author: JUSTICE REGNIER

text:
    IN RE A. W-M., A Youth in Need of Care.
    No. 97-726.
    Submitted on Briefs May 28, 1998.
    Decided June 23, 1998.
    1998 MT 157.
    55 St.Rep. 628.
    960 P.2d 779.
    289 Mont. 333.

      See C.J.S. Infants § 58.
    For Appellant: Lawrence LaFountain, Attorney at Law, Great Falls.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Mark Mattioli, Assistant Attorney General; Helena; Brant Light, Cascade County Attorney; Great Falls.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶ 1 M.M. appeals from an order of the Eighth Judicial District Court, Cascade County, terminating her parental rights over her daughter, A.W-M. For the reasons stated below, we affirm. The sole dispositive issue on appeal is whether the District Court erred in terminating M.M.’s parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 A.W-M. was born on March 30, 1996, to M.M., her biological mother, and M.W., her biological father. In April 1996, the Department of Public Health and Human Services (Department) received “four referrals with concerns as to [M.M.’s] ability to care for her infant daughter [A.W-M.] or to provide her with a home.” During the week of July 8,1996, the Department received two more referrals “alleging [M.M.] was leaving [A.W-M.] for days at a time with caretakers while she was out partying.” On July 12,1996, A. W-M. was placed in foster care for a brief period.

¶3 On July 23,1996, the Department filed a petition with the Eighth Judicial District Court for temporary investigative authority and protective services. On July 31, 1996, the court issued an order for protective services, and appointed a guardian ad litem for A.W-M. The court held a show cause hearing on September 5, 1996, during which both M.M. and M.W. agreed to participate in a court-ordered treatment plan. On September 23, 1996, the court issued an order granting the Department’s petition for temporary investigative authority for a ninety-day period, and ordering that M.M. and M.W. complete a treatment plan designed to “[pjreserve, if possible, the parent child relationship between [A. W-M.] and her parents.” Among the treatment plan’s requirements were that M.M. provide her daughter with “a safe and stable home,” undergo a psychological assessment, complete a chemical dependency evaluation and follow any “recommendations thereof,” and complete parenting classes.

¶4 In November 1996, A.W-M. was again placed in foster care because M.M. “had not followed through at all with the treatment plan and the hospital was concerned about her chemical dependency issues.” M.M. failed to attend a December 19,1996, review hearing, and the District Court ordered that the Department have temporary investigative authority for an additional ninety-day period, and ordered that M.M. “continue working on her treatment plan.”

¶5 On February 25,1997, roughly one month after M.M. appeared at a second status hearing, the Department filed a petition for temporary legal custody. Among the allegations set forth in the Department’s supporting affidavit were that M.M. had failed to meet even a single objective of her September 1996 treatment plan. More specifically, the Department asserted that, although M.M. had “completed a chemical dependency evaluation” and had begun the recommended intensive outpatient treatment, she received “a disciplinary discharge because she did not show up for two appointments” and because she had “a urinalysis that was positive for marijuana.” The Department also alleged that M.M. had failed to secure stable or permanent living arrangements, failed to attend counseling, and had not undergone a psychological evaluation as ordered.

¶6 On March 6,1997, the court issued an order granting the Department temporary legal custody over A.W-M. The court held an adjudicatory hearing on June 5,1997, at which M.M. failed to appear, and granted the Department legal custody for a six-month period. The court additionally ordered that M.M. “must make every effort to successfully complete” her treatment plan.

¶7 On July 15,1997, the Department filed its petition for permanent legal custody and termination of parental rights. Citing § 41-3-609(1), MCA, the Department sought to terminate M.M.’s parental rights for failure to comply with or successfully complete her treatment plan, and on the grounds that the conduct or condition rendering her unfit was unlikely to change within a reasonable time. The court held a hearing on September 16,1997, and on October 23,1997, entered an order terminating M.M.’s parental rights. It is from the District Court’s order terminating her parental rights that M.M. presently appeals.

STANDARD OF REVIEW

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

¶9 In In re D.H. and F.H. (1994), 264 Mont. 521, 524, 872 P.2d 803, 805, we clarified the standard of review for cases involving a youth in need of care and termination of parental rights. The appropriate standard of review to be applied to purely factual findings in a termination of parental rights proceeding is the clearly erroneous standard as set forth in Interstate Production Credit Association v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. We review conclusions of law in a termination proceeding to determine if those conclusions are correct. In re D.H. and F.H., 264 Mont. at 525, 872 P.2d at 805.

¶10 This Court has recognized that “a natural parent’s right to care and custody of a child is a fundamental liberty interest, which must be protected by fundamentally fair procedures.” In re R.B., Jr. (1985), 217 Mont. 99, 103, 703 P.2d 846, 848. Accordingly, prior to terminating an individual’s parental rights, the district court must adequately address each applicable statutory requirement. In re R.B., Jr., 211 Mont. at 103, 703 P.2d at 848.

DISCUSSION

¶11 Did the District Court err in terminating M.M.’s parental rights?

¶12 M.M. advances two arguments on appeal, the first of which is that the District Court erred in finding A. W-M. was a youth in need of care. M.M. asserts there was no evidence indicating A.W-M. was abused or neglected at the time ofher removal from M.M.’s careinNovember 1996. At the hearing on the Department’s petition to terminate M.M.’s parental rights, social worker Brennan Swanberg explained that the Department had placed A. W-M. in foster-care on November 6,1996, because the child had bronchitis and because she had been left with an inappropriate caregiver. On appeal, M.M. argues the Department presented no evidence to suggest that A.W-M.’s bronchitis was due to abuse or neglect, and similarly asserts the Department failed to present any evidence to suggest that the caregiver with whom M.M. left her daughter was inappropriate. Moreover, M.M. disputes the Department’s assertion that she failed to return for her child when expected by the caregiver. In light of the foregoing, M.M. argues the Department failed to present clear and convincing evidence that A.W-M. was in danger of being neglected or abused while in her care. Because the Department failed to demonstrate that A.W-M. was a youth in need of care, M.M. argues, “the child should not have been removed and the action should have been terminated.”

¶ 13 In its order terminating M.M.’s parental rights, the District Court found that A.W-M. “is a youth in need of care within the meaning [of] § 41-3-201, MCA (1995), and her best interests will be served by declaring her a youth in need of care under the laws of the State of Montana.” The court additionally concluded that A.W-M. had previously been “adjudicated a youth in need of care and remains as such.” We will not disturb a decision by the district court terminating parental rights “unless there is a mistake of law or a finding of fact not supported by substantial credible evidence that would amount to a clear abuse of discretion. In re S.P. (1990), 241 Mont. 190, 194, 786 P.2d 642, 644 (quoting In re R.A.D. (1988), 231 Mont. 143, 148, 753 P.2d 862, 865).

¶14 The record in the present case contains substantial credible evidence to support the District Court’s determination that A.W-M. was a youth in need of care. For example, the record indicates that when A.W-M. was only three months old, M.M. left her in the care of a known sex offender. Department social worker Brennan Swanberg testified that, when A. W-M. was seven months old and sick with bronchitis, M.M. left her with a babysitter. Swanberg explained that when M.M. failed to return for her daughter at the predetermined time, the babysitter took A.W-M. to the emergency room for treatment. Swanberg stated that, although M.M. eventually arrived at the hospital, doctors would not release A. W-M. into her care because she “appeared to be high.” The record additionally indicates that M.M. made few efforts to complete the requirements of her treatment plan, tested positive for the use of marijuana, and left A.W-M. with caregivers for indefinite periods of time on more than one occasion. Under these circumstances, we hold the District Court did not err in finding that A. W-M. was a youth in need of care. Moreover, although M.M. argues on appeal that “the child should not have been removed” from her care and placed in a foster home in November 1996, we note that M.M. did not object to her removal at that time and did not object to the court’s order granting the Department investigative authority and protective services.

¶15 Having held that the District Court did not err in finding that A. W-M. was a youth in need of care, we turn next to M.M.’s argument that the court erred in concluding she could not be expected to complete her treatment objectives in the foreseeable future, and thus erred in terminating her parental rights. In its order terminating M.M.’s parental rights, the District Court indeed concluded that M.M. “did not comply with” her treatment plan, and determined that those “portions of the treatment plan that were attempted were not successful.” The court additionally concluded that the conduct or condition rendering M.M. unfit to parent her child “is unlikely to change within a reasonable time.”

¶ 16 On appeal, M.M. concedes “it is clear that [she] did not complete her treatment plan,” but asserts the Department failed to demonstrate that a treatment plan was actually necessary. Moreover, M.M. argues the Department presented no evidence to contradict her assertion that she was not chemically dependent, and similarly presented no evidence that she was an unfit parent. M.M. accordingly argues the court erred in concluding that the conduct or condition rendering her unfit to parent A.W-M. “is unlikely to change within a reasonable time,” and thereby erred in terminating her parental rights.

¶17 Having reviewed the record, we conclude there is ample evidence which supports the court’s determination that the conduct or condition rendering M.M. unfit was “unlikely to change within a reasonable time.” Despite M.M.’s assertions to the contrary, the record contains substantial evidence indicating she was chemically dependent. For example, Gateway Recovery conducted a chemical dependency evaluation and recommended that M.M. undergo intensive outpatient chemical dependency treatment. Moreover, M.M. was subsequently discharged from treatment due in part to the fact that her urine tested positive on one occasion for the presence of marijuana. Also indicative of M.M.’s inability to effectively parent her child is evidence that she had been unable to secure stable housing or employment, had failed to attend court-ordered counseling, and had visited only sporadically with her daughter.

¶ 18 When asked at the termination hearing why she had not completed court-ordered intensive outpatient chemical dependency treatment, M.M. replied that she “[j]ust didn’t care at the time.” M.M. stated that she did not complete the counseling requirement contained in her treatment plan because she believed such counseling had nothing to with her daughter. When asked why the court should give her more time to complete her treatment plan, M.M. explained, “I don’t think they should. I messed up, and I know I did, and I don’t think they should.” Although M.M. testified that she would not relinquish her parental rights to A.W-M., she simultaneously agreed that she was unwilling to do what the court ordered her to do in order to get her daughter back.

