author: MR. JUSTICE WEBER MR. JUSTICE SHEEHY,

text:
    CITY OF GREAT FALLS, Montana, a municipal corporation, Plaintiff and Respondent, v. M.K. ENTERPRISES, INC., A CORPORATION, Tim Wolf and Robert Wolf, individuals, d/b/a Red Door Adult Book Store, et al.,Defendants and Appellants.
    No. 86-273.
    Submitted Dec. 9, 1986.
    Decided Feb. 5, 1987.
    732 P.2d 413.
    Goldman & Goldman; Bernard J. Goldman argued, Missoula for M.K. Enterprises & Treasure State Sales.

      Datsopoulos, MacDonald & Lind; Edward A. Murphy argued, Missoula for Wolf d/b/a Red Door Adult Book Store.
    David Gliko argued, City Atty., Great Falls, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an Eighth Judicial District, Cascade County decision upholding the constitutionality of a Great Falls city ordinance. The ordinance establishes a $300 per booth annual license fee on video booths used to view adult movies. We affirm.

The issue is whether the trial court erred in concluding that the $300 annual fee for adult movie video booths was reasonable as a regulatory measure and therefore not a violation of the First Amendment of the United States Constitution.

In January 1983 the City Commission of Great Falls adopted Ordinance No. 2311 “providing for the establishment of license fees to be paid by operators of coin-operated devices depicting sexual activities.” The annual license fee imposed under this ordinance is $300 per booth. At the time of the trial of this case, there were a total of 59 booths in four adult bookstores in the City of Great Falls.

The booths are small cubicles in which customers view movies on a television or movie screen. To view the movie, the customer is required to deposit money in a coin box. It has not been argued that any movies shown were obscene or otherwise illegal, but they are admittedly sexually explicit.

This case began when the City of Great Falls (City) filed actions against two owners of adult bookstores for failing to pay the annual license fee. The actions were consolidated, together with another case filed by a third adult bookstore owner who was challenging the constitutionality of the ordinance. A trial was conducted at which the City presented evidence of actual and anticipated costs justifying the fee. After considering the evidence before it, the District Court concluded that the City had met its burden of proving that the $300 fee is reasonable and “designed to further valid, non-speech-related municipal interests.” On appeal, the bookstores argue that the City has failed to prove that the $300 fee is justified by the costs established, or that it is either nominal or imposed to defray the expenses of policing the booths.

Did the trial court err in concluding that the $300 annual fee for adult movie video booths was reasonable as a regulatory measure and therefore not a violation of the First Amendment of the United States Constitution?

The First Amendment to the Federal Constitution provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” This right of free speech is protected from state infringement through application of the Due Process Clause of the Fourteenth Amendment. Grosjean v. American Press Co. (1936), 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660. Although many persons find them distasteful, booths for viewing adult oriented films which are not obscene or otherwise illegal are protected by the First Amendment. A license fee on such protected activities will pass constitutional muster only if the fee is nominal and imposed as a regulatory measure to defray the expenses of policing the activity in question. Murdock v. Pennsylvania (1943), 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292. These expenses may include more than routine processing of licenses; among permissible costs is the cost of “protecting those on the streets and at home against the abuses of solicitors.” Murdock, 319 U.S. at 116, 63 S.Ct. at 876, citing Cox v. New Hampshire (1941), 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049.

The District Court cited cases involving fees on adult video booths and expanding the statement in Murdock that the allowable license fee may include the costs of policing the activity being licensed. In Bayside Enterprises, Inc. v. Carson (D.C.Fla. 1979), 470 F.Supp. 1140, 1149, the court stated:

“As it now stands, the Code will merely serve perfectly valid municipal interests in public safety and welfare, most notably the presence of safe and sanitary conditions and the prevention of criminal conduct. These interests are wholly unrelated to suppressing free speech and, significantly enough, the plaintiffs have presented no evidence that furthering these interests through the Code’s fee system would have the effect of suppressing free speech. Put another way, there is no evidence before this Court that these fees will drive the plaintiffs out of business or in any way hamper their ability to communicate through purveying their books and films. In sum, the City has met its burden of proving that these fees are reasonable, and that they are designed to further valid, nonspeech-related municipal interests. Accordingly, they must be held constitutional.

The District Court also relied upon a North Dakota case in which a $300 per booth license fee for adult video booths was upheld. In City of Minot v. Central Ave. News, Inc. (N.D. 1981), 308 N.W.2d 851, 860, the court stated:

. . Central does not point to, nor has our own research unearthed, authority to the effect that a city must, before implementing a licensing scheme with a fee, demonstrate what the administrative costs would have been in the past had the licensing scheme been in effect. Moreover, we believe that Central’s reliance upon Bayside Enterprises, Inc. v. Carson, 450 F.Supp. 696 (M.D.Fla. 1978), to support its contention is misplaced. In Bayside, the licensing fee in question was struck down not because it was speculative, but because the City of Jacksonville’s projected costs of enforcing a newly enacted licensing ordinance for adult bookstores were unreasonable. Thus, regarding the licensing fee at issue in the instant case, we are left to determine only its reasonableness.”

Based on evidence of anticipated costs of routine policing of the video booths, together with anticipated costs of proceeding on violations of the law, the court upheld the $300 per booth annual fee.

In the present case, the District Court’s findings and conclusions outline the testimony given at the hearing as to costs of regulating and policing the booths. The evidence established past police department costs of $44 per year for routine investigation to verify licensing requirements; $1,408 in expenses incurred in 1982-83 for a stakeout related to an outbreak of venereal disease traced to one of the booths; and $220 in expenses for a child pornography check. An experienced detective testified on estimated future police department costs and expenses relating to adequate policing of the booths. He estimated that it would cost $1,786.88 per year to police the booths to insure adequate enforcement of the State child pornography law, Section 45-5-625, MCA; $8,064 per year to police the booths to insure adequate enforcement of the State deviate sexual conduct law, Section 45-5-505, MCA; and $2,688 per year to police the booths to insure adequate enforcement of the State obscenity law, Section 45-8-201, MCA. The officer testified that at the time of the hearing the deviate sexual conduct law and the obscenity law were not being enforced in the City of Great Falls. A second law enforcement officer testified on the need for enforcement of the laws prohibiting minors in these establishments.

The District Court also heard testimony that City-County health enforcement costs and expenses for the booths in 1982-83 were $2,155.19, relating to the venereal disease traced to a video booth. There was uncontroverted testimony of homosexual and heterosexual intimate conduct between persons either sharing a booth or using “glory holes” in the walls between the booths. Yearly health enforcement costs were set at $551.65, plus an anticipated increase in costs of monitoring and follow up contact tracing resulting from sexual contact in the booths and the risk of sexually transferable communicable diseases. Administrative licensing expenses were established as $18.29 for the cost of issuing the original license for each establishment and estimated annual renewal expense of $29.44 for each establishment.

This Court has indicated that estimates of future expenses may be included for purposes of setting a license fee. State v. Police Court (1923), 68 Mont. 435, 443-44, 219 P. 810, 812. Until law enforcement efforts have been in effect for a substantial period of time, we recognize that the costs of enforcement cannot precisely be established. The cost estimates provided by the City total over $13,000 per year, plus the anticipated increased health department costs. As stated previously, health department costs were over $2,000 in 1982-83 from one outbreak of venereal disease. At $300 per booth, the city will receive income of $17,700 per year on 59 booths. We conclude that the lower court was correct in not requiring proof of expenses precisely equaling the amount which will be collected on 59 video booths.

The bookstores also argue that it was not proven that enforcement of the child pornography law was in any way connected with operation of the video booths. The need for enforcement of the child pornography law is not eliminated because no child pornography has been found in the booths in the past. That conclusion would ignore the very nature and purpose of the booths — to show sexually titillating films for all manner and persuasion of customers.

The City has proposed random checks by plainclothes officers to enforce the deviate sexual conduct statute. Our conclusion that this proposal is reasonable is not changed by the bookstores’ proposal of alternative methods, which they say infringe less on the right of free speech. Without going into detail, we conclude that the enforcement methods proposed by the bookstores would not be effective.

