author: MR. JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RALPH STEVER, Defendant and Appellant.
    No. 86-107.
    Submitted Jan. 22, 1987.
    Decided Feb. 13, 1987.
    732 P.2d 853.

      David W. Harman, argued, Libby, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Clay R. Smith, Asst. Atty. Gen., Edward M. Dobson, argued, Legal Intern, Helena, William A. Douglas argued, Lincoln Co. Atty. Libby, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal of a criminal conviction arising from the Nineteenth Judicial District, in and for Lincoln County, Montana. Defendant was convicted of the felonious sale of dangerous drugs and now appeals. We affirm.

On appeal, defendant raises two issues. The first is whether the District Court erred by allowing Paddy Calabrese to testify about statements made by John Loomis implicating defendant as the drug supplier. The second issue is whether the District Court erred in its circumstantial evidence jury instruction.

This case began with an undercover narcotics investigation conducted in Lincoln County, Montana, in 1983. County Attorney William Douglas hired Paddy Calabrese, a private investigator from Spokane, Washington, to undertake this investigation.

From the inception of the operation, the prime targets of this investigation were John and Debbie Loomis, a married couple living in or near Libby, Montana. Calabrese accordingly contacted the Loomises, pretending to be a real estate developer from Seattle. This relationship soon blossomed to the point that Calabrese made a series of minor narcotics purchases from the Loomises.

Calabrese then entered into an agreement with John Loomis for Loomis to sell Calabrese two kilograms of cocaine for $58,000 per kilo. During the course of these negotiations, Calabrese came to believe that the cocaine would be supplied by the defendant, Ralph Stever.

The sale of the first kilo was scheduled for August 5, 1983. Prior to this purchase, Lincoln County Sheriff’s Deputies gave Calabrese money for the purchase. The officers had recorded the serial numbers of the bills, but had not marked them with any tracing element.

According to his testimony at trial, Calabrese arrived at the Loomis residence with the purchase money at approximately 8:30 on the night of August 5. He showed Loomis the purchase money in his briefcase and a brief discussion followed. Approximately twenty minutes after Calabrese’s arrival, Loomis left his residence in a vehicle, for a place unknown to Calabrese, to pick up the cocaine. After approximately another twenty minutes, Loomis returned and informed Calabrese that the price had increased to $62,500 per kilo, and that half of that price was due in advance. Calabrese gave Loomis $30,000 and Loomis again left.

Loomis returned in approximately twenty-five minutes and offered Calabrese two bags containing cocaine. Calabrese accepted the bags and paid Loomis the balance of $32,500. Calabrese then left the Loomis residence and signaled the Sheriff’s deputies. Again, during the sale, Calabrese came to conclude that Stever supplied the cocaine.

Upon their arrest of Loomis, the Sheriff’s deputies discovered that he did not have in his possession all of the initial $30,000 advance money given him by Calabrese. When asked the location of the missing money, Loomis named several possible locations where it might be found. The first of these locations which the deputies checked was the residence of one Tom Hileman.

Approximately fifteen minutes after their arrival at the Hileman residence, the police discovered Stever hiding in the bushes at the side of the house and promptly placed him under arrest. Officer Neil Bauer later testified at trial that when he questioned Stever subsequent to his arrest, Stever attempted to strike a bargain for his freedom in return for disclosing the location of the missing purchase money. Stever denied making these comments.

Roughly three hours after Stever’s arrest, a deputy searching the area found the missing money hidden beneath some boards in the back yard of the Hileman residence. Police also later found in a wood stove within the Hileman residence a paper bag similar to the one into which Loomis had placed the missing money.

At trial, the State introduced other evidence in its attempt to establish that Loomis received the cocaine from Stever. Jerry Johnston testified that he (Johnston) was living in the Hileman residence at that time and returned to the house around 9:00 p.m. on August 5. When he arrived, Johnston saw John Loomis on the front porch of the house talking with Stever.

Johnston further testified that Loomis remained at the Hileman residence for roughly ten to twenty minutes and then departed for fifteen to twenty minutes. Johnston stated that Loomis returned, again conversed with Stever — this time for five or ten minutes — and then departed. While he was able to hear Loomis and Stever talking, Johnston stated that he could not tell what they were talking about.

The State argued that Johnston’s testimony fully corroborated the time sequence of Calabrese’s testimony. The round trip driving time between the Loomis and Hileman residences according to the testimony is approximately seven and one-half minutes. At trial, Stever was found guilty of sale of dangerous drugs.

The first issue we must decide is whether the District Court erred by allowing Calabrese to testify about statements made by John Loomis implicating Stever as the drug supplier.

I

In its prosecution of the defendant the State relied heavily upon the testimony of Calabrese, who related several statements made to him by John Loomis which implicated the defendant as the cocaine supplier. Under the terms of an earlier plea bargain agreement, the State had agreed not to call Loomis to testify at Stever’s trial. Because of that agreement, the State had to introduce Loomis’s incriminating testimony through Calabrese, over the objection of the defendant that the use of such testimony violated both the hearsay rule and the Confrontation Clause.

A. The Challenged Testimony.

Calabrese testified at trial that Loomis implicated the defendant in several statements throughout the course of their dealings. The first two statements were allegedly made on July 20, 1983, when Calabrese and Loomis were stopped south of Libby by road construction and the defendant was in the car immediately in front of them. Loomis first said to Calabrese:

“Stay right here. I’m getting out of the car. That’s our elbow man, my toot [cocaine] man’s right here in front of us.”

Loomis then rode with defendant for a while as Calabrese followed. After Loomis returned to Calabrese’s car, Calabrese testified that:

“Mr. Loomis said to me that he just got confirmation from Ralph that he could get as much cocaine as we wanted to purchase and he referred to him — ‘he’s like Jesus Christ.’ ”

The remaining statements were allegedly uttered on August 5, 1983, the date of the sale:

“Mr. Loomis stated to me that the price was $62,500.00 for a kilo and I asked him, I think we had a conversation the next day that the kilo would be going down in price and he stated to me he would need $30,000.00 up front and he would bring a kilo back. Because that’s the way Ralph wanted to do the deal.
“When John Loomis gave me the kilo, he turned around and said a couple of ounces were missing out of it and he would have it replaced with the other kilo through Ralph tomorrow.
“Q. How often was Ralph’s name mentioned by Mr. Loomis in these conversations?
“A. Probably the last day it was mentioned more than any other day. I think three times the last day.
“Q. And, was it made clear to you by Mr. Loomis as to who was the supplier of this cocaine — who he was going to be?
“A. Yes it was.
“Q. And, who was that person?
“A. Ralph Stever.”

The first issue is whether these statements were properly admitted.

B. The Hearsay Rule.

A review of the record reveals that the District Court, without explaining its decision, admitted this testimony under the coconspirator exemption to the hearsay rule. This exemption, Rule 801(d)(2)(E), states:

“A statement is not hearsay if . . . [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.”

This Court has not previously had occasion to address the elements necessary to establish the applicability of this rule to an alleged coconspirator’s statements. We now choose to adopt guidelines for this issue. We note initially that this provision is identical to that found in the Federal Rules of Evidence, and federal decisional authority is instructive. See Snell v. Montana-Dakota Utilities Co. (1982), 198 Mont. 56, 62, 643 P.2d 841, 844 (when a state statute is closely modeled after a federal provision, “reference to federal case law is appropriate and useful”). We look to federal case law, however, solely for analytical purposes.

Before a coconspirator’s statement may be admitted pursuant to Rule 801(d)(2)(E), the State is required to establish a proper foundation, showing that the requisite elements of this rule have been satisfied. Specifically, we require that the State show (1) that a conspiracy exists, (2) membership of the declarant coconspirator and the defendant in such conspiracy, and (3) that the declaration was uttered in the course of and in furtherance of the conspiracy. See e.g., United States v. Womochil (8th Cir.1985), 778 F.2d 1311, 1314; United States v. Perez (9th Cir. 1981), 658 F.2d 654, 658.

The District Court, pursuant to Rule 104, M.R.Evid., is required to determine whether the requirements of Rule 801(d)(2)(E) have been met. In reaching this determination, we now require that before such testimony be admitted, the District Court find that a conspiracy exist by a preponderance of the independent evidence. Stated differently, we require that the State show the existence of the conspiracy by a preponderance of the evidence independent and exclusive of the coconspirator’s statement itself.

While we note that the order of proof is typically within the discretion of the trial judge, we further require that the District Court make this admissibility determination prior to the introduction of the alleged coconspirator’s statement.

On appeal, defendant essentially challenges only the District Court’s ability to find the existence of a conspiracy. Our review of the record, however, persuades us that the State presented sufficient evidence to satisfy this requirement. There exists sufficient evidence, independent of Loomis’s alleged statements, to find by a preponderance of the evidence that a conspiracy existed.

The existence of a conspiracy can be shown by circumstantial evidence. State v. Fitzpatrick (1977), 174 Mont. 174, 184, 569 P.2d 383, 391. To establish a conspiracy it is not necessary to prove by direct evidence an agreement to commit a crime. Fitzpatrick, 569 P.2d at 391; State v. Alton (1961), 139 Mont. 479, 504, 365 P.2d 527, 539.

In this case, the State presented Calabrese’s testimony relating Loomis’s two trips taken on the night of the sale to pick up the cocaine. This testimony, read in conjunction with the observations of Jerry Johnston at the Hileman residence, provides strong circumstantial proof supporting the State’s argument.

Further, the State presented the defendant’s arrest while hiding in the bushes alongside the Hileman residence and the later discovery of the drug transaction money in Hileman’s back yard. While these two events are not necessarily related, their relationship can be confirmed by the testimony of Officer Bauer who stated that the defendant offered to show Bauer the location of the money in exchange for the defendant’s release.

We acknowledge that of these two factors offered by the State to prove the existence of this conspiracy, each, if considered alone, might he insufficient to satisfy the preponderance burden. Considered together, however, we find that the District Court could have found the existence of a conspiracy under this standard. We therefore hold that the District Court did not err in admitting this challenged testimony under Rule 801(d)(2)(E).

