author: MR. JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WALTER HARRY DeGRAW, Defendant and Appellant.
    No. 88-258.
    Submitted on Briefs Sept. 15, 1988.
    Decided Dec. 2, 1988.
    764 P.2d 1290.

      Jeffrey T. Renz, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, C. Ed Laws, Co. Atty., Columbus, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Walter Harry DeGraw, the defendant, appeals the decision of the District Court of the Thirteenth Judicial District, Stillwater County, denying defendant’s motion for a new trial or, in the alternative, a mistrial due to jury misconduct. We affirm in part, reverse in part, and remand for a new trial.

DeGraw raises the following two issues on appeal:

(1) Whether the District Court erred in refusing to grant a new trial or declare a mistrial when, during the trial, the jury foreman learned of defendant’s alleged criminal record.

(2) Whether the District Court erred in refusing to give defendant’s proposed instruction No, 4, instructing that if two conclusions can be reasonably drawn from the testimony, one favoring the defendant’s innocence and the other tending to establish his guilt, the jury should adopt the conclusion of innocence.

On December 8, 1986, DeGraw, the defendant, was charged by information under Section 45-5-202, MCA, with two counts of felony assault. DeGraw’s case proceeded to trial before a jury on Count I on July 27, 1987. The State dismissed Count II for lack of evidence. The jury returned a verdict on July 29, 1987, finding DeGraw guilty of felony assault.

Approximately a week after the verdict, Pierce, a juror who served on DeGraw’s jury, contacted defense counsel and stated that Young, the foreman for the DeGraw jury, informed the jurors during deliberations that he had reliable information from the sheriffs department. Upon learning of possible jury misconduct, DeGraw moved for a new trial. The District Court held an evidentiary hearing on the motion on December 15, 1987.

Foreman Young testified at the hearing that on the day before the jury deliberated, he had been a third party to a conversation in which a cook at a restaurant stated that DeGraw “had a criminal record as long as your arm.” Young also testified that during the deliberations the jurors “were conversing about the credibility of Mr. DeGraw, and I said I had heard some things about Mr. DeGraw . . .” Juror Pierce testified that foreman Young told the jurors before they started deliberations and before the vote was taken that “he had reliable information from the sheriffs department . . . about Mr. DeGraw [and] did we want to hear it . . . .” The jury declined to hear the offered information.

The District Court denied McGraw’s motion for a mistrial or, in the alternative, a new trial, and subsequently sentenced DeGraw to seven years imprisonment for the offense of felony assault and two years for the use of a firearm during the commission of the offense. The District Court suspended seven years of the sentence. DeGraw appealed.

The first issue raised on appeal is whether the District Court erred in refusing to grant a new trial or declare a mistrial when, during the trial, the jury foreman learned of DeGraw’s alleged criminal record.

A defendant’s right to a fair and impartial jury is guaranteed by both our state and federal constitutions. 1972 Mont. Const. Art. II, Section 24; U.S. Const. Amend. VI. Consequently, jury misconduct tending to injure the defendant creates a presumption of prejudice to the defendant. The presumption, however, is not absolute and may be rebutted by evidence showing that prejudice or injury did not occur. State v. Murray (Mont. 1987), [228 Mont. 125,] 741 P.2d 759, 762, 44 St.Rep. 1394, 1397; State v. Eagan (1978), 178 Mont. 67, 79, 582 P.2d 1195, 1202.

Upon reviewing whether a district court erroneously denied a defendant’s motion for a new trial based on jury misconduct, a district court’s ruling is given considerable weight. Eagan, 178 Mont. at 76, 582 P.2d at 1200. This Court, however, is in as good a position as a district court to make this determination when no factual disputes exist as to a juror’s conduct. Eagan, 178 Mont. at 76, 582 P.2d at 1200 (citing People v. Brown (1976), 61 Cal.App.3d 476, 132 Cal.Rptr. 217, 220-21). In this case, no dispute exists as to Young’s conduct. He admitted that he was a third party to a conversation in which a person stated that DeGraw “had a criminal record as long as your arm.” He also admitted that, before the deliberations began, he informed the jurors that he had heard some things about De-Graw. This Court may therefore conduct an independent review after examining the whole record. Eagan, 178 Mont. at 76, 582 P.2d at 1200.

We hold that, under the present set of facts, defense counsel established a presumption of prejudice to DeGraw and the State failed to rebut this presumption. The evidence is uncontroverted that foreman Young was dining at his sister’s restaurant the evening before the jury delivered its verdict and that he was a third party to a conversation at the restaurant in which someone stated that De-Graw “had a criminal record as long as your arm.” The record is also uncontroverted that Young was affected enough by the conversation that the following day prior to the deliberations when the jurors were discussing DeGraw’s credibility, Young informed the jurors that he had reliable information from the sheriff’s department and asked whether they wanted to hear it. Although the jurors declined to hear the offered information, the injury to DeGraw had already occurred when Young heard the prejudicial comments from a third party and then when he informed the remaining eleven jurors that he had reliable information from the sheriff’s department. Undoubtedly, most people are likely to assume that information from the sheriff’s department is not favorable when pertaining to a person who is being tried for felony assault.

Three jurors — Pierce, Myers and foreman Young — were questioned at a hearing to determine whether jury misconduct prejudiced DeGraw. The District Court found that Young considered the information “nothing more than ‘small-town gossip,’ ” and that Young did not allow the information to affect his decision. The District Court then noted that the other jurors did not allow Young to share the information and that Young could not have ‘contaminated’ the rest of the jury by merely mentioning that he had heard something. The District Court, citing Putro v. Baker (1966), 147 Mont. 139, 147, 410 P.2d 717, 721-22, recognized that a juror cannot purge himself merely be declaring that extraneous information did not affect his judgment, but then concluded that “the testimony of these jurors shows that prejudice or injury did not occur.” We disagree.

We stated the applicable law first in 1890 in State v. Jackson (1890), 9 Mont. 508, 24 P. 213, where we held that the State may remove the presumption of prejudice by using the

“testimony of the jurors to show facts which prove that prejudice or injury did not or could not occur. For example, if a juror is temporarily separated from his fellows ... he may show that during such separation he saw or talked to no one, and that no influences were brought to bear upon him or any character. This court, however, has never held, and does not now hold, that, if the contact of the juror with outside, prejudicial influences be clearly demonstrated and uncontroverted, the juror may purge himself by testifying that such influences did not affect his judgment in forming his verdict.”

Jackson, 9 Mont. at 522, 24 P. at 216-17. In a more recent decision, Eagan, a disqualified juror may have made his prejudice known to other jury members. The District Court relied completely on the responses from the challenged juror that he had not discussed the case with the other jurors. We noted that improper conduct is imputed to the entire jury panel when one juror is found guilty of improper conduct. Eagan, 178 Mont. at 78, 582 P.2d at 1201 (citing Kinkaid v. Wade (1966), 196 Kan. 174, 410 P.2d 333, 337). We then held that “[w]e cannot assume . . . that the remainder of the jury panel had been safeguarded from contamination in the absence of some interrogation addressed to those jurors to dispel the possibility that prejudice existed . . . .” Eagan, 178 Mont. at 78, 582 P.2d at 1201.

In the present case, the District Court relied completely on the responses of the three jurors who testified at a subsequent hearing concerning jury conduct. The remaining nine jurors were never polled. The record does not contain any other evidence that would establish that prejudice to DeGraw did not arise. We cannot assume that the entire jury panel was safeguarded from contamination. The presumption of prejudice that is created when uncontroverted evidence establishes that prejudicial statements concerning a defendant reached one or more jurors, is not rebutted when, as in this case, no evidence existed to rebut the presumption other than the testimony of three of the twelve contaminated jurors.

The District Court also stated that “[f]acts more prejudicial on their face than the facts in the case at bar have not warranted a mistrial in other cases.” In light of the three cases the District Court cited, which we review below, we disagree. In State v. Counts (1984), 209 Mont. 242, 679 P.2d 1245, a juror and a key witness for the prosecution, who were acquaintances, had lunch together during the trial. The acquaintanceship between the juror and the witness had been disclosed during voir dire. The District Court and the defense counsel questioned both the witness and the juror because of the appearance of improper conduct, but unlike the present case with DeGraw, failed to find any indication that the luncheon conversation concerned the trial or the defendant in anyway. Counts, 209 Mont. at 244-46, 679 P.2d at 1246-47. The record contained no evidence to dispute the District Court’s finding and we therefore held that no prejudice to the defendant occurred and the appearance of impropriety was not a sufficient basis for reversal. Counts, 209 Mont. at 249-50, 679 P.2d at 1249.

In State v. Gillham (1983), 206 Mont. 169, 670 P.2d 544, the defendant was convicted of attempted deliberate homicide. After the verdict was announced, defense counsel polled the jurors regarding their exposure to media coverage of the trial. One juror admitted to reading a newspaper article before the defendant presented his case. The article summarized the State’s case. The juror testified that it was an accurate and factual report and “about the same” as the admissible testimony already before the jury. Gillham, 206 Mont. at 180-81, 670 P.2d at 550-51. But again, unlike the present case, no evidence was before the court demonstrating that the information was prejudicial or other than what was already before the jury. We agreed that juror misconduct occurred but adopted the reasoning of the Oklahoma court which stated that “the burden of persuasion is on the defendant to show by clear and convincing evidence that (1) the jurors were specifically exposed to media reports which (2) were prejudicial to the defendant. Mere proof that a juror or jury was exposed to factual account of the trial will not meet this burden of persuasion.” Gillham, 206 Mont. at 181, 670 P.2d at 551 (quoting Tomlinson v. State (Okla.Cr.App.1976), 554 P.2d 798, 804). We then held that the defendant failed to meet his burden of establishing the prejudicial nature of the questioned media information. Gillham, 206 Mont. at 181, 670 P.2d at 551.

