author:
JUSTICE LEAPHART JUSTICE NELSON, JUSTICE GRAY
      JUSTICE LEAPHART JUSTICE ERDMANN

text:
    NAFISSEH HEIAT, Plaintiff and Appellant, v. EASTERN MONTANA COLLEGE AND MONTANA COMMISSIONER OF HIGHER EDUCATION, Defendant and Respondent.
    No. 94-572.
    Submitted on Briefs November, 9, 1995.
    Decided March 4, 1996.
    53 St.Rep. 162.
    275 Mont. 322.
    912 P.2d 787.

      For Appellant: Rosemary C. Boschert; Boschert Law Firm, Billings.

      For Respondent: LeRoy H. Schramm, Montana University System; Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Nafisseh Heiat appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, granting Eastern Montana College and the Montana Commissioner of Higher Education (EMC) summary judgment, concluding that EMC was not liable for sexual discrimination in employment. We reverse.

The following issue is raised on appeal:

Did the District Court err in granting EMC’s motion for summary judgment?

Plaintiff, Dr. Nafisseh Heiat Ph.D. (Nafisseh), and her husband Dr. Abbas Heiat Ph.D. (Abbas) are employed as associate professors in the Department of Accounting and Information Systems at EMC. Both Nafisseh and Abbas possess Ph.D. degrees from Portland State University. The District Court determined that they, as faculty members at EMC, perform substantially the same work. Abbas was hired by EMC in 1987 as an assistant professor in the information systems program. At the time Abbas was hired, EMC had recently lost its only faculty member in the information systems program who held a Ph.D. EMC advertised for the position listing a Ph.D. as a qualification. EMC offered Abbas the position.

Based on Abbas’ “terminal” doctoral degree and experience, his starting salary under the collective bargaining agreement then in effect would have been $20,491. However, the collective bargaining agreement authorized the EMC administration to offer higher salaries to prospective faculty members in extraordinary recruitment situations. Fearing that Abbas would not accept the position for $20,491, EMC offered him in excess of $30,000. Ultimately, after additional negotiation, Abbas accepted the position at a starting salary of $40,000.

In 1988, EMC advertised for another faculty opening in the information systems program. The posting listed a Ph.D. or equivalent as a qualification. Nafisseh received her Ph.D. in 1987, and applied for this position with EMC. She was offered the position with a staring salary of $27,190. Although she requested an additional adjustment to the starting salary, her request was denied and she accepted the position for the offered salary. Both Nafisseh and Abbas have received periodic salary increases, as mandated by the collective bargaining agreement and, during the 1992-93 academic year, Nafisseh earned $39,049 while Abbas earned $54,575. This disparity is due entirely to the difference in their starting salaries.

In April of 1991, Nafisseh filed a complaint with the Montana Human Rights Commission alleging that she had been discriminated against based on her sex and that she had not been given equal pay for equal work. The Montana Human Rights Commission issued a right to sue letter. In her District Court complaint, Nafisseh alleged violations of the Montana Human Rights Act, the Government Code of Fair Practices, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, and the Equal Pay Act. On June 24,1994, the District Court granted EMC’s motion for summary judgment. Nafisseh appeals from this order.

Our standard in reviewing a district court’s grant of a motion for summary judgment is de novo. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. That is, we review an order of summary judgment using the same criteria as the district court; we are guided by Rule 56, M.R.Civ.P. Chilberg v. Rose (1995), 273 Mont. 414, 903 P.2d 1377, 1378 (citing Minnie, 849 P.2d at 214). Thus, we determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Minnie, 849 P.2d at 214. Summary judgment is an extreme remedy and should never be substituted for a trial if a material fact controversy exists. Howard v. Conlin Furniture No. 2, Inc. (1995), 272 Mont. 433, 436, 901 P.2d 116, 118-19 (citing Hagen v. Dow Chem. Co. (1993), 261 Mont. 487, 491, 863 P.2d 413, 416).

A party seeking summary judgment has the burden of establishing a complete absence of any genuine factual issues. Howard, 901 P.2d at 118. In light of the pleadings and the evidence before the district court, there must be no material issue of fact remaining which would entitle a non-moving party to recover. Howard, 901 P.2d at 118. Once the moving party has met its burden, the party opposing the summary judgment motion must present material and substantial evidence, rather than conclusory or speculative statements, to raise a genuine issue of material fact. Howard, 901 P.2d at 119. In addition, all reasonable inferences that might be drawn from the offered evidence should be drawn in favor of the party who opposed summary judgment. Howard, 901 P.2d at 119 (citing Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511).

EMC contends that it was willing to pay Abbas a higher salary than that contemplated in the collective bargaining agreement because EMC had a pressing need to have a faculty member with a Ph.D. in the information systems program. EMC asserts that “[o]nce the discipline was ‘anchored’ with a Ph.D. the need for a subsequent Ph.D. was lessened and, given the tight budget the College has labored with for several years, the College felt no need to pay a premium for a second Ph.D. in the same discipline.”

Abbas and Nafisseh assert that the rationale of “anchoring” the department was not mentioned to either of them as a factor in setting salaries when they applied for and accepted positions on the faculty at EMC. Further, in an affidavit, Abbas stated that even after he was hired by EMC, he was not told that he occupied an “anchor position” nor was he assigned extra duties or responsibilities. Nafisseh stated that at the time she was hired she was told that she could not be paid a high salary because of the tight budget at EMC.

Dr. Ronald Sexton, vice-president for academic affairs at EMC, asserted that the term “anchor position” was essentially administrative jargon and, as a result, it is quite possible that neither Abbas nor Nafisseh had heard the term. Further, Sexton contended that because EMC already had Abbas as a Ph.D. on its information systems program faculty, EMC was not willing to pay a premium to hire another Ph.D. and that is the reason that Nafisseh was offered a lower starting salary.

According to the United States Supreme Court’s burden shifting analysis employed in discrimination cases, once the plaintiff has, by a preponderance of the evidence, proved a prima facie case of discrimination, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Texas Dep’t of Community Affairs v. Burdine (1981), 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207, 214-15 (citing McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668). Should the defendant carry this burden, “the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Recently, the Supreme Court refined this stage, stating that “a reason cannot be proved to be a ‘pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks (1993), 509 U.S. 502, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407, 422.

At all times, the plaintiff retains the burden of persuasion and, after the defendant has articulated a legitimate, nondiscriminatory reason, the plaintiff must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. At this point, the burden merges with the ultimate burden of persuading the court that the plaintiff has been a victim of intentional discrimination. St. Mary’s Honor Ctr., 509 U.S. at _, 113 S.Ct. at 2752; Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. The plaintiff succeeds either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095.

On a motion for summary judgment in discrimination cases, the McDonnell Douglas order of proof and shifting of burdens at trial must be viewed in light of the traditional test for granting a motion for summary judgment. Brown v. Parker-Hannifin Corp. (10th Cir. 1984), 746 F.2d 1407, 1411. That test is whether the moving party has demonstrated that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R; Howard, 901 P.2d at 118-19. As the Seventh Circuit stated, “[a]s a general rule, questions of motive and intent are inappropriate for summary judgment.” Box v. A & P Tea Co. (7th Cir. 1985), 772 F.2d 1372, 1378, cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986) (citing Cedillo v. International Ass’n of Bridge & Structural Iron Workers (7th Cir. 1979), 603 F.2d 7, 11). The Box court stated:

Consequently, a defendant in a discrimination case is not entitled to summary judgment if the plaintiff submits evidence from which a court can reasonably infer that the articulated legitimate reason is, in fact, a pretext for discrimination.

Box, 772 F.2d at 1378 (citing Gifford v. Atchison, Topeka and Santa Fe Ry. (9th Cir. 1982), 685 F.2d 1149, 1156).

The District Court determined that although Nafisseh had established a prima facie case of sex discrimination, EMC had established a legitimate nondiscriminatory reason for the salary disparity between Abbas and Nafisseh. The District Court determined that the differences in the salaries were based on factors other than sex. See County of Washington v. Gunther (1981), 452 U.S. 161, 170-71, 101 S.Ct. 2242, 2248-49, 68 L.Ed.2d 751, 760-61. However, in making this determination, the District Court adjudicated the disputed issue of material fact as to the reason for the differences in the salaries. As the Seventh Circuitfound inBox, this factual determination of motive or intent is precisely the reason that summary judgment is generally inappropriate in discrimination cases. Box, 772 F.2d at 1378; see also Sorba v. Pennsylvania Drilling Co. (3d Cir. 1987), 821 F.2d 200, 205, cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679. Where different ultimate inferences may be drawn from the evidence presented by the parties, the case is not one for summary judgment. Brown, 746 F.2d at 1411.

We note that Nafisseh’s burden to overcome a motion for summary judgment is different than her burden at trial. In Kenyon v. Stillwater County (1992), 254 Mont. 142, 148, 835 P.2d 742, 745-46, we stated that, in order to survive a motion for summary judgment, the plaintiff has the initial burden to “adduce facts which, if believed, support a reasonable inference that he or she was denied an employment opportunity....”

