author: JUSTICE HUNT JUSTICE GRAY,

text:
    MICHAEL E. HEISLER, Petitioner and Appellant, v. HINES MOTOR COMPANY, Employer, STATE COMPENSATION INSURANCE FUND, Insurer/Defendant and Respondent.
    No. 95-485.
    Heard January 16, 1997.
    Submitted January 17, 1997.
    Decided April 24, 1997.
    54 St.Rep. 345.
    282 Mont. 270.
    937 P.2d 45.

      See C.J.S. Workmen’s Compensation § 19.
    For Appellant: Lawrence A. Anderson, Great Falls.
    For Respondent: Norman Clyde Peterson, Assistant Attorney General, Agency Legal Services Bureau, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Michael E. Heisler (Heisler) appeals the decision of the Workers’ Compensation Court denying his motion for summary judgment on the issue of whether he was constitutionally entitled to change his treating physician without the prior approval of the State Compensation Insurance Fund (State Fund). We reverse and remand.

ISSUE

The dispositive issue presented on appeal is whether the Workers’ Compensation Court erred in denying Heisler’s motion for summary judgment on the question of whether he was constitutionally entitled to change his treating physician without the prior approval of the State Fund.

FACTS

The facts in this case are not in dispute. On June 28,1993, Heisler was injured in a work-related auto accident while employed by Hines Motor Supply Company of Great Falls. Hines Motor Supply Company was insured by the State Fund for purposes of workers’ compensation. Immediately after the accident, Heisler sought treatment at the emergency room at Columbus Hospital. Heisler also went to a convenient care clinic on July 10, 12, and 14, 1993, for treatment of his injury. On July 12,1993, Heisler submitted a claim for compensation to the State Fund in which he named a Dr. Richard A. Nelson as his treating physician.

The State Fund believed that Heisler’s initial visits to a given doctor at the convenient care clinic constituted a choice of treating physician. The State Fund therefore contended that Heisler was attempting to change his existing choice of treating physician from the initial doctor to Dr. Nelson. Under ARM 24.29.1511, an injured claimant cannot change treating physicians without the prior approval of the State Fund. Since Heisler had not obtained its prior approval, the State Fund refused to pay any of the charges Heisler incurred from his visits to Dr. Nelson. Heisler then instituted this suit to compel payment of Dr. Nelson’s expenses.

In the Workers’ Compensation Court, and now on appeal, Heisler contended that he was statutorily entitled to full freedom to choose his own physician pursuant to § 33-22-111, MCA (1991). He further contended that this statute must take precedence over the conflicting administrative rule, thereby allowing him to change his treating physician without the State Fund’s approval. For its part, the State Fund contended that the administrative rule was clear and Unequivocal and, pursuant to its terms, the Fund had no duty to pay for treatment from an unauthorized treating physician.

Based on his interpretation of the apparent conflict of laws, Heisler moved for summary judgment. The Workers’ Compensation Court denied the motion, concluding that § 33-22-111, MCA (1991), did not conflict with ARM 24.29.1511 and, farther, did not apply in Heisler’s case. Heisler then moved that a final judgment be entered on that basis. The Workers’ Compensation Court granted the motion and entered a final judgment. Heisler appeals the denial of his motion for summary judgment.

STANDARD OF REVIEW

This Court’s standard of review of a grant or denial of summary judgment is the same as that used by the trial court in ruling upon the motion for summary judgment. Malek v. Hankins (1996), 275 Mont. 97, 98, 911 P.2d 1127, 1128 (citing Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 907 P.2d 154). Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Malek, 911 P.2d at 1128.

DISCUSSION

Before addressingthe merits of the case, we must dispose of certain collateral matters.

First, the State Fund takes exception to Heisler’s citation to excerpts from certain depositions in his brief. Relying on Johnson v. Killingsworth (1995), 271 Mont. 1, 894 P.2d 272, the State Fund contends that, in appealing this case, the parties must limit themselves to the “uncontested facts” contained in the pretrial order, which included no reference to the depositions in question. Johnson does not stand for the proposition advanced, however.

In Johnson, this Court declined to consider certain evidence offered on appeal which was not contained in the District Court record. In so doing, this Court stated that “[i]t is axiomatic that this Court will not consider evidence not contained in the record on appeal. Moreover, a party’s reference to evidence does not incorporate that evidence into the record.” Johnson, 894 P.2d at 273 (citations omitted). Johnson does not address whether this Court’s consideration of the facts in a given case must be limited to the scope of the pretrial order; it merely states that this Court will not consider evidence which is not part of the record. In the case at bar, the depositions referenced are part of the record transmitted from the Workers’ Compensation Court on appeal.

The State Fund presents no relevant authority to support its argument that this Court’s review of the facts presented in the trial court must be limited to the uncontested facts in a pretrial order. A pretrial order serves to "prevent surprise, simplify the issues, and permit counsel to prepare their case for trial on the basis of the pretrial order.” King v. Zimmerman (1994), 266 Mont. 54, 66, 878 P.2d 895, 903 (citing Zimmerman v. Robertson (1993), 259 Mont. 105, 111, 854 P.2d 338, 342). It lists such facts as are uncontested, and if a party admits to a fact by allowing its inclusion as uncontested in a pretrial order, the party will not be allowed to raise that particular factual issue on appeal. Whitehawk v. Clark (1989), 238 Mont. 14, 19, 776 P.2d 484, 487 (citing Morse v. Cremer (1982), 200 Mont. 71, 647 P.2d 358). The pretrial order, however, includes only such facts as are uncontested; it does not preclude a party from attempting to prove additional facts which remain in dispute. Nor does the pretrial order in and of itself limit the scope of this Court’s review. On appeal, this Court may consider any evidence which is part of the record, Johnson, 894 P.2d at 273, even if it was not included in a pretrial order. Accordingly, if the depositions in question will facilitate our review we will consider them, just as we are free to consider the entirety of the record presented on appeal.

Second, the State Fund argues that this Court should decline to review the Workers’ Compensation Court’s decision in this case because the matter is moot. This suit was filed to recover certain expenses incurred by Dr. Nelson, which the State Fund refused to pay because Heisler had not obtained the Fund’s prior approval before switching treating physicians. The State Fund notes that it has since authorized Dr. Nelson to be Heisler’s treating physician and paid all the medical bills at issue. It therefore contends that the issue presented is moot.

As the State Fund correctly notes, an issue is moot when it no longer presents a justiciable controversy, due to the occurrence of a given event or the passage of time. Montana Tavern Association v. State By and Through Department of Revenue (1986), 224 Mont. 258, 262, 729 P.2d 1310, 1313-14 (citations omitted). However, an issue will not be considered moot if it is “capable of repetition, yet evading review.” School Dist. No. 4 v. Board of Personnel Appeals (1985), 214 Mont. 361, 364, 692 P.2d 1261, 1263. In order to prove that a given situation is capable of repetition, yet evading review, a party must show:

(1) the challenged action was in its duration too short to be fully litigated prior to the cessation or expiration of the action; and
(2) there was a reasonable expectation the same complaining party would be subjected to the same action again.

School Dist. No. 4, 692 P.2d at 1263 (citing Sosna v. Iowa (1975), 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532).

We agree with the Workers’ Compensation Court’s conclusion that the issue raised in this case is not moot because the actions of the State Fund are capable of repetition, yet evading review. We note that the State Fund has not abandoned its contention that ARM 24.29.1511 gave it the absolute right to pre-approve a claimant’s change of treating physician. Therefore, should Heisler again change his treating physician without the prior approval of the State Fund, the Fund could again refuse to pay the expenses incurred. The action complained of is capable of repetition.

Moreover, the dispute would probably continue to evade review, because the State Fund could avoid resolution of the underlying problem by simply paying the disputed expenses after a suit was instituted, just as it did in this case. Therefore, the State Fund’s voluntary discontinuance of the action complained of was insufficient to render the issue moot. Because the action which prompted institution of this suit is capable of repetition, yet evading review, the State Fvmd’s payment of the disputed charges will not serve to moot the issue presented. Having determined that the issue in the case is not moot, we will review the substantive question presented.

Did the Workers’ Compensation Court err in denying Heisler’s motion for summary judgment on the question of whether he was constitutionally entitled to change his treating physician without the prior approval of the State Fund?

This appeal stems from an apparent conflict of laws which existed as of the date of Heisler’s injury. In this case, as in all workers’ compensation cases, it is the law in effect on the date of the claimant’s injury which must be applied. Kraft v. Flathead Valley Labor & Contractors (1990), 243 Mont. 363, 367, 792 P.2d 1094, 1096 (citing Young Motor Company v. Division of Workers’ Comp. (1985), 219 Mont. 1, 710 P.2d 58).

When Heisler was injured, § 33-22-111, MCA (1991), provided in pertinent part:

[a]ll policies of disability insurance, including individual, group, and blanket policies, and all policies insuring the payment of compensation under the workers’ compensation act shall provide that the insured has full freedom of choice in the selection of any licensed physician....

(Emphasis added.) However, ARM 24.29.1511, which although enabled in 1993 retroactively applied to Heisler’s claim, provided in pertinent part:

Selection of physician for claims arising before July 1,1993. Although 33-22-111, MCA, provides freedom of choice in selection of a physician, workers’ compensation and occupational disease case law also recognizes that a worker must select a single physician who is responsible for the overall medical management of the workers’ condition. That physician is known as the treating physician. ... A worker must obtain prior authorization before changing treating physician.

