on appeal, this Court can hear the issue if the alleged error affects the substantial right of a litigant. Cottrill v. Cottrill Sodding Service (Mont. 1987), [229 Mont. 40,] 744 P.2d 895, 896, 44 St.Rep. 1762, 1763. Claimant has not briefed his constitutional contentions in detail. Nonetheless, considering the nature of such contentions as well as his pro se status, we will consider his constitutional challenges.

EQUAL PROTECTION

Mr. Eastman first challenges the State’s classification of diseased workers under the Occupational Disease Act as arbitrary and discriminate and in violation of the Equal Protection Clauses of the U.S. and Montana Constitutions. In determining what level of scrutiny is to be applied to this legislation under an equal protection analysis, it is necessary to determine what rights are involved and whether the legislation infringes upon the rights of any suspect class. Cottrill, 744 P.2d at 897.

We have held that the right to receive Workers’ Compensation benefits is not a fundamental right. Cottrill, 744 P.2d at 897, citing Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 29 L.Ed.2d 600. This same rule applies to benefits under the Occupational Disease Act, which are also a form of disability benefits, so that no fundamental right is at stake here. The classification does not affect the rights of a suspect class, which would include race, nationality, alienage and wealth. Cottrill, 744 P.2d at 897. We conclude that the Act is not subject to strict scrutiny. As a result ARCO need not show a compelling state interest. We conclude that the Act should be analyzed under the rational basis test. That test requires a legitimate governmental objective which bears some identifiable rational relationship to the classification in question. Cottrill, 744 P.2d at 897.

Mr. Eastman argues that there is no rational basis upon which to distinguish an employee who suffers from an occupational disease from an employee who suffers an injury. We disagree. A historical inquiry into the subject reveals a legislative purpose for this differentiation.

Historically workers’ compensation was enacted to compensate victims of industrial accidents and injuries. It was not set up to respond to workers suffering occupational disease. That distinction was partially explained by the common law historical background which had allowed tort suits for injuries but generally had shown that the negligence of an employer was not a basis for a common law action. As stated in IB Larson, Workmen’s Compensation Law, Section 41.20 (1987):

“To the extent that compensation acts were thought of as substituting nonfault liability for the kind of injuries that were potential subjects of fault liability, there was thought to be no place for occupational diseases, which (in the sense of a disease due to the “normal” conditions of the industry as distinguished from the negligence of the employer) had consistently been held incapable of supporting a common-law action.”

As the incidence of devastating diseases of the work place increased, legislatures concluded that some system of compensation was needed. Gradually the law was expanded to provide benefits for the victims of occupational disease, notably silicosis and asbestosis. 32 Labor Law Journal (1981), 212, 213.

By 1978, every state had enacted statutes making occupational diseases compensable. IB Larson, Workmen’s Compensation Law, Section 41.00. Larson points out that this lag in coverage can be attributed to the heavy incidence of silicosis and asbestosis in certain industries, for which full coverage under workers’ compensation would have created a difficult burden. IB Larson, supra, Section 41.10.

Montana created a statutory remedy for work-related diseases in 1959 by the enactment of the Occupational Disease Act, § 92-1301 RCM (1947) et seq., now §§ 39-72-101 to 714, MCA. In the workers’ compensation field, this Court upheld the power of the legislature to enact workers’ compensation which replaced common law remedies. Shea v. North-Butte Mining Co. (1919), 55 Mont. 522, 534, 179 P.2d 499, 503. We conclude that the same rationale properly can be applied to the Occupational Disease Act. We conclude there is a rational basis for the enactment of the Occupational Disease Act by the legislature.

Claimant argues that the benefits payable under both workers’ compensation and the Occupational Disease Act should be the same. We recognize the fairness of an argument for equal compensation for similar disabilities. However, the equal protection clause does not require that all aspects of occupational disease and occupational injury be dealt with in the same manner. As stated by the United States Supreme Court in Williamson v. Lee Optical Co. (1955), 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563, :

“The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think, (case cited) Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind, (case cited) The legislature may select one phase of one field and apply a remedy there, neglecting the others, (case cited)”

348 U.S. at 489, 75 S.Ct. at 465.

We conclude that the claimant has failed to show that the legislature is required to award the same or comparable benefits under the Occupational Disease Act as compared to the Workers’ Compensation Act. We hold that there is a rational basis for the benefits awarded under the Occupational Disease Act and that the claimant has failed to establish a violation under the equal protection clauses of the Montana Constitution and of the Constitution of the United States.

While we find that claimant has failed to show a constitutional violation of the equal protection clauses, our review of the Occupational Disease Act has shown there are serious questions which should be addressed by the legislature. In this instance Mr. Eastman has proved permanent partial disability which would entitle him to extensive benefits if he came under the Workers’ Compensation Act. However, under the Occupational Disease Act, because he is not totally disabled, his award is limited to $10,000. We suggest that a review of the benefits under this Act is certainly due on the part of the legislature.

FULL LEGAL REDRESS

Mr. Eastman next argues that he was denied full legal redress under the Occupational Disease Act because of the requirement that a worker be disabled for more than five days to receive compensation. He argues that had he remained off the job for more than five days, he would have received full compensation under the Workers’ Compensation Act, but because he missed only two days of work, the statutory requirement arbitrarily denies him his right to full legal redress. We point out that the five day requirement appears under § 39-71-736, MCA (1985), of the Workers’ Compensation Act, and no similar requirement is contained in the Occupational Disease Act as Mr. Eastman asserts. While the lower court concluded that the claimant suffered an injury under the Workers’ Compensation Act, it further concluded that the injury was only temporary and did not continue to be disabling. Based on that evidence, the court held that claimant’s injury was noncompensable and affirmed the Division’s award under the Occupational Disease Act.

Even if claimant had proved an injury which resulted in a disability of more than five days, under the medical evidence of this case he would not be entitled to compensation under the Workers’ Compensation Act. The court found that the medical evidence established that his condition returned to its pre-exacerbation state following medical treatment which extended over just a few days. We therefore hold that claimant has failed to establish a denial of his right to full legal redress because he has not been denied any compensation under the Workers’ Compensation Act.