C. Confrontation Clause.

Defendant further asserts that admission of the challenged testimony violated his right of confrontation guaranteed by Article II, Section 24 of the Montana Constitution and the Sixth Amendment of the United States Constitution held applicable to the states through the Fourteenth Amendment in Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.

Defendant initially argued that the right of confrontation is an absolute right and that no out-of-court statements may by admitted unless the declarant is available to testify at trial. Contrary to defendant’s summary of the law, the right of confrontation has never been held to be an absolute right. For example, it has long been accepted that a defendant cannot complain of the absence of a witness when the defendant has prevented the witness from attending the trial. See Reynolds v. United States (1878), 98 U.S. (8 Otto) 145, 158-60, 25 L.Ed. 244. More recently, courts have recognized that extrajudicial statements of declarants who cannot be produced for trial are admissible as long as the defendant’s confrontation rights are substantially protected, typically in one of two ways — either the evidence is of a type deemed to be inherently reliable or the defendant has had a prior opportunity to challenge the declarant’s testimony. See e.g., Ohio v. Roberts (1980), 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597; Dutton v. Evans (1970), 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213, (plurality opinion); California v. Green (1970), 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489; Pointer v. Texas, supra; Mattox v. United States (1895), 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409. The determinative question under this issue becomes whether the challenged statements are so inherently reliable as to protect defendant’s confrontation rights.

The United States Supreme Court, in Ohio v. Roberts, supra, addressed the question of whether out-of-court statements were sufficiently reliable so as to satisfy the right of confrontation. At issue in Roberts was a Confrontation Clause objection to the admissibility under a state hearsay exception of an absent declarant’s preliminary hearing testimony. The Court adopted two requirements necessary to satisfy the Confrontation Clause. First, the prosecution is required to demonstrate the unavailability of the declarant, and second, the prosecution must show that the declarant’s out-of-court statements bear “adequate ‘indicia of reliability.’ ” The Court added that “[reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 65-66. (Emphasis added; Footnote omitted.)

The Supreme Court, however, in United States v. Inadi (1986),_ U.S. __, 106 S.Ct. 1121, 89 L.Ed.2d 390, held that the Confrontation Clause does not require a showing of unavailability as a condition to admission of the out-of-court statements of a non-testifying coconspirator. We, of course, are not bound by Inadi, as we may interpret our state constitution to guarantee greater rights than those guaranteed by the federal constitution. In this case, however, we adopt the reasoning of Inadi. To hold otherwise and require the State to show unavailability would impose a significant burden upon the workaday world of the criminal justice system. Not only would imposition of such a rule add another venue of appellate review in these cases, an unavailability rule would further place a considerable practical burden upon the State. Inadi, _U.S. at_, 106 S.Ct. at 1128. To satisfy a Confrontation Clause challenge, we therefore hold that the State need not demonstrate the declarant’s unavailability before an out-of-court statement made by a non-testifying coconspirator be admitted.

We cannot dismiss this point, however, before expressing, in the clearest possible terms, our strong disfavor of the prosecution’s possible practice of rendering a material witness unavailable though a plea bargain and then attempting to introduce his testimony through an evidentiary exception. We cannot discern if that happened in this case for the record is unclear whether the State’s plea bargain rendered Loomis unavailable only for the State or effectively denied defendant as well an opportunity to question Loomis. Defense counsel could have resolved this uncertainty by attempting to call Loomis to the stand, but chose not to do so. We caution prosecutors, however, that any use of this practice will be judged very critically.

As to the issue of the reliability of the challenged statements, the State asks us to adopt the Supreme Court’s language in Roberts, and presume reliability where challenged statements fall within a “firmly rooted hearsay exception.” We refuse to do so in this case. Coconspirator statements do not fall within a hearsay exception, but rather, a hearsay exemption. The rationale for admitting evidence under the rules covering hearsay exceptions differs from the rationale used to admit coconspirator statements. Evidence falling within the hearsay exceptions is admissible because of its perceived special trustworthiness. However, Rule 801(d)(2) treats coconspirator statements as a category of party admissions. It does so because of the legal fiction that each coconspirator is an agent of the others and that the statements of one can therefore be attributed to all. Admissions are admitted not because of confidence in their inherent reliability but because a party will not be heard to object that he is unworthy of credence. As stated by the Advisory Committee of the Federal Rules of Evidence:

“Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule . . . No guarantee of trustworthiness is required in the case of an admission.” (Emphasis added.) Fed.R.Evid. 801(d)(2) Notes of Advisory Committee on Proposed Rules.

We therefore hold that satisfaction of the requirements of Rule 801(d)(2)(E) does not ipso facto satisfy the right of confrontation. Rather we require a separate confrontation clause analysis designed to guarantee the reliability of the challenged coconspirator statements.

For this analysis we turn to the Confrontation Clause test adopted by this Court in Fitzpatrick, 569 P.2d at 392. The relevant criteria to be considered are (1) the declarant’s knowledge of the identity and role of the defendant in the crime; (2) the possibility that declarant was relying upon faulty recollection; and (3) the circumstances under which the statements were made, possibly indieating that the declarant might be lying about the defendant’s involvement in the conspiracy.

The other two factors listed in Fitzpatrick are inapplicable. The fourth factor — the possibility defendant could have shown by cross-examination the unreliability of declarant’s statement — has been effectively vitiated by our adoption of the Inadi holding. The fifth factor — whether the testimony is so crucial to the prosecution or devastating to the defense — is inapplicable in this case. It was a significant consideration in Fitzpatrick only because it related to the jury’s ability to follow the cautionary instruction that one defendant’s confession could not be used as evidence of a codefendant’s guilt. In clear contrast, the entire purpose of Rule 801(d)(2)(E) is to allow coconspirator declarations to be used as substantive evidence of a defendant’s criminal culpability.

Applying that standard to the facts of this case, we find that (1) Loomis clearly had personal knowledge of the defendant and any role defendant had in the crime; (2) there is little chance that Loomis relied upon faulty recollection given the contemporaneousness of the statements and his close association with defendant; and (3) Loomis had little reason to misrepresent defendant’s criminal status at the time the statements'were made.

We therefore find no violation of defendant’s right of confrontation and accordingly hold that the District Court did not err in admitting the challenged testimony.

II

We now consider issue two: whether the District Court erred in its circumstantial evidence jury instruction. Citing State v. Sheriff (1980), 188 Mont. 26, 610 P.2d 1157, defendant offered his proposed instruction stating that the jury must acquit the defendant if the circumstantial evidence gives rise to any reasonable interpretation which supports the defendant’s innocence. The instruction proposed by the State, and given by the court, however, allowed the jury to find guilt even if defendant’s theory of the case is reasonably supported by the circumstantial evidence.

We fail to find any error in this issue. Even were we to accept defendant’s statement of the law, his proposed instruction is warranted only where the case of the State rests substantially or entirely upon circumstantial evidence. Here, the State had introduced Officer Bauer’s direct evidence of defendant’s statement connecting him with the money. Second, the State introduced the direct evidence of Loomis’s statements, admissible, as we have shown, under Rule 801(d)(2)(E). Once admitted, they could be used to prove the truth of the matter asserted. Defendant was not entitled to his proffered instruction, given the direct evidence in this case.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    DARRELL L. SCHROCK, Claimant and Cross-Appellant, v. EVANS TRANSFER AND STORAGE, Employer, and State Compensation Insurance Fund, Insurer, Defendants and Appellants, and NORTH AMERICAN VAN LINES, Employer, and Liberty Mutual Insurance Co., Insurer, Defendants and Respondents.
    No. 86-194.
    Submitted on Briefs Oct. 9, 1986.
    Decided Feb. 13, 1987.
    732 P.2d 848.

      Hughes, Kellner, Sullivan & Alke, Thomas E. Martello, Helena, David L. Holland and Leonard J. Haxby, Butte, for defendants and appellants.
    Garlington, Lohn & Robinson, Larry W. Jones, Missoula, for defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal arises from a judgment and order of the Workers’ Compensation Court. That court awarded claimant temporary total disability benefits from one of two possible employers. Save for a mathematical correction, we affirm in full.

The origins of this case stretch back to December 1983, when Evans Transfer and Storage of Butte, Montana, signed an agency agreement with North American Van Lines. North American is a well known motor vehicle common carrier engaged primarily in transporting household goods, wares and merchandise throughout the United States and Canada. In the ordinary course of its business, North American often leases trucks and trailers from smaller, local moving companies such as Evans Transfer.

Under the terms of this agency agreement, Evans Transfer leased a moving truck and trailer to North American for the latter’s exclusive use and possession. Evans Transfer, however, was required to furnish a “qualified driver” for the truck and any additional necessary labor.

In January 1984, Evans Transfer hired the claimant, Darrell Schrock, to drive the vehicle leased to North American. However, before becoming qualified to drive for North American, a driver was required to attend a North American training school and thereafter be formally accepted.

So in May 1984, Darrell, along with his wife, Shauna, attended a training school held in Billings. Upon successful completion of the school, Darrell submitted his formal employment application to North American. North American, though, rejected Darrell’s application because of a chronically weak back that rendered him a high risk employee.

Following Darrell’s rejection, Evans Transfer and Shauna Schrock submitted to North American an employment application under Shauna’s name. Shauna had also successfully completed North American’s training school and was technically eligible to apply for employment as a driver. However, she did not know how to drive a vehicle such as the one leased to North American. Evans Transfer submitted this application knowing that if North American approved the application, Darrell would do all the actual driving. Evans in fact told Shauna to sign a statement indicating that Shauna had taken a road test although Shauna had never taken such a test. North American ultimately approved Shauna’s employment application, certifying her to drive for North American.