ARM 24.29.1511 (1993), enabled by § 39-71-203, MCA (1993) (emphasis added). Therefore, Heisler was confronted by two apparently irreconcilable provisions of law: one which apparently granted him an absolute right to choose his own physician, the other which prohibited him from changing physicians without the prior approval of the State Fund.

While the Workers’ Compensation Court acknowledged the apparent conflict between § 33-22-111, MCA (1991), and ARM 24.29.1511 (1993), it concluded that these provisions did not in fact conflict. The Workers’ Compensation Court cited § 33-1-102(5), MCA(1991), which stated “[t]his code [Title 33, Insurance and Insurance Companies] does not apply to workers’ compensation insurance programs provided for in Title 39, chapter 71, parts 21 and 23, and related sections.” Under the plain language of § 33-1-102(5), MCA (1991), provisions in the insurance code (including § 33-22-111, MCA (1991) which granted individuals full freedom of choice of physicians) did not apply to cases brought under workers’ compensation Plan 1 (Title 39, chapter 71, part 21, which set forth the law regarding self-insurers) or workers’ compensation Plan 3 (Title 39, chapter 71, part 23, which set forth the law regarding the State Fund). Since Heisler was covered by the State Fund under Plan 3, the Workers’ Compensation Court concluded that § 33-22-111, MCA (1991), did not grant to him the right to choose his own physician.

On appeal, Heisler first argues that the Workers’ Compensation Court misinterpreted the relevant statutes. Upon review, we conclude that it did not. Section 33-22-111, MCA (1991), the statute which provided freedom to choose a physician, was included in Title 33, the Insurance and Insurance Companies code. Section 33-1-102(5), MCA (1991), stated that the provisions of Title 33 did not apply to workers’ compensation cases involving coverage provided by the State Fund. Heisler admittedly was covered by the State Fund. Therefore, the right to freely choose a physician was not extended to him or to others whose coverage was provided either by the State Fund or a self-insured company. Section 33-1-102(5), MCA (1991). This construction of the relevant statutory provisions was correct; indeed, it was the only interpretation possible given the plain language of the applicable statutes.

Heisler next argues that this interpretation of the statutes created an untenable equal protection problem. Heisler argues that the Workers’ Compensation Court’s interpretation meant that the right to full freedom of choice of a physician was granted to certain injured workers who were covered by workers’ compensation, specifically those covered by Plan 2, private insurers (Title 39, chapter 71, part 22). At the same time, injured workers who happened to be covered by Plan 1 or Plan 3 were not accorded this right. Heisler argues that this differentiation between similarly situated individuals violated his right to equal protection of the law.

Initially, the State responds by arguing that this Court should not áddress this issue because it was not raised in the trial court. The State notes this Court’s long-standing policy against addressing on appeal any issues which were not raised below. See Grenz v. Fire and Casualty of Connecticut (1996), 278 Mont. 268, 924 P.2d 264, 267 (citing Rasmussen v. Lee (1996), 276 Mont. 84, 916 P.2d 98; Fandrich v. Capital Ford Lincoln Mercury (1995), 272 Mont. 425, 901 P.2d 112). Since Heisler did not allege an equal-protection violation in his petition, the State argues that this Court should decline to hear his equal-protection allegation on appeal.

A review of the record, however, reveals that the equal protection issue was raised before the Workers’ Compensation Court. In responding to Heisler’s original petition, the State addressed the possible applicability of the equal protection clause of the Montana Constitution. Heisler then in turn addressed this issue in his reply. Since the issue of equal protection was argued in the Workers’ Compensation Court, it is not raised here for the first time on appeal.

Equal protection of the laws requires that all persons be treated alike under like circumstances. Billings Associated Plumbing, Heating and Cooling Contractors v. State Board of Plumbers (1979), 184 Mont. 249, 253, 602 P.2d 597, 600 (citing U.S.Const., Amend. XIV, section 1; Mont.Const., Art. II, section 4; Montana Land Title Assn. v. First American Title (1975), 167 Mont. 471, 539 P.2d 711). In reviewing equal protection challenges to workers’ compensation statutes, this Court has said:

the right to receive Workers’ Compensation benefits is not a fundamental right which would trigger a strict scrutiny analysis of equal protection. Nor does this [workers’ compensation] statute infringe upon the rights of a suspect class. When a right determined to be less than fundamental is infringed upon by classification, the test applied by this Court is the rational relationship test. That is, does a legitimate governmental objective bear some identifiable rational relationship to a discriminatory classification.

Stratemeyer v. Lincoln County (1993), 259 Mont. 147, 151, 855 P.2d 506, 509 (quoting Cottrill v. Cottrill Sodding Service (1987), 229 Mont. 40, 42, 744 P.2d 895, 897). In order to pass the “rational-relationship” or “rational-basis” test, a challenged legislative enactment “must implicate legitimate goals, and the means chosen by the legislature must bear a rational relationship to those goals.” Lyng v. International Union, Automobile Workers (1988), 485 U.S. 360, 375, 108 S.Ct. 1184, 1194, 99 L.Ed.2d 380 (Justice Marshall, dissenting).

In addition, legislative enactments are presumed to be constitutional. Vainio v. Brookshire (1993), 258 Mont. 273, 277, 852 P.2d 596, 599; City of Helena v. Krautter (1993), 258 Mont. 361, 364, 852 P.2d 636, 639. The party challenging the legislative enactment bears the burden of proving its unconstitutionality beyond a reasonable doubt. Vainio, 852 P.2d at 599 (citing Romero v. J & J Tire (1989), 238 Mont. 146, 149, 777 P.2d 292, 294). If any doubt exists, it must be resolved in favor of the legislative enactment. GBN, Inc. v. Montana Department of Revenue (1991), 249 Mont. 261, 265, 815 P.2d 595, 597 (citing Harper v. Greely (1988), 234 Mont. 259, 269, 763 P.2d 650, 656).

Heisler argues that § 33-22-111, MCA(1991), and ARM 24.29.1511 (1993), taken together, discriminate against certain injured workers (specifically, those covered by Plan 1 or Plan 3 insurers). He therefore contends that persons under like circumstances (i.e., injured workers) are not treated alike (because some are given full freedom of choice of physicians and others are not). Heisler further argues that this discrimination should not be allowed because it is not rationally related to a legitimate governmental interest. See Stratemeyer, 855 P.2d at 509.

The State responds by conceding that Plan 2 injured workers are treated differently than Plan 1 and Plan 3 injured workers, in that Plan 2 workers are afforded the right to freely choose or change their treating physician but Plan 1 and Plan 3 workers are not. Nevertheless, the State presents three arguments in support of its contention that such differentiation is proper and constitutional.

A. Case law from other jurisdictions.

First, the State argues that other state courts have addressed the issue of equal protection in the area of workers’ compensation and upheld statutes which have an effect similar to that of the Montana administrative rule mandating pre-approval of a change in treating physician. In support of this argument, the State discusses Burrgess v. Industrial Commission (Ill.App.1 Dist.1988), 523 N.E.2d 1029; Rivers v. Oregon Accident Insurance Fund (Or.App.1980), 610 P.2d 288; and Chiropractors for Justice v. State of Alaska (Alaska 1995), 895 P.2d 962, But neither Burrgess nor Rivers are strictly on point to the narrow issue presented in this case, and Chiropractors for Justice is distinguishable.

Burrgess involved a challenge to an Illinois statute which mandated that an injured worker obtain his or her employer’s consent before switching to a third treating physician. The statute, however, gave the injured worker two elective physician choices before the requirement of employer consent was triggered. Burrgess, 523 N.E.2d at 1033. While the Illinois Court of Appeals in Burrgess cursorily noted and dismissed the claimant’s equal protection challenge, nothing in the case or in the challenged statute (Ill.Rev.Stat.1985, ch.48, par. 138.8(a)) indicated that the statute in question only applied to some injured workers but not to others. Therefore, Burrgess sheds no light on the question of whether a statutory scheme which does differentiate between similarly situated injured workers may violate a claimant’s right to equal protection of the law.

Similarly, neither Rivers nor Chiropractors for Justice involve statutes which differentiate between classes of injured workers on the basis of the insurance plan by which the worker is covered. In Rivers, the Oregon Court of Appeals reviewed a provision which allowed injured workers to choose their own physicians within the state of Oregon, but allowed the insurer to choose the physician if the injured worker received treatment outside the state of Oregon. Rivers, 610 P.2d at 289. The Oregon court determined that such a requirement did not violate the claimant’s right to equal protection, because it was rationally related to the legitimate governmental objective of ensuring that the Oregon Workers’ Compensation Board would have the legal authority to subpoena or otherwise compel the cooperation of the doctors whose services it investigated. Rivers, 610 P.2d at 290. In Rivers, the Oregon court reviewed an equal protection question quite different than the one faced by this Court today, and it justified the challenged provision on a rational basis which cannot apply in the case at bar. Rivers is therefore not on point.

