author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PERRY KRINITT, Defendant and Appellant.
    No. 91-210.
    Submitted on briefs Oct. 3, 1991.
    Decided Dec. 12, 1991.
    48 St.Rep. 1088.
    251 Mont. 28.
    823 P.2d 848.

      For Appellant: Larry Jent, Williams, Jent & Dockins, Bozeman.
    For Respondent: Marc Racicot, Attorney General, and Kathy Seeley, Asst. Atty. General, Helena; A. Michael Salvagni, County Attorney, and Jennifer Bordy, Deputy Co. Atty., Bozeman.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Appellant Perry Krinitt was charged by information with one count of theft, or in the alternative, one count of forgery. Following a jury trial, he was found guilty of theft and not guilty of forgery. Krinitt appeals from the judgment of conviction. We affirm.

Krinitt raises three issues:

1. Did the delay in filing criminal charges violate appellant’s right to due process?
2. Was sufficient evidence presented to prove that appellant intended to deprive the owner, his spouse, of the property?
3. Was the money taken “property normally accessible to both spouses” under § 45-6-303(2), MCA?

Perry Krinitt (Krinitt) married Florence Krinitt (Mrs. Krinitt) in 1970. Mrs. Krinitt was the beneficiary of a family trust and had been receiving income from the trust on a quarterly basis since she was 22 years old, approximately one year before her marriage to Krinitt. She continued to receive the trust income during the marriage. She received a check from the trust in January, April, July, and October, usually between the 10th and 15th of the month.

Because of financial problems, the Krinitts filed for bankruptcy in 1981. They eventually lost their home. Mrs. Krinitt felt that her husband was unable to control his financial situation and spending habits, and took steps to separate her finances from his. After the bankruptcy, she did not enter into joint financial obligations with Krinitt. She did not have a joint bank account with him. After she was discharged from bankruptcy, she reaffirmed certain of the debts and instituted a repayment schedule in 1983.

The Krinitts were dependent on the income from Mrs. Krinitt’s trust to pay bills and make debt payments. Some years earlier, Krinitt had taken one of the trust checks and cashed it without Mrs. Krinitt’s knowledge, making it difficult for her to meet her obligations. In order to protect her ability to pay bills and debt payments, in 1985 she requested the trustee, Wells Fargo Bank, to send the quarterly dividend checks to her attorney’s office, rather than her home. The dividend checks were deposited into a trust account from which she and her attorney paid bills and other obligations. Mrs. Krinitt also received a monthly income for household expenses. Krinitt did not have access to the trust account or these funds.

Beginning in 1985, and continuing through 1986 and 1987, all of the trust dividends were sent directly to Mrs. Krinitt’s attorney. The attorney would not release any of this money to Krinitt unless Mrs. Krinitt authorized him to do so.

In September 1985, Mrs. Krinitt filed a petition for legal separation. The Krinitts, however, continued to live together until mid-1988. In October 1985, Mrs. Krinitt obtained a temporary restraining order to prevent Krinitt from transferring, encumbering, concealing, or disposing of any property. On November 7, 1985, the District Court ordered that “both [Mrs. Krinitt] and [Krinitt] are restrained from transferring, encumbering, concealing or otherwise disposing of any property, except in the usual course of business, or for the necessities of life, and they are required to notify each other of any proposed extraordinary expenditures ....”

In January 1988, Mrs. Krinitt was expecting to receive her quarterly dividend check on about the 10th of the month. When the check did not arrive, she began to get worried. She called her attorney several times, but he had not received the check. She called Wells Fargo Bank and was told the check had been mailed about January 10th. Wells Fargo Bank informed her that the check had already been cashed. Krinitt had deposited the check in his account at Western Federal Savings and Loan on January 14, 1988. Mrs. Krinitt had no authority over this account, and was not even aware of its existence in January 1988.

The dividend check was for $8015. When Krinitt presented it to the teller at Western Federal Savings, the check had the signature “Florence Elizabeth Krinitt” endorsed on the back. Krinitt put his own signature on the check in front of the teller. Mrs. Krinitt testified that she had not signed the check and the signature was not hers. She testified that it was apparent from the face of the check that the check had been mistakenly mailed to the post office box she shared with Krinitt, instead of to her attorney’s address. When Mrs. Krinitt questioned him about the lost check, Krinitt at first denied seeing it. Later, however, he admitted to her that he had cashed the check.

Mrs. Krinitt told her attorney of what had happened, and the attorney notified Western Federal Savings that the check had been cashed improperly. In order to recover her lost money, Mrs. Krinitt filed an affidavit of forgery with Western Federal Savings on February 18,1988. Western Federal Savings reimbursed Mrs. Krinitt the $8015. Western Federal Savings was unable to charge Krinitt for the loss because there was never enough money in his account. Western Federal Savings reported the matter to the Bozeman Police Department.

An officer of the police department interviewed Mrs. Krinitt in late February 1988. Mrs. Krinitt was reluctant to participate in the police investigation, but agreed to an interview. On March 1, 1988, the police department submitted a request for prosecution to the Gallatin County Attorney’s Office. However, the county attorney’s office decided not to file charges at that time. Apparently the main reason the county attorney did not proceed with prosecution was the fact that Mrs. Krinitt was barred from testifying against her husband by § 26-1-802, MCA (spousal privilege), and § 46-16-212, MCA (competency of spouses). The county attorney did not feel that he could prove the charges without her testimony.

In February 1988, Mrs. Krinitt filed a petition for divorce. The couple was divorced in May 1989.

In August 1988, Western Federal Savings sent Krinitt a demand letter to recover the $8015 he had misappropriated. In response, Krinitt agreed to repay the money and requested a payment schedule be set up.

On December 12, 1989, the Gallatin County Attorney filed an information charging Krinitt with one count of theft, § 45-6-301(1), MCA, or in the alternative, one count of forgery, § 45-6-325(1), MCA. Following a jury trial, Krinitt was convicted of one count of theft. The District Court placed Krinitt on probation and deferred imposition of sentence for three years upon certain conditions, including payment of a $10,000 fine and $3674 in other charges. He appeals from his conviction.

I

Did the delay in filing criminal charges violate appellant’s right to due process?

Krinitt notes that he took and cashed his wife’s dividend check in January 1988, and the police department requested the Gallatin County Attorney’s Office to initiate prosecution in March 1988, but the county attorney delayed prosecution until December 1989. Krinitt contends that the nearly two-year delay in filing criminal charges against him violated his right to due process. We disagree.

This Court has previously considered the circumstances in which pre-indictment delay may constitute a denial of due process. See, e.g., State v. Curtis (1990), 241 Mont. 288, 787 P.2d 306. Because past decisions of this Court and other courts have left some uncertainty as to the appropriate standard to be applied, we take this opportunity to clarify Montana law on this issue.

The seminal case in this area of the law was United States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468. The Supreme Court noted that the primary guarantee against bringing overly stale criminal charges is the applicable statute of limitations. 404 U.S. at 322-24, 92 S.Ct. at 464-65, 30 L.Ed.2d at 479-81. Because the defendants in Marion only made a claim of potential prejudice from the delay in prosecution, rather than actual prejudice, the Court did not need to decide the case under a due process analysis. However, anticipating that the defendants could raise a claim of actual prejudice upon reinstatement of the criminal proceedings, the Court discussed the application of the due process clause:

“Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case.” [Citations omitted.]

404 U.S. at 324-25, 92 S.Ct. at 465-66, 30 L.Ed.2d at 481.

In the years following the Marion decision, federal and state courts, including this Court, had occasion to review due process claims under the Marion standard. However, as noted by the Ninth Circuit in United States v. Mays (1977), 549 F.2d 670, 675:

“Since the Marion decision, there has been a good deal of confusion as to whether the two elements delineated in the opinion” — actual (or substantial) prejudice, and intentional delay by the government for an improper purpose — “are to be applied in a conjunctive or disjunctive manner. Indeed, as with the other circuits, this Circuit has not been entirely consistent in its articulation of the proper standard.”

See 549 F.2d at 676-77 (discussing arguments in favor of both interpretations.)

A similar uncertainty was expressed in certain Montana cases. In State v. Burtchett (1974), 165 Mont. 280, 283, 530 P.2d 471, 473, cert. denied, 420 U.S. 974, 95 S.Ct. 1397, 43 L.Ed.2d 654 (1975), a case relied upon by Krinitt, this Corut determined that pre-indictment delay can result in a denial of due process where there is “either actual prejudice to the conduct of the defense, or ... the State intentionally delayed to gain some tactical advantage over [the defendant] or to harass him.” In State v. Bartnes (1988), 234 Mont. 522, 525, 764 P.2d 1271, 1274, we described the relevant inquiry as “whether the preindictment delay caused substantial prejudice to the defendant’s right to a fair trial and whether the delay was used as an intentional device to gain a tactical advantage over the accused.”

In State v. Goltz (1982), 197 Mont. 361, 642 P.2d 1079, and State v. Curtis (1990), 241 Mont. 288, 787 P.2d 306, the defendants had proven neither intentional delay designed to gain a tactical advantage, nor actual prejudice resulting from the delay; this Court declined to decide the question of whether either element alone or both elements together were required to support a due process claim.

In United States v. Lovasco (1977), 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752, the United States Supreme Court provided further guidance in evaluating these due process claims. The Court explained:

“Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.”

431 U.S. at 790, 97 S.Ct. at 2048-49, 52 L.Ed. 2d at 759.

Thus, in considering a defendant’s claim that pre-indictment delay violated his due process rights, the court must first determine whether the defendant suffered actual, substantial prejudice. See United States v. Valentine (9th Cir. 1986), 783 F. 2d 1413, 1416-17. If the defendant does not demonstrate actual prejudice resulting from the delay, no due process violation will be found. Accordingly, the language of State v. Burtchett, cited above, which implied that a due process violation could be found based solely on the state’s intentional delay, without a showing of prejudice, is incorrect.

