author: JUSTICE WEBER

text:
    STATE OF MONTANA EX REL. TERESA McCANN O'CONNOR, Deputy County Attorney for Yellowstone County for the State of Montana, Petitioner, v. THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, in and for the County of Yellowstone and the Honorable District Judge, Robert Holmstrom, Jr., Respondents.
    No. 90-364.
    Original Proceeding Aug. 16, 1990.
    Decided Sept. 27, 1990.
    799 P.2d 1056.

      Teresa McCann O’Connor, Deputy County Atty., Billings, for petitioner.
    Marcia K Good Sept, Thirteenth Judicial Dist., Billings, for respondents.
   JUSTICE WEBER

delivered the Opinion of this Court.

Teresa McCann O’Connor (Ms. O’Connor) Deputy County Attorney for Yellowstone County, seeks a writ of certiorari for the review of the order of the District Court of Yellowstone County dated July 16,1990, finding her in contempt of court for her failure to obey a direct order of the court and fining her $200. We affirm the finding of contempt by the District Court and refuse the issuance of the writ of certiorari.

The contempt with which we are here involved is a part of one of a series of drug cases in Yellowstone County which are referred to as “Operation Snowball.” Hal Turner was the confidential informant whose information was a foundation for the Operation Snowball cases.

We will set forth various findings and conclusions of the District Court in its Findings of Fact, Conclusions of Law and Order, dated July 16, 1990. We have carefully reviewed the transcripts before us of the hearings before the District Court, as well as the “intake interview” of Mr. Turner, which demonstrate that the findings of fact of the District Court are based upon substantial evidence. By order dated February 28,1990, the District Court set evidentiary hearings for Tuesday, March 13,1990, upon the defendant’s Motions to Dismiss and to Produce. That order contained the following statement:

“3. That Harold Hanser, County Attorney of Yellowstone County and Teresa McCann O’Connor, Deputy County Attorney of Yellowstone County appear at said time to show cause, if any they may have, why sanctions pursuant to § 46-15-329, MCA, should not be imposed.”

(Emphasis supplied.)

Following are summaries of findings and conclusions of the District Court: Sometime prior to 1987, a drug enforcement unit within Yellowstone County’s Sheriff’s Department was created and the unit from time to time conducted joint operations with DEA, a federal drug enforcement agency. Sergeant Newell of the Sheriff’s Office was in charge of the drug unit for more than two and one-half years. The drug unit used confidential informants. In January 1989, Hal E. Turner contacted officers and on January 3, 1989, Sergeant Newell conducted an intake interview which was recorded, transcribed into 70 pages, and later signed by Mr. Turner. The practice of Sergeant Newell was to create as a part of the records of the Drug Unit, a file on each confidential informant and to place the entire intake statement in that file. Sergeant Newell estimated 12 to 14 intake statements had been taken and that the existence of those statements had not been disclosed to the Yellowstone County Attorneys office when the “investigative file” concerning each of the cases was delivered to the County Attorneys office. He also testified that the decision as to whether or not to disclose the existence of the statements was his to make. Mr. Turner was used by the Sheriff’s Office and DEA as a confidential informant in Operation Snowball which resulted in 41 cases being filed in state court. The 41 cases listed a “confidential informant” without disclosing Mr. Turner’s identity.

During January 1990, Ms. O’Connor was preparing for the Standley trial and Sergeant Newell provided her with the 70 page Turner statement, and told her that it was considered to be an intelligence file which they did not wish to have disclosed. Ms. O’Connor read the statement and advised Sergeant Newell that the statement was not discoverable in connection with the Standley case because she did not feel the statement contained exculpatory or inculpatory information or information which would provide a basis for impeachment.

District Court Finding VII is a key finding:

“VII
“On February 9, 1990, an Omnibus hearing was held in consolidated causes, DC 89-281 and DC 89-325, State v. Timothy Evenson; O’Connor appeared at the Omnibus hearing and participated in the completion and signing of what is generally referred to as the ‘Omnibus Form’, a printed document entitled ‘Action Taken’ (Omnibus Hearing); among other things, the form reflects that the Defendant ‘requests and moves for ... (b) discovery of the names of State’s witnesses and their statements’; further, that the Court granted the Defendant’s Motion for such information; at the time of the Omnibus hearing, O’Connor knew of the existence of the Turner statement, had a copy thereof, but failed to produce it or inform the Court or defense counsel of its existence.” (Emphasis supplied.)

The findings of fact are further summarized: After the omnibus hearing Ms. O’Connor met with Chief Deputy County Attorney Bradley and gave him various information including a copy of the Turner statement, with a note which stated in part that Sergeant Newell did not want the interview turned over to defense counsel on the Snowball cases. She told him she found no problem with that, there was no exculpatory or inculpatory information included which had not been turned over. Later on the same day, Mr. Bradley met with Yellowstone County Attorney Hanser, and advised him of the Turner statement; and they decided to advise all defense counsel in the Snowball cases of the existence of the Turner statement and to provide a copy to each of the district judges of Yellowstone County. On February 23, 1990, motions to produce the statement and to dismiss several informations were filed. With regard to the hearing on March 13 and 14, 1990, the findings further stated:

“Hanser testified he did not know of the existence of the statement until the afternoon of February 9,1990, and had he been aware of it, he would have put defense counsel on [notice] of its existence and asked the Court to examine the statement and determine what part, if any, should be released to the Defendant in each specific case; Bradley testified that he felt, as T, a prosecuting attorney could not make a determination of what should or should not go to defense counsel’ and that ‘The best thing to do was to let defense counsel have a shot at it’ and this is why he provided each of the five (5) Judges with a copy of the statement and notified defense counsel of its existence;... O’Connor testified that it was her job to decide whether or not defense counsel should even be made aware of the existence of intelligence statements; further, that she did not turn over the statement because Officer Newell had asked her not to and she had given him an opinion that it did not need to be.”

The court found that no evidence had been submitted that any portion of the Turner statement should not be furnished, and entered its Conclusions of Law which provided that the defendants were entitled to the production of the entire -unedited Turner statement pursuant to § 46-15-328, MCA, and to the Order of the Court contained upon the Omnibus form directing “discovery of the names of the State’s witnesses and their statements.” The court further concluded that the fact that County Attorney Hanser and Deputy County Attorney Hoefer were unaware of the existence of the Turner statement constituted a showing why the sanctions provided by § 46-15-329, MCA, should not be imposed upon them. With regard to Ms. O’Connor, the court concluded:

“5. The failure of Deputy C ounty Attorney O’Connor to disclose the existence of the Turner statement to the Court at the time of the Omnibus hearing when she had been issued a direct order by the Court to do so, as part of the action taken at the Omnibus hearing constitutes a contempt of the Court, as set forth in 3-l-501(l)(e), MCA; that as punishment for her contempt, a fine of Two Hundred and No/100ths Dollars ($200.00) should be imposed upon Deputy County Attorney O’Connor.”

As a result the court ordered that Ms. O’Connor was found in contempt of court for her failure to obey a direct order of the court, a fine of $200 was imposed and she was directed to pay the fine to the Clerk of the District Court within five days from July 16, 1990. She has not paid that fine.

In its memorandum the District Court discussed the history of discovery in criminal cases and pointed out that § 46-15-322, MCA, as adopted in 1985 stated in pertinent part:

“Disclosure by prosecution. (1) Upon arraignment in district court or at such later time as the court may for good cause permit, the prosecutor shall make available to the defendant for examination and reproduction the following material and information within his possession or control:
“(a) a list of the names and addresses of all persons whom the prosecutor intends to call as witnesses in the case-in-chief, together with their relevant written or recorded statements'” (Emphasis supplied.)