In Chiropractors for Justice, the Alaska Supreme Court reviewed a statutory provision which required an injured worker to receive approval before exceeding the maximum number of allowable compensable medical treatments. But in this Alaska case, a group of health-care providers (specifically, chiropractors), and not an injured worker, asserted that the statute violated its right to equal protection of the law. In determining that the provision in question did not violate the chiropractors’ right to equal protection, the Alaska court noted that the provision was rationally related to the legitimate government aim “to reduce costs by curbing perceived abuses [of the workers’ compensation system] through procedural safeguards ... [and to] ensure that employers are liable only for reasonable and necessary medical costs.” Chiropractors for Justice, 895 P.2d at 971. The State argues that Chiropractors for Justice is persuasive authority because the means (limitations on treatment) and the ultimate state goal (cost control) which were sanctioned in that case are identical to the means and state goal challenged in the case at bar. For reasons set forth in part “C,” below, we determine that the goal advanced by the Alaska statute is not identical to the goal advanced by the Montana statute and, therefore, Chiropractors for Justice can and must be distinguished.

B. Effect of the challenged provision.

The State next argues that § 33-22-111, MCA (1991), and ARM 24.29.1511 (1993), taken together, did not violate Heisler’s constitutional right to equal protection because the effect of the statute and regulation is not to prevent the injured worker from being treated by the physician of his or her choice but, rather, merely to limit the circumstances under which the State Fund must pay for such treatment. The State therefore argues that Heisler in fact retains his right to “full freedom of choice of physicians,” but, should he choose to exercise that right in violation of ARM 24.29.1511(1993), the State Fund will not bear the cost. Such an argument in disingenuous at best.

Few, if any, injured workers are willing or able to bear the entire cost of treating their work-related injuries in exchange for the privilege of choosing their own physicians. When the State makes the payment of treatment costs contingent on its approval of the treating physician, it effectively removes the injured claimant’s right to freely choose the physician of his or her choice. The State cannot seriously argue otherwise, given that, as noted below, it cites the cost control achieved by limiting physician choice as the sole rational basis justifying the policy requiring physician preapproval.

C. Equal protection challenge.

Lastly, and most significantly, the State argues that the admitted differentiation between injured workers caused by § 33-22-111, MCA (1991), and ARM 24.29.1511 (1993), should pass constitutional muster because such disparate treatment is rationally related to the legitimate governmental goal of controlling workers’ compensation costs. The State contends that

[Requiring as part of the [workers’ compensation] program that claimants in Heisler’s class obtain prior authorization before permitting a change in doctors is a rational means of addressing the legitimate objective of ensuring that all primary medical care is both reasonable and necessary.

In turn, ensuring that medical treatments meet the State’s criteria for “reasonable and necessary” serves to control and minimize the cost of a workable workers’ compensation program. The State argues that such a goal justifies treating Plan 1 and Plan 3 claimants differently from Plan 2 claimants.

In support of its contention that cost control justifies disparate treatment, the State cites Stratemeyer, where this Court reviewed a statutory provision which refused workers’ compensation benefits to a claimant suffering from a mental injury. This Court determined that the challenged provision did not violate the claimant’s right to equal protection of the law, in part because we determined that the differentiation between mental and physical injuries was rationally related to the legitimate governmental objective of controlling workers’ compensation costs. Stratemeyer, 855 P.2d at 511. Relying on Stratemeyer and Chiropractors for Justice, the State urges this Court to determine that the challenged statute and administrative rule do not violate the claimant’s right to equal protection of the law and must be upheld.

After review, we conclude that neither Stratemeyer nor Chiropractors for Justice should control the result in this case. While both cases cite cost-control as a legitimate reason for disparate treatment of injured workers, in neither case was cost-control the only justification for the challenged provisions. In contrast, the only justification given for treating certain injured workers differently than others in the case at bar is the possibility that such discrimination will assist the State in controlling workers’ compensation costs. Heisler argues that cost-control alone cannot justify discrimination. We agree. On this basis, both Stratemeyer and Chiropractors for Justice must be distinguished.

Cost-control alone cannot justify disparate treatment which violates an individual’s right to equal protection of the law. Discrimination, that is, offering services to some while excluding others for any arbitrary reason, will always result in lower costs. We do not, however, allow discrimination merely for the sake of fiscal health. As the Alaska court noted in Chiropractors for Justice,

the asserted goal of lowering insurance premiums can have no independent force in the state’s attempt to meet its burden under the equal protection clause. Although reducing costs to taxpayers or consumers is a legitimate government goal in one sense, savings will always be achieved by excluding a class of persons from benefits they would otherwise receive. Such economizing is justifiable only when effected through independently legitimate distinctions.

Chiropractors for Justice, 895 P.2d at 971 (quoting Alaska Pacific Assurance Co. v. Brown (Alaska 1984), 687 P.2d 264, 272) (emphasis added). In finding the respective challenged provisions constitutional, this Court in Stratemeyer and the Alaska court in Chiropractors for Justice both determined that “independently legitimate distinctions” existed, beyond an arbitrary exclusion of some claimants, and that these “independently legitimate distinctions” justified disparate treatment.

In Chiropractors for Justice, the Alaska court determined that the requirement that treatment sessions numbering beyond the statutorily allowed maximum be pre-approved did not violate health-care providers’ right to equal protection. The court noted that such a requirement

[was] not designed to reduce costs by depriving a certain class of persons, e.g. chiropractors, of benefits they would otherwise receive. Rather, they are designed to reduce costs by curbing perceived abuses through procedural safeguards. Chiropractors may be paid for frequent treatments by adhering to the regulation and demonstrating that the treatments are reasonable and necessary. The purpose here was to ensure that employers are liable only for reasonable and necessary medical costs.

Chiropractors for Justice, 895 P.2d at 971.

In the case at bar, the precise effect of the Montana statute and administrative rule is “to reduce costs by depriving a certain class of persons of benefits they would otherwise receive.” The regulation does not serve to ensure that the medical costs incurred are reasonable and necessary, because the relevant factor in cost control is the reasonableness of the medical services provided, not the identity of the provider. Limiting physician-choice does not address the reasonableness or necessity of a given treatment; it reduces costs solely by prohibiting Plan 1 or Plan 3 claimants from exercising a privilege granted to Plan 2 claimants.

In Stratemeyer, this Court acknowledged that control of workers’ compensation costs was a legitimate government interest, to which the exclusion of mental-injury claims was rationally related. However, mental-injury claims were not arbitrarily excluded simply because their exclusion reduced costs. This Court also noted that compensating injury claims which did not include a physical component would be problematic, in that it would be very difficult to prove or disprove that the injury complained of was causally related to the employment situation. Stratemeyer, 855 P.2d at 511 (citing Erhart v. Great Western Sugar Company (1976), 169 Mont. 375, 379, 546 P.2d 1055, 1057). Therefore, the policy against allowing mental- or stress-injury claims was rationally related to the legitimate governmental interest of maintaining a workable workers’ compensation system.

Furthermore, we note that Stratemeyer factually differed significantly from the case at bar. Stratemeyer distinguished between mental and physical injuries and held that only the latter were compensable under workers’ compensation. In the case at bar, identically injured workers receive disparate treatment based solely on which workers’ compensation plan insures them — a matter beyond the control of the average worker. This case is therefore more analogous to Cottrill, where one injured worker was treated differently than another, identically injured worker would be, based solely on where the claimant lived. In Cottrill, this Corut found such a distinction to be arbitrary and noted that “[a] classification that is patently arbitrary and bears no rational relationship to a legitimate governmental interest offends equal protection of the laws.” Cottrill, 744 P.2d at 897 (quoting Tipco Corp., Inc. v. City of Billings (1982), 197 Mont. 339, 346, 642 P.2d 1074, 1078). Similarly, in this case, differentiating between injured workers based solely on which insurance plan covers them is an arbitrary distinction, not rationally related to the goal of controlling workers’ compensation costs.

In sum, we conclude that the policy of discriminating between injured workers based solely on which insurance plan covers them is not rationally related to a legitimate government objective. Having decided this case on the issue of equal protection, we need not address Heisler’s second argument that the statute in question violates his constitutional right to privacy. The decision of the Workers’ Compensation Court is reversed and this matter is remanded to the Workers’ Compensation Court for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, NELSON, LEAPHART and TRIEWEILER concur.

JUSTICE GRAY,

concurring and dissenting.

I concur in the Court’s statutory analysis and in the result it reaches on the equal protection issue, although I would reach that result under a different analysis. In addition, I disagree with the overly broad conclusion on which the Court bases its equal protection holding.

I agree with the Court that Stratemeyer is distinguishable from the present case and that it does not support the State Fund’s position here. I cannot agree, however, with the Court’s sweeping conclusion that cost alone can never justify a classification or distinction in the workers’ compensation arena. That conclusion, while not stated as such, results from the Court’s agreement with Heisler’s argument “that cost-control alone cannot justify discrimination” and the Court’s statement that “[c]ost-control alone cannot justify disparate treatment which violates an individual’s right to equal protection of the law.” This latter statement by the Court is circuitous at best. It suggests that disparate treatment can actually violate equal protection prior to a determination of whether the disparate treatment is rationally related to a legitimate governmental objective or interest. This is simply not the case and the Court puts the cart before the horse in so stating.