There was no evidence that the $300 per booth fee will drive the bookstores out of business or prohibit them from communicating through the films. Although the bookstores have questioned some of the enforcement cost figures, we affirm the holding of the lower court that the City has submitted sufficient evidence to justify the $300 per booth fee. We affirm the conclusion of the District Court that the City has met its burden of proving that the fee imposed is justified by the costs established and is set at an amount designed to defray the expenses of policing the booths.

Affirmed.

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

MR. JUSTICE SHEEHY,

dissenting:

It is not an easy or pleasant task to defend the purveyors of sexually-explicit films from a confiscatory tax in the guise of a license fee. Yet, the constitutional protection of the First Amendment is like the air we breathe, it is there for the good and the bad. For the same reasons that I would strike down a law that levied a $2,000 annual license fee on individual lawyers (proposed in the 50th Legislature) I must urge striking down the exorbitant license fee in this case. License fees are levied under the police power of the state and their assessment cannot go beyond the cost of policing the activity licensed, otherwise exorbitant fees violate the principle of uniform taxation, and are held to be confiscatory. If the First Amendment is involved, there is additionally a problem of prior constraint. Once permitted, exorbitant license fees will be enacted on the wildest speculation and spread to other, perhaps cleaner endeavors. As the Spanish proverb said, “When you see your neighbor being shaved, prepare yourself for the barber.”

The claimed costs by the city in justifying the license fee are exaggerated or illusory. For example, of the 455 venereal disease cases in Cascade County in 1982, two were traced to contacts at an adult bookstore. No further incidence of venereal disease traceable to adult bookstores or adult film booths have occurred in that county to the time of trial here. Yet the majority allow $1,400.00 per year in expenses for a stakeout, and $2,155.19 in annual city and county health costs as if these were annual recurring costs.

The detectives in this case have acknowledged that they found no instances of child pornography in the time that these booths have existed in Great Falls. It is a crime in Montana, Section 45-5-625, MCA, to use a child for or to expose him to pornographic material anywhere in the State. At the present time the City of Great Falls has no program for enforcement of this act. If the statute were to be enforced by the City of Great Falls, the cost of enforcement should be an obligation of the general taxpayers.

Likewise it is a crime under Section 45-8-201, MCA, purposely or knowingly to provide, sell or deliver obscene material to anyone under age 18. This statute applies everywhere in the State of Montana. The City of Great Falls has no present program for the enforcement of the obscenity statute. Again the enforcement, if and when it occurs in the City of Great Falls should be an obligation of the general taxpayers.

It is likewise a crime in the State of Montana to engage in deviate sexual conduct under Section 45-5-505, MCA. No instance of a prosecution for such conduct related to the booths appears in the evidence of this case. If there is a program for enforcement of this statute in the City of Great Falls, again it should he the obligation of the general taxpayers.

In Wendling v. City of Duluth (D.C. Minn. 1980), 495 F.Supp. 1380, 1384, 1385, the Court said:

“The narrow question here is whether the imposition of a license fee to finance enforcement of a separate obscenity ordinance can be considered the permissible policing of activities as prescribed in the Murdock case, or whether Murdock requires that the fee be no greater than is necessary to administer and enforce the licensing ordinance itself. A review of the case law suggests that the latter is the correct view.”

The majority rely upon Bayside Enterprises, Inc. v. Carson (D.C. Fla. 1979), 470 F.Supp. 1140. In that case, the Court upheld a $35 license fee. It was a follow-up case from an earlier one, Bayside Enterprises, Inc. v. Carson (M.D. Fla. 1978), 450 F.Supp. 696, that struck down a $100 fee on the grounds that the fee was speculative because the projected costs of enforcing a licensing ordinance for adult bookstores was unreasonable.

I would strike down the $300 fee as unreasonable, and because of its unreasonableness, a prior constraint on the First Amendment rights of the licensees. •

MR. JUSTICE HUNT concurs in the dissent of MR. JUSTICE SHEEHY.


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON MR. JUSTICE SHEEHY,

license: Public Domain

text:
    FRAZER SCHOOL DISTRICT NO. 2, Appellant and Respondent, v. BETH M. FLYNN, Superintendent of Public Instruction; Alfreda Drabbs, Valley County Superintendent of Schools; and Delores Hughes, Substitute Hearing Officer, Respondents and Appellants.
    No. 86-302.
    Submitted on Briefs Jan. 7, 1986.
    Decided Feb. 5, 1987.
    732 P.2d 409.

      John W. Larson, Office of Public Instruction, Helena, and G.T. Archambeault, Glasgow, for Beth Flynn.
    James D. Rector, Glasgow, for respondents and appellants.
    Bruce W. Moerer, Montana School Bds. Assoc., Helena, for amicus curiae.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This is an appeal from an order of the District Court of the Seventeenth Judicial District, in and for Valley County, Montana. The order reversed a decision of the State Superintendent of Public Instruction which allowed a tuition transfer for appellant. We affirm the order of the District Court denying the tuition transfer.

Beth M. Flynn (appellant) a resident of the Frazer School District, removed her child from the Frazer school to the Wolf Point school. She then requested the Frazer School Board to approve her tuition application pursuant to Section 20-5-302, MCA. The School Board reviewed her application, and based on policy and statutory considerations, rejected it.

Appellant appealed the decision to the Valley County Superintendent of Schools. By request of the parties, Dolores Hughes, County Superintendent of Phillips County, heard oral testimony and affirmed the School Board’s decision. A further appeal to the State Superintendent of'Public Instruction resulted in reversal of the decision denying tuition transfer. The Frazer School Board appealed to the District Court, which reversed the order of the State Superintendent of Public Instruction and reinstated the decision of the Frazer School Board, denying a tuition transfer. Appellant appeals from the decision of the District Court.

We are asked to determine whether the decision of the District Court complies with the Montana Administrative procedures Act, specifically Section 2-4-704, MCA, and Section 2-4-623, MCA, and whether the decision of the Valley County Superintendent of Schools is contrary to law. The first issue is dispositive, as it is the only issue within the scope of review of this Court.

The Montana Administrative Procedures Act (MAPA) permitting “an aggrieved party [to] obtain review of a final judgment of a district court ... by appeal to the Supreme Court . . . “ set forth at Section 2-4-711, MCA, must be followed in this case. Yanzick v. School District #23 (1982), 196 Mont. 375, 383, 641 P.2d 431, 436. The appeal to the County Superintendent was in effect a trial de novo with witnesses and recorded evidence, while the appeal to the State Superintendent was based on the record.

The standard of review applicable to the District Court is set forth in Section 2-4-704, MCA, which reads in pertinent part:

“(1) The review shall be conducted by the court without a jury and shall be confined to the record . . . The court, upon request, shall hear oral argument and receive written briefs.
“(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, . . . conclusions, or decisions are:
“(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;”

Under this section, neither the District Court nor the Superintendent of Public Instruction may substitute his judgment for that of the County Superintendent as to the weight of the evidence on questions of fact.

When considering whether the District Court erred in its review of the State Superintendent’s decision, we will not overturn the District Court unless we find its decision to be clearly erroneous. Rule 52(a), M.R.Civ.P. In this proceeding the District Court was not the trier of fact. We have here an appeal from a lower appellate tribunal, the State Superintendent of Public Instruction, which in turn based his conclusions on a review of the printed record, without the benefit of listening to and observing the demeanor, conduct, and testimony of witnesses. We will reverse or modify the decision only if substantial rights of the appellant have been prejudiced because the administrative findings and conclusions are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. See Yanzik, supra, 196 Mont, at 388, 641 P.2d at 439.

MAPA provides that the County Superintendent shall hear all controversies relating to tuition application and take testimony to determine the facts. Section 20-3-210, MCA. This procedure was followed. The statute also provides for an appeal of the decision of the County Superintendent to the State Superintendent of Public Instruction, who makes a decision based on the record. This procedure also was followed.