In State v. Murray (Mont. 1987), [228 Mont. 125,] 741 P.2d 759, 44 St. Rep. 1394, two jurors’ conducts were questioned. After the trial had begun, juror Schaeffer was seen entering the local office of the state Social and Rehabilitative Services (SRS) after evidence had already been shown that SRS was peripherally involved in the case. Evidence was also presented that Schaeffer had, during the course of a conversation with his wife at a restaurant, mentioned the names of the defendant and his children. Juror Schaeffer then testified that he did not discuss the case in public at a restaurant and that he had not formed an opinion as to the defendant’s guilt or innocence prior to jury deliberations. Murray, 741 P.2d at 761-62, 44 St.Rep. at 1396-97.

Juror McCoy’s conduct was also questioned in Murray. During the course of the trial and after evidence of sexual abuse of the children had been presented, juror McCoy made several anonymous phone calls to a county attorney who assisted with the prosecution of the defendant. Without knowing the identity of the caller, the county attorney finally spoke with the caller and listened to her concern that criminal cases involving sexual abuse charges should be closed to the public. The county attorney explained to the caller that sexual abuse evidence was properly admissible in a public trial in the present case. The county attorney later discerned the identity of the caller and informed the trial judge and the defense counsel. Murray, 741 P.2d at 761-62, 44 St.Rep. at 1396-97.

Juror McCoy testified at a subsequent hearing that she did not form an opinion as to the defendant’s quilt or innocence prior to deliberations, that she held no prejudice against the defendant, and that she could be a fair and impartial juror. The county attorney testified that the phone conversation with juror McCoy was basically limited to the propriety of allowing sexual abuse evidence in hearings open to the public. Murray, 741 P.2d at 761-62, 44 St.Rep. at 1396-97.

Unlike the present situation with DeGraw, no prejudicial statements were made by either juror Schaeffer or juror McCoy. We held, however, that the defendant established a presumption of prejudice as a result of juror Schaeffer’s and juror McCoy’s conducts, but that the District Court properly concluded that sufficient evidence existed to rebut the presumption. Murray, 741 P.2d at 762, 44 St.Rep. at 1397.

The District Court, in the present case, cited the above three cases as having facts more “prejudicial on their face than the facts in the case at bar . . . We disagree. In the present case, the evidence is uncontroverted that foreman Young was a third party to a conversation in which someone stated that DeGraw “had a criminal record as long as your arm.” The evidence also established that while the jurors were discussing DeGraw’s credibility, foreman Young mentioned that he had some reliable information from the sheriff’s office. In the above three cases, the jury misconduct presented in each case does not equal the amount of injury cast upon DeGraw by the prejudicial statements made to foreman Young and by him to the remaining eleven jurors during the deliberations. We therefore hold that the State failed to rebut the presumption of prejudice established by DeGraw and reverse the District Court on this issue and remand for a new trial.

The second issue raised on appeal is whether the District Court erred in refusing to give defendant’s proposed instruction No. 4. This instruction reads:

“You are instructed that if the testimony in this case, in its weight and effect, be such that two conclusions can be reasonably drawn from it, one favoring the defendant’s innocence and the other tending to establish his guilt, the jury should adopt the conclusion of innocence.”

The State objected to the instruction arguing that the instruction is confusing and that it is covered by the instruction that includes the presumption of innocence. The District Court refused this instruction stating that it was not an entirely correct statement of the law.

Included in the instructions the District Court gave to the jury were the following:

“Instruction No. 2

“In determining what the facts are in the case, it may be necessary for you to determine what weight should be given to the testimony of each witness. To do this you should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to indicate whether a witness is worthy of belief ....

“Instruction No. 7

“3. The State of Montana has the burden of proving the guilt of the defendant beyond a reasonable doubt.”

“4. Proof beyond a reasonable doubt is proof of such a convincing character that a reasonable person would rely and act upon it in the most important of his own affairs. Beyond a reasonable doubt does not mean beyond any doubt or beyond a shadow of a doubt.”

“5. The defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict. It is not overcome unless from all of the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty. The defendant is not required to prove his innocence.

“Instruction No. 9

“To convict the defendant of FELONY ASSAULT, the State must prove the following element:

“That the defendant purposely or knowingly caused reasonable apprehension of serious bodily injury to STEVE KETCHUM or another person by use of a weapon.

“If you find from your consideration of all the evidence that this element has been proved beyond a reasonable doubt, then you should find the defendant guilty.

“If, on the other hand, you find from your consideration of all the evidence that this element has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

Refusing an instruction, adequately covered by other instructions, is not reversible error. Wheeler v. City of Bozeman (Mont. 1988), [232 Mont. 434,] 757 P.2d 345, 347, 45 St.Rep. 1173, 1176; Burns v. U & R Express (Mont. 1981), [191 Mont. 343,] 624 P.2d 487, 489, 38 St.Rep. 302, 304-05. In the present case, the instructions as a whole adequately informed the jury on the standards addressing the presumption of innocence and reasonable doubt and also gave the jurors guidance in weighing the witnesses’ testimonies. Instruction No. 4 did not add to the court approved instructions. The District Court therefore did not err in refusing instruction No. 4.

Affirmed in part, reversed in part, and remanded for a new trial.

MR. JUSTICES HARRISON, WEBER, SHEEHY and McDON-OUGH concur.


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    THOMAS SHEEHY, Petitioner and Appellant, v. JENNY LEE FERDA, Clerk & Recorder, Chouteau County, Montana, Respondent and Respondent.
    No. 88-489.
    Submitted Oct. 14, 1988.
    Decided Dec. 2, 1988.
    765 P.2d 722.

      Douglas J. Wold argued, Poison, for petitioner and appellant.
    Tracy Axelberg argued, Jardine, Stephenson, Blewett & Weaver, Great Falls, for respondent and respondent.
    Donald A. Ranstrom, President, Montana County Attys. Assoc., Chinook, for amicus curiae.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The author of this Opinion is not related to Thomas Sheehy, the County Attorney of Chouteau County, by blood or marriage and no personal acquaintanceship exists. If a blood or marriage relationship between the author and Thomas Sheehy existed, this author would be precluded from any participation in the cause by reason of our rule and statute on disqualification, adopted on September 13, 1988 (see, [227 Mont. 31,] Advance Sheet, Vol. 42, 759 P.2d No. 3, Section 3-1-803(2), MCA, as follows):

“Any justice . . . must not sit or act in any action or proceeding:

“(2) When he is related to either party or any attorney or member of a firm of attorneys for a party by consanguinity or affinity within the fourth degree, computed according to the rules of law.” Therefore, the author is not disqualified in this case.

Thomas J. Sheehy is the duly elected, qualified and acting county attorney of Chouteau County, Montana. He filed an action in the District Court, Twelfth Judicial District, Chouteau County, for a writ of prohibition, injunction or declaratory relief to stop the submission to the electors at the November 8 general election the question of his recall from office. Sheehy’s petition was denied on September 27, 1988, by the District Court. He appealed to this Court, and after oral argument in the cause, we entered an Order on October 14, 1988, restraining and enjoining the respondent Jenny Lee Ferda, as County Clerk and Recorder of Chouteau County, Montana, and as the Election Administrator of that county, her agents, employees, appointees, and all persons acting by or through her from submitting the proposed recall of Thomas Sheehy to the electors of Chouteau County at the general election to be held on November 8, 1988, to the extent that the same had not then been submitted; and from counting the results of any vote on said recall; and from canvassing or entering upon any records of county or state any purported results of said recall election. The order was issued for reasons of expediency, and this Opinion is intended to supplement and support the issuance of that Order.

It should be understood that Jenny Lee Ferda is the nominal defendant in this case by virtue of her being the incumbent Chouteau County Clerk and Recorder and Election Administrator. She has no official interest in the outcome of this action, except as to the impact it may have upon her duties of office.

The petition to recall Sheehy from his office as county attorney is based upon alleged incompetence in office. The principal issue is whether the allegations of fact upon which the claim of incompetence is based are patently and demonstrably false. Petitioner contends that the allegations of fact are false, and that he is entitled to a writ of prohibition against the recall election. We proceed to examine the issues of fact set forth in the recall petition to determine their patent truth of falsity. Depending upon whether the allegations are patently true or false, we can then proceed to determine the form that relief in the cause should take, if any.

The Montana Recall Act was adopted as an initiative measure by the electors at the general election on November 2, 1976. Parts of the Act were amended by the legislature in 1979. Insofar as pertinent to this case, the grounds for recall are set forth in Section 2-16-603, MCA. It provides:

“(1) Every person holding a public office of the state or any of its political subdivisions, either by election or appointment, is subject to recall from such office.

“(3) Physical or mental lack of fitness, incompetence, violation of his oath of office, official misconduct, or conviction of a felony offense enumerated in Title 45 is the only basis for recall. No person may be recalled for performing a mandatory duty of the office he holds or for not performing any act that, if performed, would subject him to prosecution for official misconduct.”

It is the law that when a petition for recall of an elected public officer is circulated, the petition form must be accompanied by a written statement containing the reasons for the desired recall as stated in the petition. In addition, the truth of purported facts contained in the statement must be sworn to by at least one of the petitioners before a person authorized to administer oaths. Section 2-16-617(4), MCA.

In this case, the petition was accompanied by an affidavit of W. F. Gertson, M.D., Chouteau County Health Officer (it is not clear whether Dr. Gertson signed the petition as county health officer, or used the term to describe himself as the signator). The affidavit of Dr. Gertson on which the petition is based, recited:

“To the Honorable Jenny Lee Ferda, County Election Administrator of Chouteau County.

“I believe Thomas Sheehy, Chouteau County Attorney, should be recalled because of:

“Incompetence in the prosecution of the Richard Kurth family case.

“Growing marijuana is a major crime and it is common judicial practice to punish by arrest, jail, bail if posted, and recommendation of a fine or prison or both.

“Plea Bargaining for the purpose of no prison term for some, short terms for others, no fines for anyone, and altered court dates that kept the public from attending is not in the best interest of justice.

“This type of prosecution will only encourage more drug traffic, and other crimes in Chouteau County.