Evans Transfer had earlier entered into an “Independent Interstate Contractor’s Agreement” with Darrell, whereby Evans provided Darrell the tractor and trailer leased to North American. Once Shauna’s application was accepted, Evans allowed Darrell to drive this vehicle containing North American shipments. Because he was not qualified to drive for North American, Darrell would print Shauna’s North American authorized driver number on log book entries and give her authorized driver number to the North American dispatch office when calling to request a shipment. With Evans’ knowledge, Darrell would have Shauna sign, or forge her signature on, log book entries submitted to North American. North American was not told of the fact that Darrell was actually driving.

On December 11, 1984, Darrell, working alone, was injured by a falling piece of equipment while unloading a truck carrying a North American shipment. Darrell suffered a depressed skull fracture and has not worked since December 20, 1984. He timely filed a workers’ compensation claim, but both Evans Transfer and North American denied liability.

The Workers’ Compensation Court found that Darrell was an employee of Evans Transfer but not of North American and that he was entitled to weekly temporary total disability benefits of $224.52. Darrell and Evans Transfer now appeal.

The issues before this Court on appeal are (1) whether the court below correctly held that claimant was an employee of Evans Transfer rather than an independent contractor; (2) whether the court properly held that claimant was not also an employee of North American; and (3) whether the court properly computed claimant’s disability benefits.

We first consider Darrell’s employment status with Evans Transfer. We note initially that the mere fact that the contract in effect between Evans Transfer and Darrell designated Darrell as an independent contractor is not dispositive. Darrell must have been independent in fact. Carlson v. Cain (Mont. 1983), [204 Mont. 311,] 664 P.2d 913, 920, 40 St.Rep. 865, 875.

This analysis is founded upon our statutory definition of independent contractor. Section 39-71-120, MCA, defines an independent contractor as one who renders service in the course of an occupation and:

“(1) has been and will continue to be free from control or direction over the performance of the services, both under his contract and in fact; and
“(2) is engaged in an independently established trade, occupation, profession, or business.”

To determine whether one. is actually free from control, we adopted in Sharp v. Hoerner Waldorf Corp. (1978), 178 Mont. 419, 425, 584 P.2d 1298, 1301-02, a four factor test set forth in Larson’s Workman’s Compensation Law, Vol. 1C, Section 44.00, p. 8-40. The four factors to be considered are: (l) direct evidence of right or exercise of control; (2) method of payment; (3) furnishing of equipment; and (4) right to fire.

The factual determinations reached by the court below remain largely unchallenged; Evans Transfer essentially disputes only the legal conclusions. Therefore, this issue is one of law and this Court is free to reach its own conclusions from the evidence presented. See Solheim v. Tom Davis Ranch (Mont. 1984), [208 Mont. 265,] 677 P.2d 1034, 1038, 41 St.Rep. 326, 329. Nevertheless, our own review of the evidence persuades us that the court below correctly found that Darrell was not free from control in fact and therefore was an employee of Evans Transfer, rather than an independent contractor.

First, under their agreement, Evans Transfer furnished Darrell the equipment necessary to perform his obligations. When the employer furnishes valuable equipment, an employment relationship is strongly suggested. 1C Larson, Section 44.34(a), p. 8-121. This notion is closely related to the right of control. Any owner who furnishes equipment as valuable as a tractor and trailer naturally maintains an interest in its care and typically will retain a right to supervise its use. In its agreement with Darrell, Evans Transfer required Darrell to maintain properly the equipment provided him and required Darrell to account for all the assigned equipment “as often as required” by Evans. For these reasons, Larson finds it “not surprising that there seems to be no case on record in which the employer owned the truck but the driver was held to be an independent contractor.” 1C Larson, Section 44.34(b), p. 8-139.

Further, the parties agree that Evans Transfer enjoyed the right to fire Darrell if he failed to perform proper maintenance on the equipment furnished him.

Consideration of the factors in this test is not a balancing process. Direct employment status can be established upon satisfaction of one of the four factors. Sharp, 584 P.2d at 1302. Our study of the record convinces us that Darrell was not in fact free from control and therefore was an employee of Evans Transfer at the time of the accident.

Our second issue is whether Darrell was also a employee of North American as of the date of his injury. The Workers’ Compensation Court held that Darrell was not an employee of North American as it found no contractual relationship between the two parties. We agree.

Appellants’ only argument of merit rests upon the fact that Darrell was injured in his capacity as a helper, not as a driver. Evans Transfer correctly notes that the agency agreement in effect between Evans and North American authorized Evans to provide on its own any necessary additional labor and obligated North American to maintain workers’ compensation insurance for these helpers. Thus, runs the argument, Evans Transfer, as an agent, had the express authority to bind North American when it hired additional helpers.

Had Evans employed Darrell merely as a helper, its argument might be persuasive. But such is simply not the case. Evans Transfer intended that Darrell drive its truck leased to North American. Of this there is no argument. That North American rejected Darrell’s application to drive this truck had little effect. After Darrell’s rejection, Ron and Linda Evans and Francine Coombe, respectively the owners/operators and secretary of Evans Transfer, had Shauna submit her application to North American, knowing that Darrell would drive the vehicle. Evans Transfer then allowed Darrell to drive its vehicle containing North American shipments by having Shauna sign, or by having Darrell forge his wife’s name on, the log book entries submitted to North American. Shauna did not even accompany her husband on every shipment. Evans and the Schrocks took great pains to see that North American was not told of the fact that Darrell was driving the vehicle. The Schrocks, the Evanses and Francine Coombe all testified as to these facts. The fact that drivers help load and unload shipments did not turn Darrell into a helper.

Looking at these facts, it is clear that Evans Transfer exceeded its authority by hiring Darrell as a driver. The agency agreement allowed Evans Transfer to hire only “qualified” drivers. North American’s rejection of Darrell obviously indicated that Darrell was not qualified.

Further, an agent never has authority to perform an act “which is and is known or suspected by the person with whom he deals to be a fraud upon the principal.” Section 28-10-409, MCA. Fraud is defined in Section 28-2-405, MCA, as follows:

“Actual fraud, within the meaning of this part, consists in any of the following acts committed by a party to the contract or with his connivance with intent to deceive another party thereto or to induce him to enter into the contract:
“(3) the suppression of that which is true by one having knowledge or belief of the fact;
“(5) any other act fitted to deceive.”

It is clear from the facts presented in the record that Evans Transfer and the Schrocks actively worked to deceive North American. The activities of Evans Transfer and the Schrocks, which allowed Darrell to drive the vehicle leased to North American in the face of North American’s rejection of Darrell’s application constituted actual fraud. The Schrocks and Evans Transfer cannot now be allowed to argue that this is irrelevant because of the fortuitous happenstance that Darrell was not injured while actually driving. Following North American’s rejection, Evans’ employment of Darrell as a driver went beyond the scope of its authority and did not bind North American.

Finally, all parties challenge the Workers’ Compensation Court’s computation of weekly disability benefits. Pursuant to Section 39-71-701, MCA, Darrell is entitled to 66% % of his weekly wage. In its findings, the court found that Darrell’s average weekly wage was $336.61. In arriving at this amount, the court accepted as accurate a computer printout of Darrell’s earnings submitted by Evans and relied upon by both Evans and North American.

Darrell now objects to the lower court’s reliance on this printout. He does not dispute the accuracy of this printout, only that it was never introduced into evidence. We find no error. While this printout was not presented for admission, it represents a true and concise summary of three exhibits, all of which were admitted by stipulation of the parties. Had Darrell any problem with the figures contained within the exhibits, he had ample opportunity to question their accuracy, either at the time of their admission or during the testimony of the exhibits’ authors. One of these exhibits consists of several hundred pages and was thrust upon the lower court by Darrell’s counsel without benefit of explanation. The defendants distilled these voluminous records into a manageable summary and presented it to the court as an appendix to Evans’ brief. The court’s reliance upon this summary was not in error.

The computer printout relied upon by the court shows Darrell’s net income from May through December, 1984. However, the court utilized only the months of June through November, 1984, to determine Darrell’s average weekly wage. The court accepted these months as the only full months of income submitted.

Aside from a mathematical error, we find the court’s computation correct. Given the often lengthy delay that typically resulted before Darrell received his payment from North American via Evans Transfer, plus the fact that Darrell worked only portions of the months of May and December, the court did not abuse its discretion in limiting its analysis to the June-November period.

However, the Workers’ Compensation Court did not make clear its method of computation. The court evidently totaled Darrell’s earnings for the six-month span and then, to find his average weekly wage, divided by 24 (apparently six months at four weeks per month). Obviously, there are more than 24 weeks in six months. We therefore remand and instruct the Workers’ Compensation Court to recompute Darrell’s weekly disability benefits in accordance with this opinion. We otherwise affirm in full.

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


author: MR. JUSTICE GULBRANDSON

text:
    KENNETH K. KOMEOTIS, Claimant and Appellant, v. WILLIAMSON FENCING, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 85-584.
    Submitted on Briefs April 17, 1986.
    Decided Feb. 18, 1987.
    736 P.2d 93.
    Bottomly & Gabriel, Joe Bottomly, Great Falls, for claimant and appellant.
    Marra, Wenz, Johnson & Hopkins, Thomas A. Marra, Great Falls, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Kenneth Komeotis appeals from that part of a Workers’ Compensation Court order which denies him a lump-sum payment of workers’ compensation benefits. The dispositive issue on appeal is whether the District Court erred in applying Section 39-71-741, MCA, retroactively to appellant’s request for a lump-sum payment. We reverse and remand this case for proceedings consistent with this Court’s decision in Buckman v. State Comp. Insurance Fund (Mont. 1986), [224 Mont. 318,] 730 P.2d 380, 43 St.Rep. 2216.

In February 1984, appellant suffered a work related injury which aggravated his degenerative arthritis. The respondent State Compensation Insurance Fund (State Fund) accepted liability and paid temporary total disability benefits to appellant. In May 1985, the State Fund converted appellant’s benefits to permanent total disability benefits. Appellant requested that the Workers’ Compensation Court grant him a lump-sum payment of a large part of his anticipated benefits.