¶19 In light of the foregoing, we conclude the record contains substantial evidence supporting the court’s determination that M.M. was “unfit, unwilling, or unable to provide adequate parental care,” and that “[t]he conduct or condition of [M.M] rendering [her] unfit is unlikely to change within a reasonable time.” We thus hold the court did not err in concluding M.M. could not be expected to complete an appropriate treatment plan in the foreseeable future, and in thereby terminating M.M.’s parental rights.

JUSTICES GRAY, NELSON, LEAPHART and TRIEWEILER concur.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    IN THE MATTER OF A.E., A Youth In Need Of Care.
    No. 97-639.
    Submitted on Briefs May 5, 1998.
    Decided June 23, 1998.
    1998 MT 159.
    55 St.Rep. 638
    961 P.2d 1265.
    289 Mont. 340.
    See C.J.S. Infants§ 86.

      For Appellant: Teresa Ann Scriber, pro se, Stevensville.
    For Respondents: Honorable Joseph P. Mazurek, Attorney General; Mark W. Mattioli, Assistant Attorney General, Helena; George H. Corn, County Attorney, Hamilton; Michael L. Hayes, Recht, Hays and Hayes, Hamilton.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶ 1 Teresa Scriber appeals from a decision of the Twenty-First Judicial District Court, Ravalli County, granting the Montana Department of Public Health and Human Services a ninety-day extension of its temporary legal custody of her daughter, A.E. In a separate child custody action between Scriber and A.E.’s father, custody of A.E. was transferred to A.E.’s father. That decision was not appealed. The proceedings herein were subsequently dismissed. Because we conclude this matter is now moot, we dismiss this appeal.

¶2 Scriber states the issue as whether the court’s order granting an extension of the Department’s legal custody of A.E. violated her right to have and raise her child.

¶3 When these proceedings began, Scriber and A.E.’s father were divorced and Scriber had physical custody of nine-year-old A.E. and her twelve-year-old brother. In November 1996, Scriber reported to the Department that A.E.’s brother had sexually abused A.E. The Department’s investigation confirmed that A.E.’s brother had forcefully sexually molested her on multiple occasions while both children were in Scriber’s custody, and that when A.E. had told Scriber about the incidents, Scriber accused A.E. of lying and sent her to her room.

¶4 The Department obtained temporary investigative authority (TIA), which included the authority to require that A.E. and her family obtain counseling. Scriber refused to participate in family counseling and threatened to remove A.E. from the court’s jurisdiction. The court thereafter declared A.E. a youth in need of care and placed her temporary physical custody with her father, who lived in Idaho.

¶5 While these proceedings were pending, A.E.’s father filed an independent motion to modify the provisions of the decree dissolving his and Scriber’s marriage. Under that decree, Scriber had primary physical custody of A.E. Scriber appeared pro se in the modification action, as in this action, despite the court’s advice that she seek legal counsel.

¶6 Meanwhile, the court held a hearing on the Department’s request for a ninety-day extension of its TIA. At the end of the hearing, the court orally granted the request for an extension of TIA based upon the evidence presented, including the evidence that Scriber had been uncooperative with family counseling. Scriber immediately filed a notice of appeal which, pursuant to Rule 5(a)(2), M.R.App.R, was treated as filed on the date the written judgment was entered, September 18, 1997.

¶7 In the action by A.E.’s father to modify the decree of dissolution, the court awarded sole custody of A.E. to her father. Scriber did not appeal.

¶8 After the custody modification order was entered, the Department moved to dismiss its petition for TIA and to vacate the court’s order granting it extended temporary legal custody of A.E. The motion to dismiss was granted and the order giving temporary custody to the Department was vacated on November 14, 1997.

DISCUSSION

¶9 A legal question is moot when it no longer presents ajusticiable controversy because the issues have become academic or dead or because any action the court may take will have no effect on the situation of the parties. Air Pollution Control v. Bd. of Env. Rev. (1997), 282 Mont. 255, 264, 937 P.2d 463, 469. In other words, a question is moot when the court can no longer grant effective relief.

¶10 Here, the validity of the Department’s TIA and temporary legal custody of A.E. is a moot question because the Department no longer possesses such authority over and custody of A.E. In the absence of an ongoing, concrete controversy, the court cannot grant effective relief. Furthermore, this Court cannot fashion the remedy which Scriber seeks (return to her of legal and physical custody of A.E.), because Scriber did not appeal the court’s order in the custody modification proceeding.

¶11 Because this appeal of the order extending the Department’s TIA and temporary legal custody of A.E. is moot, the appeal is dismissed.

JUSTICES GRAY, LEAPHART, REGNIER and TRIEWEILER concur.


author: JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    DONALD M. KAEDING and LOUISE E. KAEDING, husband and wife, Plaintiffs and Appellants, v. W.R. GRACE & CO.—CONN., a Connecticut corporation, Defendant and Respondent.
    No. 97-598.
    Submitted on Briefs April 2, 1998.
    Decided June 23, 1998.
    1998 MT 160.
    55 St.Rep. 640.
    961 P.2d 1256.
    289 Mont. 343.

      See C.J.S. Attorney and Client § 182.

      For Appellants: Jon L. Heberling; McGarvey, Heberling, Sullivan & McGarvey, Kalispell; Julianne Hinchey; Hinchey Law Offices, Kalispell.
    For Respondent: Gary L. Graham; Garlington, Lohn & Robinson, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellants Donald M. and Louise E. Kaeding (the Kaedings) appeal from the order of the Montana Nineteenth Judicial District Court, Lincoln County, granting summary judgment in favor of Respondent W.R. Grace & Company (W.R. Grace). We affirm.

¶2 We restate the issues on appeal as follows:

¶3 1. Did the District Court err in holding that the Kaedings’ claims were not filed within the statute of limitations and in granting summary judgment for W.R. Grace?

¶4 2. Did the District Court err in considering the September 1, 1992 letter from Dr. Alan Whitehouse (Dr. Whitehouse) to the Kaedings’ attorney?

Factual and Procedural Background

¶5 From 1962-64, Donald Kaeding (Kaeding) worked in a vermiculite mine and mill located near Libby, Montana. Vermiculite is a silicate mineral used in insulation. W.R. Grace owned and operated the mine during Kaeding’s tenure there and until its closure in 1990. The Kaedings allege that well before 1962, W.R. Grace was aware that the vermiculite dust contained asbestos and that asbestos was a serious health hazard. The Kaedings contend that W.R. Grace did not warn its employees that the dust in its facility could be harmful. W.R. Grace argues that it provided the employees with respirators to protect them from the dusty conditions.

¶6 Over the past thirty years, Kaeding has suffered lung- and heart-related ailments. He has visited many doctors and heard various medical opinions and diagnoses. In 1967, a radiologist noted Kaeding had “old fibrosis” in his lungs, which “suggests the possibility of asbestosis with fibrosis and scarring.” In about 1969, Kaeding was diagnosed with thyroid toxicosis (Grave’s disease) and with tuberculosis (TB) in 1971. From 1973 to 1995, several x-rays of Kaeding’s lungs revealed scarring from the TB. In 1983, Kaeding was examined by Dr. Huffman in Libby, Montana and told he had “chronic lung disease secondary to pneumonia and smoking....” Dr. Huffman examined Kaeding again in 1985 and diagnosed him with “emphysema from history of smoking and working at W.R. Grace.”

¶7 In 1983, W.R. Grace conducted breathing tests of current and former employees of the vermiculite mine. At that time, Kaeding learned that the vermiculite dust he was exposed to while employed by W.R. Grace contained asbestos. In January 1985, W.R. Grace mailed Kaeding the results of the radiological tests it had conducted. The report noted that Kaeding’s “pleural placquing [plaque on the membrane lining the lungs and chest cavity] is most compatible with asbestosis but the hilar retraction would be more typical of silicosis.”

¶8 Kaeding’s brother, who had also worked at W.R. Grace’s facility, was diagnosed with asbestosis in 1990. In 1991, during an examination at the Veteran’s Administration (VA) Hospital in Spokane, Kaeding told Dr. Howard Platter that he had worked in W.R. Grace’s facility for two years and that the facility had been shut down because a number of employees had developed pulmonary troubles. Kaeding also told Dr. Platter about his brother’s employment with W.R. Grace and his asbestosis. In Kaeding’s radiology diagnostic report, Dr. Platter reported what Kaeding had told him and noted that the “question in this case is whether the present findings could involve an unusual case of asbestosis.”

¶9 Kaeding’s medical records also contain a “progress note” dated October 22, 1991 written by a nurse at the mobile VA Hospital in Libby. This note states: “[A]ppears to be an advanced case of asbestosis.” A September 15,1992 radiology diagnostic report from the Spokane VA Hospital states: “By history, the patient is said to have an old asbestosis.” Kaeding contends that Dr. Platter’s notes regarding Kaeding’s brother’s history of asbestosis were inadvertently carried forward in subsequent records as Kaeding’s own history of asbestosis.

¶10 In 1992, Kaeding retained attorney Tom Baiz (Baiz) to represent him in a possible claim against W.R. Grace. Baiz’s practice included representing other individuals who had contracted asbestos-related diseases after exposure at W.R. Grace’s facility in Libby. Baiz obtained Kaeding’s medical records and sent them to Dr. Whitehouse, a pulmonary specialist practicing in Spokane. Dr. Whitehouse was familiar with the conditions at W.R. Grace’s facility and had seen about 200 of W.R. Grace’s former employees who were suffering from pulmonary conditions.

