author: MR. JUSTICE McDONOUGH MR. JUSTICE SHEEHY,

text:
    WILLIAM KOPPEN and Kimberly Koppen, Individually; and William Koppen, as Personal Representative of the Estate of Cally Jane Koppen, Deceased; and Alan R. Buck and Susan K. Buck, Individually; and Alan R. Buck, as Personal Representative of the Estate of Melisa Sue Buck, Deceased, Plaintiffs and Appellants, v. BOARD OF MEDICAL EXAMINERS and State of Montana, Defendants and Respondents.
    No. 87-472.
    Submitted April 28, 1988.
    Decided Aug. 11, 1988.
    759 P.2d 173.

      Trieweiler Law Firm, Terry N. Trieweiler argued, Whitefish, for plaintiffs and appellants.
    Harrison, Loendorf & Poston, John Poston and Stephen McCue argued, John H. Maynard, Dept. of Admin., Helena, for defendants and respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Plaintiffs William and Kimberly Koppen (Koppens) and Alan and Susan Buck (Bucks) appeal from the order of the District Court of the Eleventh Judicial District, Flathead County, dismissing their complaint against defendants Board of Medical Examiners (Board) and State of Montana. We affirm.

The appellants present one issue on appeal:

“Does Section 2-9-112, M.C.A., which provides for judicial immunity, extend to executive agencies, such as the Montana Board of Medical Examiners, for negligent failure to perform their statutory duties?”

Plaintiffs Kimberly Koppen and Susan Buck both became pregnant during the summer of 1983 and contracted with Dr. David V. Kauffman for assistance with the delivery of their babies, expected during March of 1984. The baby born to the Koppens died after a short period of survival. The baby born to the Bucks died at the age of 8V2 months.

The Koppens and the Bucks filed suit against the Board and the State on February 18, 1987, alleging the Board was negligent in failing to limit or revoke Dr. Kaufman’s license to practice medicine, or otherwise prevent him from practicing obstetrics. According to the complaint, the Board had received complaints about Dr. Kaufman’s fitness to practice medicine but failed to respond to them. The complaint characterized this as a failure by the Board to discharge its duty under Section 37-3-202, MCA, to ensure that all physicians licensed in Montana maintain standards of conduct in the greatest public interest. The complaint alleged that because of the Board’s failure, Dr. Kauffman’s treatment was below the level of care and skill required of physicians in Montana, which caused avoidable complications in the two pregnancies and resulted in the deaths of both infants.

On April 1, 1987, the Board and the State filed a motion to dismiss based on the contention that the Board performs a quasi-judicial function, thereby entitling both defendants to absolute immunity from suit. The District Court granted the motion by its order of September 28, 1987, and thereafter entered judgment in favor of the Board and the State.

The rationale in the District Court’s Order began by quoting portions of Section 2-9-112, MCA:

“(1) The State and other governmental units are immune from suit for acts or omissions of the judiciary.

“(2) ...

“(3) The Judiciary includes those courts established in accordance with Article VII of the Constitution of the State of Montana.”

The court pointed out that the term “includes” in subparagraph 3 of the statute is not a “limiting term.” According to the court, if the legislature had wanted to limit the immunity, it could have drafted the provision to mean specifically only those courts established under Article VII. Because the word used was “includes,” the court determined that the legislature’s grant of immunity extended to administrative agencies exercising “quasi-judicial” authority.

The court cited Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d (1978), as stating the correct rationale for quasi-judicial immunity. In Butz, the U.S. Supreme Court began its analysis of quasi-judicial immunity by stating the rationale for judicial immunity:

“ [Controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus, [citation omitted.] Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.”

Butz, 98 S.Ct. at 2913. The court then examined the nature of administrative proceedings and the controversies involved, and concluded:

“We think that adjudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suits for damages.”

Butz, 98 S.Ct. at 2914. In this case, the District Court applied the rule in Butz to the Board, a state administrative agency, and concluded that the Board’s adjudicatory function would warrant quasi-judicial immunity, which the court found to be afforded by Section 2-9-112, MCA.

The appellants argue that the District Court’s reading of Section 2-9-112, MCA, is too liberal. Appellants’ brief outlines general rules of statutory construction stating that any statute in derogation of rights otherwise guaranteed by a constitution must be strictly construed. The right involved in this case, according to appellants, is the right to sue state government entities in tort, which they assert is conferred by Article II, Section 18 of the Montana Constitution:

“The state, counties, cities, towns, and all other local governmental entities, shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a % vote of each house of the legislature.”

Appellants argue that the grant of judicial immunity in Section 2-9-112, MCA, is in derogation of this right, and must therefore be construed strictly. The brief notes that the Board is an executive agency created pursuant to Article VI of the constitution rather than Article VII, which in appellants’ view places the Board outside the scope of the judicial immunity found in Section 2-9-112, MCA. The conclusion drawn from this by appellants is that they have the right to sue the Board and the State for negligence, and the District Court was in error when it dismissed their suit.

The decision of the District Court was rendered on a motion to dismiss. The judge sat without a jury, no testimony was taken and the facts are relatively uncontested. In cases such as this, our scope of review is much broader, and we are free to make our own examination of the entire case and make a determination in accordance with our findings. Shimsky v. Valley Credit Union (1984), 208 Mont. 186, 189-90, 676 P.2d 1308, 1310. However, we will affirm the result reached by the District Court if it is correct, even if the reasons given for that result are incorrect. Shimsky, 676 P.2d at 1310.

The District Court was correct in concluding that the Board is entitled to quasi-judicial immunity from suit. However, we do not need to read Section 2-9-112, MCA, as providing for quasi-judicial immunity. The Board’s quasi-judicial immunity is derived from the common law, which we hold to be controlling here.

Article II, Section 18 of the Montana Constitution abolished sovereign immunity in Montana. The Bill of Rights Committee of the 1972 Constitutional Convention stated in its Comments accompanying the proposed text of Section 18 that its purpose was to abolish “the archaic doctrine of sovereign immunity.” 2 Mt. Leg. Council, Montana Constitutional Convention, 1971-72, 637. In reporting Section 18 to the full convention for approval, Delegate Murray of the Bill of Rights Committee stated, “We feel that the doctrine of sovereign immunity, which we are attempting to do away with by this particular provision, really means that the king can do whatever he wants but he doesn’t have to pay for it; and we’d like to do away with that doctrine.” 5 Mt. Leg. Council, Montana Constitutional Convention, 1971-72, 1760. This Court duly recognized the demise of sovereign immunity when the question first came before us in Noll v. City of Bozeman (1975), 166 Mont. 504, 534 P.2d 880.

However, sovereign immunity is not at issue here. We are instead dealing with the doctrine of quasi-judicial immunity. As we have previously held, there were and are immunities separate and distinct from sovereign immunity, unaffected by the language of Article II, Section 18. As a particularly relevant example, in State ex rel. Dept. of Justice v. District Court (1977), 172 Mont. 88, 560 P.2d 1328, and more recently in Ronek v. Gallatin County (Mont. 1987), [227 Mont. 514,] 740 P.2d 1115, 44 St.Rep. 1275, this Court held that Article II, Section 18 did not abolish the common-law doctrine of prosecutorial immunity.

As with prosecutorial immunity, quasi-judicial immunity is not a subject of Montana statutory law. Section 1-1-108, MCA, provides where the law Is not declared by statute, the common law shall be the rule of a decision. The common law rule of quasi-judicial immunity was reviewed by the U.S. Supreme Court in the Butz decision, which in turn was cited by the District Court. The opinion in Butz squarely addressed the issue raised by appellants that executive officials or agencies are not judicial bodies and should not be immunized as such. Expanding on its statement quoted above that administrative adjudications have enough in common with judicial process to warrant immunity, the U.S. Supreme Court said,

“Judges have absolute immunity not because of their particular location within the Government but because of the special nature of their responsibilities. This point is underlined by the fact that prosecutors — themselves members of the Executive Branch — are also absolutely immune.

“We also believe that agency officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts. The decision to initiate administrative proceedings against an individual or corporation is very much like the prosecutor’s decision to initiate or move forward with a criminal prosecution.

“The discretion which executive officials exercise with respect to the initiation of administrative proceedings might be distorted if their immunity from damages arising from that decision was less than complete.”

Butz, 98 S.Ct. at 2913, 2915. The Butz court thus characterized quasi-judicial immunity as the logical descendant of prosecutorial immunity, which this Court recognized in Dept. of Justice and Ronek. Both are founded upon the nature of the functions carried out by agencies or officials. See Ronek, 740 P.2d at 1116.

The discretion vested in the Board to weigh the information relative to Dr. Kauffman rendered it a quasi-judicial body. This is also evident from the statutes dictating the procedures to be followed. The Board cannot revoke or suspend a license to practice medicine without giving notice and opportunity for hearing, a hearing at which the doctor concerned may be represented by counsel and offer evidence. Section 37-3-323, MCA. Such a hearing is governed by the Montana Administrative Procedure Act, and the decision reached is subject to judicial review. Sections 2-4-702 and 2-4-631, MCA. The task performed by the Board thus comes within the statutory definition of “quasi-judicial function” found at Section 2-15-102(10), MCA.

The action or inaction by the Board under attack in this case is its decision not to strip Dr. Kauffman of his license when faced with complaints concerning his professional conduct. The Board’s decision whether to initiate administrative proceedings against a doctor is analogous to a prosecutor’s decision whether to initiate court proceedings against an alleged criminal. We concur with the reasoning in Butz that the Board’s discretion might be distorted if it is not immune from suit for damages arising from such a decision. We hold, therefore, that in the exercise of its quasi-judicial authority, the Board is entitled to the absolute immunity afforded executive officials under the rule in the Butz decision. We also hold that the quasi-judicial immunity afforded the Board must encompass the State. The Board’s discretion would be equally subject to distortion by considerations of possible litigation against the State arising from its actions. See Ronek, 740 P.2d at 1116-17; Dept. of Justice, 560 P.2d at 1330.

The opinions in Ronek, Dept. of Justice and Butz stand for the proposition that entities called upon to function judicially should be immunized in order to facilitate the proper execution of their duties. However, the basis for these decisions, as discussed above, is the common law. We affirm the decision of the District Court.