We went on to hold that:

If that burden is met, the employer must rebut the inference of discrimination with evidence of legitimate nondiscriminatory reasons the plaintiff was not hired or was terminated; upon such a showing, the burden shifts back to the employee to demonstrate with specific facts that the employer’s explanation is a pretext.

Kenyon, 835 P.2d at 746 (citing Foster v. Arcata Associates, Inc. (9th Cir. 1985), 772 F.2d 1453, 1459, cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986), overruled on other grounds by, Kennedy v. Allied Mut. Ins. Co. (9th Cir. 1991), 952 F.2d 262). We now determine that this process places a plaintiff, the nonmoving party in this summary judgment context, in the peculiar position of having to prove her case to survive the defendant’s motion. The order of proof and shifting of burdens at trial must be viewed in light of the traditional test for granting a motion for summary judgment. Thus, to survive a motion for summary judgment, a plaintiff must only produce evidence sufficient to support a reasonable inference of the existence of the fact at issue. Under the Kenyon test, the non-moving party is saddled with two burdens, first, to “adduce facts which, if believed, support a reasonable inference that he or she was denied an employment opportunity” and, if the employer rebuts the inference of discrimination with evidence of legitimate nondiscriminatory reasons, to “demonstrate with specific facts that the employer’s explanation is a pretext.” Kenyon, 835 P.2d at 746.

The three-step McDonnell Douglas analysis, as adopted in the summary judgment context by this Court in Kenyon, conflicts with the two-step analysis traditionally employed in deciding motions for summary judgment. Under the traditional summary judgment analysis the party opposing summary judgment has only one burden, namely, to demonstrate that genuine issues of material fact exist. To do so, the party opposing summary judgment must present material and substantial evidence, rather than mere conclusory and speculative statements, to raise a genuine issue of material fact. Howard, 901 P.2d at 119. In Kenyon, we made the mistake of following the lead of many state and federal courts throughout the country and superimposed the three-step McDonnell Douglas trial analysis into the summary judgment context without specifically noting that the plaintiff’s burden in defending against a motion for summary judgment differs from the plaintiff’s burden at trial. At trial, the plaintiff has the burden of proof so the McDonnell Douglas construct of placing the initial burden on the plaintiff is logical. However, when, as here, the defendant makes a motion for summary judgment, that construct does not work. In summary judgment, the moving party has the initial burden of establishing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.

We now determine that it is error to require a plaintiff in a discrimination case to satisfy the burdens set forth in Kenyon to survive a motion for summary judgment. Accordingly, we overrule that portion of Kenyon v. Stillwater County which requires a plaintiff to initially “adduce facts which, if believed, support a reasonable inference that he or she was denied an employment opportunity” and, in rebuttal, to “demonstrate with specific facts that the employer’s explanation is a pretext.” Kenyon, 835 P.2d at 746.

Instead, we now adopt an analysis consistent with the Burdine test, yet more compatible with the traditional analysis used in the summary judgment context. The plaintiff must allege a prima facie case of discrimination in her complaint. In this context, the plaintiff alleges a prima facie case by asserting that plaintiff is a member of a protected class, and that a male colleague with the same credentials, who performs substantially the same work, receives a higher salary. The employer seeking summary judgment must then come forward with a legitimate nondiscriminatory reason for the disparity. If the employer comes forward with a legitimate nondiscriminatory reason, the plaintiff must then, in addition to having alleged a prima facie case in the complaint, produce evidence that establishes her prima facie case as well as evidence which raises an inference that the employer’s proffered reason is pretextual.

Of course, this does not mean that a plaintiff in a discrimination action always survives summary judgment when the plaintiff calls the employer’s proffered explanation into question. Rather than having to demonstrate with specific facts that the employer’s explanation “is a pretext,” she need only introduce evidence which raises an inference that the employer’s proffered reason is pretextual. To create a genuine issue of material fact as to pretext, the plaintiff must not only introduce evidence from which a reasonable person could infer that she is qualified, she must also introduce evidence that casts doubt on the defendant’s contention that there was a legitimate business justification for defendant’s action. Chauhan v. M. Alfieri Co. (3d Cir. 1990), 897 F.2d 123, 127 (citing Healey v. New York Life Ins. Co. (3d Cir. 1988), 860 F.2d 1209, 1220, cert. denied, 490 U.S. 1098, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989)).

The Chauhan court determined that the plaintiff had pointed to evidence necessary to pass this test, stating that “the inconsistencies in [defendant’s] explanation, as pointed out by [plaintiff], present precisely the kind of 'inconsistencies and implausibilities in [defendant’s] proffered reasons’ that could support an inference of discrimination.” Chauhan, 897 F.2d at 128 (citations omitted).

Justice Nelson’s specially concurring opinion contends that the Kenyon test requires that a plaintiff opposing summary judgment do nothing more than establish a genuine issue of material fact. However, as this case exemplifies, in discrimination cases, the district courts are requiring that a plaintiff do more than merely raise an issue of material fact. In the present case, the District Court held that EMC established a legitimate nondiscriminatory reason for the salary disparity and that:

Dr. Nafisseh Heiat failed to establish the legitimate, nondiscriminatory reason offered by EMC for her salary is pretextual. A reasonable jury could not return a verdict in favor of Dr. Nafisseh Heiat in light of the evidence presented to the court during the summary judgment proceedings. [Emphasis added.]

Notably, the court granted summary judgment not because of Nafisseh’s inability to establish a genuine issue of material fact or to raise an inference of pretext. Rather, the court, citing the McDonnell Douglas trial burden, faulted Nafisseh for her failure to “establish” that EMC’s proffered reason “is a pretext.”

The test that we now establish for a plaintiff in a discrimination case to survive a motion for summary judgment comports with Rule 56, M.R.Civ.R, in that a plaintiff is required to raise an inference of pretext, as opposed to proving pretext. This burden is more aligned with the general requirement of raising a genuine issue of material fact to survive the motion for summary judgment.

In the instant case, Nafisseh has pointed to inconsistencies in EMC’s explanation that could support an inference of discrimination. The District Court found that Nafisseh had established a prima facie case because she had “proved that she is a woman and her male colleague with the same credentials, who performs substantially the same work, receives a higher salary than her.” See St. Mary’s Honor Ctr., 509 U.S. at _, 113 S.Ct. at 2747 (discussing the elements of a prima facie case in the racial discrimination context); Sorba, 821 F.2d at 203 (discussing the elements of a prima facie case in the ADEA context). Additionally, Nafisseh submitted affidavits which, in addition to the facts making up the prima facie case, raise an inference that the defendant’s proffered reason is pretextual. Chauhan, 897 F.2d at 128. Under the standard we now announce, Nafisseh would not be required to produce affidavits establishing her prima facie case until the defendant moves for summary judgment and proffers a legitimate nondiscriminatory reason for the salary disparity.

In her affidavit, Nafisseh stated that she “was not advised that the reason Dr. Abbas Heiat was receiving a higher salary than mine was because he occupied an ‘anchor position’ in the department and that it was the practice of the college to pay a premium salary to fill such ‘anchor positions.’ ” Further, Nafisseh stated that she was told that she was receiving a lower salary because of “budgetary problems.” In his affidavit, Abbas stated that when he was hired he was not advised that one of the reasons he was offered a salary of $40,000 was because he was occupying an “anchor position.” In addition, he stated that he has not “been assigned any extra duties, chores, assignments, or responsibilities relative to said ‘anchor position.’ ”

Contrary to the dissent’s suggestion that the Heiats have done nothing more than establish an “understandable lack of knowledge as to the basis for administrative decisions made by EMC,” these affidavits raise genuine issues as to material facts in at least three particulars: (1) neither Nafisseh nor Abbas were advised of the “anchor position” rationale when they were hired or during their tenure of teaching; (2) EMC has propounded two differing reasons for Nafisseh’s lesser pay; budgetary concerns on the one hand, and the “anchor position” rationale on the other; and (3) contrary to what one would expect if Abbas were in fact an “anchor” — he was never assigned any additional duties or responsibilities commensurate with such a position on the faculty. These are not mere conclusions but, rather, material facts which give rise to genuine issues, not the least of which is the question of whether the “anchor position” rationale was, as Nafisseh claims, merely an afterthought or pretext. These material facts are sufficient to overcome the motion for summary judgment. Hagen, 863 P.2d at 416 (citing D’Agostino v. Swanson (1990), 240 Mont. 435, 442, 784 P.2d 919, 924).

Nafisseh argues, and we agree, that, at best, there is a disputed issue of material fact as to whether Abbas was hired to fill a so-called “anchor position” and, at worst, an issue of whether the whole concept of an “anchor position” was merely a pretext developed after the fact to escape the consequences of EMC’s actions which led to this suit. Nafisseh testified that she was told that budgetary problems were the reason she was offered a lower salary. Resolution of this discrepancy was a question of material fact. A jury should have the opportunity to weigh the credibility of the witnesses and the testimony to determine whether Nafisseh has indeed been discriminated against because of her sex. This question of material fact, whether there was a nondiscriminatory reason for the difference in salaries, should have precluded the District Court from granting EMC’s motion for summary judgment.