Upon a showing that the defendant suffered actual, substantial prejudice from the delay, the court must then weigh the justification for the delay, as well as the absolute length of the delay, to determine if due process has been denied. See Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048-49, 52 L.Ed.2d at 759; Mays, 549 F.2d at 677-78 (where defendant has established actual prejudice due to unusually lengthy pre-indictment delay, it then becomes incumbent upon the government to provide the court with its reasons for the delay; negligent conduct will be weighted less heavily than deliberate delays). See also United States v. Moran (9th Cir. 1985), 759 F.2d 777, 780-83, cert. denied, 474 U.S. 1102, 106 S.Ct. 885, 88 L.Ed.2d 920 (1986).

Ultimately, in making a determination on this type of due process claim, the court should be guided by the principle enunciated in United States v. Lovasco, 431 U.S. at 790, 97 S.Ct. at 2049, 52 L.Ed. 2d at 759:

“We are to determine only whether the action complained of — here, compelling respondent to stand trial after the Government delayed indictment to investigate further — violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions,’ and which define ‘the community’s sense of fair play and decency.’ ” [Citations omitted.]

Applying this standard to the present case, we conclude that Krinitt has not demonstrated that his due process rights were violated. As an initial consideration, we note that the prosecution was commenced within the applicable five-year statute of limitations. Section 45-l-205(2)(a), MCA.

We look next to the issue of whether the defendant suffered actual, substantial prejudice from the two-year delay in prosecution. Krinitt contends he was prejudiced by the delay because in the interim he and Mrs. Krinitt were divorced, and he could no longer rely on § 26-1-802, MCA (spousal privilege), and § 46-16-212, MCA (competency of spouses), to prevent her from testifying against him. We disagree. The fact that he was unable to prevent a witness from coming into court and testifying about the theft does not constitute “prejudice” to the defendant. Krinitt was not hindered in raising any legitimate defense to the commission of the crime.

Krinitt next contends he was prejudiced because, in response to the demand letter from Western Federal Savings, he sent a letter to the bank’s attorney indicating that he wished to repay the money and requesting a payment schedule be set up. The jury was informed of Krinitt’s letter. Krinitt argues he would not have agreed to repay the money if he had known he was facing criminal charges. We do not agree, however, that Krinitt’s offer caused substantial prejudice sufficient to warrant a dismissal of the prosecution.

First, we note that Krinitt’s offer of repayment was made in a letter dated September 7, 1988, only six months after the prosecutor received the request for prosecution. The delay at that point was not very great, and any delay after that time did not add to the effect of the admission. Krinitt’s claim that he would not have agreed to repay the money if he had known he was facing criminal charges is speculative. If Krinitt knew in September 1988 that he faced criminal charges, he may well have found it in his best interest to admit owing the money to the bank. Further, the State did not introduce the correspondence with the bank into evidence as part of its case in chief. The letters were introduced on cross-examination after Krinitt took the stand and claimed that until the information was filed, he had no knowledge that he was being accused of forging Mrs. Krinitt’s signature on the check.

Finally, Krinitt contends his credibility was impeached because at trial, before the correspondence with the bank was admitted into evidence, he testified and denied knowing about the accusation of forgery or corresponding with Western Federal Savings in the matter. We are without sympathy for this latter claim. A criminal defendant is not “prejudiced” by having the truth revealed after he has testified falsely.

Because Kidnitt has not shown that he suffered actual, substantial prejudice as a result of the delay in prosecution, he cannot prevail on his due process claim. We therefore need not review the reasons given by the government for the delay. We conclude that the delay in prosecution did not violate Krinitt’s right to due process.

II

Was sufficient evidence presented to prove that appellant intended to deprive the owner, his spouse, of the property?

The offense of theft, where committed as in the instant case, includes the element of intent or purpose:

“(1) A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and:
“(a) has the purpose of depriving the owner of the property;
“(b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or
“(c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property.”

Section 45-6-301(1), MCA.

Krinitt contends the State did not present sufficient evidence to prove that he had the requisite intent. We disagree.

The evidence showed that Krinitt knew he was not authorized to spend his wife’s dividend check. When the check was mistakenly sent to the mailbox he shared with Mrs. Krinitt, he took the check without informing her. He forged her signature on the check and, without her consent, deposited the check in his own individual account. Mrs. Krinitt had no knowledge of this account, and no authority over it. Krinitt immediately began spending the money, including writing one check for $3998 the day after making the deposit. When questioned by Mrs. Krinitt about the dividend check, he at first denied knowing what had happened to it. Only after his wife questioned him repeatedly did he admit that he had taken the check. He did not reimburse his wife for the amount of the check.

The evidence was sufficient to prove that Krinitt intended to deprive his wife of the $8015.

Ill

Was the money taken “property normally accessible to both spouses” under § 45-6-303(2), MCA?

Section 45-6-303(2), MCA, provides:

“It is no defense that the theft was from the offender’s spouse, except that misappropriation of household and personal effects or other property normally accessible to both spouses is theft only if it occurs after the parties have ceased living together.”
Krinitt contends that he cannot be convicted of the crime of theft because he and Mrs. Krinitt were living in the same home and the money he took was “property normally accessible to both spouses.” This contention is incorrect.
The dividend checks belonged to Mrs. Krinitt. The checks were mailed directly to her attorney’s office. Since 1985 Krinitt had no access to this money, and Mrs. Krinitt’s attorney would not have given him any of the money without authorization from Mrs. Krinitt. Krinitt knew he was not authorized to spend this money. That this money was not “normally accessible” to Krinitt was clearly evidenced by the fact that he had to forge his wife’s signature on the check in order to negotiate it. Although in this instance the check was mistakenly sent to a mailbox which was accessible to both Mr. and Mrs. Krinitt, the dividend income was not “property normally accessible to both spouses.”

We affirm the judgment of the District Court.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, GRAY, and HUNT concur.


source: Caselaw Access Project

author:
JUSTICE McDONOUGH
      JUSTICE HUNT,

license: Public Domain

text:
    VICTOR A. SISTOK, Plaintiff and Appellant, v. KALISPELL REGIONAL HOSPITAL, a Montana corporation, Defendant and Respondent.
    No. 91-137.
    Submitted on briefs September 12, 1991.
    Decided December 27, 1991.
    48 St.Rep. 1151.
    251 Mont. 38.
    823 P.2d 251.

      For Appellant: James C. Bartlett, Hash, O’Brien & Bartlett, Kalispell.
    For Respondent: Mark L. Stermitz and Stephen C. Berg, Warden, Christiansen, Johnson & Berg, Kalispell.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Plaintiff, Victor Sistok, appeals from the order of the District Court of the Eleventh Judicial District, Flathead County, quashing a deposition subpoena and granting defendant’s motion for summary judgment. The court ruled that the evidence presented failed to demonstrate that Kalispell Regional Hospital acted negligently by permitting Dr. Paul W. Herron to perform surgery on Mr. Sistok in its facility. We affirm.

We note that the appellant, Victor Sistok, has died since this case was submitted for appellate review, and a motion to suggest death of the appellant has been submitted. No motion for substitution of his personal representative has been made. We assume, as we are given authority to do, that he has no personal representative at this time and we will proceed with rendering this opinion as if Mr. Sistok were still alive. Rule 37 (a), M.R.App.P., Bieber v. Broadwater County (1988), 232 Mont. 487, 759 P.2d 145.

The sole issue for review is:

Did the District Court err by quashing a deposition subpoena for notes, records, memoranda and written documentation generated by the hospital’s Medical Executive Committee? More specifically, the question raised is whether data generated by the Medical Executive Committee is privileged from discovery in a suit against the hospital.

Victor Sistok (Sistok) brought suit against Kalispell Regional Hospital (the Hospital) alleging among other things that the Hospital negligently allowed Dr. Herron (Herron) to perform surgery in its hospital when it knew Herron had a history of alcoholism. Sistok experienced health difficulties following and related to surgery performed by Herron at the Hospital.

Prior to Sistok’s surgery, Herron’s staff privileges at the Hospital had been suspended and reinstated following an incident where Herron had been intoxicated while performing his duties at the Hospital. The Hospital’s Medical Executive Committee (the Committee) serves as a review board whose duties include supervision and discipline of the medical staff. At the recommendation of the Committee, Herron’s staff privileges had been suspended and later reinstated subject to specific conditions.

Sistok’s position is that because conditions were placed on Herron’s staff privileges, the Hospital assumed greater responsibility for his actions. Sistok argues that the conditional staff privileges altered the relationship between the Hospital and Herron from the independent contractor relationship usually enjoyed between staff physicians and a hospital to one of principal and agent. Sistok contends that because Herron was an agent of the Hospital, the Hospital is liable for Herron’s alleged negligence.

To support his position, Sistok sought to depose the former chairmen of the Committee and issued a deposition subpoena commanding them to come forward and to produce all manner of records and information regarding the Committee’s relationship with Herron. The Hospital argued that pursuant to § 50-16-203, MCA, the information sought by Sistok was privileged and confidential. The District Court agreed and quashed the deposition.

Section 50-16-203, MCA, states:

“Committee information and proceedings confidential and privileged. All such records, data, and information shall be confidential and privileged to said committee and the members thereof, as though such hospital patients were the patients of the members of such committee. All proceedings and in-hospital records and reports of such medical staff committees shall be confidential and privileged.” We conclude that this statute unambiguously confers an absolute privilege on medical staff committees. Sistok argues that the privilege conferred is to protect the confidentiality of patients but not physicians and medical staff. Sistok claims that because he is only interested in information regarding Herron and not information regarding other patients, the statute does not apply. Moreover, Sistok contends that the statute refers only to agents of a hospital and not to physicians who are generally independent contractors. By holding this information privileged, Sistok contends, hospitals are able to sabotage lawsuits by keeping all relevant information with the committee.