II

Did the Workers’ Compensation Court err in determining that Mr. Eastman was entitled to benefits under the Occupational Disease Act rather than the Workers’ Compensation Act?

The Workers’ Compensation Court found that the claimant’s asthma was a preexisting condition which was aggravated by his 8 years of employment as a welder with ARCO. This Court has held that a preexisting condition of Chronic Obstructive Pulmonary Disease, which includes asthma, is compensable under the Workers’ Compensation Act if a claimant can identify an unexpected tangible happening on a specific date which aggravated the condition. Whittington v. Ramsey Construction and Fabrication (Mont. 1987), [229 Mont. 115,] 744 P.2d 1251, 44 St.Rep. 1823. Ridenour v. Equity Supply Co. (1983), 204 Mont. 473, 665 P.2d 783. Where the claimant was unable to show that his asthma was significantly aggravated by an unexpected incident rather than a deteriorating condition over time, this Court has upheld the lower court’s conclusion that the claimant suffered from an occupational disease rather than an injury compensable under the Workers’ Compensation Act. Whittington, 744 P.2d at 1257.

In this case, the court determined that the unexpected occurrence of abnormally dense fumes at work on April 8, 1985 caused an aggravation of claimant’s preexisting asthma, and that the incident was unexpected and time definite enough to qualify as an “injury” under the Workers’ Compensation Act. § 39-71-119, MCA (1985). However, the court went on to conclude that the injury was noncompensable under the Workers’ Compensation Act based on the medical evidence which established that the injury did-not continue to be disabling. Following hospitalization and medication, the court found that Mr. Eastman was returned to his pre-exacerbation state and failed to prove any loss of wages or additional physical impairment. The court concluded that his pre-April 8, 1985 condition, as well as his health following the three day hospital stay, was a product of an occupational disease and affirmed the Division’s award under the Occupational Disease Act.

It is not the function of this court to reweigh the evidence. We will uphold the findings and conclusions of the Workers’ Compensation Court if they are supported by substantial credible evidence in the record. Snyder v. San Francisco Feed and Grain (Mont. 1987), [230 Mont. 16,] 748 P.2d 924, 929, 44 St.Rep. 2216, 2224.

The testimony which led the lower court to conclude that Mr. Eastman’s injury did not continue to be disabling and was therefore noncompensable under the Workers’ Compensation Act was given by several medical experts. The claimant’s own treating physician, Dr. Rosetto, testified that Mr. Eastman’s asthma condition would not change in the future, that his disease was not caused by any single event, and that any “incident” which occurred during the progression of his disease would not change the status of his condition as it was at the time of trial. Dr. Rosetto also testified that having worked at ARCO for 8 years as a welder, the worsening of claimant’s disease could have been expected, and that the incident of breathing toxic fumes did not cause any permanent significant additional impairment.

Another physician, Dr. Schimke, testified that the fluctuations in claimant’s condition over 8 years showed a worsening trend, and that his employment as a welder was the cause of the disease becoming disabling.

Dr. Power examined Mr. Eastman at the request of the claims division to determine whether claimant suffered an occupational disease. The examination consisted of a general physical, chest X-rays, and a pulmonary function test, which took place in November 1985, seven months after the April 8 incident. Dr. Power testified that any aggravation caused by the incident was only temporary and that claimant’s asthma had stabilized to its pre-April 8 condition.

The conclusion of the lower court that claimant’s condition had returned to his condition prior to the April 8, 1985 injury does not suggest that he had returned to good health. The evidence shows that he had disability from the disease prior to April 8, 1985 and that such disability continued and grew worse thereafter. Our examination of the record demonstrates there is substantial medical evidence which shows that claimant experienced no additional physical impairment as a result of the injury of April 8, 1985. The record also contains substantial evidence to support the conclusion that his condition was the result of an occupational disease. We hold that it was not error for the lower court to conclude that Mr. Eastman’s injury was not compensable under the Workers ‘ Compensation Act.

Ill

Is claimant entitled to reasonable costs and attorney fees and/or a 20% penalty?

The provisions for costs and attorney fees and a 20% penalty are found in the Workers’ Compensation Act, §§ 39-71-612 and 39-71-2907, MCA (1985). Since this Court affirms the determination by the lower court that Mr. Eastman is not entitled to benefits under the Workers’ Compensation Act, those provisions do not apply in this case.

Affirmed.

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

MR. JUSTICE HUNT,

dissenting:

I dissent. From the beginning, Eastman has been forced to surmount hurdles that would challenge even the greatest trial tactician. He appears before this Court pro se because his attorney, after collecting his fee, merged his law firm with the firm representing ARCO. Added to this burden, is the fact that Steven J. Shapiro, chief legal counsel for the Workers’ Compensation Division — the same division that actively opposed Eastman every step of the way — was appointed the first hearing examiner. The facts found by Shapiro and adopted by Robert J. Robinson, administrator for the division, are the facts Eastman has had to struggle with throughout this legal and medical morass. The wonder here is not that Eastman was denied his rights as an injured Montana worker. The wonder is that he got anything at all.

The majority holds that Eastman’s April 8, 1985, injury did not significantly aggravate his preexisting disease. Eastman’s medical history, however, tells a different story.

Prior to the April 8, 1985, injury, Eastman’s breathing difficulties forced him to seek treatment at Kalispell Regional Hospital on only two occasions. In July, 1983, he consulted with the hospital emergency room. In June, 1984, he was hospitalized. Within the four months following the accident, however, his visits to the hospital became much more frequent. He visited the hospital emergency room twice — once on May 20, 1985, and again on July 31, 1985. On August 20, 1985, he was hospitalized for four days with severe asthma.

In addition, Eastman’s need to consult with his treating physician had subsided in the months preceding the injury. In 1983, he called or visited Dr. Rosetto almost monthly. In 1984, however, he saw Dr. Rosetto twice — once in June and once in July. He called the doctor three times. His last flare up of asthma prior to April 8, 1985, occurred in December, 1984. After the April accident, however, his asthma repeatedly flared. He consulted Dr. Rosetto at least once a month thereafter.