In any event, however, it is my view that the Court’s sweeping conclusion is incorrect and ill-advised. The entire workers’ compensation system is premised on an economic compromise determined to be in the best interests of all concerned: employees gave up the right to sue employers in tort for work-related injuries in exchange for a guaranteed compensation system; employers avoided the potential of unlimited tort liabilities in exchange for required “no fault” compensation payments to injured workers. Indeed, the stated public policy objective of the Workers’ Compensation Act is to provide wage-loss benefits to injured workers “at a reasonable cost to the employer.” Section 39-71-105(1), MCA. Medical benefits, also to be provided without regard to fault, are based on “reasonableness” and “cost-effectiveness.” Sections 39-71-105(1) and 39-71-704(l)(a) and (b), MCA. Thus, to an extraordinary extent, the entire system is grounded in “cost control” of various kinds. The Court’s conclusion that cost control can never justify disparate treatment eviscerates the purpose and provisions of the Act.

Moreover, resolution of the present case does not require a sweeping conclusion of the type made by the Court. Here, the State Fund’s position is that operating an economical Plan Three system is a valid, legitimate governmental objective to which requiring prior authorization before changing treating physicians is reasonably related; stated differently, the State Fund contends that the prior authorization rule is a rational means of addressing the legitimate objective of ensuring that all primary medical care is both reasonable and necessary. The problem with that position is that the State Fund articulates no nexus between the prior authorization rule and the economic operation of Plan Three or the “reasonable and necessary medical care” objective. That is, the State Fund makes no showing of how the prior authorization rule actually achieves any cost control or cost reduction goals and I can conceive of none. Thus, while it is my view that cost control in its broadest sense — which may include a variety of considerations directed to maintaining, overall, a viable workers’ compensation system to the ultimate benefit of both employees and employers — can constitute a legitimate governmental objective in the workers’ compensation arena, I would conclude that no case has been made here that the prior authorization rule is rationally related to that objective. On that basis, I join the Court in holding that the prior authorization rule denies Heisler’s right to equal protection of the laws.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    BETTY ROE, Plaintiff and Appellant, v. COLLEEN KORNDER-OWEN, Defendant and Respondent.
    No. 96-698.
    Submitted on Briefs March 20, 1997.
    Decided April 24, 1997.
    54 St.Rep. 366.
    282 Mont. 287.
    937 P.2d 39.

      See C.J.S. Motor Vehicles § 362.
    For Appellant: William Conklin; Conklin, Nybo, LeVeque & Murphy; Great Falls.
    For Respondent: Jean E. Faure; Church, Harris, Johnson & Williams; Great Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The appellant, Betty Roe, filed a claim for damages based on the alleged negligence of the defendant, Colleen Komder-Owen, in the District Court for the Eighth Judicial District in Cascade County. Komder-Owen filed a motion for summary judgment and, after a hearing, the District Court granted that motion. Roe appeals the order granting summary judgment. We affirm the judgment of the District Court.

The issue on appeal is whether the District Court erred when it granted summary judgment in favor of Colleen Komder-Owen.

FACTUAL BACKGROUND

On September 16,1991, the vehicles being operated by Betty Roe and Colleen Komder-Owen collided at the intersection of Second Avenue South and Third Street in Great Falls. Roe was driving north on Third Street and attempted to cross Second Avenue South, a through street with three driving lanes and two parking lanes. Meanwhile, Kornder-Owen was driving east on Second Avenue South. After Roe proceeded through the stop sign at the intersection, she collided with Komder-Owen in the middle lane of Second Avenue South. The front right side of Komder-Owen’s vehicle impacted with the driver’s side door of Roe’s vehicle.

After the collision, the investigating police officer cited Roe for failure to yield the right-of-way to traffic on a through highway, in violation of § 61-8-341, MCA. In his written report, the officer noted that Komder-Owen’s vehicle left skid marks which measured approximately “12 paces” and that the sunlight from the east was “extremely bright.” Finally, the report notes that the posted speed limit at that location was 25 m.p.h.

On September 15, 1994, Roe filed an action in the District Court in which she alleged that Komder-Owen negligently caused the collision and her injuries.

During discovery, both Roe and Komder-Owen testified by deposition. Komder-Owen testified that immediately prior to the collision she changed from the south driving lane to the center lane, and that she did not see Roe’s vehicle proceeding through the intersection until both vehicles were squarely in the center lane. Although she slammed on her brakes and swerved to the left, she was unable to avoid the collision. She also denied that she was speeding.

Roe testified that she stopped at the stop sign and saw KomderOwen’s vehicle approaching the intersection from approximately one-half block away. She noticed that Komder-Owen started to change lanes and, at that point, determined that she had an ample amount of time in which to cross the intersection. As she proceeded through the intersection, however, the two cars collided. She also testified that Komder-Owen “must have speeded up to change lanes.”

On April 3, 1996, Komder-Owen filed a motion for summary judgment. Roe objected and contended that the following genuine issues of material fact preclude summary judgment: (1) whether Komder-Owen failed to maintain an adequate lookout and to yield the right-of-way, pursuant to § 61-8-341, MCA; and (2) whether Komder-Owen drove in excess of the posted speed limit. In support of her contention, Roe submitted the affidavit of Dr. Denny Lee, a professor of physics at Montana State University. His affidavit states as follows:

Based upon the results of that [EDCRASH] computer analysis, the laws of physics as they apply to accident reconstruction, and my years of experience in the field of accident reconstruction and in personally evaluating crush damage, it is my opinion that the Komder-Owen vehicle was traveling at a speed of 27 to 29 mph, as a minimum, at the time it started leaving skidmarks on the pavement.

After a hearing, the District Court held that “[Komder-] Owen was not negligent as a matter of law.” On that basis, the District Court granted her motion for summary judgment.

STANDARD OF REVIEW

Summary judgment is governed by Rule 56(c), M.R.Civ.P., which provides, in relevant part, as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Rule 56(c), M.R.Civ.P.

This Court reviews an order which grants summary judgment de novo and applies the same criteria as the district court. Fenger v. Flathead County (1996), 277 Mont. 507, 509-10, 922 P.2d 1183, 1184. The party moving for summary judgment has the initial burden of showing the absence of any genuine issue of material fact in light of the substantive principles that entitle it to judgment as a matter of law. Cecil v. Cardinal Drilling Co. (1990), 244 Mont. 405, 409, 797 P.2d 232, 234.

After the moving party has met its burden, the burden then shifts to the party opposing the motion to establish the existence of a genuine issue of material fact. Sprunk v. First Bank System (1992), 252 Mont. 463, 466, 830 P.2d 103, 104. The party opposing the motion must present facts of a substantial nature showing that genuine issues of material fact remain for trial. Wangen v. Kecskes (1993), 256 Mont. 165, 172, 845 P.2d 721, 726. “The opposing party’s facts must be material and of a substantial nature, not fanciful, frivolous, gauzy nor merely suspicions.” Fleming v. Fleming Farms, Inc. (1986), 221 Mont. 237, 241, 717 P.2d 1103, 1105.

DISCUSSION

Did the District Court err when it granted summary judgment in favor of Colleen Komder-Owen?

On appeal, Roe contends that the District Court erred when it granted summary judgment in favor of Komder-Owen. Specifically, she asserts that the following genuine issues of material fact preclude summary judgment: (1) whether Komder-Owen negligently failed to maintain an adequate lookout and to yield the right-of-way, pursuant to § 61-8-341, MCA; and (2) whether Komder-Owen negligently drove in excess of the posted speed limit.

KORNDER-OWEN’S ALLEGED FAILURE TO MAINTAIN A LOOKOUT AND TO YIELD THE RIGHT-OF-WAY

Roe contends that, because Komder-Owen failed to observe the presence of Roe’s vehicle at the intersection until immediately prior to the collision, Komder-Owen negligently failed to maintain an adequate lookout for oncoming traffic. Roe also claims that, once she legally and properly started to proceed through the intersection, it then became Komder-Owen’s responsibility, pursuant to § 61-8-341, MCA, to yield the right-of-way and that Komder-Owen negligently failed to comply with that responsibility.

Section 61-8-341, MCA, is entitled “Vehicle entering through highway or stop intersection” and provides, in relevant part, as follows:

(1) The driver of a vehicle shall stop as required by 61-8-344 at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard, but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right-of-way to the vehicle so proceeding into or across the through highway.

Section 61-8-341(1), MCA.

In Montana, automobiles approaching an intersection are accorded the status of favored or disfavored drivers in order to facilitate the orderly movement of traffic. A favored driver cannot ignore obvious dangers by blindly relying on her right-of-way, De- Verniero v. Eby (1972), 159 Mont. 146, 151-52, 496 P.2d 290, 292-93, but instead must maintain a proper lookout and use reasonable care. Pachek v. Norton Concrete Co. (1972), 160 Mont. 16, 24, 499 P.2d 766, 770. However, the favored driver has the right to assume that the disfavored driver will yield the right-of-way to her when the law so requires. Olson v. Parchen (1991), 249 Mont. 342, 347, 816 P.2d 423, 427. Therefore, it is not negligent for a motorist to fail to anticipate injury which can result only from a violation of law or duty by another. Slagsvold v. Johnson (1975), 168 Mont. 490, 493, 544 P.2d 442, 444.

In this case, Kornder-Owen was the favored driver and Roe was the disfavored driver. Roe, therefore, was required to stop and then to yield to “other vehicles which have entered the intersection ... or which are approaching so closely ... as to constitute an immediate hazard.” Section 61-8-341(1), MCA.