We are not persuaded by Sistok’s argument. The statute makes clear that the privilege applies to all members of the Committee. The statute was developed and the privilege conferred to encourage reluctant physicians to join the Committee. The legislature, as a matter of public policy, sought to have responsive and full discourse among the professionals involved, and to promote an atmosphere free of apprehension so that constructive criticism could occur. The privilege is extended to all members of the Committee as well as to the patients whose cases are reviewed by the Committee. Furthermore, Sistok’s argument is internally inconsistent. He alleges that the relationship between the Hospital and Herron is that of principal and agent while simultaneously he argues that the statute does not apply because Herron is an independent contractor.

Alternatively, Sistok argues that § 50-16-203, MCA, is merely a codification of the rules of evidence and only limits the admissibility of committee data because it is hearsay. Sistok asserts, and we agree, that discovery is not limited to admissible evidence but instead can be utilized to lead to information that will be admissible as evidence. However, the statute unambiguously states that the information is privileged and confidential. Section 46-15-332, MCA, provides that:

“All matters which are privileged upon the trial are privileged against disclosure through any discovery procedure.”

The records, data and information generated by Medical Executive Committees are privileged against discovery.

Several cases are cited from other jurisdictions where disclosure of committee proceedings was allowed despite statutory law prohibiting such discovery. In Arizona the privilege only precludes material that is the product of reflective deliberations or thought-making processes while relevant and material facts are discoverable. Tucson Medical Center, Inc. v. Misevch, (1976), 113 Ariz. 34, 545 P.2d 958. In California and Connecticut, the courts have allowed the voluntary disclosure of what took place at committee proceedings despite statutory bars of discovery. West Covina Hospital v. Superior Court, (Calif. 1986), 718 R2d 119; Pisel v. Stamford Hospital, (Conn. 1980), 430 A.2d 1. These cases are distinguishable from the instant case. The Arizona Legislature explicitly allowed for the subpoena of committee information, the Montana Legislature did not. The California and Connecticut cases refer to voluntary disclosure and not the involuntary disclosures sought by Sistok. Unlike the statutes in these other jurisdictions, § 50-16-203, MCA, confers an absolute privilege.

Sistok next argues that the affidavit of the Hospital administrator, Eugene Johnson, outlining the actions and recommendations of the Committee in regards to Herron, is a waiver of the privilege. Whether the Hospital waived its privilege is dependent upon whether a significant part of the privileged matter has been disclosed. Rule 503(a), M.R.Evid. The District Court ruled that Johnson’s affidavit did not disclose a significant part of the privileged matter. Regardless of whether the Hospital reached the “significant part” threshold, the Hospital cannot waive the privilege for others. The privilege extends to all members of the Committee as well as patients whose cases are reviewed. Rule 503(b), M.R.Evid., provides:

“Where two or more persons are joint holders of a privilege, a waiver of the right of a particular joint holder to claim the privilege does not effect the right of another joint holder to claim the privilege.” Assuming arguendo, that the Hospital has waived its claim to the privilege, it cannot waive the claim of individual members of the Committee such as the chairpersons subpoenaed.

Lastly, Sistok contends that the Hospital administration’s files are discoverable to determine the limitations and restrictions placed on Dr. Herron by the Hospital. After careful review, we find the record to be void of any denied attempts to access information from the Hospital other than the deposition subpoena for the chairmen of the Committee. The matter before this Court is the deposition subpoena for data and information of the Committee and not the Hospital administration’s files.

The deposition subpoena submitted by Sistok sought information that is clearly privileged. The District Court properly quashed the request. Sistok, to support his argument, apparently relied on the information that he allegedly would have gained from the quashed deposition and as a result evidence supporting his argument is lacking. The court is under no duty to anticipate proof that will establish a material and substantial issue of material fact. Tucker v. Trotter Treadmills, Inc. (1989), 239 Mont. 233, 779 P.2d 524. The burden is on the opposing party to demonstrate the existence of a genuine issue of material fact, otherwise summary judgment is properly granted as a matter of law. Bills v. Hannah Inc. (1988), 230 Mont. 250, 749 P.2d 1076. The deposition subpoena was properly quashed and Sistok failed to meet his burden of raising a genuine issue of material fact. Therefore, summary judgment was properly granted.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, GRAY, and WEBER concur.

JUSTICE HUNT,

dissenting:

.1 dissent. The majority’s decision to create an absolute privilege for medical staff committees violates principles of discovery and is contrary to legislative intent.

The majority’s decision limits the ability of patient-plaintiffs to discover relevant evidence that would help verify allegations made in a complaint. Moreover, the decision shields doctors and hospitals from patient-plaintiff lawsuits. The privilege created by this Court invites hospitals to use medical staff committees as repositories for hiding harmful evidence when sued by patient-plaintiffs.

It is clear from reading the statute that the legislature intended only to protect the confidentiality of other patients. The statute only refers to patients, not to doctors or hospitals. The legislature placed a limit on the scope of the privilege in § 50-16-205, MCA, which states in part:

“All data shall be confidential and shall not be admissible in evidence in any judicial proceeding, but this section shall not affect the admissibility in evidence of records dealing with the patient’s hospital care and treatment.” [Emphasis added.]

Appellant’s subpoena requested information which related only to the status and interrelationship of Dr. Herron with the hospital. The appellant was not attempting to seek documents relating to the care of other patients. Clearly, the legislature did not intend to create such an absolute privilege as the majority’s opinion would suggest.

In addition, the hospital waived its claim to the privilege. The hospital freely disclosed the chronology of Dr. Herron’s disciplinary records which were used against him in the lawsuit. However, when the same information was used against the hospital, it claimed privilege. The hospital had notice that the information was being requested in the litigation against Dr. Herron and should have claimed its supposed privilege then.

For these reasons, the District Court’s decision favoring summary judgment should have been reversed.

JUSTICE TRIEWEILER concurs in the foregoing dissent of JUSTICE HUNT.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PAUL DEMETRI KORDONOWY, Defendant and Appellant.
    No. 90-317.
    Submitted on briefs October 31, 1991.
    Decided December 23, 1991.
    48 St.Rep. 1148.
    251 Mont. 44.
    823 P.2d 854.

      For Appellant: Peter O. Maltese, Attorney at Law, Sidney.
    For Respondent: Marc Racicot, Attorney General, Helena; Joseph E. Thaggard, Assistant Attorney General, Helena; Mike Weber, Richland County Attorney, Sidney.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Paul Demetri Kordonowy (Kordonowy) appeals his convictions of aggravated burglary and sexual intercourse without consent following a jury trial in the Seventh Judicial District, Richland County. We affirm.

Kordonowy presents the following issues:

1. Did the District Court abuse its discretion by admitting certain other crimes, wrongs, or acts evidence?

2. Did sufficient evidence support the jury’s verdict?

In July 1987, K.B. lived in Sidney, Montana, and was employed as a counselor for District II Alcohol and Drug Program. On Friday, July 24, 1987, following a full day’s work, she ran a few errands and returned home at around 7:00 p.m. She spent a quiet evening at home alone. Before retiring that evening, she locked the front door of her house but left the back door unlocked. She later retired to her bed to read, removed her hearing aids and her glasses, apparently turned off the light in her bedroom, and fell asleep. Without her hearing aids, KB. could not hear unless the source of sound was next to her ear; without her glasses, her vision was poor.

In the early morning hours of July 25,1987, K.B. awoke. Although her bedroom was dark, light shining through her bedroom window allowed her to view a man lying next to her on her bed. At first, she thought the man was her boyfriend, L.L., and called out his name. She quickly realized, however, that the man was not L.L. She viewed the man for less than a minute before he forcibly grabbed her by the shoulders, flipped her over to her stomach, and placed a pillowcase over her head. He then pushed her face into the pillows on her bed, which constricted her breathing and caused her nose to bleed.

The man attempted sexual intercourse, but was unable to penetrate KB.’s vagina with his penis. He then flipped K.B. to her back, placed the pillows on top of her head, pushed the pillows into her face, and again attempted sexual intercourse. This time, he penetrated KB.’s vagina with his penis, but failed to complete the act.

KB. asked the man if she could go to the bathroom. The man led her to the bathroom with the pillowcase still over her head. While they were in the bathroom, KB. suggested that they find some lubricant in an attempt to get the man to leave his fingerprints on some objects. The man, however, forced KB. to grab something and then led her back into her bedroom.

Following their return to her bedroom, the man pushed K.B. onto the bed and attempted to have anal intercourse with her by sticking his finger up her rectum. KB. asked the man to stop and the man complied. The man then put his head next to her ear, asked her if she climaxed, and told her that he loved her. He then left her bedroom.

KB. waited a few minutes before getting up from the bed and removing the pillowcase from her head. She walked through her home and determined that the man had left. She then telephoned a friend and told her she had been raped. She additionally telephoned the police for assistance. The police escorted KB. to a hospital for a sexual assault examination.

KB. was able to give authorities a description of the man from viewing him prior to the time he placed the pillowcase over her head and through her sense of touch. She told police that the man was white; in his twenties or thirties; weighed between 145 to 160 pounds and was of average height; had dirty, dark hair; a triangular-shaped face; and a muscular build, except for some flab around his waist. She further told police that the man wore heavy denim pants, work boots with a rounded toe, a tee shirt, and a wide belt with a heavy buckle. Because of her hearing and sight impairment, however, KB. could not go beyond this description and positively identify her attacker.