“If the grower gets approximately Vs of the $5,000,000.00 street value, and it takes 58 days to mature a crop of marijuana; it would earn $1,650,000.00 a crop; if grown since documented in 1986, it means $18,777,000.00. No money for fines??

“This prosecution from the beginning was unfair to our county, state, and federal law enforcement people. For this magnitude of a crime we needed federal attorneys to prosecute the case. The County Attorney received an oral and written request for such.

“I swear that the reasons for this recall contained in this petition are to the best of my knowledge true.

/s/ W. F. Gertson, M.D.

Chouteau County Health Officer

“Subscribed and sworn before me a Notary Public for the State of Montana.

Dated this 6th day of May, 1988.

(SEAL)

/s/ Debra McSweeney

Notary Public”

The stated grounds for the recall petition are incompetence. Under Section 2-16-617, MCA, the petition form had to be accompanied by a written statement containing the reasons for the desired recall. The affidavit supporting the petition is defective. Dr. Gertson swears not to facts within his knowledge, but to the “best” of his knowledge.

An affidavit is a written declaration, under oath, made without notice to the adverse party. Section 26-1-1001, MCA. While courts will uphold affidavits based upon the “best of the affiants knowledge,” or upon information and belief in proper circumstances, here the intent of the legislature is clear: “the truth of purported facts contained in the (recall) statement must be sworn to by at least one of the petitioners” for recall. The allegations must be sworn to from the knowledge of the affiant and not from a lesser basis so that the electors, in voting on the recall petition can rely on the truth of the grounds set forth, as in this case, for the claimed incompetence. In People v. Lennox (1978), 94 Misc.2d 730, 405 N.Y.S.2d 581, it was held that the test of a statement of facts under oath as to its sufficiency is whether it has been drawn in such a manner that it might be the basis of a charge of perjury if any material allegation contained therein is false, as the affiant is held to strict accountability for the truth and accuracy of the contents of his affidavit. As long ago as 1923, Montana adopted a similar test holding that “one of the rules in testing the sufficiency of an affidavit to a mechanic’s lien is whether perjury is assignable upon it.” Gregg v. Sigurdson, et al. (1923), 67 Mont. 272, 277, 215 P. 662, 663.

In the light of the direction of the legislature that the “truth of the purported facts” should be sworn to by one of the petitioners an affidavit based only on the “best” of the affiant’s knowledge is deficient.

The importance of a proper affidavit in this case is magnified by the patently false statements of fact or misconceptions contained in the affidavit on which the petition for recall is based. An added danger in this case is that since Dr. Gertson signed the affidavit as the county health officer, the uninitiated elector might give credence to the statements on the assumption that a county officer knew whereof he spoke.

The Gertson affidavit recites that “. . . it is common judicial practice to punish by arrest, jail, bail if posted, and recommendation of a fine or prison or both.” First, Sheehy, as a prosecutor, has no judicial function to perform. Secondly, it is not common judicial practice to punish a person arrested for crime by jail or providing bail. The purposes of commitment to jail or admission to bail do not presume the guilt or innocence of the charged defendant. To punish by means of bail or commitment to jail before a defendant’s conviction would deprive him of his presumption of innocence and the right to confront witnesses before his conviction. There is no such “common judicial practice” and the statement is patently false.

The statement that “Plea Bargaining ... is not in the best interest of justice” completely belies the fact that plea bargaining is a recognized part of federal and state criminal procedure. One may disagree with the concept of plea bargaining. Many judges and prosecutors do not agree with plea bargaining. It is, however, recognized as a tool that makes possible a quicker administration of burgeoning criminal cases. As far as we are aware, every judge in the state system in this state makes it clear that he or she is not bound by any plea bargain proposed to him or her in the disposition of criminal causes. Rule 410 of the Federal Rules of Evidence expressly recognizes that plea bargains are ongoing, and therefore no plea, offer to plea, plea discussions or related statements are admissible in any civil or criminal proceedings under the Federal Rules where the statements are made in the course of plea discussions between an attorney and the prosecuting officer which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. The evident intent of Rule 410 is to protect the plea bargain process.

Rule 410 of the Montana Rules of Evidence differs from the federal provision by the result is the same: evidence of a plea of guilty, later withdrawn, or statements made in connection with any offer to plead guilty to the crime charged or any other crime is not admissible in any civil or criminal action or proceeding against the party who made the plea or offer. What these rules of evidence tell us is that plea bargaining is a fact of life and that to encourage plea bargaining, statements made in connection therewith are not admissible in any civil or criminal action. Whatever arguments may exist for or against plea bargains, Thomas Sheehy did not invent the process and his right to hold office should not depend upon the existence or the propriety of plea bargaining. Here, the plea bargain for which Sheehy contended and got acceptance, both from the Attorney General’s office and from the federal authorities, was more harsh than the sentences and fines imposed by the district judge in disposing of the defendants, whose cases became the subject of the recall petition. Three county attorneys testified that Sheehy’s plea bargain was good prosecutorial practice.

The further statement in the petition that this type of prosecution will only encourage more drug traffic and other crimes in Chouteau County is purely conclusionary and is not a statement of fact which could be within the knowledge of Dr. Gertson. Again the implication that Sheehy juggled court appearance dates to frustrate public appearances is false.

The statements in the affidavit about the gross receipts of the marijuana are terribly exaggerated. The Attorney General’s investigation concluded that the defendant’s gross receipts were approximately $400,000.00 and not the amounts set forth in the recall petition. Again, Dr. Gertson’s position as county health officer would tend to mislead the uninitiated elector as to the exactitude of the figures set out in the recall petition.

The allegation that the prosecution of the defendants from the beginning was unfair to the county, state and federal government and that federal attorneys were needed to prosecute the case again is incorrect. The United States Attorney testified he was elated with the prosecution of this case and “could not have done better himself.” Sheehy had no power to call in federal attorneys to prosecute this case since the charges were not made in the federal courts.

We determine that the allegations in the recall petition are patently false, misleading, and based on misconception. Sheehy’s competence or incompetence cannot be measured by those statements of purported fact. As a matter of law, the recall petition is insufficient. The Montana Recall Act requires that the charge of incompetence, when it is used for recall, be based on the “truth of purported facts contained in the statement” sworn to by a petitioner. This recall petition falls far short of that legal requirement.

We are fully agreed on this Court that the right of recall of a public officer is an important part of the rights of citizenship in Montana. In a proper case, we would protect that right of recall, and leave it to the voters to determine whether the officeholder should continue in office. The officeholder, however, is entitled to at least a level playing field; if he is to be removed from office, his removal must be based on true statements which demonstrate his incompetence, or any other grounds for which recall may be sought.

We held in Steadman v. Halland (1982), 197 Mont. 45, 54, 641 P.2d 448, 453 that specificity of the alleged facts is an important part of a recall petition. There we said in part:

“Therefore, we hold that it is not enough for a recall petition to allege one of the grounds for recall as set forth in section 2-16-603(3), MCA. The recall petition must also include a clear statement of the alleged acts constituting the grounds for recall. The disputed petition in the case at bar contained no such statement. Consequently, it was defective in form and was properly rejected.”

The respondent has argued, and the District Court agreed, that the question of Sheehy’s recall was political, rather than legal, and that the truth of the allegations was a matter for the electors of Chouteau County to decide. The statutes do not contemplate that the electors will decide the truth of charges made against a public officer in a recall petition. The Recall Act requires truth in the beginning of the process.

Whether the allegations are legally sufficient is a matter of law for a district court to decide. This Court said in Foster v. Kovich (1983), 207 Mont. 139, 150, 673 P.2d 1239, 1246:

“Some state constitutions or statutes provide very broad recall and vest in the electorate the power to determine whether the acts alleged in the petition are grounds for recall. In Montana, however, the legislature has limited the grounds for recall and has given the District Court the power to determine the legal sufficiency of the allegations in the recall petition. The legal sufficiency of the allegations is not left to the electorate. Therefore, a petition may never reach the electorate because it fails to specify acts legally sufficient to constitute grounds for recall under section 2-16-603(3) of the Recall Act.”

For the reasons foregoing, we issued our Order of October 14,1988, removing the recall petition from the electorate, and directing the County Clerk and Recorder not to count any results with respect to the recall and not to canvass or enter upon any records of county or state any purported results of said recall election. We did so by means of an injunction. The petitioner on appeal has argued for a writ of prohibition but we determined that under the applicable statute, injunction was the only proper relief.

Our decision to issue an injunction came from the language of Section 2-16-615(2), MCA. That statute provides that if the election officer refuses to file or to accept any petition for recall which is otherwise proper, an elector may apply to the District Court for a writ of mandamus. On the other hand, if a determination is made that any accepted and filed petition is not sufficient “the court may enjoin certification, printing, or recall election.” The statute is clear. When, as here, the recall petition is deficient, the remedy is by injunction.

For the reasons foregoing, we held on October 14, 1988, and now repeat that the decision of the District Court denying relief to petitioner Thomas Sheehy is reversed; and the language of our order restraining and enjoining any further proceedings by the County Clerk and Recorder as to the said recall petition affecting Thomas Sheehy is hereby confirmed and continued. Let remittitur issue forthwith.

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


author: MR. JUSTICE GULBRANDSON MR. JUSTICE HUNT,

text:
    ASHLAND OIL, INC., d/b/a SuperAmerica, Petitioner and Appellant, v. DEPARTMENT OF LABOR AND INDUSTRY and Labor Appeals Board, Agencies of the State of Montana, and Charles Hyatt, Respondents and Respondents.
    No. 88-242.
    Submitted on Briefs Sept. 9, 1988.
    Decided Dec. 5, 1988.
    765 P.2d 727.

      Francis X. Clinch, Jardine, Stephenson, Blewett & Weaver, Great Falls, for petitioner and appellant.
    Ann Smoyer, Smoyer, Vaznelis & Berry, Karl Nagel, Dept, of Labor & Industry, Helena, for respondents and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Appellant Ashland Oil, Inc. (Ashland) appeals a decision from the First Judicial District, Lewis and Clark County, awarding unemployment benefits to the respondent on the basis that the respondent’s actions did not constitute misconduct within the meaning of the law. We reverse.