¶11 On September 1,1992, after reviewing two of Kaeding’s x-rays, Dr. Whitehouse sent Baiz a letter expressing his opinion. He stated that Kaeding had, among other things, “pleural thickening and calcification along both lateral chest walls, and involving both diaphragmatic surfaces, and those findings are all compatible with asbestosis.” Dr. Whitehouse noted that he had not seen the pattern of scarring displayed by Kaeding with asbestosis patients previously. However, Dr. Whitehouse concluded:

It would appear to me as if the basilar changes that are present in the lower lung zones are quite easily ascribable to asbestosis. In view of the fact that there is an exposure history, and although I do not know all of the details of that exposure history, that was a period of time that there was considerable asbestosis exposure at the mine....
Basically in conclusion then my opinion would be that the lower findings on the chest x-ray are consistent with asbestosis. ...

¶12 On October 7,1992, Baiz sent a letter to counsel for W.R. Grace regarding Kaeding and three other former employees at the mine. Baiz stated he was “attempting] to negotiate settlements in these cases without formally proceeding with litigation.” Baiz enclosed Kaeding’s biography and exposure history, his medical records, and the letter from Dr. Whitehouse.

¶13 Kaeding states that he never saw the letter from Dr. Whitehouse to Baiz and was not told of its contents. In 1992 and 1993, Kaeding was again examined by a physician at the Spokane VA Hospital and told that his lungs were “clear.” Kaeding was not examined personally by Dr. Whitehouse until May 1996, when he was referred by his doctor in Libby. At that time, Dr. Whitehouse performed a physical examination, pulmonary function tests, and a chest x-ray. Dr. Whitehouse’s prior opinion was confirmed, and he diagnosed Kaeding with asbestosis.

¶14 On June 12,1996, the Kaedings filed a complaint in the District Court alleging fraud and intentional injury, negligence, failure to provide a safe workplace, and strict liability. W.R. Grace moved for summary judgment, arguing that the statute of limitations had run on the Kaedings’ claims. The Kaedings filed a brief in opposition to the motion and a motion in limine to exclude evidence of the September 1, 1992 letter from Dr. Whitehouse. On August 26, 1997, the District Court granted summary judgment in favor of W.R. Grace and denied the Kaedings’ motion in limine. The Kaedings appeal from this order.

Standard of Review

¶ 15 We review a district court’s grant of summary judgment de novo, applying the same standard as the district court pursuant to Rule 56, M.R.Civ.R Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. In Bruner v. Yellowstone County (1995), 272 Mont. 261, 264-65, 900 P.2d 901, 903 (citations omitted), we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Discussion

¶16 1. Did the District Court err in holding that the Kaedings’ claims were not filed within the statute of limitations and in granting summary judgment for W.R. Grace?

¶ 17 An action for personal injury must be commenced within three years from the time that the claim or cause of action accrues. Section 27-2-204, MCA. A claim or cause of action accrues “when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action.” Section 27-2-102(l)(a), MCA. Generally, lack of knowledge by the claimant of the claim or cause of action, or its accrual, does not postpone the beginning of the period of limitations. Section 27-2-102(2), MCA. However, when the facts constituting the claim are by their nature concealed or self-concealing, the period of limitations does not commence “until the facts constituting the claim have been discovered or, in the exercise of due diligence, should have been discovered by the injured party....” Section 27-2-102(3), MCA. Asbestosis is a latent disease that is, by its nature, self-concealing. Thus, the inquiry in this case is when Kaeding discovered or, in the exercise of due diligence, should have discovered that he had asbestosis.

¶18 This Court discussed the accrual of a cause of action for latent disease in Hando v. PPG Industries, Inc. (1989), 236 Mont. 493, 771 P.2d 956. In 1982, Hando was assigned the duty of painting inside the coal processing plant where she was employed. Hando, 771 P.2d at 958. In the years following her exposure to the paint, which was manufactured by PPG Industries, she suffered numerous physical, mental, and emotional reactions. Hando, 771 P.2d at 958. Suspecting that the reactions had been caused by her exposure to the paint, she filed a workers’ compensation claim. However, none of the numerous physicians who examined Hando from 1982 to 1984 found a causal connection between her continuing ailments and her exposure to PPG paint. Hando, 771 P.2d at 958. Finally, in 1984, one doctor stated that he believed her problems may have been caused by her exposure to the PPG paint. Hando, 771 P.2d at 958.

¶19 In October 1985, Hando filed suit against PPG for products liability. Hando, 771 P.2d at 958. PPG filed a motion for summary judgment, arguing that Hando’s claim was barred by the three-year statute of limitations. The district court held that the statute had been tolled until April of 1984, when a physician diagnosed the causal connection between Hando’s ailments and her exposure to the PPG paint. Hando, 771 P.2d at 959. On appeal, this Court agreed. Hando, 771 P.2d at 962.

¶20 We stated:

The facts in the present case indicate that although Hando was very much aware of those continuing physical, emotional and mental ailments she suffered after her exposure to the paint, she did not know the cause of those injuries until May of 1984. Prior to that time, she... suspected that her ongoing ailments stemmed from her exposure to the paint manufactured by PPG. She even filed a workers’ compensation claim in May of 1982 based upon this belief. However, the veracity of her belief was not known until May of 1984. Medical tests done in Chicago at that time provided Hando with a medical diagnosis that her continuing problems were due to a “sensitivity to petrochemicals,” a sensitivity most likely triggered by her exposure to the PPG paint.

Hando, 771 P.2d at 962. We noted that although Hando had diligently sought to determine the cause of her ailments, none of the physicians who examined her prior to 1984 attributed her ailments to the exposure to PPG paint. Hando, 771 P.2d at 962. We held that “the three-year statute of limitations did not begin to run until a medical opinion was rendered in April-May of 1984 linking her injuries to her exposure to the PPG paint.” Hando, 771 P.2d at 962.

¶21 Kaeding argues that Hando stands for the proposition that the statute of limitations does not begin to run in a latent disease case until there is: (1) a “medical diagnosis”; (2) that links the harmful exposure to the disease. Kaeding thus argues that the statute of limitations was tolled on his claims against W.R. Grace until 1996, when he was diagnosed with asbestosis for the first time by Dr. Whitehouse.

¶22 In Hando, this Court did not hold that a medical diagnosis must be rendered before the statute of limitations may run. Although Hando had suspected all along that her exposure to the paint was causing her illness, none of the medical opinions she received confirmed this suspicion. Hando, 771 P.2d at 958. It was only after a doctor finally diagnosed her as suffering from sensitivity to petrochemicals triggered by her exposure to the PPG paint that she was able to verify her suspicion of a causal connection between her exposure and subsequent illness. Hando, 771 P.2d at 958.

¶23 Conversely, in this case, Kaeding’s medical records contain several references to asbestosis prior to the actual diagnosis rendered by Dr. Whitehouse in 1996. As early as 1967, Kaeding’s x-ray suggested “the possibility of asbestosis.” In 1983, W.R. Grace sent Kaeding the results of his breathing tests, which revealed “pleural placquing ... most compatible with asbestosis.” By 1992, Kaeding’s medical records contained two radiology diagnostic reports mentioning asbestosis: one suggesting that he suffered from “an unusual case of asbestosis” and one which stated he had “an old asbestosis.” Further, a progress note written by a nurse at the mobile VA hospital in Libby stated that Kaeding “[ajppears to be an advanced case of asbestosis.” While Kaeding may not have received a technical diagnosis of asbestosis, several doctors who examined Kaeding prior to 1994 were of the opinion that his medical problems were attributable, at least in part, to asbestosis.

¶24 Further, while Hando had no proof that exposure to paint could cause the type of symptoms she was experiencing until a doctor verified her suspicions, that is not the case here. Kaeding knew that exposure to vermiculite at W.R. Grace could cause asbestosis or other asbestos-related medical problems. When W.R. Grace conducted breathing tests of all of its past and present employees in 1983, Kaeding knew the vermiculite contained asbestos and that his exposure put him at risk for asbestos-related diseases. That same year, Kaeding’s doctor considered his exposure history and diagnosed him with “emphysema from history of smoking and working at W.R. Grace.” In 1990, Kaeding’s brother, who had worked in the same facility, was diagnosed with asbestosis.

¶25 Even more significantly, in 1992, Kaeding hired an attorney (Baiz) whose practice included asbestos litigation to investigate a possible claim against W.R. Grace. Baiz sent Kaeding’s medical records to Dr. Whitehouse, a pulmonary specialist who had seen more than 200 similar cases and was familiar with the exposure history at W.R. Grace’s facility. After reviewing Kaeding’s records and x-rays, Dr. Whitehouse concluded that the findings were consistent with asbestosis. Regardless of whether this constituted a “medical diagnosis” of asbestosis, Dr. Whitehouse’s findings were certainly sufficient to give Baiz notice that Kaeding likely suffered from asbestosis. Kaeding contends that he never saw the letter from Dr. Whitehouse and was unaware of its contents. However, the District Court held that knowledge of the information contained in Dr. Whitehouse’s letter to Baiz is imputed to Kaeding, and we agree.

¶26 The attorney-client relationship is an agency relationship. Smith v. Fladstol (1991), 248 Mont. 18, 807 P.2d 1361. Under Montana law, a principal is deemed to have notice of all information known by his or her agent that the agent should, in good faith and exercising due care and diligence, have communicated to the principal. Section 28-10-604, MCA; Williams v. State Medical Oxygen & Supply, Inc. (1994), 265 Mont. 111, 874 P.2d 1225. Thus, knowledge of facts by an attorney is knowledge by the client, regardless of whether the attorney actually communicated the information to the client. See Central Bank & Trust Co. v. Lee C. Nelson, Inc. (D. Mont. 1963), 221 F. Supp. 721; Unland v. City of Lincoln (Neb. 1995), 530 N.W.2d 624. Kaeding argues that knowledge of Dr. Whitehouse’s letter cannot be imputed to him because the statute of limitations inquiry in latent injury cases is whether the claimant had actual knowledge of the elements of the claim. We disagree. Under § 27-2-102(3), MCA, the proper inquiry is when the claimant discovered or, in the exercise of due diligence, should have discovered the elements of the claim or cause of action. The District Court correctly imputed knowledge of the medical opinions contained in Dr. Whitehouse’s letter to Kaeding.