Based on the facts in this case and the application of the aforementioned principles of law to those facts, we conclude that Roe owed Kornder-Owen a duty, pursuant to § 61-8-341, MCA, to yield the right-of-way and that Roe failed to comply with that duty. Furthermore, we conclude that Kornder-Owen had the right to rely on Roe’s compliance with § 61-8-341, MCA, and that she was not required to anticipate Roe’s violation of that statute. Therefore, we hold as a matter of law that Roe was negligent for failing to comply with § 61-8-341, MCA, and that the predicate for imposition of a duty on Kornder-Owen to yield did not occur, lb summarize, it was Roe’s negligence, and not KomderOwen’s, that caused the parties’ collision.

KORNDER-OWEN’S ALLEGED VIOLATION OF THE 25 M.P.H. POSTED SPEED LIMIT

Roe contends that at the time of the accident Kornder-Owen was driving in excess of the 25 m.p.h. posted speed limit and therefore, that Kornder-Owen was negligent. In support of her contention, she submitted the affidavit of Dr. Denny Lee, an expert witness, who opined that “the Kornder-Owen vehicle was traveling at a speed of 27 to 29 mph” at the time of the accident.

However, as previously stated, a party opposing summary judgment must allege facts which are material. In an action which alleges negligence, if the plaintiff fails to offer proof on any one of the elements of negligence — duty, breach, causation, and damages — then the action in negligence must fail and summary judgment in favor of the defendant is proper. Wiley v. City of Glendive (1995), 272 Mont. 213, 216, 900 P.2d 310, 312; Pappas v. Midwest Motor Express, Inc. (1994), 268 Mont. 347, 350, 886 P.2d 918, 920; White v. Murdock (1994), 265 Mont. 386, 389-90, 877 P.2d 474, 476. In other words, the fact that Kornder-Owen exceeded the speed limit by 2 to 4 m.p.h. is only material if there is evidence that that difference in speed contributed as a cause of the parties’ collision. We held in Busta v. Columbus Hospital Corp. (1996), 276 Mont. 342, 371, 916 P.2d 122, 139, that when multiple causes of an event are alleged, the test of causation is whether the conduct in question was a substantial factor in bringing about the event.

After a review of the record, we conclude that Roe offered no evidence that the speed at which Kornder-Owen drove actually contributed as a cause of the parties’ collision. In other words, Roe did not offer evidence that if Kornder-Owen had been going 25 m.p.h., rather than 27 or 29 m.p.h., the likelihood of a collision would have been reduced. Therefore, the difference of 2 to 4 m.p.h. was not proven to be material.

Roe contends that the judgment of the District Court must be reversed based on this Court’s decisions in Sweet v. Edmonds (1976), 171 Mont. 106, 555 P.2d 504, and Ryan v. City of Bozeman (1996), [279 Mont. 507], 928 P.2d 228. However, we conclude that there are slight distinctions in the facts of both cases and, to the extent that they are similar, we conclude that the preferable rule is the one articulated in this case.

In Sweet, which also involved an intersection collision, the disfavored driver testified that before entering the intersection he looked in the direction from which the defendant driver approached, had a clear view for the distance of one city block, but did not see the defendant’s automobile. Furthermore, it was undisputed that the defendant in that case was driving in excess of the legal speed limit, and the defendant’s whereabouts in relation to the intersection when the plaintiff entered the intersection was undetermined. We held that under those circumstances there was a jury issue regarding whether the defendant’s speed was the cause of the collision, as opposed to the disfavored plaintiff’s failure to yield. Regarding the issue of causation, we found it significant that the defendant “had been drinking prior to the collision; and... he did not see plaintiff’s automobile until immediately before the collision.” Sweet, 111 Mont at 109, 555 P.2d at 506.

While the facts in Sweet are similar to those in this case, the extent to which the parties agreed the defendant had exceeded the speed limit was greater than is alleged in this case; and, in Sweet, even greater speed could be inferred from the fact that when plaintiff looked in the direction from which the defendant approached prior to entering the intersection, the defendant’s vehicle was nowhere in sight. Although the Comb’s reference to drinking’’ in the Sweet case is nonspecific, it is also apparent that that fact played some role in the Court’s, decision. There is no allegation in this case that alcohol consumption was a factor.

In Ryan, the plaintiff collided with the defendant in an uncontrolled intersectionin Bozeman. Plaintiff was the favored driver since she approached from the defendant’s right. Following a jury trial, the jury found that each party was fifty percent negligent and that each parties’negligence contributed as a cause of the collision. The district court entered judgment for the plaintiff notwithstanding the jury’s verdict after concluding that there was no basis in fact for finding that the plaintiff had been negligent. Ryan, [279 Mont. 507], 928 P.2d at 229.

On appeal, after observing that the speed limit at the location of the collision was 25 m.p.h., and that there was evidence that the plaintiff had been traveling as fast as 37 m.p.h. just before impact, we concluded that the district court erred when it held as a matter of law that plaintiff’s speed was totally irrelevant to the question of causation. Ryan, [279 Mont. 507], 928 P.2d at 232. We held, without further elaboration, that under those circumstances the issue of whether the plaintiff’s contributory negligence contributed as a cause of her injuries was a question for the jury’s determination. Ryan, [279 Mont. 507], 928 P.2d at 232. We did not discuss in that opinion whether there was also expert testimony that exceeding the speed limit by nearly fifty percent would have contributed as a cause of the parties’ collision. Therefore, it is rmclear whether our decision in Ryan was based on evidence which has not been presented in this case, or whether we assumed from the record that had the plaintiff been traveling 25 m.p.h., rather than 37 m.p.h., the collision would not have occurred as it did. To the extent that the former is true, the distinction between that case and this case is self evident. To the extent that the latter is true, we incompletely analyzed the law of negligence and we decline to follow that decision.

In this case, Roe testified that when she first observed KomderOwen’s vehicle at a distance of one-half block away, it did not appear to be traveling in excess of the speed limit, but that Komder-Owen must have accelerated when she switched lanes. In other words, although the plaintiff did not personally observe the defendant driving at what appeared to be an excessive rate of speed, she assumed that speed must have been excessive from the fact that a collision occurred. Even the plaintiff’s efforts to prove excessive speed based on post-accident reconstruction demonstrated, at most, that KomderOwen exceeded the speed limit by 2 to 4 m.p.h. In the short distance from which the defendant was first observed to the point at which the collision occurred, a difference of 2 to 4 m.p.h. may or may not have contributed as a cause of the collision. On the state of the record, the District Court was left to do nothing but speculate. If the speed at which Komder-Owen was traveling did not contribute as a substantial factor to the parties’ collision, then the fact that she operated her motor vehicle at a speed of 27 to 29 m.p.h., as opposed to 25 m.p.h., was not material and did not satisfy the plaintiff’s burden of demonstrating a material factual issue.

We conclude, based on the record before us, that the undisputed cause of the collision was Roe’s breach of her duty, pursuant to § 61-8-341, MCA, to stop and then to yield to other vehicles which “were approaching so closely ... as to constitute an immediate hazard.”

Accordingly, we hold that the District Court did not err when it granted summary judgment in favor of Colleen Komder-Owen. The judgment of the District Court is affirmed.

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


author: JUSTICE REGNIER JUSTICE LEAPHART,

text:
    LARRY ISAKSON, Plaintiff and Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant and Respondent.
    No. 96-388.
    Submitted on Briefs January 16, 1997.
    Decided May 1, 1997.
    54 St.Rep. 389.
    282 Mont. 296.
    937 P.2d 472.
    See C.J.S. Constitutional Law § 798.
    For Appellant: William A. Rossbach and Elizabeth A. Brennan; Rossbach and Whiston; Missoula.
    For Respondent: Jeffrey Hedger; Kroschel, Yerger & Hedger; Billings.
   JUSTICE REGNIER

delivered the opinion of the Court.

Larry Isakson alleges he was injured while working for Burlington Northern Railroad Company in Park County, Montana, where he also resides. On January 5, 1993, Isakson filed a complaint under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60 (1994) in Cascade County. On January 12,1995, Burlington Northern moved for a change of venue under § 25-2-122(2), MCA, which provided specific venues for tort suits brought against nonresident corporations. On May 7, 1996, the Eighth Judicial District Court granted Burlington Northern’s motion for a change of venue to the First Judicial District Court, Lewis and Clark County. Isakson appeals from the order granting the change of venue.

This Court recently held in Davis v. Union Pacific Railroad Company (1997), [282 Mont 233], 937 P.2d 27 that § 25-2-122(2), MCA, is unconstitutional because it violates the Equal Protection Clause of the Montana Constitution. Our ruling in that case is controlling over the issues presented in this appeal.

Based on our ruling in Davis, the order granting the change of venue in this case is reversed, and this case is remanded to the District Court for proceedings consistent with our decision in Davis.

Reversed and remanded.

CHIEF JUSTICE TURNAGE and JUSTICES NELSON, HUNT and TRIEWEILER concur.

JUSTICE LEAPHART,

dissenting.

I dissent for the reason set forth in my dissent in Davis v. Union Pacific Railroad Company (Mont. April 16, 1997), No. 96-163.