Charles Hyatt was employed by Ashland as an assistant manager at its SuperAmerica store in Helena, Montana, from March 1, 1986 to February 12, 1987. One of Hyatt’s duties as assistant manager included the recording of non-sufficient fund checks (NSF) returned by banks. On two separate occasions in or around June of 1986, Hyatt notified the store manager when other employees had checks returned.

In August of 1986, Hyatt ordered some sporting goods equipment for his personal use through one of the store’s suppliers. This was an accepted practice, and employees who took advantage of the practice were expected to pay for the merchandise when it arrived. However, Hyatt did not have sufficient funds to pay for the equipment he ordered, so the amount was billed to the store. This amount went unpaid until an internal audit in December, 1986 revealed the fact Hyatt still had not paid for the goods. The store required Hyatt to pay for the goods and gave him a written warning.

In November of 1986, Hyatt’s bank began returning his personal checks because of insufficient funds in his account. Between November 13, 1986 and the end of December, 1986, Hyatt issued four checks to Ashland. These NSF checks were written to pay for gas and merchandise and to obtain cash. Hyatt recorded the amounts of these checks on the NSF ledger he maintained for his employer. However, the ledger did not list the name of the person issuing the check. Hyatt was notified by both his bank and Check-Rite, Ash-land’s check collection agent, of these returned checks. These checks amounting to $220 were finally paid in late December, 1986.

From December 28, 1986 to February 5, 1987, Hyatt wrote seven more NSF checks to his employer, amounting to a total of approximately $119. Both the bank and Check-Rite again notified Hyatt of each returned NSF check. Check-Rite set up a payment schedule to help Hyatt repay the amounts, but he failed to meet this schedule. Each Friday he promised to come in the next week and pay the amount owing. Finally on February 12, 1987, Check-Rite notified Hyatt’s supervisors of their problem with him. When Hyatt came in to pick up his check that day, he was confronted with the information. He informed his supervisors that he was on his way to pay for the checks. When he returned from Check-Rite, he met with his supervisors. At the conclusion of that meeting, Hyatt’s employment was terminated.

Hyatt filed for unemployment benefits, but his employer objected to the payment of said benefits. Following a hearing on April 6, 1987, the Appeals Referee found Hyatt’s conduct did not constitute misconduct within the meaning of the law and awarded benefits. The Board of Labor Appeals and the District Court both affirmed the findings.

Ashland raises the following issues for our review:

1. Did the District Court err in determining whether Hyatt committed misconduct on the basis of his employer’s conduct?

2. Did the District Court err in holding that Hyatt’s issuance of NSF checks to his employer did not constitute misconduct, even though his conduct violated a Montana criminal statute?

3. Did the District Court err in holding that Hyatt’s admitted violation of the policy of his employer did not constitute misconduct?

4. Did the District Court err in holding that Hyatt did not breach his fiduciary duty by issuing NSF checks to his employer?

Section 39-51-102, MCA, contained the declaration of state public policy with regard to unemployment benefits. In Subsection (3) of the statute, the legislature provides that unemployment benefits are “(t)o be used for the benefit of persons unemployed through no fault. of their own.” Section 39-51-102(3), MCA. The code further provides employees may be disqualified for unemployment benefits when their discharge is due to “misconduct connected with the individual’s work or affecting the individual’s employment...” Section 39-51-2303(1), MCA. Misconduct is defined in Section 24.11.418, A.R.M. as:

“Conduct on the part of the employee evincing such willful or wanton disregard of an employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer. Mere inefficiency, unsatisfactory conduct, failure in good performance as a result of inability or incapacity, inadvertences or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute. (Gaunce v. Board of Labor Appeals, 164 Mont. 442, 542 P.2d 1108, (1974), Boynton Cab Co. v. Neubeck et al., 237 Wis. 249, 296 N.W. Reporter 636, (1941)).”

When reviewing a Board of Labor Appeals’ decision awarding or denying unemployment benefits, the courts are governed by Section 39-51-2410(5), MCA.

“(T)he findings of the board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law.”

In the case of Jordan v. Craighead (1943), 114 Mont. 337, 136 P.2d 526, this Court found that the evidence necessary to sustain the Board’s findings as conclusive must be more than “a mere scintilla.” There must be “(s)ubstantial evidence, — ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Jordan, 136 P.2d at 528. Further, while the court may not consider the preponderance of the evidence the question of whether there is substantial evidence to sustain the findings is one of law. Jordan, 136 P.2d at 528.

Ashland contends in its first issue that the District Court erroneously examined the employer’s conduct in discharging Hyatt to determine whether or not Hyatt was eligible for unemployment benefits. The District Court find Ashland’s disciplinary policy was unclear and that its normal procedure of giving an employee two written warnings was not followed. This Court has previously upheld the Board of Labor Appeals’ examination of conduct, policies and motives of an employer. See Gaunce v. Board of Labor Appeals (1974), 164 Mont. 445, 524 P.2d 1108; Connolly v. Montana Board of Labor Appeals (Mont. 1987), [226 Mont. 201,] 734 P.2d 1211, 44 St.Rep. 587. A reviewing body should remain primarily focused upon whether or not the employee’s actions constitute misconduct, keeping in mind that when the employer allows or condones other instances of similar conduct, the activity may lose the stigma of misconduct under those circumstances.

The record in this case shows Ashland’s policy on bad checks was to allow an employee to pick up the check and avoid the Check-Rite fee on the first occurrence. On the second occurrence an employee had to “deal” with Check-Rite. While it is unclear at what point or number of bad checks an employee would be discharged, it is clear the employer discouraged this conduct and expected the employee to reimburse the employer for the NSF check when the employee became aware of it. Yet, Hyatt issued eleven NSF checks to his employer over a three month period and allowed them to remain unpaid for up to six weeks. Hyatt’s actions clearly went beyond the conduct an employer may reasonably expect from its employee. See Section 24.11.418(2), A.R.M. We do not find any action in the record condoning or allowing Ashland’s employees to pass repeated bad checks without paying for them promptly.

The second issue raised on appeal is whether an employee’s violation of a criminal statute will constitute misconduct as a matter of law, thus prohibiting unemployment benefits.

The Legislature of this state has determined that the issuing of bad checks is a criminal offense. Section 45-6-316, MCA. In making this determination the Legislature requires that the person knowingly issued the bad check. However, realizing the inherent difficulty involved in determining whether or not a person “knowingly” issued the check, Subsection (2) states that the “failure to make good the check or other order within 5 days after written notice of nonpayment has been received by the issuer is prima facie evidence that he knew that it would not be paid by the depository.” Section 45-6-316(2), MCA.

Hyatt admitted at the Appeals hearing that he knew he was incapable of maintaining a checking account without writing NSF checks. He further stated, however, that he did not know when he wrote the checks at issue that his account contained insufficient funds. Because of this claimed lack of knowledge, the Appeals Referee, Board of Labor Appeals and the District Court, all erroneously found Hyatt should not be denied unemployment benefits.

Section 24.11.430, A.R.M. provides that an employee’s violation of law while acting outside of the scope of his employment may or may not disqualify a claimant for benefits. To disqualify an individual, the matter must “impact or affect the ability of the employee to perform his job duties or substantially injure the employer’s ability to do business ...”

Here, Hyatt issued eleven NSF checks, amounting to over $300 during a three-month period, to his employer’s place of business in violation of Section 45-6-316, MCA. Further, when Hyatt was notified to make payment by both the bank and Check-Rite, he took up to six weeks to pay the amounts owing on the checks.

It is clear from the evidence presented that Hyatt’s ability to perform his job as assistant manager was affected. Prior to when he began issuing the checks he had notified his employer when other employees had checks returned. Hyatt knew without being told by his supervisors that they should be notified when an employee abused their privilege of writing checks at the store. However, when he had checks returned he neither notified his supervisors of the problem nor corrected the problem in a timely manner. In his position he was solely responsible for receiving the notices from Check-Rite and “logging” the amounts on a ledger which was submitted to the area manager each month.

The Administrative Rules of Montana in Sections 24.11.418 through .431 identify and define examples of misconduct which warrant denial of unemployment benefits. Example “C” in Section 24.11.420, A.R.M., on dishonesty provides an example of a violation of law constituting misconduct sufficient to deny benefits. In that example, a motel maid, charged with several counts of criminal theft of a motel guest’s property, admitted taking the property and offered to return it. Her employer dismissed her. The rules state this act of misconduct was sufficient to deny the employee benefits.

Here we also have an employee committing repeated acts at the employer’s place of business, directly adverse to the employer’s interests. The employee admits having written the checks, having received notice that the bank did not honor the checks and that despite repeated demands he failed to pay for the checks for up to six weeks. These repeated violations of law, directly adverse to the employer’s interests, constitute misconduct as a matter of law sufficient to deny the discharged employee unemployment benefits.

Appellant’s third issue concerns whether the District Court erred in holding Hyatt’s admitted conduct in violating his employer’s policy did not constitute misconduct. The District Court found Ashland would allow an employee two NSF checks, but found the record was unclear on “whether a third offense would result in the employee’s discharge.” The court stated,

“(s)ince Ashland had been so casual in the past about permitting employees to bounce checks, it is difficult to characterize Hyatt’s behavior as a ‘willful or wanton act which demonstrates a disregard of the employer’s interest.’ ”

We disagree.

In his discharge statement signed February 18, 1987, Hyatt acknowledged he had received one written warning relating to the reason for his discharge, that he was discharged for violation of a company rule or policy, that he actually violated that rule or policy, that he was aware of the rule or policy when he violated it, and that the rule or policy was contained in a handbook. The handbook was not made a part of the evidence before the Board, but other evidence showing Hyatt’s awareness of the policy was introduced.