The court further referred to the protective order provisions of § 46-15-328, MCA, as adopted in 1985, which provide:

“Excision and protective orders. (1) Upon a motion of any party showing good cause, the court may at any time order that disclosure of the identity of any witness be deferred for any reasonable period of time, not to extend beyond 5 days prior to the date set for trial, or that any other disclosures required by 46-15-321 through 46-15-329 be denied, deferred, or regulated when it finds:
“(a) that the disclosure would result in a risk or harm outweighing any usefulness of the disclosure to any party; and
“(b) that the risk cannot be eliminated by a less substantial restriction of discovery rights.
“(2) Whenever the court finds, on motion of any party, that only a portion of a document or other material is discoverable under 46-15-321 through 46-15-329, it may authorize the party disclosing it to excise that portion of the material which is nondiscoverable and disclose the remainder.
“(3) On motion of the party seeking a protective or excision order or in submitting for the court’s determination the discoverability of any material or information, the court may permit him to present the material or information for the inspection of the judge alone. Counsel for all other parties are entitled to be present when such presentation is made.
“(4) If the court enters an order that any material or any portion thereof is not discoverable under 46-15-321 through 46-15-329, the entire text of the material must be sealed and preserved in the record in the event of an appeal.”

The District Court pointed out that the test established by the Legislature is a finding by the Court that the disclosure would result in a risk or harm outweighing any usefulness of the disclosure to any party.

With regard to the sanction of contempt, the District Court discussed the matter of sanctions at some length in its memorandum. A key paragraph setting forth the reasons for the conclusion that there was intentional and purposeful conduct on the part of Ms. O’Connor is the following:

“Notwithstanding the provisions of section 46-15-328, MCA, which establishes a procedure whereby the prosecution or the defense may apply to the Court for a Protective Order prohibiting the disclosure of the contents of a document or other material, Deputy County Attorney O’Connor testified that it was her function to decide whether or not the statement should be released to defense counsel. (Transcript p. 107,11. 1-10). The testimony of Deputy County Attorney O’Connor, and the lack of any evidence that she failed to disclose the existence of the statement through inadvertence or oversight, led the Court to the conclusion that she purposely and intentionally disobeyed a direct Order of the Court to provide defense counsel with a copy of all statements of the witness Turner.”

The District Court then referred to § 46-15-329, MCA, adopted in 1985, which states:

“Sanctions. If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with any of the provisions of 46-15-321 through 46-15-329 or any order issued pursuant to 46-15-321 through 46-15-329, the court may impose any sanction that it finds just under the circumstances, including but not limited to:
“(1) ordering disclosure of the information not previously disclosed;
“(2) granting a continuance;
“(3) holding a witness, party, or counsel in contempt,
“(4) precluding a party from calling a witness, offering evidence, or raising a defense not disclosed; or
“(5) declaring a mistrial when necessary to prevent a miscarriage of justice.” (Emphasis supplied.)

The court next referred to § 3-1-501, MCA, which in relevant part provides:

“What acts or omissions are contempts. (1) the following acts or omissions in respect to a court of justice or proceedings therein are contempts of the authority of the court:
“(e) disobedience of any lawful judgment, order, or process of the court;

Pertinent to the foregoing is the penalty provision set forth in § 3-1-519, MCA, which states:

“Penalty. Upon the answer and evidence taken, the court or judge must determine whether the person proceeded against is guilty of the contempt charged. If it be adjudged that he is guilty of the contempt, a fine may be imposed on him not exceeding $500 or he may be imprisoned not exceeding 5 days, or both.”

Also pertinent is § 3-1-523, MCA, which states in pertinent part:

“Judgment and orders in contempt cases final. The judgment and orders of the court or judge made in cases of contempt are final and conclusive. There is no appeal, but the action of a district court or judge can be reviewed on a writ of certiorari by the supreme court

The District Court concluded that the facts in the present case are similar to those in Matter of Graveley (1980), 188 Mont. 546, 614 P.2d 1033. The District Court pointed out that not only did Deputy County Attorney O’Connor directly violate an order of the court, but her failure to disclose the existence of the statement deprived the defendants of the opportunity to exercise their statutory right to obtain all witness statements unless the State could make a showing that “disclosure would result in a risk of harm outweighing any usefulness of the disclosure to any party.”

This Corut has been furnished with transcripts of the hearings on the motions before the District Court and has received the benefit of extensive briefs on the part of Ms. O’Connor, the District Court, and the Attorney General’s Office. The Court has concluded there is no necessity for the issuance of a writ of certiorari, which is described in our statutes as a writ of review (§ 27-25-101, MCA.) The Court has concluded no hearing is required.

I

The Attorney General contends this is a constructive criminal contempt proceeding, that due process standards were not followed because Ms. O’Connor was not advised that she was charged with contempt, and that there was a failure to prove the appropriate mental state required for a criminal contempt. Ms. O’Connor makes a similar argument.

The District Court held that a contempt had been committed under the provisions of § 3-l-501(e), MCA. That is not by definition a criminal contempt proceeding. It is true that under § 3-1-519, MCA, the court has the power upon a judgment of contempt to impose a fine not exceeding $500 or to imprison a person not exceeding 5 days, or both. We point out that § 45-7-309, MCA, provides that a person commits the offense of criminal contempt when he knowingly engages in various defined conduct. The District Court did not proceed under § 45-7-309, MCA.

We do not find it necessary to determine whether or not the present order of contempt could be classified under any theory as a criminal contempt. We conclude that regardless of the classification of the contempt, due process standards were met in the present case. As previously quoted, the order of February 28, 1990, advised Ms. O’Connor that she was to appear to show cause, if any she may have, why sanctions pursuant to § 46-15-329, MCA, should not be imposed. As quoted, § 46-15-329, MCA, provides for the sanction of contempt where there has been a failure to comply with disclosure required by the preceding statutes. That notice is adequate for due process purposes to advise Ms. O’Connor of the charges against her and to give her a reasonable opportunity to meet the charges by way of defense or explanation. In addition, the transcript demonstrates that County Attorney Hanser and Deputy County Attorney Hoefer, testified at length and explained their thinking with regard to full disclosure. Ms. O’Connor also testified at length and explained her thinking in some detail. Her explanation contradicted the testimony on the part of both Mr. Hanser and Mr. Bradley. They concluded that the Turner statement should be furnished. Ms. O’Connor disagreed with that conclusion.

With regard to a proof of mental state, while the statute in question here does not require an action which may be classed as a “knowing” act, again it is clear from the transcripts and the arguments that Ms. O’Connor ably and consistently and at length presented her views on the subject of disclosure of the statements. She clearly understood her obligations to disclose witness identity and statements, and reached her conclusions not to disclose, which she still holds. We conclude there is substantial evidence which demonstrates knowing conduct on the part of Ms. O’Connor. We further conclude there is substantial evidence in the record to support the conclusions reached by the District Court regardless of whether the burden was upon the State or upon Ms. O’Connor.

We therefore conclude that Ms. O’Connor received due process.

II

Ms. O’Connor contends that the District Judge has stated the issue as whether a deputy county attorney who violates a direct court order and the Montana Criminal Discovery statutes is guilty of contempt. She points out the answer may be yes if the violation was willful, and then argues that there was nothing which can be classed as willful violation on her part. She argues that because the 70 page statement did not even contain the name or any discussion of the defendant Evenson, with whom we are concerned in the present case, it cannot be classed as a relevant written statement. In addition she argues that if there was a violation of the omnibus order, there was not substantial evidence to demonstrate it was willful. She last argues on due process standards which have previously been considered.