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

MR. JUSTICE SHEEHY,

concurring in part and dissenting in part:

I concur with the result in this case. The complaint in this case should have been dismissed by the District Court, not for the reasons utilized by the District Court in assuming that quasi judicial functions of state boards were encompassed in statutory judicial immunity, but rather that the complaint fails to show that the unfortunate deaths and resulting damages to the plaintiffs were proximately caused by the State of Montana, through its Board of Medical Examiners.

The inaction of the Board of Examiners in failing to lift the license of Dr. Kauffman because of complaints made about him cannot be equated as a proximate cause with the direct acts of Dr. Kauffman in attending to the pregnant mothers, which, as the complaint alleges, were the proximate cause of their injuries. The theory of plaintiff’s counsel to establish liability on the part of the state has too many “ifs” — if the Board had initiated proceedings against the doctor to lift his license to practice medicine; if the subsequent hearing and proceedings against the doctor unqualifiedly showed his incompetence to practice; if the evidence generated under the complaints against him stood up to show such incompetence; if the proceedings against the doctor would withstand judicial review. In my view, proximate cause cannot be attenuated to that extent.

Thus, the District Court properly granted a motion to dismiss the complaint, but not upon the grounds utilized by the District Court — that of judicial immunity, but rather because of lack of proximate cause.

Nonetheless, I cannot agree with the majority of this Court that the state as an entity is free from liability here on some ground of official immunity applying to government agents. I eschew especially the notion that the discretion of the Board of Examiners would he “equally subject to distortion by consideration of possible litigation against the State arising from its actions.” That reason for immunity has been expressly waived by this state in its constitution and in its statutes.

The first factor to remember here is that the State of Montana in its governmental capacity is the defendant in this case, for acting through its governmental arm, the Board of Medical Examiners. The persons who are members of the Board are not defendants. No question is presented in this case that relates to the personal liability of the Board members who allegedly failed to act to lift Dr. Kauffman’s license. When there is no risk of personal liability for damages to the government officials involved, the reason for common law official liability evaporates. When the reason for a rule ceases, so should the rule itself. Section 1-3-201, MCA.

It is from the viewpoint of the personal liability of governmental agents that Butz v. Economou (1978), 438 U.S. 478, at 480, 98 S.Ct. 2894, at 2897, 57 L.Ed.2d 895, at 899, should be examined. The first sentence of that opinion begins:

“This case concerns the personal immunity of federal officials in the Executive Branch from claims for damages arising from their violations of citizens’ constitutional rights . . .”

The vicarious liability of the United States government for its agents was not involved in Butz. The federal government may not be sued to redress the wrongs of its agents unless the government has specifically waived it immunity from suit as for example, in the Federal Tort Claims Act, where it applies.

. Moreover, the majority draw more fulsomely on the opinion in Butz than the opinion itself warrants. In discussing the functions of agency officials analogous to those of a prosecutor in deciding whether to initiate administrative proceedings against an individual, the court saw little chance of personal liability arising out of inaction. The Butz opinion states:

“The discretion which executive officials exercise with respect to the initiation of administrative proceedings might be distorted if their immunity from damages arising from that decision was less than complete. (Citing authority.) While there is not likely to be anyone willing and legally able to seek damages from the officials if they do not authorize the administrative proceeding (referring to authority), there is serious danger that the decision to authorize proceedings will provoke a retaliatory response . . .” (Emphasis in original.)

438 U.S. at 515, 98 S.Ct. at 2915, 57 L.Ed.2d at 921-922.

The point is, however, that the Butz court was deciding the personal liability of the government agents involved. That is not true in this case where the state alone is the defendant.

The purpose of common law official immunity is to allow government officials to be

“Free to exercise their duties unembarrassed by the fear of damage suits in respect to acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous and effective administration of policies of government.”

Davis v. Knud-Hansen Memorial Hospital (3d Cir. 1980), 635 F.2d 179, 186, 203 n. 20 quoting from Ferri v. Ackerman (1979), 444 U.S. 193, 100 S.Ct. 402, 409, 62 L.Ed.2d 355, 363. The threat of personal liability was enough to lead Judge Learned Hand to come down in favor of official immunity in balancing between eliminating the constant dread of retaliation for their discretionary functions and the rights of the injured from dishonest official acts. Judge Hand said that unless immunity was granted, it would “dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” Gregoire v. Biddle (2th Cir. 1949), 177 F.2d 579, 581.

The State of Montana, through its 1972 Constitution, and by statutes enacted under its Constitution, has removed the reasons for common law immunity for state governmental agents. The public policy of Montana is that the state itself is subject to suit for the torts of its officials and employees. The statutes enacted by the legislature have immunized governmental agents from any personal liabilities for damages, including court costs and attorney fees, arising out of the governmental torts. The State Constitution provides in Article II, Section 18, as follows:

“State subject to suit. The state, counties, cities, towns and all local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a % vote of each house of the legislature.” (Emphasis added.)

The statutes of this state declare our public policy that public officers and employees such as the individual members of the Board of Medical Examiners shall be immunized, defended and indemnified when civilly sued for their actions taken within the course and scope of their employment. Section 2-9-305(1), MCA. The term “employee” means an officer or employee, an elected or appointed official and persons acting on behalf of a governmental entity in any official capacity. Section 2-9-101(2), MCA. When such government officials or employees are acting within the course and scope of their duties, they may require the state to defend a noncriminal action against them, may require indemnification for any money judgment or legal expenses, including attorney fees and costs, and any recovery against the governmental entity is a complete bar to any further action for recovery of damages by claimants against the officers or employees. Sections 2-9-305(2), -(3), -(4), and -(5), MCA.

Thus, under our constitutional and statutory scheme, the public policy of this state to remove all possibility of personal damages against governmental officials for their torts in office serves to eliminate the need for any application of common law official immunity in the case at bar. Apparently the plaintiffs recognize this, because they sue only the State of Montana and not the individual members of the Board of Examiners in their personal capacities. Thus, the liability of the state here should be decided on principles other than cases applying only to personal liability. Here, the state, by constitution and by statute, is not immune from suit. The state is liable to persons who suffer injuries proximately caused by state governmental torts as a matter of public policy and as a constitutional right.

It is, therefore, quite illogical for the majority to hold that the state is exempt from suit in this case because of the possibility that the Board’s discretion would be subject to distortion by considerations of possible litigation against the state arising from the actions of the Board of Medical Examiners. The state, without question, has accepted that risk in assuming liability, and in subjecting itself to suit.

State immunity from suit, arising from the alleged torts of its agents should not be an issue in this case at all. That issue is removed by the public policy of this state. The only question we should decide here is whether the complaint, on well-settled tort rules can survive a motion to dismiss. As I said earlier, proximate cause is missing.

MR. JUSTICE HUNT joins in the foregoing concurrence and dissent of MR. JUSTICE SHEEHY.


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. JUNE ENRIGHT, Defendant and Appellant.
    No. 87-559.
    Submitted on Briefs June 22, 1988.
    Decided Aug. 11, 1988.
    758 P.2d 779.

      James G. Hunt, Helena, for defendant and appellant.
    Mike Greely, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen., Helena, Marvin W. Quinlan, Jr., Co. Atty., Forsyth, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Following trial by jury in the District Court of the Sixteenth Judicial District, Rosebud County, Enright was convicted of aggravated assault, a felony. This appeal followed. We reverse.

The issues before the court are:

1. Was Enright denied effective assistance of counsel?

2. Did Enright voluntarily, knowingly and intelligently waive her right to counsel?

On July 21, 1986, following completion of her shift as a bartender, Enright remained in the Ashland bar as a patron. At approximately 10:30 p.m., Enright’s former stepdaughter, Georgia Wilson, and several other people congregated in the street outside the bar. A heated and vulgar exchange ensued shortly thereafter.

As the local county attorney had prohibited Wilson from entering the bar or standing on the sidewalk outside the bar as a result of prior conflicts, the Wilson group remained in the street hurling insults. However, Enright apparently became fed up with the harassment. Shouting “I’ll scare you,” Enright came out of the bar and fired a .38 caliber pistol in Wilson’s direction three times.

At approximately 11:30 p.m., two deputy sheriffs arrived on the scene. They were met by Evette Archambault, a member of the Wilson group, who informed them that Enright had fired shots at Wilson. Following a brief discussion with Enright, the deputies arrested Wilson on a theft warrant from Big Horn County and told the remainder of the Wilson group to leave the bar area. They then proceeded toward Colstrip with Wilson in custody.

Shortly after leaving Ashland, the deputies again received a call that shots had been fired outside the Ashland bar. On their return, they ascertained that a fight had taken place between Enright and Archambeault which resulted in Enright suffering a bite wound on the eye brow. Enright fired another shot immediately after the fight. No one was injured in either shooting incident.

Following her arrest, Enright was charged by information with two counts of aggravated assault. The District Court appointed counsel to represent her on August 4, 1986.

Initially, counsel appears to have been actively involved in the case. However, problems later developed. On April 29, 1987, 13 days before trial, Enright appeared in chambers requesting removal of her court-appointed attorney. Upon submission of a written request, the court granted her wish the same day. At that time, she was advised that substitute counsel would not be appointed.

Pursuant to a motion of the county attorney’s office, the court subsequently held a hearing to determine Enright’s competency to represent herself, pro se. At that time, Enright indicated that she did not want to represent herself, nor did she think she was competent to do so, but felt that she had little choice in light of the court’s refusal to appoint substitute counsel. She did not request a specific replacement.

The essence of Enright’s complaint is that the client-attorney relationship had deteriorated to the point of animosity upon her refusal to accept a proposed plea bargain. Enright testified that following rejection of the plea bargain she felt counsel had violated the confidentiality of the relationship by contacting a number of her friends and relatives in order to pressure her into acceptance. Counsel also failed to appear at a meeting in which she had assembled all her witnesses and had failed to contact a witness she deemed crucial to her case. When Enright appeared at counsel’s office pursuant to appointment, he twice informed her in no uncertain terms that he had more important things to do and did not want to see her. In addition, the record indicates that counsel had failed to subpoena witnesses for the trial at the time of the discharge and that no action had been taken for several months.