The standard of review for the State Superintendent is found in Rule 10.6.125, Administrative Rules of Montana, (ARM). The Superintendent of Public Instruction has incorporated by reference the Model Rules of the Attorney General for rule making procedure. Pursuant to that procedure, Rule 10.6.101, Scope of Rules, was adopted, and became effective in September, 1982. Subsection (e) says:

“All controversies arising under any other provision of Montana law or federal law for which a procedure for resolving controversies is not expressly prescribed shall be governed by these rules.”

Rule 10.6.125, ARM, sets out the standard of review for the State Superintendent. Subsection (4) of the Rule is virtually identical to Section 2-4-704(2), MCA.

“10.6.125 APPELLATE PROCEDURE-STANDARD OF REVIEW.
“(4) The state superintendent may not substitute his judgment for that of the county superintendent as to the weight of the evidence on questions of fact. The state superintendent may affirm the decision of the county superintendent or remand the case for further proceedings or refuse to accept the appeal on the grounds that the state superintendent fails to retain proper jurisdiction on the matter. The state superintendent may reverse or modify the decision if substantial rights of the Appellant have been prejudiced because the findings of fact, conclusions of law and order are:
“(a) in violation of constitutional or statutory provisions;
“(b) in excess of the statutory authority of the agency;
“(c) made upon unlawful procedure;
“(d) affected by other error of law;
“(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;
“(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; [or]
“(g) because findings of fact upon issues essential to the decision were not made although requested.”

The decision of the State Superintendent was appealed to the District Court. After reviewing the record the court determined that in reaching a different result under the same set of facts the State Superintendent exceeded his authority by substituting his opinion for that of the Frazer School Board and the County Superintendent. We agree. After our review of the record, we conclude it contains substantial evidence supporting the County Superintendent’s findings of fact. The State Superintendent’s order includes findings which are not part of the record, or are irrelevant, or are conjectures or conclusions, rather than facts. Findings of the reviewing agency properly cannot be included as facts when they are not part of the findings below. It is irrelevant that the School District approved a tuition grant for another family who had a child in need of special education. The School Board has broad discretionary authority in this area pursuant to Section 20-5-302, MCA. Further, there is evidence on the record the Board exercised its discretionary authority according to the criteria found in Section 20-5-302, MCA.

The order of the State Superintendent of Public Instruction substitutes the Superintendent’s judgment for that of the Valley County Superintendent of Schools, in violation of Rule 10.6.125, ARM. The reviewing agency must confine itself to an analysis of whether the findings are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, or are arbitrary or capricious or characterized by abuse of discretion.

The District Court in reviewing the order of the State Superintendent of Public Instruction is required to and did adhere to this standard. Thus, it did not err in finding the State Superintendent had exceeded his authority. Therefore the order of the District Court upholding the Frazer School denial of tuition transfer is affirmed.

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

MR. JUSTICE SHEEHY,

dissenting:

The majority opinion is written in complete ignorance of the only real issue in this case: Whether the Frazer School Board considered the factors set out in Section 20-5-302, MCA, in denying Flynn’s out-of-district tuition money. The Board failed miserably and its decision should not be affirmed.

When approval is sought from a school board for out-of-district tuition so that pupils can attend elementary schools, the members of the school board individually are to consider under Section 20-5-302, MCA, the following factors:

(1) The distance and road conditions between the child’s residence and any school of his resident district;

(2) The training center of the child’s parents;

(3) An opportunity to live with his relatives;

(4) Dormitory facilities in the district to be attended;

(5) The living conditions of the child’s family;

(6) The availability of transportation; or

(7) The type of educational program available in the school to be attended.

The Flynn’s appealed the denial by the School Board of their tuition transfer request to the county superintendent. Only two of the factors set out in Section 20-5-302, MCA, were considered by the county superintendent. She found in finding No. 10 that each of the petitioners is provided transportation by the school district to the Frazer school and that each of the petitioners lived nearer to the Frazer school than to the Wolf Point school. None other of the factors set out Section 20-5-302, MCA, were considered by the county superintendent, nor were they considered by the school Board.

If we look at the minutes of the October 14, 1984 meeting of the School Board at which the tuition transfer request was denied, we find the only reasons suggested by the district superintendent to the Board were: (1) “874 monies are theoretical, (2) the principle of quality of education, and (3) this will not set a good precedent.”

Under the testimony of one of the school district board members before the county superintendent, it developed that the Board habitually ignores the requirements of Section 20-5-302. He testified:

“Q. Has the Board had a policy concerning tuition transfers? A. Yes. Our policy since I have been on is that, as long as a person lives on a bus route, we do not grant tuition.”

Mr. Clark was further asked on the factors considered by him as a board member:

“Q. Available transportation, trade center, road conditions, emergency service, relatives in Wolf Point, and the children already started their education in Wolf Point. Are those legitimate reasons for transfer of tuition under the statutes of Montana? A. No, not in my opinion.”

It is obvious that the School Board has set itself above the law, and when tuition transfers are requested, such requests will be denied if the applicant child lives on a school bus route. Yet, availability of transportation is only one of the factors set out in Section 20-5-302, MCA, that the board should consider and pass upon individually.

When the appeal was taken by the Flynns from the decision of the county superintendent further denying the tuition transfer to the State Superintendent of Public Instruction, the State Superintendent saw the flaw in the school hoard proceedings and corrected the same by reversing the county superintendent and directing the school board to provide tuition transfers. The State Superintendent was right as rain.

The majority opinion complains that the State Superintendent “substitutes the superintendent’s judgment for that of the Valley County Superintendent.” He certainly did, and rightly so. The decision of the School Board, and of the county superintendent, were clearly erroneous in view of the reliable probative and substantial evidence on the whole record (Section 2-4-704(2)(e), MCA) and the decision of the School Board and of the county superintendent was arbitrary, capricious, an abuse of discretion and a clearly unwarranted exercise of discretion. Section 2-4-704(2)(f), MCA.

The only stricture on the State Superintendent when an appeal is taken to him from a county superintendent is that he may not “substitute his judgment for that of the county superintendent as to the weight of the evidence on questions of fact.” Rule 10.6.125(4), A.R.M. In this case the superintendent did not substitute his judgment for that of the county superintendent on questions of fact because there were no questions of fact to weigh. The school board and the county superintendent failed entirely to consider the factors required to be considered under Section 20-5-302, MCA for tuition transfers. The State Superintendent was perfectly correct in determining that such procedure before the School Board and before the county superintendent was arbitrary, capricious and required to be overruled.

I would affirm the decision of the State Superintendent, and thus reverse the District Court.

MR. JUSTICE HUNT concurs in the foregoing dissent.


author: MR. JUSTICE SHEEHY

text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. KENNETH LAIRD, Defendant and Appellant.
    No. 86-72.
    Submitted on Briefs Dec. 11, 1986.
    Decided Feb. 9, 1987.
    732 P.2d 417.

      Gary E. Wilcox, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Harold F. Hanser, Co. Atty., Billings, Donna Heffington, Deputy Co. Atty., for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Defendant Kenneth Laird appeals his conviction for sexual intercourse without consent following a jury trial in the Thirteenth Judicial District in and for the County of Yellowstone. We affirm his conviction.

Three issues are raised on appeal:

1. Whether the District Court erred in denying defendant’s request to cross examine the State’s witnesses on an alleged prior assault made against the victim.

2. Whether the District Court erred in admitting the testimony of the state’s expert witness on the probability of sexual assault upon the victim.

3. Whether the District Court erred in admitting as evidence “pornographic” materials found in defendant’s apartment.

In March 1985, nine year old Katherine lived with her mother Melissa and two younger sisters in an upstairs room at the Acme Hotel in downtown Billings. The defendant lived with his common law wife a floor beneath them in room No. 15. Defendant and Melissa had known each other on Billings’ south side for several months before Melissa moved her family to the Acme. Defendant moved to the Acme a month or so after Melissa’s family. Defendant and Melissa were friends, so in the months between defendant’s move and the early part of March, defendant visited Melissa several times a week to drink coffee and talk. Melissa’s children were often present during these visits.