The 1985 Montana Legislature amended Section 39-71-741, MCA, the statute governing the lump-sum conversion of workers’ compensation benefits. The amendments codified prior Montana case law on lump-sum conversions. The Workers’ Compensation Court, in this case, found that the 1985 amendments enacted new, stricter guidelines for the granting of lump-sum payments. The court found that the amendments profoundly changed the substantive law on such payments. The court then applied the new criteria from the 1985 amendments retroactively to appellant’s case and denied him a lump-sum payment.

This Court handed down the Buckman decision (cited above) after the Workers’ Compensation Court’s ruling in the instant case. In Buckman, this Court specifically held that the statutory guidelines in the 1985 amendment to Section 39-71-741, MCA, could not be applied retroactively. Thus, the Workers’ Compensation Court erred in applying the new statute to appellant’s claim.

We decline to address the other issues appellant raises. Reversed and remanded for further proceedings.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, SHEEHY and HUNT concur.


text:
    POWDER RIVER COUNTY BANK, Plaintiff, Counter-Defendant and Respondent, v. ARNESS-McGRIFFIN COAL COMPANY, a Colorado Corporation, and Sam K. Arness, Defendants, Counter-Plaintiffs and Appellants. POWDER RIVER COUNTY BANK, Plaintiff, Counter-Defendant, v. SAM K. ARNESS, Defendant, Counter-Plaintiff.
    No. 86-177.
    Submitted Oct. 21, 1986.
    Decided Feb. 19, 1987.
    732 P.2d 1326.
    Cate Law Firm, Jerome J. Cate argued, Billings, for defendants, counter-plaintiffs and appellants.
    Lucas & Monaghan, Thomas Monaghan argued, Miles City, for plaintiff, counter-defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Sam Arness appeals a Powder River County District Court order granting summary judgment to the Powder River County Bank (the Bank) on Arness’ four counterclaims against the Bank. The sole issue on appeal is whether the court erred in dismissing appellant’s counterclaims on the basis that those claims arose out of, and were dependent upon, an illegal loan agreement. We affirm.

Beginning at least in 1980, the Bank made various loans to appellant personally and to several businesses with whom appellant was affiliated. Appellant personally guaranteed the loans made to the businesses (Arness-McGriffin Coal Co., Eastmont Forest Products, and Arness-Anderson Corp.). In April 1982, the Bank filed two separate complaints to collect amounts due on the loans. One complaint named appellant alone as the defendant and sought to collect approximately $691,000 allegedly due on the loans. The other complaint named appellant and Arness-McGriffin Coal Co. (Arness-McGriffin) as defendants and sought to collect approximately $234,000 allegedly due on the loans. In July 1982, the defendants in both actions filed answers to the complaints and denied the Bank’s claims. In August 1982, the Bank, Arness and Arness-McGriffin entered into a loan agreement which provided that the Bank would take no action to prosecute the two civil actions for one month; that the Bank would dismiss both actions with prejudice upon the satisfaction of certain conditions precedent; that Arness and Arness-McGriffin acknowledged that they were indebted to the Bank for over one million dollars; that the Bank agreed to renew the indebtedness and to loan additional funds to Arness and Arness-McGriffin; and that Arness and Arness-McGriffin would execute two promissory notes and secure the notes with diverse assets.

On September 14, 1982, the Montana State Department of Commerce issued a “Notice Of Charges And Hearing And Temporary Cease And Desist” directed to the Bank. This order stated in pertinent part:

“[t]he Department . . . alleges
“3. The Bank and its management have engaged and are continuing to engage in unsafe and unsound banking practices as are evidenced in the charges which follow.
“4. Disclosures made in the examination of the Bank by the personnel of the Federal Reserve Bank of Minnesota during the period of August 30 through September 10, 1982 indicate that the Bank is in an unsound condition and is not in compliance with the laws of the state of Montana to the following extent:
“d. Unsecured loans and overdrafts extended to Arness-Anderson, Inc. exceed the legal lending limit of the Bank pursuant to Section 32-1-432, MCA ($240,000) and have been in excess of this amount since before the August 31, 1981 examination of the Bank by the Federal Reserve Bank of Minnesota and as disclosed in the March 15, 1982 examination by the state of Montana;
“e. Unsecured loans and overdrafts extended to Eastmont Forest Products, Inc. and its subsidiary, Northern Cheyenne Forest Products, Inc., have exceeded the legal lending limit since before the August 31, 1981 examination of the Bank by the Federal Reserve Bank of Minnesota:
“f. The April 8, 1982 letter of transmittal of the state of Montana examination dated March 15, 1982 included a directive, given under the authority of Section 31-1-432, MCA, to reduce the total loans to Sam Arness and his interests to $480,000. The Bank has not complied with this directive;
“g. The Department has reasonable cause to believe that the Bank may be considering a further extension of credit to Sam Arness and his interests in a substantial amount which would be a further violation of Section 32-1-432, MCA and the Bank’s lending limit as well as a violation of the April 8, 1982 letter of transmittal;
“1. The Bank is ordered to cease and desist in advancing any additional funds or loans to Sam Arness and all his business or corporate interests;
“2. The Bank is ordered to cease its noncompliance with the April 8, 1982 directive by disposing of all loans to Sam Arness and his appropriate interests which exceed $480,000;

Section 32-1-432(1) (a), MCA, states:

“The total loans to a person, partnership, or corporation by a bank, including loans to a partnership and to the several members thereof, shall at no time exceed 20% of the amount of the unimpaired capital and surplus of that bank.”

In October 1982, the defendants in both actions (appellant alone in one action and appellant and Arness-McGriffin in the other) filed amended answers to the complaints. In October 1983, the defendants again filed amended answers in both actions. The answers in both actions denied that the amounts sued upon were due, set up the August 1982 loan agreement as an affirmative defense, and counterclaimed against the Bank for breach of the loan agreement. The October 1982 answers pray for specific performance of the loan agreement or, in the alternative, for damages. The October 1983 answers simply ask for damages. In November 1983, the Bank filed a reply to the affirmative defense and alleged four affirmative defenses to the counterclaim. In August 1984, Arness and Arness-McGriffin filed á second (actually third) amended answer and counterclaim consolidating both cases into one pleading. This answer reiterates the allegations of the previous answers and adds three new counterclaims. These new counterclaims, plus the one previously alleged, are (1) for breach of the loan agreement, (2) that the Bank’s “repudiation of the subject contract constituted bad faith and unfair dealing in a commercial context” giving rise to a cause of action in tort,

(3) for intentional infliction of emotional distress in that the Bank’s actions “in repudiating the contract were outrageous in nature”, and

(4) the fourth counterclaim realleges the allegations of the first three counterclaims and further claims that the Bank acted maliciously, oppressively and in wanton disregard of appellant’s rights.

In February 1985, the Bank moved for summary judgment on all of the counterclaims of appellant and Arness-McGriffin. In moving for summary judgment on the counterclaims, the Bank relied solely on one affirmative defense, i.e., that the counterclaims were barred because they arose out of an illegal loan agreement. The District Court agreed with the Bank’s contention and, in March 1986, the court granted summary judgment to the Bank on the counterclaims. This appeal followed.

“The standard of review is clear. Summary judgment is only proper under Rule 56(c), M.R.Civ.P., where the record discloses that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.”

Mutual Service Cas. Ins. Co. v. McGehee (Mont. 1985), [219 Mont. 304,] 711 P.2d 826, 827, 42 St.Rep. 2038, 2039-2040. Summary judgment was properly granted here as there was no disputed issue of material fact. The Commerce Department’s notice to the Bank conclusively established, and appellant does not dispute, the determinative fact in this case. That fact is that the loan agreement is an illegal contract.

The Commerce Department’s notice established that the loan agreement authorized loans in excess of the Bank’s legal lending limit. The agreement was contrary to an express provision of law, Section 32-1-432, MCA, (cited above). Therefore, that agreement was unlawful under Section 28-2-701, MCA, and void under Section 28-2-603, MCA.

Given that the contract was illegal, appellant cannot successfully pursue a counterclaim depending on and arising out of the contract. That is exactly what appellant attempts. Recently, this Court reaffirmed the rule that:

“No principle of law is better settled than that a party to an illegal contract cannot come into a court of law and ask to have his illegal objects carried out, nor can he set up a case in which he must necessarily disclose an illegal purpose as the groundwork of his claim . . . The law, in short, will not aid either party to an illegal agreement. It leaves the parties where it finds them. Therefore neither a court of law nor a court of equity will aid the one in enforcing it, or give damages for a breach of it, or set it aside at the suit of the other, or, when the agreement has been executed in whole or in part by the payment of money or the transfer of other property, lend its aid to recover it back.” (Citations omitted.) (Emphasis in original.) McPartlin v. Fransen (1982), 199 Mont. 143, 146-147, 648 P.2d 729, 730-731, quoting McManus v. Fulton (1929), 85 Mont. 170, 182-183, 278 P. 126, 131. Appellant’s own language in the counterclaims demonstrates he seeks damages for an alleged breach of the illegal agreement. Count I is for breach of contract. Counts II and III both rely on the Bank’s alleged “repudiation of the contract.” Count IV realleges the previous allegations and labels the conduct malicious, oppressive and in wanton disregard of appellant’s rights. Under the rule cited in McPartlin, the District Court properly granted summary judgment to the Bank on appellant’s counterclaims.

Appellant argues that he is not in pari delicto (equally at fault) in comparison to the Bank and that he should therefore be allowed to pursue his claims. Montana cases- have established that under certain circumstances a plaintiff may pursue a claim based on an illegal contract where the plaintiff is not in pari delicto. See Clifford v. Great Falls Gas Co. (1923), 68 Mont. 300, 216 P. 114; Carroll v. Beardon (1963), 142 Mont. 40, 381 P.2d 295. Both the Clifford case and the Carroll case are limited to very particular situations and specific illegal contracts. Neither of those decisions are applicable to the case at bar.