In January 1989, the Richland County Sheriff’s Department apprehended Kordonowy regarding a similar rape which occurred in the nearby town of Fairview, Montana. The victim, V.N.O., identified Kordonowy as the man who raped her, under the following facts. On the evening of Friday, January 20,1989, V.N.O. spent a quiet evening at home alone. Prior to retiring to bed, she locked the front door of her home, but apparently forgot to lock the side door. At approximately 2:00 a.m. on Saturday, January 21,1989, V.N.O. awoke and viewed Kordonowy sitting on her bed. Kordonowy wore round-toed boots and a belt with a heavy buckle. V.N.O asked Kordonowy what he was doing in her bedroom. Kordonowy responded by grabbing V.N.O. and pinning her arms above her head as she laid on her back. Kordonowy twice raped V.N.O., once as she laid on her back and once as she laid on her stomach. At V.N.O’s request, Kordonowy allowed her to go to the bathroom. He later attempted anal intercourse with V.N.O. but ceased this act when V.N.O. asked him to stop. Before departing her house, Kordonowy placed a pillow over her head. Kordonowy later pled guilty to, inter alia, sexual intercourse without consent against V.N.O.

Because of the similarity of these rape cases, authorities suspected that Kordonowy may have also raped K.B. Accordingly, authorities submitted the blood, hair samples, and pubic combing taken from K. B. as well as the sheets, pillowcases; underpants, and vacuumings seized from her house to the State Crime Lab for comparisons with samples of Kordonowy’s head hair, pubic hair, and blood, which he had provided the Richland County Sheriff’s Department regarding the V.N.O. matter.

Forensic scientist Arnold Melnikoff (Melnikoff) of the State Crime Lab testified that with Caucasian head and pubic hair, he could microscopically distinguish an individual’s respective head and pubic hair from another individual’s respective head and pubic hair in ninety-nine out of 100 cases. He compared the known standards of head and pubic hair obtained from K.B. and Kordonowy. Melnikoff testified that he could distinguish the known standards of K.B’s head and pubic hair from Kordonowy’s head and pubic hair. He further compared the known standards of Kordonowy’s head hair to a head hair of an unknown origin which was found in K.B.’s bedroom. He testified that he could not microscopically distinguish Kordonowys head hair from the head hair of unknown origin. Additionally, Melnikoff compared strands of Kordonowys pubic hair to pubic hair of unknown origin found in the combings of KB.’s pubic area following the rape and pubic hair of unknown origin found in the vacuumings of KB.’s bathroom. Melnikoff testified that he could not microscopically distinguish Kordonowy’s pubic hair from these pubic hairs of unknown origin.

Julie Long (Long), a serologist at the State Crime Lab, examined Kordonowy’s blood type, KB.’s blood type, and KB.’s boyfriend, L. L.’s, blood type. She also examined semen found on vaginal swabs taken from KB. during the course of the sexual abuse examination and semen found on two pairs of KB.’s underwear seized from her bed and her kitchen. Following her examinations, she concluded that Kordonowy could not be excluded as the donor of an enzyme known as the ”H” substance found in semen retrieved from one of the vaginal swabs and on both pairs of underwear. In addition, Long testified that she found the “A” enzyme present in the semen found on the vaginal swabs and on both pairs of K.B.’s underwear, and that neither K.B. nor Kordonowy could have secreted that enzyme. She further testified, however, that the “A” enzyme could have been provided by either bacteria or L.L., who engaged in sexual intercourse with K.B. within seventy-two hours prior to the rape.

Based on these conclusions of Melnikoff and Long, the State charged Kordonowy by information with one count of aggravated burglary and one count of sexual intercourse without consent against K.B. Ajury convicted Kordonowy ofboth charges on January 18,1990. On February 16, 1990, the District Court sentenced Kordonowy to thirty years imprisonment for the aggravated burglary charge and twenty years imprisonment for the sexual intercourse without consent charge, these sentences to run concurrently. The District Court further sentenced Kordonowy to a concurrent term of twenty years imprisonment for his status as a persistent felony offender, and designated him as a dangerous offender for purposes of parole eligibility. The District Court ordered all of these sentences to run consecutively to the sentences imposed in State v. Kordonowy, Richland County Cause No. 89-003 (Seventh Judicial Dist. Ct. 1989). From these convictions, Kordonowy appeals.

1. Did the District Court abuse its discretion by admitting certain other crimes, wrongs, or acts evidence?

Kordonowy argues that the District Court erred when it allowed into evidence V.N.O.’s testimony, which chronicled the evening when Kordonowy raped her. Kordonowy argues that this other crimes, wrongs, or acts evidence violates Montana Rule of Evidence 404(b) and related Montana case law.

Montana Rule of Evidence 404(b) provides:

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

Montana Rule of Evidence 403 additionally provides:

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Montana Rules of Evidence 404(b) and 403 preclude the admission of evidence of other crimes, wrongs, or acts if this evidence is offered to prove a defendant’s character and that he acted in conformity therewith, or if the prejudicial nature of the evidence substantially outweighs its probative value. The last sentence of Montana Rule of Evidence 404(b), however, allows other crimes, wrongs, or acts evidence if it is admitted to prove the identity of the defendant.

This identity exception is often used “[t]o prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused.” McCormick, Evidence 449 (1972), noted in Wright & Graham, Federal Practice and Procedure: Evidence § 5246. Here, we hold that the facts of the two rape incidents are so nearly identical in method that they can be earmarked as the handiwork of Kordonowy; accordingly, the testimony of V.N.O. fits into the exception of proving identity under Montana Rule of Evidence 404(b). We further hold that V.N.O.’s testimony did not violate Montana Rule of Evidence 403 because its probative value was not outweighed by its prejudicial value.

2. Did sufficient evidence support the jury’s verdict?

The standard for reviewing issues concerning sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; restated in State v. Kao (1990) 245 Mont. 263, 267, 800 P.2d 714, 716. We hold that after viewing the evidence in the light most favorable to the prosecution, the evidence allowed the trier of fact to find beyond a reasonable doubt that Kordonowy committed each essential element of aggravated burglary and sexual intercourse without consent.

Section 45-6-204(2)(b), MCA, provides that “[a] person commits the offense of aggravated burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein and: in effecting entry or in the course of committing the offense or in immediate flight thereafter, he purposely, knowingly, or negligently inflicts or attempts to inflict bodily injury upon anyone.” Here, the evidence when viewed in the light most favorable to the prosecution allowed the jury to conclude beyond a reasonable doubt that Kordonowy knowingly entered KB.’s home with the purpose of committing sexual intercourse without consent and in the process, inflicted bodily harm upon her.

Section 45-5-503(1), MCA (1989), provides in pertinent part that “[a] person who knowingly has sexual intercourse without consent with a person of the opposite sex commits the offense of sexual intercourse without consent.” Here, the evidence viewed in the light most favorable to the prosecution allowed the jury to conclude beyond a reasonable doubt that Kordonowy engaged in sexual intercourse with K.B. without her consent.

In conclusion, we affirm Kordonow/s convictions of aggravated burglary and sexual intercourse without consent against K.B.

JUSTICES HARRISON, GRAY, HUNT, TRIEWEILER, McDONOUGH, and WEBER concur.


author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF TERRI D. DURBIN, n/k/a TERRI D. WARD, Petitioner and Appellant, and EDWIN D. DURBIN, Respondent and Respondent.
    No. 90-578.
    Submitted September 18, 1991.
    Decided December 19, 1991.
    Rehearing Denied Jan. 16, 1992.
    48 St.Rep. 1142.
    251 Mont. 51.
    823 P.2d 243.

      For Appellant: John R. Christensen argued, Christensen & Hubble, Stanford.
    For Respondent: Michael G. Moses argued, Moses Law Firm, Billings.
    For Amicus: Peggy Probasco, Sp. Asst. Atty. Gen., Butte.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Terri D. Durbin, now known as Terri D. Ward (Terri), appeals the November 1,1990 findings of fact, conclusions of law, and order of the Tenth Judicial District Court of Fergus County, Montana, which denied her cross-petition for modification of child support, denied her attorney fees and costs, and granted Edwin Durbin (Ed) a tax exemption for their son, Aaron. We reverse and remand.

Terri presents the following issues:

1. Did the District Court err in failing to modify child support payments to reflect change of circumstances, the children’s ages, the standard of living the parties’ minor children would have enjoyed had the marriage not been dissolved, and Ed’s ability to pay increased child support?

2. Should Terri be awarded attorney fees and costs incurred in responding to Ed’s petition for modification, and further, should she be awarded attorney fees and costs of appeal?

3. Did the District Court improperly allow Ed to claim a tax deduction for Aaron while not ordering him to pay any child support?

I.

Terri married Ed on December 27, 1975, in Lewistown, Montana. The couple had two children, Aaron born July 9, 1976, and Shelley, bom November 3, 1979. On November 5, 1986, the couple divorced. The divorce decree 1) awarded the couple joint custody of the children, 2) awarded Terri primary physical custody of the children, 3) awarded Terri and Ed one tax deduction each for the children, and 4) required Ed to pay Terri monthly child support totaling $150 per child, except for two months in the summer, where he was to pay monthly child support totaling $75 per child.

On December 18, 1986, Ed lost his sight as a result of a work-related accident. Thereafter, Ed began to receive monthly Workers’ Compensation benefits of $820. In June or July 1987, Ed received from his employer’s Fireman’s Fund disability insurance policy a lump sum payment of $5,000; he also began to receive monthly payments of $87 from this policy. In June 1987, Ed began to receive monthly Social Security benefits, which reduced the amount of monthly Workers’ Compensation benefits he received. At this time, Ed’s total monthly income, including Workers’ Compensation benefits, Social Security benefits, and Fireman’s Fund disability benefits was $1154.

In June 1987, Terri, on behalf of the children, began to receive monthly Social Security benefits totaling $174 per child. Ed ceased paying Terri child support at this time. Ed testified that he believed the Social Security benefits on behalf of the children served as a credit toward his child support obligation.