Enright had responded to counsel’s conduct by filing a complaint with the Commission on Practice sometime prior to the request for dismissal of counsel.

Following completion of Enright’s testimony, the District Court determined that Enright was competent to represent herself and that she had made a knowing and voluntary waiver of her right to counsel. However, the court did not question Enright about her complaints concerning counsel; nor did counsel appear to answer her accusations; inform her of the hazards of self-representation; nor hold an independent hearing to determine whether Enright had received effective representation and whether the relationship was such that Enright would receive effective representation in the future.

Article II, Section 24 of the 1972 Montana Constitution, and the right to a fair trial inherent in the due process clause of Art. II, Section 17, guarantee a defendant charged with a crime the right to assistance of counsel. State v. Robbins (Mont. 1985), [218 Mont. 107,] 708 P.2d 227, 42 St.Rep. 1440; State v. Lundblade (Mont. 1984), [213 Mont. 420,] 691 P.2d 831, 41 St.Rep. 2208. The right is fundamental. It applies to all persons with equal force, regardless of the person’s ability to compensate the attorney. If indigent, counsel shall be provided by the state. Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

Further, the mere fact of representation by counsel is not per se sufficient. In order to give meaning to the constitutional guarantees, the assistance must be effective. State v. McElveen (1975), 168 Mont. 500, 503, 544 P.2d 820, 822. Only then, can the right to the assistance of counsel, and the right to a fair trial, have true meaning.

However, the defendant’s right to assistance of counsel does not vest the accused with the right to counsel of his choice. State v. Pepperling (1978), 177 Mont. 464, 472, 582 P.2d 341, 346. Nor does the right prohibit a defendant from rejecting the assistance of counsel. State v. Strandberg (Mont. 1986), [223 Mont. 132,] 724 P.2d 710, 43 St.Rep. 1591. “When his appointed counsel is rendering effective assistance, the defendant has the choice of: (1) continuing with the counsel so appointed, or (2) having his counsel dismissed and proceeding on defendant’s own, pro se.” Pepperling, 177 Mont. at 473, 582 P.2d at 346.

In the instant case, Enright argues that the District Court’s failure to hold a hearing in order to determine the validity of her claims is reversible error; that the failure to make such a determination, in effect, deprived her of the opportunity to make a meaningful choice to proceed pro se, thus infringing on the right to effective assistance of counsel and the right to a fair trial. We agree.

In Faretta v. California (1975), 422 U.S. 806, 834, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, the U.S. Supreme Court reasoned that since it was the defendant and not the lawyer who would bear the consequences of a conviction, it was the defendant “who must be free personally to decide whether in his particular case counsel is to his advantage.” Freedom of choice for the defendant between counsel and self-representation is a condition to the voluntariness of a waiver of counsel.

While the right to assistance of counsel is subject to waiver, it must be the product of a free and meaningful choice. Moore v. Michigan (1957), 355 U.S. 155, 164, 78 S.Ct. 191, 196, 2 L.Ed.2d 167, 172. A criminal defendant may be asked, in the interest of orderly procedures, to choose between waiver and another course of action as long as the choice presented him is not constitutionally offensive. However, if the choice presented is constitutionally offensive, the choice cannot be voluntary. A defendant may not be forced to choose between proceeding with ineffective counsel or proceeding pro se. Such a set of options is in essence no choice at all.

The accused has a right to “meaningful client-attorney relationship” with her attorney. State v. Long (1983), 206 Mont. 40, 46, 669 P.2d 1068, 1071-1072. Upon a showing of a seemingly substantial complaint about counsel, the District Court should conduct a hearing to determine the validity of the defendant’s claims. State v. Boyer (Mont. 1984), 208 Mont. 258, 676 P.2d 787. A substitution of counsel should be made “where it appears the failure to do so would substantially impair or deny the right [to] assistance of counsel.” Peters v. State (1961), 139 Mont. 634, 636, 366 P.2d 158, 159.

In the instant case, Enright presented seemingly substantial complaints. However, the District Court’s failure to conduct a hearing prohibits informed appellate review of the validity of her contentions. The further requirement by the District Court that she accept the counsel she had, or proceed pro se gave her only a Hobson’s choice. We therefore reverse and remand with instructions to appoint substitute counsel. The issue of waiver need not be addressed.

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


author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KEVIN D. STANGELAND, Defendant and Appellant.
    No. 88-61.
    Submitted on Briefs June 30, 1988.
    Decided Aug. 11, 1988.
    758 P.2d 776.
    Dooling Law Office, Thomas A. Dooling, Dillon, for defendant and appellant.
    Mike Greely, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen.,

      Helena, Thomas R. Scott, Co. Atty., Dillon, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Defendant Kevin D. Stangeland (Stangeland) appeals from a Beaverhead County District Court order revoking his conditional suspended sentence for the offense of felony sexual assault. We affirm.

On October 31, 1986, Stangeland pled guilty to four counts of felony sexual assault. The guilty plea was part of the plea bargain in which the State reduced the charges from felony sexual intercourse without consent with a minor. Stangeland sexually assaulted his eight-year-old stepdaughter over a period of several months. The District Court found the presentence investigation unnecessary and set a date for sentencing. Stangeland did not object to the District Court’s decision not to order a presentence investigation.

On October 31, 1986, Stangeland was sentenced to ten years imprisonment at the Montana State Prison with imposition of the sentence suspended upon the following terms and conditions:

“1. That the Defendant . . . immediately sign up with and be placed under the supervision of the Department of Adult Parole and Probation of the State of Montana and shall be subject to all their rules, conditions, and regulations during the entire term of this sentence.

“2. That the said Defendant shall serve 45 days in the Beaverhead County jail and shall be given credit for time served in the Beaverhead County jail in this matter of 25 days while awaiting sentence herein.

“3. That the Defendant shall not violate any law of the State of Montana, the United States or any state therein or the ordinance of any city or town.

“4. That said Defendant shall, at his own expense, complete all admission tests to, be accepted to, comply with and complete all requirements of the sexual offender program by Mental Health Services, Inc., of Helena, Montana. That application by said Defendant to said program must be made, completed, and admission tests done within sixty (60) days of his release from confinement in the Beaverhead County Jail.

“5. That in the event Defendant is unable to complete the sexual offender program because said program is or becomes no longer in existence then such event shall not constitute a breach of the terms and conditions herein and said Defendant may be returned to the Court and required to complete a similar program if deemed appropriate.

“6. That said Defendant shall be specifically prohibited from the family home, or any home wherein . . . [his stepdaughter] is located and shall be specifically prohibited from seeing or visiting . . . [his stepdaughter] without the specific approval and consent of both the Beaverhead County Welfare Department and the sexual offender program.” (Additions ours.)

On May 5, 1987, the Beaverhead County Attorney filed a motion for revocation of Stangeland’s suspended imposition of sentence and for a warrant of arrest. The County Attorney’s affidavit in support of his motion alleged that Stangeland had violated the terms and conditions of the suspended imposition of sentence. The alleged violations include termination from the Mental Health Services, Inc., sexual offender program, conviction of driving an automobile while under the influence of alcohol, and Stangeland’s presence at the home of the victim, his stepdaughter.

Stangeland was subsequently arrested and the District Court ordered that a revocation hearing be held. Stangeland was examined by one psychologist and one psychiatrist at his own expense during the period between his arrest and the revocation hearing. After considerable delay, a lengthy revocation hearing was held on October 30, 1987. The District Court found that Stangeland had violated the provisions of his suspended sentence by his failure to complete the sexual offender program and by his D.U.I. conviction, although it found that the State failed to show that Stangeland had been in contact with his stepdaughter. Stangeland’s suspended sentence was revoked and he was sentenced to nine years in the Montana State Prison with four years suspended on the condition that he successfully complete the sexual offender program at the Montana State Prison. Stangeland appeals from the District Court’s judgment and order of sentence and we identify the following issues:

1. Did the District Court err in not ordering a presentence investigation?

2. Was the District Court without jurisdiction to revoke Stangeland’s probation?

3. Did the District Court abuse its discretion in revoking Stangeland’s suspended sentence and imposing a sentence of incarceration?

Stangeland argues that the District Court should have ordered a presentence report. The State points out that Stangeland failed to object to the waiver of a presentence report prior to the original sentencing order dated October 31,1986. Additionally, the State asserts that Stangeland specifically appealed from the District Court’s sentencing order of October 30, 1987, and not from the order of October 31, 1986. Given these facts, Stangeland’s first issue is both untimely and not properly before this Court. Section 46-20-104(2), MCA.

On the second issue, Stangeland contends that the District Court did not have jurisdiction to revoke his suspended sentence. According to Stangeland, his probation officer must first report a parole violation to the county attorney before the District Court is vested with jurisdiction to revoke a suspended sentence.

Stangeland’s argument is without merit. Section 46-18-203, MCA, provides as follows:

“(1) A judge, magistrate, or justice of the peace who has suspended the execution of a sentence or deferred the imposition of a sentence of imprisonment under 46-18-201 or his successor is authorized in his discretion to revoke the suspension or impose sentence and order the person committed. He may also, in his discretion, order the prisoner placed under the jurisdiction of the department of institutions as provided by law or retain such jurisdiction with his court.

“(2) A petition seeking revocation of a suspended sentence or imposition of a sentence previously deferred must be filed with the sentencing court during the period of suspension or deferral. Expiration of the period of suspension or deferral after the petition is filed does not deprive the court of jurisdiction to rule on the petition.

“(3) Prior to the revocation of an order suspending or deferring the imposition of sentence, the person affected shall be given a hearing.” (Emphasis added.)

The District Court acted upon the petition filed by the county attorney and held a hearing pursuant to subsections (2) and (3) above. Subsection (1) specifically authorizes the District Court to revoke Stangeland’s suspended sentence and order him committed to the Montana State Prison. Felix v. Mohler (1981), 195 Mont. 391, 636 P.2d 830. The statute does not require any particular action from Stangeland’s probation officer and does not divest the District Court of jurisdiction over Stangeland upon placement with the Department of Adult Parole and Probation of the State of Montana. We hold that the District Court exercised proper jurisdiction pursuant to Section 46-18-203, MCA, in revoking Stangeland’s original suspended sentence.