In Marks v. First Judicial District Court (1989), [239 Mont. 428,] 781 P.2d 249, 251, 46 St.Rep. 1804, 1805, this Court stated that in reviewing a contempt appeal, this Court’s standard of review is whether substantial evidence supports the judgment of contempt. In Matter of Graveley, where a $200 contempt was levied against the County Attorney and Sheriff, this Court stated that in civil contempt proceedings, the type, character and extent of punishment rests in the court’s discretion as measured by the showing made and that in light of the findings made and the evidence supporting the findings, the district court was justified in assessing a sum of $200 against each of the petitioners.

In a directly comparable manner, we conclude that in the present case, the findings made by the District Court were supported in all instances by substantial evidence, and that the District Court was justified in assessing $200 as the fine under § 3-1-519, MCA and § 3-1-501, MCA.

In view of the extended argument on the part of Ms. O’Connor that she cannot be held responsible for her conduct because she did not wilfully violate the statute requiring disclosure by her of the statements to defense counsel and consideration by the District Court, we refer to a portion of the transcript of her own testimony. In response to cross-examination by counsel, Ms. O’Connor, when asked if the 70 page document was a witness statement, answered by stating that her position was that the 70 page document was not an investigative statement. In response to questioning from the judge Ms. O’Connor pointed out that she would not concede that the 70 page statement was a witness statement within the meaning of the discoverable witness statutes. Upon further extended examination by the judge, she stated that under § 46-15-322, MCA, which requires a prosecutor to make available to the defendant all persons to be called as witnesses with their relevant written statements, her position was that it is up to the prosecutor to make the determination as to which statements are relevant and which are not. The court then attempted to have Ms. O’Connor indicate whether or not she thought the court had the power to make the ultimate determination on this issue, and Ms. O’Connor chose not to take that position. She also pointed out that her view was that it depended on whether the witness statement was “investigative or intelligence in nature.” She also pointed out that it was the State (the prosecution and sheriff’s office) which had the obligation to determine whether the statement met that standard.

As previously mentioned, in their testimony, both County Attorney Hanser and Chief Deputy County Attorney Bradley concluded that under the statute and also under the open file policy of the County Attorney’s office, the statement in question should be disclosed to defense counsel and to the court with a request that the court determine whether or not some portions of the statement should not be disclosed under the provisions of § 46-15-328, MCA. Ms. O’Connor’s position is set forth clearly in the following quotation from the transcript of her testimony:

“Q If I remember Mr. Bradley’s testimony correctly, it was his opinion that at the time those persons were charged, whatever interview given by Hal Turner which may have been part of an intelligence file at that time became part of the investigative file. Do you disagree with that?
“A Yes, I disagree with that.
“Q On what bases?
“A I don’t think that a statement which — that a document which belongs to an intelligence file somehow magically becomes part of an investigative file, unless its substance so dictates.
“Q Then we get to the question of who decides what the substance is.
“A In this particular instance with regard to the Standley case, sir, I did.
“Q Do you believe that isproperly within your purview to make that decision?
“A Yes.
“Q As to whether information contained in an interview is inculpatory or exculpatory or grounds for impeachment?
‘A I think that I am responsible to make such decisions with an understanding that if I make them incorrectly sanctions will be made against the government.” (Emphasis supplied.)

As best this Court can determine, this appears to be the key point of Ms. O’Connor’s argument. She contends she cannot be held in contempt because she had a good faith belief there was no reason to disclose the Turner statement. As mentioned, both the County Attorney and Chief Deputy County Attorney disagreed with her. It is clear that she still disagrees with both of them. It is also clear from her testimony and her arguments that she does not concede that the District Judge was correct when he concluded that the statute required of the prosecution that the information be furnished to defense counsel and submitted to the court for determination as to whether disclosure was required. We have reviewed the 70 page Turner statement and agree with the conclusions of the District Court and the County Attorney and Chief Deputy County Attorney that disclosure was necessary.

The District Court expressed its concern as to the procedure in 12 to 14 other criminal cases where intake interviews of confidential informants were not disclosed to the county attorney, to the defense counsel or to the court. In a similar manner, the court expressed its concern that even though the omnibus order required disclosure of the confidential informant and the witness statement, even though the open file policy of the Yellowstone County Attorney’s office required such disclosure, and even though the statutes required disclosure, Ms. O’Connor still contended that she was not required to disclose the existence of the Turner statement to defense counsel or to the court.

The ultimate responsibility for the determination of nondisclosure to the defendant rested in the District Court and not in Ms. O’Connor. The District Court concluded that Ms. O’Connor’s failure to make the Turner statement available constituted contempt of court and assessed the $200 fine. We affirm that conclusion and the action of the District Court.

We conclude there is no necessity for the issuance of a writ of certiorari or writ of review. This matter is remanded to the District Court for such further proceedings as it may require.

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

JUSTICE SHEEHY did not participate.


source: Caselaw Access Project

author: JUSTICE SHEEHY

license: Public Domain

text:
    The MONTANA DEPARTMENT OF REVENUE, Petitioner, v. PATRICIA C. BARRON, and the State Tax Appeal Board, Respondents.
    No. 90-416.
    Submitted Sept. 7, 1990.
    Decided Oct. 12, 1990.
    799 P.2d 533.

      David W. Woodgerd, Chief Legal Counsel, Geralyn Driscoll, Tax Counsel, Dept, of Revenue, Helena, for petitioner.
    J. Vaughn Barron, Great Falls, State Tax Appeal Bd., Helena, Charles A. Smith, Attorney for STAB, Helena, for respondents.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

On September 11, 1990, this Court in this cause handed down a temporary order declaring that the application by the Department of Revenue of the stratified sales assessment ratio study in Area 2.1 (Great Falls Downtown) to the valuation of Patricia C. Barron’s property was invalid for reasons to be later explained; we ordered that for all other properties in the state to which the Department’s stratified sales assessment ratio studies for tax year 1990 had been applied, except for those instances now pending on appeal or properly appealed by the property owners, the effective date and application of our temporary order was prospectively continued until December 31, 1990; and we resolved for future decision the proper valuation of the property of Patricia C. Barron.

The effect of the prospective stay in the Order of September 11, 1990, is that as to all property affected by the stratified sales assessment ratio studies except for those stated in the Order, the appraised values for property tax purposes for the tax year 1990 shall be those found and applied by the Montana Department of Revenue (DOR) under said studies.

Under our state constitutional duty to pronounce our decisions in writing (Art. VII, § 3,1972 Mont. Const.), as an aid to the legislature in its future enactments and by way of explanation to affected Montana taxpayers, we come now to make permanent the provisions of our temporary order and to set out the facts and conclusions which form the basis for the temporary order.

This is an original proceeding in this Court brought by the DOR which petitioned for a writ of review, a writ of supervisory control, or other appropriate emergency writ for relief from an order of STAB dated August 3, 1990. In that order, STAB had concluded, upon the protest of Patricia C. Barron, that the DOR’s implementation of §§ 15-7-111(4) (8) , MCA, was unconstitutional. (STAB contended here that it did not find the implementation unconstitutional, but only that a court would find it unconstitutional.) DOR’s petition pointed to imminent statutory deadlines in the property tax collection process which created an emergency situation and said that a prompt ruling from this Court was necessary to end the uncertainty. DOR contended that no other adequate remedy existed that was speedy enough and that irreparable harm to taxpayers and governmental entities would occur if the controversy was not resolved well in advance of the issuance of tax notices that had to be mailed by October 25, 1990.