In December 1989, Terri received a degree in accounting from Eastern Montana College. In January 1990, she secured employment as a staff tax accountant in Portland, Oregon. She financed her schooling with student loans, totaling $11,539 as of June 1990. Terri’s adjusted gross income was $11,759 in 1988 and $9,765 in 1989. In 1988 and 1989, Terri took tax deductions for both children on her income tax returns as she was able to prove to the Internal Revenue Service that she was providing over half of the children’s financial support.

In May 1990, Ed received a lump sum settlement for his injuries totaling $373,557 after costs, expenses, and attorney fees. Additionally, as part of a structured settlement, Ed began receiving monthly payments of $3788 in July 1990, these payments guaranteed to continue for thirty years.

On May 21, 1990, Terri filed an action for an order to show cause in Oregon. On May 29, 1990, Ed petitioned the District Court for a modification of child support, custody, and visitation. On June 14, 1990, Terri responded to Ed’s petition and cross-petitioned for past, current and future child support modification, attorney fees, and costs.

The District Court conducted a hearing on this matter on June 26 and 27, 1990. At the hearing, testimony revealed that Terri’s approximate gross income for 1990 would be $26,411 and Ed’s 1990 approximate gross income, including Social Security benefits, Fireman’s Fund disability insurance benefits, Workers’ Compensation benefits, the structured settlement, and the interest on the lump sum settlement would be between $87,000 and $145,000, depending upon Ed’s investment return. Testimony also revealed that Ed would continue to have this gross annual income for the remainder of his life, approximately sixty percent of this income being tax-free. At the time of the hearing, the Social Security monthly benefits on behalf of the children increased to $198 per child.

On November 1, 1990, the District Court 1) denied Ed’s petition for modification of child support, custody, and visitation, 2) denied Terri’s cross-petition for modification of past, current, and future child support, 3) denied Terri attorney fees and costs, and 4) granted Terri two tax deductions for the children in 1990 and granted Ed a tax exemption for their son, Aaron, beginning in 1991. From this judgment, Terri appeals.

II.

Our standard of review for findings of fact in child support modification cases is whether the District Court clearly abused its discretion. In Re The Marriage of Hall (1987), 228 Mont. 36, 39, 740 P.2d 684, 686. Our standard of review for conclusions of law of a trial court is whether the District Court correctly interpreted the law. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

III.

Did the District Court err in failing to modify child support payments to reflect change of circumstances, the children’s ages, the standard of living the parties’ minor children would have enjoyed had the marriage not been dissolved, and Ed’s ability to pay increased child support?

Terri presents two arguments under this issue: 1) that the Social Security benefits on behalf of the children do not serve as a credit toward Ed’s past, present, and future child support payments under the dissolution decree, and 2) that personal injury settlements, payment for fixture loss of income, Workers’ Compensation benefits, Fireman’s Fund disability insurance benefits, and Ed’s Social Security benefits (collectively referred to as Ed’s personal injury awards) should be considered income when determining a child support modification. Both argxxments will be discussed separately below.

1. Social Security Benefits on Behalf of the Children

The District Court in Conclusions 6 and 7 of its November 1,1990 findings of fact, conclusions of law and order held:

“6. That Respondent, Ed Durbin, has paid in full all child support he was obligated to pay through Jxxne, 1987, at which time the social security benefits commenced, said benefits being specifically for child support payments from Respondent as the result of his total disability resulting from his injury.
“7. That the amounts of those social security payments have been in excess of the amounts due under the Property Division and Custody Agreement of the parties and also exceed the Montana Child Support Guidelines for child support. The Court therefore concludes that the Petitioner is entitled to the child support payments of the social security benefits therefor, paid by the Social Security Administration. Petitioner is not entitled to child support payments from the Respondent in excess of the social security payments therefor until the amounts determined under the Montana Guidelines exceed the social security payments, and then only the excess over such payments.”

(Emphasis added.)

Terri argues that the District Court erred when it concluded that the Social Security benefits she receives on behalf of the children 1) are a credit toward Ed’s child support obligation from June 1990, and 2) relieve Ed of paying any back, current and future child support under the dissolution decree.

This Court has addressed the issue of whether Social Security benefits on behalf of a child serve as a credit toward a parent’s child support obligation on two different occasions. In Tefft v. Tefft (1981), 192 Mont. 456, 457-59, 628 P.2d 1094, 1095, a district court on March 25, 1980, amended a February 27,1980 dissolution decree by allowing a father to credit the $200 monthly Social Security benefits, received on behalf of his child due to the child’s learning disability, toward his $250 child support obligation. The district court, in amending the dissolution decree, considered these Social Security benefits as financial resources of the child under what is now § 40-4-204(2)(a), MCA. Tefft, 192 Mont. at 462-63, 628 P.2d at 1098. This Court affirmed when it found no abuse of discretion on the part of the district court. Tefft, 192 Mont. at 463, 628 P.2d at 1098.

In the case of In Re the Marriage of Gallant (1990), 241 Mont. 363, 364-65, 786 P.2d 1193, 1195, an action for past due child support, this Court held that Social Security benefits to a child due to the father’s disability did not absolve the father’s child support obligation under the dissolution decree. In Gallant, father was disabled at the time of the dissolution. The district court recognized father’s disability and allowed him to forego child support until he received disability benefits. Father began to receive Workers’ Compensation benefits one year later in 1981. Father, however, did not comply with child support under the dissolution decree. In 1985, father began to receive Social Security benefits for his disability; additionally the children began to receive monthly Social Security benefits, these benefits exceeding the amount of the father’s monthly child support obligation. From 1986 to 1990, father failed to pay any child support. Father argued that he was in substantial compliance with his child support obligation -under the dissolution decree due to, in part, the monthly Social Security benefits on behalf of the children. Gallant, 241 Mont. at 364, 786 P.2d at 1194. This Court held that “[s]uch benefits in no way constitute an expenditure from the father.” Gallant, 241 Mont. at 365, 786 P.2d at 1195.

Other jurisdictions addressing this issue have held:

“1. Social Security benefits received as a result of a parent’s retirement or disability are credited toward child support obligations. E.g. Cash v. Cash (1962), 234 Ark. 603, 353 S.W.2d 348; Horton v. Horton (1963), 219 Ga. 177, 132 S.E.2d 200; Schulze v. Jensen (1974), 191 Neb. 253, 214 N.W.2d 591; Perteet v. Sumner (1980), 246 Ga. 182, 269 S.E.2d 453; Boyes v. Boyes (Iowa 1976), 247 N.W.2d 265; Griffin v. Avery (1980), 120 N.H. 783, 424 A.2d 175; Folds v. Lebert (La.App. 1982), 420 So.2d 715.
“2. Social Security benefits are credited toward future child support obligations only upon modification of the original decree. E.g. Chase v. Chase (1968), 74 Wash.2d 253, 444 P.2d 145; Joachim v. Joachim (1977), 57 A.D. 2d 546, 393 N.Y.S.2d 63; In Re the Marriage of Cope (1980), 49 Or.App. 301, 619 P.2d 883; Moritz v. Moritz (Minn. 1985), 368 N.W.2d 337.
“3. Social Security benefits are not credited toward child support obligations when certain circumstances exist. E.g. Fowler v. Fowler (1968), 156 Conn. 569, 244 A.2d 375; Oatley v. Oatley (1977), 57 Ohio App.2d 226, 387 N.E.2d 245; Gerlich v. Gerlich (Minn. 1986), 379 N.W.2d 689; McClaskey v. McClaskey (Mo. App. 1976), 543 S.W.2d 832; In Re the Marriage of Sward (Minn. 1987) 410 N.W.2d 442.”

Section 40-4-208(1), MCA, provides that a dissolution decree can be modified “only as to installments accruing subsequent to actual notice to the parties of the motion for modification.” (Emphasis added.) See also 45 C.F.R. 302.70 and 303.106 (1990). We are therefore persuaded by the second category of cases holding that the receipt of Social Security benefits on behalf of a child and following a dissolution does not justify a credit toward child support obligation absent a court action modifying the dissolution decree.

Here, Ed petitioned the District Court for modification of child support on May 29,1990, following receipt of his $373,557 lump sum settlement. Ed’s petition served as actual notice to Terri of Ed’s modification request. Under § 40-4-208(1), MCA, any modification of Ed’s child support payments under the dissolution decree applies only to the child support payments accruing after May 29, 1990. We hold that based on § 40-4-208(1), MCA, the District Court incorrectly concluded that the Social Security monthly benefits on behalf of the children from June 1987 to May 1990 served as a credit toward Ed’s child support obligation; accordingly, Ed is responsible for paying monthly payments of child support under the dissolution decree from June 1987 to May 29, 1990.

Still remaining is the issue of whether the Social Security benefits received on behalf of the children after May 29,1990, serve as a credit toward Ed’s child support obligation. These benefits are paid as a result of Ed’s disability and serve in part as a substitute for Ed’s lost earning capacity. 42 U.S.C. § 402(c). Accordingly, we hold that these Social Security benefits on behalf of the children received after May 29, 1990, are to be treated as a contribution from Ed toward the support of his children and serve as a credit toward Ed’s child support obligation.

In light of this holding, we overrule Tefft v. Tefft (1981), 192 Mont. 456, 628 P.2d 1094, to the extent of allowing a retroactive credit of Social Security benefits received on behalf of a child toward a parent’s child support obligation prior to a modification of the dissolution decree. Additionally, we overrule In Re the Marriage of Gallant (1990), 241 Mont. 363, 786 P.2d 1193, to the extent that Social Security benefits on behalf of a child due to a parent’s disability cannot under any circumstances be credited toward the parent’s child support obligation.