In Ridenour v. Equity Supply Co. (1983), 204 Mont. 473, 665 P.2d 783, a claimant’s preexisting Chronic Obstructive Pulmonary Disease (COPD) was aggravated by a high concentration of grain dust. We awarded the claimant permanent total disability benefits under the Workers’ Compensation Act. Yet in this case, where the facts are almost identical, we award claimant a mere $10,000 under the Occupational Disease Act and send him on his way.

In Ridenour, the claimant was injured on December 18, 1978. He was unable to perform his usual job from that date, though he did attempt less strenuous work. A little over five months after the accident, his breathing difficulties became so severe that he was forced to cease employment.

Unlike the claimant in Ridenour, Eastman returned to his normal job for two weeks after the accident. He was able to do so, however, only because he was heavily medicated with steroids. He returned to work rather than remaining on sick leave because he knew ARCO was planning a large reduction in force and he wanted to work as much as possible before being laid off.

Had Eastman not been laid off as part of ARCO’s general reduction in force, his breathing problems would have soon forced him to quit, just as the claimant in Ridenour eventually ceased working. Slightly over two months after the accident, on June 11, 1985, Dr. Rosetto wrote a letter to Job Service in which he stated that Eastman’s condition had progressively worsened and he would be unable to work in the foreseeable future. On September 9,1985, Dr. Rosetto noted on the medical record that Eastman should not return to work because of recent extensive asthma attacks. Eastman himself testified that, due to his physical condition, he had not been able to return to work since the lay off even though ARCO had called him back two or three times.

The medical record amply demonstrates that the April 8, 1985, injury aggravated Eastman’s disease. Nevertheless, the majority refuses to acknowledge this objective evidence. Instead, the majority relies on the deposition testimony of three doctors — even though one of the doctors, Dr. Power, did not have access to Eastman’s medical record. Dr. Power’s testimony indicates that he was unaware of Eastman’s complete medical history.

Furthermore, the testimony of the remaining doctors does not unequivocally support the majority’s holding. Dr. Rosetto testified that the injury was unlikely to change Eastman’s medical status as of the time of the deposition. He acknowledged that since the accident, Eastman continued to have periods of severe exacerbations. He also stated that Eastman had been on steroids almost continuously since that time and was steroid dependent.

Dr. Schimke’s testimony is more telling. Dr. Schimke testified that the April 8, 1985, incident was not the single underlying cause of Eastman’s disease. However, he could not state with medical certainty that Eastman’s status returned to his preexacerbated condition following the accident. He stated:

“I view the April, 1985, incident as but one in a long series of similar incidents. And I believe I stated if the incident caused hospitalization — and I believe that one did — it could have had some long-term lasting effect. And it is medical speculation, I think, to tell you how much or how little.”

We have previously recognized that “ ‘cautious medical testimony’ should, whenever possible, be interpreted in favor of the claimant.” Wheeler v. Carlson Transport (1985), 217 Mont. 254, 262, 704 P.2d 49, 54. Indeed, in Ridenour, we granted disability benefits based on testimony very similar to that given by the doctors in this case — testimony that the claimant’s accident “may have resulted in more asthma and more bronchitis, which could flare up more readily in the ensuing months and years.” (Emphasis added.) Ridenour, 204 Mont. at 475-76, 665 P.2d at 785. The majority in this case, however, ignores the precedent set in Ridenour and unfairly denies Eastman disability under the Workers’ Compensation Act.

The majority also asserts that there is a rational basis for paying benefits to claimants under the Occupational Disease Act at a lower rate than those paid to claimants under the Workers’ Compensation Act. I wish somebody would tell me exactly what that rational basis is. I certainly cannot find it in this opinion.

I would reverse the Workers’ Compensation Court.

MR. JUSTICES HARRISON and SHEEHY join in the dissent.


author: MR. JUSTICE GULBRANDSON MR. JUSTICE McDONOUGH,

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. KEVIN LESLIE DELAP, Defendant and Respondent.
    No. 88-601.
    Submitted on Briefs March 23, 1989.
    Decided May 10, 1989.
    772 P.2d 1268.
    Bruce E. Becker, City Atty., Karl P. Seel, Bozeman, for plaintiff and appellant.
    James A. Johnstone, Bozeman, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The State of Montana appeals the order of the Eighteenth Judicial District Court, Gallatin County, dismissing two charges against Kevin Delap (Delap). Delap was convicted in city Court in Bozeman, Montana, of violating § 61-8-401, MCA, driving under the influence, and § 23-2-631, MCA, operating a snowmobile on a city street. Delap appealed his conviction to the District Court which dismissed both charges. In dismissing the § 61-8-401, MCA, charge, the District Court noted that the dismissal does not preclude the State from charging Delap under § 23-l-632(l)(b), MCA, the snowmobile DUI statute. We affirm the order of the District Court as to dismissal of the § 61-8-401, MCA, charge.

On December 13, 1987, Bozeman city police arrested Delap. At the time of his arrest, Delap was operating a snowmobile. His blood alcohol was determined by a breath test to be .174.

After Delap was convicted in City Court of both offenses charged, he appealed and was tried in District Court on October 14, 1988. Following trial, the court dismissed the charge under § 61-8-401, MCA, and found § 23-2-631, MCA, inapplicable because a controlled access highway was not involved.

The State presents two issues on appeal:

1. Is a snowmobile a vehicle as defined in § 61-1-103, MCA, and thus subject to the restrictions in § 61-8-401, MCA, prohibiting the operation of a vehicle upon the ways of the state while under the influence of alcohol?

2. Does the civil offense of driving a snowmobile while under the influence of alcohol in violation of § 23-2-623(l)(b). supersede and preclude charging a defendant under § 61-8-401, MCA?

Delap was charged with violating § 61-8-401, MCA. The pertinent part of this statute provides:

“Persons under the influence of alcohol or drugs. (1) It is unlawful and punishable as provided in 61-8-714 and 61-8-723 for any person who is under the influence of:
“(a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public[.]”

Section 61-8-401(l)(a), MCA. As used in this statute, the term vehicle is defined as follows:

“ ‘Vehicle’ means every device in, upon, or by which any person or property may be transported or drawn upon a public highway, except devices moved by animal power or used exclusively upon stationary rails or tracks. However, in chapters 3 and 4, the term means ‘motor vehicle’ as defined in this part; and in chapter 8, part 4, this term does not include a bicycle as defined in 61-1-123.”