Reversed and remanded for proceedings consistent with this opinion.

JUSTICES HUNT and TRIEWEILER concur.

JUSTICE NELSON,

specially concurring.

I concur with the result of our opinion. I also concur in the approach we have taken, and I believe our decision will clarify the burdens of the respective parties in summary judgment proceedings in discrimination cases. Nevertheless, I would have reached the same result using the McDonnell-Douglas analysis which we adopted in Kenyon v. Stillwater County (1992), 254 Mont. 142, 835 P.2d 742.

I write separately only because I do not agree in all respects with the way that we have interpreted Kenyon or that our decision in that case should be overruled. Rather, I believe that our decision here simply clarifies Kenyon.

In Kenyon we relied on and followed Foster v. Arcata Assoc., Inc. (9th Cir. 1985), 772 F.2d 1453, a summary judgment-discrimination case, which, like cases in many other jurisdictions, followed the analysis in McDonnell-Douglas. I believe that the first step in that analysis and in our approach here is really the same — i.e. the plaintiff must initially make out a prima facie case of discrimination at the pleading stage. While that may appear to be a first burden for the plaintiff under McDonnell-Douglas, that same hurdle exists for the plaintiff in any case. I do not believe that the language used in Kenyon that the plaintiff need “adduce facts which, if believed, support a reasonable inference that he or she was denied an employment opportunity,” sets any different or higher standard for the initial pleading in discrimination cases than we have traditionally required for pleading in non-discrimination cases. Kenyon, 835 P.2d at 745.

In Treutel v. Jacobs (1989), 240 Mont. 405, 784 P.2d 915, a personal injury case decided on summary judgment, citing Rule 8(a), M.R.Civ.P., we stated:

While this Court has long recognized that a complaint is to be construed in the light most favorable to the plaintiff, Fraunhofer v. Price (1979), 182 Mont. 7, 594 P.2d 324, we cannot say that Linda’s complaint, even when viewed favorably to her position, set forth a claim upon which relief can be granted. As we stated in Rambur v. Diehl Lumber Co. (1963), 142 Mont. 175, 179, 382 P.2d 552, 554:
"... a complaint must state something more than facts which, at most, would breed only a suspicion that plaintiffs have a right to relief. Liberality does not go so far as to excuse omission of that which is material and necessary in order to entitle relief.”

Treutel, 784 P.2d at 916. Accordingly, the first element of Kenyon is in line with existing law. If plaintiff does not set out a prima facie case in the complaint, her claim will never survive a Rule 12(b)(6) motion to dismiss, much less a motion for summary judgment.

The burden then shifts to the movant for summary judgment, the employer. Under our decision here, under McDonnell-Douglas, and under Kenyon, the test is the same; the employer must come forward with a legitimate nondiscriminatory reason for the alleged discriminatory treatment.

Assuming the employer meets that burden, it is then incumbent on the plaintiff to come forward with sufficient facts to raise an inference that the employer’s reason is actually a pretext. While the majority reads the language used in Kenyon as imposing a trial burden of proof on the plaintiff, I do not. I do not find anything in either Kenyon or in Foster that leads me to believe that our statement that the employee must “demonstrate with specific facts that the employer’s explanation is a pretext,” imposes any different or higher burden of proof on the plaintiff in a summary judgment-discrimination case than in any other case.

Again, in the context of a non-discrimination case, we recently reiterated the well-established rule as to plaintiff’s burden in opposing a motion for summary judgment:

Once the movant has presented evidence to support his or her motion, the party opposing summary judgment must present material and substantial evidence, rather than mere conclusory or speculative statements, to raise a genuine issue of material fact.

Howard v. Conlin Furniture No. 2, Inc. (1995), 272 Mont. 433, 437, 901 P.2d 116, 119, a wrongful discharge-summary judgment case. See also Thornton v. Songstad (1994), 263 Mont. 390, 868 P.2d 633, a contract case involving the sale of real property, wherein we stated that the non-moving party’s proof must be substantial and consist of specific facts and that reliance on speculative, fanciful or conclusory statements is insufficient. Thornton, 868 P.2d at 638. In my view, Kenyon’s third step does not require of plaintiff any more than that she present material and substantial factual evidence of pretext, nor does that step allow her to prevail merely on conclusion and speculation. I do not believe that, under Kenyon, the plaintiff is subjected to a trial burden of proof in opposing summary judgment; she is simply required to raise a factually based inference of pretext, but nothing more.

Again, I believe our opinion and our approach here is correct. It should now be crystal clear who bears which burden and what is the correct standard ofproofin summaryjudgment-discrimination cases. Nevertheless, for the very reasons that we set out in our opinion, I would have also concluded under Kenyon that Nafisseh had met her burden to raise a factually based inference that EMC’s explanation was pretextual.

Accordingly, I specially concur.

JUSTICE GRAY

specially concurring.

I concur in the result we reach in this case, but disagree strenuously with portions of the analysis under which it is reached. In this regard, I join in the analysis contained in Justice Nelson’s special concurrence.

I write separately to state my dismay over the unnecessary and unwise step of “overruling” Kenyon which is taken here by the three Justices who have signed the plurality opinion. First, Kenyon can and should be clarified, but not overruled, for the reasons stated by Justice Nelson. Indeed, no party to this case suggested overruling Kenyon, a unanimous — and recent — opinion by this Court.

Moreover, the statement in the plurality opinion that “the district courts” are requiring plaintiffs in discrimination cases to do more than merely raise an issue of material fact is questionably sweeping, at best, given that this is the first such case we have seen. In addition, the fact that the District Court in this case applied the McDonnell-Douglas trial burden, rather than the summary judgment burden established by this Court in Kenyon, is hardly a reason to overrule Kenyon. Indeed, had the District Court applied Kenyon, but done so erroneously, the proper course for this Court would be to correct the District Court, not to overrule Kenyon. To suggest that a district court’s error in either missing a case altogether or applying it erroneously is a proper basis for overruling that case is certainly a new approach to stare decisis.

My major concern with the plurality opinion, however, is just that: it is merely a plurality opinion with regard to overruling Kenyon. A majority of this Court is opposed to overruling Kenyon, yet apparently this Court is being forced down an entirely new path by virtue of three of its members stating that they can overrule a case with less than a majority vote.

I recognize that, as a practical matter, it makes little difference in this case whether Kenyon is merely clarified or overruled since either would produce the same result. Here, however, it is the plurality’s attitude toward precedent and stare decisis — and where that attitude will lead us in the future — which is important. Can three votes really overrule a case? In a four to three decision, will the dissenters “overrule” cases relied on by the majority? Are such approaches sufficiently cognizant of the importance of stability, continuity and clarity in the law?

Applying Kenyon, I would conclude that Nafisseh met her burden in this case. Accordingly, I would reverse the District Court.

JUSTICE LEAPHART

specially concurring.

In pointing out that there are only three votes to reverse Kenyon, Justice Gray’s special concurrence characterizes the present decision as a “plurality” decision. That is not an accurate characterization of our holding in this case. Including the special concurrences of Justice Nelson and Justice Gray, there are five votes for the new test adopted in the present case. Thus, as to the adoption of that test, there is clearly a majority. Those same five Justices, however, disagree as to what effect the new test has on the test previously enunciated in Kenyon. No more than three Justices were able to agree on any one characterization. That is, has Kenyon been overruled, clarified or modified? As is apparent from the opinion, three of the Justices did agree that, since the Court had changed Kenyon both procedurally and substantively, Kenyon was, in effect, overruled. The disagreement as to how the result in this opinion affects Kenyon, does not alter the fact that, in the final analysis, a majority of the Court has adopted a new test which replaces the Kenyon test.

JUSTICE ERDMANN

dissenting.

I respectfully dissent. I am not convinced that the new standard adopted by the majority for summary judgment motions in discrimination cases is necessary, nor do I believe it is necessary to overrule our recent decision in Kenyon v. Stillwater County (1992), 254 Mont. 142, 835 P.2d 742. I would continue to utilize the standard established in McDonnell Douglas v. Green (1973), 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668, as applied in the summary judgment context in Foster v. Arcata Associates, Inc. (9th Cir. 1985), 772 F.2d 1453, which was adopted by this Court in Kenyon. Under either the traditional standard or the new standard adopted by the majority, however, I would affirm the District Court.

As recognized by the majority, this Court has adopted the test articulated in McDonnell Douglas and further developed in Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207, for analyzing discrimination cases. See Kenyon, 835 P.2d 742; Taliaferro v. State (1988), 235 Mont. 23, 764 P.2d 860; European Health Spa v. Human Rights Comm’n (1984), 212 Mont. 319, 687 P.2d 1029; Martinez v. Yellowstone County Welfare Dept. (1981), 192 Mont. 42, 626 P.2d 242.