On Friday, March 8, Katherine was on her way home from school when, as she started up the stairs to her apartment, she saw defendant in the hallway. He coaxed her near to him by offering her candy, then grabbed her by the hand, pulled her into his room, and locked the chain lock on the door. Defendant’s wife was not there. Defendant then undressed Katherine and raped her orally, vaginally and rectally. Katherine testified that defendant showed her “dirty” magazines before raping her, telling her that he was going to do to her what the naked people in the magazines were doing. When he finished raping Katherine, defendant told her that if she told on him, he would do it again.

Katherine did not tell anyone what happened for several days. In that period her mother noticed that her daughter had trouble sleeping, was scratching her vaginal area and made frequent trips to the bathroom. Around 1:30 on Sunday morning, March 10, Katherine, who was sleeping near her mother, (who was watching a late movie on T.V.), woke crying. When her mother asked her what was wrong, Katherine continued crying and insisted that if she told, her mother wouldn’t love her anymore. Melissa, aware that something was wrong, asked Katherine if someone had hurt her, and learned that Katherine had been assaulted. In her rage, Melissa went down to defendant’s apartment, broke through his door and attacked him with a kitchen knife. She was arrested and taken to jail until March 15. She did not spend any time alone with her children until that time.

At about 11 a.m. the morning of March 10, a Billings police officer took the defendant’s statement at the Billings Deaconess Hospital. At that time defendant maintained that an unknown lady had attacked him with a knife, and that although she may have lived in the building, he did not know who she was. In another statement to police on March 12, defendant admitted knowing Melissa and her family, but denied any close familiarity with them. He stated that he believed Melissa made up the sexual assault story to cover for her attack on him.

Sometime after the assault defendant moved from apartment 15, where Katherine was raped, to a new apartment in the building, apartment 29. On March 14, defendant consented to a search of his new apartment. The detective explained that the purpose of the search was to find pornography relating to defendant’s sexual assault on Katherine. Seven magazines were confiscated. At trial defendant admitted that the magazines confiscated from apartment no. 29 were the same that he had in his earlier apartment, Number 15.

Katherine was examined by a doctor, Doctor Patrick Sauer on March 13. His conclusion from the examination, as well as from Katherine’s statements to him, was that he was 99.99 percent sure that Katherine had been sexually assaulted. Dr. Sauer testified that Katherine’s hymen was gone and that her vaginal opening was twice the size normal for a child of her age. He further testified that he found three abrasions inside the vaginal opening, each approximately Vi” in length.

On April 23, 1985 Social Worker Susan Kerns of the Yellowstone County Resource Department gave her statement to the police. She had been the social worker assigned to Melissa and her family since August of 1984. Her statement contained two pertinent passages to this appeal:

“Q. (by the police) . . . [H]ad you occasion to talk to the children or have anything to do with the family within a couple of weeks previous [to the assault]?
“A. I saw the family about two weeks earlier.
“Q. And did you notice anything peculiar at that time?
“A. [W]hile I was there I noticed that Katherine getting up from taking a nap and scratching herself in the vaginal area.
“Q. (by the police) . . . Since (the rape) have either of the children mentioned anything new to you?
“A. There is a possibility Katherine may have been assaulted once by a man who picked her up on the street as she was walking home from school.
“Q. Do you recall or do you know when that might have been?
“A. No, and I don’t know what the man’s name was, she did not have the name, ah I, just don’t know how we can track that down.
“Q. Did she, or was she able to describe to what extent the assault occurred?
“A. No.”

The first of the three issues concern these comments by Ms. Kerns. Defendant maintains that it was error for the District Court to prevent defendant from asking Dr. Sauer whether a previous assault could be the explanation for the physical injuries he used in concluding that she had been assaulted. Defendant also argues that the testimony of social worker Kerns on Katherine’s apparent vaginal irritation two weeks before the assault was evidence he should have been able to use to mitigate the adverse physical evidence against him. The implication was that Katherine’s irritation was caused by an earlier assault and that Katherine was fabricating the charge against defendant. The trial court ruled that defense counsel was not allowed to examine any State’s witness regarding any alleged prior assault. We affirm its decision.

Defense counsel intended to bring the matter up for cross examination under Section 45-5-511(4), MCA. Section 45-5-511, MCA, provides in relevant part:

“(4) No evidence concerning the sexual conduct of the victim is admissible in prosecutions under this part except:
“(a) evidence of the victim’s past sexual conduct with the offender;
“(b) evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution.”

It is our view that neither of the above quoted exceptions pertain to the alleged incident of assault. First, this incident was not alleged to have occurred with the defendant and, even were it so alleged, would not have been exculpatory because of the victim’s and defendant’s ages. Second, the alleged assault hardly constituted a specific instance of the victim’s sexual activity. The defendant admittedly knew very little about the speculated earlier assault. The record does not even indicate if the incident was sexual in nature. Ms. Kern’s statement that there was a “possibility” of assault, without further explanation, was an inadequate offer of proof and was insufficient to support any cross examination under the exceptions of Section 45-5-511(4)(b).

Defendant also argues that Dr. Sauer’s opinion testimony on whether there was a rape went to the ultimate issue before the Court and was inadmissible evidence of Katherine’s veracity. Defendant cites the following trial testimony to support his contention:

“Q. (Deputy County Attorney) Based on your examination of this little girl, did you arrive at a diagnosis?
“A. [Dr. Sauer] Based on the information that she gave me, based on her physical exam, reviewing all the information, I feel the diagnosis is that she was sexually assaulted.
“Q. All right. Is that the diagnosis that you placed on your report?
“A. It is on the dictated report, my final impression says “Possible sexual assault.” I think you need to understand that this is, and especially in these kinds of circumstances where I feel it is important to put down what the child tells to you as soon as possible, and I am still waiting for further tests, I will put “possible” until I have reviewed it in my mind and made my final diagnosis.
“Q. Based upon the evidence you had before you at that time, how likely do you feel it was that the child had been sexually assaulted?
“A. 99.99 percent.”

Defendant invites this Court to conclude that when an expert testifies about his findings, the expert is in fact commenting on the weight and credibility of the evidence given by the victim. We do not accept the defendant’s invitation. It is clear that Dr. Sauer was not testifying about Katherine’s veracity. Instead, Dr. Sauer was asked to give his diagnosis of Katherine based upon his experience as a pediatric specialist. The physician can testify as to his clinical impression and give an opinion based upon his experience and first hand observation. State v. Dickens (1982), 198 Mont. 482, 647 P.2d 338. Dr. Sauer said he was 99.99 percent certain Katherine had been sexually assaulted. He did not say he was certain she was telling the truth. He also did not make any conclusions regarding the ultimate issue, i.e., whether the defendant raped Katherine. For the above reasons, defendant’s assertion that the District Court erred in admitting Dr. Sauer’s testimony on the probability of sexual assault is unsupported in law.

The final issue raised by the defendant is whether the District Court erred in admitting as evidence the magazines found in his apartment. Defendant argues that the magazines were inadmissible first because of lack of foundation and second because the probative value of the evidence was outweighed by its prejudicial effect.

Defendant argues that no evidence or testimony was presented establishing that the magazines taken from his second apartment were similar to or were the actual magazines shown to Katherine. Defendant maintains that magazines were admitted for the sole purpose of prejudicing the jury.

The introduction of evidence at trial is controlled by several statutory provisions. A threshold inquiry is whether the evidence is relevant. Rule 401, M.R.Evid. provides:

“Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Relevant evidence may include evidence bearing upon the credibility of a witness or a hearsay declarant.”

The magazines were relevant because they tended to buttress Katherine’s credibility. She had told investigators that she was shown “dirty” magazines and such magazines were found in the search of defendant’s room.

The defendant contends that the evidence was unfairly prejudicial, citing Rule 403, M.R.Evid:

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

The defendant asserts that physical presentation of the magazines at trial was unnecessary. He maintains that the State did not need to admit the magazines as evidence to establish that the magazines were confiscated from his apartment and that the evidence bolstered Katherine’s testimony. In defendant’s view, the magazines were unnecessary evidence admitted solely for prejudicial purposes.