JUSTICE GRAY joins in the foregoing dissent.


author: JUSTICE NELSON JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JIMMY RAE BOWLEY, Defendant and Appellant.
    No. 96-385.
    Submitted on Briefs March 27, 1997.
    Decided April 24, 1997.
    54 St.Rep. 353.
    282 Mont. 298.
    938 P.2d 592.

      See C.J.S. Criminal Law § 410.
    For Appellant: Eric Rasmusson, Boulder.
    For Respondent: Joseph P. Mazurek, Attorney General, Christina Lechner Goe, Assistant Attorney General, Helena; Valerie D. Wilson, Jefferson County Attorney, Deborah Butler, Deputy Jefferson County Attorney, Boulder.
   JUSTICE NELSON

delivered the Opinion of the Court.

The Fifth Judicial District Court, Jefferson Comity, denied Defendant Jimmy Rae Bowley’s (Bowley) oral motions to withdraw his plea of guilty to the felony offense of criminal sale of dangerous drugs. Bowley appeals. We reverse and remand for further proceedings consistent with this opinion, concluding that the District Court abused its discretion when it denied Bowley’s oral motions to withdraw his guilty plea.

We consolidate the issues raised on appeal into the following issue:

Did the District Court abuse its discretion in not allowing Bowley to withdraw his guilty plea?

FACTUAL AND PROCEDURAL BACKGROUND

On October 20,1995, Bowley was arraigned and pled not guilty to the felony charge of criminal sale of dangerous drugs (marijuana— Schedule I Narcotic Drug — second offense), in violation of §§ 45-9-101(1) and (4), 50-32-101(17) and 50-32-222 (Schedule I), MCA. Atrial was scheduled for March 8, 1996. On March 1, 1996, the District Court vacated the trial set for March 8, 1996, and scheduled in its place a change of plea hearing.

At the March 8, 1996 change of plea hearing, the District Court began interrogating Bowley by explaining only the nature of his offense, his possible punishment, and his right to an attorney. Next, the District Court elicited the factual basis for Bowley’s guilty plea by requesting that Bowley explain his actions. Bowley answered that he sold marijuana to a woman. Subsequently, the District Court granted the prosecutor’s motion to amend the information to indicate that this was Bowley’s first offense. Only after eliciting the factual basis of Bowley’s guilty plea did the District Court inform Bowley of his constitutional rights. Thereafter, Bowley pled guilty.

At the conclusion of the change of plea hearing, the District Court granted the prosecutor’s motion to revoke Bowley’s surety bond and to place him in the custody of the Jefferson County Jail until a presentence investigation was conducted. In response to this, Bowley moved to withdraw his guilty plea, which the District Court denied:

MR. MASSMAN [Bowley’s attorney]: Well, Your Honor, the defendant has just informed me he wanted to withdraw his guilty plea and change it back to not guilty, because he wasn’t aware that he was going to get — that his bond would be revoked. He assumed that his bond was going to—
THE COURT: Well, for goodness sakes, we’re going to continue to play fun and games with this matter. So that’s denied. This is over.
You’re remanded back to the sheriff.
And if you can get Mr. Condo to extend the bond, that will be great.

On March 11,1996, Bowley’s bond was reinstated and he was released from the Jefferson County Jail.

On March 19, 1996, Bowley, his attorney and the prosecutor executed a written Acknowledgment of Rights & Pre-Trial Agreement (Pre-Trial Agreement). This Pre-Trial Agreement was not filed with the District Court until May 17,1996, the date scheduled for Bowley’s sentencing hearing. Pursuant to the Pre-Trial Agreement, Bowley agreed to plead guilty to the felony offense of criminal sale of dangerous drugs and the prosecutor agreed to recommend a five-year suspended sentence. Furthermore, in lieu of the one year mandatory minimum prison sentence, the prosecutor agreed to recommend an alternative sentence comprising one year of inpatient or outpatient drug treatment; supervision by the Adult Probation and Parole; compliance with the rules and regulations of Probation and Parole; remaining drug free and submitting to random testing at the request of Bowley’s probation officer.

On May 17, 1996, before the District Court began the sentencing hearing, Bowley moved the court to discharge his attorney and to withdraw his guilty plea. The District Court, again, summarily denied his motion:

MR. MASSMAN: Your Honor, before we start, could I advise the Court that the defendant, Jim Bowley, advised me that he would like to, A, fire me as his attorney, and, B, withdraw his guilty plea on the conviction that is the subject of today’s sentencing.
THE COURT: Well, that motion is denied. Let’s go ahead with the sentencing.

During the sentencing hearing, the District Court heard testimony from Bud Walsh, a Probation and Parole Officer II, concerning his presentence investigation of Bowley. Walsh recommended that Bowley receive a five-year sentence to the Montana State Prison to run concurrently with any other sentence Bowley might receive in state or federal court. In response to this recommended sentence, the District Court asked the prosecutor to explain why the probation officer’s recommendation differed from the plea agreement:

THE COURT: Well, Ms. Butler [state prosecutor], why have we departed from the plea agreement here? Of course, I know I’m not bound by the plea agreement, and he knows that.
MS. BUTLER: Yeah. The State recommended to Mr. Bowley— At the time that I spoke with Mr. Massman [Bowley’s attorney] in regard to this case, it was unaware that he’d been previously on probation, unaware that he had absconded from that probation, and unaware that the federal system was interested in Mr. Bowley and incarcerated him.
Your Honor, the State hasn’t — Mr. Walsh, based on his investigation, gave you his recommendation. The State isn’t diverting from that at this point, Your Honor. I think that the Court is well aware that the State agreed to a five-year commitment with a minimum, with it all suspended, if Mr. Bowley would do treatment. Mr. Walsh also indicated that Mr. Bowley has been in treatment twice, or at least once before, and it’s obviously not done any good, because here he is again with a drug charge. And he never told — he told Mr. Walsh that he still uses.
So at this point, I don’t think it matters too much regarding Mr. Bowley, whether or not you give him five years in the State Prison or whether you suspend it. He’s still incarcerated with the federal system, and that has yet to be tried.
And I don’t have a problem with any sentence running concurrent with the federal system either. [Emphasis added.]

The District Court next heard from Bowley’s attorney and finally addressed Bowley:

THE COURT: Do you have anything to say, Mr. Bowley?
THE DEFENDANT: Only that I tried to — When I was here in March, immediately, within one minute after I changed my plea to guilty, I tried to withdraw it and change it back to not guilty. And I would at this time like to change my plea to not guilty.
THE COURT: Well, you told the probation officer, when he interviewed you, that, “I sold an ounce of marijuana to a friend who had called repeatedly and begged me to score for her.” I guess that’s a drug term, huh, score for her? “I normally wouldn’t have done it, but finally did just to get her to quit bothering me.”
So you’ve admitted two or three times that you did it. And you would just be postponing the inevitable if you withdrew your plea. So I’m not going to let you withdraw your plea.....

Immediately thereafter, the District Court sentenced Bowley to a five-year sentence in the Montana State Prison to ran concurrently with any other sentence Bowley might receive in state or federal court. From this judgment and sentence, Bowley appeals. We reverse and remand for further proceedings consistent with this opinion.

STANDARD OF REVIEW

Before accepting a plea of guilty, a trial court must satisfy statutory requirements such as those contained in §§ 46-12-210 and 46-16-105(1), MCA. Because a criminal defendant waives numerous constitutional rights and protections when pleading guilty, “it is a well-settled legal principle that a guilty plea must be a voluntary, knowing, and intelligent choice among the alternative courses of action open to the defendant.” State v. Radi (1991), 250 Mont. 155, 159, 818 P.2d 1203, 1206 (citing North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162). Furthermore, atrial court may permit a plea of guilty to be withdrawn and a plea of not guilty substituted at any time before or after judgment, for good cause shown. Section 46-16-105(2), MCA. “The fundamental purpose of allowing the withdrawal of a guilty plea is to prevent the possibility of convicting an innocent [person].” State v. Johnson (1995), 274 Mont. 124, 127, 907 P.2d 150, 152 (citations omitted).

We have not established a rule or standard under which a trial court must address a request to withdraw a guilty plea; rather, each case must be considered in light of its unique record. State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177. Furthermore, we review a district court’s denial of a motion to withdraw a guilty plea to determine if the court abused its discretion. Enoch, 887 P.2d at 177. To determine whether good cause existed and whether a district court abused its discretion by denying a defendant’s motion to withdraw a guilty plea, we consider three factors:

(1) the adequacy of the court’s interrogation at the time the plea was entered regarding the defendant’s understanding of the consequences of the plea;
(2) the promptness with which the defendant attempts to withdraw the plea; and
(3) the fact that the plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge.

Johnson, 907 P.2d at 152 (citing Enoch, 887 P.2d at 177; Radi, 818 P.2d at 1206).

During both the March 8,1996 change of plea hearing and the May 17, 1996 sentencing hearing, the District Court summarily rejected Bowley’s three oral motions to withdraw his guilty plea to the felony offense of criminal sale of dangerous drugs. On appeal, Bowley argues that the District Court erred by denying his motions to withdraw his guilty plea because good cause existed to permit such withdrawal. Accordingly, we consider the three factors discussed previously to determine whether good cause existed and whether the District Court abused its discretion when it denied Bowley’s oral motions to withdraw his guilty plea.