Courts and commentators agree that public policy plays a large role in deciding whether a plaintiff can enforce, sue on, or collect sums paid on an illegal contract. See, e.g., Jackson Purchase, Etc. v. Local Union 816, Etc. (6th Cir. 1981), 646 F.2d 264; Golberg v. Sanglier (1982), 96 Wash.2d 874, 639 P.2d 1347; 6A A. Corbin, Corbin on Contracts, Section 1533, p. 809 (1962). In this case, the legislature has articulated a public policy under Section 32-1-432, MCA, that the depositors of a bank should be protected. To allow appellant to pursue his claims against the Bank would circumvent that public policy. We find that public policy militates against allowing appellant to pursue his claims. Given that policy and the McPartlin decision, we hold that the District Court correctly granted summary judgment.

Affirmed.

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

MR. JUSTICE SHEEHY, dissenting:

I dissent.


text:
    DANIEL J. O’NEILL, Helen P. O’Neill, Plaintiffs and Appellants, v. STATE OF MONTANA, acting By and Through the DEPARTMENT OF HIGHWAYS of the State of Montana, Defendants and Respondents.
    No. 86-290.
    Submitted on Briefs Oct. 30, 1986.
    Decided Feb. 19, 1987.
    732 P.2d 1330.
    Dunlap & Caughlan, Deirdre Caughlan, Butte, for plaintiffs and appellants.
    Stephen F. Garrison, Dept, of Highways, Helena, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Daniel and Helen O’Neill appeal a Silver Bow County District Court order granting summary judgment to the defendant State of Montana. The issues on appeal are: (1) whether the District Court erred in refusing to consider an affidavit that appellants submitted at the summary judgment hearing, and (2) whether the District Court properly ruled that there was not a “taking” by the State of a strip of appellants’ real property. We affirm.

The appellants own a parcel of land situated at the intersection of Harrison Avenue and Lowell Avenue in Butte, Montana. Both streets have been public thoroughfares in the City of Butte since the early 1900’s. Appellants purchased the real property in question in 1972. The deed which appellants received for the property in 1972 describes the lot’s eastern boundary as extending to approximately the center of Harrison Avenue and the lot’s southern boundary as extending to approximately the center of Lowell Avenue.

In 1983, the State widened and improved both Harrison and Lowell Avenues. The State maintains that Harrison Avenue has a 100 foot right-of-way, that Lowell Avenue has an 80 foot right-of-way, and that the construction project stayed within those right-of-ways. In July 1984, the appellants filed a complaint in Silver Bow County District Court charging that the State’s construction project took strips of appellants’ real property without paying just compensation to appellants. Appellants sought no compensation for any land encompassed in the pre-1983 Harrison and Lowell Avenues.

In December 1984, the State filed an answer denying appellants’ allegations and alleging several affirmative defenses. In September 1985, the State moved for summary judgment on appellants’ complaint. On February 7, 1986, the court held a hearing on the motion for summary judgment. At the hearing, appellants presented to the court a brief and an affidavit in opposition to the motion. The State objected to consideration of the documents on the basis that they were untimely filed. The court agreed with the State’s objection and refused to consider the appellants’ brief and affidavit. On February 11, 1986, the court granted the State’s motion for summary judgment. The court ruled that the State had a prescriptive right to use the disputed land for public highway purposes. This appeal followed.

The first issue is whether the District Court erred in refusing to consider appellants’ brief and affidavit presented at the hearing on the motion for summary judgment. This Court’s decision in Marcus Daly Memorial Hospital v. Borkoski (Mont. 1981), 624 P.2d 997, 38 St.Rep. 322, addressed a similar issue.

“Rules 6(d) and 56(c), M.R.Civ.P., require the party opposing the motion for summary judgment, to file opposing affidavits before the date of the hearing.” (Emphasis in original.)

Borkoski, 624 P.2d at 1000. Here, the trial court found, and we agree, that appellants made no showing expressing their reason for the untimely filing. Moreover, appellants’ brief on appeal advances no compelling reason for their tardiness. Therefore, as in Borkoski, we find that the trial court did not abuse its discretion in refusing to consider the brief and affidavit.

The second issue is whether the District Court properly ruled that there was not a “taking” by the State of a strip of appellants’ real property. The State filed a number of affidavits with the trial court in support of its motion for summary judgment. Among the affidavits was one sworn to by Raymond Grant, District Engineering Services Supervisor for the State Department of Highways. Grant’s affidavit states that, (1) he has reviewed the available public records concerning Harrison Avenue and the appellants’ lot; (2) Harrison Avenue and its right-of-way are, and have been, centered on a section line; (3) the roadway surface of Harrison Avenue has existed in increasing widths since at least the early 1900’s; (4) Harrison Avenue has been a public road throughout that period; (5) Lowell Avenue intersects with Harrison Avenue at the section’s quarter corner and has existed in the same location in various roadway widths since at least the early 1900’s; (6) that he has reviewed at least five official county plats from as early as 1907-1908, all of which show Harrison Avenue’s right-of-way at the disputed location as extending fifty feet from the section line on both sides and totaling one hundred feet in width; (7) the same plats, including the earliest but with one exception, show Lowell Avenue’s right-of-way to be eighty feet in width, not centered on the section’s quarter corner line; (8) the one exception mentioned in (7) shows the right-of-way as sixty feet; (9) the 1983 project widening Harrison Avenue, installing sidewalks, and improving the intersection with Lowell Avenue stayed within Harrison Avenue’s one hundred foot right-of-way and Lowell Avenue’s eighty foot right-of-way; (10) that the affiant reviewed an official plat which the county commission had adopted and ordered filed in March 1921, and which was filed with the county clerk and recorder in March of that year; (11) that the 1921 plat shows Harrison Avenue as having a one hundred foot right-of-way; and (12) that it is difficult to determine much of the history of either avenue due to the age of the roads and because many relevant records and documents have been lost or destroyed.

Robert Fischer, a District Utility Agent for the Highway Department, also submitted an affidavit. In regard to the Harrison Avenue right-of-way abutting appellants’ property, his affidavit stated that, (1) phone lines have been located on the right-of-way to within approximately eleven feet of the State’s claimed boundary since 1910; (2) a water line has been located on the right-of-way since 1914; (3) a sewer line has been located on the right-of-way to within one foot of the State’s claimed boundary since 1971.

Addressing the Lowell Avenue right-of-way abutting appellants’ property, Fischer’s affidavit states that, (1) underground telephone lines have been located to within sixteen feet of the State’s claimed boundary since 1972; (2) a gas line (since 1943), a sewer line (since 1971) and telephone lines (since 1973) are all located within the right-of-way; and (3) that the affiant has no record that appellants or their predecessors in interest have ever previously complained to the utility companies about these utility lines (on Harrison or Lowell Avenues).

Joseph Micheletti, the Highway Department Field Right-Of-Way Supervisor, also submitted an affidavit. His affidavit states, (1) that the Department purchased a small triangle of property located at the corner of Harrison and Lowell Avenues, from the appellants; (2) that on January 22, 1982, the appellants signed a deed which clearly showed the right-of-ways on Harrison arid Lowell Avenues as claimed by the State; and (3) the appellants did not object to the deed, or right-of-way as shown on the deed, during the negotiations for that sale.

There is no evidence in the record to support appellants’ contention that the Harrison Avenue right-of-way and the Lowell Avenue right-of-way are not one hundred feet and eighty feet, respectively, as claimed by the State. Appellants did not introduce into evidence any affidavits or depositions to refute the evidence presented by the State.

In Sheldon v. Flathead County (Mont. 1985), [218 Mont. 270,] 707 P.2d 540, 542, 42 St.Rep. 1573, 1576, this Court recently reaffirmed the rule that:

“[i]t is sufficient if the record taken as a whole, shows that a public road was created. Otherwise, the burden on the public in a particular case to prove a public road was created so many years ago may well be unsurmountable . . . . [i]f we did not now overrule Auchard and Warren on the jurisdictional issue, a private landowner may, in a particular case, be able to keep the public from going through land because the public’s records of a road no longer support a determination that the public had originally acquired jurisdiction to create the road.” (Quoting Reid v. Park County (Mont. 1981), 627 P.2d 1210, 1213, 38 St.Rep. 631, 634.)

We hold that the record shows that Harrison Avenue and Lowell Avenue were created with the right-of-ways as claimed by the State. The 1983 construction project occurred entirely within those right-of-ways. Thus, there could be no “taking” by the State. The official plats showing those right-of-ways, coupled with the utilities’ long, continuous use of the right-of-ways without objection from appellants, are sufficient to establish the creation of those avenues. The record in this case is as adequate, if not more so, than the record in Reid which this Court found sufficient to establish the creation of a road.

The District Court properly granted summary judgment to the State. Affirmed.

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


author: MR. JUSTICE MORRISON

text:
    TRULY W. COCKING, Claimant and Respondent, v. The HILLHAVEN CORPORATION, Employer, and RANGER INSURANCE COMPANY, Defendant and Appellant.
    No. 86-328.
    Submitted on Briefs Dec. 11, 1986.
    Decided Feb. 19, 1987.
    732 P.2d 1333.
    Marra, Wenz, Johnson & Hopkins, Thomas A. Marra, Great Falls, for defendant and appellant.
    Burgess, Joyce & Whelan, Thomas J. Joyce, Butte, for claimant and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Defendants appeal the award by the Workers’ Compensation Court granting claimant occupational disease benefits plus costs and attorneys’ fees. We reverse and remand.

Claimant began work as a janitor in February, 1983, at Butte Convalescent Center, owned by defendant Hillhaven Corporation. Claimant’s duties included washing windows, cleaning furniture and stripping floors. During 1983, claimant began taking allergy shots to treat his allergic reaction to horses, dogs, and cats, to which he was exposed away from work. In June, 1984, claimant began breaking out with sores on his side, ankles, face, ears, and eyelids. Claimant attempted to identify the cause by removing all pets from his home, the wood stove, changing his diet, and trying different types of clothing and detergents.