On receipt of DOR’s application, we ordered that we would treat the proceedings as one for declaratory relief under Ch. 8, Title 27, MCA, obtain a response from the respondents, and set an oral argument date. Responses were filed and served, oral argument was had, and thereafter, on consideration, we issued a temporary order to which we have above adverted.

OVERVIEW

The Montana Constitution provides that the state shall appraise, assess, and equalize the valuation of all property which is to be taxed in a manner provided by law (Art. VIII, § 3). The state must establish the assessed valuations (Art. VIII, § 4) and the legislature must provide independent appeal procedures for taxpayer grievances, appraisals, assessments, equalization and taxes, with a review procedure at the local government unit level (Art. VIII, § 7).

To implement the constitutional provisions, the legislature provided for property appraisals in Ch. 7, Title 15, MCA. In 1975, a scheme was adopted whereby the state would evaluate under a comprehensive reappraisal plan all taxable property in the state at least every five years. The DOR was required to adopt a plan so that all property in each county was revalued at least every five years or that no less than 20% of the property in each county was revalued each year. Section 15-7-111, MCA (1987).

The current five-year cycle for reappraisal began in 1986. The legislature extended that cycle period in 1989 for an additional two years, to end December 31, 1992, and postponed the commencement of another five year revaluation cycle until January 1, 1993. Section 15-7-133, MCA. The DOR was given an additional two years to complete the current revaluation cycle. Section 15-7-132, MCA.

In the last two legislative sessions, however, the legislature substantially amended the revaluation cycle. Ch. 613, Laws of Montana (1987); Ch. 636, Laws of Montana (1989). While keeping the five-year provision in effect, it provided in amended § 15-7-111, MCA, that for every taxable year beginning January 1,1990, and each taxable year thereafter, the DOR is to conduct a “stratified sales assessment ratio study” of all residential land and improvements (and other property not pertinent here). Under the amendment, the DOR was to partition the State into as many as 100 areas of residential property, and as many as 20 of commercial property. The areas in each are to be separately studied. Under the study, the actual sales prices of real property parcels sold for three taxable years prior to the study were compared with their appraised values then in effect, and a ratio determined. If the average appraised values of the properties in the study, compared to the average of the actual sales amounts were less than 95% or more than 105%, the assessments for each stratum within each area were to be rescaled to bring all ratios to common value 1.

The criteria for establishing the residential areas were that they should contain statistically sufficient numbers of sales and be as economically and demographically homogenous as practicable. Section 15-7-111(6), MCA. For tax year 1990, the DOR established 47 residential areas in the state, of which Area 2.1 (Great Falls Downtown) was one.

Criteria for obtaining statistically valid samples of sales in each area were also set out in the 1989 amendment. It is enough to say that only arm’s-length sales were to be considered in the ratio study. The sales of remodeled residences were not to be considered and sales which showed assessment ratios of less than 50% or greater than 200% were to be excluded.

If the result of the study in each area produced sales assessment ratios of less than minus 5% of common value 1, or greater than plus 5% of common value 1, then all of the assessments in the area were to be adjusted to bring the ratios to common value 1. Section 15-7-111(8) (a), MCA. If the ratio for any area was within plus or minus 5% of the common value 1, then the assessments in the area were considered equalized and no rescaling was necessary. Section 15-7-lll(8)(c), MCA.

The legislature required the sales assessment ratio studies to commence for the taxable years beginning January 1, 1990, and for every taxable year thereafter and further provided that the ratio so determined “must be used to determine appraisals for the immediately succeeding tax year.” Section 15-7-111(4), MCA.

FACTS

Patricia C. Barron is the owner of a residence in Great Falls, Cascade County, Montana. Her property is in an area designated by the DOR as Area 2.1. Prior to 1990, the Barron property was appraised by the DOR at a total value of $28,019 for land and improvements. The DOR conducted a “stratified sales assessment ratio study” in that area for taxable year 1990. It used a sample of 243 actual sales. It found therefrom an average sales price of $39,545 and an average appraised value of $29,310. The DOR determined that the weighed mean ratio of the figures was 0.7412, which required an adjustment factor of plus 30%. The appraised value of Patricia C. Barron’s residence was therefore fixed at a total of $40,325.

Barron appealed to the County Tax Appeal Board on these grounds:

“Through H.B. 703, an arbitrary 30% increase was imposed on my house. Such an arbitrary increase does not address the mandate of Art. VIII, § 3 of the Constitution that the State equalize the valuation of all property and is therefore unconstitutional.”

The appeal was denied by the County Tax Appeal Board for the reason that “The Board was informed that an error was found and that the necessary adjustment would be made by the DOR of Revenue.”

Patricia C. Barron appealed to STAB, again on the same grounds.

STAB made findings of fact and conclusions of law on August 3, 1990, relating to the appeal. Pertinent to the findings are these:

“The testimony indicated that approximately 1,000 of these sales were chosen for Cascade County and that 243 sales were analyzed and used to determine that the properties located in Area 2.1 were underappraised by 30 percent.”

The pertinent conclusion of law with respect to this case made by STAB is found in paragraph 1. It includes:

“It is the opinion of this Board that the taxpayer did not satisfactorily challenge the DOR’s constitutional authority to appraise, assess, or equalize property values. The DOR clearly has that authority and is affirmed by the Montana Supreme Court in DOR of Revenue v. Countryside Village, (1983) 205 Mont. 51 [667 P.2d 936] Hanley v. DOR of Revenue, 207 Mont. 302, [673 P.2d 1251] (1983). However, along with that authority goes the duty, and the requirement, to equalize property values throughout an area, county to county, and statewide. It is clear to this Board from the evidence and testimony provided that, for Area 2.1 at least, this has not been achieved.” (Emphasis in original.)

STAB then went on to examine the results of the application of the 30% adjustment. Whereas before the adjustment, 40 of the 243 properties were overappraised and 203 were underappraised, after the adjustment, 102 properties were overappraised in comparison with their sales price, and 141 underappraised. STAB pointed to the Barron property, saying that even after the 30% correction was applied, the appellant’s property was still appraised at only 51% of its pinchase price which was $75,000.

STAB then went on to analyze the results and eventually decided that Patricia C. Barron’s property should be assessed at $75,000. It determined that DOR had failed to perform its constitutional mandate of equalization within Area 2.1 under the implementation of H.B. 703 and further concluded that based on the evidence presented, “the Board believes that the District Court would very likely rule that the implementation of H.B. 703 is unconstitutional, only for the reason stated above, that equalization within a specified area, has not been achieved.” (H.B. 703 became Ch. 636, Laws of Montana (1989).)

Based on the determination made by STAB in Patricia C. Barron’s case, the DOR commenced the original proceeding in this Court.

DISCUSSION

We have no issue of whether we should accept jurisdiction, since we have decided to treat the matter as an original proceeding for declaratory judgment.

The issue for us to decide is the constitutionality of the appraisal method as applied to this case.

The DOR supports the constitutionality of the amendments to § 15-7-111, MCA, which provides for the stratified sales assessment ratio study. It contends that the purposes of the amendments were to adjust current appraised values rather than to reappraise property; to achieve equalization between areas in the state; to change appraisal values dining the 5-year cycle; and pursuant to the amendments to § 15-7-111, to adopt administrative rules estabhshing the areas, and the methods of achieving the ratios, subject to administrative and judicial review. The DOR argues the taxpayer here is not in a position now to object to the adjustment to her appraisal.

The DOR further contends that STAB has no power to declare an administrative rule or a statute unconstitutional.