Stangeland’s last argument is that the District Court abused its discretion in revoking his suspended sentence. Both parties recognize that the District Court has discretionary power to revoke a deferred or suspended sentence. State v. Robinson (Mont. 1980), [190 Mont. 145,] 619 P.2d 813, 814, 37 St.Rep. 1830, 1832. We will not reverse a District Court’s revocation of a suspended or deferred sentence absent a showing that the court abused that discretion. Robinson, 619 P.2d at 815.

Stangeland argues that his sentence again should be suspended and he should be allowed to try another sexual offender treatment program of his choosing. Throughout this appeal, Stangeland has contended that he is a victim of circumstances and that his violations of the terms and conditions of his suspended sentence were brought about by flaws in “the system” and errors made by the District Court and others in positions of authority over him. Stangeland admits to having “many difficulties” with the assigned sexual offender program but insists that he was predestined to failure because the program was unsuited to his particular needs and problems.

Stangeland’s “difficulties,” as he terms them, with the sexual offender program include a poor, hostile and uncooperative attitude, verbal threats to harm a program therapist, irregular attendance at program sessions, visitation of the victim’s home, and the consumption of alcohol; all are in violation of his contract with the program. The program staff collectively decided to terminate Stangeland’s participation in the program for the above reasons and because they felt he was not amenable to outpatient treatment and was a risk to re-offend.

Stangeland presented expert witness testimony of psychiatrist Dr. George Cloutier at the revocation hearing. After hearing the testimony of Dr. Cloutier and the other witnesses at the hearing, the District Court concluded that “[i]t is necessary that . . . [Stangeland] undertake the sexual offender treatment program under the supervision and control of the Montana State Prison . . .” Stangeland contends that the testimony of Dr. Cloutier and others must be interpreted to allow him another chance at outpatient sexual offender treatment rather than treatment at the Montana State Prison.

Stangeland’s arguments are similar to those presented to this Court in State v. Friedman (Mont. 1987), [225 Mont. 373,] 732 P.2d 1322, 44 St.Rep. 313. Friedman was given a forty-year sentence on convictions for two counts of sexual intercourse without consent and one count of aggravated assault. The sentence review board suspended twenty years of the sentence on the condition that Friedman successfully complete a sexual offender program. Friedman failed to complete the sexual offender program and the district court subsequently reinstated his original sentence. On appeal, Friedman claimed he was a “victim of circumstances,” was amenable to treatment, and should be given another chance at treatment. We found that there was substantial evidence to justify the revocation of Friedman’s suspended sentence and that Friedman was not entitled to another treatment program. Friedman, 732 P.2d at 1326.

In the instant case it is undisputed that Stangeland violated the terms and conditions of his suspended sentence by his failure to complete the sexual offender program and by his conviction of D.U.I. Given these violations, the District Court had the discretion to revoke Stangeland’s suspended sentence. State v. Ford (Mont. 1985), [218 Mont. 215,] 707 P.2d 16, 19, 42 St.Rep. 1530, 1535. Here, as in Friedman, the district court also sufficiently examined the reason for Stangeland’s failure to complete the sexual offender program. The District Court was not required to give Stangeland a second chance at outpatient treatment as a matter of right. Friedman, 732 P.2d at 1326. The District Court found it necessary that Stangeland undertake the sexual offender program at the Montana State Prison. Stangeland has failed to show an abuse of the District Court’s discretion.

Affirmed.

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


author: MR. JUSTICE McDONOUGH

text:
    JANIE ANDERSON WALLS, Plaintiff and Appellant, v. MARY RUE, Defendant and Respondent.
    No. 88-85.
    Submitted on Briefs June 2, 1988.
    Decided Aug.11, 1988.
    759 P.2d 169.
    Stephen D. Roberts, Bozeman, for plaintiff and appellant.
    Warden, Christiansen, Johnson & Berg, Stephen C. Berg, Kalispell, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal from the Ninth Judicial District presents a single issue for review: Should a new trial be ordered on damages under Gehnert v. Cullinan where the jury in its special verdict found both that plaintiff’s injuries were caused by defendant’s negligence and that plaintiff would incur future medical expenses for treatment of those injuries, yet failed to award plaintiff anything for future pain and suffering and other elements of damage?

We decline to order a new trial and affirm.

Appellant Walls sued respondent Rue for injuries stemming from an automobile accident which occurred on November 14, 1985. The action went to trial before a jury on July 1, 1987. At the end of the defendant’s case, the lower court directed a verdict for plaintiff Walls on the issue of liability. The jury was then instructed to determine damages by answering questions posed through a special verdict. The verdict form and the jury’s answers appeared as follows:

X Yes _No
If your answer is “yes,” go to the next question. If your answer is “no,” then skip the remaining questions and simply sign the verdict.
II. Was the Defendant’s negligence a cause of injury to the Plaintiff?
X Yes _No
If your answer is “yes,” go to the next question. If your answer is “no,” then skip the remaining questions and simply sign the verdict.
III. What is the amount of money that will compensate the Plaintiff for her injury?
Medical Expenses to Date: $2000,00
Future Medical Expenses: $2800,00
Pain and Suffering to Date: $ 100.00
Future Pain and Suffering: $ —
Lost Earnings to Date: $ —
Lost Earning Capacity: $ —
Loos of Enjoyment of Life to Date: $ 100.00
Future Loss of Enjoyment of Life: $ —
DATED this 3rd day of July, 1987.
s/ jury foreman

After the verdict, the District Court denied Walls’s motion for new trial for an inadequate award, and also denied Walls’s motion for reconsideration.

Walls argues on appeal that the jury’s failure to award more damages runs counter to the evidence. Walls speculates that the jury ignored the evidence showing her damages because some of the jurors, as revealed during voir dire, considered other jury awards excessive. Rue responds that the jury based its failure to award other damages on substantial credible evidence. We agree with Rue.

In Maykuth v. Eaton (Mont. 1984), [212 Mont. 370,] 687 P.2d 726, 41 St.Rep. 1800, the District Court held insufficient as a matter of law a $700 award for pain and suffering. We reversed holding that:

“To permit the undoing of this verdict by affirming the trial court decision granting a new trial, would, in the language of Nelson v. Hartman (1982), [199] Mont. [295], 648 P.2d 1176, 1179, 39 St.Rep. 1409, 1412, ‘. . . create a bench supremacy and sap the vitality of jury verdicts.’ While the trial court, or this Court sitting as a jury, or another jury, may have awarded plaintiff more for pain and suffering in the year following the accident, we cannot say as a matter of law that substantial evidence did not support the jury’s award.”

Maykuth, 687 P.2d at 727.

We have also emphasized that:

“Our function in reviewing the sufficiency of proof of actual damages is to determine whether there is substantial credible evidence in the record to support the jury’s verdict. We must view the evidence in a light most favorable to Lauman, the prevailing party below, and where the record presents conflicting evidence, resolved by the jury, this Court is precluded from disturbing the verdict. This rule is particularly applicable when the District Court has passed on the sufficiency of the evidence on motion for new trial and has upheld its sufficiency.”

Lauman v. Lee (Mont. 1981), 626 P.2d 830, 833, 41 St.Rep. 499, 502.

On the other hand, this Court has held that a jury’s failure to award damages for pain and suffering constituted an inadequate award where: >

“The evidence clearly indicates that the plaintiffs suffered serious and painful injury. The injury to Harold Gehnert’s back is such that it may have been rebroken and there was evidence that he was permanently injured and disabled. Lina Brenner suffered a relapse into a severe depression and while her physical injuries may have been modest, they were accompanied by pain. Her testimony indicated hair had been pulled from her head. The jury found in this case that the Cullinans committed wrongful acts toward the plaintiffs, and their attack on the plaintiffs was the cause of the injuries sustained. Liability having been established, it was the jury’s duty to award damages for pain and suffering for the serious injuries suffered.”

Gehnert v. Cullinan (Mont. 1984), [211 Mont. 435,] 685 P.2d 352, 354, 41 St.Rep. 372, 375.

Walls contends that in this case, as in Gehnert, the jury failed to award damages when evidence clearly showed injury due to the defendant’s conduct. Rue responds that the jury’s failure to award greater damages resulted from the defendant’s attacks on the credibility and certainty of evidence presented by Walls. To resolve this issue, a review of the medical evidence is necessary.

The injury occurred to Walls’s shoulder. X-rays taken shortly after the accident revealed no skeletal injuries, and the contusion to Walls’s shoulder was described by the treating physician as not serious.

However, medical testimony from depositions read into the record indicated that Walls’s shoulder did not heal properly. One physician’s impression was that Walls suffered from “rotator cuff tendinitis and possibly mild adhesive capsulitis of the left shoulder along with chronic cervical strain.” Another’s impression was “strain of the left shoulder with soft tissue tenderness and probably perifibrosis”. Both agreed that use of the shoulder in physical therapy could improve the condition. One physician explained:

“Perifibrosis basically is tightness of the tissues around the shoulder, and I think my impression was that her complaints and her findings were pretty much related to her shoulder girdle, including the area between her shoulder blades as [sic] the shoulder itself and that the perifibrosis is a stiffness or lack of resiliency of the muscles and ligaments because it’s been injured and protected and allowed to heal without motion or even if trying to move it, enough soreness was there to keep it from moving well, and that it was the lack of resiliency of the tissues, or the fibrosis of the tissues, that was causing a lot of the problems at the present time.”

A third physician provided no diagnosis for Walls stating that, “I don’t have a diagnosis for her. I don’t know why she has her symptoms.” A fourth suspected “vasomotor reflex sympathetic dystrophy syndrome”, and a fifth coined the condition as “chronic pain syndrome”, answering queries from counsel as follows:

“Q. Are you comfortable with your opinion that this is a permanent condition?

“A. I don’t think you can say any condition is permanent other than death, right. Hopefully her condition will improve and go away. But at this point in time, I think she has chronic pain syndrome. Hopefully it will be alleviated, but as to a time and a date and how long, I don’t think anybody in the world can tell you that.”