In his duties as assistant manager, Hyatt had notified the store manager when other employees had checks returned NSF. He admitted that when he had notified the store manager of other employees’ NSF checks, he was told the company did not want their employees to make a habit of this type of behavior. Also, when asked at the hearing before the Appeals Referee what he thought would happen if his NSF checks were reported to his supervisors, Hyatt replied “(they) probably would have thrown me out.”

The most significant evidence regarding Hyatt’s willful disregard for his employer’s policy was the fact he allowed the checks to go unpaid for such long periods on two separate occasions. When an employee floats a large number of checks on his employer for long periods of time he clearly exhibits a willful disregard of the employer’s interest. Such actions show a willful disregard for the “standards of behavior which the employer has the right to expect of his employee . . .” and warrant a denial of unemployment benefits. Section 24.11.418(2), A.R.M.

Appellant’s fourth issue is whether the District Court erred in finding Hyatt did not breach his fiduciary duty to his employer by issuing the bad checks at his employer’s place of business. Having previously found Hyatt should be denied unemployment benefits, we find we need not address this issue.

We find Ashland did not allow or condone conduct of the extent Hyatt exhibited; Hyatt’s conduct was misconduct as a matter of law; and by Hyatt’s admitted awareness and violation of his employer’s policies and his willful disregard for his employer’s interests, Hyatt can only be found to have caused his own termination and unemployment benefits should have been denied.

Reversed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON and McDONOUGH concur.

MR. JUSTICE HUNT,

dissenting:

I dissent. The majority has set forth their dislike for the practice of bad check writing. This dislike will be applauded by reasonable people the world over and I join in that applause. But I cannot agree with the majority’s apparent holding that all those who write checks without sufficient funds in the bank are unable to perform their jobs as “a matter of law.”

Even Ashland Oil, the employer, did not go that far. Its area manager said, “I could have accepted one or two returned checks. There would have been no problem. I’ve seen employees return checks before. It’s excusable. It’s human error.” The employer, in fact, gave a letter of reference to the employee, and while it was less than glowing as to his management skill — “until he gains some additional experience and maturity” — the letter of recommendation did point out that Hyatt was a “very good worker . . . whose determination, hard work and initiative, will be of value to him and his future employer.”

The hearing examiner who heard the case did not find that Hyatt was discharged for misconduct within the meaning of the Montana Unemployment Insurance law. The Board of Labor Appeals upheld that finding. The District Court reviewed the file and after a full and complete discussion of the law and facts concluded, in the language of the rule, that “(t)he statutory term misconduct shall not be literally applied so as to operate as a forfeiture except in clear instances of willful or wanton misconduct by the claimant which affects the employer’s interest.” Section 24.11.418(6), A.R.M. The District Court upheld the Board of Appeals and this Court should do the same. Writing a check without knowledge of sufficient funds is not a wholesome practice. It does not, however, constitute misconduct as a matter of law within the meaning of the Montana Unemployment Insurance act.


author: MR. JUSTICE GULBRANDSON MR. JUSTICE WEBER,

text:
    RICHARD HARRINGTON, Plaintiff and Appellant, v. LaBELLE’S OF COLORADO, INC., d/b/a LaBelle’s Catalog Showrooms, a Colorado corp., and David Heine, d/b/a Billings Sweeping Service, Defendants and Respondents. LaBELLE’S OF COLORADO, INC., d/b/a LaBelle’s Catalog Showrooms, a Colorado corp., Third Party Plaintiff and Appellant v. BILLINGS SWEEPING SERVICE, Third Party Defendant.
    No. 88-57.
    Submitted on Briefs Aug. 4, 1988.
    Decided Dec. 6, 1988.
    765 P.2d 732.

      Datsopoulos, MacDonald & Lind, Ronald B. MacDonald, Missoula, for Harrington.
    Herndon, Harper & Munro, Rodney T. Hartman, Billings, for LaBelle’s.
    Anderson, Brown, Gerbase, Cebull, Fulton, Harman & Ross, Steven J. Harman, Billings, for Billings Sweeping Service.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Richard Harrington and third-party plaintiff LaBelle’s appeal from a summary judgment granted in favor of Billings Sweeping Service (the Service) in the District Court for the Thirteenth Judicial District, Yellowstone County, Montana. We affirm.

The issues are:

1. Did the District Court err in granting summary judgment in favor of the Service on the issue of negligence based on the rule of contractor nonliability?

2. Did the District Court err in granting summary judgment in favor of the Service on the issue of strict products liability under Section 402A, Restatement 2d of Tortsl

3. Was the dismissal of LaBelle’s third-party complaint proper?

This action arises out of a bicycle accident which occurred in the parking lot of LaBelle’s in Billings on July 21, 1984. Richard Harrington was riding his bicycle through the lot at approximately 9:00 p.m. when he struck a speed bump, was thrown from the bike, and suffered severe head injuries. Harrington sued LaBelle’s alleging that the speed bumps were improperly designed, negligently maintained, and inadequately marked to warn of their inherent latent danger. LaBelle’s filed a third-party complaint against the contractor who had installed the bumps, alleging that the contractor was solely responsible for the design, construction and installation of the speed bumps. The third-party complaint did not allege the parties had contracted for painting the speed bumps. LaBelle’s sought contribution or indemnity in the event that it was found to be liable. Harrington then filed an amended complaint to include the contractor, Billings Sweeping Service, seeking recovery on theories of negligence and strict products liability. On motion, the District Court granted summary judgment to the Service and dismissed LaBelle’s third-party complaint.

As to the negligence claim, the District Court found the Service not liable based upon the rule of contractor nonliability also known as the “Accepted Work Rule Doctrine,” which has been adopted by this Court. Also, no cause of action would lie under the products liability claim since the court found speed bumps are not a “product” for purposes of Section 402A, Restatement 2d of Torts. Mr. Harrington and LaBelle’s appeal from this order.

I

Did the District Court err in granting summary judgment in favor of the Service on the issue of negligence based on the accepted work rule doctrine?

Montana has adopted the rule that independent contractor will not be liable to third-parties for injuries which occur after the contractor has completed the work and the work has been turned over to and accepted by the employer. The accepted work rule doctrine was first recognized in Montana in Ulmen v. Schwieger (1932), 92 Mont. 331, 12 P.2d 856. The rule is based on the lack of any duty owing by the contractor to the injured third-party at the time of the injury. Instead, the person employing the contractor is substituted as the responsible party. The accepted work rule doctrine established in Ulmén has been upheld and applied in related Montana cases since then. See Olson v. Kayser (1973), 161 Mont. 241, 505 P.2d 394; Hannifin v. Cahill-Mooney Construction (1972), 159 Mont. 413, 498 P.2d 1214.

On appeal Mr. Harrington asks this Court to reconsider the rule. He argues that the facts and equity of this case compel us to revise the long-standing rule of Ulmén or to carve out exception to that rule. He contends that Ulmén does not represent the modern view and cites cases from jurisdictions which have extended contractor liability to foreseeable injury caused by negligent construction. This is not the rule in Montana, however, and we decline to depart from the line of cases which have established otherwise. In doing so, we direction our attention to the “facts” and “equity” of this case.

LaBelle’s is located at a busy intersection in Billings. To avoid the traffic signal at that intersection, traffic frequently cuts across La-Belle’s parking lot between 24th and Central. To slow and discourage this traffic, LaBelle’s manager contracted with Billings Sweeping Service to install two speed bumps in the parking lot. The record conflicts as to who solicited whom, but a work order was processed on May 3, 1984, and construction was completed on or about that date.

The bumps were made of asphalt, the same material as the parking lot, and were not marked or painted in any way so as to distinguish them from the parking lot’s smooth surface. There is disagreement in the depositions about who was responsible for the design and placement of the bumps and why the speed bumps did not get striped, painted, or otherwise marked.

Despite the conflict in facts surrounding the speed bump construction, there is no doubt that the Service had turned over, and La-Belle’s had accepted, the contracted work. Upon completion, La-Belle’s paid the Service for the job, and the Service completely removed itself from the premises prior to the accident, which occurred approximately 70 days thereafter. There is no evidence that LaBelle’s requested any follow-up work or made any complaints to the Service prior to the accident. These facts substantiate the District Court’s findings that the Service had turned over and LaBelle’s had accepted the work on the speed bumps, so as to satisfy the accepted work rule doctrine.

Regarding Mr. Harrington’s plea in equity, we note that he has settled with LaBelle’s for $125,000. We find little merit in his argument that he will be left “without recovery” unless this Court revises or finds exceptions to the accepted work rule doctrine as established in Ulmén. For these reasons, we hold that the District Court did not err in granting summary judgment to the Service on the issue of negligence.

II

Did the District Court err in granting summary judgment in favor of the Service on the issue of strict products liability under Section 402A, Restatement 2d of Torts?

Mr. Harrington contends that the Service should be held strictly liable as the manufacturer of a defective and unreasonably dangerous product. He argues that a speed bump should be recognized as a “product” for purposes of Section 402A Restatement 2d of Torts.

To date, there are no Montana cases which discuss the meaning of “product” for a strict products liability case. In refusing to recognize a speed bump as a product, the District Court relied on policy considerations set forth in the case in which Montana adopted the doctrine of strict liability. See Brandenburger v. Toyota Motor Sales (1973), 162 Mont. 506, 513 P.2d 268. In that case, this Court said:

“Inherent in these policy considerations is not the nature of the transaction . . . but the character of the defect itself . . . and the unavailability of an adequate remedy on behalf of the injured plaintiff.”

Brandenburger, 513 P.2d at 273 (quoting Escola v. Coca Cola Bottling Company of Fresno (1944), 24 Cal.2d 453, 150 P.2d 436).

Based on our review of these policy considerations, we agree with the District Court that a speed bump is not a “product” for purposes of Section 402A strict liability. A major goal of the doctrine was to afford the plaintiff a remedy in the face of an extremely complicated manufacturing industry, where the inability of the plaintiff to pinpoint a negligent act or a negligent party could preclude recovery altogether. As was pointed out by the District Court, there is no problem of a remote manufacturer or the inability to trace a specific negligent act in this case. Our determination in no way affects Mr. Harrington’s existing settlement agreement with LaBelle’s, so he is not left without adequate remedy. We hold that the District Court did not err in granting summary judgment on the issue of strict products liability.