Patricia C. Barron contends that STAB was correct in determining that the implementation of H.B. 703 was unconstitutional as applied to her property but that STAB further erred in appraising her property at $75,000, as her right to constitutional equalization has thereby been violated. She argues that equalization is not achieved by the DOR’s method of revaluation in breaking the county down into neighborhoods and applying different adjustments to different neighborhoods. She contends that the method of appraisal used in the five-year cycle is the only proper one to be used and that the method used by the DOR in fixing her 1990 appraised value does not achieve equalization.

STAB has responded that it did not declare that the method used by the DOR was unconstitutional, but merely said that it believed that a district court would find the implementation of the appraisal unconstitutional. Since STAB’s findings of fact were not disputed by the DOR, its findings must be considered agreed to and not subject to further argument. STAB contends that the net result to the DOR’s adjustment to Area 2.1 is that there are now more properties over-appraised and fewer underappraised than before the adjustment. This means that 100% of the 243 properties are still not appraised at market value after the application of the implementation.

STAB attacks the methodology used by the DOR in reaching the ratio. Cascade County has 40,699 improvements to real property; the DOR found 1,057 acceptable sales in the County or 2.6% of the total improvements in the County. There is no indication that this is a representative sample relating to age, condition, size, design, construction materials, location, utilities, city or county services, or other factors that determine value. STAB further contends that the appraisal values are not closer to market value as a result of the implementation and there is no evidence that the study brings the appraised property within the range of equality and market value.

As an additional issue, STAB points out that the amendment to § 15-7-102(6), MCA, now provides that a property owner may not appeal the yearly adjustments specified in § 15-7-111, MCA, that may be made as a result of the sales assessment ratio studies. Since there is no savings clause in Ch. 636, Laws of Montana (1989), H.B. 703, if the appeal provision is unconstitutional, STAB says that the whole of the legislation should fail.

Like the policeman in the Pirates of Penzance, taking one consideration with another, the DOR’s lot in property tax appraisal is not a happy one. Hampered by inadequate staff and funds, its task of individual appraisal of properties is almost impossible in any annual revision. The legislature itself is strapped in providing staff and additional funds. Yet, if our conclusions here are properly drawn and if we have a truly representative sample, property tax appraisals in Area 2.1 are seriously out of whack.

We are working, of course, with a foreshortened record. We have before us 243 actual sales which fall within the parameters set up by the legislature. Other sales in that area are excluded. We are not told how many residential properties in total are to be found in Area 2.1. We assume, therefore, that because the legislature required it (§ 15-7-lll(5)(b), MCA), and because it was not contested before STAB, that the 243 sales are a statistically valid sample, and that they truly represent the status of all tax appraisals in Area 2.1, before and after the application of the adjustment of 30% under the study conducted by the DOR.

One of the exhibits in the record before STAB was the DOR report containing the results of all stratified sales assessment ratio studies done in Area 2.1, required to be published by the DOR under § 15-7-lll(7)(b), MCA. That report includes all of the 243 sales relied on by the DOR. Shown on the report are the appraised values as of 1989, the sales price for the individual properties and the ratio, for each sale, of the sales price over the 1989 appraised value. It was by averaging all of the appraised values for the 243 parcels and averaging all of the sales prices for the same parcels, that the DOR determined that a 30% adjustment upward to the appraised values in Area 2.1 was necessary. Based on this determination, every residential property in Area 2.1, including those in the 243 sales, were raised by that percentage.

STAB produced for us the effect of the 30% increase on each of the 243 sales. The following are some samples taken from that exhibit:

Samples of effect on residential appraised values used in Area 2.1 Analysis
1989 Appraised Value Sale Price Ratio 1990 Adjusted Appraised Value
24.000 46,497 1.9374 61,346
10.000 18,383 1.8383 23,848
21,600 30,920 1.4315 40,196
101,947 100,000 1.0195 132,531
23,944 23,500 1.0189 31,127
16,953 17.000 0.9972 22.039
Samples of effect on residential appraised values used in Area 2.1 Analysis (Continued)
1989 Annraised Value Sale Price Ratio 1990 Adjusted Appraised Value
12,543 24,900 0.5037 16,306
21,386 42,600 0.5020 27,802
(The first three samples were at the top of the overappraised scale; the middle three samples were appraised approximately at their sales value; the last three samples are at the bottom of the underappraised scale.)

It may be demonstrated by the above samples that equalization is not achieved by the application of the 30% factor but rather that any inequality of appraisal is exacerbated by the factor. For example, the first property, which sold for $24,000 in 1989 but was appraised for $46,497 is now assessed after the application of the factor, at $61,346. That same property was overappraised in relation to its sales price at 193% before the application of the factor, but is overappraised 255% after its application.

Examples of unfairness are demonstrated by those properties which were in 1989 appraised at or near their actual sales value. The property whose sales price was $100,000 but was appraised at $101,947 was 100.9% overappraised in 1989, but will be 132% over-appraised in 1990.

Strangely, the underappraised properties fare better in comparison to others when the 30% factor is applied. The last property, whose sales price was $42,600, was appraised at $21,386, or at 50% of its value. After the application of the 30% factor, the increase in its appraised value results only in the figure of 65% of its actual sales price.

We determine, therefore, from the record that the methodology prescribed by the legislature and implemented by the DOR for yearly equalization between areas unfairly discriminates against property taxpayers in Area 2.1 whose properties in 1989 were appraised at or above their market values.

If, as we are led to believe, the area study is statistically sound, the remainder of residential properties in Area 2.1 beyond the 243 parcels here studied must have the same resulting unfairness in the same proportions. Therefore, all residential properties in Area 2.1 which in 1989 were assessed or appraised at or above their true market values are unfairly discriminated against by the application of the 30% factor to the 1989 appraised values.

Discriminatory unfairness is countermanded by state constitutional and statutory provisions. The state is required to appraise property for tax purposes and to equalize the valuations of all property to be taxed. (Art. VIII, § 3). All taxable property in the state is to be assessed at 100% of its market value. Section 15-8-111(1), MCA. The DOR is required to adjust and equalize the valuations of taxable property among the several counties and the different classes of taxable property in any county and in the several counties between individual taxpayers. Section 15-9-101(1), MCA. For purposes of taxation, assessed value is the same as appraised value, and with certain exceptions, property is assessed at 100% of its market value; market value is defined as the value at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts. Sections 15-8-111(1) (2) (a), and (4), MCA. The DOR and its agents may not adopt a lower or different standard of value from market value in making official assessments or appraisals of the value of property unless within certain exceptions set forth in § 15-8-111(3), MCA.

In Patterson v. State DOR of Revenue (1976), 171 Mont. 168, 557 P.2d 798, this Court held valid the statutory plan for the five-year reappraisal cycle. The decision was based on features of the plan in that all like property was to be appraised by a uniform standard according to uniform valuation procedures set forth in the same designated appraisal manual. The appraisal rotation was fixed by a uniform rule requiring the property that had gone longest since appraisal and was deemed to be the most devious from current values to be appraised first. The Patterson decision was based on a plan which allowed counties to reappraise 20% of the properties every year during the five-year cycle. That provision was eliminated by the legislature in its 1989 enactment and the yearly changes in individual valuations are now based on studies conducted under the stratified sales assessment ratio theory.

However, in Patterson, it was held that the placing of revaluations on the tax rolls annually and sequentially as the reappraisals are completed, which resulted in temporary inequities, did not offend the constitutional equal protection and uniformity requirements in the absence of intentional and systematic discrimination, constructive fraud, or arbitrary action. Patterson, 557 P.2d at 803.