The physician testifying in the above quote also stated that his office notes indicated that Walls had a separate injury to her back after the accident. Another physician testified that the severity of the injury might have resulted from its interaction with a preexisting condition.

Walls and other witnesses testified that the injury caused loss of enjoyment and loss of past employment due to pain. Walls also presented evidence indicating that pain, loss of enjoyment, and loss of earning’s capability would continue into the future.

The defense presented no medical testimony of its own, but attacked the plaintiffs case by attempting to discredit Walls herself, and by pointing to the uncertainty characterizing the source, nature, and degree of the injury. For example, the defense contended that evidence showed: Walls had not properly documented her employment history after the accident, Walls had not properly followed physical therapy recommendations, and Walls engaged in activities which inferred that the injury was not restrictive. Rue also contended that the failure of one physician to diagnose a condition inferred the condition did not exist.

Rue’s contentions find support from evidence in the record, and viewing the evidence in a light most favorable to Rue, we hold that the record supports the adequacy of the award. Thus, Walls’ contention that the jury ignored damages from a clear injury fails.

Walls also argues that the jury’s failure to award anything for future pain and suffering, future loss of enjoyment of way of life, and future lost earning capacity, while at the same time awarding damages for future medical expenses, is illogical. This inconsistency, according to Walls, shows that the jury ignored the instructions on damages. We disagree.

Walls testified that:

“Q. So am I correct then that from the time you stopped therapy in Shelby which would be about February of ‘86 until January of ‘87 when you had Dr. Powell’s therapy through Mr. Havens, you didn’t [sic] not have therapy?

“A. No, I didn’t.”

The lower court instructed the jury that:

“It is the duty of a person who has been injured to use reasonable diligence in caring for her injuries and reasonable means to prevent their aggravation and to accomplish healing. When one does not use reasonable diligence in caring for her injuries and they are aggravated as a result of such failure, the liability, if any, of another whose act or willing omission was a proximate cause of the original injuries, must be limited to the amount of damage that would have been suffered if the injured person herself had exercised the diligence required of her.”

As set out in the medical testimony summarized above, at least one physician held the opinion that Walls suffered from perifibrosis, and that perifibrosis is a stiffness or lack of resiliency of the muscles and ligaments because of an injury which has been protected and allowed to heal without motion. The obvious inference is that Walls should have better pursued therapy following the termination of her treatment in Shelby, and the jury’s award for future medical expenses covers the treatment which should have been pursued earlier. Under these circumstances, the lack of an award for other future damages could have followed from the instruction set out above. We hold that Walls has failed to show that the jury ignored the instructions.

We affirm.

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


text:
    JAMES HURLEY, JR., Claimant and Respondent, v. OLIVER DUPUIS, Employer, and State Compensation Insurance Fund, Defendant and Appellant.
    No. 88-106.
    Submitted on Briefs July 8, 1988.
    Decided Aug. 11, 1988.
    759 P.2d 996.
    Browning, Kaleczyc, Berry & Hoven, Oliver H. Goe, Helena, for defendant and appellant.
    Michael C. Prezeau, Whitefish, for claimant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The State Compensation Insurance Fund (State) appeals from a judgment of the Workers’ Compensation Court. The Workers’ Compensation Court held that the claimant, James Hurley, Jr. (Hurley) is entitled to benefits under Section 39-71-703, MCA, based on Hurley’s testimony that he was once employed at the rate of $12.44 an hour on a part-time basis and that this amount established his preinjury earning capacity. We reverse.

The State presents the following issue for our consideration:

Did the Workers’ Compensation Court err in calculating Hurley’s entitlement to wage loss benefits pursuant to Section 39-71-703, MCA, based on his testimony he once earned $12.44 an hour?

On or about August 3, 1985, Hurley suffered a back injury while he was working in a cherry grove for Oliver Dupuis (Dupuis) in Poison, Montana. It is undisputed that Hurley’s injury arose out of and in the course of his employment. Dupuis, as Hurley’s employer, was enrolled in Plan III of the Workers’ Compensation Act and his insurer was the State Compensation Insurance Fund.

The State paid disability benefits to Hurley from August 4, 1985 to the present and Hurley received two advance payments on his permanent partial disability benefits in the amount of $12,000.

On December 12, 1986, Hurley filed a petition for hearing before the Workers’ Compensation Court. The petition originally requested permanent total disability benefits, or permanent partial disability benefits, a lump sum advance, attorney’s fees and a penalty. The Workers’ Compensation Court was presented with the deposition testimony of Hurley, his wife Shadia, vocational rehabilitation specialists Scott McIntosh and Deborah Swigert, Dr. James Urban, Dr. John Stephens and Dr. David Jacobson. The Workers’ Compensation Court deemed the case submitted on August 21, 1987 and issued Findings of Fact, Conclusions of Law and Judgment on January 6, 1988.

Hurley was awarded $146.50 per week for 500 weeks for permanent partial disability pursuant to Section 39-71-703, MCA. This gave Hurley a total benefit of $73,250. The Workers’ Compensation Court also determined that Hurley was entitled to a lump sum, in part, to buy transportation and to extinguish some debt obligations. The Section 39-71-703, MCA benefits were calculated on the basis of Hurley’s pre-injury earning capacity being $12.44 an hour, which was an amount he earned for one or two weeks working on a part-time basis for an employer, whom Hurley could not name, in Wells, Nevada. It is from this method of calculating Hurley’s Section 39-71-703, MCA, benefits that the State appeals.

Previous to his employment in Poison, Hurley had a well-traveled job history. In answers to interrogatories and in an exhibit attached to his deposition, Hurley lists fifteen different jobs over a period of ten years. His longest length of employment at any location was from the fall of 1982 to the spring of 1984 at a ranch in Refugio, Texas. Other than his alleged job in Wells, Nevada, Hurley’s highest paying job was for $7.00 an hour as a laborer for a construction company in Salt Lake City, Utah. In the majority of his employment, Hurley was paid between $4.00 and $5.00 per hour and remained employed for only a few months.

The State claims on this appeal that the pre-injury earning capacity determined by the Workers’ Compensation Court was erroneous and therefore Hurley should not be entitled to $146.50 per week. We agree.

This case was determined by the Workers’ Compensation Court after it reviewed the deposition testimony of the claimant, his wife, his treating physicians and other physicians who treated his injury, and rehabilitative experts. The State argues that this Court is in as good a position to review the deposition testimony as the Workers’ Compensation Court and we agree.

“[Wjhen the critical evidence ... is entered by deposition, we have held that ‘this Court, although sitting in review, is in as good a position as the Workers’ Compensation Court to judge the weight to be given record testimony.’ ”

Snyder v. San Francisco Feed & Grain (Mont. 1987), [230 Mont. 16.] 748 P.2d 924, 929, 44 St.Rep. 2216, 2224; citing Jones v. St. Regis Paper Co. (1982), 196 Mont. 138, 146, 639 P.2d 1140, 1144. See also, Shupert v. Anaconda Aluminum Co. (Mont. 1985), [215 Mont. 182,] 696 P.2d 436, 439, 42 St.Rep. 277, 281-282; Lamb v. Missoula Imports, Inc. (Mont. 1984), [211 Mont. 360,] 684 P.2d 498, 41 St.Rep. 1414.

The medical testimony showed a diagnosis of spondylolysis and spondylolisthesis at L-5 and S-l. Hurley was forced to undergo surgery. The testimony showed that upon reaching maximum medical stability, Hurley could no longer perform any work which required heavy labor. Dr. Jacobson testified that Hurley would not be able to lift more than 25-30 pounds on a regular basis or more than 50-100 pounds on an occasional basis. Dr. Stephens’ evaluation was similar to Dr. Jacobson. Dr. Stephens expressed concern about further injury if Hurley did not comply with limited physical exertion. Dr. Urban, who treated Hurley from May 29, 1986 testified that Hurley was restricted from lifting more than 60 pounds.

This testimony clearly shows that Hurley suffered a loss of earning capacity that caused “a loss of ability to earn on the open labor market.” Beck v. Flathead County (Mont. 1988), [230 Mont. 294.] 749 P.2d 527, 529, 45 St.Rep. 215, 217. However, the issue of this case is the proper determination of just how Hurley’s proper loss should be calculated.

Hurley withdrew his claims for permanent total disability pursuant to Section 39-71-116(13), MCA, and his claim for a penalty. Therefore, we are only concerned here with his entitlement under permanent partial disability. We have said that a partially disabled worker may choose two types of permanent partial benefits under Montana law. Dunn v. Champion International Corp. (Mont. 1986), [222 Mont. 142,] 720 P.2d 1186, 1189, 43 St.Rep. 1124, 1128. “Such a worker can elect benefits under Section 39-71-703, MCA, for actual loss of earning capacity or indemnity benefits under Sections 39-71-705, -708 for possible prospective loss in earning capacity.” Dunn, 720 P.2d at 1189.

In this case, Section 39-71-703(1), MCA, as it read prior to its amendment in 1987, controls since Hurley’s injury occurred in 1985. See, Buckman v. Montana Deaconess Hospital (Mont. 1986), [224 Mont. 318,] 730 P.2d 380, 382, 43 St.Rep. 2216, 2218. The Workers’ Compensation Court appropriately stated that Section 39-71-703, MCA benefits were calculated to determine “actual lost earning capacity.”

However, in determining this actual lost earning capacity, the Workers’ Compensation Court adopted Hurley’s theory that it should be based on a pre-injury earning capacity of $12.44 per hour. The Workers’ Compensation Court applied this pre-injury maximum to his post-injury earning capacity. Both parties, through their rehabilitation experts (McIntosh for Hurley and Swigert for the State), were fairly close in the estimated post-injury earning potential. McIntosh asserted a $4.50 per hour post-injury earning potential while Swigert estimated Hurley’s post-injury earning potential at $5.00 to $6.00 per hour. The court’s determination was as follows:

“It is with the post-injury earning potential that the pre-injury capacity becomes important. For example, we will set out by calculation how the various figures being considered can aifect the claimant’s weekly partial disability rate.