Ill

Was the dismissal of LaBelle’s third-party complaint proper?

Montana law does not allow a claim for contribution or indemnity to be asserted by a defendant against a co-defendant who is not liable to the plaintiff. Section 27-1-703, MCA. See State ex rel. Deere and Company v. District Court (Mont. 1986), [224 Mont. 384,] 730 P.2d 396, 400, 43 St.Rep. 2270, 2274. Since we have affirmed the District Court’s granting of summary judgment in favor of the Service, it follows that LaBelle’s claim for contribution or indemnity must fail. We conclude that the District Court properly dismissed LaBelle’s claim. We affirm.

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

MR. JUSTICE WEBER,

dissenting:

The majority relies upon a longstanding legal doctrine to bar recovery from Billings Sweeping Service without justifying its application to this particular case or to modern theories of liability in general. While it is generally appropriate to follow the rulings of past decisions, I believe that this Court should examine the reasoning behind the rule of contractor nonliability before applying it to this case.

Historically, the “accepted work doctrine” has been justified on several groimds. These include: (1) a lack of contractual privity between a building or construction contractor and injured third parties; (2) that there would be no end to a contractor’s litigation unless liability ceased after the work was accepted; (3) the true proximate cause of a third party’s injury is the owner’s negligence in maintaining the property; and (4) public policy confines liability for negligent construction of a complicated structure to the owner or contractee. 58 Annot., A.L.R.2d 869, 870 (1958). These justifications are incorporated into Montana law in the case of Ulmen v. Schwieger (1932), 92 Mont. 331, 12 P.2d 856, which is cited by the majority as support for its holding that a contractor may not be held liable to an injured third party. I question whether these are adequate grounds for the majority’s holding in light of our general rules of negligence in Montana.

Other jurisdictions have held that the principles supporting the rule of contractor nonliability do not mesh with modern theories of negligence. The leading case in which the District of Columbia Circuit refuted these justifications for contractor nonliability is Hanna v. Fletcher (D.C.Cir. 1956), 231 F.2d 469. The court reasoned that the antiquated justifications based on lack of privity had no place in modern theories of liability as set forth in MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050. In MacPherson, the question was whether an automobile manufacturer could be held liable to a consumer for injuries resulting from a sudden collapse of the car due to defective wood used in one of its wheels. Judge Cardozo responded that:

“If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.”

111 N.E. at 1053.

In Hanna v. Fletcher, the court considered a claim for personal injury by a plaintiff who sued a construction contractor for negligent repair of a stair railing on an existing building. Several years after the repair work was completed and paid for, the railing collapsed during use and caused the plaintiff to fall into the stairwell, which resulted in serious injuries. The court concluded there was no reason to differentiate between the manufacturer of goods and a building contractor “for in each case negligent conduct often may be expected to result in injury to one reasonably foreseen as a possible user.” Hanna, 231 F.2d at 474. The court applied Judge Cardozo’s analysis and held the construction contractor liable for his negligent repair of the railing.

This Court has followed MacPherson and allowed recovery for negligence asserted against the manufacturers of automobiles [see Rix v. General Motors Corp. (Mont. 1986), [222 Mont. 318,] 723 P.2d 195, 43 St.Rep. 1296] and manufacturers of farm machinery [see Brown v. North American Manufacturing Co. (1978), 176 Mont. 98, 576 P.2d 711]. We concluded in those cases that it was no longer appropriate to bar recovery on theories such as those identified in connection with the accepted work doctrine, that is a lack of contractual privity, or that there would be excessive litigation, or similar theories. Given our rules of liability in cases where negligent construction by a manufacturer may cause injury, I see no reason why we should not extend that reasoning to apply to negligent construction by a contractor. Certainly the potential for injury due to negligent construction by a contractor is just as great as with the negligent manufacturing of a consumer good. I conclude that this Court should have reviewed the reasoning upon which the denial of liability is founded. While the facts presently before us may indicate a rather weak claim on the part of Mr. Harrington with regard to the proving of elements of negligence against Billings Sweeping Service, there is a proper legal theory which should allow him to continue with his cause of action.

I recognize there may be limitations which should be placed upon a theory of recovery against a building contractor. But an absolute bar to liability is not appropriate. The majority has failed to explain why a contractor should not be responsible for its own negligence. For this reason, I believe that this Court should have evaluated what I see as an outmoded concept to redefine our rules of liability in a case such as this. Thus, liability would more appropriately be predicated on the presence or absence of negligence on the part of the various parties involved, including the construction contractor.

MR. JUSTICE HUNT concurs in the foregoing dissent of MR. JUSTICE WEBER.


text:
    In re the MARRIAGE OF CHRISTINE BOZARTH MILESNICK, Petitioner and Respondent, and THOMAS OWEN MILESNICK, Respondent and Appellant.
    No. 88-100.
    Submitted on Briefs Sept. 1, 1988.
    Decided Dec. 8, 1988.
    765 P.2d 751.

      James A. Johnstone, Bozeman, for respondent and appellant.
    John P. Atkins, Bryan & Atkins, Bozeman, for petitioner and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Both parties in a dissolution action appeal the property distribution ordered by the District Court of the Eighteenth Judicial District, Gallatin County. The husband also appeals the District Court’s refusal to allocate dependency exemptions between the parties. We affirm.

The husband raises the following issues on appeal:

1. Whether the District Court abused its discretion by refusing to allocate the tax exemptions for the parties’ dependent children.

2. Whether the District Court abused its discretion in valuing the husband’s interest in a trucking partnership.

3. Whether the District Court abused its discretion by failing to include the ranch operating debt when it computed the net worth of the husband’s estate.

On cross-appeal, the wife adds the following issue for review.

1. Whether the District Court abused its discretion by discounting the value of the parties’ stock in the family ranch corporation.

Christine and Thomas Milesnick were married on September 15, 1979. They were separated on April 1, 1986. During the marriage, two sons were born. Thomas also adopted Christine’s son of a previous union.

The husband brought substantial assets into the marriage, including a trucking partnership, a two-story home, the entire interest in 106 acres, and a one-half interest in 348 acres. The real property was heavily encumbered.

The other interest in the 348 acres was owned by the husband’s parents. In 1980, the parents incorporated their holdings. Both Thomas and Christine were given, as gifts, shares in the corporation. Thomas received 2,284 and Christine received 1,790 of the total 40,000 outstanding shares.

Throughout the marriage the couple engaged in the farming and ranching business. The wife did not work outside the home and ranch until February, 1986. At the time of the dissolution hearing, she was employed as a secretary and swimming instructor.

The wife petitioned for dissolution on August 29, 1986. A two-day hearing was held on May 28 and 29, 1987, after which the District Court issued findings of fact, conclusions of law and a decree of dissolution with an accompanying memorandum.

The District Court awarded the parties joint custody of the children and ordered the husband to pay child support of $636 for 10 months each year. The court recommended that the children reside with the wife during the school year and at least one month each summer but declined to specifically order such an arrangement, leaving it to the parties to work out the details themselves.

The trial court divided the property of the parties by comparing the net value of the husband’s separate assets as of 1979, the time of the marriage, and 1986, the time of the filing of the petition for dissolution. The court concluded that the husband’s property had depreciated by $75,940 over the seven-year period. The court deducted the amount of depreciation from the value of the marital assets, leaving a net of $94,334. It then split that number in half, awarding each party 50 percent or $47,167. Determining that the marital property, consisting mainly of stock in First Security Bank and Milesnick Ranch, Inc., should remain with the husband, the court ordered Thomas to pay a monetary sum to Christine as her share of the property award. Thomas was to pay an initial remittance of $30,000 with the balance to be paid in four annual installments of $4,300.

Unhappy with the outcome of the decree, both parties moved the District Court to amend the findings of fact and conclusions of law. The court denied all but one of the parties’ motions to amend. The amendment adopted, that allowing cost of living increases for child support, is not at issue here. The majority of the amendments denied comprise the topics of the present appeal.

The first issue for our consideration concerns whether the District Court abused its discretion by refusing to allocate the federal income tax exemptions for the parties’ dependent children. Resolution of this question involves a two-step analysis. We must first examine whether the Montana state courts have jurisdiction to allocate the exemption. If the state courts have jurisdiction, we must then determine whether the District Court abused its discretion by failing to make the allocation.

Until the Tax Reform Act of 1984, there was general agreement that the state courts had the power to assign the dependency exemptions for the children of parties to a dissolution action. See, e.g., In Re the Marriage of Greeler (Minn.Ct.App. 1985), 368 N.W.2d 2; MacDonald v. MacDonald (1982), 122 N.H. 339, 443 A.2d 1017; Niederkorn v. Niederkorn (Mo.Ct.App. 1981), 616 S.W.2d 529. The pertinent statute at that time, 26 USC Section 152(e) (1976), provided that the custodial parent received the exemption unless the dissolution decree gave the exemption to the noncustodial parent and that parent provided at least $600 toward the support of the child during the year. If the divorce decree was silent on the matter, the noncustodial parent was entitled to the exemption if he or she provided $1,200 or more in child support during the year and the custodial parent could not establish that he or she contributed more.

The dependency exemption provision of the Internal Revenue Code was originally enacted in 1967. Its aim was to provide a vehicle by which divorced parents could negotiate the exemption between themselves without involving the Internal Revenue Service (Service). See, Comment, Tax Planning in Divorce: Both Spouses Benefit from the Tax Reform Act of 1984 (1985), 21 Willamette L.Rev. 767, 801.

Unfortunately, the statute did not promote amicable parental settlements. The Service continually found itself caught in battles over which parent was entitled to the exemption. Therefore, in 1984, Congress amended the law.