The established rule of law is that a district court’s weighing of potential prejudice against probative value will be upheld absent an abuse of discretion, State v. Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380. We find no abuse of discretion by the trial court in finding that the probative value of the magazines outweighed potential prejudice to the defendant. The magazines were necessary to corroborate Katherine’s testimony. It was within the trial court’s discretion to rule on their admission as physical evidence.

Defendant also questions the sufficiency of the foundation supporting the admission of the magazines. Defendant asserts that although Katherine testified she had been shown magazines, she never testified at trial that the magazines in evidence were those magazines defendant showed her.

Once again this matter is within the trial court’s discretion. The trial court’s determination of the adequacy of foundation should not be overturned unless there is a clear abuse of discretion. State v. Armstrong (1980), 189 Mont. 407, 431- 433, 37 St.Rep. 1563, 1579, 616 P.2d 341, 355. In the instant case, defendant admitted that the magazines presented at trial were the same present in apartment 15 on March 8. Given this admission it is clear the trial court was justified in finding that an adequate foundation had been presented. The trial court did not abuse its discretion by allowing the magazines into evidence.

For the reasons stated herein, the findings of fact and conclusions of law of the District Court are affirmed.

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


author: MR. JUSTICE HARRISON

text:
    TERRY LEE KERR, Plaintiff and Appellant, v. GARY E. WILCOX, Ralph Allen Beck, and John L. Adams, Court Appointed Attorneys, Defendants and Respondents.
    No. 86-419.
    Submitted on Briefs Dec. 18, 1986.
    Decided Feb. 9, 1987
    731 P.2d 1326.

      Terry Lee Kerr, pro se.
    Crowley Law Firm, Ronald Lodders, Gary E. Wilcox, Billings, for defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is a pro se appeal from the District Court of the Thirteenth Judicial District, in and for the County of Yellowstone, State of Montana. Appellant appeals from a summary judgment granted defendants. Appellant had sought actual and punitive damages in the amount of $30,000,000 alleging violation of his civil rights resulting from a civil commitment ordered by the District Court placing appellant in the State Mental Hospital. We affirm the District Court’s summary judgment.

Terry Lee Kerr (appellant) first became involved with the judicial system of the State of Montana in 1981, when charges were filed against him in Yellowstone County by the County Attorney. Two counts were filed, (I) intimidation, a felony, which alleged that the appellant communicated to a female friend a threat to inflict physical harm were she to testify on a criminal charge filed against the appellant, and (II) criminal mischief, a misdemeanor, which alleged that appellant knowingly or purposely injured or destroyed the property of the residence of the female friend.

Resulting from said charges, appellant was arrested and Gary E. Wilcox was appointed to represent him. Based upon the results of a psychiatric evaluation, Mr. Wilcox filed a motion to suspend the proceedings, alleging that the appellant was suffering from a mental disease and did not understand the nature of the charges against him and was unable to assist in his defense. The court granted this motion in December 1981. Mr. Wilcox further made a motion to withdraw as counsel, which was also granted.

As a result of these proceedings, the District Court filed an order of commitment,. In its order the court found that appellant lacked the mental capacity to continue in this proceeding, for he did not understand the nature of the charges brought against him and was therefore unable to assist in his own defense. The order committed the appellant to the custody of the director of the Department of Institutions, and recommended that he be placed in the State Hospital at Warm Springs, Montana, which occurred in December 1981.

Some months later, appellant was adjudged mentally fit to stand trial and was returned to Billings for a jury trial which began on September 12,1982. Mr. Beck, and later Mr. Adams, were appointed to represent appellant in this proceeding. During the course of the trial, expert testimony was presented concerning his mental condition. The jury returned a verdict of not guilty for each count by reason of mental disease or defect. On September 30, 1982, the District Court, pursuant to Title 46, Chapter 14, Part 3, MCA, held a sentencing hearing. At the conclusion of the hearing, the court sentenced appellant to a term of ten years to the Department of Institutions.

In April 1983, the appellant appealed this judgment to this Court requesting that the cause be vacated and the case remanded to the District Court for commitment proceedings under Sections 41-14-301 through 41-14-304, MCA. The grounds for appellant’s action were that instead of being committed to the State Hospital at Warm Springs, he was taken by mistake to the State Penitentiary, and it was necessary thereafter for his counsel to have him released and sent to the State Hospital pursuant to the original commitment.

In October 1983, through agreement of counsel following a hearing, the appellant was released under the condition that he would receive psychiatric treatment in Yellowstone County. A plan was worked out whereby he would live with his sister in Yellowstone County under certain conditions approved by the court.

In this pro se appeal, it is difficult to set forth the issues the appellant desires to cover. Some thirteen complaints were made about counsel Wilcox and are probably also applicable, to some extent, against the other two defendants. We will consider the principal issue, that being whether the District Court erred in granting all three counsels’ motions for summary judgment dismissing appellant’s complaint.

In doing so we will handle each defendant separately. As to Mr. Wilcox, we affirm the District Court’s order granting summary judgment. It is the position of Wilcox that the motion for summary judgment was properly granted and the complaint was justifiably dismissed. We agree. It is clear that this case presents no genuine issue of material fact. See Rule 56(c), M.R.Civ.P.

As previously noted, Wilcox represented appellant for a limited period of time, from November 10, 1981, to December 10, 1981. He could not conceivably be held responsible for representation of the appellant for anything that happened after that period of time.

The complaint filed by appellant alleged that Wilcox, while representing him, violated his. right pursuant to Sections 53-21-115 through 53-21-119, MCA! The District Court properly noted that no proceeding against the appellant y/as takén by the state of Montana pursuant to those statutes, which involve civil commitments for treatment of seriously mentally ill individuals. Here Wilcox represented appellant on criminal charges, and as such was obligated to represent him pursuant !to Titles 45 and 46 of the Montana Code Annotated. Sections 53-21-111 et seq., MCA, are inapplicable to representation of the appellant because they are applicable only to civil proceedings not criminal proceedings. We find no error in the granting of summary judgment by the District Court as to Mr. Wilcox.

As to defendants Beck and Adams they did not appear as counsel of record for the appellant until he had been found capable of standing trial by a psychiatrist at the State Hospital and returned to Billings for trial. At trial in September 1982, the jury returned a verdict of not guilty by reason of mental disease or defect and thereafter the District Court committed, appellant to the custody of the Director of the Montana. Department of Institutions. It should be noted that counsel Beck át that- time objected to this judgment, alleging that it was inappropriate. Thereafter the appellant was mistakenly sent to the State Prison 'instead of the State Hospital.

Shortly afterward,' within, á week, counsel Beck learned of the mistaken placement arid imiñediátéíy contacted counsel for the Department of Institutions in Helena, Montana, the District Judge and the County Attorney. The District Court issued an order within a week of this notification, transferring the appellant to the State Hospital and counsel Beck filed an appeal to the Supreme Court as to the sentence given by the District Court. The District Court opinion granting summary judgment indicates that Beck opposed the sentence under Section 46-14-312, MCA.

During the appeal process the Attorney General agreed with counselors Beck and Adams that it was an improper sentence. This Court vacated the sentence and remanded it to the District Court for a new dispositional hearing, pursuant to Section 46-14-301, MCA. It was at this dispositional hearing that the appellant’s “sentence” to Warm Springs State Hospital was vacated and he was released on specific conditions.

As with Mr. Wilcox, we find that the District Court properly granted summary judgment for Beck and Adams. Here, the party moving for summary judgment showed there was no genuine issue of material fact before the court and the court properly granted summary judgment. See Harlan v. Anderson (1976), 169 Mont. 447, 548 P.2d 613; Rumph v. Dale Edwards, Inc. (1979), 183 Mont. 359, 600 P.2d 163.

The judgment of the District Court in favor of the defendants Wilcox, Adams and Beck is affirmed.