Pre-Injury/Hr. $ 12.44 $4.50 $ 5.00
Post-Injury/Hr. 4.50 4.50 4.50
$ 7.94/hr $0.00 + .50/hr
x 40 x 40 x 40
$317.60 0.00 $20.00
_£6% .66% _456%
Maximum Rate $146.50 no partial $13.32

“Thus, using the 500 weeks of benefit potential (whole man injury) claimant concludes the partial disability entitlement at $71,250.00 and defendant finds none, beyond this impairment award.

“Thus, to identify the precise issue more directly, we can ask the question of whether or not in a 703 analysis, a claimant’s highest pre-injury earnings, regardless of how long he held the job, must be considered. While defendant admits that claimant might have earned as much as $12.44 per hour, given his sporadic work history, his nomadic lifestyle and the fact that there is no evidence that claimant was actually an acceptable worker at that rate requires the Court to discount the figure substantially. While we would agree that if claimant was fired from the $12.44 per hour job because he couldn’t do it, there would be a substantial question as to utilizing that figure for an earnings example, but such is not the case here. The record discloses only that the claimant did a job that paid that much, even if only for a short time. We also see some relevance to defendant’s argument that two or three weeks’ earnings over an individual’s eight-year work life is not a true measure of his actual earning capacity. But we are reluctant to set a standard or policy whereby no consideration is to be given to such earning. Otherwise, a claimant who is injured on the first day of a new job paying $15.00 per hour with a previous earning maximum of $5.00 per hour would be seriously prejudiced in establishing a future loss of earning capacity. Also, difficult economic times which have forced skilled tradesmen laid off from their usual $12.00 per hour machinist job and permanently injured working part-time at a fast food place for $3.65 per hour would be punished unfairly.”

We recognize and appreciate the Workers’ Compensation Court’s concern as outlined. Generally, the Workers’ Compensation Court will be upheld upon a finding of substantial credible evidence. Snyder, 748 P.2d at 929. However, under the facts of this case, substantial credible evidence has not been produced to show that Hurley had a pre-injury earning potential of $12.44 per hour.

Impairment of earning capacity has been defined as “the permanent diminution of the ability to earn money in the future.” Sedlack v. Bigfork Convalescent Center (Mont. 1988), [230 Mont. 273,] 749 P.2d 1085, 1087, 45 St.Rep. 199, 202; Thomas v. Whiteside (1966), 148 Mont. 394, 397, 421 P.2d 449, 451. Additionally, we have stated that earning capacity is not only determined by a comparison of preinjury and post-injury wages but also by age, occupational skills, education, previous health, remaining number of productive years and degree of physical or mental impairment. Beck, 749 P.2d at 529; Thomas, 421 P.2d at 451.

Here, although Hurley was thirty years old at the time of filing this claim, he has no real occupational skills; he dropped out of school in the tenth grade and obtained a G.E.D. Due to his back injury he is basically removed from any manual labor employment. The most important fact is that he never maintained a job for an extended period of time so that he could establish higher earnings.

Granted, McIntosh testified that in the Denver area, current labor market earnings for concrete workers ranged up to $517.20 per week which translates to approximately $13.00 per hour in a 40-hour work week. However, due to Hurley’s previous work history it is extremely unlikely that he would be able to obtain one of these jobs or remain employed.

Further, in analyzing Hurley’s testimony, his claim of a $12.44 per hour wage is suspect. Hurley originally answered interrogatories and stated that he worked at this rate the “winter, 1981.” Upon being deposed, it was ascertained that Hurley merely worked for this wage, and at another job for this same unknown employer where he was paid $6.00 an hour, for a total of three to four weeks. He further admitted that he worked at the $6.00 an hour job for two or three of the three or four weeks worked. Hurley had no W-2 forms from this employment and he paid no taxes on the income.

Further discrepancies are present. Hurley answered interrogatories that he worked as a laborer for a construction company in Salt Lake City, Utah from February to November of 1976 and then with a concrete construction company from December, 1976 to April, 1977. Hurley admitted that in reality there had been at least an eight-month gap between these employments.

We realize that the Workers’ Compensation Act, at the time of the injury involved in this case, was to be “liberally construed.” Section 39-71-104, MCA (1985); Shupert, 696 P.2d at 441. However, the Legislature could not have meant that this liberal construction did not require substantial credible evidence to support a claim. Here, in light of our review of the depositions; our analysis of Hurley’s previous work history, his age, education, remaining working years, and extent of his injury; and, in conjunction with the law as it existed in regard to this case, we determine that the Workers’ Compensation Court erred in its determination that Hurley’s pre-injury earning capacity was $12.44 per hour.

We reverse.

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


text:
    DENNIS B. PHILLIPS, Betty Phillips and Owen Hake, Plaintiffs and Appellants, v. CITY OF BILLINGS, Defendant and Respondent, v. JAMES BUFFALOHORN, Defendant.
    No. 88-126.
    Submitted on Briefs June 16, 1988.
    Decided Aug. 11, 1988.
    758 P.2d 772.

      Mark D. Parker, Parker Law Firm, Billings, for plaintiffs and appellants.
    Charles R. Cashmore, Crowley Law Firm, Francis X. Lame Bull, Billings, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal from the Thirteenth Judicial District involves appellants Phillips’ and Hake’s (Phillips) claims against the City of Billings (Billings) for the alleged negligence of two city police officers. The District Court granted summary judgment to Billings. We affirm.

The undisputed facts are as follows: At approximately 6:00 a.m., on February 28,1986, a car driven by James Buffalohorn entered a Billings intersection against a red light and collided with a car occupied by “Dennis” Phillips and Owen Hake. Hake and Phillips suffered injuries as a result of the collision. Blood alcohol testing indicated that Buffalohorn was intoxicated at the time of the accident.

Approximately two hours prior to the accident, Billings police officers Randy Vogel and Keith Buxbaum had detained and questioned Buffalohorn in connection with a report made by motorist Shane Stamm. Prior to the report, sheriff’s deputy Bill Michaelis had observed Stamm drive his vehicle off the road. Michaelis stopped Stamm and questioned him concerning the accident. Stamm told Michaelis that a light colored Pinto had swerved into his lane and forced him off the road.

Stamm’s allegation was communicated to Officer Vogel, and Vogel began to search the area for the Pinto. Moments later he observed Buffalohorn and a companion standing next to a light colored Pinto parked on a Billings street. Vogel drove to the car, detained the two individuals, and performed a pat down search for weapons. Vogel noticed that the car had been recently driven. Buxbaum arrived with Stamm to identify the car. Stamm viewed the vehicle and insisted that the Pinto was not involved in the accident. Buxbaum and Vogel deposed that they suspected Stamm was less than candid as to the other vehicle involved. They speculated that Stamm was actually to blame for his vehicle leaving the road, and that now that police had found the other vehicle, Stamm was unwilling to blame the individuals driving the car he had described to police.

Buxbaum and Vogel noticed alcohol on the breath of Buffalohorn and his companion. Buxbaum noticed pop and beer cans and other garbage in Buffalohorn’s vehicle. The officers stated that Buffalohorn and his companion were polite and cooperative, and that even though they smelled of alcohol, neither appeared to be in a state of extreme intoxication. Buxbaum and Vogel also stated that they did not believe probable cause existed to arrest either individual for a DUI violation because neither was seen in control of the car. However, Buxbaum remembers Vogel telling the suspects to refrain from driving the car. The officers then returned to where Stamm ran off the road, investigated the accident, and cited Stamm for careless driving and failure to carry proof of insurance.

On these facts, the District Court granted summary judgment to Billings. The lower court reasoned that absent probable cause to arrest, no duty flowed from the officers to Phillips to protect Phillips from the actions of Buffalohorn. We agree.

The precise issue here is offered by respondent Billings: Did the District Court properly grant summary judgment on the grounds that probable cause to arrest was absent as a matter of law and no other source of legal duty exists? Appellant Phillips presents four issues for review. However, each issue presented by Phillips, as well as the various contentions under each issue, may be more clearly discussed as contentions under the single issue offered by Billings.

The first made by Phillips is that the lower court failed to justify its decision under any theory of Montana tort law. This has no bearing on our resolution of the issue because this Court affirms district court decisions which are correct regardless of the lower court’s reasoning in reaching its decision. Norwest Bank v. Murnion (Mont. 1984), 210 Mont. 417, 684 P.2d 1067, 1071, 41 St.Rep. 1132, 1136. Thus, this contention fails.

The second contention made by Phillips is that the District Court erred because it granted summary judgment by holding that the officers had no duty to Phillips beyond the mere duty to arrest Buffalohorn. Phillips presents the following conclusion from the District Court’s memorandum:

“The court further concludes that under the circumstances as set forth herein that the police officers had no duty to stay with either the suspects or its [sic] vehicle beyond the time that they did nor did they have any duty to arrest the suspects or prevent them further from operating this vehicle.”

Phillips, citing Section 319 of the Restatement (Second) of Torts, argues that the officers had a duty to control the potentially dangerous actions of Buffalohorn. Section 319 of the Restatement (Second) of Torts, reads:

“One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”

Restatement (Second) of Torts, Section 319 (1965). (Emphasis added.) We reject this argument because imposition of a duty under Section 319 depends on an ability to control the third person. Abernathy v. United States (8th Cir. 1985), 773 F.2d 184, 189. Thus, under the circumstances of this case, absent probable cause, no duty existed. See, e.g., Harris v. Smith (Cal.App. 1984), 157 Cal.App.3d 100, 203 Cal.Rptr. 541; Leake v. Cain (Colo.App. 1986), 720 P.2d 152.

Phillips contends liability may be predicated on a duty to investigate effectively because an effective investigation would have ripened into probable cause and resulted in arrest of Buffalohorn. We disagree. Closeness of the connection between the defendant’s conduct and the injury suffered is a factor courts have considered in imposing a duty of due care. Harris, 203 Cal.Rptr. at 545. Here, the possibility that further investigation could have ripened into probable cause provides only a tenuous connection between the officer’s conduct and Phillips’ injuries. See, e.g., Harris, 203 Cal.Rptr. at 545; Leake, 720 P.2d at 161. Moreover, Phillips can only speculate as to how a more thorough investigation would have revealed probable cause to arrest. Thus, this contention fails.