2. Personal Injury Awards

Terri further argues that the District Court abused its discretion when it found that Ed’s personal injury awards are not considered income when determining a child support modification. Terri argues that this finding is contrary to 1) the Uniform District Court Child Support Guidelines, which provide that “all income, from whatever sources,” is to be considered in child support modifications, and 2) the standards under § 40-4-204, MCA.

The District Court found that Ed’s financial awards regarding his personal injury are “damages as a result of personal injury,” and as such, are “for the purpose of compensating [Ed] for his losses to restore him to the status quo ante.” The District Court further found that:

“Respondent is not richer than he was; he is now blinder than he was. Therefore, the Court finds that the moneys received by Ed Durbin in this settlement are not to be included and cannot be included in the determination of child support guidelines. Further, the Court finds that pursuant to the testimony concerning his settlement, Ed Durbin is responsible for one-half of any and all medical expenses to be incurred in the future by Ed Durbin. These moneys as a result of this personal injury must therefore be maintained and used for purposes of defraying the medical expenses to be incurred by Ed Durbin in the future, which are anticipated to be substantial.”

Based on these findings, the District Court denied a modification of child support; however it is unclear as to whether the District Court indeed applied the Uniform District Court Child Support Guidelines to this case.

Section 40-4-204(3)(a), MCA, provides that a court shall apply the Uniform District Court Child Support Guidelines and the enumerated standards under § 40-4-204, MCA, when determining a child support modification “unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case.” We hold that under the facts of this case, the application of the Uniform District Court Child Support Guidelines regarding Ed’s personal injury awards is inappropriate and falls within the exception contained in § 40-4-204(3)(a), MCA.

Here, the record indicates that if the Uniform District Court Child Support Guidelines were applied to Ed’s gross monthly income, including his personal injury awards, Ed would be obligated to pay a monthly child support payment totaling $1,624.56. The record indicates that applying the Uniform District Court Child Support Guidelines to Terri’s income results in a monthly child support obligation for Terri of $407.83. Subtracting Terri’s obligation from Ed’s results in Ed paying monthly child support of $1216.73.

The Uniform District Court Child Support Guidelines do not take into consideration Ed’s medical expenses as a result of his personal injury. The Guidelines simply provide that all income from all sources is to be considered when determining a modification in child support. The District Court found that Ed’s future medical expenses “are anticipated to be substantial.” Considering all of Ed’s personal injury awards without considering Ed’s actual and necessary needs including those resulting from his permanent disability is an inappropriate result. The noncustodial parent’s financial resources and needs are to be considered by the District Court under § 40-4-204(2)(e), MCA.

Just as inappropriate, however, is to preclude Ed’s personal injury awards when considering a child support modification in this instance. Ed’s personal injury awards serve in part to replace the income he can no longer earn through employment. The enumerated standards of § 40-4-204(2), MCA, include the consideration of the financial resources of both parents, the needs of the noncustodial parent, the standard of living the children would have enjoyed had the marriage continued, and the age of the children. The record indicates that Ed’s gross annual income, following the filing of his modification petition, is between $87,000 and $143,000. The record indicates that Terri’s 1990 gross annual income is $26,411.

The record indicates that Edwin will be responsible for one-half of his future medical expenses and his Medicare insurance will cover the remaining one-half. The record, however, does not indicate how much these future medical expenses might be, or whether Ed has medical insurance beyond Medicare, which would cover any or part of Ed’s attributable future medical expenses. The District Court only found that Ed’s future medical expenses “are anticipated to be substantial.”

We hold that the District Court’s interpretation and application of the law was incorrect under § 40-4-204(2), MCA, in concluding that Ed’s personal injury awards were precluded from consideration in Terri’s counter-petition for a modification of child support. We remand this case to the District Court with instructions to make additional findings and conclusions concerning 1) Ed and Terri’s financial resources, 2) Ed and Terri’s annual gross income, 3) the children’s expenses, and 4) Ed’s actual and necessary financial needs including those associated with his medical care resulting from his blindness. We instruct the District Court to subtract Ed’s actual and necessary needs including those associated with his medical care from his financial resources, and consider the remaining amount in determining a future child support modification under the enumerated standards of § 40-4-204(2), MCA.

We wish to note that this opinion does not affect the federal tax exemption allowed to Ed concerning his personal injury awards.

IV.

Should Terri be awarded attorney fees and costs incurred in responding to Ed’s petition for modification, and further, should she be awarded attorney fees and costs of appeal?

Terri argues that the District Court abused its discretion when it did not award her attorney fees and costs because evidence established the following: 1) Terri voluntarily traveled to Montana from Oregon to respond to Ed’s petition, 2) she borrowed money from her new employer to do so, 3) her financial resources are limited, and 4) Ed’s financial resources are substantial, and he can easily afford to pay for Terri’s attorney fees and costs. Terri further argues that based on the same, this Court should award her attorney fees and costs of appeal.

Ed argues that the District Court did not abuse its discretion when it refused to award Terri’s attorney fees and costs because 1) the divorce decree did not provide for such an award, 2) Terri, in her cross-petition, raised additional issues outside of Ed’s petition for the court’s consideration, and 3) the record sufficiently supports the District Court’s conclusion that both parties should pay their own attorney fees and costs. Ed further argues that based on the same, this Court should deny Terri an award of attorney fees and costs of appeal.

The District Court made the following findings pertinent to this issue:

“The Court finds from the pleadings and the exhibits on file herein that there were numerous and substantial issues to be resolved by these parties. Terri Durbin filed pleadings in attempts at modification in the State of Oregon without authority and without jurisdiction in the State of Oregon and made attempts to require Ed Durbin to appear in Oregon for purposes of answering those claims. Mr. Durbin was required to hire the services of counsel in the State of Oregon as well as in the State of Montana to respond to those pleadings. Basically crossing in the mails was the petition of Ed attempting to clarify the issues concerning modification of child support and the visitation and custody matters. The Court finds that both of the petitions by the parties were filed in good faith for purposes of resolving issues that these parties have been unable to resolve in the past. Further, the Court finds that the visitation provisions now in effect pursuant to the decree required that the children return to Montana on or about the 15th day of June anyway. By having this matter on the 24th day of June, 1990, it was convenient or as convenient as possible for all parties involved. As a result, the Court specifically finds that neither side is entitled to reasonable attorney fees and/or court costs and each must pay his and her own.”

Section 40-4-110, MCA, provides that the court may award attorney fees and court costs “after considering the financial resources of both parties.” Additionally, the person requesting attorney fees and court costs must make a showing of necessity. In Re the Marriage of Knudson (1980), 186 Mont. 8, 16-17, 606 P.2d 130, 135. We hold that the District Court failed to make adequate findings regarding Terri and Ed’s financial resources when it concluded that each party should pay for his or her respective attorney fees and court costs. We therefore remand this case to the District Court for findings consistent with the rest of this opinion regarding Terri and Ed’s financial resources. On remand, we wish to note that the District Court may still consider whether the parties should pay their respective áttorney fees.

V.

Did the District Court improperly allow Ed to claim a tax deduction for Aaron while not ordering him to pay any child support?

On remand, the District Court shall also consider the proper allocation of income tax deductions for the dependent children and allocate the deductions in conformity with the court’s findings and conclusions on child support, as well as the applicable tax law.

This case is reversed and remanded to the District Court for further proceedings consistent with this opinion.

JUSTICES HARRISON, GRAY, HUNT, McDONOUGH, and WEBER concur.

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

I concur in the result achieved by that part of the majority opinion which remands this case to the District Court for consideration of Ed’s personal injury award in relation to his child support obligation. However, I do not agree with all that is said in that part of the majority’s opinion.

Specifically, I disagree with the majority’s conclusion that because Ed’s award serves in part to replace the income he can no longer earn, his financial condition has somehow changed. If his personal injury award replaces prior income, then as far as the record discloses, it replaces the same income upon which his prior child support obligation was based, and nothing has changed.

I concur in the result achieved by the majority because under the facts presented in this case it is an equitable result and I can find no authority to the contrary. The majority result is consistent with treatment of personal injury awards by other jurisdictions. See Fabiano v. Fabiano (Conn. App. Ct. 1987), 523 A.2d 937; Sommer v. Sommer (Wis. Ct. App. 1982), 323 N.W.2d 144.

However, I agree with the rationale of the District Court when it concluded that Ed’s circumstances had not really changed as a result of his personal injury award, but that he had simply replaced certain assets (his eye sight and earning capacity) with other assets (money).

Furthermore, I am concerned that under different circumstances the precedent established by this case could prove to be inequitable to personal injury victims. Therefore, I believe it is difficult to establish any consistent rule about the relationship of personal injury settlements and child support obligations. I agree with the Wisconsin Corut of Appeals that each case must be evaluated separately and that:

“[W]hether a personal injury recovery does indeed improve a victim’s economic condition for child support purposes will not always be easy or obvious. There are times, of course, when the victim has suffered actual economic impairment as a result of the tort-feasor’s negligence, and the award is merely repaying the victim for the actual economic impairment. If so, the award may truly make the victim economically whole again and nothing more; no increase in economic circumstances results. These questions of fact must be carefully considered by the trial court in order to do justice to both the noncustodial parent and to the children.”

Sommer, 323 N.W.2d at 147.

I dissent from that part of the majority opinion which concludes that there need be a modification of the original decree before Social Security benefits can be credited toward a parent’s child support obligations. The Social Security benefits paid to Ed’s children in this case were a direct result of his disability and inability to work. They are clearly a substitute for his loss of earning power and his obligation to support his children. There is no reason apparent to me why a disabled parent should be required to incur the additional expense of attorney fees to go through the formality of modifying a decree simply to reflect what in reality is already the situation.

I do not agree that § 40-4-208, MCA, requires the majority’s conclusion. That section only pertains to modification of child support payments. In the case of social security payments, the parent is simply substituting one source of payment for another.