¶27 We hold that with the numerous references to asbestosis in his medical records, Kaeding’s knowledge of his risk for asbestos-related diseases from exposure at W.R. Grace, and the conclusions Dr. Whitehouse rendered in 1992, Kaeding should have discovered that he suffered from asbestosis by September or October of 1992, at the latest. By that date, Baiz had learned that Dr. Whitehouse found Kaeding’s x-rays consistent with asbestosis and had used this information as leverage in a settlement offer to W.R. Grace. Kaeding’s waiting several years to follow up with Dr. Whitehouse or to inquire further about his possible claim does not demonstrate due diligence. Kaeding did not file his complaint in the District Court until June 12, 1996. Accordingly, we hold that his claim is barred by the three-year statute of limitations.

¶28 Based on the foregoing, we affirm the District Court’s grant of summary judgment for W.R. Grace.

¶29 2. Did the District Court err in considering the September 1, 1992 letter from Dr. Whitehouse to the Kaedings’ attorney?

¶30 Kaeding also argues that the District Court erred in denying his motion in limine to exclude the September 1,1992 letter from Dr. Whitehouse to Baiz. First, Kaeding argues that the letter is inadmissible because it was offered in the context of settlement negotiations. Rule 408, M.R.Evid., states:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

The letter from Dr. Whitehouse is not a statement made in a compromise negotiation. Under the plain language of Rule 408, M.R.Evid., evidence that is otherwise discoverable is not rendered inadmissible simply because it is presented in the course of compromise negotiations. Further, Rule 408, M.R.Evid., only excludes evidence that is being offered to prove liability or the validity of a claim or amount. In this case, Dr. Whitehouse’s letter was offered to show knowledge; that is, that Kaeding knew or should have known the facts constituting his claim against W.R. Grace.

¶31 Kaeding argues further that Dr. Whitehouse’s letter is not relevant to show what he knew because he never saw the letter and was not informed of its contents. However, as discussed in issue 1, supra, the contents of the letter were known by Kaeding’s attorney, and this information is imputed to Kaeding. Thus, Dr. Whitehouse’s letter is relevant to show when Kaeding knew or, with due diligence, should have known that his cause of action had accrued. Therefore, we hold that the District Court did not err in denying Kaeding’s motion in limine and in considering Dr. Whitehouse’s letter for purposes of summary judgment.

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

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and NELSON concur.

JUSTICE TRIEWEILER

dissenting.

¶33 I dissent from the majority’s conclusion that the District Court correctly granted summary judgment to the defendant in this case.

¶34 While the majority’s recitation of the facts might suffice as a closing argument to the jury on behalf of the defendant, in terms of this Court’s responsibility, which is to construe the record most favorably to the party opposing summary judgment, it is completely inadequate.

¶35 Although I would concede that there are facts from which persuasive jury argument can be made by the defendant, let me, consistent with the proper nature of our review, point out those facts which are most favorable to the party who opposed summary judgment.

¶36 The issue in this case is simply whether it can be concluded as a matter of law when Kaeding knew or should have known that he had asbestosis which was causally related to his employment at W.R. Grace & Co., or whether the date on which he would have, with due diligence, discovered his condition, is a question of fact. Only two witnesses testified in this case — the plaintiff, Donald Kaeding, and Alan Whitehouse, M.D., the physician who ultimately diagnosed Kaeding’s condition.

¶37 Kaeding had been diagnosed with heart failure as far back as 1968, and was disabled since 1970 from a combination of heart problems, thyroid toxicity, and other conditions. Because of his health problems, he frequently saw doctors in his home town of Libby, and at the Veterans’ Administration Hospital in Spokane, Washington.

¶38 He testified that he was told by W.R. Grace officials that the reason for their evaluation of him in 1983 was that there was asbestos in the dust where he had been employed, but that they did not explain to him that the asbestos was harmful. He knew of no co-workers who had respiratory problems while he worked at W.R. Grace. He first developed symptoms of shortness of breath in 1994. When he went to the VA hospital with complaints of difficulty breathing, he was advised that it was probably due to his heart.

¶39 Kaeding testified directly that he first became aware that he had asbestosis in 1996 following his examination by Dr. Whitehouse. Prior to then, he had no idea that he had asbestosis, nor that he had any lung condition consistent with asbestosis.

¶40 Kaeding did become aware of an abnormal chest x-ray in 1971, but was told that it was related to scarring from a former condition of tuberculosis. His medical records, over a period of nearly thirty years, show repeated references to abnormal chest film due to a former condition of tuberculosis.

¶41 Kaeding testified that in 1985 he did receive a letter from W.R. Grace explaining that his 1983 chest film showed signs of asbestos tracking. However, he was advised to consult with his family doctor. When he did so, he was told that there was nothing to worry about. Instead, his family physician attributed his respiratory condition to smoking and pneumonia.

¶42 Kaeding testified that prior to his 1996 examination by Dr. Whitehouse, he has no recollection of being advised by any physician or other health care provider that he had abnormal radiology studies as a result of possible asbestosis. The radiology studies of his chest were only discussed with him as they related to signs of former tuberculosis.

¶43 Kaeding testified that he did retain an attorney in 1990 or 1991 to investigate a possible claim against W.R. Grace for dust-related health problems. However, he did not specifically relate his problems to asbestos and was not advised differently following Dr. Whitehouse’s evaluation of his radiology studies.

¶44 Dr. Whitehouse has been a pulmonologist for thirty years and has examined about 200 people from Libby with asbestosis. He examined radiologic studies of Kaeding’s lungs in 1992 at the request of Kaeding’s attorney, and felt that they were consistent with asbestosis, but also had questions about prior tuberculosis and arrived at no diagnosis at that time. He explained that he could not make a diagnosis of asbestosis without a clinical examination and that he did not see Kaeding personally until May 2, 1996.

¶45 Dr. Whitehouse testified that when he did evaluate Kaeding in 1996 he found pleural placquing and interstitial disease which is a partial basis for his diagnosis of asbestosis, but explained that similar findings can result from a variety of diseases, including tuberculosis or empyema. Empyema is an infection in the chest which can result from either tuberculosis or bacteria, and is a significant illness. It is possibly for this reason that after reviewing Kaeding’s medical records he observed that no two health care providers had ever interpreted the chest films the same way, and that the condition that Dr. Whitehouse ultimately diagnosed was frequently referred to as something that it was not. He noted that some of the radiology reports in Kaeding’s medical records refer to the condition which he ultimately diagnosed as asbestosis as granulomatous disease, tuberculosis, or old empyema. He testified that some of the radiological abnormalities could have resulted from the thyroid toxicosis for which Kaeding had been treated.

¶46 However, in spite of the various explanations found in Kaeding’s medical records for abnormal x-ray film findings, there are also periodic reports in his VA records that his heart and lung examination was normal. These reports appear in 1988, 1992, and 1993.

¶47 In none of Kaeding’s medical records did Dr. Whitehouse find any indication that Kaeding himself related a history of asbestosis.

¶48 The majority thinks it is significant that Dr. Whitehouse reported radiological findings consistent with asbestosis to Kaeding’s attorney in 1992, and concludes that at least that information should have caused a reasonable person to inquire further about his health. However, even if it is assumed that that information was communicated to Kaeding (and he testified that it was not), he did have subsequent examinations, none of which confirmed cause for concern until his 1996 exam by Dr. Whitehouse. For example, on September 15, 1992, two weeks after Dr. Whitehouse’s letter, reports of radiology studies done at the VA hospital indicate that lung findings are suggestive of old tuberculosis and that there is no evidence of active pulmonary disease or cardiac failure. A February 9,1993, discharge summary from the same hospital indicated that Kaeding’s lungs were clear; and an April 1, 1993, report from the same hospital indicated that Kaeding had old tuberculosis and bilateral empyema, but made no mention of asbestosis. Finally, on January 19,1995, a radiology report from the VA hospital described Kaeding’s condition as “old inactive fibroid type of tuberculosis.”

¶49 Dr. Whitehouse testified that the vast majority of Kaeding’s x-ray film interpretations from 1973 to 1995 were incorrect. He further testified that in his experience, patients virtually never see their medical records. The only time his patient records have been requested is when someone sues him. He estimated that one-half of one percent of patients ever review their own medical records, regardless of who their health care provider is, and he saw no indication from any of Kaeding’s records that he had ever been informed that he had asbestosis before 1996; nor did he see any indication from the records that a proper diagnosis of asbestosis had ever been made before 1996. He explained that it is not unusual for health care providers who do not specialize in lung disease to miss a diagnosis of asbestosis, and explained that even radiologists miss the signs for the condition more than half the time. He also explained that his 1992 observation of signs consistent with asbestosis is entirely different than a diagnosis of asbestosis.

¶50 In light of Kaeding’s prolonged and complicated health history, the frequently incorrect information with which he was provided, and the contradictory findings that pervaded his medical records, it is impossible to conclude, as the majority does, that as a matter of law Kaeding knew or should have known before 1996 that he had asbestosis.

¶51 The majority suggests that this case is distinguishable from Hando v. PPG Industries, Inc. (1989), 236 Mont. 493, 771 P.2d 956, because in that case the plaintiff had not received medical information confirming her condition or its relation to her employment prior to 1984. To make that distinction, the majority has to assume that Kaeding’s condition was communicated to him prior to 1996. However, that assumption is contrary to both Kaeding’s direct testimony and Dr. Whitehouse’s conclusion from his review of Kaeding’s records. It was not the function of the District Court, and it is not the function of this Court to make those assumptions in deciding a motion for summary judgment. If anything, our decision in Hando and the uncontroverted testimony in this case would support summary judgment for Kaeding.