In Larson v. State and DOR of Revenue (1975), 166 Mont. 449, 534 P.2d 854, we had a case where the DOR had assumed its new responsibilities under the 1973 legislative acts for statewide appraisal, but the DOR had determined to use a county-financed appraisal (called the Laird appraisal) for 1974 Lewis and Clark County assessments. The District Court had found that the real estate appraisals under the Laird procedure were not conducted as a part of a uniform plan for appraisal within the state of Montana, and that the appraisals were not equalized with other counties in the state. The District Court held that the use of the Laird appraisal was unconstitutional, and the case came to this Court on appeal. In upholding the decision of the District Court that the use of the Laird appraisal was unconstitutional, this Court stated:

“Accepting as facts the absence of a state-wide appraisal plan and the disproportionate appraisal made on Lewis and Clark property, we return to the legal questions presented. The district court concluded that the adoption of the Laird appraisal would require taxpayers to bear a disproportionate share of Montana’s tax burden, in violation of the equal protection requirements of the Fourteenth Amendment to the United States Constitution and Article II, § 4, 1972 Montana Constitution. The use of the appraisal was also found to violate the due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution and Article II, Sections 17 and 29, 1972 Montana Constitution. Finally, the district court found the appraisal violated the provisions of Title 84, Chapter 4, R.C.M. 1947, which require general and uniform appraisal, and assessment and equalization of all taxable property in the state.
“A ‘general and uniform method of appraising1 necessarily requires that each appraisal or reappraisal must be a part of a plan which provides that all similar properties will be valued in like manner. The plain meaning of the statutory language admits of no other interpretation. The absence of such a plan, as discussed earlier in this opinion, thus prevents lawful implication of the Laird appraisal.”

Larson, 534 P.2d at 857-58.

The Larson court noted that there was an abundance of authority which finds no violation of constitutional or statutory mandates in the temporary inequalities which accompany a cyclical plan of reappraisal. Larson, 534 P.2d at 857. It also noted that violations of statutory uniformity requirements generally result in violations of equal protection requirements.

In this case, we have no way of knowing whether the inequities in valuations in Area 2.1 are temporary or not. Presumably, the DOR will annually make ratio studies and apply factors to increase or reduce the valuations in Area 2.1 if the average valuations are outside the 5% parameters. It might be hoped that any valuation inequities resulting from the ratio studies might be rectified by the values found at the end of the current revaluation cycle; yet, those values under the law may not be placed on the tax rolls until one year following the completion of the revaluation cycle, § 15-7-111(2), MCA, which, if not again extended, would occur in tax year 1994. Under the record here, the DOR itself will make no move to rectify inequities because of its interpretation that it is bound by law not to do so. Section 15-7-111, MCA. The legislative provisions for the application of the ratio studies include no plan for rectifying appraisal inequities which may fall upon individual property holders through application of the factors derived through the ratio.

We therefore determine in accord with Larson that the use of the 1990 tax values derived from the ratio studies and the application of the 30% factor to residential properties in Area 2.1 require certain taxpayers therein to bear a disproportionate share of Montana’s tax burden in violation of the Equal Protection requirements of the Fourteenth Amendment of the United States Constitution, and Art. II, § 4, 1972 Montana Constitution, and the Due Process requirements of the Fifth and Fourteenth Amendments of the United States Constitution and Art. II, §§ 17 and 29 of the 1972 Montana Constitution. This also violates the appraisal provisions of our statutes which require general and uniform appraisal, assessment and equalization of all taxable property in this state.

This is not to say that the legislature does not have the power to change appraisal values during the appraisal cycle. In Hanley v. DOR of Revenue (1983), 207 Mont. 302, 309, 673 P.2d 1257, 1260, this Court said:

“There can be no doubt that the power to equalize includes the power to alter an appraisal cycle ... We therefore hold that DOR has the authority, when acting under its power to equalize, to change the taxable value of property in this state within an appraisal cycle to comply with its constitutional mandate to tax on a uniform basis.”

It behooves the Court to note that the result of the DOR report relating to actual sales and appraised values in Area 2.1 should make clear to the DOR, and now to the legislature, that there is a wide disparity in appraised values of residential properties in that area when compared to actual sales values. In that situation, the indiscriminate application of an across-the-board 30% factor would necessarily exacerbate the values of those properties which are already assessed at or near market value or in excess thereof. Such a method may achieve equalization as between areas, but not between individual properties in the areas, where appraisal inequities already exist. Certainly the ratio study indicates that Area 2.1 should be targeted for a complete reappraisal even before the end of the valuation cycle. Equalization between areas will automatically result when all the valuations in the individual areas are at or near market value.

THE POWER OF STAB AND THE RIGHT OF APPEAL

The DOR contends two issues arise in this case relating to STAB. The DOR contends that STAB has no power to ignore the administrative rules which are adopted in accordance with § 15-7-111, MCA, nor to declare a statute is unconstitutional. However, the record shows that STAB skirted the constitutional issue by declaring its belief that a court, if asked, would determine the assessment ratio studies and the application thereof unconstitutional. As to the administrative rules, § 15-2-301(4), MCA, provides that “the state tax appeal board must give an administrative rule full effect unless the board finds any such rule arbitrary, capricious or otherwise unlawful.”

STAB in its response contended that this Court should throw out the amendments adopted by the legislature in 1987 and 1989 because of the provision in § 15-7-102(6), MCA, to the effect that “the property owner may not appeal the yearly percentage adjustments that are specified in 15-7-111, and that may be made as a result of the sales assessment ratio study, the stratum, or area designations as specified in 15-7-111.”

Article VIII, § 7, of the Montana Constitution, provides:

“Tax appeals. The legislature shall provide independent appeal procedures for taxpayer grievances about appraisals, assessments, equalization, and taxes. The legislature shall include a review procedure at the local government unit level.”

Section 15-7-111(4), MCA, provides:

“(4) For the taxable year beginning January 1,1990, and for every taxable year thereafter, the department shall conduct a stratified sales assessment ratio study of all residential land and improvements, agricultural 1-acre homesites and improvements, and commercial land and improvements. The sales assessment ratio based on property sales finalized and recorded by no later than November 1 must be used to determine appraisals for the immediately succeeding tax year.”

Section 15-7-102(6), MCA, provides:

“(6)... The property owner may not appeal the yearly percentage adjustments that are specified in 15-7-111 and that may be made as a result of the sales assessment ratio study, the stratum, or area designations as specified in 15-7-111.”

Clearly, Art. VIII, § 7, Montana Constitution, guarantees the constitutional right of appeal procedures for a taxpayer concerning appraisals and assessments.

It is also equally clear that § 15-7-111(4), MCA, required the DOR to conduct an annual stratified sales assessment ratio study beginning January 1, 1990, and for every taxable year thereafter and that the sales assessment ratio derived therefrom must be used to determine appraisals for the immediate succeeding tax year, and § 15-7-102(6) provides that the property owner may not appeal as a result of the sales assessment ratio study.

Therefore, the provision of § 15-7-102(6), providing “[t]he property owner may not appeal the yearly percentage adjustments that are specified in 15-7-111 and that maybe made as a result of the sales assessment ratio study, the stratum, or area designations as specified in 15-7-111,” is unconstitutional as a violation of Art. VIII, § 7, of the Montana Constitution.

Notwithstanding that the non-appeal provision of § 15-7-102 (6), MCA, may not be essential to our decision in this case, we believe it is important that the DOR and the legislature be made fully aware of the requirements of Art. VIII, § 7, with regard to any future legislation or rule-making.

THE CASE OF PATRICIA C. BARRON

This whole case was brought about by the appeal of Patricia C. Barron to the County Tax Appeal Board, and then to STAB itself regarding the constitutionality of the increased adjustment to her residential property valuation for tax purposes.