Furthermore, the result achieved by the majority is particularly harsh where the Court concedes that after modification of the decree it would be appropriate to credit social security payments to child support obligations, but disallows a credit for those same payments for a nearly three year period of time prior to the motion to modify. I believe that the majority’s opinion exalts form over substance and creates an unnecessary hardship for this totally disabled parent.

       Under § 40-5-209, MCA, Montana Department of Social and Rehabilitation Services adopted child support guidelines, Admin. R. Mont. 46.30.1501 to -.1549 (1990), which became effective July 13, 1990. Ed petitioned for child support modification on May 29,1990. Therefore, these child support guidelines are not applicable to this case.


author: JUSTICE GRAY JUSTICE TRIEWEILER,

text:
    SCOTT T. MEDICINE HORSE, Petitioner and Appellant, v. TRUSTEES, BIG HORN COUNTY SCHOOL DISTRICT NO. 27, and NANCY KEENAN, Superintendent of Public Instruction, Respondents and Respondents.
    No. 91-090.
    Submitted on briefs Aug. 1, 1991.
    Decided Dec. 10, 1991.
    48 St.Rep. 1074.
    251 Mont. 65.
    823 P.2d 230.

      For Appellant: Emilie Loring, Hilley & Loring, Missoula.
    For Respondents: James L. Vogel, Attorney at Law, Hardin; Beda Lovitt, Office of Public Instruction, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

The appellant, Scott T. Medicine Horse (Medicine Horse), appeals from a judgment entered by the District Court of the First Judicial District, Lewis and Clark County, affirming a decision by State Superintendent of Public Instruction Nancy Keenan. We affirm.

The issue before this Court is whether the District Court erred in affirming the State Superintendent of Public Instruction’s decision that Medicine Horse was an “at will” employee who received the process due him upon his discharge from employment.

Medicine Horse was employed as a custodian by Big Horn County School District No. 27 from 1984 to 1988. He worked without a written contract or agreement under Gary Greseth (Greseth), Principal of Non-instructional Affairs of Lodge Grass Public Schools. In August of 1988, Greseth began establishing a written record of Medicine Horse’s work-related problems. Greseth determined that Medicine Horse needed additional supervision and instituted weekly meetings between himself and Medicine Horse in order to more closely monitor Medicine Horse’s progress.

The appellant’s job performance continued to deteriorate and on November 23, 1988, Greseth suspended Medicine Horse without pay for three days because of several incidents with a co-worker. Medicine Horse did not appeal this action.

Greseth’s duties included the scheduling of janitors’ work shifts. On either December 16 or 19, 1988, Greseth posted a Christmas vacation work schedule. This schedule included a shift change for Medicine Horse and others. The shift change was to begin on December 21, 1988.

Medicine Horse was on sick leave December 16 and 19. On December 20, Greseth found a note from Medicine Horse on his door stating that Medicine Horse would work his usual 8:00 a.m. until 4:00 p.m. shift instead of the later shift to which Greseth had assigned him. Greseth showed this note to Superintendent Bert Corcoran. Both men determined that the note amounted to insubordination. Greseth claims he spoke to Medicine Horse on December 20 and informed him at that time that he would recommend immediate termination of Medicine Horse at the school district trustees’ meeting that night. Medicine Horse claims that he was at two doctor appointments in Billings all day December 20,1988, did not speak to Greseth on that day, and had no idea that Greseth intended to recommend his termination. Medicine Horse contends that he arrived for work at his new shift time, 2:00 p.m., on December 21, 1988, to find that he had been terminated by the trustees at their December 20,1988, meeting.

Medicine Horse requested, and was granted, a hearing by the trustees which took place on January 17, 1989. The trustees took no action following this hearing and his discharge remained in effect. Subsequently, Medicine Horse appealed to the Big Horn County Superintendent of Schools as provided in § 20-3-210, MCA. The County Superintendent affirmed the discharge on the basis that Medicine Horse was an “at will” employee. Following the directives of § 20-3-107, MCA, Medicine Horse next appealed to the State Superintendent of Public Instruction; she upheld his discharge and status as an “at will” employee. Medicine Horse then sought judicial review under the Montana Administrative Procedure Act. The District Court affirmed the State Superintendent of Public Instruction.

This appeal centers on Medicine Horse’s contention that he was denied due process of law because he did not have written notice of the reasons for his termination or of the termination itself, and was not provided a pretermination hearing. The appellant contends that he was a permanent employee and, thus, had a property interest in his employment. The respondents claim Medicine Horse was an “at will” employee, had notification of the trustees’ consideration of his termination before the meeting at which he was terminated, and received the post-termination hearing he requested even though that hearing was entirely discretionary with the trustees.

We note at the outset that the issues for review at both the District Court and this Court are conclusions of law; all parties agree that the appropriate standard of review is contained in § 2-4-704, MCA. We have clarified in recent cases that under § 2-4-704, MCA, our standard of review relating to conclusions of law, whether the conclusions are made by an agency, workers’ compensation court, or trial court, is whether the tribunal’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603; see also GBN, Inc., v. Montana Department of Revenue (Mont. 1991), [249 Mont. 261,] 815 P.2d 595, 596-97, 48 St.Rep. 715, 716.

AT WILL

Respondent Big Horn County School District (School District) argues that Medicine Horse is an “at will” employee and is governed by the Montana “at will” statute:

“Termination at will. An employment having no specified term may be terminated at the will of either party on notice to the other any specified term. His employment was not governed by a contract which specified the duration of his employ, nor do the laws and regulations governing his position as an employee of the School District specify any such term.

Section 39-2-503, MCA. We have concluded that an “at will” employee is one whose term of employment has no specific duration. Hobbs v. Pacific Hide and Fur Depot (1989), 236 Mont. 503, 771 P.2d 125. Medicine Horse has provided no evidence that his employment had

Quoting from a 1984 article in the Montana Arbitrators Association Quarterly, the appellant contends that the doctrine of “at will” employment is no longer viable in Montana. While that may have appeared to the author to be the case in 1984, we disagree that such is the state of the law in Montana. In Prout v. Sears, Roebuck and Co. (1989), 236 Mont. 152, 772 P.2d 288, we applied the “at will” statute to persons who have no specific term to their employment. And while Prout was decided on the basis of pre-Wrongful Discharge From Employment Act law, neither that Act nor any other action by the Montana legislature or this Court has nullified the “at will” designation or § 39-2-503, MCA.

We hold that Medicine Horse is an “at will” employee who had no specific duration or term for his employment with the School District.

NOTICE

The appellant argues that even if he is an “at will” employee he was still entitled to notice. This Court has interpreted the “at will” statute to mean that notice prior to termination is not required. Prout v. Sears, Roebuck and Co. (1989), 236 Mont. 152, 772 P.2d 288; Gates v. Life of Montana Insurance Co. (1982), 196 Mont. 178, 638 P.2d 1063. We hold that Medicine Horse was not entitled to prior notice of his termination under the Montana “at will” statute.

The appellant next argues that he was entitled to notice of the reasons for his discharge because the School District’s policy “did not give the Superintendent authority to suspend or terminate without giving the employee the reasons for such action ....” The policy does not require the Superintendent to provide reasons for termination:

“SUSPENSION AND DISMISSAL OF NON-CERTIFIED STAFF
“Non-certified Staff members are employed by the Superintendent subject to review by the Board of Trustees. They may be suspended at any time by the Superintendent. Non-certified employees may be terminated at any time by the Superintendent however employees may request the Board of Trustees to review the circumstances of their termination. Non-certified employees so terminated shall have two working days to notify the Superintendent in writing of their wishes to a hearing by the Board. The Board may grant a hearing at their discretion.”

This policy authorizes termination of non-certified employees at any time; it does not address and, thus, can hardly be said to require the giving of reasons for termination. We note that Medicine Horse’s situation is not comparable to that of non-tenured teachers who have a statutory right, upon request, to a list of reasons for termination pursuant to § 20-4-206, MCA.

The appellant cites Joint Anti-Fascist Refugee Committee v. McGrath (1951), 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817, for the proposition that due process requires notice and an opportunity for a hearing. The United States Supreme Court has held that due process is the opportunity to be heard “at a meaningful time and in a meaningful manner” when the due process clause of the Fourteenth Amendment to the Constitution is activated. Mathews v. Eldridge (1976), 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 32. However, due process protections required by the Fourteenth Amendment are necessary only when an employee has a property interest in his position. Akhtar v. Van De Wetering (1982), 197 Mont. 205, 642 P.2d 149.

PROPERTY INTEREST

Medicine Horse argues that he had a property interest in his job as custodian and, therefore, that he was entitled to the due process of a pretermination hearing.

Procedural due process, which the appellant claims entitled him to a pretermination hearing, is required only when the rights of liberty and property protected by the Fourteenth Amendment have been infringed. Akhtar, 197 Mont. at 210, 642 P.2d at 152. In Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494, the United States Supreme Court held that a public employee is entitled to procedural due process if he or she has a property right in continued employment. Once a property interest is determined to exist, procedural due process mandates a hearing before termination. Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493, 84 L.Ed. 2d at 503-504.

A property interest in one’s position must be created by existing rules or regulations, state laws, or understandings between employee and employer. Board of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed. 2d 548. This Court has adopted the Roth reasoning and prerequisites to a property interest. Akhtar, 197 Mont. at 211, 212, 642 P.2d at 153. Medicine Horse presented no written contract, state law, or regulation specifically stating or otherwise indicating that he had a property interest in his position as custodian. The written policy quoted earlier states that a non-certified employee, like Medicine Horse, can be terminated any time and that a hearing may be provided to the employee at the discretion of the trustees; that policy does not support the appellant’s claim of a property interest in his position. Nor do any rules or school regulations mandate that a hearing granted by the trustees must occur before a discharge; indeed, the referenced policy makes it clear that any such hearing would occur after the termination.