¶52 The majority opinion makes reference to entries in Kaeding’s medical records which suggest “the possibility of asbestosis,” signs “compatible with asbestosis,” and problems attributable “at least in part to asbestosis.” However, what the majority fails to point out is that subsequent to each of these entries, Kaeding was again examined with contradictory findings, such as “scarring from old TB,” “emphysema from history of smoking and working at W.R. Grace,” “old empyema,” and respiratory problems “secondary to smoking and pneumonia.” What difference does it make if medical records include reference to asbestosis (even assuming it had been communicated to him in spite of his direct testimony that it had not) when follow-up exams suggested something to the contrary?

¶53 The majority also observes that while Kaeding received no technical diagnosis of asbestosis, several doctors were of the opinion prior to 1994 that his problems were attributable, in part, to asbestosis. Apparently, the majority feels more qualified to draw those conclusions from a review of Kaeding’s medical records than was Dr. Whitehouse, who is the only physician to testify in this case and who testified that Kaeding’s medical records include no diagnosis of asbestosis prior to his, which was made in 1996.

¶54 Finally, the majority concludes that it is significant that in 1992 Dr. Whitehouse reported x-ray findings consistent with asbestosis. However, as pointed out, the majority totally ignores the fact that on at least four occasions subsequent to that report, Kaeding was examined again by health care providers who concluded that his chest exams were normal or that any abnormalities were attributable to conditions other than asbestosis.

¶5 5 The question in this case is when Kaeding knew, or by the exercise of reasonable diligence should have known, that he had a disabling condition known as asbestosis caused by his employment with W.R. Grace & Co. Based on Kaeding’s direct testimony, and the only medical testimony offered in this case, he did not know that fact until 1996. Furthermore, based on any reasonable inference from the inconsistent and contradictory findings in his medical records, it was reasonable for him to believe prior to 1996 that any symptoms he was experiencing or any abnormal finding from his x-ray films were attributable to something other than asbestosis. At best, there was contradictory evidence which it is the function of a jury, not this Court or the District Court, to resolve.

¶56 Summary judgment on a factual issue is an extreme remedy which should be reserved for those situations where the facts are not in dispute. No fair review of the record in this case could lead to that conclusion.

¶57 For these reasons I dissent from the majority opinion. I would reverse the judgment of the District Court and remand to the District Court for a trial to determine whether Donald Kaeding’s claim against W.R. Grace & Co. was barred by the statute of limitations.

JUSTICE HUNT joins in the foregoing dissenting opinion.


author: JUSTICE NELSON

text:
    JAMES D. THOMPSON, JULIA R. THOMPSON, and CUSTER BATTLEFIELD TRADING COMPANY, a Montana corporation, Plaintiffs/Respondents, v. CROW TRIBE OF INDIANS, DENIS ADAMS, Tax Commissioner of the Crow Tribal Tax Commission, TYRONE TEN BEAR, Chairman of the Crow Tribal Tax Commission, and the CROW TRIBAL TAX COMMISSION, Defendants/Appellants.
    No. 98-111.
    Submitted on Briefs June 18, 1998.
    Rehearing Denied July 29, 1998.
    Decided June 25, 1998.
    1998 MT 161.
    55 St.Rep. 647.
    962 P.2d 577.
    289 Mont. 358.

      See C.J.S. Indians § 130.

      For Appellant: Dale T. White, Fredericks, Pelcyger, Hester & White, Louisville, Colorado; Majel Russell, Crow Tribal Legal Department, Billings.
    For Respondent: Jay F. Lansing, Moses Law Firm, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 This is an appeal from the District Court’s Order and Memorandum filed January 13,1998, in the Thirteenth Judicial District Court, Big Horn County, granting summary judgment to Respondents (hereinafter collectively referred to as Thompsons); denying summary judgment to Appellants (hereinafter collectively referred to as the Tribe); and voiding three Tribal tax liens. Also raised on appeal is the trial court’s denial of the Tribe’s motion to dismiss based on, among other grounds, the Tribe’s sovereign immunity from suit. We reverse and remand for entry of an order of dismissal consistent with this opinion.

Background

¶2 Thompsons brought this action against the Tribe in state district court seeking to cancel resort tax liens imposed by the Tribe on the gross receipts of Thompsons’ business, Custer Battlefield Trading Company. While Thompsons are not members of the Crow Tribe, their business is located and conducted within the exterior boundaries of the Crow Indian Reservation and within Big Horn County. The resort tax was adopted by the Crow Tribal Council, was approved by the Area Director of the Bureau of Indian Affairs and is imposed on the consumers of the goods and services provided by Thompsons’ business. The Crow Tribal Taxation Code (CTTC) authorizes and directs the various Tribal officials to administer and enforce collection of the tax. Thompsons are required under the CTTC to collect the tax on behalf of the Tribe and to remit tax payments to the Tribe along with reporting forms.

¶3 Asa result of Thompsons’ alleged failure to comply with these requirements, the Tribe, under other provisions of the CTTC, filed with the Big Horn County Clerk and Recorder three liens against Thompsons’ business property for in excess of $200,000 in taxes claimed by the Tribe. The three liens, filed April 25, 1996, July 25, 1996, and September 23, 1997, are the subject of litigation in Crow Tribal Court.

¶4 Thompsons filed their action underlying this appeal in state district court on September 12,1996, seeking to void and to cancel of record the tax liens. An initial motion to dismiss based on lack of subject matter jurisdiction and sovereign immunity filed by the Tribe was denied by the trial court. Thereafter, the Tribe answered and, ultimately, the court disposed of the case and voided the Tribe’s tax liens on cross motions for summary judgment. This appeal followed.

Issues

¶5 The Tribe raises three issues on appeal.

¶6 1. Whether the Tribe and its officials have waived immunity from being sued by Thompsons in state district court?

¶7 2. Whether the state district court possessed subject matter jurisdiction over Thompsons’ cause of action?

¶8 3. Whether the Tribe’s tax liens may be voided and canceled under the provisions of § 27-1-433, MCA?

¶9 We will address Issue 1. Because this issue is dispositive, we will not address Issues 2 or 3.

Standard of Review

¶10 Where there are no genuine issues of material fact in dispute, we simply review, de novo, the district court’s grant and denial of the parties’ cross motions for summary judgment to determine whether the court’s decision was correct as a matter of law. Rule 56(c), M.R.Civ.P.; Seypar, Inc. v. Water and Sewer Dist. No. 363, 1998 MT 149, ¶ 21, [289 Mont. 263, ¶ 21,] 960 P.2d 311, ¶ 21 (citations omitted). Similarly, a court’s determination of a motion to dismiss based on a claim of sovereign immunity is a legal question over which our review is plenary. See Wippert v. Blackfeet Tribe (1993), 260 Mont. 93, 859 P.2d 420.

Discussion

¶ 11 Before proceeding with our discussion of the merits of the sovereign immunity issue, we must first address Thompsons’ argument that the Tribe did not properly preserve this issue for appeal. Thompsons contend that this Court has no jurisdiction to decide this cause because the Tribe appealed only the trial court’s denial of its cross motion for summary judgment (which did not address sovereign immunity) and did not appeal the court’s prior denial of its motion to dismiss (which was premised on, among other things, the Tribe’s immunity from suit). We conclude that Thompsons’ argument is without merit.

¶12 Sovereign immunity is in the nature of a jurisdictional defense which may be considered by a court on its own motion or at the behest of a party. It is well-settled that defenses that go to a court’s jurisdiction may be raised at any time by the parties or by the court, sua sponte. Westlands Water Dist. v. Firebaugh Canal (9th Cir. 1993), 10 F.3d 667, 673; Wippert, 260 Mont. at 102, 859 P.2d at 425; Larrivee v. Morigeau (1979), 184 Mont. 187, 191-92, 602 P.2d 563, 565-66; and Rule 12(h)(3), M.R.Civ.P. Jurisdictional defenses implicate the fundamental power and authority of the court to determine and hear an issue and, thus, transcend procedural considerations. Once a court determines that it lacks jurisdiction, then it can take no further action in the case other than to dismiss it. Wippert, 260 Mont. at 102, 859 P.2d at 425 (citations omitted).

¶13 Despite that the Tribe’s notice of appeal did not refer to the District Court’s denial of its motion to dismiss, the sovereign immunity issue was not only raised in the trial court and determined there, but this issue has also been raised and briefed on appeal. Accordingly, this question having been raised and being purely one of law, it is not only proper, but necessary, that we address and resolve it.

¶ 14 Turning, then, to the merits of this issue, the District Court rejected the Tribe’s claim of sovereign immunity on the basis that the Tribe’s conduct was either “outside the scope of the Tribe’s sovereignty” or “beyond their authority.” Specifically, the court ruled that in filing its liens directly in the office of the county clerk and recorder, the Tribe engaged in conduct not authorized by Montana law. The case law, however, dictates our holding that the trial court erred in its rejection of the Tribe’s sovereign immunity defense.

¶15 In Anderson v. Engelke, 1998 MT 24, [287 Mont. 283], 954 P.2d 1106, we quoted Wilson v. Marchington (9th Cir. 1997), 127 F.3d 805, 813, which, in turn, quoted Oliphant v. Suquamish Indian Tribe (1978), 435 U.S. 191, 206, 98 S.Ct. 1011, 1020, 55 L.Ed.2d 209, for the proposition that “Indian law is uniquely federal in nature, having been drawn from the Constitution, treaties, legislation and an ‘intricate web of judicially made Indian law.’ ” Anderson, ¶ 15. One such doctrine of Indian law firmly rooted in the federal jurisprudence is that, with few exceptions, Indian tribes retain sovereign immunity from suit in state courts. Subsequent to the completion of briefing in the case subjudice, the United States Supreme Court handed down another decision reaffirming its commitment to this legal principle.