In McDonnell Douglas, the U.S. Supreme Court set forth the shifting burdens and order of proof in discrimination cases. The plaintiff must first establish a prima facie case of discrimination. This is generally established with reference to the prima facie case model for disparate treatment cases adopted in McDonnell Douglas. Upon proof of a prima facie case, a presumption arises that the employer unlawfully discriminated against the employee. If a prima facie case is established, the employer must produce evidence that its action was based on a legitimate, nondiscriminatory reason, or, under the Equal Pay Act, based on “factors other than sex.” If the employer can articulate a legitimate, nondiscriminatory reason, the presumption of discrimination drops out of the case and the burden shifts back to the plaintiff who must then establish that the reason is pretextual. Kenyon, 835 P.2d at 745-46; Taliaferro, 764 P.2d at 863; European Health Spa, 687 P.2d at 1031; Martinez, 626 P.2d at 246; Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94.

The District Court found that Nafisseh established a prima facie case of discrimination by showing that she was' a woman and a male colleague (Abbas) with the same credentials, who performed substantially the same work, received a higher salary. The District Court went on to find that EMC had established a legitimate, nondiscriminatory reason for the salary differential between Nafisseh and Abbas. Finally, the District Court found that Nafisseh failed to establish that the legitimate, nondiscriminatory reason offered by EMC was pretextual. Since Nafisseh could not produce evidence to establish that EMC’s reasons were pretextual, there was no genuine issue of material fact. The District Court concluded that a reasonable jury could not return a verdict in favor of Nafisseh.

As noted, the maj ority has determined that the McDonnell Douglas test is not appropriate for analyzing discrimination cases in the summary judgment context and developed a new standard. The majority abandons the first element of the McDonnell Douglas test which required the plaintiff to establish a prima facie case, which, once established, created a presumption of discrimination. The majority states that for summary judgment purposes, the court will assume that the plaintiff has alleged a prima facie case of discrimination. The majority retains the second element of the McDonnell Douglas test by then requiring the employer to come forward with a legitimate, nondiscriminatory reason for the action. If the employer comes forward with a legitimate, nondiscriminatory reason, only then does the plaintiff need to establish a prima facie case of discrimination. If the plaintiff produces evidence which raises an inference that the employer’s proffered reason is pretextual, the plaintiff’s burden is met and summary judgment must be denied.

This new standard requires employers to rebut discrimination allegations not yet proven, which places the cart before the proverbial horse. The Ninth Circuit has discussed and applied the McDonnell Douglas standard in the summary judgment context in Foster.

On a motion for summary judgment in discrimination cases, the McDonnell Douglas order of proof and shifting of burdens must be viewed in light of the traditional test for granting summary judgment. See Steckl [v. Motorla, Inc.], 703 F.2d [392] at 393, [(9th Cir. 1983)]. That test is whether the moving party has demonstrated that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Alaska v. United States, 754 F.2d 851, 853 (9th Cir. 1985). Although courts are generally cautious about granting summary judgment when motivation and intent are at issue, as in Title VII and ADEA cases, such relief may nonetheless be appropriate. Steckl, 703 F.2d at 393. One purpose of the allocation of burdens in Title VII and ADEA actions is to enable the district courts to identify meritless suits and dispense with them short of trial. Id., at 393-94; [Douglas v.] Anderson, 656 F.2d [528] at 535, [(9th Cir. 1981)]. Summary judgment, judiciously applied, is an appropriate vehicle for accomplishing this objective.

Foster, 772 F.2d at 1459.

While the majority’s new standard appears to simplify the summary judgment procedure in discrimination cases by eliminating the initial McDonnell Douglas element, it necessarily abandons the precedence established by this Court as well as numerous other state and federal courts in this area. The traditional standard has worked well in Montana and other jurisdictions and this Court should be reluctant to abandon the process.

The adoption of the new standard, while simplifying the steps to be followed by the parties, leaves unchanged the analysis of the final McDonnell Douglas element — whether the plaintiff can produce evidence to raise an inference that the employer’s proffered reasons are pretextual. Here I differ with the majority as to what suffices as evidence to establish the inference in this case.

The majority finds three geniune issues of material fact: (1) Nafisseh and Abbas were not advised by EMC that it considered Abbas’ position an “anchor position”; (2) EMC has given two reasons for Nafisseh’s lower pay — budgetary concerns and the “anchor position” rationale; and (3) Abbas was never assigned any additional duties one would expect of an “anchor position.” These three assertions are merely speculative or conclusory and are insufficient to raise a genuine issue of material fact. See Farm Credit Bank of Spokane v. Hill (1993), 266 Mont. 258, 265, 879 P.2d 1158, 1162.

In this case, EMC established that when Abbas was hired in 1987 the school had just lost the only faculty member in the information systems discipline who possessed a Ph.D. The administration felt it was important to the credibility and reputation of the discipline to immediately find another Ph.D. to “anchor” the discipline. The term “anchor position” merely referred to the need for a Ph.D. and there was absolutely no evidence in the record that the term envisioned any additional duties or responsibilities. EMC was willing to pay a premium to recruit a high quality applicant with a Ph.D. and did so when they hired Abbas.

In 1988, however, when EMC advertised for an assistant professor in the information systems discipline, a Ph.D. was already on staff so there was no reason to pay a premium. The job advertisement did not require that applicants have a Ph.D. Nafisseh, who had a Ph.D., applied for and was hired for the position at a salary level higher than the salary schedule the union agreement called for, but lower than the salary paid to Abbas the year before. EMC’s articulated reason for the salary differential was that there was no need to pay a premium for a second Ph.D. in the same discipline, a reason the District Court found to be legitimate and nondiscriminatory.

In the affidavits filed in opposition to EMC’s motion for summary judgment, the Heiats stated that they were not aware of EMC’s proffered reasons for the salary differential when they were hired. Nafisseh stated in her deposition that she was told when she was hired that the college was experiencing “budget problems,” but that statement does not conflict with EMC’s position that they were not willing to pay a premium for a second Ph.D. in the information systems discipline. The Heiats’ affidavits do not create any genuine issues of material fact, but merely reflect the Heiats’ understandable lack of knowledge as to the basis for administrative decisions made by EMC.

In her deposition, Nafisseh confirmed that she had no knowledge that would create a genuine issue of material fact:

Q: So you don’t think — you don’t know then that the basis for offering you $28,000 was the fact that you were a woman rather than the fact that you were the second Ph.D. hired?
HEIAT: I know that I was offered a lower salary, and I knew that I was a female rather than a male compared to another colleague who was paid a higher salary. So my conclusion was that probably it was based on my sex.
Q: Well, you said that you can’t say that the school was not basing their salary decisions on the fact that you were the second Ph.D.? They might very well have been basing them on that?
HEIAT: I said I don’t know. If they were, I wasn’t aware of it. Nobody told me.

Nafisseh’s subjective belief of discrimination does not create a genuine issue of material fact. See Tozzi v. Joliet Junior College (U.S.D.C. N.D. Ill. 1989), 57 FEP 269, 272, 1989 WL 96447 (citing Andre v. Bendix Corp. (7th Cir. 1988), 841 F.2d 172, 176, cert. denied (1988), 488 U.S. 855, 109 S.Ct. 144, 102 L.Ed.2d 116). Her statements are conclusory and are not supported by any specific evidence and are insufficient to create a genuine issue of material fact. See Grimwood v. Univ. of Puget Sound (Wash. 1988), 753 P.2d 517, 519-20.

The majority cites Box v. A & P Tea Co. (7th Cir. 1985), 772 F.2d 1372, and Brown v. Parker-Hannifin Corp. (10th Cir. 1984), 746 F.2d 1407, and yet both these cases support the traditional summary judgment standard.

It is true that once a properly supported motion for summary judgment is made, the opposing party may not merely rest on the allegations in the complaint and must respond with some factual showing of the existence of a genuine issue of material fact.

Brown, 746 F.2d at 1412.

As the district court correctly noted, ‘[c]onjecture, speculation, references to matters outside the [affiant’s] personal knowledge, conclusory statements and bare assertions of the general truth of a particular matter will not suffice to withstand a properly supported motion for summary judgment.’

Box, 772 F.2d at 1378.

In this case, Nafisseh has certainly not presented any evidence that EMC’s proffered reasons are pretextual nor has she presented evidence that would raise an inference that the reasons are pretextual. She instead argues that she and her husband were not informed of EMC’s reason for the pay differential when they were hired and, since her husband is being paid more, she “concluded” that she had been discriminated against based upon her gender. Under the McDonnell Douglas I Foster analysis, a plaintiff seeking to establish a pretext must, at a minimum, introduce evidence that raises an inference that the employer’s proffered reasons are pretextual. Nafisseh has simply failed to do so.

This Court has held that the primary policy and general purpose underlying Rule 56, M.R.Civ.R, is “to promptly dispose of actions in which there is no genuine issue of fact, thereby eliminating unnecessary trial, delay and expense.” Silloway v. Jorgenson (1965), 146 Mont. 307, 310, 406 P.2d 167, 169. “[T]he purpose of summary judgment is to encourage judicial economy by eliminating unnecessary trials ....” Cole v. Flathead County (1989), 236 Mont. 412, 416, 771 P.2d 97, 99-100.