Phillips argues the duty exists here because the risk was foreseeable. We disagree. Courts consider other factors in addition to foreseeability in deciding the existence of a duty. Harris, 203 Cal.Rptr. at 545. Some of these factors include: the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. Harris, 203 Cal.Rptr. at 545. Thus, we refuse to find the duty here on the basis of foreseeability alone.

Phillips contends that the officers’ duty to plaintiffs as members of the traveling public created a duty in this case. The majority rule states that the general duty to protect does not give rise to liability for a particular individual’s injury absent a greater duty imposed by a special relationship. See Annotation, Drunk Drivers: Duty to Arrest, 48 A.L.R.4th 320, 326. Under the facts of this case, we agree with the majority rule and refuse to find a duty based on the officers’ general duty to protect the traveling public.

Phillips contends that the officers’ duty to act with reasonable care under the circumstances exists as a duty apart from any specific duty, and thus summary judgment was improper. We disagree. See Whitfield v. Therriault Corp. (Mont. 1987), [229 Mont. 195,] 745 P.2d 1126, 1128, 44 St.Rep. 1896, 1898. Without a showing that the officers had a duty to protect Phillips from danger posed by Buffalohorn, we conclude that the District Court properly granted summary judgment. Whitfield, 745 P.2d at 1128.

Phillips contends that the officers had probable cause to arrest Buffalohorn. We disagree. Stamm’s failure to identify Buffalohorn and his vehicle, coupled with the lack of any other information indicating that Buffalohorn had operated the vehicle, constituted lack of probable cause to arrest Buffalohorn for DUI or any charge in connection with operation of the car.

Phillips contends that the presence of beer cans in the vehicle gave the officers probable cause to arrest for violation of the Billings open container ordinance. This connection is too tenuous to establish duty for failure to restrain Buffalohorn.

Phillips contends that summary judgment was improper under this Court’s decision in Lindquist v. Moran (1983), 203 Mont. 268, 662 P.2d 281. The facts of this case distinguish Lindquist. In Lindquist the officers had the ability to control the tortfeasor’s operation of the vehicle in question. No such showing was made here.

Fourth amendment rights naturally compete with a police officer’s duty to protect the public. Courts facing the issue we face today are wary to force police officers to choose between liability for failure to arrest, and liability for false arrest. Lack of probable cause denied the officers in this case the legal authority to arrest. Thus, we agree with the District Court that lack of probable cause demonstrates lack of a material fact question, and entitles Billings to judgment as a matter of law. Whitfield, 745 P.2d at 1128.

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


text:
    In the Matter of ESTATE OF JEFFREY CONNOR WILHELM, Deceased.
    No. 88-181.
    Submitted on Briefs July 8, 1988.
    Decided Aug. 11, 1988.
    760 P.2d 718.

      Sullivan & Baldassin, John K. Tabaracci, Missoula, for appellant.

      Worden, Thane & Haines, Patrick D. Dougherty, Missoula, for respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

In this case, we are confronted with an aspect of the continuing interaction of federal and state laws, procedure, and authority in our complex federal system. Following entry of a default judgment against Jeffrey Wilhelm in the United States District Court for the Southern District of New York, Credit Alliance Corporation registered the same and began execution proceedings. Those efforts to execute on the judgment have resulted in actions before the United States District Court for the Montana District, the United States Bankruptcy Court, the Alaska Superior Court, and the District Court of the Fourth Judicial District, Missoula County.

Credit Alliance Corporation appeals from the judgment of the District Court of the Fourth Judicial District, Missoula County, which determined that certain real property located within Missoula County was subject to the family protection allowances of Section 72-2-801 et seq., MCA, and thus exempt from execution pursuant to Credit Alliance Corporation’s judgment lien. We affirm.

The issues before the Court are:

1. Did the District Court lack jurisdiction to hold that the real property was subject to Montana’s Homestead, Exempt Property and Family Allowances, thus invalidating Credit Alliance Corporation’s execution?

2. Did the District Court err in holding that the Homestead, Exempt Property, and Family Allowances were superior to a judgment lien on the decedent’s real property?

On April 23, 1982, Credit Alliance Corporation obtained a default judgment against Jeffrey Wilhelm, a resident of Alaska, from the United States District Court for the Southern District of New York in the amount of $43,115.74 plus interest based on the underlying claim of Wilhelm’s failure to repay a promissory note. The judgment was registered in the United States District Court for the District of Montana the same day and subsequently docketed upon the records of the Missoula County Clerk of Court on October 26, 1982.

On May 8, 1986, Credit Alliance Corporation caused a Writ of Execution to be issued by the United States District Court of Montana and delivered to the United States Marshal. The United States Marshal scheduled for sale on July 8, 1986, certain real and personal property of Jeffrey C. Wilhelm, consisting of a 1.9 acre parcel of land in Missoula County and a 1969 Buddy Mobile Home. Jeffrey C. Wilhelm filed for bankruptcy in Alaska, his state of residence, on July 3, 1986 and the automatic stay pursuant to 11 U.S.C Section 362 prevents the United States Marshal’s sale from proceeding. Thereafter, on July 11, 1986, the Writ of Execution was returned by the Marshal unsatisfied.

On October 21, 1986, Jeffrey Wilhelm died in an automobile accident near Palmer, Alaska. At that time, he was seeking to have the default judgment overturned.

Shortly after Wilhelm’s death, probate proceedings were initiated in the Third Judicial District of the State of Alaska, Wilhelm’s domicile. On January 13, 1987, Credit Alliance Corporation filed a creditor’s claim against the estate in the amount of the judgment plus interest, costs, and attorney’s fees.

The bankruptcy proceedings were subsequently dismissed on February 6, 1987, dissolving the temporary stay. On June 20, 1987, Credit Alliance Corporation caused a new Writ of Execution to be issued and delivered to the United States Marshal. On July 28,1987, the U.S. Marshal levied upon real and personal property of the estate of Jeffrey C. Wilhelm located in Missoula County, Montana. Pursuant to that levy, a 1969 Buddy Mobile Home and Jeffrey Wilhelm’s purchaser’s interest in a Contract for Deed for 20.18 acres of land in Missoula County were sold at U.S. Marshal’s sale on September 9, 1987. A subsequent U.S. Marshal’s sale was held on November 18, 1987 for 1.9 acres of land in Missoula County. The properties at both sales were purchased by the Credit Alliance Corporation which was put on notice at the time of the sales of the surviving spouse’s claim for exempt probate allowances against those properties.

In the meantime, the Alaska probate proceedings were continuing and ancillary proceedings were initiated in Missoula County, on August 27, 1987. On September 17, 1987, the Alaska Superior Court determined that Wilhelm’s estate was inadequate to satisfy the Alaska family protection allowances and ordered that the real and personal property of the Montana estate be used to satisfy the same. The property in the Montana estate is valued at $29,000 and does not exceed the exempt probate allowances as ordered by the Alaska Court.

A hearing was subsequently held before the state District Court of the Fourth Judicial District for the County of Missoula, for the purpose of determining whether the family protection allowances were superior to Credit Alliance Corporation’s judgment lien. On January 29, 1988 the state District Court issued an order declaring that the family protection allowances were allowed, were exempt from and had priority over the creditor’s claim of Credit Alliance Corporation, and were superior to Credit Alliance Corporation’s judgment lien. The order also declared the prior execution sales of Credit Alliance Corporation void.

During the course of these proceedings, Credit Alliance Corporation had also filed a quiet title action concerning the property sold pursuant to the execution sale. The estate of Wilhelm answered by motion to dismiss. On July 20, 1988, the United States District Court for the District of Montana granted Wilhelm’s motion to dismiss based on the state’s exclusive jurisdiction over probate matters.

JURISDICTION

Credit Alliance Corporation, in effect, argues that the District Court lacked jurisdiction in two instances. See Credit Alliance Corporation v. Wilhelm, et al (D. Mont. 1988), 693 F.Supp. 884, 885, First, Credit Alliance Corporation contends that the District Court lacked jurisdiction to determine the rights of the parties to the property at issue because such property was in the custody of the U.S. District Court and thus subject to the exclusive jurisdiction of the federal court. Secondly, it is argued that the District Court lacked the authority to invalidate the federal execution sale. Upon examination, we find any error to be moot.

Courts are the creatures of law and as such have no authority outside that granted by law. Jurisdiction is the power, granted by law, of a court to entertain, hear, and determine a particular case or matter. State ex rel. Bennett v. Bonner (1950), 123 Mont. 414, 425, 214 P.2d 747. It is a prerequisite to judicial intervention or decision; in its absence, the actions of a court are without effect. Wilson v. Thelen (1940), 110 Mont. 305, 100 P.2d 923.

Article VII of the 1972 Montana Constitution is the wellhead from which judicial authority flows. Pursuant to Art. VII, Section 4, district courts are vested with original jurisdiction over “all civil matters and cases at law and in equity . . . and such additional jurisdiction as may be delegated by the laws of the United States or the state of Montana.” Clearly, the broad sweep of this provision encompasses matters of probate.

Section 72-3-111, MCA, provides that “the district court has exclusive jurisdiction of all probate matters.” In addition, the district courts of this state are vested with “the full power to make orders, judgments, and decrees and take all other action necessary and proper” to effectuate the court’s authority. Section 72-1-202(2), MCA. The conclusion is thus inescapable that the state District Court properly had jurisdiction over the assets of the estate. The issue therefore becomes one of federal preemption.