¶16 In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. (1998), _ U.S. _, 118 S.Ct. 1700, 140 L.Ed.2d 981, the non-Indian respondent corporation sued the Kiowa Tribe (Kiowa) in Oklahoma state court to obtain judgment on an unpaid promissory note executed by the Kiowa in favor of the corporation. While there was some dispute in the facts, it appears that the various courts accepted the respondent corporation’s position that the note was executed and delivered off the reservation and that payments were to be made by the Kiowa off the reservation. The Kiowa moved to dismiss based on lack of subject matter jurisdiction, relying in part on its sovereign immunity from suit. The state appellate court affirmed the trial court in ruling that the Kiowa were subject to suit in state court for breaches of contract involving off-reservation commercial conduct. The United States Supreme Court granted certiorari. Kiowa Tribe, 118 S.Ct. at 1702.

¶ 17 In reversing Oklahoma’s courts, the Supreme Court reaffirmed its prior decisions holding that, as a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or where the tribe has waived sovereign immunity. In so ruling, the Court specifically rejected the respondent corporation’s request that tribal immunity from suit be confined to transactions on the reservation and to tribal governmental activities. Kiowa Tribe, 118 S.Ct. at 1702-03 (citations omitted).

¶18 Specifically, the Court noted that its prior cases which sustained tribal immunity from suit had neither drawn distinctions based upon where the tribal activities occurred nor based upon distinctions between governmental activity versus commercial activity. While acknowledging that state substantive law may regulate tribal activities outside the reservation, the Court, nonetheless, noted that this “is not to say that a tribe no longer enjoys immunity from suit... [tjhere is a difference between the right to demand compliance with state laws and the means available to enforce them.’’ Kiowa Tribe, 118 S.Ct. at 1703 (citations omitted).

¶19 Moreover, the Supreme Court observed that since Indian tribes were not participants in the Constitutional Convention and were “thus not parties to the ‘mutuality of... concession’ that ’makes the State's’ surrender of immunity from suit by sister States plausible!,]’ ” tribal sovereign immunity from suit is not coextensive with state sovereign immunity and is not subject to diminution by the states. Kiowa Tribe, 118 S.Ct. at 1703 (citations omitted).

¶20 We conclude that Kiowa Tribe, and the precedent cited therein, controls the disposition of the sovereign immunity issue in the case at bar. First, we are not cited to any federal authority whereby Congress has extinguished tribal sovereign immunity from suit on the basis that the Tribe filed tribal tax liens off-reservation with a county recording officer. Second, there is nothing in the record of this case that would lead us to the conclusion that the Tribe waived its defense of sovereign immunity by engaging in this conduct. In point of fact, while an Indian tribe may waive sovereign immunity, an expression of waiver must be unequivocal; waiver will not be implied. Santa Clara Pueblo v. Martinez (1978), 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106. No such unequivocal expression of waiver of sovereign immunity is demonstrated here, even remotely. Third, the fact that the Tribe’s action in filing its tax liens occurred off-reservation is of no consequence as regards its defense of sovereign immunity from suit. Kiowa Tribe, 118 S.Ct. at 1703. Finally, whether the Tribe’s conduct was authorized by Montana law, as it contends, or unauthorized, as Thompsons argue and as the trial court ruled, is immaterial in the context of the Tribe’s sovereign immunity defense. As the Supreme Court observed in Kiowa Tribe, “[t]here is a difference between the right to demand compliance with state laws and the means available to enforce them.” Kiowa Tribe, 118 S.Ct. at 1703. Simply put, the Tribe’s immunity from suit having not been congressionally abrogated nor unequivocally waived, the Tribe is immune from suit in state court and the District Court was without jurisdiction to entertain Thompsons’ cause of action much less rule on the merits of their claims.

¶21 In reaching this conclusion, and in relying on Kiowa Tribe as the United States Supreme Court’s most recent decision on the doctrine of tribal sovereign immunity, it nevertheless bears noting that our own jurisprudence is in accord. In Wippert, we held that sovereign immunity barred a declaratory judgment action in state court against the Blackfeet Tribe by ranchers who borrowed money from this tribe. Wippert, 260 Mont. at 108, 859 P.2d at 429. Citing federal precedent, this Court, as did the Supreme Court in Kiowa Tribe, acknowledged that “[w]ithout tribal consent or congressional authorization, an Indian tribe is exempt from suit... [and that]... [a] tribe may consent to suit only by an unequivocally express waiver of its sovereign immunity.” Wippert, 260 Mont. at 104, 859 P.2d at 426. Accordingly, the legal principles set out in Kiowa Tribe are in no way a departure from the already-established law and precedent of this Court.

¶22 Nonetheless, Thompsons also argue that even if the Tribe is immune from suit, the Tribal officials named as defendants in their cause of action are not. Thompsons cite Puyallup Tribe v. Washington Game Dep’t (1977), 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667, and Imperial Granite Co. v. Pala Band of Indians (9th Cir 1991), 940 F.2d 1269, for the proposition that individual tribal officials may not share in the tribe’s sovereign immunity from suit when such officials act beyond their authority. We do not read Puyallup as supporting this argument, however. Puyallup simply held that tribal sovereign immunity did not protect individual tribal members from state court process in connection with fishing activities conducted by such members off the reservation. Puyallup, 433 U.S. at 171-73, 97 S.Ct. at 2620-21. The Court did not address the fundamentally different issue of the applicability of tribal sovereign immunity to persons acting as officials or agents of the tribe in their conduct of the tribe’s business off the reservation.

¶23 As to Imperial Granite, the court did agree that tribal officials may lose their entitlement to the immunity of the sovereign when acting beyond their authority. Imperial Granite, 940 F.2d at 1271. Nonetheless, while this rule may apply when tribal officials exceed the scope of their representational capacity or delegated authority, the rule is different where a governmental employee commits a mistake that is arguably a mistake of fact or law when acting as the government’s agent. United States v. Yakima Tribal Court (9th Cir. 1986), 806 F.2d 853, 859 (citations omitted). “Official action is still action of the sovereign, even if it is wrong, if it ‘do[es] not conflict with the terms of [the officer’s] valid statutory authority....’ ’’ Yakima Tribe, 806 F.2d at 860 (quoting Larson v. Domestic & Foreign Commerce Corp. (1949), 337 U.S. 682, 695, 69 S.Ct. 1457, 1464, 93 L.Ed. 1628). Moreover, a governmental official’s scope of authority “turns on whether the government official was empowered to do what he did; i.e., whether, even if he acted erroneously, it was within the scope of his delegated power.” Yakima Tribe, 806 F.2d at 860 (quoting Pennhurst State School & Hospital v. Halderman (1984), 465 U.S. 89, 112 n.22, 104 S.Ct. 900, 914, n.22, 79 L.Ed.2d 67). Accordingly, when tribal officials act in their official capacity and within the scope of their authority they are immune, Imperial Granite, 940 F.2d at 1271 (citations omitted), even if they act in error, Yakima Tribe, 806 F.2d. at 860.

¶24 Here (and without deciding that the Tribal officials were or were not committing a mistake of fact or law or that they were or were not acting in error) there is nothing in the record that leads to a conclusion that the Tribal officials were acting outside their official capacities or that they were acting beyond the scope of their official duties and in excess of their powers under the CTTC. Again, in the context of tribal sovereign immunity, the issue is not whether Montana law permits or prohibits the filing of tribal tax liens directly with the county recording official, but rather whether the Tribe’s officials were acting within the scope of their representational or delegated authority as agents of the Tribe in filing the Tribe’s tax liens in accordance with Tribal law. Since they were acting in that capacity in this case, the Tribe’s sovereign immunity insulates the Tribal officials from suit in state court to the same extent that the Tribe itself is immune.

¶25 Finally, without citation of authority, Thompsons suggest that since they were not seeking monetary damages in their suit against the Tribe, but were simply requesting cancellation of the Tribe’s tax liens, sovereign immunity should not apply. We are unaware of any legal basis for this argument. Indeed, Kiowa Tribe, would appear to reject any such distinction in the same manner that the Supreme Court rejected distinctions based on off-reservation versus on-reservation conduct and based on governmental versus commercial activity. Moreover, in Wippert, we applied the doctrine of sovereign immunity in a case in which there was no money damage claim against the Blackfeet Tribe. Accordingly, we reject this argument, as well.

¶26 In summary, the doctrine of tribal sovereign immunity from suit bars Thompsons’ state court action against the Tribe and against the Tribal officials in this case. The District Court was without jurisdiction to entertain Thompsons’ cause of action or to rule on the merits of their claims. The court should have taken no action other than to dismiss Thompsons’ complaint and first amended complaint. Wippert, 260 Mont. at 102, 859 P.2d at 425. We hold that the court erred as a matter of law in failing to do so.

¶27 Reversed and remanded for entry of an order of dismissal consistent with this opinion.

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


author: JUSTICE TRIEWEILER JUSTICE LEAPHART,

text:
    THOMAS ALAN PARK, Petitioner, v. MONTANA SIXTH JUDICIAL DISTRICT COURT, PARK COUNTY; HON. WM. NELS SWANDAL, Presiding Judge; and STATE OF MONTANA, Respondents.
    No. 97-516.
    Heard April 3, 1998.
    Submitted April 14, 1998.
    Decided June 25, 1998.
    1998 MT 164.
    55 St.Rep. 657.
    961 P.2d 1267.
    289 Mont. 367.

      See C.J.S. Mental Health § 549.