[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation. ... To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases.

Ritzie v. City Univ. of New York (S.D.N.Y. 1989), 703 F. Supp. 271, 281.

Virtually all of the cases in this area, including those cited by the majority, require more than speculation and conclusory statements. Here EMC’s proffered reason was that Abbas had been hired at the higher salary for an “anchor position” because of the need for a Ph.D. in the discipline. No evidence contradicted this. When Nafisseh was hired there was no need to expend additional dollars to recruit a Ph.D. since the discipline already had one. No evidence contradicted this. Nafisseh and the majority speculated that the “anchor position” might require additional duties. No evidence supports this speculation. Nafisseh has simply failed to establish evidence which would support an inference that EMC’s reasons were pretextual.

The proper standard was set forth by the Ninth Circuit in Foster and was properly articulated and applied by this Court in Kenyon. I would continue to rely on the McDonnell Douglas /Burdine standard as defined in the summary judgment context by Foster and adopted by this Court in Kenyon. However, under either standard Nafisseh has failed to establish that EMC’s proffered reasons are pretextual. I would affirm the District Court.

CHIEF JUSTICE TURNAGE joins in the foregoing dissenting opinion.

      .1 have resisted the temptation to count my own special concurrence as yet another vote for the opinion.


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROWDY DANE ANDERSON, a/k/a ROWDY DANE BROCK, Defendant and Appellant.
    No. 95-332.
    Submitted on Briefs December 21, 1995.
    Decided March 8, 1996.
    53 St.Rep. 172.
    275 Mont. 344.
    912 P.2d 801.

      For Appellant: Loren J. O’Toole, BE, O’Toole & O’Toole, Plentywood.
    For Respondent: Joseph P. Mazurek, Attorney General, Micheál Wellenstein, Assistant Attorney General, Helena; Steven Howard, Sheridan County Attorney, Plentywood.
   JUSTICE NELSON

delivered the Opinion of the Court.

Appellant Rowdy Dane Anderson a/k/a Rowdy Dane Brock, appeals his conviction of issuing a bad check as part of a common scheme, a felony. We affirm.

The sole issue presented for review is:

Did the District Court abuse its discretion by admitting evidence of other crimes?

Background Facts

On October 14, 1994, Appellant opened a checking account with Security State Bank in Plentywood, Montana. Appellant represented to a bank employee that he would make an initial deposit of $70 into his account. However, that deposit was never made.

Appellant began to write checks the same day he opened his account. Over the next three weeks, Appellant wrote checks totalling more than $600, yet the only deposit received by the bank was for $54.86 on October 31,1994. At trial, Appellant admitted that he knew when he wrote the checks that there was no money in his account. He also claimed that he deposited a money order for $450 into the night depository at the bank on October 25,1994, however, the bank was unable to locate any deposit for that amount.

On December 1, 1994, the State charged Appellant with one count of issuing a bad check as part of a common scheme, a felony, in violation of § 45-6-316, MCA. At the February 1, 1995 omnibus hearing, the State informed Appellant that it would rely on other crimes evidence at trial. That same day the State filed a notice with the District Court wherein the State specified that the other crimes evidence it intended to introduce at trial related to Appellant’s February 15, 1994 conviction in Meagher County of issuing a bad check as part of a common scheme.

The other crimes evidence was admitted at the March 8,1995 trial over the objections of Appellant’s counsel. Appellant’s probation and parole officer was allowed to testify regarding Appellant’s prior conviction. The District Court instructed the jury on the purpose of the other crimes evidence prior to the parties making their opening statements and again at the time the other crimes evidence was admitted. In its final instructions to the jury, the court once again related the purpose of the other crimes evidence.

Appellant was found guilty of issuing a bad check as part of a common scheme. The District Court declared Appellant a persistent felony offender and sentenced him to 20 years in Montana State Prison with 15 years suspended.

Discussion

Did the District Court abuse its discretion by admitting evidence of other crimes?

The District Court admitted the evidence of Appellant’s other crimes over the objections of Appellant’s counsel and permitted the state probation and parole officer to testify regarding the other crimes evidence. Appellant contends that the introduction of his previous crime in Meagher County through the state probation and parole officer was so highly prejudicial that the judgment should be reversed.

The standard of review for evidentiary rulings is whether the District Court abused its discretion. State v. Pace (1995), 272 Mont. 464, 466, 901 P.2d 557, 559 (citing State v. Keys (1993), 258 Mont. 311, 314, 852 P.2d 621, 623). The District Court has broad discretion to determine whether evidence is relevant and admissible, and absent a showing of an abuse of this discretion, the court’s determination will not be overturned. Pace, 901 P.2d at 559.

Rule 404(b), M.R.Evid., governs the admissibility of evidence of other crimes, wrongs or acts:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In State v. Just (1979), 184 Mont. 262, 602 P.2d 957, we required the State to meet four requirements before introducing evidence of other crimes, wrongs or acts. Subsequently, in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52, we modified these requirements.

This modified Just rule found in Matt sets forth the basis for the admission of evidence of other crimes, wrongs or acts as referred to and described in Rules 404(b) and 403, M.R.Evid.:

(1) The other crimes, wrongs or acts must be similar.
(2) The other crimes, wrongs or acts must not be remote in time.
(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Matt, 814 P.2d at 56.

We examine each of the four requirements and apply them to the case before us. First, we determine if the crimes were sufficiently similar in nature. The crime Appellant was charged with in the instant case is exactly the same as the crime he was convicted of in 1994, issuing bad checks as part of a common scheme. Consequently, the prior crime was not only similar, it was identical.

Second, we determine if the previous crimes were too remote in time to be admissible. The previous crimes were committed in October and November 1993, one year prior to the commission of the current charged offenses. This Court recently stated that three years is not so remote in time as to bar the admission of other crimes evidence when the acts are substantially similar. State v. Brogan (1995), 272 Mont. 156, 166-67, 900 P.2d 284, 290-91. Therefore, one year is not so remote in time as to bar the admission of the other crimes evidence in the instant case.

Third, we determine if the evidence of other crimes was admitted for one of the purposes set forth in Rule 404(b), M.R.Evid. Appellant’s counsel contended in his opening statement that the bank lost Appellant’s deposit of $450 and that it was not Appellant’s intent to write checks without sufficient funds in his account. The State contends that it introduced the evidence of other crimes to demonstrate that Appellant knew there was no money in his account when he wrote the checks and to show that it was not mistake or accident that caused the checks to bounce. Intent, knowledge and absence of mistake or accident are permissible purposes for admitting other crimes evidence. Rule 404(b), M.R.Evid.; Matt, 814 P.2d at 56.

Fourth, we determine if the probative value of the prior crime evidence was substantially outweighed by the danger of unfair prejudice. It is inevitable that the introduction of evidence of a prior crime will have some prejudicial effect on a defendant. State v. Brooks (1993), 260 Mont. 79, 84, 857 P.2d 734, 737. However, when the prior crime evidence meets the first three elements of the modified Just rule, the prior crime evidence necessarily carries great probative weight. Brooks, 857 P.2d at 737 (citingState v. Eiler (1988), 234 Mont. 38, 51, 762 P.2d 210, 218). Here, Appellant has not established the existence of more than the “inevitable” amount of prejudice resulting from the use of prior crime evidence. Thus, after weighing the probative value of the prior crime evidence against the prejudice to Appellant, and taking into consideration the satisfaction of the first three requirements of the modified Just rule, we hold that, in the instant case, the probative value of the prior crime evidence outweighs the danger of unfair prejudice to Appellant.

Additionally, certain procedural protections were established in Just and clarified in Matt. These protections include:

(1) Evidence of other crimes, wrongs or acts may not be received unless there has been written notice to the defendant that such evidence is to be introduced. The notice to the defendant shall specify the evidence of other crimes, wrongs or acts to be admitted, and the specific Rule 404(b) purpose or purposes for which it is to be admitted.
(2) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for such purposes.
(3) In its final charge, the court shall instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.

Matt, 814 P.2d at 56.

In the case before us on appeal, the State gave written notice to Appellant that it intended to introduce evidence of Appellant’s 1994 conviction for issuing bad checks. Furthermore, at the time the State introduced this evidence, the District Court explained to the jury the purpose for which the evidence was being admitted and admonished the jury to weigh the evidence only for that purpose. The court instructed the jury that Appellant was not being tried for and could not be convicted of any offense except that with which he was charged. The court warned the jury that to convict Appellant for other offenses may result in unjust double punishment. Thus, we hold that the District Court followed the procedural requirements of the modified Just rule in this case.

Appellant also argues that the introduction of the other crimes evidence through Appellant’s probation and parole officer prejudiced the jury and that the introduction of a prior conviction was unnecessary because it did not rebut or counter any claim of mistake or accident and that it did not show any plan, prove any motive or show any knowledge. However, while Appellant did generally object to the admission of the other crimes evidence and to the State’s first witness testifying that he was Appellant’s probation and parole officer, Appellant did not raise a specific objection to the State introducing the other crimes evidence through its first witness or to the State introducing the other crimes evidence in its case-in-chief. This Court has long held that it will not address an alleged error that is deemed waived by lack of timely objection at trial. Section 46-20-104(2), MCA; State v. Cooney (1995), 271 Mont. 42, 47, 894 P.2d 303, 306.