STAB, in determining that the application of the ratio studies to Area 2.1 was improper, did not restore Patricia C. Barron to the 1989 appraisal of her residential property. Instead, it determined that because the purchase price of the home in which she lives was $75,000, it should be appraised at $75,000 as a reflection of its market value.

In DOR of Revenue v. State Tax Appeal Board (1980), 188 Mont. 244, 249, 613 P.2d 691, 694, we quoted the United States Supreme Court saying:

“This Court holds that the right of the taxpayer whose property alone is taxed at 100 percent of its true value is to have his assessment reduced to the percentage of that value which others are taxed even though this is a departure from the requirement of statute. This conclusion is based on the principle that where it is impossible to secure both a standard and true value, and the uniformity and equality required by law, the latter requirement is to be preferred as the just and ultimate purpose of the law.”

While the valuation of the Barron property at its market value is at 100% of its true value, it cannot be said that the application of that valuation reaches the uniformity and equality required by our laws. If anything, the study of Area 2.1 reveals that there is very little equality or uniformity in the valuation of the 243 properties studied. Because Patricia C. Barron undertook to appeal the application of the 30% adjustment to her residential property, and bore the burden of litigation to bring to the DOR and this Court the problems arising out of the ratio studies, she is entitled to the beneficial fruits of her litigation. We therefore reverse the valuation of her residential property fixed at $75,000, and direct that the valuation of that residence for tax purposes shall be the valuation which obtained in 1989. Nothing herein prevents a proper revaluation of her residential property in accordance with statutory and constitutional principles in subsequent years.

CONCLUSION

The power of supervisory control given to this Court does not apply in this case because STAB is not a court in the contemplation of Art. VII, § 2(2) of the State Constitution.

We find and determine, however, in this original proceeding proper grounds to award the following declaratory and affirmative relief:

“1. The provisions of § 15-7-111, MCA, relating to stratified sales assessment ratio studies of the residential property situated in Area 2.1 (Great Falls Downtown) as conducted and applied by the DOR are invalid because they violate state constitutional and statutory provisions which require general and uniform appraisal, assessment and ■J because the applications thereof require certain taxpayers in Area 2.1 to bear a disproportionate share of Montana’s tax burden, in violation of the Equal Protection requirements of the Fourteenth Amendment to the United States Constitution and Art. II, § 4, 1972 Montana Constitution; and because the application of the stratified sales assessment ratio study to Area 2.1 violates the Due Process requirements of the Fifth and Fourteenth Amendments of the United States Constitution and Art. II, §§ 17 and 29, 1972 Montana Constitution.
“2. The provision of § 15-7-102(6), MCA, that states: ‘The property owner may not appeal the yearly percentage adjustments that are specified in 15-7-111 and that may be made as a result of the sales assessment ratio study, the stratum, or area designations as specified in 15-7-111,’ is in violation of Article VIII, § 7, of the Montana Constitution.
“3. The valuation for tax year 1990 of the residential property of Patricia C. Barron in Area 2.1 established by STAB should be and is hereby reversed, and STAB and all agents of the DOR shall fix the appraised value of the said residential property of Patricia C. Barron at the valuation which obtained in the tax year 1989.
“4. Because of the statewide effect of this decision, because of the short period of time remaining for state and county offices to perform their duties in connection with the collection of property taxes for the year 1990, and the extenuating exigencies which would otherwise be created by an immediate effect of this decision, we hereby delay the effective date of this decision, and make its effect prospective only to December 31,1990, except for those cases now pending on appeal, or properly appealed by the property owners. (This means those cases heretofore appealed within the time provided for taxpayer appeals at the local or state level and now pending on the grounds of unconstitutionality found to exist in this proceeding, and includes those previously appealed on those grounds and denied at the county or state level; but, no other appeals on the grounds covered herein shall be recognized.) The effect of this prospective stay is that as to all property affected by the stratified sales assessment ratio studies, except those herein stated, the values for tax purposes for the tax year 1990 shall be those found and applied by the DOR under said studies.
“5. When copies hereof are served by ordinary mail by the Clerk of this Court upon counsel of record, this Opinion shall have the effect of, and perform the office of, a declaratory judgment granting affirmative relief without further documents or process from this Court. It shall be effective on the date of service.”

We grant the stay only to prevent the disruption of the state taxation process for the tax year 1990 and because the legislature will meet and may address these problems in a session beginning on the first Monday of January, 1991.

Prospective application of the effect of this Opinion past the 1990 tax year as absolutely imperative should be at once apparent, but some question prospective delay when the underlying act is unconstitutional. How, it is argued, can a court allow to remain legal what it has declared to be illegal? The answer lies in the choice that must be made by the Court as to whether it will allow government to continue in an orderly fashion at the expense of some, or else permit virtual anarchy to exist. Were the illegality in this case declared to take effect immediately, it would mean that tax collections for the support of state, county, school district and municipal government dependent on property taxes would be thrown into immediate dysfunction. There is lurking in this case a huge legislative and executive problem, and these branches must be given a chance to deal properly with that problem. Despite the unconstitutionality of the appraisal system here involved, the fashioning of a constitutional system is a proper duty of the legislative department, and not of this Court.

This Court has not hesitated to delay the effect of its decision that an act is unconstitutional when the immediate effect of the decision would disrupt government, and the legislature can be given an opportunity to rectify the unconstitutionality. Lee v. State (1981), 195 Mont. 1, 11, 635 P.2d 1282, 1287, cert. denied 456 U.S. 1006, 102 S.Ct. 2295, 73 L.Ed. 2d 1300; Helena Elementary School Dist. No. 1 v. State (Mont. 1990), [236 Mont. 44 at 60,] 784 P.2d 412, 413. Other state courts have done likewise. Edgewood Independent School District v. Kerby (Tex. 1989), 777 S.W.2d 391, 399; Horton v. Meskill (1977), 172 Conn. 615, 376 A.2d 359, 376; Washakie County School Dist. v. Herschler (Wyo. 1980), 606 P.2d 310, cert. denied 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980); Robinson v. Cahill (1973), 62 N.J. 473, 303 A.2d 273, 298, cert. denied 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219.

Costs of proceedings, but not attorneys fees, to Patricia C. Barron.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ HUNT, McDONOUGH and WEBER concur.


author: CHIEF JUSTICE TURNAGE

text:
    KENNETH M. GUE and SHIRLEY M. GUE, Husband and Wife, Plaintiffs and Appellants, v. GARY L. OLDS and SUE ELLEN OLDS, Husband and Wife, Defendants and Respondents.
    No. 90-252.
    Submitted on Briefs Aug. 30, 1990.
    Decided Oct. 18, 1990.
    799 P.2d 543.

      Patrick R. Watt and Joseph G. Mudd, Jardine, Stephenson, Blewett & Weaver, Great Falls, for plaintiffs and appellants.
    Patricia O’Brien Cotter, Cotter & Cotter, Great Falls, for defendants and respondents.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The District Court for the Eighth Judicial District, Cascade County, entered summary judgment for the Oldses in this quiet title action. We reverse and remand for further proceedings consistent with this Opinion.

The issues are:

1. Did the District Court err in concluding that laches barred the Gues’ action to quiet title?

2. Did the Oldses meet the statutory requirements to acquire title to Lots 14 through 18 by adverse possession?

3. Did the court err in concluding that § 70-19-401, MCA, barred the Gues’ action to quiet title?

4. Did the court err by determining material questions of fact in granting summary judgment for the Oldses?

5. Are the Gues entitled to summary judgment on the Oldses’ claim of adverse possession of Lots 14 through 18?

The plaintiffs, Kenneth M. and Shirley M. Gue, and the defendants, Gary L. and Sue Ellen Olds, own adjoining property in Neihart, Montana. In 1959 and 1960, Gary Olds, then a single man, purchased Lots 3 through 7 and Lots 10 through 13, Block 11, Town of Neihart. Olds and two local miners, now deceased, marked out the area included in the lots, but the miners and others in Neihart told Olds that confusion had existed in the boundaries in the Town of Neihart for at least the last fifty years.