Claimant visited several doctors during July and August of 1984, but none of the doctors were able to diagnose or adequately treat claimant’s condition. Claimant took an extended leave of absence from work August 21, 1984, through October 14, 1984. Claimant’s supervisor was aware of his medical problems, yet claimant did not inform the supervisor that his skin infections were work related nor did he file an incident report.

The record is unclear as to claimant’s work attendance during the last 3 months of 1984. In November of 1984, claimant began treatment with a certified dermatologist, Dr. Ballinger. Dr. Ballinger concluded claimant had contact dermatitis but was unable to positively correlate it with any of the products claimant used at work.

On December 21, 1984, claimant filed a claim for workers’ compensation alleging an industrial injury in July, 1984. Defendant Ranger Insurance Company denied liability by letter dated February 4, 1985. Claimant continued to have outbreaks and began treatment with another certified dermatologist, Dr. Robert Neill. Dr. Neill applied topical medications to claimant’s eruptions and within two weeks claimant’s condition had improved substantially. To determine the cause of claimant’s sores and rashes, Dr. Neill suggested claimant return to- work..'

Claimant returned to work February 28, 1985, and within two weeks experienced a recurrence of his skin condition after using certain cleaning compounds. Claimant filed an incident report alleging an injury on March 4, 1985, and did not return to work upon Dr. Neill’s advice. A workers’ compensation claim was filed and defendant denied coverage. Defendant contacted the Division of Workers’ Compensation (Division) regarding the claim and requested the Division appoint a physician to examine claimant. The Division appointed a physician and scheduled an examination to determine whether claimant was eligible for occupational disease benefits.

Meanwhile, on May 20, 1985, claimant filed a petition for hearing before the Workers’ Compensation Court. Defendant filed a motion to dismiss on July 10, 1985, contending the proceedings before the Division deprived the Workers’ Compensation Court of jurisdiction. The motion to dismiss was denied. On July 31, 1985, the Division entered its order referring copy of medical report to the parties which contained a preliminary finding that claimant was not entitled to occupational disease benefits. On August 19, 1985, the Division entered its order suspending proceedings pending the outcome of industrial injury proceedings before the Workers’ Compensation Court.

Following hearing, the hearing examiner found claimant had not suffered an injury under Section 39-71-119 of the Workers’ Compensation Act, but was suffering from an occupational disease and was entitled to temporary total disability benefits as well as costs and attorneys’ fees. Workers’ Compensation Judge Reardon adopted the findings and conclusions of the hearing examiner and awarded claimant occupational disease benefits retroactive to July 1, 1984, plus costs and attorneys’ fees pursuant to Section 39-71-612, MCA. Defendant appeals and raises the following issues:

1) Whether the Workers’ Compensation Court properly awarded claimant occupational disease benefits?

2) Whether the Workers’ Compensation Court properly awarded attorneys’ fees and costs to claimant?

The claimant has conceded on appeal that the Workers’ Compensation Court exceeded its jurisdiction in finding claimant suffered from an occupational disease.

This Court has previously held that a claimant may elect to pursue benefits under the Workers’ Compensation Act or the Occupational Disease Act. Ridenour v. Equity Supply Co. (Mont. 1983), [204 Mont. 473,] 665 P.2d 783, 40 St.Rep. 1012.

The procedure for obtaining benefits differs under the two acts. The Occupational Disease Act provides that a physician shall be appointed to examine the claimant when the insurer has not accepted liability. Section 39-72-602(2)(a), MCA. If either party is dissatisfied with the results of the first examination, a second examination may be requested. The results are then reviewed by a medical panel which submits a report to the Division indicating whether claimant is suffering from an occupational disease.

Prior to the time the Division issues its determination whether the claimant is entitled to occupational disease benefits, the claimant, insurer, or the Division may request a hearing. Section 39-72-611, MCA. Following issuance of the Division’s determination a rehearing may be requested. Appeals from a final determination of the Division shall be made to the workers’ compensation judge within 30 days from the date of the Division’s final determination. Section 39-72-612(2), MCA. These provisions make it clear that the workers’ compensation judge has appellate jurisdiction to award occupational disease benefits.

In the present case, claimant filed a petition for hearing under the Workers’ Compensation Act alleging an industrial injury. The Workers’ Compensation Court had jurisdiction to determine whether or not claimant was entitled to workers’ compensation benefits. The court did not have jurisdiction to make a finding that claimant suffered from an occupational disease and was entitled to occupational disease benefits. That is a matter to be decided on appeal following final determination by the Division. In this instance, the Division did not make such a determination.

The award of attorneys’ fees and costs pursuant to Section 39-71-612, MCA, was improper. The Workers’ Compensation Court exceeded its jurisdiction in awarding occupational disease benefits. The award being improper, claimant is not entitled to attorneys’ fees and costs.

The Workers’ Compensation Court is reversed and this case is remanded to the Division of Workers’ Compensation for a determination of claimant’s entitlement to occupational disease benefits.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KENNETH A. FRIEDMAN, Defendant and Appellant.
    No. 86-372.
    Submitted on Briefs Dec. 31, 1986.
    Decided Feb. 19, 1987.
    732 P.2d 1322.

      O’Brien & Conrad, James P. O’Brien, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Robert F.W. Smith, Asst. Atty. Gen., Helena, Robert Deschamps, III, Co. Atty., Missoula, for plaintiff and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Defendant Kenneth Friedman appeals the May 8, 1986, order of the Fourth Judicial District Court reinstating his original forty year sentence. We affirm.

In 1982, defendant was convicted on two counts of sexual intercourse without consent and one count of aggravated assault. Defendant was sentenced to a term of 40 years in the Montana State Prison with a dangerous designation. The sentence review board modified the sentence to 40 years with 20 years suspended provided defendant successfully completed a sex treatment program in Florida.

Defendant entered the Florida sex treatment dime on July 11, 1983. A clinic report filed January 10, 1984, noted that defendant’s response to treatment had been poor and the prognosis for change by defendant was poor. A subsequent report filed April 10, 1984, recommended defendant be returned to Montana as he was not amenable to treatment and remained a danger to others. On May 25, 1984, defendant’s progress was reviewed by the.clinic’s case review team which found defendant had a characterological disorder which prevented constructive personality growth. The team concluded defendant had shown no progress and should be dismissed from the program as further treatment efforts would be futile.

Defendant was discharged from the clinic June 1, 1984, and returned to the Montana State Prison. On January 18, 1985, defendant was informed that his original 40 year sentence was reimposed for failure to successfully complete the Florida treatment program. Defendant filed a civil rights action against prison officials in federal court, and also filed at least two petitions for writ of habeas corpus with this Court.

On August 5, 1985, the Missoula Deputy County Attorney filed a petition in District Court for revocation of the probationary portion of defendant’s sentence. On October 24, 1985, this Court entered an order directing that an evidentiary hearing be held in District Court concerning possible revocation of the suspended portion of defendant’s sentence for failure to complete the Florida treatment program.

Hearings were held on the 4th, 18th, and 25th of November, 1985, and December 23, 1985. Dr. Ted Shaw, director of the treatment program, testified that he took a special interest in defendant’s case as it was unusual for a Jewish person to be involved in a sex offender program. Dr. Shaw is also Jewish and was unable to perceive any discrimination against defendant. Dr. Shaw further testified that the consensus of the staff was that defendant did not attempt to participate in his treatment, that complaints had been received from Montana about defendant contacting his victims, and that he considered defendant to be extremely dangerous.

Jonah Young, a social worker in the treatment program, testified that staff members disliked defendant and gave him little chance to succeed in the program. Mr. Young further testified that defendant was considered to be dishonest by other patients because he constantly complained that erroneous information was in his file. Mr. Young believed that defendant was working hard at following the treatment program but had no chance to succeed due to the staff’s mistrust and open dislike for him.

Dr. Mark Mozer, a clinical psychologist who evaluated defendant at Deer Lodge both prior to and subsequent to defendant’s involvement in the program, testified that defendant showed improvement following his discharge from the program. Dr. Mozer believed defendant was taking more responsibility for his conduct and rationalizing his crimes less than previously.

Reports from the Florida clinic were introduced into evidence and the District Court took the matter under consideration. On May 8, 1986, the District Court entered its order reinstating defendant’s original sentence of 40 years with a dangerous designation. Defendant appeals the order and raises five issues which are fully addressed by the following:

1) Whether defendant’s due process rights were violated?

2) Whether the District Court determination to revoke the probationary portion of defendant’s sentence is supported by substantial evidence?

Defendant contends the State violated his due process rights by failing to abide by the procedures set forth for parole and probation revocation in Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2539, 33 L.Ed.2d 484, and Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656. Specifically, defendant asserts his right to the following was violated: 1) an on-site hearing to determine whether probable cause exists to believe conditions of parole have been violated; 2) a two-step hearing process including a subsequent final revocation hearing; 3) a final revocation hearing held within a reasonable time.

Defendant has at all times remained incarcerated which distinguishes this case from Morrissey and Gagnon. Defendant had substantial time remaining to be served in the Montana State Prison after his discharge from the Florida clinic, regardless of the outcome of the probation revocation proceedings. Defendant’s immediate liberty interest was not at stake and therefore no on-site preliminary hearing was necessary. This Court has previously held no preliminary hearing is necessary before commencement of parole or probation revocation proceedings where detention is not involved. Petition of Meidinger (1975), 168 Mont. 7, 539 P.2d 1185.

Having determined that no preliminary hearing was necessary, we proceed to consider whether defendant had a right to a final revocation hearing within a reasonable time. The record shows defendant was discharged from the Florida clinic June 1, 1984, and the final revocation hearing commenced November 4, 1985. There is no evidence that defendant requested a speedy hearing.