Moreover, Appellant’s argument fails to consider that the State, during its case-in-chief, had the burden of proving each element of the charged offense. There is no rule requiring the State to wait until rebuttal to present evidence proving the elements of the charged offense. Appellant’s comments in his opening statement to the jury regarding a lost deposit were sufficient to entitle the State to present the other crimes evidence and the order in which the State presented this evidence is of no consequence.

Accordingly, we hold that the District Court did not abuse its discretion by admitting evidence of Appellant’s prior conviction for issuing bad checks.

Affirmed.

JUSTICES GRAY, HUNT, ERDMANN and LEAPHART concur.


text:
    TOPCO, INC., a Montana Corporation, Plaintiff/Appellant, v. STATE OF MONTANA, DEPARTMENT OF HIGHWAYS, Defendant/Respondent and Cross-Appellant.
    No. 94-301.
    Submitted on Briefs October 12, 1995.
    Decided March 11, 1996.
    53 St.Rep. 175.
    275 Mont. 352.
    912 P.2d 805.

      For Appellant: Richard A. Reep, Reep, Spoon & Gordon, Missoula; Dennis E. Lind, Datsopoulos, MacDonald & Lind, Missoula.
    For Respondent: Nick A. Rotering, Stephen F. Garrison, Montana Department of Transportation, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

Topeo, Inc. (Topeo) appeals from the Findings of Fact, Conclusions of Law and Order of the First Judicial District Court, Lewis and Clark County, awarding certain damages to Topeo under a clearing and grubbing contract with the State of Montana, Department of Highways (State). The State cross-appeals on the assignment of the contract to Topeo. We affirm in part, reverse in part and remand.

We address the following issues on appeal:

1. Whether the District Court erred in failing to find that the assignment to Topeo from Washington Construction violated the terms of the contract.

2. Whether the District Court erred in awarding damages to Topeo at the subcontract price rather than at the contract price.

3. Whether the District Court erred in determining that acreage measurement should use horizontal rather than slope distances.

4. Whether the District Court erred in failing to award Topeo consequential damages as a result of the State’s breach of contract.

5. Whether the District Court erred in failing to award Topeo payment for acres cleared but not paid for by the State.

6. Whether the District Court erred in changing venue from Missoula County to Lewis and Clark County.

Background Facts

On October 7, 1988, the State awarded a highway construction contract to Washington Construction Co. (Washington) for reconstruction of 16 miles of highway between Libby and Troy, Montana. The project involved realignment of the existing roadway through a canyon and bordering a river. The State prepared plans and cross-section drawings that showed the actual profile of the construction site.

Under the contract, clearing and grubbing, the process of clearing trees, tree stumps and brush from the construction site, was to extend 10 feet beyond the construction limits. The plans and specifications prepared by the State did not indicate any exclusion for the 50 acres of old highway or paved travel way (PTW) from the clearing and grubbing area.

John Richards (Richards), the sole shareholder of Topeo, inspected the construction site prior to submitting a bid to Washington for the clearing and grubbing. Only a few of the stakes showing the clearing limits were in place at the time Richards inspected the site. Richards submitted Topco’s bid to Washington taking into account that some areas of the construction site would require little or no clearing and grubbing and other areas would require substantial clearing and grubbing.

On November 1, 1988, Topeo entered into a subcontract with Washington for clearing and grubbing of 183.7 acres at $1725 per acre. Washington had been awarded the prime contract with a clearing and grubbing price of $3600 per acre. The 1987 edition of the Standard Specifications for Road and Bridge Construction (Standard Specifications) was made a part of Washington’s contract with the State.

Topeo commenced clearing and grubbing in November 1988. A short time later, a dispute arose between Topeo and the State with respect to the measurements for payment of the clearing and grubbing. The contract between Washington and the State required that all claims of subcontractors be made through Washington as the general contractor. On June 27, 1989, Topeo, through Washington, asserted a claim against the State regarding inclusion of the PTW and the method of measurement of the acreage cleared and grubbed. The State denied Topco’s claim.

On February 6, 1990, Topeo made a formal claim for payment of additional acreage, including the PTW. This claim was denied by the District Engineer in March 1990. Topeo then appealed to the Board of Contract Appeals. On July 23,1990, the Board affirmed the District Engineer’s decision without comment. On August 1, 1990, the State affirmed that all administrative remedies had been exhausted by Washington and Topeo.

Washington assigned all right, title and interest in and to the clearing and grubbing portion of the contract to Topeo on October 24, 1990, so that Topeo could pursue the contract claims directly. On November 14, 1990, Topeo filed a complaint against the State in Missoula County. On the State’s motion, venue was changed to Lewis and Clark County in October 1991.

Abench trial was held in November 1993. The District Court issued its Findings of Fact, Conclusions of Law and Order on March 17,1994, wherein the court ordered the State to pay Topeo for the 50 acres of PTW at $1750 per acre (even though the subcontract specified $1725 per acre). Topeo appeals the District Court’s decision in several respects and the State cross-appeals on the assignment of the contract to Topeo.

Standard of Review

We review a district court’s findings of fact to determine whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906 (citing Columbia Grain International v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 678). A finding is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if, after reviewing the record, this Court is left with a firm conviction that a mistake has been made. Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-4).

Issue 1.

Whether the District Court erred in failing to find that the assignment to Topeo from Washington Construction violated the terms of the contract.

In its March 17,1994, Findings of Fact, Conclusions of Law and Order, the District Court concluded that there was an assignment of Washington’s contract to Topeo. The State, in its cross-appeal, argues that this assignment is invalid because it violates the terms of the contract and the Standard Specifications which had been made a part of the contract. Contrary to the State’s argument that any assignment of the contract required the written consent of the State, Topeo argues that the Standard Specifications only require written consent if the portion of the contract transferred is more than 50 percent of the potential earnings under the contract.

Standard Specification § 108.01(A) states:

The Contractor shall assign not more than 50 percent of the potential earnings or transfer, convey, or otherwise dispose of the right, title, or interest therein to any other person, firm, or corporation without the written consent of the surety and of the Department. [Emphasis added.]

At trial, the testimony of one of the State’s own witnesses showed that the portion of the contract regarding clearing and grubbing consisted of only 5.42 percent of the potential earnings under the contract. Consequently, since written consent of the State was not required, the assignment to Topeo did not violate the terms of the agreement.

Furthermore, Topeo argues that the State waived its objection to the assignment because in the Pretrial Order, the State stipulated to the fact that Washington assigned its contract to Topeo on October 24, 1990. We have previously stated that it is improper to raise an issue on appeal as to a question of law or fact after the parties have entered into a stipulation as to that law or fact. Penn v. Burlington Northern, Inc. (1980), 185 Mont. 223, 228, 605 P.2d 600, 603-4 (citing Oregon Automobile Insurance Company v. Watkins (1973), 264 Or. 464, 506 P2d 179).

Accordingly, on either approach to this issue, we hold that the District Court was correct in concluding that the assignment of the contract to Topeo was valid.

Issue 2.

Whether the District Court erred in awarding damages to Topeo at the subcontract price rather than the contract price.

Since we have already determined that Washington’s assignment of the clearing and grubbing portion of the contract to Topeo was valid, it follows that all of Washington’s interest in the contract as to clearing and grubbing was assigned to Topeo and is therefore recoverable by Topeo. This Court has previously held that an assignee of a contract is subject to all of the terms of the contract between the account debtor and assignor, and any defense or claim arising therefrom. Massey-Ferguson Credit Corp. v. Brown (1977), 173 Mont. 253, 256, 567 P.2d 440, 442.

The contract price for clearing and grubbing was $3600 per acre. Once the District Court found that the contract had been assigned to Topeo, it should have enforced the contract as written and should not have changed the terms by substituting the subcontract price for the contract price. Where contract provisions are unambiguous, the courts have no authority to insert provisions in, or delete provisions from, the contract. Westfork Const. Co. v. Nelcon, Inc. (1994), 265 Mont. 398, 404, 877 P.2d 481, 485.

The State argues that paying the contract price would result in a windfall to Topeo because the $3600 per acre figure included Washington’s overhead and mobilization costs which were not attributable to Topeo as the subcontractor. However, it is not up to the State to “protect” Washington’s interests. As provided for in the subcontract, Topeo could have required Washington to pursue Topco’s claims. However, the parties agreed to an assignment of contract rights to Topeo in exchange for Washington’s release from liability. In contrast to the State’s argument, any windfall would go to the State if it were required to pay only $1750 per acre instead of its contractual obligation of $3600 per acre.

Accordingly, we hold that the District Court erred in awarding damages to Topeo at the subcontract price rather than the contract price. Topeo is entitled to the contract price of $3600 per acre for the PTW acreage included by the District Court in its Order.

Issue 3.