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


author: MR. JUSTICE MORRISON

text:
    JOHN G. CHRISTIANSEN, Plaintiff and Appellant, v. TAYLOR BROTHERS, INC., a Montana corporation, Defendant and Respondent.
    No. 86-391.
    Submitted on Briefs Dec. 4, 1986.
    Decided Feb. 13, 1987.
    732 P.2d 841.

      James J. Serenar, Bozeman, for plaintiff and appellant.
    Clary & Clary, Thomas H. Clary, Great Falls, for defendant and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

John G. Christiansen (Christiansen) appeals the June 17, 1986, order of the Eighth Judicial District Court granting partial summary judgment in favor of Taylor Bros., Inc. We affirm.

There is no controversy concerning the facts relevant to this appeal. Christiansen was an employee of Taylor Bros, from March 1, 1981, through the end of December 1982. At the request of several employees, including Christiansen, the employer entered into a written contract to withhold a specific percent of those employees’ wages for distribution at a later time. Five percent of all amounts earned were to be paid the employee on the first day of December of each calendar year. If the employee left his job before December 1 for any reason other than disability or death, he was to forfeit the five percent retained by the employer. Three percent of all amounts earned were to be paid at the end of each year, apparently in lieu of vacation pay.

Christiansen acknowledged in the lower court that Taylor Bros, entered into the agreement at the request of the employees. He further acknowledged that he received all monies withheld for him under the agreement and that he voluntarily terminated his employment.

On April 1, 1983, Christiansen filed a complaint against Taylor Bros, alleging failure to pay over $5,000 in back wages due and owing, the illegal withholding of eight percent of his wages due and payable and the breach of the implied covenant of good faith and fair dealing. Taylor Bros, filed a motion for partial summary judgment August 21,1985, on the issue of whether Taylor Bros, illegally withheld a percentage of Christiansen’s wages. Following numerous procedural maneuverings, the trial judge determined there to be no public policy against withholding wages at an employee’s request. Partial summary judgment was entered for Taylor Bros.

On appeal, Christiansen contends the withholding violates Montana’s Wages and Wage Protection Act, Sections 39-3-101, et seq., MCA. Specifically, Section 39-3-204(1), MCA, states:

“Every employer of labor in the state of Montana shall pay to each employee the wages earned by such employee in lawful money of the United States or checks on banks convertible into cash on demand at the full face value thereof, and no person for whom labor has been performed may withhold from any employee any wages earned or unpaid for a longer period than 10 business days after the same are due and payable. However, reasonable deductions may be made for board, room, and other incidentals supplied by the employer, whenever such deductions are a part of the conditions of employment, or other deductions provided for by law.”

Christiansen asserts that this statute should be given a liberal construction favoring the employee. When the statute is construed liberally, it becomes apparent, alleges Christiansen, that the wage deduction policy is illegal.

We disagree. Assuming, without deciding, that the statute should be given a liberal construction in favor of the employee, we find no violation. Christiansen requested the deductions. Section 39-3-204(1), MCA, is designed to prevent an employer from depriving an employee of wages at the employer’s instigation, or for the benefit of the employer. Employers cannot deduct an employee’s wages to cover expenses incurred by the employer. For example, the Montana Attorney General has ruled that wages may not be set aside for damages caused by an employee’s negligence, for unauthorized truck mileage or for other expenses incurred by the employee as a result of his employment. 36 Op. Att’y. Gen. 17 (1975).

Deductions voluntarily requested by the employee in his own behalf do not violate statutes such as Section 39-3-204(1), MCA. Department of Labor and Industry v. Asbury Metropolitan Hotel Co. (App. 1963), 80 N.J. Super. 486, 194 A.2d 244. In fact, the Montana Department of Labor recognizes such deductions in its administrative rules.

“HOW DEDUCTIONS AFFECT THE REGULAR RATE
“(1) Amounts deducted from cash wages — general.
“(a) The word ‘deduction’ is often loosely used to cover reductions in pay resulting from several causes:
“(iii) Deductions authorized by the employee (such as union dues) or required by law (such as taxes and garnishments).”

9 A.R.M. 24.16.2533(1) (a) (iii).

Christiansen further contends that an employee cannot voluntarily contract to have deductions not authorized by law withheld from his wages. Again, we must disagree. Christiansen cites two cases in support of his argument, State ex rel. Neiss v. District Court (1973), 162 Mont. 324, 511 P.2d 979, and Hoehne v. Sherrodd, Inc. (Mont. 1983), [205 Mont. 365.] 668 P.2d 232, 40 St.Rep. 1363. However, these cases stand for the proposition that an employee cannot contract away statutory rights enacted for the benefit of the general public.

State ex rel. Neiss, 162 Mont, at 328, 511 P.2d at 981, forbids an employee to waive his right to receive a minimum wage.

“Minimum wage provisions exist for the benefit of the whole public and a claimant of his own accord may not bargain away his statutory minimum wage. It is elementary that a law established for a public reason cannot be compromised by private agreement. Section 49-105, R.C.M. 1947. [Now Section 1-3-204, MCA.]”

Hoehne ensures that an employee receives all overtime wages to which he is entitled. There is no public policy against allowing an employee to voluntarily request that a certain percentage of his wages be set aside for payment at a later date, a type of self-imposed savings plan. Therefore, the contract provisions providing for the deductions at issue are valid.

The decision of the lower court is affirmed.

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


author: MR. JUSTICE GULBRANDSON

text:
    PAUL R. LANDAUER, Plaintiff and Appellant, v. MELFORD KEHRWALD, Defendant and Respondent.
    No. 86-409.
    Submitted on Briefs Dec. 4, 1986.
    Decided Feb. 13, 1987.
    732 P.2d 839.
    Terry A. Wallace, Missoula, for plaintiff and appellant.
    Ellingson & Moe; Jon E. Ellingson, Missoula, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Paul R. Landauer appeals a Missoula County District Court order dismissing his complaint against Melford Kehrwald. The issue on appeal is whether the District Court abused its discretion by dismissing the complaint. We affirm.

In 1981, Kehrwald purchased real property at a sheriff’s sale in Missoula County, Montana, subject to certain statutory rights of redemption. Landauer claimed he redeemed the property from Kehrwald in 1982 but Kehrwald refused to relinquish possession to Landauer. Kehrwald then filed for declaratory relief asking the court to determine that Kehrwald owned the property and that Landauer had not timely redeemed. Kehrwald continued to collect rents generated by the property and refused to pay the property taxes, ultimately paid by Landauer. In April 1985, the court found that Landauer redeemed the property from Kehrwald in 1982 and was entitled to immediate possession. Landauer then filed suit to recover the lost rental income from Kehrwald. Kehrwald counterclaimed for malicious prosecution and included a prayer for punitive damages. Discovery then commenced. Kehrwald filed his first set of interrogatories and requests for production on July 22, 1985. Request No. 3 asked for “Plaintiff’s personal state and federal income tax returns for the years 1980 through 1984.” On September 5, 1985, the court ordered that discovery be completed by October 31, 1985 “unless a party . . . requests otherwise, and good cause is shown . . .” Landauer filed his answers to the interrogatories on October 1, 1985, but failed to respond to the requests for production. Landauer filed his first set of interrogatories on October 11, 1985 but by doing so failed to give Kehrwald the allowed thirty days time to answer before the October 31,1985 deadline for completion of discovery. On November 5, 1986, Landauer moved the court to amend the complaint and add claims for fraud and conspiracy. Landauer also requested an extension of the discovery deadline. Kehrwald filed a motion to compel production of the documents requested (Landauer’s federal and state tax returns) and on November 22, 1985, a hearing was held. Landauer produced cover sheets to the federal returns, but not copies of the actual federal or state returns as requested by Kehrwald. The court ordered Landauer to file the returns within twenty days, but he failed to do so. Kehrwald filed another motion to compel and hearing was held on February 21, 1986. The court again ordered Landauer to file complete copies of his federal and state returns within ten days, and warned that failure to comply would result in dismissal of the complaint with prejudice. Landauer’s attorney apparently misread the order and only filed the federal tax returns within the ten day deadline. On March 28, 1986, Kehrwald moved to dismiss Landauer’s complaint, and noticed the motion for April 11, 1986. Upon receiving the motion, Landauer’s attorney asked Landauer, residing in Colorado, to provide his Colorado returns. The state tax returns were hand-delivered to the court at the April 11, 1986 hearing. The court dismissed Landauer’s complaint with prejudice on April 24, 1986 as a sanction under Rule 37(b), M.R.Civ.P. Landauer obtained new counsel and filed a motion for reconsideration but the court refused to grant the motion.