The present statute provides that the parent with physical custody of the child for the greater part of the year shall take the exemption unless (1) he or she signs a waiver that releases the exemption to the noncustodial parent or (2) the noncustodial parent received the right to claim an exemption in a divorce decree dated prior to January 1, 1985 and he or she contributed at least $600 per year in support. 26 U.S.C. Section 152(e). There is no mention in the statute, as amended, of the effect of the allocation of exemptions in a decree of dissolution issued after January 1, 1985.

A small number of courts have held that the 1984 amendments divested the states of jurisdiction to award dependency exemptions in conjunction with dissolution actions. Lorenz v. Lorenz (1988), 166 Mich.App.58, 419 N.W.2d 770; In Re the Marriage of Vinson (1987), 83 Or.App.487, 732 P.2d 79, review denied, 303 Or. 332, 736 P.2d 566. The majority of courts that have considered the question, however, have held that the amendments to 26 USC Section 152(e) were enacted merely to promote administrative efficiency and were not intended to encroach upon the state’s power to determine financial matters between the parties in a dissolution action. Hughes v. Hughes (1988), 35 Ohio St.3d 165, 518 N.E.2d 1213, cert. denied, _U.S._, 109 S.Ct. 124, 102 L.Ed.2d 97; Cross v. Cross (W.Va. 1987), 363 S.E.2d 449; In Re the Marriage of Lincoln (Ct.App. 1987), 155 Ariz. 272, 746 P.2d 13; Fudenberg v. Molstad (Minn.Ct.App. 1986), 390 N.W.2d 19.

The majority’s position is supported by the explanation of the changes given by the Staff of the Joint Congressional Committee on Taxation.

“The present rules governing the allocations of the dependency exemption are often subjective and present difficult problems of proof and substantiation. The Internal Revenue Service becomes involved in many disputes between parents who both claim the dependency exemption based on providing support over the applicable thresholds. The cost to the parties and the Government to resolve these disputes is relatively high and the Government generally has little tax revenue at stake in the outcome. The committee wishes to provide more certainty by allowing the custodial spouse the exemption unless that spouse waives his or her right to claim the exemption. Thus, dependency disputes between parents will be resolved without the involvement of the Internal Revenue Service.”

H.R. Rep. No. 432, Part II, 98th Cong., 2d Sess. 1498-99, reprinted in 1984 U.S. Code Cong. & Ad. News 697, 1140.

The above report persuades us that the 1984 changes were not enacted to strip state courts of the power to allocate dependency exemptions between parties to a dissolution action. The report demonstrates that the purpose of the amendments was to reduce the Service’s involvement in litigation over questions of dependency exemptions. We see no reason why a state court’s allocation of the deductions in a decree of dissolution will interfere with this goal. If a custodial parent defies a district court’s order by refusing to sign the waiver of exemptions, the noncustodial parent can enforce the decree by way of a contempt action in state court. The Service need not be involved in any aspect of the dispute.

Having decided that the District Court had the jurisdiction to allocate dependency exemptions, we must now determine whether the court abused its discretion by refusing to do so. We hold that the assignment of dependency deductions is a factor a district court may consider when ordering child support. It is not an abuse of discretion, however, for a district court to refuse to award the exemptions to either party.

A failure to assign the deductions to the noncustodial parent does not prevent that party from ever receiving the exemptions. The tax code provides that the custodial parent may voluntarily relinquish the exemptions to the other parent by signing a waiver. This provision provides flexibility. It allows the parties to examine, on a yearly basis, their respective tax burdens to ascertain which party would benefit most from the exemptions. The District Court may not wish to interfere with this flexibility by ordering the custodial parent to execute a waiver or be subject to contempt.

Furthermore, by providing that the custodial parent may claim the exemption unless he or she executes a release, the statute has given that parent added leverage to ensure that the noncustodial parent pays the court-ordered child support. By leaving the exemptions in the hands of the custodial parent, the district court gives the noncustodial parent an incentive to keep current with his or her child support payments. It also gives the custodial parent added bargaining power at tax time.

In summary, we hold that the 1984 amendments to the federal statute regarding exemptions for dependent children of divorced parents did not divest state courts of jurisdiction to allocate the exemptions in a decree of dissolution. A district court may assign the exemptions if it finds that the allocations would serve the best interests of the children and the parties. However, a district court’s refusal to award the exemptions does not constitute an abuse of discretion.

The next issue called to our attention concerns the value of the husband’s interest in a trucking partnership. The husband argues that no substantial credible evidence exists to support the partnership value found by the District Court.

In 1977, the husband formed a partnership with another individual. The partnership purchased a cattle truck and a Public Service Commission permit authorizing the commercial hauling of livestock throughout the state. In 1984, the truck was destroyed. The only partnership asset that remained at the time of the dissolution was the PSC permit.

The husband testified that the partnership was worth $2,000. The wife did not testify as to the value of the partnership, although she estimated its worth as $2,500 in her proposed findings of fact and conclusions of law. The District Court valued the partnership at $10,000. The court based its valuation on the tax returns of the parties, such returns showing a partnership gain three out of five years.

A district court has far reaching discretionary powers to determine the value of property in a dissolution action. Its valuation can be premised on expert testimony, lay testimony, documentary evidence, or any combination thereof. See In Re the Marriage of Reich (Mont. 1986), [222 Mont. 192,] 720 P.2d 286, 287-88, 43 St.Rep. 1167, 1168-69; In Re the Marriage of Garst (1983), 206 Mont. 89, 94-95, 669 P.2d 1063, 1066. As long as the valuation is reasonable in light of the evidence submitted, we will not disturb that finding on appeal. In Re the Marriage of Luisi (Mont. 1988), [232 Mont. 243,] 756 P.2d 456, 459, 45 St.Rep. 1023, 1026; In Re the Marriage of Staudt (Mont. 1985), [216 Mont. 196,] 700 P.2d 175, 177, 42 St.Rep. 740, 743.

Conflicting evidence was before the District Court in the present case. When confronted with conflicting evidence, the court must use its fact-finding powers to determine which evidence is more credible. Having had the opportunity to observe the witnesses, the trial court is in a position superior to that of the appellate court to judge the credibility of the testimony. In Re the Custody of Holm (1985), 215 Mont. 413, 698 P.2d 414, 417, 42 St.Rep. 504, 507. Unless there is a clear preponderance of the evidence against the District Court’s valuation, its findings, where based on substantial though conflicting evidence, will not be disturbed on appeal. Garst, 206 Mont. at 93-94, 669 P.2d at 1066.

The conflicting evidence in the instant case leads us to conclude that the District Court did not abuse its discretion by assessing the partnership value at $10,000. On one hand, the husband testified that the livestock truck was destroyed in 1984 and that the value of the remaining asset, the PSC permit, was only $2,000. The 1986 tax return, which attributed no income to the partnership, supported the husband’s appraisal. On the other hand, the 1981 to 1985 tax returns reflected partnership gains three out of five years. The 1985 return in particular showed an income of $12,638, even though the truck had not been in service that year. The husband testified that a portion of the 1985 income was due to an insurance settlement on the truck. However, no evidence was introduced to account for the remainder of that year’s income. There was also testimony that the permit could be leased to other trucking outfits for a percentage of the profits.

With all of the evidence taken together, it was reasonable for the District Court to assume that, although the truck had been destroyed in 1984, the partnership retained income producing potential and thus had a higher value than that attributed to it by the husband. There was substantial documentary evidence to support the District Court’s valuation. The valuation was reasonable in light of the evidence submitted. There was no abuse of discretion.

The husband next contends that the District Court abused its discretion by failing to include the 1986 farm operating debt when it computed the net worth of his estate. The husband argues that the trial court erred by valuing the debt at a time different from the time at which it evaluated the other assets and liabilities. We do not agree that this procedure was error.

Generally, valuation of assets should be made at or near the time of the dissolution hearing. In Re the Marriage of Hammill (Mont. 1987), [225 Mont. 263,] 732 P.2d 403, 406, 44 St.Rep. 220, 223. This rule, however, is not hard and fast. The choice of time for valuation is within the broad discretion of the district court. In Re the Marriage of Krause (1982), 200 Mont. 368, 379, 654 P.2d 963, 968; In Re the Marriage of Krum (1980), 188 Mont. 498, 503, 614 P.2d 525, 527. If a single valuation date would lead to an inequitable distribution of property, the District Court may choose several different times for valuation. See, In Re the Marriage of Halverson (Mont. 1988), [230 Mont. 226,] 749 P.2d 518, 45 St.Rep. 162; In Re the Marriage of Hurley (Mont. 1986), [222 Mont. 287,] 721 P.2d 1279, 1286, 43 St.Rep. 1271, 1278.

In the instant case, the District Court used September, 1986, a time shortly after the petition for dissolution had been filed, as the valuation date for the majority of the assets and liabilities. The court assessed the operating debt, however, as of the date of the dissolution hearing, nine months after the petition had been filed. The husband argues that this failure to appraise all of the assets and liabilities at the same time resulted in an overvaluation of his net worth.

In September, 1986, the husband owned livestock worth $138,319 and owed an operating debt of $24,000. By the time of the dissolution hearing, some of the cattle had been sold and the operating debt had been paid with the proceeds. The sale of the cattle and payment of the debt were made to effectuate a tax savings to the husband.

In its memorandum denying the husband’s motion to amend the findings of fact, the trial court recognized that, along with erasing the operating debt, the sale of cattle reduced the value of the herd. The court refused, however, to include the operating debt in its computations. It also declined to decrease its valuation of the herd. The court stated that these factors had been included in its overall valuation of the assets as well as its decision to distribute the property equally between the parties.

Under the circumstances, we cannot hold that the District Court abused its discretion. The memorandum demonstrates that the court considered the facts as presented and determined that differing valuation dates would aid in the equitable division of the property. In the final analysis, and equitable distribution was accomplished. We therefore affirm the District Court on this issue.

On cross appeal, the wife argues that the District Court erred by discounting the value of the parties’ stock in the Milesnick family corporation. She maintains that discounting stock in a closely held corporation is improper where the stock’s value has been based on an appraisal of the underlying assets.