In 1973, plaintiffs Gue, who are friends of defendants Olds, pirnchased Lots 14 through 18, Block 11, Town of Neihart. By that time, Gary Olds had married and owned his property jointly with his wife Shirley, and they had built a cabin. The Gues’ lots directly adjoin the Oldses’ property. When the Gues bought their property, Gary Olds told Kenneth Gue that the cabin the Oldses had built may be encroaching on the Gues’ property a bit and that the property line might be inaccurate. No steps were taken to ascertain the correct boundary line, however, and in 1975 the Oldses built a fence on the accepted property line.

In 1985, in anticipation of selling their Neihart property, the Gues hired D. Lester Turnbull to survey it. The Oldses agreed to pay the expense of having Turnbull survey their property at the same time.

Turnbull’s survey places the Oldses’ cabin entirely within Lot 15, which is owned by the Gues. After attempts to negotiate a settlement failed, the Gues brought this suit to quiet title to their property. In their answer to the complaint, the Oldses denied that their cabin is situated upon the Gues’ property and counterclaimed to quiet title in the property on which their cabin sits. After discovery, the Oldses moved for summary judgment and the Gues moved for partial summary judgment that they are the title holders to Lots 14 through 18.

The District Court concluded that the Gues’ claim is barred by the statute of limitations and by the doctrine of laches. It further concluded that the Oldses have established, by adverse possession, title to the property upon which the cabin is located and up to the boundary line established by their fence.

I.

Did the District Court err in concluding that laches barred the Gues’ action to quiet title?

Laches exists where there has been a delay of such a duration as to render enforcement of the asserted right inequitable. Castillo v. Franks (1984), 213 Mont. 232, 241, 690 P.2d 425, 429. There is no absolute rule as to what constitutes laches, and each case is determined according to its own particular circumstances. Montgomery v. First Nat. Bank (1943), 114 Mont. 395, 408, 136 P.2d 760, 766. For laches to be applied, the court must find lack of diligence by the party against whom the defense is asserted and prejudice to the party asserting the defense. Coalition for Canyon Preservation v. Bowers (9th Cir. 1980), 632 F.2d 774, 779.

In the present case, the District Court concluded that laches applied because the Gues became presumptively aware of the questionable accuracy of the boundary line between their property and that of the Oldses when they purchased their lots in 1973. The court also relied upon the Gues’ failure to object to the location of the fence the Oldses built in 1975.

Kenneth Gue stated in his deposition that Gary Olds had told him that the boundary line might be off by “a couple feet” and that his cabin might be “close to the line.” As Gue testified, in contrast, the Turnbull survey puts the cabin within the Gues’ property in excess of an entire lot width. That’s a horse of a different color. There is no evidence that the Gues were aware of the extent of encroachment on their property until they commissioned the Turnbull survey. Further, there has been no showing that the Oldses have been prejudiced by the Gues’ delay in asserting their claim. The Oldses’ cabin was built well before the Gues purchased Lots 14 through 18.

As an ancillary matter, the Oldses contend that because the record contains only a sketch of the survey done by Turnbull and because Turnbull himself has not been deposed, there is insufficient evidence to support the Gues’ contentions for purposes of the summary judgment motions. The testimony of Kenneth Gue and Gary Olds, as well as the sketch, indicates that the Turnbull survey put the Oldses cabin on Lot 15. We conclude that there is sufficient evidence in the record to support the Gues’ position for purposes of these motions for summary judgment.

We hold that the District Court erred in concluding that the doctrine of laches is applicable in this case.

II.

Did the Oldses meet the statutory requirements to acquire title to Lots 14 through 18 by adverse possession?

The District Court concluded that the Oldses established title to the property underlying their cabin by adverse possession. A party claiming title through adverse possession must have “paid all the taxes, state, county, or municipal, which have been legally levied and assessed upon said land” during the period of adverse possession. Section 70-19-411, MCA. The District Court concluded that the Oldses’ payment of taxes on their cabin satisfied the requirement of the statute.

This Court has consistently held that “[o]ne cannot gain adverse possession to land unless one pays the taxes on the land throughout the statutory period.” See e.g. Burlingame v. Marjerrison (1983), 204 Mont. 464, 472, 665 P.2d 1136, 1140. (Emphasis supplied.) Payment of taxes on an improvement on the property does not fulfill the statutory requirement. Stephens v. Hurly (1977), 172 Mont. 269, 276-77, 563 P.2d 546, 550-51.

We conclude that payment of taxes on the cabin is not sufficient to meet the requirement of § 70-19-411, MCA. The Oldses have not claimed that they have paid any property taxes on Lots 14 through 18. We hold that the Oldses failed to establish a right to Lots 14 through 18 by adverse possession because they did not establish that they paid property taxes on that property.

III.

Did the court err in concluding that § 70-19-401, MCA, barred the Gues’ action to quiet title?

The court concluded that the Gues’ action was barred by the applicable statute of limitations, § 70-19-401, MCA:

“No action for the recovery of real property or for the possession thereof can be maintained unless it appear that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the property in question within 5 years before the commencement of the action.”

In reaching its conclusion, the court reasoned that the Gues did not have possession of the land underlying the cabin for at least five years preceding this action.

The District Court stated in its findings and conclusions that “seisin” means possession. It relied upon Clayton by Murphy v. Atlantic Richfield Co. (Mont. 1986), 221 Mont. 166, 717 P.2d 558. That reliance was misplaced. Clayton concerned application of the statute of limitations in the context of prescriptive easements, not fee title. Statements in that case about the meaning of “seisin” are thus limited in application.

In a situation involving fee title to property, actual occupancy is not essential to a lawful seisin; a titleholder is seized of property as long as his or her title is complete and disseisin is not proved. Stephens, 563 P.2d at 549-50, quoting 63 Am. Jur.2d, Property § 40, p. 324. There is nothing in the record to dispute the Gues’ testimony that they are holder of fee title to Lots 14 through 18. No defect in their title has been shown. Disseisin has not been proved. We hold that § 70-19-401, MCA, does not bar the Gues’ action to quiet title.

IV.

Did the court err by determining material questions of fact in granting summary judgment for the Oldses?

The Gues claim that, in entering its summary judgment, the District Court determined the location of Lots 14 through 18 and 10 through 13. They state that the location of these lots is a material issue of fact.

The order of the District Court did not set forth a legal description of the land to which the Oldses have established title by adverse possession. It did not clarify who holds title to Lots 14 through 18 or where those lots are located in relation to the Oldses’ cabin. However, to the extent that the court’s judgment established the locations of Lots 14 through 18 and 10 through 13, that judgment is vacated.

V.

Are the Gues entitled to summary judgment on the Oldses’ claim of adverse possession of Lots 14 through 18?

The Gues maintain that, because the Oldses have not presented any evidence of payment of taxes on Lots 14 through 18, they have failed as a matter of law to make a valid claim of adverse possession of those lots. Under our reasoning in Issue III, they are correct. Payment of taxes is necessary for establishing title through adverse possession. The Oldses have not shown that they paid any taxes on Lots 14 through 18. We conclude that summary judgment should be entered denying the Oldses’ claim of adverse possession of Lots 14 through 18.

Reversed and remanded for further proceedings consistent with this Opinion.

JUSTICES BARZ, HUNT, McDONOUGH and WEBER concur.