Whether the District Court erred in determining that acreage measurement should use horizontal rather than slope distances.

The central dispute in this case involves the method used to measure the acreage cleared and grubbed. A measurement using slope distances follows the natural contour of the terrain whereas a horizontal measurement follows the plane of the earth. The acreage measured by these two methods can vary extensively when clearing and grubbing is required on steeply sloped ground as in the construction project involved in this dispute.

Topeo argues that the State incorrectly employed horizontal measurements and as a result Topeo was not properly paid for all the acres it had cleared and grubbed. Section 109.01 of the Standard Specifications provides for the method of measurement to be used:

The method of measurement and computations to be used in determination of quantities of material furnished and of work performed under the contract will be those methods generally recognized as conforming to good engineering practice.
Unless otherwise specified, longitudinal measurements for area computations will be made horizontally, and no deductions will be made for individual fixtures having an area of 9 square feet or less. Unless otherwise specified, transverse measurements for area computations will be the neat dimensions shown of the plans or ordered in writing by the Engineer. [Emphasis added.]

The transverse measurement is the measurement in question. Topeo argues that while the word “transverse” does not denote slope, something different than horizontal was intended. Topeo further argues that the phrase “neat dimensions” refers to a slope measurement and that if the State, which drafted the Standard Specifications, had intended horizontal measurements, it would have said horizontal measurements. Uncertain terms in a contract are to be construed against the party causing the uncertainty. Section 28-3-206, MCA; Mueske v. Piper, Jaffray & Hopwood, Inc. (1993), 260 Mont. 207, 216, 859 P.2d 444, 449-50.

In addition, § 201.03 of the Standard Specifications relating to payment per acre supports Topco’s contention that the State intended to pay based upon the actual working area acceptably cleared and grubbed. Section 201.03 states:

(B) Area Basis. Measurement of clearing, grubbing, or clearing and grubbing on an area basis will be the number of acres and fractions thereof acceptably cleared, grubbed, or cleared and grubbed to the limits shown on the plans or staked by the Engineer.

As Topeo points out, both clearing and grubbing and seeding and fertilizing use § 109.01 of the Standard Specifications for calculating area measurement. There was no differentiation in the contract as to clearing and grubbing versus seeding and fertilizing and in actuality, the same terrain is covered in both operations. Testimony at trial showed that seeding and fertilizing was paid by actual acreage using slope measurements.

The District Court found that “every witness who testified in this case, except for Topeo, indicated that the practice in Montana has been to pay for clearing and grubbing on a horizontal basis and not on a slope basis.” Additionally, the court concluded that good engineering practice does not allow for payment of clearing and grubbing on the slope. However, the contract at issue provides:

It is further understood and agreed that said construction and work shall be done in strict compliance with said standard specifications and further, it is expressly understood and agreed that no rules, customs or usages, either local or otherwise, shall in any way he considered, implied, or inferred into this contract. [Emphasis added.]

It was error to admit the testimony concerning custom and usage where the contract explicitly excluded its consideration and then to rely on that testimony in interpreting the contract to define the area on which Topeo was to be paid for clearing and grubbing. Accordingly, we hold that the District Court erred in determining that acreage measurement should use horizontal rather than slope distances, and we remand for calculation of the amount due Topeo based on slope measurement.

Issue 4.

Whether the District Court erred in failing to award Topeo consequential damages as a result of the State’s breach of contract.

Topeo contends that its damages, other than for payment for omitted acres, exceed $1 million. These damages include lost profits, penalties and assessments by the Internal Revenue Service and the Montana Department of Revenue, as well as losses on properties that had to be sold for less than their fair market value. In its Findings of Fact, Conclusions of Law and Order, the District Court concluded that the various consequential damages requested by Topeo were “too speculative to award.”

The measure of damages for breach of contract is the amount which will compensate the aggrieved party for all detriment proximately caused by the breach. Daines v. Knight (1995), 269 Mont. 320, 329, 888 P.2d 904, 909. “In all cases, damages must be reasonable.” Daines, 888 P.2d at 909.

Topeo argues that the losses it sustained were the direct result of the State’s failure to pay Topeo in accordance with the contract. Conversely, the State argues that Topeo failed to prove with sufficient certainty that any consequential damages arose from the State’s failure to pay.

Damages for lost profits may be awarded if such loss is shown to be the “natural and direct result of the act of the defendant” and if the loss is not speculative. Olson v. Parchen (1991), 249 Mont. 342, 348, 816 P.2d 423, 427 (citing Hostetter v. Donlan (1986), 221 Mont. 380, 382, 719 P.2d 1243, 1245). The prohibition against speculative profits does not necessarily apply to uncertainty about the amount of such profits, but applies to uncertainty about “whether the loss of profits is the result of the wrong and whether such profit would have been derived at all.” Olson, 816 P.2d at 427.

Contrary to Topco’s argument that since the State failed to present any evidence refuting Topco’s damage claim, Topeo is entitled to all damages it claims for the State’s breach of contract, it was Topco’s burden to prove damages. At trial, Richards conceded that the problems that developed between Topeo, the IRS and the Montana Department of Revenue could be attributed to other construction projects that Topeo was working on at the same time as the Troy-Libby project.

Topeo contends that “uncertainty in the amount of damages is excusable and is not a bar to recovery.” However, the uncertainty here is not in the amount of the damages, but whether the damages claimed were caused by the breach.

We will not substitute our judgment for that of the trial court where the issue relates to the weight given to certain evidence or the credibility of the witnesses. Wilson v. Liberty Mut. Fire Ins. (1995), [273 Mont. 313], 903 P.2d 785, 787 (citing Burns v. Plum Creek Timber Co. (1994), 268 Mont. 82, 84, 885 P.2d 508, 509).

Accordingly, we hold that the District Court did not err in concluding that Topeo failed to prove with sufficient certainty that any consequential damages arose from the State’s breach of contract and we affirm the District Court on this issue.

Issue 5.

Whether the District Court erred in failing to award Topeo payment for acres cleared but not paid for by the State.

Topeo argues that in addition to the PTW acres, several other areas had been omitted from measurement and Topeo has never been paid for those areas. Topeo contends that many of those areas had been cleared and grubbed by Topeo and that all calculations relative to this missing acreage were based upon the State’s own books.

In its Findings of Fact, the District Court determined that the contract required payment of all acreage contained within the construction limits plus 10 feet, yet the District Court failed to award Topeo payment for additional acres cleared by Topeo but not paid for by the State. The contract plans and specifications excluded only certain designated areas. The remainder of the area was within the construction limits.

Accordingly, we remand this issue to the District Court for calculation of those portions of the construction area falling within the clearing and grubbing contract yet omitted from payment by the State.

Issue 6.

Whether the District Court erred in changing venue from Missoula County to Lewis and Clark County.

Topeo filed this action in the Fourth Judicial District Court, Missoula County. The State moved for a change of venue arguing that Missoula County was not a proper place of trial for this action and that under § 25-2-121, MCA, the proper place of trial is either Lewis and Clark County or Lincoln County. The District Court granted the State’s motion and ordered the matter transferred to the First Judicial District Court, Lewis and Clark County.

A district court’s determination of venue is a legal conclusion and our standard of review is plenary. State v. Cooney (1995), 271 Mont. 42, 45, 894 P.2d 303, 305 (citing Emery v. Federated Foods, Inc. (1993), 262 Mont. 83, 87, 863 P.2d 426, 429).

The general rule is that the proper place of trial for actions upon contracts is either the county in which the defendants reside at the commencement of the action, in this case Lewis and Clark County, or the county in which the contract was to be performed, in this case Lincoln County. Section 25-2-121(1), MCA. However, under § 25-2-126(1), MCA, there is an exception for actions in which the State is a defendant. This section states in pertinent part:

(1) The proper place of trial for an action against the state is in the county in which the claim arose or in Lewis and Clark County. In an action brought by a resident of the state, the county of his residence is also a proper place of trial. [Emphasis added.]

Section 25-2-126(1), MCA. Topeo maintains its principal place of business in Seeley Lake which is located in Missoula County. Thus, under this statute, Missoula County is also a proper place of trial. The statute applies as an exception to the general rule for actions in which the State is a defendant. Kendall v. State (1988), 231 Mont. 316, 318, 752 P.2d 1091, 1092.

It is well established that when more than one county is designated as a proper place of trial for an action, an action brought in any such county is brought in a proper county and a motion for change of venue may not be granted. Section 25-2-115, MCA; Gabriel v. School Dist. No. 4, Libby (1994), 264 Mont. 177, 179, 870 P.2d 1351, 1352; Melroe v. Doyle (1989), 239 Mont. 524, 525, 781 P.2d 1134, 1135. “[0]nce an action has been filed in a proper county the District Court cannot grant a motion to have it removed.” Petersen v. Tucker (1987), 228 Mont. 393, 396, 742 P.2d 483, 485 (citing Seifert v. Gehle (1958), 133 Mont. 320, 322, 323 P.2d 269, 270).