DISCUSSION

Did the District Court abuse its discretion in not allowing Bowley to withdraw his guilty plea?

At the outset, we note that the State contends that Bowley never filed a written motion to withdraw his guilty plea, but rather made all motions to withdraw his plea orally without stating any supporting grounds. The State, therefore, argues that we should not consider Bowley’s appeal because he did not preserve these issues for appeal.

The State’s argument is unpersuasive. First, § 46-16-105(2), MCA, does not require that a defendant’s motion to withdraw a guilty plea be in writing. Second, Bowley did not provide supporting grounds for his motions to withdraw his guilty plea because the District Court never afforded him the opportunity. Rather, the District Court summarily denied each motion. Consequently, we will address the merits of the arguments presented on appeal.

Bowley contends that good cause existed to permit the withdrawal of his guilty plea because the District Court’s interrogation was inadequate at the time he entered his guilty plea, his motions to withdraw his guilty plea were prompt, and his guilty plea was the result of a plea agreement breached by the prosecutor during his sentencing hearing. Bowley, therefore, argues that the District Court abused its discretion when it denied his motions to withdraw his guilty plea. Consequently, Bowley asserts that, on remand, the District Court should either allow him to withdraw his guilty plea or, alternatively, sentence him in accordance with the Pre-Trial Agreement. The State responds that the District Court did not abuse its discretion by denying Bowley’s motions to withdraw his guilty plea. The State contends that although Bowley’s motions were prompt, the District Court’s interrogation was adequate and Bowley’s plea was based on a plea agreement which the prosecutor did not breach. Therefore, the State asserts that we should affirm the District Court’s denial of Bowley’s motions to withdraw his guilty plea. We conclude that good cause existed for the District Court to permit withdrawal of Bowley’s guilty plea and that the District Court abused its discretion by denying Bowley’s motions to withdraw his guilty plea and thereby erred. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

As to the first factor, the adequacy of the court’s interrogation at the time the plea was entered, Bowley asserts that a number of deficiencies exist. First, Bowley argues that, during the March 8, 1996 change of plea hearing, the District Court failed to ask whether Bowley was under the influence of drugs or alcohol. Relying on Enoch, Bowley contends that this omission violates the voluntary, knowing and intelligent standard required to be met during a change of plea hearing, and, therefore, the District Court’s interrogation was inadequate. See Enoch, 887 P.2d at 180-81. The State concedes that the District Court failed to ask whether Bowley’s competency was compromised by the use of drugs or alcohol. However, the State responds that this omission is harmless error. We agree.

We stated in Enoch that for an interrogation to be adequate, a court must examine the defendant and determine, among other things, that the defendant is not acting under the influence of drugs or alcohol. Enoch, 887 P.2d at 178 (quoting State v. Mahoney (1994), 264 Mont. 89, 94-95, 870 P.2d 65, 68). In Enoch, during the district court’s interrogation, the defendant testified that he was taking medication. We explained that this testimony should have prompted the district court to inquire farther concerning the defendant’s medical condition, the type of medication he was taking, or the medication’s side effects. Enoch, 887 P.2d at 181. Because the court did not make further inquiry, it left a doubt as to whether the voluntary, knowing and intelligent standard was met during the change of plea hearing. Enoch, 887 P.2d at 180.

Here, unlike the factual situation in Enoch, nothing in the record indicates that Bowley was actually under the influence of any drugs or alcohol when he entered his guilty plea on March 8,1996. Furthermore, eleven days after the change of plea hearing, Bowley did sign the Pre-Trial Agreement stating that he was not under the influence of any drugs or alcohol at the time that he executed the Pre-Trial Agreement. Therefore, without some indication that Bowley was actually under the influence of drugs or alcohol, the District Court’s failure to expressly question whether Bowley was under the influence of drugs or alcohol during the change of plea hearing is harmless error.

Next, Bowley asserts that, during the March 8, 1996 change of plea hearing, the District Court also did not question him as to the competency of his counsel, whom he subsequently sought to discharge at the May 17, 1996 sentencing hearing. Bowley argues that this omission also caused the District Court’s interrogation to be inadequate.

The State responds that the District Court asked Bowley two separate times whether he had adequate time to discuss his case with his attorney, and, furthermore, advised Bowley that he was entitled to a qualified lawyer at and after trial. The State asserts that this shows that the District Court did inquire into the competency of Bowley’s counsel. Furthermore, the State notes that Bowley signed the Pre-Trial Agreement wherein he stated he had “the right to effective assistance of counsel.” Moreover, the State points out that Bowley did not notify the court of his dissatisfaction with his attorney until he moved the court to discharge his attorney at the sentencing hearing without providing any specific reasons. Based on the foregoing, the State argues that the District Court’s interrogation was adequate. We disagree.

By advising Bowley of his right to a qualified attorney, the District Court did meet the requirement of § 46-12-210(l)(b), MCA. However this statement, combined with the court’s inquiry into the adequacy of Bowley’s time with his attorney, did not satisfy the requirement that the District Court must determine that Bowley “admits his counsel is competent and he has been well advised ...” Enoch, 887 P.2d at 178 (quoting Mahoney, 870 P.2d at 68). Furthermore, the Pre-Trial Agreement, while setting forth Bowley’s right to “effective assistance of counsel” does not satisfy this requirement either because it was not timely. Bowley and the prosecutor did not execute the Pre-Trial Agreement until eleven days after he changed his plea to guilty. We refuse to permit acceptance of a guilty plea “based on information provided to a criminal defendant in bits and pieces over a long period of time.” Enoch, 887 P.2d at 180 (holding that an acknowledgment of rights form signed by the defendant six months prior to entering his plea of guilty was not timely with regard to the requirements that must be met at the time a plea is accepted).

While the District Court’s failure to inquire as to whether Bowley was under the influence of drugs or alcohol was harmless error, the District Court’s failure to inquire into the competency of Bowley’s counsel is not. Here, unlike the absence of any indication in the record that Bowley was under the influence of drugs or alcohol, the record shows that Bowley ultimately notified the court, at the sentencing hearing on May 17,1996, that he wanted to discharge his attorney. Contrary to the State’s assertion that Bowley did not provide the court with any specific reasons to support his motion to discharge his attorney, we note that the District Court did not provide Bowley with the opportunity to do so. Rather, the District Court, without inquiring as to the reasons for Bowley’s dissatisfaction with his attorney, summarily denied Bowley’s motion to discharge his attorney as well as his motion to withdraw his guilty plea. The District Court’s failure to inquire further to determine whether Bowley admitted that his counsel was competent and that he had been well advised, raises doubts as to whether the voluntary, knowing and intelligent standard was met when Bowley changed his plea to guilty on March 8,1996. Consequently, we conclude that the District Court’s interrogation during the March 8,1996 change of plea hearing was not adequate in this respect.

Finally, Bowley contends that, during the March 8, 1996 change of plea hearing, the District Court elicited the factual basis for his plea of guilty prior to informing him of his constitutional rights. Bowley asserts that under § 46-12-210(l)(c)(iv), MCA, a court must determine that the defendant understands he has a right “not to be compelled to reveal personally incriminating information,” before accepting a plea of guilty. Therefore, Bowley argues that the District Court’s interrogation was inadequate because the court violated § 46-12-210, MCA, when it elicited the factual basis for Bowley’s guilty plea before informing him of his constitutional rights, specifically his right against self-incrimination. The State does not respond to this argument.

In Enoch, we concluded that the district court violated the statutory requirements of § 46-12-210, MCA, when it failed to advise the defendant of a number of constitutional rights, including his right not to be compelled to reveal incriminating information. We stated:

In addition to being statutory requirements, these are not minor or inconsequential matters. One of the court’s omissions concerned the fundamental right against self-incrimination as guaranteed by the Montana and United States Constitutions. Art. II, Sec. 25. Mont.Const.; U.S. Const. Amend. V. Rights this fundamental cannot be addressed adequately by the District Court’s broad statement that [the defendant] was “giving up virtually all of [his] rights...."

Enoch, 887 P.2d at 179-80 (second alteration in original). Similarly, we conclude, in this case, that Bowley’s constitutional rights were not adequately addressed because the District Court failed to inform Bowley of his constitutional rights before eliciting from him the factual basis of his guilty plea.

Here, unlike the case in Enoch, the District Court did not entirely omit informing Bowley of his right against self-incrimination at the March 8,1996 change of plea hearing. Yet, the court failed to inform Bowley of his constitutional rights, specifically his right against self-incrimination, before requesting that Bowley describe the crime he allegedly committed. Rather, before directly questioning Bowley about his crime, the District Court only explained to Bowley the nature of his offense, his possible punishment and his right to an attorney. Because a criminal defendant waives numerous constitutional rights and protection when pleading guilty, “it is a well-settled legal principle that a guilty plea must be a voluntary, knowing, and intelligent choice among the alternative courses of action open to the defendant.” Radi, 818 P.2d at 1206 (citing North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162). By conducting the change of plea hearing in this manner, the District Court failed to adequately provide Bowley with information concerning his constitutional rights — information that Bowley needed to make a voluntary, knowing and intelligent choice concerning his guilty plea.