Rule 37(b), M.R.Civ.P. reads in relevant part:

“(2) Sanctions by court in which action is pending. If a party . . . fails to obey an order to provide or permit discovery, . . . the court in which the action is pending may make such orders in regard to the failure as are just and among others the following:
“(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;” (Emphasis added.)

Rule 37 sanctions exist for the purpose of deterring dilatory parties.

“They provide the trial judge with a way to prevent an excessive back-log of cases. The trial judge is in the best position to know the extent of the back-log and to know which parties callously disregard the rights of their opponents and other litigants seeking their day in court. The trial judge is also in the best position to determine which sanction is the most appropriate.”

Dassori v. Roy Stanley Chevrolet (Mont. 1986), [224 Mont. 178,] 728 P.2d 430, 431, 43 St.Rep. 2113, 2114.

“[W]hen it is not possible for this Court to make a ready, confident, and accurate determination of a party’s good faith in the discovery process, we presume the correctness of the District Court’s action under Rule 37.”

Owen v. F.A. Buttrey Co. (Mont. 1981), 627 P.2d 1233, 1237, 38 St.Rep. 714, 719, citing National Hockey League v. Metropolitan Hockey Club, Inc. (1976), 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747.

In Dassori, we affirmed the lower court’s dismissal of an action in which the plaintiff, an attorney, presented answers to interrogatories and the requested documents at the hearing on the motion to dismiss the complaint some fourteen months after the interrogatories and requests had been received by the plaintiff. As we stated in Owen, 627 P.2d at 1235, this Court follows the recent trend of cases intent upon punishing transgressors rather than patiently trying to encourage their cooperation.

Counsel in the case before us was delinquent in filing his client’s discovery, and twice failed to obey the clear mandates of a court order that he produce his client’s federal and state tax returns for the years requested. The second order gave warning that failure to comply would result in dismissal of the complaint with prejudice. By ignoring the court orders, counsel should have realized he was placing his client’s case in jeopardy. Landauer, according to his affidavit, was informed in 1985 that Kehrwald had requested the production of his “tax returns” and that cover or face sheets of the federal returns would be sufficient. The court found otherwise and ordered Landauer to produce copies of the federal and state returns within twenty days. Again, Landauer failed to comply. Landauer claims he heard nothing about the matter until February 21, 1986, five days before the second hearing on the motion to compel discovery, when he received a letter from counsel advising him to produce his federal returns. He claims counsel told him nothing about any court order to produce the returns. Landauer sent the federal returns to counsel and was advised a month later that Kehrwald had moved to dismiss his claim because he had not produced his state (Colorado) tax returns.

“Counsel should not have been surprised that his client’s case was ultimately dismissed. More importantly, counsel should have realized his duty to the court. A party displaying an attitude of unresponsiveness to the judicial process warrants the imposition of sanctions, including dismissal. As we stated in Dassori, 728 P.2d at 431, the trial judge is in the best positiori to determine the most appropriate sanctions.

Finally, in answer to Landauer’s claim that he complied with the court’s order by producing the state tax returns at the April 1986 hearing, we again quote Dassori, 728 P.2d at 432:

“[A] party cannot cure his dilatory actions by presenting the requested answers and documents at the hearing on the motion to dismiss ...”

The District Court did not abuse its discretion.

Affirmed.

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


text:
    STATE OF MONTANA, DEPARTMENT OF LABOR AND INDUSTRY, LABOR STANDARDS DIVISION, ex rel., Louis P. Vetch and Dar-La Killham, Plaintiffs and Respondents, v. DAVID A. HULMAN, a/k/a Dave Hulman and Prudence Hulman, husband and wife, and partners d/b/a Bronze Boot, Defendants and Appellants.
    No. 86-418.
    Submitted on Briefs Dec. 18, 1986.
    Decided Feb. 13, 1987.
    732 P.2d 843.

      John Houtz, Forsyth, for defendants and appellants.
    Mary Anne Simpson, Labor Standards Division, Helena, for plaintiffs and respondents.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

This is an appeal from the First Judicial District Court’s denial of a motion to set aside a default judgment entered against Dave and Prudence Hulmán, d/b/a Bronze Boot (Hulmans).

Dar-La Killham and Louis Vetch filed wage claims with Montana’s Commissioner of Labor for wages owed them by their former employers, the Hulmans. Killham’s claim was for $500, while Vetch requested $2,625. Hulmans were served April 10,1986, with a notice of opportunity for hearing which explained the wage claims, the applicable statutes and their right to file a written request for a hearing. Copies of the wage claims were attached. Hulmans allege that they contacted the Department of Labor and Industry by telephone regarding the wage claims. Hulmans failed to file a written request for a hearing.

On May 7, 1986, an order of default was executed by the Department of Labor and Industry. The order set forth the amount of the claims owed, $3,125, and the penalty assessed under 39-3-206, MCA, $3,125. The order also explained Hulmans’ right to judicial review of the proceedings. No review was requested. On June 20, 1986, upon the application of the Department, a final order of judgment was entered finding the Hulmans’ indebted to the Commissioner of the Department of Labor in the amount of $6,250, in unpaid wages and penalties. Notice of entry of judgment was filed and served on the Hulmans July 2, 1986. On July 18, 1986, the Hulmans filed a motion to set aside the default. It was denied August 27, 1986.

Meanwhile, the Custer County Attorney’s office recovered bad check restitution from Hulmans as follows:

July 9, 1986 $210.54 to Killham
July 11, 1986 $708.26 to Vetch

Also, Vetch agreed to accept $831 in equipment from Hulmans in lieu of part of the wages owed him. The Department acknowledged these payments and credited the $6,250 judgment accordingly.

Hulmans present one issue for our review. Did the District Court abuse its discretion by denying their motion to set aside the default judgment?

A trial judge’s determination that a default judgment should not be set aside may be overturned upon a showing of “slight abuse” of discretion. Lords v. Newman (Mont. 1984), [212 Mont. 359,] 688 P.2d 290, 41 St.Rep. 1793. The trial judge did not abuse his discretion, even slightly, in this case.

Montana’s Rules of Civil Procedure provide for the setting aside of default judgments under certain circumstances. “Good cause” to set aside the default judgment must be shown. Rule 55(c), M.R.Civ.P. Hulmans contend that good cause to set aside the default judgment exists in this instance for two reasons: first, the pursuance by the State of both administrative and criminal proceedings against Hulmans for the same offense; and second, Killham’s wage claim for an amount greater than what she is owed.

The State is permitted to proceed with both an administrative process and a criminal prosecution against Hulmans. Section 39-3-215, MCA, states:

“Authority of county attorney. Nothing . . . contained [in the Wages and Wage Protection Act] shall be construed to limit the authority of the county attorney of any county of the state to prosecute actions, both civil and criminal, for such violations of this part as may come to his knowledge or to enforce the provisions hereof independently and without specific direction of the commissioner of labor.”

Further, the State has not obtained double recovery from Hulmans. The sums obtained as a result of the criminal prosecution have been credited against the $6,250 judgment.

Any factual dispute with respect to monies owed Killham and Vetch should have been resolved at a hearing before the Commissioner of Labor. Hulmans were given adequate notice of the claims against them and of their right to a hearing on those claims. By failing to request a hearing, Hulmans waived their right to contest the amount of the wage claims.