Consequently, the District Court erred by granting the State’s motion to change venue. However, the error in this case was harmless because it did not affect Topco’s substantial rights. Abbey v. City of Billings Police Com’n (1994), 268 Mont. 354, 364, 886 P.2d 922, 928 (citing Barrett v. Asarco Inc. (1990), 245 Mont. 196, 799 P.2d 1078).

While contending that Topco’s appeal of this issue was not timely, the State fails to develop its argument or cite authority in support thereof. It is not the function of this Court on appeal to advocate a party’s position, to develop arguments or to locate and cite supporting or opposing authority. Accordingly, we will not further address the State’s contention in this regard.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

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

      . In our recent opinion in Bauer v. State (1996), 275 Mont. 119, 910 P.2d 886, we said that if a finding of fact is supported by substantial credible evidence the finding is not clearly erroneous. However, it was not our intention that this be interpreted as modifying the three-part test set forth in DeSaye. In Bauer, the test was simply satisfied at the first prong without proceeding further. The standard of review for a district court’s findings of fact is still as stated in DeSaye.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOE ROBERTS, Defendant and Appellant.
    No. 95-167.
    Submitted on Briefs December 7, 1995.
    Decided March 12, 1996.
    53 St.Rep. 181.
    275 Mont. 365.
    912 P.2d 812.

      For Appellant: William F. Hooks, State Appellate Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Carol Schmidt, Assistant Attorney General, Helena; Chris Miller, Powell County Attorney, Deer Lodge.
   JUSTICE GRAY

delivered the Opinion of the Court.

Joe Roberts (Roberts) appeals from the judgment entered by the Third Judicial District Court, Powell County, on a jury verdict finding him guilty of the offense of felony escape. We reverse.

The dispositive issue on appeal is whether the District Court erred in denying Roberts’ motion to dismiss the escape charge.

Roberts was an inmate at the Montana State Prison (MSP) in Deer Lodge, Montana. On January 26, 1994, the Montana Board of Pardons (Board) granted Roberts parole subject to the usual parole conditions and certain special conditions. One of the special conditions was a Board recommendation that Roberts obtain a 10-day furlough to find housing and employment. Roberts subsequently submitted a furlough request/permit form which was approved on February 4, 1994. The furlough program rules required Roberts to meet with parole officer Dave Weaver (Weaver) on specified dates.

Roberts left the MSP on February 7,1994. He met with Weaver as scheduled on February 8. Weaver went to Roberts’ wife’s residence on February 10 for another scheduled meeting with Roberts, but Roberts failed to attend the meeting. Weaver left a message for Roberts to contact him; Roberts did not do so. On February 14, 1994, Weaver issued an arrest warrant and notified the MSP of Roberts’ escape. Roberts was arrested in Pablo, Montana, on February 17, 1994.

The State of Montana (State) charged Roberts by information with felony escape under § 45-7-306, MCA. The information alleged that, on or about February 10, 1994, Roberts was an “inmate subject to official detention ... temporarily released on work furlough ... [and] removed himself from official detention.”

Roberts moved to dismiss the charge. He argued that he was not subject to “official detention” during his furlough, as that term is defined in § 45-7-306(1), MCA, and, therefore, that he could not commit the offense of escape as defined in § 45-7-306(2), MCA. More particularly, he argued that he was a “parole violator” when he failed to report to Weaver and that the statutory definition of “official detention,” by its terms, does not include supervision of probation or parole. The State contended that Roberts was being supervised while under a supervised release program, one of the statutory definitions of “official detention.”

The District Court determined that Roberts’ furlough was approved in order for him to seek employment after he was paroled and, therefore, that he was not yet on parole during the furlough. On that basis, the court denied Roberts’ motion. A jury subsequently found Roberts guilty of the charged offense and the District Court sentenced him and entered judgment. Roberts appeals.

Did the District Court err in denying Roberts’ motion to dismiss the escape charge?

The District Court’s denial of Roberts’ motion implicitly concluded that the State could prosecute Roberts for escape pursuant to § 45-7-306(2), MCA, because he was subject to official detention — by virtue of being on a supervised release program — at the time he failed to meet with Weaver. We review a district court’s conclusion of law to determine whether it is correct. State v. Mantz (1994), 269 Mont. 135, 137, 887 P.2d 251, 253 (citation omitted).

In interpreting a statute, “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. The intention of the legislature must be pursued. Section 1-2-102, MCA. If the language of the statute is clear and unambiguous, it requires no further interpretation; we will not resort to legislative history or other means of interpretation unless the legislative intent cannot be determined from the plain words of the statute. Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088 (citation omitted).

Insofar as is relevant here, an escape charge can be maintained only against a person “subject to official detention.” Section 45-7-306(2), MCA. The Montana legislature has defined “official detention,” in part, as “supervision while under a supervised release program.” Section 45-7-306(1), MCA. The State equates the furlough program in which Roberts was participating to the “supervised release program” referenced in § 45-7-306(1), MCA. On that basis, it contends that Roberts was subject to official detention while on furlough and, therefore, that he was properly prosecuted for felony escape. We disagree.

The only “supervised release program” addressed by statute in Montana is codified in §§ 46-23-401 through 46-23-426, MCA. The legislature did not define with any specificity in these statutes the supervised release program it contemplated. Instead, it directed the Department of Corrections to establish the supervised release program and to promulgate administrative rules to implement it. Section 46-23-405, MCA. The legislature did require, however, that prisoners in the supervised release program participate “in a recognized educational, treatment, or training program or work program.” Section 46-23-405(2), MCA. Prisoners are eligible for the program 24 months before they are eligible for parole. Section 46-23-411(1), MCA. Applications for the supervised release program are approved or denied by the Board after “a hearing consistent with the procedural rules adopted by it for parole hearings....” Section 46-23-412, MCA. Section 46-23-426, MCA, specifically provides that a prisoner convicted of escape from a supervised release program is punishable pursuant to § 45-7-306, MCA. Not a single reference to “furloughs” is contained in the supervised release program statutes.

The administrative rules establishing and implementing the supervised release program set out the requirements of the program in more detail. A prisoner applying for acceptance into the supervised release program must enter into a contract with a sponsor stating the terms of the supervised release and establishing a supervised release plan. Section 20.7.103, ARM. The prisoner also is required to submit a favorable psychological evaluation and establish that he has been accepted into an approved treatment or training program. Section 20.7.102(4X5), ARM.

The only statutory reference to a “furlough” is contained in the statutes governing parole. Section 46-23-215(3), MCA, which is captioned “[cjonditions of parole,” specifically provides that, when an MSP prisoner has been approved for parole on condition that employment or suitable living arrangements be obtained, the prisoner may be granted a furlough not to exceed 10 days for purposes of fulfilling the condition.

We conclude that term “supervised release program” contained in § 45-7-306(1), MCA, clearly and unambiguously refers to the supervised release program codified in §§ 46-23-401 through 46-23-426, MCA, and not to the furlough associated with parole proceedings under § 46-23-215, MCA. To conclude otherwise would require us to delete the word furlough from § 46-23-215, MCA, and insert it into the supervised release program statutes. Our role in interpreting statutes does not permit us to do so. See § 1-2-101, MCA.

The State contends that the legislature’s intent vis-a-vis the relationship between furloughs and the supervised release program can be determined only by examining legislative history. We have concluded, however, that the “supervised release program” referenced in § 45-7-306(1), MCA, clearly and unambiguously means the supervised release program addressed in §§ 46-23-401 through 46-23-426, MCA, which does not encompass furloughs. Thus, we may not resort to other means of interpretation. Clarke, 897 P.2d at 1088.

In the present case, it is clear that Roberts was released from the MSP into the parole-related furlough program and not into the supervised release program. Roberts appeared before the Board seeking parole; he did not appear as an applicant for the supervised release program which required him to participate in a recognized educational, treatment, or training program or work program. He did not enter into a contract with a sponsor or meet the other requirements of the administrative rules governing the supervised release program. His hearing was conducted pursuant to § 46-23-202(2),-MCA, and the Board’s case disposition form specifically states that it constitutes notice “of the Montana State Board of Pardons decision in your parole consideration, in accordance with sections 46-23-201 through 46-23-218, MCA.” Indeed, Roberts was “granted parole” subject to certain conditions and the Board’s recommendation of a 10-day furlough. Neither the procedural nor the substantive requirements of the supervised release program were applied at any phase of the proceedings which resulted in Roberts’ 10-day furlough from the MSP. Roberts’furlough was granted pursuant to § 46-23-215(3), MCA.

We conclude that Roberts was not being supervised under a “supervised release program” as that term is used in § 45-7-306(1), MCA. Having rejected the sole basis under which the State asserted that Roberts was “subject to official detention” for proposes of the escape charge, it is not necessary to determine whether Roberts was technically “on parole” for purposes of excluding him from “official detention” pursuant to the “supervision of probation or parole” exclusion in § 45-7-306(1), MCA. We hold that the District Court erred in concluding that Roberts could be prosecuted for the offense of escape pursuant to § 45-7-306(2), MCA, and in denying Roberts’ motion to dismiss the escape charge.

Reversed and remanded with instructions to enter an order of dismissal.

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