      For Petitioner: Daniel P. Buckley; Berg, Lilly, Andriolo and Tollefsen; Bozeman; and Herman A. Watson III and Anne H. Watson (argued); Watson Law Offices; Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Carol Schmidt (argued), Assistant Attorney General; Helena; Tara DePuy, Park County Attorney; Livingston.
    For Amici Curiae: John P. Connor, Jr. (argued), Assistant Attorney General, County Prosecutor Services Bureau Chief; Helena (for Montana County Attorneys’ Association); William F. Koeppen; Koeppen Law Office; Bozeman (for Montana Association of Criminal Defense Lawyers); Gary E. Wilcox and L. Sanford Selvey II; Yellowstone County Public Defender’s Office; Billings (for Yellowstone County Public Defender’s Office).
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 The defendant, Thomas Alan Park, was charged in the District Court for the Sixth Judicial District in Park County with deliberate homicide and forgery. After he identified mental health care providers who would testify on his behalf, the District Court ordered Park to submit to a psychological examination by the State’s expert. Park objected and applied to this Court for a writ of supervisory control. We assume supervisory control, affirm in part and reverse in part the order of the District Court, and remand this case to the District Court for proceedings consistent with this opinion.

¶2 There are three issues before this Court:

¶3 1. Is supervisory control appropriate in this case?

¶4 2. Is the State entitled to a psychological examination of a defendant by its own expert for the purpose of rebuttal when the defendant has asserted the affirmative defense of mitigated deliberate homicide due to extreme mental or emotional stress?

¶5 3. If the answer to the preceding question is in the affirmative, to what extent must the defendant answer questions regarding acts of which he is accused?

FACTUAL BACKGROUND

¶6 On July 15,1996, Thomas Alan Park was charged in the District Court for the Sixth Judicial District in Park County with deliberate homicide and forgery. On August 27,1996, the State filed its notice of intent to seek the death penalty in the event that Park is convicted.

¶7 On July 8,1997, Park filed his notice of affirmative defenses. He asserted that he “acted under the influence of extreme mental or emotional stress for which there was a reasonable explanation or excuse,” and that he “acted with justifiable use of force.” Park submitted a list of potential witnesses who would testify in support of the defenses, including Susan Sachsenmaier, Ph.D., a forensic psychologist, and Dr. Joseph Rich, a psychiatrist. In response to Park’s notice of intent to use expert psychological testimony, the State requested an examination of Park by William Stratford, M.D. Park’s attorney originally agreed to Dr. Stratford’s examination.

¶8 However, on two separate occasions, when Dr. Stratford attempted to evaluate Park, Park refused to cooperate. He stated that he would only fill out the written testing material that Dr. Stratford provided. Based in part on Park’s refusal to cooperate, the State moved for sanctions and an order to prohibit Park from introducing any evidence, including expert testimony, regarding the extreme mental or emotional stress defense. After a hearing at which Dr. Stratford testified about his need to interview Park, the District Court renewed its order and allowed the examination of Park. In addition, the order was amended to permit Dr. Stratford to question Park regarding the acts of which he was accused. The District Court then stayed the order and allowed Park to submit a brief in opposition to the examination.

¶9 In his brief, Park withdrew his attorney’s earlier consent to allow Dr. Stratford’s examination. Park contended that the State was not entitled to an examination because his defense was not based on a mental disease or defect and, therefore, was not the type for which a state examination is statutorily provided. In addition, Park challenged that part of the District Court’s order which compelled Park to discuss with Dr. Stratford facts related to the charges against him on the bases that such inquiry was not authorized by statute and violated his rights provided for by the Fifth Amendment to the United States Constitution, and Article II, Section 25, of the Montana Constitution.

¶ 10 After another hearing, the District Court issued an order which required Park to submit to the State’s examination and answer questions about events related to the charges against him or suffer the sanction of having his own expert testimony excluded. The District Court explained that Park, by voluntarily raising the affirmative defense of mitigated deliberate homicide based on extreme mental or emotional stress, had waived the right to remain silent about the acts with which he was charged. It found that in order for Dr. Stratford to be able to discuss at trial Park’s mental state at the time of the alleged offense, he needed to examine Park regarding the alleged offense. Finally, the order restricted the State’s experts from disclosing to the State any incriminating statements made by Park during their examination, and stated that the experts could only testify regarding their conclusions in rebuttal to Park’s expert testimony.

¶11 On September 4, 1997, the District Court conducted another hearing at which the record was supplemented with Sachsenmaier’s testimony in anticipation of Park’s application to this Court for a writ of supervisory control. She testified that her diagnosis of Park was that he was under extreme mental or emotional stress at the time of the alleged offense, and that it would not be necessary to interview the defendant in order to evaluate his mental status. The District Court’s order was not modified following that hearing, and Park’s petition followed.

ISSUE 1

¶12 Is supervisory control appropriate in this case?

¶13 We held in Plumb v. Fourth Judicial District Court (1996), 279 Mont. 363, 368-69, 927 P.2d 1011, 1014-15, that we will assume supervisory control over a district court to control the course of litigation where the district court is proceeding based on a mistake of law which, if uncorrected, would cause significant injustice, and where the remedy by appeal is inadequate. Our determination of whether supervisory control is appropriate is a case-by-case decision, based on the presence of extraordinary circumstances and a particular need to prevent an injustice from occurring. See State ex rel. Mazurek v. District Court (1996), 277 Mont. 349, 352-53, 922 P.2d 474, 476-77.

¶14 In this case, the District Court’s order implicates Park’s constitutional right not to be a witness against himself. Once violated, the damage cannot be undone on appeal.

¶15 It is well-recognized that a normal appeal is generally inadequate when a party’s constitutional or statutory privilege is at stake. See State ex rel. Mapes v. District Court (1991), 250 Mont. 524, 529, 822 P.2d 91, 94; State ex rel. Burlington N. R.R. Co. v. District Court (1989), 239 Mont. 207, 212, 779 P.2d 885, 889; see also Emergency Care Dynamics, Ltd. v. Superior Court (Ariz. Ct. App. 1997), 932 P.2d 297; Arizona Bd. of Med. Examiners v. Superior Court (Ariz. Ct. App. 1996), 922 P.2d 924; City of Fresno v. Superior Court (Cal. Ct. App. 1988), 253 Cal. Rptr. 296; State ex rel. Stephan v. O’Keefe (Kan. 1984), 686 P.2d 171; City of Alhambra v. Superior Court (Cal. Ct. App. 1980), 168 Cal. Rptr. 49; Glade v. Superior Court (Cal. Ct. App. 1978), 143 Cal. Rptr. 119. In Mapes, for example, this Court granted supervisory control to address a defendant’s right of access to confidential communications between the plaintiff and his psychologist. We held that “[o]nce confidential communications have been disclosed or publicized, the damage cannot be undone on appeal.” Mapes, 250 Mont. at 529, 822 P.2d at 94.

¶16 The same principle applies in this case, where the District Court’s order has the effect of compelling Park to disclose potentially privileged testimony. As soon as Park has been made to disclose that which his constitutional privilege may allow him to withhold, the constitutional protection can serve no purpose, certainly not a retroactive one, and an appeal cannot restore that which has already been violated.

¶ 17 Furthermore, the State’s right to its own examination of the defendant under the circumstances presented is a strictly legal issue of statewide importance which is presented for the first time.

¶18 Accordingly, we assume supervisory control to consider the issues raised by Park’s petition.

ISSUE 2

¶19 Is the State entitled to a psychological examination of a defendant by its own expert for the purpose of rebuttal when the defendant has asserted the affirm ative defense of mitigated deliberate homicide due to extreme mental or emotional stress?

¶20 Park contends that the State is not entitled to a psychological examination by its own expert. He claims that the circumstances in this case are not covered by the language of §§ 46-14-204 and -205, MCA, because he does not claim a mental disease or defect, and that State v. Hess (1992), 252 Mont. 205, 828 P.2d 382, is inapplicable because it was based on the justifiable use of force defense.

¶21 Section 46-14-204,MCA, states that “[w]henthe defense... files a notice of the intention to rely on a defense of mental disease or defect, the prosecution is entitled to have the defendant examined by a qualified psychiatrist or licensed clinical psychologist.” Section 46-14-205, MCA, states:

If either the defendant or the prosecution wishes the defendant to be examined by a qualified psychiatrist or licensed clinical psychologist selected by the one proposing the examination in order to determine the defendant’s fitness to proceed or whether the defendant had, at the time the offense was committed, a particular state of mind that is an essential element of the offense, the examiner shall be permitted to have reasonable access to the defendant for the purpose of the examination.

Hess is the only case in which we have interpreted the State’s right to evaluate a defendant pursuant to these statutes.

¶22 The defendant in Hess raised the affirmative defense of justifiable use of force based on battered woman syndrome in response to the charge of deliberate homicide. She offered notice of her intent to be examined by and to call a psychiatric expert on battered woman syndrome. In response, the State gave notice of intent to have two of its own experts on battered woman syndrome rebut the defendant’s expert testimony, and received an order from the District Court that required the defendant to submit to an examination by the State’s experts. After her conviction for mitigated deliberate homicide, the defendant appealed to this Court and asserted, among other things, that she had not raised a mental disease or defect defense, and that the statute does not authorize an examination by the State for a justified use of force defense based on battered woman syndrome. Accordingly, she contended that the district court had no authority to order the State’s examination.

¶23 We rejected the defendant’s position and held that the statute, § 46-14-212, MCA (1989) (renumbered § 46-14-205, MCA (1991)), “authorizes the State to request a mental evaluation once the defendant’s mental state is at issue.” Hess, 252 Mont. at 213, 828 P.2d at 388. Furthermore, we held that the defendant’s reliance on the defense of justifiable use of force based on battered woman syndrome and her reliance on expert psychological testimony to support her defense put her mental state at issue. Therefore, we concluded that the district court had authority to order the examination despite the lack of a specific reference in the statute to the defense of justifiable use of force based on battered woman syndrome. See Hess, 252 Mont. at 213, 828 P.2d at 388. In other words, we held that the statute permits the State to evaluate a defendant whenever he or she has raised mental state as an issue and notified the State of an intention to introduce expert opinion testimony regarding that issue.

¶24 We conclude that based on the Hess decision, the State is also entitled to its own examination in this case.