The right to a speedy trial is guaranteed only in criminal prosecutions and is not applicable in revocation of probation proceedings. State v. Oppelt (1979), 184 Mont. 48, 601 P.2d 394. Sections 46-23-1013 and 46-23-1024, MCA, provide a right to a hearing within a reasonable time after a defendant is arrested for violation of probation or parole. These statutes are not applicable here for defendant’s violation of the conditions of probation occurred during his incarceration.

Defendant contends the delay in holding the revocation hearing caused him substantial prejudice. Contrary to defendant’s assertions, the hearing transcript reveals the clinicians had excellent recall concerning defendant’s stay at the clinic. Further, much of the evidence submitted consisted of reports drawn during defendant’s stay at the clinic. We find the delay in holding the revocation hearing caused no prejudice to defendant.

Morrissey, supra, and Gagnon, supra, held that the minimum due process requirements for final parole or probation revocation hearings include: a) written notice of the claimed violations of parole or probation; b) disclosure to the parolee or probationer of evidence against him; c) opportunity to be heard in person and to present witnesses and documentary evidence; d) the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing confrontation); e) a neutral and detached hearing body; and f) a written statement by the factfinders as to evidence relied on and the reasons for revoking probation or parole. Morrissey, 408 U.S. 489, 92 S.Ct. 2604, 33 L.Ed.2d 499, Gagnon, 411 U.S. 786, 93 S.Ct. 1762, 36 L.Ed.2d 664.

In Petition of Meidinger, supra, this Court found these requirements were not inflexible, especially where the original sentencing judge revokes probation. 168 Mont. 13, 539 Mont. 1189. However, in the present case, all of the above requirements were met, plus defendant was assisted by court appointed counsel. Defendant’s due process rights have not been violated in any manner.

The next issue is whether there is substantial evidence supporting the District Court determination to revoke the probationary portion of defendant’s sentence. We find that there is.

Dr. Shaw, director of the Florida clinic, testified that defendant was discharged early due to his bad attitude, dangerousness, and contacting one of his victims by telephone. This testimony was confirmed in a report by defendant’s personal therapist, Albert Haskell. Defendant points to a report by Dr. Rodney Poetter which states defendant is amenable to treatment. Defendant conveniently overlooks one of Dr. Poetter’s conclusions that “at worst, [defendant] is an extremely cunning and bright psychopath who is concerned simply with manipulating the system so that he can ‘beat the rap’ and avoid further incarceration in a standard prison environment.”

Defendant contends he was the victim of circumstances and that due to the staffs extreme dislike of him he had no chance to succeed in the program. Jonah Young and defendant’s mother testified similarly. Even given this evidence, there is substantial evidence supporting a conclusion that defendant’s behavior and attitude were responsible for his failure in the program.

Defendant argues the District Court failed to make a specific finding that he was not a victim of circumstances as required by this Court’s order dated October 24, 1985. A reading of the transcript and the District Court order revoking probation make it clear this issue was thoroughly treated. The District Court chose to place the greatest weight on the testimony of Dr. Shaw, who had the most expertise in the area of treatment of sexual offenders and was involved in the staff decisions concerning defendant. Dr. Shaw testified that defendant’s being Jewish and from Montana had no bearing on defendant’s failure in the program.

This Court’s order dated October 24, 1985, required the District Court to determine whether defendant failed to complete the conditions of the modified sentence thereby justifying revocation. We find the District Court sufficiently examined the circumstances surrounding defendant’s failure in the program and there is substantial evidence supporting the revocation of the probationary portion of defendant’s sentence.

Defendant’s final contention is that the final hearing was premature because he should be allowed to enter another sex treatment program. In this Court’s order dated June 5, 1986, we specifically stated defendant had one opportunity to meet the sentence conditions. Defendant has failed and is not entitled to another treatment program as a matter of right.

The District Court is affirmed.

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


author: MR. JUSTICE MORRISON MR. JUSTICE GULBRANDSON,

text:
    PAM DRINKWALTER, Plaintiff and Appellant, v. SHIPTON SUPPLY COMPANY, INC., a Montana Corporation, d/b/a Shipton’s Big R, and Greg Carroll, Defendants and Respondents.
    No. 86-94.
    Submitted Dec. 2, 1986.
    Decided Feb. 23, 1987.
    732 P.2d 1335.
    MR. JUSTICE GULBRANDSON dissented and filed opinion.
    Kinnard & Woodward, Dave Kinnard, Billings, argued for plaintiff and appellant.
    Moulton, Bellingham, Longo & Mather, W. Anderson Forsythe, Billings, argued for G. Carroll.

      Janice Frankino Doggett, Helena, argued for amicus.curiae Human Rights Com’n.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

The District Court of the Thirteenth Judicial District, County of Yellowstone, granted summary judgment January 27, 1986, in favor of defendants, Shipton Supply Company and Greg Carroll. The judgment was premised on plaintiff, Pam Drinkwalter’s failure to obtain a. right-to-sue letter from the Human Rights Commission prior to filing a civil suit alleging sexual harassment. Pam Drinkwalter appeals.

Pam Drinkwalter was employed by Shipton Supply Company from October of 1980 through July of 1983. Greg Carroll, a son of the president of Shipton Supply Company, was Drinkwalter’s supervisor. In early July of 1983, Drinkwalter told Carroll’s brother, also a supervisor for Shipton Supply, that she was perturbed by sexual comments and actions directed by Greg Carroll to herself and other individuals. She further stated that if the behavior continued, she would quit her job. The behavior ceased; however, Drinkwalter still terminated her employment with Shipton Supply in mid-July.

Drinkwalter subsequently filed a claim with the State of Montana, Department of Labor and Industry, for unemployment compensation benefits. Drinkwalter alleged that Greg Carroll’s crude behavior established sufficient cause to leave her employment. Carroll adamantly disagreed, contending Drinkwalter quit work because her request not to work weekends was denied. The Department of Labor and Industry found in favor of Drinkwalter and granted unemployment compensation benefits.

Thereafter, Drinkwalter contacted new counsel for the purpose of pursuing a civil suit.

The complaint in this action was filed fifteen months after Drinkwalter left her job, October 9, 1984. It is a multiple-count complaint. Count one alleges acts which constitute sexual harassment. Count two alleges that the acts constituted a breach by defendants of the covenant of good faith and fair dealing in an employment relationship. Count three contends that Shipton Supply Company is liable under a negligence theory for failure to properly investigate, correct and prevent Greg Carroll’s behavior. Finally, count four alleges that Greg Carroll’s behavior constituted a tortious interference with the contract of employment between Drinkwalter and Shipton Supply.

In their answer, defendants deny most of the allegations in the complaint and present the court with several affirmative defenses.

The parties thereafter prepared to try the case. On October 17, 1985, defendants moved for summary judgment, alleging in pertinent part:

“1. Plaintiff’s Complaint states a cause of action cognizable under Montana’s Human Rights Act, which Act requires a ‘right to sue’ letter be issued by the Human Rights Commission before suit in district court may be brought. No such right to sue letter was ever issued in this matter.
“2. Plaintiff’s Complaint fails to state a cause of action cognizable under Montana law separate and apart from specific rights and remedies provided in Montana’s Human Rights Act.”

Following extensive briefing and a hearing on the matter, the trial judge granted defendants’ motion for summary judgment. In his memorandum and order, the trial judge found that each of the counts in Drinkwalter’s complaint was premised on allegations of sexual harassment and that the sexual harassment was of the type contemplated by the Montana Human Rights Act. He then determined that the Montana Human Rights Act provided the exclusive remedy by which the alleged wrongs could be remedied. Drinkwalter’s complaint was “dismissed without prejudice with the understanding that Plaintiff may refile her Complaint within 90 days of obtaining a so-called ‘Right to Sue’ letter from the Montana Human Rights Commission.”

Three issues are raised on appeal:

1. Do the provisions of the Montana Human Rights Act provide the exclusive remedy for claims of sexual harassment in Montana?

2. Do Sections 49-2-501(2) and 49-2-509(2), MCA, prescribe a constitutionally valid 180 day statute of limitations for all claims of sexual harassment in Montana?

3. Did the District Court err in granting defendants’ motion for summary judgment in totol

There appears to be no disagreement among the parties that the actions of Greg Carroll complained of by Pam Drinkwalter, if true, constitute sexual harassment. The controversy arises with respect to the appropriate remedy for the harassment. Defendants contend the Montana Human Rights Act provides the sole and exclusive remedy in sexual harassment suits. We disagree.

Section 49:2-303(l)(a), MCA, of the Montana Human Rights Act, provides:

“Discrimination in employment. (1) It is an unlawful discriminatory practice for:
“(a) an employer to refuse employment to a person, to bar him from employment, or to discriminate against him in compensation or in a term, condition, or privilege of employment because of his race, creed, religion, color, or national origin or because of his age, physical or mental handicap, marital status, or sex when the reasonable demands of the position do not require an age, physical or mental handicap, marital status, or sex distinction.”

Our act is very similar to the Federal Anti-Sex Discrimination statutes. The federal act provides at 42 U.S.C. Section 2000e-2(a)(2) that:

“It shall be an unlawful employment practice for an employer —
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

Federal courts have interpreted the term “sexual discrimination” as found in 42 U.S.C. Section 2000e-2(a)(2) to encompass sexual harassment. See Barnes v. Costle (D.C. Cir.1977), 561 F.2d 983 and Bundy v. Jackson (D.C. Cir. 1981), 641 F.2d 934. We view this as a broad interpretation of the term “sex discrimination,” explained, perhaps, by the absence of federal common law. Traditional remedies for sexual harassment are rooted in common law. Since there is no federal common law remedy for sexual harassment, it is defined and treated as sexual discrimination.

Such is not the situation in Montana. Our 1972 Constitution provides in Article II, Section 4 that:

“The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.”