Section 61-1-103, MCA. Our reading of the plain language of this statute indicates a snowmobile fits within this definition of a vehicle. A snowmobile is a device upon which a person or property may be transported upon a public highway under certain conditions. It is not driven by animal power and does not utilize stationary rails or tracks. It also does not fit within the definition of a bicycle, the only device excluded from Title 61, Chapter 8, part 4, as defined in § 61-1-123, MCA.

We note however, that snowmobiles are not defined in Title 61, Chapter 8, part 1, although other types of vehicles are specifically defined therein. Instead, snowmobiles are defined as follows:

“ ‘Snowmobile’ includes any self-propelled vehicle of an overall width of 48 inches or less, excluding accessories, designed primarily for travel on snow or ice, which may be steered by skis or runners and which is not otherwise registered or licensed under the laws of the state of Montana.”

Section 23-2-601(10), MCA. Further, Title 23, Chapter 2, part 6, provides statutory regulation for the operation of snowmobiles on public streets and highways. Section 23-2-631, MCA. Of particular note is § 23-2-632(l)(b), MCA, which makes the operation of a snowmobile upon a public street or highway unlawful while under the influence of intoxicating liquor or narcotics or habit-forming drugs.

The general rule of statutory construction commands that the more specific statute shall control over the general statute. Section 1-2-102, MCA. The legislature in enacting Title 93, Chapter 2, part 6, duplicated with specificity the motor vehicle code concerns for regulation of snowmobiles upon the public streets, roadways, and highways. Viewing the foregoing provisions in conjunction with sections which provide for registration, licensing, accidents, enforcement, penalties, and disposition of fines and forfeitures, we find the legislature provided a statutory scheme which supplants the motor vehicle code regarding snowmobiles.

The State, however, contends § 61-8-401, MCA, provides for criminal sanctions while Title 23, Chapter 2, part 6, provides for civil sanctions. As such, they are supplemental rather than conflicting and may be imposed for the same occurrence. See One Lot Emerald Cut Stones v. United States (1972), 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438. However, “the question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction.” (Citations omitted.) United States v. Ward (1980), 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742, 749. A court’s determination of the proper statutory construction depends upon a determination of two issues: (1) whether the legislature expressly or impliedly labeled the penalty as civil or criminal, and (2) if the legislature has identified the penalty as civil, whether the statutory scheme is “so punitive either in purpose or effect as to negate that intention.” Ward, 448 U.S. at 248-49, 100 S.Ct. at 2641-42. When making the second inquiry, “only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.” (Citations omitted.) Ward, 448 U.S. at 249, 100 S.Ct. at 2641.

After consideration of the first level test in light of the statutes relevant to this case, we find clear legislative intent to impose a civil penalty for operating a snowmobile upon the streets or highways of this state while under the influence of drugs or alcohol. Section 23-2-642, MCA, clearly states that the penalty levied for violation of §§ 23-2-601 through 23-2-644, MCA, is a civil penalty. Examination of the legislative history of Title 23, Chapter 2, part 6, shows this part originally provided that violation of any section of the act was considered a criminal misdemeanor, “punishable by fine or imprisonment or both” under the laws applying to persons owning or operating motor vehicles when the violation occurred on public highways. Section 53-1023, R.C.M. 1947 (1971). This penalty provision was amended by the 1974 legislature, to read as follows:

“53-1023. Penalties. (1) A person who violates any provision of this act or a rule and regulation adopted pursuant thereto shall pay a civil penalty of not less than fifteen dollars; $15) nor more than five hundred dollars ($500) for each separate violation.
“(2) A person who willfully violates any provision of this act or a rule or regulation adopted pursuant thereto shall pay a civil penalty of not less than fifty dollars ($50) nor more than one thousand dollars ($1,000) for each separate violation.”

The legislative history, however, fails to provide an explanation as to why the legislature changed the statute, thereby naming the penalty as civil rather than criminal.

The civil label, however, will not always be dispositive. Allen v. Illinois (1986), 478 U.S. 364, 369, 106 S.Ct. 2988, 2992, 92 L.Ed.2d 296, 304. We must also determine whether intent to provide a “civil, remedial mechanism” has instead resulted in sanctions so punitive as to constitute a criminal penalty. Ward, 448 U.S. at 249, 100 S.Ct. at 2641. The United States Supreme Court has held that where a section exhibits “an intent to prohibit and to punish violations of state law . . . the sum it exacts [is] a penalty.” United States v. Constantine (1935), 296 U.S. 287, 295, 56 S.Ct. 223, 227, 80 L.Ed. 233, 239.

A conviction under § 23-2-632(l)(b), MCA, will result in a “civil penalty” of not less than $15 nor more than $500 for each separate violation. Section 23-2-642(2), MCA. However, if a person willfully violates § 23-2-632(l)(b), MCA, they shall pay a civil penalty of not less than $50 nor more than $1,000 for each separate violation. Section 23-2-642(3), MCA.

This statutory penalty provision levies a fine upon the action of a snowmobile operator for violating certain provisions of state law. In Helwig v. United States (1903), 188 U.S. 605, 610-11, 23 S.Ct. 427, 429, 47 L.Ed. 614, 616, the United States Supreme Court found that where the law levies fines or forfeitures as punishment for a particular act, those fines or forfeitures constitute criminal penalties. Such penalties reflect the traditional aims of punishment, retribution, and deterrence. Constantine, 296 U.S. at 295, 56 S.Ct. at 227. Furthermore, we note that § 23-2-644, MCA, provides that while the penalties collected are to be applied to a special revenue account for snowmobile safety and education, any penalties collected in justice court are applied to the traditional funds to which criminal fines are applied.

Our review of the statutory scheme and its attendant penalties leads us to conclude the penalties provided in § 23-2-642(2) and (3), MCA, are punitive in nature and constitute criminal penalties.