Rule 55(c), M.R.Civ.P. further provides that a default judgment may be set aside for the same reasons a judgment following trial on the merits may he vacated. Kootenai Corp. v. Dayton (1979), 184 Mont. 19, 26, 601 P.2d 47, 50. Rule 60(b), M.R.Civ.P., sets forth the reasons for setting aside a final judgment, three of which are relied on by Hulmans: fraud; satisfaction of judgment; and “any other reason justifying relief from the operation of the judgment.” Rule 60(b)(3), (5) and (6), MCA.

The basis for Hulmans’ allegation of fraud is the State’s pursuance of both administrative and criminal proceedings against them. We have already addressed this contention. The State properly pursued both avenues of recovery. The State has not attempted to achieve double recovery from the Hulmans. The State has not attempted to intentionally deceive the Hulmans, nor to deprive them of their day in court. There is no fraud warranting the setting aside of the default judgment. See Miller v. Miller (1980), 189 Mont. 356, 364-366, 616 P.2d 313, 318-319.

Hulmans’ contention that the judgment has been satisfied is based on allegations of error in the determination of the amounts due and owing. Hulmans waived their opportunity to contest the amounts when they chose not to request an administrative hearing. The $3,125 penalty is mandated by statute. Section 39-3-206, MCA. The initial judgment entered against Hulmans in the amount of $6,250 was proper. The lower court, relying on the Department’s brief, found that $1739.80 of the judgment had been satisfied. The actual amount to be credited is $1749.80 ($210.54 + $708.26 + $831.00). We therefore amend the final order to reflect the true amount due and owing, $4500.20.

The order is affirmed in all other aspects.

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


text:
    In re the MARRIAGE OF EMIL E. BAHM, Petitioner and Appellant, and ARDYS J. BAHM, Respondent, Cross-Appellant and Respondent.
    No. 86-274.
    Submitted on Briefs Jan. 30, 1987.
    Decided Feb. 13, 1987.
    732 P.2d 846.

      Whalen & Whalen, Michael J. Whalen, Billings, for petitioner and appellant.
    Virginia A. Bryan, Billings, for respondent, cross-appellant and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Both parties appeal the April 3, 1986, order of the Thirteenth Judicial District Court. Petitioner Emil Bahm appeals the portion of the order requiring him to sell or convey title to property located in North Dakota. Respondent Ardys Bahm appeals the denial of attorneys’ fees and finding by the court that the property settlement agreement contains no provision for maintenance. We affirm the April 3, 1986, order of the District Court and dismiss respondent’s appeal as untimely.

A decree of dissolution was entered August 11, 1981, dissolving the parties’ marriage. The decree incorporated a property settlement agreement executed by the parties. Ambiguities in the property settlement agreement caused the current dispute. The agreement provides that Ardys is to receive $175,000 for her interest in the parties’ real and personal property. Such sum included $15,000 in cash at the time of entry of the decree of dissolution, $10,000 within the following year, and any amounts received for the sale of the parties’ Morton County, North Dakota property. Upon default of the buyer, the property was to be resold as soon as possible. The $175,000 was to be paid by February 1, 1992, with no accrual of interest.

Paragraph (8) of the agreement provided for $500 monthly maintenance payments to Ardys to be credited against the $175,000 owed to her. The monthly payments were to terminate upon the happening of any of 3 contingencies: 1) Ardys’ death; 2) Ardys’ remarriage; 3) payment of the first $100,000 owed under the agreement or sale of the North Dakota property.

The buyer defaulted on the contract to purchase the North Dakota property and the property was never re-listed for sale. Emil terminated the $500 monthly maintenance payments to Ardys in February of 1985. Ardys obtained payment for March of 1985 by writ of execution. No maintenance payments have been made since that time.

On December 18, 1985, Ardys filed a motion to modify visitation and for contempt based upon Emil’s refusal to pay maintenance. In addition, Ardys requested that the court order Emil to list the North Dakota property for sale or to quit claim his interest in the property to Ardys. The motions were argued before the court and briefed by the parties.

On April 3, 1986, the District Court entered its opinion and order denying the motions for contempt and modification of visitation, and requiring Emil to list the North Dakota property or in the alternative quit claim his interest to Ardys with the value of Emil’s interest to be credited against the balance owed to Ardys. Each party was required to pay their own attorneys’ fees.

Emil filed a notice of appeal May 5, 1986. Ardys did not file a notice of appeal until June 4, 1986. On the same date, the district judge heard oral argument by the parties on whether the 30 day time limit for appeal should be extended 30 days pursuant to Rule 5, Mont.R.Civ.P., to allow Ardys’ appeal. By order dated June 10, 1986, the District Court granted Ardys’ motion for extension of time. Emil has filed a motion with this Court to dismiss Ardys’ appeal.

Before reaching the issue raised by Emil on appeal we address whether Ardys’ appeal is properly before this Court. Rule 5, M.R.App.Civ.P. provides that the 30 day time limit for appealing from a judgment or an order may be extended by the district court for 30 days upon a showing of excusable neglect. The motion for extension may be filed before or after expiration of the first 30 days. Zell v. Zell (1977), 172 Mont. 496, 565 P.2d 311. In the present case, Ardys timely moved for an extension of the 30 day limit. However, we find the District Court applied an improper standard in granting the extension and reverse the District Court order permitting Ardys’ appeal.

The June 10, 1986, District Court order reads, “Upon Motion of the Respondent, Ardys J. Bahm, and good cause appearing therefore, IT IS HEREBY ORDERED that the Respondent be allowed to file her Notice of Appeal.” The standard to be applied is excusable neglect rather than good cause. Rule 5, M.R.App.Civ.P. The hearing transcript reveals that Ardys’ attorney originally determined not to file a notice of appeal then later changed her mind. The notice of appeal was not filed until the sixtieth day due to counsel’s involvement in a campaign.

Neither counsel’s busy schedule nor her change of mind concerning filing a notice of appeal constitute excusable neglect. In McCormick v. McCormick (1975), 168 Mont. 136, 541 P.2d 765, we held that appellant’s change of mind about filing an appeal is not an extraordinary case for which an extension of time to file an appeal is allowed under Rule 5. It does not matter whether it is counsel or the client who experiences the change of mind concerning the appeal. See Gann v. Smith (CA 5th, 1971), 443 F.2d 352.

Excusable neglect is discussed in 9 Moore’s Federal Practice Paragraph 204.13[l-3] (2d ed. 1985) It is widely held that counsel’s busy schedule is not a basis for a finding of excusable neglect. See e.g. Pinero Schroeder v. Federal National Mortgage Association (CA 1st 1978), 574 F.2d 1117.

We find that the District Court erred in granting an extension of time allowing Ardys to file her appeal. We dismiss Ardys’ appeal and proceed to consider the sole issue raised by Emil:

Whether the District Court improperly affected the title to real property located in North Dakota?

Emil contends that the District Court does not have the power to order him to sell the North Dakota property or in the alternative quitclaim his interest to Ardys. Emil contends that either method contemplates a transfer of real property in North Dakota by court order, thus the District Court is affecting title to property beyond its jurisdiction. We do not agree.

In Gammon v. Christiana, Inc. (Mont. 1984), [210 Mont. 463,] 684 P.2d 1081, 41 St.Rep. 1161, an action was brought in Montana to enforce an Oregon divorce decree which awarded Montana property to the wife. This Court found that the Oregon court had jurisdiction over the parties and was empowered to determine the equities between the parties with respect to marital property. While the Oregon court did not have jurisdiction to directly affect title to Montana property, the decree granting an interest to the wife was entitled to full faith and credit in the Montana courts.

In the present case, the District Court ordered Emil to sell the North Dakota property or to quitclaim his interest to Ardys. The District Court did not directly affect title to property beyond its jurisdiction. The dissolution action gave the District Court the power to determine the equities between the parties including equities with respect to their real property. Further, the property settlement agreement between the parties, incorporated into the dissolution decree, required the North Dakota property to be resold as soon as possible upon default of the original buyer. Emil failed to abide by this provision and pursuant to Ardys’ motion, the District Court is enforcing the decree. We find the order requiring Emil to sell the North Dakota property or to quitclaim his interest to Ardys was within the jurisdiction of the District Court.

The District Court order appealed from by Emil is affirmed.

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