Milesnick Ranch, Inc. was formed by the husband’s parents in 1980. Soon after the creation of the corporation, the parents began gifting the stock to their children and their children’s spouses. Through this gifting program Thomas received 2,284 and Christine received 1,790 of the total 40,000 shares outstanding.

In a letter introduced into evidence by the husband, the corporation’s accountants placed the fair market value of the Milesnick Ranch stock at $53.85 per share. The appraisal was based on net asset value, that is, the sum of the fair market value of the assets less the liabilities. In its findings of fact, the District Court discounted the stock by 25 percent, from $53.85 to $40.39, to take into account the couple’s status as minority shareholders in the corporation.

We have previously approved the practice of discounting stock in a closely held corporation. In Re the Marriage of Jorgensen (1979), 180 Mont. 294, 300, 590 P.2d 606, 610. However, a district court need not discount the stock in a close corporation in all instances. See, In Re the Marriage of Johnston (Mont. 1986), [223 Mont. 383,] 726 P.2d 322, 43 St.Rep. 1808; In Re the Marriage of Buxbaum (1984), 214 Mont. 1, 692 P.2d 411.

The wife relies on Buxbaum for the proposition that discounting stock is improper whenever the market value is founded on net asset value, as it is in the instant case. This is not so. Whether a discount is proper depends on the facts of the case, not on the method used to ascertain the underlying value of the stock. In Buxbaum we approved the district court’s decision not to discount for a minority interest because the court found that, even though the husband was a minority shareholder, he had actual control of the corporation.

A discount for a minority interest is appropriate when the minority shareholder has no ability to control salaries, dividends, profit distributions and day-to-day corporate operations. Jorgensen, 180 Mont. at 300, 590 P.2d at 610. In the present case, there is no doubt that Thomas and Christine Milesnick were minority shareholders. Together they owned only 4,074 shares of stock, a little over 10 percent of the total number. Furthermore, although Thomas worked with his parents on the ranch and had some input into day-to-day operations, the parents had the final say on all major decisions. We do not believe, under these circumstances, that the District Court abused its discretion by discounting the stock in Miles-nick Ranch by 25 percent due to the parties’ minority interest in the corporation.

In conclusion, we hold that the District Court did not err in its valuation of the husband’s partnership interest or in its valuation of the parties’ stock in Milesnick Ranch. Nor did the District Court err by failing to include the operating debt in its computation of the net worth of the husband’s estate or by refusing to allocate the tax exemptions for the parties’ dependent children.

We affirm the District Court.

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


author: MR. JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. STEPHEN GUY SMITH, SR., Defendant and Respondent.
    No. 88-155.
    Submitted on Briefs Oct. 13, 1988.
    Decided Dec. 8, 1988.
    765 P.2d 742.

      Hon. Mike Greely, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen., Helena, Larry Nistler, Co. Atty., Mark Stermitz, Deputy Co. Atty., Poison, for plaintiff and appellant.
    Benjamin R. Anciaux, Poison, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal from the Twentieth Judicial District, in and for the County of Lake, involves a prosecution for incest. The District Court granted the defendant Smith’s motion for a face to face interview with the State’s principal witness and daughter of the accused, A.S. The State had agreed to allow an interview between Smith’s attorney and A.S., but insisted that Smith not attend. The District Court granted the motion to interview subject to the condition that the interview occur in the court room and that Smith refrain from actions designed to intimidate A.S.

The State refused to comply with the order. The District Court sanctioned the noncompliance by excluding A.S.’s testimony. The issue on appeal is whether Smith’s attendance at the interview is necessary for the exercise of defendant’s meaningful right to discovery. We reverse.

At the time the State filed the incest charges, A.S. was fifteen. In the lower court, the State argued that Smith’s presence at the interview would harm A.S.’s mental well being, and pointed out that the criminal proceedings against Smith had already been delayed because A.S. had run away from home.

Smith responded that his attorney could not conduct an effective interview of the witness unless his counsel could consult with Smith during the questioning. The charges Smith must defend against are as follows:

COUNT I

“That on or about July 27, 1987, in Poison, Lake County, Montana, the Defendant, STEPHEN GUY SMITH, SR., knowingly had sexual intercourse with a descendant, A.S., his natural daughter.”

COUNT II — VII

“That on or about July 21, 1987 through July 26, 1987, inclusive, on a daily basis, in Poison, Lake County, Montana, the Defendant, STEPHEN GUY SMITH, SR., knowingly had sexual intercourse with a descendant, A.S., his natural daughter.”

The State has also served Smith with a Notice of Intent to Rely on Other Crimes, Wrongs and Acts of Defendant. The Notice states that the State intends to introduce evidence demonstrating: a history of sexual contact between Smith and A.S. beginning when A.S. was eight and continuing through July 1987; incidents of sexual intercourse between Smith and A.S. from 1985 through July 1987; and specific incidents of sexual misconduct by Smith from 1985 to 1987. Smith argues that the numerous times and places involved in the events A.S. will testify to necessitate his attendance at the interview to provide information to his counsel.

The State responds that nothing in the rights guaranteed by Montana law and the United States Constitution mandate Smith’s attendance at the interview. See State v. Smith (1983), 206 Mont. 99, 670 P.2d 96. Smith holds that the accused “does not have the constitutional right to interview witnesses personally.” Smith, 670 P.2d at 101. This view accords with the United States Supreme Court’s conclusion that:

“The confrontation clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Kentucky v. Stincer (1987), 482 U.S. 730,_, 107 S.Ct. 2658, 2664, 96 L.Ed.2d 631, 643, but see Coy v. Iowa (1988),_, U.S._, 108 S.Ct. 2798, 101 L.Ed.2d 857 (Iowa statute allowing victim-witness to testify at trial behind one way screen declared unconstitutional in violation of the confrontation clause). The State also points out that under Stincer the accused’s right to be present at critical stages in the prosecution must be balanced against the risk of “substantial injury to the specific child witness.” Stincer, 107 S.Ct. at 2668 n. 20. The record supports the State’s contention that a face to face pretrial interview with Smith could harm A.S. Thus, we agree with the State that reasonable restrictions on Smith’s access to A.S. comports with the guarantees of the Confrontation Clause.

However, this case is not settled by the lack of constitutional guarantees. Smith contends that the District Court correctly construed the following statute in ordering his presence at the interview:

“(5) Upon motion of the defendant showing that he has substantial need in the preparation of his case for additional material or information not otherwise provided for and that he is unable without undue hardship to obtain the substantial equivalent by other means, the court in its discretion may order any person to make it available to him. The court may, upon the request of any person affected by the order, vacate or modify the order if compliance would be unreasonable or oppressive.”

Section 46-15-332(5), MCA. According to Smith, he has a substantial need in the preparation of his case to be present at the interview, and unless he is present, he is unable to obtain the substantial equivalent of such an interview without undue hardship. Therefore, according to Smith, the District Court correctly granted the interview.

We find that Smith has not made a sufficient showing for his request in view of the possible psychological and emotional injury to A.S. As stated by the New Mexico Supreme Court in a similar situation:

“We are aware of the sensitive nature of this case, and of the problems that might arise in light of the ages of the witnesses, and their past relationship to defendant, and the nature of the alleged crimes. None of these facts, however, justify an outright prohibition against all contact with the witnesses. The trial court could fashion some means to ensure that the witnesses will be protected from intimidation without unduly impairing defendant’s right to prepare a defense.”

State v. Orona (1979), 92 N.M. 450, 589 P.2d 1041, 1044. The Court in Orona also explained:

“We do not hold that the defendant has an absolute and unlimited right of access to the State’s prospective witnesses. This is not a case in which there are compelling justifications for totally limiting defendant’s access to the witnesses against him. Although there may have been good reason to limit access by the defendant himself, there does not appear to have been any justification for the court’s absolute prohibition against any contact by defense counsel.” Orona, 589 P.2d at 1043 (Emphasis added.).

The District Court could fashion an interview which would allow Smith to remain outside the immediate presence of A.S., and at the same time assist his attorney. For example, the interview between Smith’s attorney and A.S. could be recorded. Smith could then listen to the recording, note and instruct his attorney on areas that should be further developed, and request a second interview between A.S. and the attorney. Similarly, a simultaneous telephone conference allowing Smith to hear the interview and communicate privately with his attorney could afford an opportunity for Smith to consult with his attorney while counsel questioned the witness. Undoubtedly, there are other like options.

Section 46-15-322(5), MCA, speaks generally to the need for judicial involvement where the criminally accused’s right to discover the prosecutions’ case is obstructed. Other particular rules exist. For example, a witness belongs to neither party, and neither party should obstruct the other party’s access to witnesses. State v. Pecora (Mont. 1980), 619 P.2d 173, 176, 37 St.Rep. 1742, 1746. A witness unwilling to be interviewed may be deposed, but an “interview under circumstances directed by the witness would reflect unwillingness only if the attached conditions make it untenable for defense counsel to discover needed material.” Pecora, 619 P.2d at 176. Moreover,

“reasonable restraints may be imposed by a court to assure the personal safety of a witness in legal custody and to prevent unnecessary annoyance or embarrassment to a witness and undue demands and hardship upon the persons in whose custody the witness remains. (14 A.L.R.3d 652 anno.; ABA Standards for Criminal Justice, Discovery Section 2.5, Section 4.1; ID. The Defense Function Section 4.3[d].)”

State v. Gress (1972), 210 Kan. 850, 504 P.2d 256, 261, see also Holladay v. State (1936), 130 Tex. Cr. R. 591, 95 S.W.2d 119.

These rules for protection of witnesses must play a large part in the exercise of discretion in granting interviews of child witnesses. We hold that ordering a face to face interview under the facts of this case constitutes an abuse of discretion.

We also take this opportunity to point out that the wishes of A.S. and her guardian should be considered by the lower court. Pécora stands for the proposition that witnesses are entitled to have a voice in the conditions of interviews and depositions.

We remand for consideration of a means for Smith and his counsel to interview A.S. without it being necessary for A.S. to face the defendant during the interview.

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