Having found that the statutory scheme supplants rather than supplements the motor vehicle code, it is incumbent that we affirm the District Court’s decision that Delap could not be charged under § 61-8-401, MCA, for operating a snowmobile upon public streets and highways while under the influence of alcohol. To hold otherwise would contradict a basic rule of statutory construction, § 1-2-102, MCA, and would provide conflicting criminal penalties for the same act.

The State also contends in its brief that the District Court’s dismissal of the § 23-2-631, MCA, charge against Delap was erroneous. While we find merit in the State’s argument on this charge, we unfortunately find this issue is not properly before this Court. The State in filing its notice of appeal designated that it was appealing the dismissal of the § 61-8-401, MCA, charge from the November 17, 1988, order of the District Court. Rule 4(c), M.R.App.P., provides a notice of appeal “shall designate the judgment, order or part thereof appealed from.” The State designated a part of the order for appeal, and we will not now consider an appeal from any other part of the order. We set forth the foregoing analysis of the § 23-2-631, MCA, charge simply for guidance purposes.

The order of the District Court is affirmed.

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

MR. JUSTICE McDONOUGH,

dissenting:

A legislative body may impose both criminal and civil sanctions for the same occurrence. See One Lot Emerald Cut Stones v. United States (1972), 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438. That has been done here in explicit terms.

The majority uses the incorrect premise that the two statutes are inconsistent in order to reach its conclusion that the specific prevails over the general in arriving at the intention of the legislature under § 1-2-102, MCA. The two statutes are not inconsistent. One is criminal, one is civil, serving different purposes and requiring different burdens of proof. Each is part of a separate body of law; each has a different method of enforcing sanctions and establishes a different punishment. The majority expresses puzzlement with the 1974 amendments to the snowmobile statutes, noting that the legislative history fails to explain why the legislature changed the penalty from criminal to civil. However, before resorting to legislative history, it should be noted that the change made by the legislature in 1974 on its face resolved any conflict that may have existed with the Motor Vehicle Code.

The majority cites the U.S. Supreme Court decision in Helwig v. United States (1903), 188 U.S. 605, 23 S.Ct. 427, 47 L.Ed. 614, for the proposition that where a law levies a fine or forfeiture as punishment for a particular act, that fine constitutes a criminal penalty. This is a misreading of the Helwig case. Helwig dealt with an importer of wood pulp who had undervalued his shipment for the purposes of avoiding customs fees. Upon discovery of the undervaluation, the Federal Government required Helwig to pay the difference between the fee he was charged and the fee he should have been charged. Because Helwig’s shipment was undervalued by more than 10%, he was also assessed what the customs statutes termed an “additional fee” based on the percentage of the undervaluation. Helwig was brought before a U.S. Circuit Court for trial, as provided for in customs law. He objected to jurisdiction by claiming that the “additional fee” was in fact a penalty, and district courts by statute had exclusive jurisdiction in cases involving a penalty or forfeiture. The dispute was thus about jurisdiction under customs law. The Supreme Court found the additional fee to be a penalty, but the word “criminal” appears nowhere in the opinion.

In any event, the civil sanctions or penalties in this case are not so punitive as to constitute criminal penalties. The civil penalties in the snowmobile statutes are roughly equal to the criminal penalties in the Motor Vehicle Code insofar as monetary sanctions are concerned, but this does not make them criminal. There are numerous cases where civil monetary sanctions have actually exceeded criminal monetary sanctions; e.g., criminal fraud and punitive damages for fraud, antitrust penalties, and civil forfeiture of property deemed to be contraband. In this case, by saying the civil sanctions are punitive and criminal in nature, the majority is converting a designated civil statute into a criminal statute even though the regular criminal statute levies more severe penalties, such as incarceration. The majority then applies it as a specific criminal statute to overrule a more general criminal statute when there is no fundamental inconsistency between the two. I would reverse and remand for trial on the criminal charge.


author: MR. JUSTICE SHEEHY MR. JUSTICE HARRISON,

text:
    PATRICK GENTRY, Thomas Damon, and Robert Gleich, Petitioners and Appellants, v. CITY OF HELENA and the Police Commission of the City of Helena, Respondents and Respondents.
    No. 88-405.
    Submitted March 9, 1989.
    Decided May 11, 1989.
    773 P.2d 309.

      Charles A. Gravely argued, Helena, Gregory A. Jackson argued, Jackson & Rice, Helena, for petitioners and appellants.
    David Hull argued, City Atty., Helena, for respondents and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellants Patrick Gentry, Thomas Damon and Robert Gleich, police officers for the city of Helena, appeal from a decision of the District Court, First Judicial District, Lewis and Clark County, which upheld on judicial review the decision of the Helena Police Commission and the modification of its findings by the Helena City Manager which resulted in appellants’ termination.

Charges of misconduct against each of the three officers before the Police Commission of the city of Helena were reduced to writing and timely served upon the officers in accordance with § 7-32-4156, MCA. A subsequent trial was held before the Commission pursuant to § 7-32-4162, MCA. After trial, the majority of the Commission determined that Officer Gleich should be suspended from the Helena Police Department for 30 days without pay; that Sergeant Damon should be demoted to the rank of patrolman; and that Patrolman Gentry should be suspended without pay for a period of 90 days and that a letter of reprimand be permanently placed in his personnel file. One member of the Commission dissented, agreeing that Officer Gleich was the least culpable of the three officers involved and agreeing with his punishment as determined by the Commission, but disagreeing as to Officer Gentry and Sergeant Damon. It was the minority member’s opinion that the latter two officers should be terminated.

Under the statutes providing for procedures before the Police Commission, the decision of the Police Commission is subject to modification or veto by the mayor. Section 7-32-4160(2), MCA. The term “mayor” includes the city manager. Section 7-32-4153, MCA. When a charge against a member of the police force is found proven by the Police Commission and is not vetoed by the mayor, the mayor (or city manager) must make an order enforcing the decision of the Board or the decision as modified by the mayor (city manager). Section 7-32-4161, MCA. In this case, the city manager of Helena modified the Helena Police Commission decision by permanently terminating the employment of Officers Damon, Gleich and Gentry from the Helena Police Department, effective immediately.