Therefore, as to the first factor, we conclude that the District Court’s failure to investigate whether Bowley was under the influence of drugs or alcohol was harmless error, standing alone. However, the District Court also failed to inquire about the competency of Bowley’s counsel and to inform Bowley about his right against self-incrimination prior to eliciting the factual basis for Bowley’s guilty plea. That is, the District Court erred by failing to comply with the requirements set forth both in § 46-12-210, MCA, and Enoch. Consequently, we conclude that the District Court’s interrogation at Bowley’s change of plea hearing was inadequate. This first factor, thus, weighs in Bowley’s favor.

The second factor, promptness, is not in dispute. Bowley made his first oral motion to withdraw his guilty plea and reinstate his original plea of not guilty at the conclusion of the change of plea hearing on March 8, 1996. Further, he made two additional oral motions to withdraw his guilty plea at the May 17, 1996 sentencing hearing, once at the beginning of the proceeding and again just before the judge sentenced him. The State concedes that Bowley’s motions to withdraw his guilty plea were promptly made. Accordingly, the second factor weighs in Bowley’s favor, also.

Last, we consider the third factor, whether the plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge. Bowley notes that in the Pre-Trial Agreement the State agreed to recommend a five-year suspended sentence along with other specified conditions in exchange for Bowley’s guilty plea. Bowley asserts that, during the May 17, 1996 sentencing hearing, the prosecutor did not recommend the suspended sentence agreed upon in the Pre-Trial Agreement, and, therefore, breached that agreement. Furthermore, Bowley argues that the District Court abused its discretion by denying his final motion to withdraw his guilty plea because good cause existed to permit such withdrawal due to the breached plea agreement.

The State responds that the fact that Bud Walsh, a probation officer, recommended a different sentence from that agreed upon in the Pre-Trial Agreement does not constitute breach on the part of the prosecutor. Moreover, the State contends that the record shows the prosecutor recommended the sentence agreed upon in the Pre-Trial Agreement, and, therefore, the prosecutor did not breach the plea agreement. Consequently, the State argues that Bowley’s guilty plea should stand. We disagree.

While the Pre-Trial Agreement did not involve a guilty plea in exchange for a dismissal of another charge, it did involve a recommendation for sentence suspension, and, therefore, at first glance, would seem to weigh in favor of allowing Bowley’s guilty plea to stand. See Radi, 818 P.2d at 1208. We have repeatedly held that this Court “will not lend its assistance to an accused criminal in escaping his or her obligations of a plea bargain after accepting its benefits.” Johnson, 907 P.2d at 153 (citations omitted). On the other hand, we recognize that a plea agreement presupposes fundamental fairness in the process of securing such an agreement between the defendant and the prosecutor and so we have held that prosecutors, also, are bound by a plea agreement:

This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
Prosecutors who engage in plea bargaining must meet strict and meticulous standards of both promise and performance as a plea of guilty resting in any significant degree on an unfulfilled plea bargain is involuntary and subject to vacation. Prosecutorial violations, even if made inadvertently or in good faith to obtain a just and mutually desired end, are unacceptable.

State v. Allen (1981), 197 Mont. 64, 68-69, 645 P.2d 380, 382 (citations omitted). Consequently, upon closer examination of the proceedings that took place prior to imposition of Bowley’s sentence on May 17, 1996, we conclude that the prosecutor did not recommend the suspended sentence set forth in the Pre-Trial Agreement, and, therefore, did not meet the strict and meticulous standards of performance of the plea agreement. As a result, this third factor also weighs in Bowley’s favor.

As set forth previously, Bud Walsh, the probation officer, testified during the May 17,1996 sentencing hearing and recommended that Bowley serve a five-year sentence in the Montana State Prison to ran concurrently with any other sentence Bowley might receive in state or federal court. Thereafter, the District Court asked the prosecutor to explain why the probation officer’s recommended sentence differed from the Pre-Trial Agreement. The prosecutor, in response, acknowledged that in the Pre-Trial Agreement, the State had agreed to recommend a five-year suspended sentence if Bowley agreed to plead guilty to the charge of criminal sale of dangerous drugs and to undergo drug treatment. However, the State continued:

Mr. Walsh also indicated that Mr. Bowley has been in treatment twice, or at least once before, and it’s obviously not done any good, because here he is again with a drug charge. And he never told — he told Mr. Walsh that he still uses.
So at this point, I don’t think it matters too much regarding Mr Bowley, whether or not you give him five years in the State Prison or whether you suspend it. He’s still incarcerated with the federal system, and that has yet to be tried.
And I don’t have a problem with any sentence running concurrent with the federal system either. [Emphasis added.]

The State argues correctly that when a probation officer recommends a sentence different from that contained in a plea agreement, this does not constitute breach of the plea agreement by the prosecutor because the probation officer’s recommendation is not equivalent to the prosector’s recommendation. State v. Yother (1992), 253 Mont. 128, 137, 831 P.2d 1347, 1352. However, we are not concerned with the fact that Bud Walsh recommended a sentence different from that contained in the Pre-Trial Agreement. Rather, we are concerned with the fact that the prosecutor recommended a sentence different from that contained in the Pre-Trial Agreement when the prosecutor effectively endorsed Bud Walsh’s sentence recommendation, as seen from the previous transcript excerpt.

While the State did acknowledge the five-year suspended sentence recommendation contained in the Pre-Trial Agreement, we cannot characterize anything else in the prosecutor’s response to the District Court as a recommendation of this suspended sentence. Rather, as the emphasized language shows, the prosecutor effectively recommended that Bowley serve a five-year sentence to run concurrently with any other sentence, as suggested by Bud Walsh, the probation officer. By failing to recommend the suspended sentence contained in the Pre-Trial Agreement, the prosecutor did not satisfy the strict and meticulous standards of performance of the plea agreement and thereby breached that agreement. Consequently, we conclude that the Pre-Trial Agreement is involuntary and is subject to being vacated. See Allen, 645 P.2d at 382.

In summary, the three factors discussed above show that good cause existed to permit Bowley to withdraw his guilty plea — the District Court’s interrogation was inadequate, Bowley’s motions to withdraw his guilty plea were prompt, and the State breached the Pre-Trial Agreement. Accordingly, we hold that the District Court abused its discretion by denying Bowley’s motions to withdraw his guilty plea, and in so doing, erred.

Bowley suggests that, on remand, the District Court should either allow Bowley to withdraw his guilty plea or, alternatively, sentence him in accordance with the Pre-Trial Agreement. We agree. Due to both the inadequacy of the District Court’s interrogation at the March 8, 1996 change of plea hearing and the prosecutor’s breach of the Pre-Trial Agreement at the May 17, 1996 sentencing hearing, we remand this case to the District Court with specific instructions. First, should Bowley desire to do so, the District Court should allow him to withdraw his guilty plea. Alternatively, if on remand Bowley elects to be sentenced in accordance with the Pre-Trial Agreement, the District Court should do so.

Reversed and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICE REGNIER concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the majority’s conclusion that the District Court abused its discretion when it denied the defendant’s motions to withdraw his guilty plea. Therefore, I concur in the result of the majority opinion.

However, I also agree that based on simple notions of fairness, and our prior decision in State v. Allen (1981), 197 Mont. 64, 645 P.2d 380, “[p]rosecutors who engage in plea bargaining must meet strict and meticulous standards of both promise and performance as a plea of guilty resting in any significant degree on an unfulfilled plea bargain is involuntary and subject to vacation.” Allen, 197 Mont. at 69, 645 P.2d at 382.

I conclude that when guilty pleas are induced by promises from one agent of the State to recommend a suspended sentence, and that recommendation is then rendered meaningless because another agent of the State makes a contrary recommendation, the State has not met “strict and meticulous standards of both promise and performance.” Therefore, I do not agree with the majority’s conclusion that “when a probation officer recommends a sentence different from that contained in a plea agreement, this does not constitute breach of the plea agreement by the prosecutor.” Furthermore, to the extent that our prior decisions in State v. Yother (1992), 253 Mont. 128, 831 P.2d 1347, and State v. Milinovich (1991), 248 Mont. 373, 812 P.2d 338, hold otherwise, I would reverse those decisions.

What sense does it make to pay lip service to the principle that an accused person has a right to rely on material representations made to him or her as an inducement to enter into a plea agreement, but then allow the practical effect of that inducement to be circumvented by permitting another agent of the same government to do just the opposite of what was promised to the defendant? Is there any question whose recommendation the district judge will take more seriously? Because of that practical reality, what benefit did Bowley get from pleading guilty?

In this case, Bowley pled guilty based on a promise, made by the agent of the State who was responsible for prosecuting him, that a suspended sentence would be recommended. After he signed the plea agreement, and purportedly based on a subsequent investigation, another agent of the State filed a report with the District Court recommending that he serve five years in prison. If, in fact, information such as a prior probation, the failure of prior treatment, and involvement in the federal criminal justice system were learned subsequent to the agreement but could not have been known at the time of the agreement, then the remedy for the State was to repudiate the agreement based on mistake and allow Bowley to withdraw his guilty plea. No principle of fairness or contract law allows the State to retain the benefit of its agreement and avoid its obligation. That is what would have happened in this case had the District Court’s refusal to allow Bowley to withdraw his guilty plea not been reversed on other grounds. I would not sanction that kind of shell game.

For these reasons, while I concur with the result of the majority opinion, I do not agree with all that is said therein.

JUSTICE HUNT joins in the foregoing specially concurring opinion.