In addition, there are several common law causes of action under which sexual harassment in the work place may be prosecuted. This Court has recognized a cause of action for a discharge from employment which violates public policy. Dare v. Montana Petroleum Marketing Co. (Mont. 1984), [212 Mont. 274,] 687 P.2d 1015, 41 St.Rep. 1735; Nye v. Department of Livestock (1982), 196 Mont. 222, 639 P.2d 498. Sexual harassment is against public policy. Holien v. Sears, Roebuck and Co. (1984), 298 Or. 76, 689 P.2d 1292; Chamberlin v. 101 Realty, Inc. (D.N.H. 1985), 626 F.Supp. 865. It also violates public policy embodied in Montana’s Constitution and various anti-discrimination statutes. See Sections 49-1-101 and -102, MCA.

Montana law also recognizes a cause of action for breach of an employment contract’s implied covenant of good faith and fair dealing. Crenshaw v. Bozeman Deaconess Hospital (Mont. 1984), [213 Mont. 488,] 693 P.2d 487, 41 St.Rep. 2251; Gates v. Life of Montana Insurance Co. (1982), 196 Mont. 178, 638 P.2d 1063. Good faith and fair dealing preclude sexual harassment. Although the final determination rests with the fact finder, sexual harassment, as alleged by Pam Drinkwalter, can result in breach of the implied covenant of good faith and fair dealing.

In her complaint, Pam Drinkwalter also alleges tortious interference with her employment contract and negligent employee supervision by Shipton Supply. We need not determine the merits of these charges at this time. It is sufficient for us to hold only that the facts alleged by Pam Drinkwalter could support common law theories rooted in tort law distinct from and in addition to sexual discrimination charges covered by Montana’s Human Rights Act. To hold otherwise would result in the elimination of established common law causes of action. Absent a clear indication of the legislature’s intent to abrogate existing common law remedies, we must construe new statutory remedies as existing in addition to, rather than instead of, the common law remedies.

“As a general rule, if a statute which provides for a new remedy shows no intention to negate, either expressly or by necessary implication, a pre-existing common law remedy, the new remedy will be regarded as merely cumulative, rather than exclusive, with the result that a plaintiff may resort to either the pre-existing remedy or the new remedy.” (Citations omitted.)

Brown v. Transcon Lines (1978), 284 Or. 597, 588 P.2d 1087 at 1093.

Further, claimants would be forced to pursue administrative remedies for wrongs traditionally righted within the judicial system. The courthouse would be closed to individuals against whom a tort had been committed, thus contravening our constitutional right of access to the courts found in art. II, Section 16 of the 1972 Montana Constitution. Our citizens’ right to a trial by jury under Art. II, Section 26 of the 1972 Montana Constitution, would be abridged as well.

If we were to decide the Human Rights Act provides the sole and exclusive remedy for all claims arising out of sexual harassment, we would also be imposing the 180 day statute of limitation found in Section 49-2-501(2), MCA, on every possible remedy. Under our decision in Noll v. City of Bozeman (1975), 166 Mont. 504, 534 P.2d 880, such a short period of limitation would be invalid. We are to strive, if at all possible, to construe a statute in a constitutional manner. All doubts with respect to statutory interpretation must be resolved in favor of constitutional validity. Noll, 166 Mont, at 507, 534 P.2d at 881. We therefore find the imposition of the 180 day statute of limitations to be further proof of the legislature’s intent that the Human Rights Act not be the sole remedy for acts which also give rise to a cause of action independent of the statute..

If Montana common law failed to provide a remedy for the tort of sexual harassment, we would not hesitate to include sexual harassment as a form of sex discrimination covered by the Human Rights Act. However, because there are other remedies available to sexual harassment victims, we see no reason to construe the Human Rights Act so broadly. Instead, we adopt a more narrow construction of the Act and find that it does not provide the sole and exclusive remedy for sexual harassment.

The trial court’s order granting Shipton’s motion for summary judgment and requiring that Pam Drinkwalter obtain a right-to-sue letter is reversed. We remand for further proceedings.

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

MR. JUSTICE GULBRANDSON,

dissenting:

I respectfully dissent. I dissent specifically from those parts of the majority decision which, (1) reverse the grant of summary judgment as to count I which alleges sexual harassment, and (2) appear to hold that if the Human Rights Act were the exclusive remedy for sexual harassment on the job, then the Act’s 180 day statute of limitation would be unconstitutional. I express no opinion as to the majority’s reversal of summary judgment as to counts II, III, & IV of the complaint.

Count I of the complaint accuses the defendant of severely sexually harassing the plaintiff. The District Court correctly granted summary judgment to the defendant as to this count because the plaintiff failed to comply with the provisions of Montana’s Human Rights Act. The Act provides the remedy in Montana for sexual discrimination in the workplace.

The majority is unclear as to whether sexual harassment is sexual discrimination under the Act. At one point, the majority states:

“If Montana common law failed to provide a remedy for the tort of sexual harassment, we would not hesitate to include sexual harassment as a form of sex discrimination covered by the Human Rights Act. However, because there are other remedies available to sexual harassment victims, we see no reason to construe the Human Rights Act so broadly.”

This passage clearly seems to say that sexual harassment is not sexual discrimination under the Act. However the very next sentence in the majority opinion states,

“Instead, we adopt a more narrow construction of the Act and find that it does not provide the sole and exclusive remedy for sexual harassment.”

This sentence clearly seems to say that sexual harassment can be sexual discrimination under the Act.

The best view is that sexual harassment can be, and in this case is, sexual discrimination under the Act. Here, plaintiffs supervisor allegedly discriminated against her on the basis of sex by sexually harassing her (comments, gestures, comparisons and touching) when he would not have done so to a male employee. As pointed out by the majority, federal courts hold that sexual harassment is sexual discrimination. “The Montana Human Rights Act, Title 49, MCA, is closely modeled after Title VII [of the Federal Civil Rights Act of. 1964, 42 U.S.C. section 2000e et seq.], and reference to pertinent federal case law is both useful and appropriate.” Snell v. Montana Dakota Utilities Co. (1982), 198 Mont. 56, 62, 643 P.2d 841, 844. Both common sense .and federal precedents require a holding that sexual harassment is sexual discrimination:

Given that sexual harassment is sexual ■ discrimination under the Act, the exclusive remedy for that harassment (Count I of the complaint) is provided by the Act. There is no common law remedy for sexual harassment, in and of itself, in Montana. The majority cites no case law establishing such a remedy.

The remedy in Montana for sexual harassment, in and of itself (as alleged in count I), is statutory under the Human Rights Act. Section 49-2-506, MCA, gives the Human Rights Commission broad powers to provide relief for discrimination. The Commission may “require any reasonable measure to correct the discriminatory practice and to rectify any harm, pecuniary or otherwise, to the person discriminated against. . . “ The Act requires a person complaining of discrimination to first file a complaint with the Commission. Under Section 49-2-509, MCA, the Commission can issue a letter entitling the complainant to proceed in district court if certain prerequisites are met. This is the “right to sue” letter.

In Walker v. Anaconda Co. (D.C. Mont. 1981), 520 F.Supp. 1143, upheld on appeal without opinion, 698 F.2d 1228, Judge Russell Smith addressed the exclusive nature of the remedy provided by the Act. The Walker court dismissed an age discrimination in employment action because the plaintiff failed to proceed under the Act. The court stated:

“There is no Montana case law on the subject, but an old rule, and one of almost universal application, is that where ‘a statute creates a right and prescribes a remedy, the statutory remedy is exclusive.’ ” (Citations omitted.)

Walker, 520 F.Supp. at 1144. The court explained,

“The general rule [cited immediately above] should be applied here because all of the indications are that the legislature intended the remedies provided by it to be exclusive, and there are no indications to the contrary ... It is clear that the purpose of the act was to eliminate discrimination in multiple respects. To accomplish this, the legislature did not authorize private suits.”

Walker, 520 F.Supp. at 1144. A New Mexico court also held, relying on Walker, that compliance with the grievance procedure in the New Mexico Human Rights Act was a prerequisite to suit under the Act. See, Jaramillo v. J.C. Penney Co., Inc. (App. 1985), 102 N.M. 272, 694 P.2d 528. In my opinion, the Walker decision states the correct rule.

One final point made in Walker calls for elaboration. The legislative history of the Act indicates that the legislature intended the remedy under the Act to be exclusive. There is no indication that the legislature intended that a plaintiff could bypass the Act and file a discrimination complaint directly in district court.

The majority appears to hold that if the Human Rights Act were the exclusive remedy for sexual harassment in employment, then the Act’s 180 day statute of limitations would be invalid. The majority states that undef Noll v. City of Bozeman (1975), 166 Mont. 504, 534 P.2d 880, such a short period of limitation is invalid. The majority’s reliance appears to be misplaced. In Noll, the court addressed a statutory provision which prohibited allowing any claim against a governmental entity unless the claim had been presented and filed with the Secretary of State within 120 days. This Court found that the provision violated a state constitutional provision abolishing the concept of sovereign immunity. The Noll holding was not predicated upon the length of the 120 day limit. The basis of the holding was that there was already a statute of limitations for the type of suit involved and the challenged provision created an additional condition precedent (filing with the Secretary of State within 120 days). The decision is not predicated upon the length of the period. Indeed, the Noll court specifically conceded that statutes of limitations are within the power of the legislature to enact. The challenged statute in Noll was struck down for imposing a prerequisite in addition to the statute of limitations.

In Eagle Communications v. Treas. of Flathead Cty. (Mont. 1984), [211 Mont. 195,] 685 P.2d 912, 917, 41 St.Rep. 1303, 1309, this Court stated the rule which controls this issue, i.e.,

“The rule is well settled in this country that whenever a statute grants a right which did not exist at common law, and prescribes the time within which the right must be exercised, the limitation thus imposed does not affect the remedy merely, but is of the essence of the right itself, and one who seeks to enforce such right must show affirmatively that he has brought his action within the time fixed by the statute; and if he fails in this regard, he fails to disclose any right to relief under the statute.” (Citation omitted.)

In my opinion, the stated 180 day time limit is valid.