Decisions of the Helena Police Commission, as modified by the mayor or city manager, are subject to review in the District Court. Section 7-32-4164, MCA. In this case, the officers petitioned for review before the District Court, First Judicial District, Lewis and Clark County. The District Court affirmed the decision, opinion and order of the Helena Police Commission and the modification thereof by the city manager of June 1, 1988. The decision of the District Court on review is now appealed by the officers to this Court. On consideration, we affirm.

We find the principal issue, raised directly by the attorney for Gleich, and indirectly by the attorney for the others, is whether substantial evidence supports the decision of the Police Commission as modified by the City Manager. To avoid an unnecessary recitation of facts, we will set out only those facts found by the Police Commission as requiring discipline. The Police Commission found that Officer Gentry was properly charged by two citizens’ complaints and for dishonesty; that Sergeant Damon was properly charged under a citizens’ complaint and for dishonesty; and, that Officer Gleich was properly charged with dishonesty. The Commission reported on dishonesty and the citizens’ complaints as follows:

“DISHONESTY
“It is undisputed that Gentry and Damon were at the Hofbrau from 12:00 p.m. on July 31 until at least 4:30 p.m. Capt. Morley testified that when Gentry and Damon left the Hofbrau, they were ‘under the influence.’ Given Capt. Morley’s years of admirable experience with the Helena Police Department, the Commission yields to his determination as to Gentry and Damon’s condition. Following the Hofbrau, the two officers went to the Red Meadow, where they stayed for several hours, and then O’Toole’s, Glen’s Western Bar, back to the Red Meadow, down to Jester’s, and back to the Red Meadow again.
“Mrs. Keating, whose testimony the Commission finds credible, testified that both Gentry and Damon were intoxicated during their conversation with her the evening of July 31. During his telephone conversations with the police dispatcher, Gentry stated that he was drunk and also later stated that Damon was drunk.
“Officer Zaharko, both in his statement and in his testimony before the Commission, indicated that Damon was ‘intoxicated’ to the point where he was passing out and waking up in the front seat of Gentry’s vehicle. The Commission finds it very difficult to believe that these officers, after being at the party and later to a number of bars for a total of eight or nine hours, were sober. But, in fact, that is exactly what the officers have asked the Commission to believe. All credible evidence is to the contrary and the Commission finds the officers’ testimony in this regard not worthy of belief.
“Not only did the officers misrepresent the condition of Gentry and Damon to their superiors during the investigation, they continued this misrepresentation under oath before the Commission. For the charges of dishonesty, therefore, the Commission finds the charges proven.
“CITIZEN’S COMPLAINTS
“Turning then to the citizen’s complaint lodged by Kathy Keating concerning the July 31, 1987, incident, the Commission finds that the credibility of the officers’ version is again highly suspect. Mrs. Keating was returning from a church music festival at the lake when she encountered Damon and Gentry. She testified that she was not personally acquainted with either officer, and had to identify them from a department photograph during the investigation. She further testified that the officers’ intoxicated condition caused her concern.
“Phil Keating, Kathy’s husband, testified that she relayed the same version of the events to him immediately after the incident. He further testified that he had no grudge against the Helena Police Department.
“The officers, on the other hand, have a great deal to lose in this proceedings. They could be subject to discipline up to and including termination. While the officers’ attempted ‘cover up’ of their activities that evening, from their point of view, may be understandable, it is certainly not excusable.
“The Commission therefore finds that the testimony of Mrs. Keating is credible, and believes that Officer Gentry represented that he and Sgt. Damon were ‘undercover’ during their conversation on the evening of July 31. The Commission further finds that such a statement, made by an intoxicated police officer, even though off-duty, certainly constitutes conduct such as to bring reproach upon the Helena Police Department.
“In regard to the second citizen’s complaint concerning Patrolman Gentry confronting Mrs. Keating on August 9, 1987, and telling her that ‘we’ could lose our jobs over her complaint — the Commission again finds that Mrs. Keating’s version is the more credible version. This conduct on the part of Officer Gentry was again conduct such as to bring reproach upon the Helena Police Department.”

The findings of the Commission concerning the charges against Officer Gleich are as follows:

“The Commission finds that Officer Gleich, although guilty of covering up his fellow officers’ misdeeds, is the least culpable of the-three officers involved. Officer Gleich was not involved in the citizen’s complaint, and at worst he merely went along with his fellow officers’ version of the night’s events.
“In doing so, however, Officer Gleich has not only misrepresented the facts to his superior officers, he has misrepresented them to the Commission while under oath. The Commission finds that such conduct cannot be condoned and therefore has determined that Officer Gleich be suspended from the Helena Police Department for 30 days without pay.”

The written report of the Helena Police Commission recited a number of other facts which supported its findings of fact foregoing. We do not set those out in this Opinion in full because it is unnecessary for our review and it would be painful to detail the day’s progress of these three officers following their attendance at a luncheon in honor of a retiring police officer.

The District Court noted that the standard of review of a decision of the Police Commission in the District Court is whether the findings of the Commission are supported by substantial evidence. Miskovich v. City of Helena (1976), 170 Mont. 138, 143, 551 P.2d 995-998; In the Matter of Raynes (1985), 215 Mont. 484, 493, 698 P.2d 856, 862. The findings of the Commission are final and conclusive if supported by substantial evidence. Bailey v. City of Helena (1910), 42 Mont. 216, 218, 112 P.2d 69, 70; Raynes, 698 P.2d at 862, 42 St.Rep. at 576. The District Court, sitting as an appellate court, is not authorized to determine penalties, sanctions or disciplinary measures that may be taken against a police officer. City of Helena v. District Court (1975), 166 Mont. 74, 77, 530 P.2d 464, 465-466. When the decision on review by a district court of proceedings before a Police Commission is conducted under § 7-32-4164, MCA, and the District Court decision is appealed to us, we adopt the standard of review set forth in the Montana Administrative Procedure Act, § 2-4-704(2)(e), MCA, to the effect that the administrative findings, inferences and conclusions and decisions will not be reversed or modified unless they are “clearly erroneous in view of the reliable, probative and substantial evidence of the whole record.”

We determine that substantial evidence on the whole record does support the findings and conclusions of the Helena Police Commission, and the decision as modified by the City Manager.