By virtue of the Supremacy Clause, state jurisdiction is subject to federal preemption. Rio Grande Railroad Co. v. Gomila (1889), 132 U.S. 478, 10 S.Ct. 155, 33 L.Ed 400. However, the United States Supreme Court has long recognized the primacy of state courts over probate matters. See Yonley v. Lavender (1874), 88 U.S. (21 Wall.) 276, 22 L.Ed 536. Although the federal court retains jurisdiction over claims impacting the estate, the court cannot seize and control property which is in the possession of the state probate court. Waterman v. Canal-Louisiana Bank & Trust Company (1909), 215 U.S. 33, 44, 30 S.Ct. 10, 12, 54 L.Ed 80, 84. The assets of the estate remain subject to exclusive state control. As the Waterman court noted, citing Byers v. McAuley (1893), 149 U.S. 608, 13 S.Ct. 906, 37 L.Ed.2d 867:

“A citizen of another state may establish a debt against the estate. (Citation omitted.) But the debt thus established must take its place and share of the estate as administered by the probate court; and it cannot be enforced by process directly against the property of the decedent. . (Emphasis added.)

215 U.S. at 44, 30 S.Ct. at 12, 54 L.Ed at 84.

It is thus clear that while “a federal court may exercise jurisdiction and enter a judgment binding on a claimant and the administrator of an estate, the federal court may not exercise dominion over assets in the estate which by state law are subject to the exclusive possession of the state probate court.” Nichols v. Marshall (10th Cir. 1974), 491 F.2d 177, 181.

Similarly, the federal courts have also demonstrated a reluctance to intrude upon the state province of family protection. In United States v. Yazell (1966), 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404, the Supreme Court was asked to uphold the Small Business Administration’s attempt to levy on property pursuant to loan default in violation of Texas family law. Noting the absence of a federal interest sufficient to override state law concerning family and family-property arrangements, the court held:

“We decide only that this Court, in the absence of specific congressional action, should not decree in this situation that implementation of federal interests requires overriding the particular state rule involved here. Both theory and the precedents of this Court teach us solicitude for state interests, particularly in the field of family and family-property arrangements. They should be overridden by the federal courts only where clear and substantial interests of the National Government, which cannot be served consistently with respect for such state interests, will suffer major damage if the state law is applied.

“Each State has its complex of family and family-property arrangements. There is presented in this case no reason for breaching them.”

382 U.S. at 352, 86 S.Ct. at 507, 15 L.Ed.2d at 410. See also Fink v. O'Neil (1882), 106 U.S. 272, 1 S.Ct. 325, 27 L.Ed 196 (federal court cannot order execution on land protected by state homestead exemption.)

In the instant case, the issuance of the writ of execution by the court clerk following Jeffrey Wilhelm’s death infringed upon the state’s jurisdiction to determine matters of probate. Upon Jeffrey Wilhelm’s death, jurisdiction over the assets of the estate was vested solely in the state court. See Waterman, supra. Credit Alliance Corporation’s subsequent attempt to execute on the assets of the estate pursuant to a federal writ of execution violated the state’s prerogative and the prohibition against execution during the pendency of probate in contravention of Section 72-3-813, MCA. It also contravened the state’s primacy in the area of family protection. See discussion, infra.

When confronted with an analogous situation, the United States Court of Appeals for the First Circuit determined that a writ issued solely on the authority of a federal court clerk in violation of state law is without effect. Gabovitch v. Lundy (1st Cir. 1978), 584 F.2d 559, 561. However, neither this Court nor the District Court has the authority to invalidate federal action. Rio Grande Railroad Co. v. Gomila (1889), 132 U.S. 478, 10 S.Ct. 155, 33 L.Ed 400. That task remains solely within the discretion of the federal courts. In this case, we conclude the federal court has so acted.

In Credit Alliance Corporation’s related quiet title action before the federal District Court, Credit Alliance Corporation claimed the right to quiet title to the property pursuant to the property’s purchase at the execution sale. The federal court disagreed. Recognizing the exclusive jurisdiction of state courts in probate matters, the federal court determined that jurisdiction over the property was vested in the state court upon Jeffrey Wilhelm’s death, an event which occurred prior to the execution. Credit Alliance Corporation v. Wilhelm, et al. (D. Mont. 1988), (No. 87-218) slip op. at 3. Consequently, the federal court lacked jurisdiction to determine title to the property. Slip op. at 4.

On its face, the federal court’s determination that the assets of the estate of Jeffrey Wilhelm became subject to state court jurisdiction upon his death, a time prior to the execution, clearly invalidates the writ. Although the District Court lacked jurisdiction to invalidate the federal writ of execution, it nevertheless had the authority to determine title to the property. We must therefore conclude that the issue is moot.

PRIORITY OF CLAIMS

Judgment liens are controlled by Title 25 of the Montana Code Annotated. Section 71-3-1504, MCA. Pursuant to Section 25-9-301(2), MCA, a judgment constitutes a lien against “all real property of the judgment debtor not exempt from execution ...” (Emphasis added). In the instant case, Credit Alliance Corporation contends that the property at issue is not exempt from execution. We disagree.

Judgment liens are designed to assist creditors to collect debts due and owing. Generally, the death of a judgment creditor does not affect the vitality of a judgment lien. Section 25-13-103(2), MCA. However, a judgment lien is solely a creature of statute and completely dependent upon the authorizing statute for the terms and limits of its existence. McMillan v. Davenport (1911), 44 Mont. 23, 31, 118 P. 756, 758, 759. It is a general lien on all real property owned by the debtor but is not a specific lien on any particular piece of property. Vaughn v. Schmalsle (1890), 10 Mont. 186, 194, 25 P. 102, 103. As such, a lien does not create title to the property nor does it create an estate or interest therein. See, Martin v. Dennett (Utah 1981), 626 P.2d 473, 475. Rather, the lien merely creates a right of seizure of the debtor’s interest as defined and limited by the terms of the authorizing statute. See, Hannah v. Martinson (1988) [232 Mont. 470,] 758 P.2d 276, 45 St.Rep. 1203.

The family protection and allowances granted pursuant to statute states public policy. The goal is to ensure that the family of a decedent is not left destitute and dependent upon the public charity. Estate of Lawson (Mont. 1986), [222 Mont. 276,] 721 P.2d 760, 762, 43 St.Rep. 1261, 1263. Unlike judgment liens, the family protection allowances grant the family of the decedent a vested interest in property. The right exists apart from, and in addition to, any rights flowing from the estate. Lawson, 721 P.2d at 762, 43 St.Rep. at 1263; Matter of Merkel's Estate (Mont. 1980), 618 P.2d 872, 37 St.Rep. 1782. In addition, the right is to be liberally construed in order to effectuate its purpose. Matter of Hutchinson's Estate (Alaska 1978), 577 P.2d 1074, 1076. See also, Lawson, supra (nature of family allowances preclude defenses of offset, satisfaction, payment or abandonment).

In the instant case, we are confronted with a statutory conflict between the competing interests of the decedent’s family and creditors due to the insolvency of the estate. In such situations, the applicable statutes cannot be viewed in a vacuum. Rather, the statutes should be read together and, if possible, harmonized so as to give effect to each of them. Schuman v. Bestrom (Mont. 1985), [214 Mont. 410,] 693 P.2d 536, 42 St.Rep. 54.

Where there are ancillary proceedings in this state, the family of the decedent is entitled to family exemptions and allowances as determined by the law of the decedent’s domicile — Alaska. See Section 72-3-821, MCA. Pursuant to Alaska law, Wilhelm’s family is entitled to a homestead allowance, exempt property allowance and family allowance totaling $52,000. See, AS Sections 13.11.125, 130 and 135. However, the insolvency of the Alaska estate has left $48,253.74 of the amount unsatisfied.

Both Alaska and Montana law provide that the homestead allowance is exempt from and has priority over all claims against the estate. See AS Section 13.11.125, AS and Section 72-2-801(2), MCA. A similar priority has been granted under the family allowance and exempt property provisions in order to provide the dependents of the decedent with the means to provide themselves with the basic necessities of life. See AS Sections 13.11.130, 13.11.135, AS and Sections 72-2-802(2), 72-2-803(2), MCA. In addition, both probate codes recognize the continuing nature of a judgment lien. See AS Section 13.16.515, and Section 72-3-812, MCA.

However, unlike Alaska, this Court has not been confronted with a similar dispute. In Hutchinson, supra, the Alaska court was asked to determine the priorities between the family protection allowances and administrative expenses. Although applying an Alaska statute, the court’s examination of the rationale underlying the priority given family protection allowances is nonetheless sound.

“Those who dealt with the decedent did so with knowledge of the existence of such provisions for the protection of himself and his family, and only upon the margin of his credit over such exemptions. It is therefore in no sense unfair to them that such provisions be continued in effect after his death, for the benefit of his family. The public welfare, moreover, is largely involved. If indigent widows and orphans were to be left wholly without means of support, a great burden would be cast upon society and they would frequently be left to suffer for faults which they were without power or capacity to oppose. It is repeatedly and soundly declared, accordingly, that the statutory rights of the family of a decedent to maintenance and support and to such protection against deprivation of the bare necessities of life as is accorded by the exemption and homestead laws and continued for their benefit, although in derogation of the common law, are strongly favored and are to be liberally construed in view of their humanitarian purpose.”

577 P.2d at 1076. We believe the same reasoning to be equally applicable here.

While the code indicates that a judgment lien survives the death of a debtor (Sections 25-13-103(2), 72-3-812, MCA), it does not provide that the judgment creditor’s interest is inviolate. The creditor was aware of the family protection laws at the time he engaged in business with the debtor and knew that his remedy for breach might be subject to the same. Unlike a mortgage, a judgment lien does not create a vested right in a specific piece of property. Short of such a right, the existence of the lien should not prevent the property to which the lien attached from being marshaled as assets of the estate. See, Martin, 626 P.2d at 476; see also In Re Donner's Estate (Fla. App. 1978), 364 So.2d 753 (lien cannot be imposed upon the surviving spouse’s dower); Thomas v. Bailey (Miss. 1979), 375 So.2d 1049 (widow’s allowance is superior to judgment lien).

We therefore conclude that although the judgment lien attached prior to Wilhelm’s death, the lien was extinguished upon the exercise of the Wilhelm family’s statutory rights granted pursuant to the family protection allowances. At that time, the property was no longer non-exempt within the meaning of Section 25-9-301(2), MCA.

It is not necessary now to discuss the issue advanced by the estate that when Credit Alliance Corporation filed a creditor’s claim in the Alaska probate proceedings, it waived its judgment lien upon specific probate property.

The judgment is affirmed.

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