¶25 Section 45-5-103(1), MCA, defines mitigated deliberate homicide as follows:

A person commits the offense of mitigated deliberate homicide when the person purposely or knowingly causes the death of another human being but does so under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse. The reasonableness of the explanation or excuse must be determined from the viewpoint of a reasonable person in the actor’s situation.

¶26 Mitigated deliberate homicide is an affirmative defense which clearly depends on proof of Park’s mental state at the time of the acts alleged, and he has notified the State that he intends to prove his mental condition through use of expert psychological or psychiatric testimony. Fairness requires no less than that the State be allowed the opportunity to meet and test that proof.

¶27 However, we do not here hold that the State is entitled to examine the defendant in every case in which mitigated deliberate homicide is raised — only in those cases where a defendant expresses an intention to prove his mental condition with expert testimony.

¶28 Park has suggested that the State be allowed an examination only if and when Park actually offers psychological testimony at trial. He contends that his notice of intent to make the affirmative defense of mitigated deliberate homicide based on extreme mental or emotional stress and to present expert psychological testimony in support of the defense does not bind him to the defense, and that if he opts not to present psychological evidence at trial, he will have been forced to offer privileged evidence to the State which could be used to incriminate him regardless of the nature of his defense.

¶29 We note first that the State’s right to a psychological examination exists for the limited purpose of rebuttal, and as the District Court did here, the order for an examination can be narrowly tailored and place restrictions on the State’s use of its expert’s examination. Second, Park’s concerns about incriminating himself during parts of his examination are addressed in the next part of this opinion. Finally, the statute relates the State’s right to an examination to the defendant’s notice of his defense and does not make it contingent upon the actual presentation of expert psychological testimony at trial. To postpone the State’s examination until mid-trial would delay the District Court proceedings and deprive the State of an adequate opportunity to prepare its rebuttal. Accordingly, we conclude there is no basis to postpone the State’s evaluation until Park actually presents his defense.

¶30 Accordingly, we affirm that part of the District Court’s order which required that Park submit to a psychological examination by the State’s expert.

ISSUE 3

¶31 If the answer to the preceding question is in the affirmative, to what extent must the defendant answer questions regarding acts of which he is accused?

¶32 In Hess, we considered the issue discussed in Issue 2 of this opinion. However, the order reviewed in that case stated in relevant part “[t]hat such evaluation shall be made subject to defendant’s constitutional and statutory rights not to make statements or produce documents that may incriminate her.” Hess, 252 Mont. at 212, 828 P.2d at 387. Therefore, Hess is not authority for that part of the District Court’s order which requires that Park discuss the day in question with the State’s expert. Park has challenged separately that aspect of the District Court’s order on state constitutional and Fifth Amendment grounds.

¶33 Article II, Section 25, of the Montana Constitution, and the Fifth Amendment of the United States Constitution, prohibit the State from compelling self-incriminating statements from a defendant. See also State v. Fuller (1996), 276 Mont. 155, 160, 915 P.2d 809, 812. The issue presented is whether a defendant may refuse to discuss with the State’s expert the events surrounding the charges against him on the basis that it would be self-incriminating and, if so, whether his refusal should limit the proof he might otherwise offer.

¶34 The State contends that the U.S. Supreme Court’s decision in Buchanan v. Kentucky (1987), 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336, stands for the proposition that a defendant who has raised his mental state as an issue waives his Fifth Amendment privilege for all purposes. We disagree. Buchanan relied, at least in part, on the facts that the expert testimony was requested by the defendant’s own attorney and did not describe “any statements by [the defendant] dealing with the crimes for which he was charged.” Buchanan, 483 U.S. at 423, 107 S. Ct. at 2918, 97 L. Ed. 2d at 356. Accordingly, Buchanan is distinguishable from this case, and does not support the State’s contention that a defendant waives entirely his right to remain silent when he raises his mental state as a defense and offers psychological testimony.

¶35 First and foremost, we recognize that if a defendant’s privilege not to incriminate himself is to have any force, it must mean that he can decide with whom and in what terms he discusses such potentially incriminating matters as the events surrounding the charges against him. Further, a defendant’s right to remain silent applies at all stages of a criminal proceeding. See Minnesota v. Murphy (1984), 465 U.S. 420, 426, 104 S. Ct. 1136, 1141-42, 79 L. Ed. 2d 409, 418; Fuller, 276 Mont, at 160, 915 P.2d at 812. Therefore, a defendant clearly carries the privilege with him into a psychological examination with the State’s expert. See, e.g., Estelle v. Smith (1981), 451 U.S. 454,101 S. Ct. 1866, 68 L. Ed. 2d 359.

¶36 The State implies throughout its argument that Park has waived his right to remain silent with his voluntary introduction of a mental status defense and his use of expert psychological testimony in support of that defense. It is well-established, however, that a defendant’s waiver of his constitutional rights must be made specifically, voluntarily, and knowingly, and we will not engage in presumptions of waiver. See Johnson v. Zerbst (1938), 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466; State v. Lucero (1968), 151 Mont. 531, 538, 445 P.2d 731, 735; see also State v. Okland (1997), 283 Mont. 10, 14-15, 941 P.2d 431, 433-34 (discussing the right to counsel); State v. Dawson (1988), 233 Mont. 345, 351-52, 761 P.2d 352, 356 (discussing the right to prohibit warrantless searches and seizures); Welsh v. City of Great Falls (1984), 212 Mont. 403, 411, 690 P.2d 406, 411 (discussing the due process right to a hearing); State v. Carlson (1982), 198 Mont. 113, 120-21, 644 P.2d 498, 502 (discussing the right to prohibit warrantless searches and seizures); State v. Blakney (1982), 197 Mont. 131, 134, 641 P.2d 1045, 1047-48 (discussing the right to counsel). The mere fact that a defendant wishes to introduce psychological testimony and therefore must cooperate during an examination so that the State has the opportunity to rebut his expert testimony is insufficient to constitute a complete waiver of his right to remain silent. Accordingly, we conclude that a defendant has a constitutional right to remain silent when asked by the State’s psychological expert about the events surrounding the alleged offense.

¶37 It does not follow, however, that a defendant’s right to remain silent when questioned by the State’s expert about the alleged offense should afford an opportunity to place unrebuttable testimony before the jury. See also Estelle, 451 U.S. at 465, 101 S. Ct. at 1874, 68 L. Ed. 2d at 370 (recognizing that despite a defendant’s Fifth Amendment protection, he can be required to submit to an examination by the State’s expert when he introduces psychiatric testimony and his silence would deprive the State of its only effective means of rebutting that testimony which he introduced).

¶38 We agree with the position of the County Attorneys’ Association, as expressed in its amicus brief to this Court, that if Park refuses to discuss the events related to the charges against him with the State’s expert, and then also exercises his right to remain silent at trial, his own expert should be not allowed to serve as a conduit for his version of events surrounding and related to the alleged offense by relating to the jury what Park told him or her. Such a situation would be analogous to a defendant taking the stand, but refusing to submit to cross-examination. We held in State v. Wilson (1981), 193 Mont. 318, 325, 631 P.2d 1273, 1277, that a defendant “could not take the stand to testify in her own behalf and also claim the [Fifth Amendment] right to be free from cross-examination on matters raised by her own testimony on direct examination.” The same principle applies here. A defendant cannot put before the jury his version of events through expert psychological testimony and refuse to answer questions from the State’s expert regarding those same events.

¶39 We further hold that if Park declines to discuss with the State’s expert the facts related to the crime with which he is charged, and then waives his right to remain silent by testifying at trial, the State’s expert should be allowed to listen to that part of his testimony which relates to those events, as well as the defense expert’s testimony about what he or she was told about those events, and respond where he or she deems it appropriate.

¶40 We affirm that part of the District Court’s order that compels Park to submit to an examination by the State’s expert. We reverse that part of the District Court’s order that compels Park to answer questions during the examination regarding the alleged offense, but hold that if he refuses to answer those inquiries by the State’s expert, and also remains silent at trial, he may not offer that evidence through his expert. We remand this case to the District Court for further proceedings consistent with this opinion.

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

JUSTICE LEAPHART,

specially concurring.

¶41 I concur in the opinion of the Court and write separately to elaborate on one particular point. The Court holds, and I agree that, “the State’s right to a psychological examination exists for the limited purpose of rebuttal, and as the District Court did here, the order for an examination can be narrowly tailored and place restrictions on the State’s use of its expert’s examination.”

¶42 The defendant in this case has raised the “defense” of mitigated deliberate homicide. That is, he contends that he acted under “extreme mental or emotional stress for which there is reasonable explanation or excuse.” Section 45-5-103(1), MCA. It is important to distinguish this defense from self-defense or justifiable use of force that was raised in State v. Hess (1992), 252 Mont. 205, 828 P.2d 382. Justifiable use of force, if proven, is a complete defense resulting in an acquittal. Extreme mental or emotional stress, on the other hand, results not in an acquittal, but in a conviction of the lesser offense of mitigated deliberate homicide. Thus, a defendant who raises mitigated deliberate homicide as a defense and who submits to an examination by a State psychologist is, in effect, convicting himself of a crime. Accordingly, the trial court can, and should, impose restrictions upon the State’s use of such evidence. However, independently of any restrictions imposed by the trial court, there are constitutional limitations that pertain under the Fifth Amendment to the United States Constitution and Article II, Section 25 of the Montana Constitution. As the Court points out, when the defendant proposes to prove the defense of extreme emotional stress through use of an expert, the State is entitled to have the defendant examined by its own expert so, in fairness, it will have an opportunity to rebut the defendant’s expert testimony. The fruits of the State’s examination can only be used to rebut the defendant’s defense. The State, having obtained the defendant’s testimony concerning mental stress, cannot, for example, drop the deliberate homicide charge and file new charges for mitigated deliberate homicide. Such use of the evidence would obviously be beyond what the defendant would reasonably be expected to anticipate and would offend the constitutional prohibitions against self-incrimination.