Aside from the substantial evidence issue, the officers raise other issues which they contend require a reversal. They are:

(1) The Police Commission’s findings of dishonesty cannot be supported as a matter of fact or law;

(2) The testimony that Mrs. Keating had taken a polygraph examination was improperly admitted;

(3) The Police Commission unduly prolonged the hearing by requiring the officers to begin their case in chief at 9:30 after the casehad already been in progress for IIV2 hours;

(4) The City Manager should not have testified before the Police Commission because of his veto authority over the actions of the Police Commission; and,

(5) That the citizens’ complaints should not have been considered because no citizen had signed any complaint against any officer.

The officers also complained, without listing the subjects as issues, that Officer Gentry had not been advised prior to the formal filing of charges of any administrative or disciplinary proceedings against him; that the officers should not have been suspended in excess of 10 days; that the “modification of findings” made by the City Manager was not an “order” required by the statute; and that the punishment, that is the termination of employment of the officers, was disproportionate to the misconduct charged.

DISHONESTY FINDINGS

This issue involves whether the Police Commission was correct in determining that all these officers lied during the investigation and under oath to the Police Commission when they denied that officers Damon and Gentry denied being drunk but admitted to drinking from 12:30 in the afternoon until late the same evening at several bars in Helena. Gleich testified that both officers were sober when he transported them in a city police car from the Red Meadow bar in Helena to the parking lot of the Hofbrau, another bar, where the officers had left their car.

Several witnesses who met or observed Damon and Gentry during the course of the afternoon and evening testified that they were intoxicated or that they exhibited strong evidence of drinking by their actions. An audiotaped telephone record of Gentry’s call for a ride in a police car are revealingly stark about his condition. The amount of liquor they admit drinking over the period of time militates against their sobriety. Very substantially, the record supports the Police Commission that these officers were in fact intoxicated, and that they were dishonest in denying it, especially under oath.

The appellants, especially Gleich, maintain that when they testified that Damon and Gentry were sober, and not impaired by their drinking, they were merely expressing a matter of their judgment or opinion, not fact, and thus cannot be guilty of dishonesty. The officers cannot escape the tenor of their testimony this easily. Their statements were intended to state facts, and for the Commission to accept their statements as facts. The evidence supports the Commission’s findings of dishonesty.

The Police Commission did find that Officer Gleich was “less culpable.” He undoubtedly was torn between loyalty to his brother officers and his duty to state the facts openly. He apparently chose the wrong course, and the Commission and the City Manager set the consequences.

EVIDENCE OF A POLYGRAPH EXAMINATION

Before the Police Commission, witness Kathy Keating answered the following questions:

“Q. Now, Kathy, subsequent to all this, were you asked to take a lie detector test?
“A. Yes.
“Q. And did you take a test?
“A. Yes I did.”

Under § 37-62-302, MCA, “results” of a polygraph examination may not be introduced into or admitted as evidence in a court of law. Here the “results” were not admitted into evidence, but the fact that Mrs. Keating took a polygraph examination was admitted. There was no objection, however, and the chairman of the Commission later admonished the other members that evidence of taking the polygraph examination was not to be considered by them in determining the credibility of Mrs. Keating. The District Court, in examining this issue, found no prejudice to the officers from the admission of this testimony so as to be reversible. We agree.

LENGTH OF HEARING

The hearing before the Commission began early in the morning, October 8, 1987, and, approximately IIV2 hours thereafter, at 9:15 p.m., the City finished presenting its case. The chairman of the Commission told counsel that he wanted to finish the case and that they were to proceed with their presentation. At 12:30 p.m., October 9, 1987, the chairman informed counsel for the appellants that the matter could be continued until Tuesday of the following week. However, the appellants decided to go forward and the hearing was completed after about 2014 hours. The session was inordinately long, and undoubtedly a wearying one for the Commission, and all the counsel for all parties. However, as the District Court noted, again one cannot put a finger upon any prejudice as to the officers as a result of the long hearing. There is no reversible error in the manner which the hearing was conducted.

TESTIMONY OF THE CITY MANAGER

The appellants argue that because the City Manager has veto and modification powers over the Commission’s decision, there is an inherent conflict of interest in allowing his testimony. The District Court examined the record and found no specific incidence of a biased or prejudicial statement in the record, and his review of the City Manager’s testimony did not reveal any such prejudicial statement. On appeal the petitioners have failed to demonstrate any prejudicial effect of this witness’s testimony and there is no rule otherwise which prevents the testimony of the City Manager before the Police Commission even though subsequently he will make a decision which may modify or reverse the findings of the Police Commission.

NO SIGNATURE ON COMPLAINT

The complaint lodged by Mrs. Keating was not signed by her. Appellants rely on § 7-32-4156, MCA, which states that any charge brought against a member of the police force must be in writing. There is however no statutory requirement that the complainant sign the charge and so no error occurred in the lack of her signature on the formal complaint filed.

SUSPENSION FOR MORE THAN TEN DAYS

Section 7-32-4163, MCA, provides that the mayor or the chief of police subject to the approval of the mayor has the power to suspend the policeman for a period not exceeding ten days in any one month with or without pay. The statute further provides, that any officer suspended with or without pay is entitled to appeal that suspension to the Police Commission. In this case the officers were suspended with pay from September 4 to November 30, 1987. They did not appeal the suspension to the Police Commission as allowed by § 7-32-4163, MCA. The record shows no prejudice to the officers by their suspension pending the disposition of the charges against them.

MODIFICATION OF FINDINGS

The objection of appellants here to the modification made by the City Manager is that it is not an “order” required by § 7-32-4161, MCA. The tenor of the instrument as modified by the City Manager is certainly an order because it was the subject of review before the Helena Police Commission and before this Court on appeal. We do not find the issue to be substantive.

LACK OF NOTICE

Under this issue, the appellant Gentry contends that he had not been advised prior to the formal filing of charges of any administrative or disciplinary proceedings against him. He had received two notices but neither one referred to an “incident” which occurred on August 9, 1987. However, our examination of the procedures leading up to the hearing.before the Police Commission shows that the charges against the officers were in writing and copies served upon them 15 days before the time fixed for hearing of such charge.. The provisions of § 7-32-4156, MCA, were complied with and on that basis the Police Commission was empowered to proceed in the matter.