Medicine Horse’s subjective belief that he had a property interest in his job does not create such a property interest. A subjective expectancy creates no constitutionally protected interest. Perry v. Sindermann (1972), 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570. A “mutually explicit understanding” between the parties can lead to a property interest. Perry, 408 U.S. at 601, 92 S.Ct. at 2699, 33 L.Ed. 2d at 580. Here, however, the written School District policy regarding discharge of non-certified employees and the progressive discipline in which Medicine Horse was involved do not support the existence of such a mutually explicit understanding.

Medicine Horse also argues that he had a property interest in his position because his probationary period was over and he worked for the School District in excess of four years; thus, he asserts that he had a reasonable expectation that his job would continue. Medicine Horse would have this Court equate the “permanency” of employment that comes with passing a probationary period with a property interest in one’s employment. Both this Court and the United States Supreme Court have rejected this argument.

We considered whether length of employment gives rise to a property interest in Reiter v. Yellowstone County (1981), 192 Mont. 194, 627 P.2d 845. There, a custodian with eighteen years of employment with the school district was not provided with a hearing upon discharge. We held that he had no property interest in his position by virtue of his years of service, absent a contractually specified term of employment. The Reiter holding relied on a United States Supreme Court case involving a police officer who had passed his probationary period and was considered permanent. The Supreme Court held in that case that the police officer had no property interest in his position and that his position was continued at the will of the city. Bishop v. Wood (1976), 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed. 2d 684.

The appellant relies heavily on Tolson v. Sheridan School Dist. (E.D. Ark. 1988), 703 F.Supp. 766. In Tolson, a bus driver sued the school district claiming his due process rights had been violated at the time of his discharge. Tolson had experienced discipline problems with the students on his bus and reported this to the district. On the day he made his report, Tolson returned to his home after doing errands and found his school bus, previously parked in front of his house, gone. Subsequently, he discovered that the district had sent someone to retrieve it and that he had been fired. The court held that Tolson’s due process rights were violated when he was not given adequate notice and an opportunity to be heard.

The appellant’s reliance on Tolson is misplaced. Tolson had a contract with the district for a specific term. In addition, the parties in the Tolson case stipulated that Tolson had a property interest in his employment contract within the meaning of the Due Process Clause of the Fourteenth Amendment. Given this stipulation, the issue of whether Tolson did or did not have a property interest in his position was not before the court.

In light of our holdings that Medicine Horse was an “at will” employee who had no property interest in his position, we find no error by the District Court.

Affirmed.

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

JUSTICE TRIEWEILER,

dissenting.

I dissent from the majority opinion.

Scott Medicine Horse testified that he was not at work on December 20, 1988, and was not notified of the school board meeting at which his termination was to be discussed. It is undisputed that the agenda for that meeting did not include notice to Medicine Horse or anyone else that his termination would be a subject of discussion. Even after the meeting and his termination, he was not given reasons for his termination or an opportunity to respond to those specific reasons at the subsequent meeting at which he appeared. Neither the County Superintendent, the State Superintendent, nor the District Court resolved the factual dispute regarding notice because all arrived at a legal conclusion that Medicine Horse was an employee “at will” and was not entitled to due process prior to his termination.

This Court concludes that because the school district had a written regulation providing for its employees’ termination at any time that Medicine Horse had no property interest in his employment. However, if the determination of who does and who does not have a property interest in employment is going to be left to employers, then the due process requirement of the Fourteenth Amendment to the United States Constitution is meaningless.

I find it incredible that through the cumbersome intellectual process known as legal analysis courts have concluded that a person receiving welfare benefits has a “property interest” in the continued receipt of those benefits that is safeguarded by procedural due process. See Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed. 2d 287. However, this man had no “property interest” in the government job he had performed for four and one-half years and which was his sole means of providing food, clothing, and housing for himself and his family.

I agree with the dissent of Justice Marshall in Board of Regents v. Roth, 408 U.S. 564, 589, when he states that:

“Employment is one of the greatest, if not the greatest, benefits that governments offer in modern-day life. When something as valuable as the opportunity to work is at stake, the government may not reward some citizens and not others without demonstrating that its actions are fair and equitable. And it is procedural due process that is our fundamental guarantee of fairness, our protection against arbitrary, capricious, and unreasonable government action.”

Justice Douglas has written that:

“It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.” Joint Anti-Fascist Refugee Committee v. McGrath, supra, at 179 (concurring opinion).

However, it is not necessary to rely on Justice Marshall’s dissent in Roth, to conclude that Medicine Horse had a “property interest” in his employment. In Perry v. Sindermann, 408 U.S. 593, 601-02, another employment case decided by the United States Supreme Court on the same date as Roth, the majority stated:

“A person’s interest in a benefit is a ‘property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing. [Roth, 408 U.S. at 577.]
“A written contract with an explicit tenure provision clearly is evidence of a formal understanding that supports a teacher’s claim of entitlement to continued employment unless sufficient ‘cause’ is shown. Yet absence of such an explicit contractual provision may not always foreclose the possibility that a teacher has a ‘property' interest in re-employment. For example, the law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be ‘implied.’ 3A. Corbin on Contracts §§ 561-572A(1960). Explicit contractual provisions maybe supplemented by other agreements implied from ‘the promisor’s words and conduct in the light of the surrounding circumstances.’ Id., at § 562. And, ‘[t]he meaning of the [the promisor’s] words and acts is found by relating them to the usage of the past.’ ” [Roth, 408 U.S. at 577.] [Emphasis added.]

In this case, Medicine Horse had been employed by the school district for four and one-half years. He testified that he was a temporary employee for one year, but that after one year he was given permanent status which included sick leave, annual leave, vacation pay, and some expectation of permanency. He testified that he was given that expectation not only by another employee, but by John Pretty On Top, a member of the school board. No one testified to the contrary. The only other witness who testified before the County Superintendent about Medicine Horse’s status was Gary Greseth. Greseth was the principal of noninstructional affairs who supervised Medicine Horse. He also testified that Medicine Horse was a permanent employee.

The majority relies on § 39-2-503, MCA, for its conclusion that Medicine Horse was an employee at will because he had no specified term. However, I would conclude that when an employee is advised that he is permanent, that is a specified term.

Furthermore, we have previously held in other circumstances that in spite of the language found in § 39-2-503, MCA, an employee can have a reasonable expectation of job security, based on representations by his employer, even though he has no specified term of employment. See Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 687 P.2d 1015. Although the specific cause of action authorized under Dare has been superseded by the Wrongful Discharge From Employment Act found at §§ 39-2-901, MCA, et seq., the principle remains that the effect of the at will statute is subject to alteration by the conduct of the parties to the employment relationship.

Because the employee in this case was led to believe that after a year of probationary employment he had achieved “permanent” status, I would conclude that his interest in his employment became a “property” interest for due process purposes based upon the “mutually explicit understandings” between the employee and his employer. Having reached that conclusion, the next question is, “what kind of‘due process’ was he entitled to?”

The school district contends that because he was afforded an opportunity to contest his termination after the fact, Medicine Horse received all the due process that he was entitled to. However, for obvious reasons, an after the fact hearing does not provide due process. For one thing, the decision that Medicine Horse was undesirable and should be terminated had already been made without his presence or input. Any further consideration of his value as an employee by the same board necessarily had to have been tainted by the board’s concern for justifying its own actions. I am sure that this is one of the considerations the United States Supreme Court had in mind when it decided Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487. In that case, the court held that only pretermination input from the employee could satisfy the due process clause. The court concluded that where the employee had a property right in his employment, his employer could not dictate the terms of the due process to which he was entitled. Specifically, the court found that a post-termination opportunity to be heard was inadequate. The court stated:

“An essential principle of due process is that a deprivation of fife, liberty, or property “be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 94 L.Ed. 865, 70 S.Ct. 652 (1950). We have described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’ Boddie v. Connecticut, 401 U.S. 371, 379, 28 L.Ed. 2d 113, 91 S.Ct. 780 (1971) (emphasis in original); see Bell v. Burson, 402 U.S. 535, 542, 29 L.Ed.2d 90, 91 S.Ct. 1586 (1971). This principle requires “some kind of a hearing” prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Board of Regents v. Roth, 408 U.S. at 569-570, 33 L.Ed.2d 548, 92 S.Ct. 2701; Perry v. Sindermann, 408 U.S. 593, 599, 33 L.Ed.2d 570, 92 S.Ct. 2694 (1972). As we pointed out last Term, this rule has been settled for some time now. Davis v. Scherer, 468 U.S. 183, 192 n. 10, 82 L.Ed.2d 139, 104 S.Ct. 3012 (1984); Id., at 200-203, 82 L.Ed.2d 139, 104 S.Ct. 3012 (Justice Brennan, concurring in part and dissenting in part). Even decisions finding no constitutional violation in termination procedures have relied on the existence of some pretermination opportunity to respond.
“The essential requirements of due process, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.”

Loudermill, 470 U.S. at 542, 546.

For Medicine Horse, his source of livelihood was at stake. A job he had performed for four and one-half years was on the line. The possibility of future employment had to have been adversely affected by the circumstances of his discharge.

It does not seem like too much to require that before that discharge he be given notice of the reasons and an opportunity to respond.

In this case, I conclude that Medicine Horse had a property interest in his employment and that, therefore, he was entitled to notice of the charges against him and an opportunity to respond to those charges prior to his termination as an employee. Since the County Superintendent, State Superintendent, and District Court have all denied Medicine Horse’s petition based on what I conclude to be a misapplication of the Constitution, I would reverse the District Court.

JUSTICE HUNT concurs in the foregoing dissent of JUSTICE TRIEWEILER.