PROPORTIONALITY OF DISCIPLINE

We find no merit in this issue which would require a reversal of the District Court’s review or of the findings and conclusions of the Helena Police Commission, as modified by the City Manager. The extent of the penalty to be levied against a police officer or officers for proven charges of misconduct, absent a constitutional violation, are generally matters for determination by the Police Commission and subject to the modification of the mayor or city manager. They are thus empowered by statute. If the city of Helena determines, as it did in this case, that officers who are dishonest under oath are not trustworthy enough to serve as police officers for the city of Helena, that kind of decision relating to the personnel of the city is beyond our reach and jurisdiction. City of Helena v. District Court, supra, 166 Mont. at 77. Section 7-32-4155, MCA, gives the Police Commission the power to decide all charges of misconduct brought against any police officer who has been guilty of misconduct in his office, or of conduct unbecoming a police officer, or whose conduct has been such as to bring reproach upon the police force. If the charges are proven, the Commission, and thereafter the mayor or city manager are empowered to discipline, suspend, remove or discharge any officer who has been found guilty of the charge filed against him. Section 7-32-4160, MCA. In this case, it appears that the Commission, and the City Manager, acted within the powers given to them by statute. We find no reversible error in their decisions. Affirmed.

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

MR. JUSTICE HARRISON,

dissenting.

I would concur with this Court’s opinion finding no reversible error in the termination of the two officers, Patrick Gentry and Thomas Damon, but would hold contrary to this Court’s opinion regarding Robert Gleich who I feel should be reinstated. His contact with the other two off-duty officers was when he brought the patrol car to the Red Meadow bar’s parking lot at approximately 9:30 p.m. on the evening in question and drove them home. In arriving at my decision it is important to note that the Police Commission recommended that Gleich be suspended from the Department for 30 days without pay. I would follow the recommendation of the Commission as to Officer Gleich and not that of the City Manager who set all the findings of the Police Commission aside and made his own decision.

While I agree that the City Manager has set a high standard of honesty for police officers, which standard will undoubtedly be well-drilled into the Department, I feel that Gleich was somewhat of an innocent bystander in this matter and I believe he was salvageable and should have been eventually kept on the force.


author: MR. JUSTICE McDONOUGH

text:
    RONALD L. BURGESS, Plaintiff and Appellant, v. STATE OF MONTANA, Defendant and Respondent.
    No. 89-21.
    Submitted on Briefs April 6, 1989.
    Decided May 11, 1989.
    772 P.2d 1272.
    Ronald L. Burgess, Bozeman, pro se.

      Fred W. Robinson, Dept, of Fish, Wildlife and Parks, Helena, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal concerns the forfeiture of a bond posted by appellant Burgess for the alleged violation of game laws. Burgess first litigated the forfeiture in the Justice Court and then the District Court of the Fourteenth Judicial District, County of Meagher. Burgess never appealed this decision. The further presentation of the issue was in a subsequent action before the District Court of the First Judicial District, Lewis & Clark County. The First Judicial District Court held that res judicata barred the claim made by Burgess. This is the decision on appeal. We affirm.

The citation against Burgess charged him with possessing more than the legal limit of elk. Burgess posted and forfeited a $700 bond by failing to appear as required by the citation. Close to a year later, Burgess moved the Justice Court to declare the forfeiture unconstitutional because forfeited bonds from citations for game violations partially fund the game warden’s retirement account. See § 19-8-504, MCA. The Justice Court denied the motion, and Burgess appealed to the District Court. The District Court affirmed the decision of the Justice Court. Burgess never appealed this decision.

The current action was brought by Burgess, acting pro se, to once again test the constitutionality of § 19-8-504, MCA. The State moved to dismiss based on res judicata. The District Court of the First Judicial District denied the motion. However, shortly thereafter the District Court granted the State’s motion for summary judgment based on res judicata.

Burgess presents one issue: Should the action brought to determine the constitutionality of § 19-8-504, MCA, be dismissed due to the doctrine of res judicata?

Burgess argues initially that the First Judicial District Court erred in granting the motion for summary judgment because its denial of the State’s motion to dismiss on the issue of res judicata bound the lower court as the law of the case. This argument fails because the order denying the motion to dismiss was interlocutory, and interlocutory orders can be changed without violating the law of the case doctrine. See 56 Am. Jur. 2d Motions, Rules, and Orders § 42 (2d Ed. 1971).

The second argument by Burgess goes to the requirements for finding that a claim is barred by the doctrine of res judicata. Burgess contends that the issues in this action are different from the issues previously litigated. According to Burgess, in the first action he claimed only that the statute at issue violated the federal constitution. Here, a different issue appears, Burgess contends, because he is claiming that the statute violates the state constitution. Burgess also claims that because he is plaintiff here and the State is defendant, and previously he was defendant, and the State was plaintiff, the parties are not the same.

The first contention by Burgess on res judicata fails because:

“[0]nce a party has had full opportunity to present a claim or issue for judicial decision in a given proceeding, the judgment of that court will be deemed final as to all claims or issues which have been raised or which fairly could have been raised.”

State v. Perry (Mont. 1988), [232 Mont. 455,] 758 P.2d 268, 273, 45 St.Rep. 1192, 1198. Burgess had a full and fair opportunity to litigate the constitutional issue in the prior action.

The second contention also fails. In applying the rule of res judicata, “parties” means:

“all persons who have a direct interest in the subject matter of the action and have a right to control the proceedings, defend, examine the witnesses, and appeal if an appeal lies.”

46 Am. Jur. 2d Judgments § 529 (2d Ed. 1969). Burgess and the State were parties to the previous action and they bear the same relationship to the issue Burgess seeks to litigate, i.e., the constitutionality of the statute. The necessary elements for finding res judicata exist in this case. Brault v. Smith (1984), 209 Mont. 21, 679 P.2d 236. We affirm the lower court.

MR. CHIEF JUSTICE TURNAGÉ and MR. JUSTICES HARRISON, GULBRANDSON and WEBER concur.