author: JUSTICE McDONOUGH JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. NEAL VALLEY, Defendant and Appellant.
    No. 90-275.
    Submitted September 10, 1991.
    Decided January 14, 1992.
    49 St.Rep. 30.
    252 Mont. 489.
    830 P.2d 1255.

      For Appellant: Terry A. Wallace argued, Attorney at Law, Missoula.
    For Respondent: Marc Racicot, Attorney General, and Jennifer Anders argued, Assistant Attorney General, Helena; Robert Deschamps, III, Missoula County Attorney, Missoula.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

After final judgment, defendant, Neal Valley, appeals from a decision of the Fourth Judicial District, Missoula County, denying his motion to suppress physical evidence based on lack of probable cause for issuance of a search warrant. We reverse.

The sole issue on appeal is whether the District Court erred in denying defendant’s motion to suppress.

On March 31, 1988, the Missoula County Sheriff’s Department applied to District Court for a warrant to search the residence of defendant, Neal Valley. The application for the search warrant was based on anonymous and confidential tips. The tips as set forth in the application contain the following information:

1) August 22, 1981 •— An individual living in the Potomac area contacted the sheriff’s department and said that in January of 1981 Neal Valley had informed him that he had been the victim of a theft of $15,000.00 worth of marijuana, a shipment Valley had received from Florida and was storing in his attic waiting to sell. Because the tip was stale at the time, the sheriff’s office took no action.

2) May 22,1986 — An individual from the Potomac area contacted the sheriff’s department and said that Valley was growing and selling marijuana from his residence. The individual further stated that Valley had high school kids doing odd jobs at his cabinet shop, and Valley sometimes pays them with marijuana. The individual said that he knew this because Valley supplied his son with marijuana until the time his son joined the army. The sheriff’s department took no action.

3) May 28, 1987 — A confidential informant, other than the individuals mentioned above, contacted the sheriff’s department and said Valley was growing, packaging, and selling marijuana. The informant further stated he had personally observed the operation located in a large red bam-like building that also housed Valley’s cabinet shop. The informant stated that since then the operation was expanded into several other buildings on the property and possibly was heated by solar panels. The sheriff’s department took no action.

4) March 28, 1988 — The sheriff’s department received a crimes-toppers tip in which the caller said that Valley was selling marijuana from his residence and he uses the caller’s son to deliver marijuana to customers. The caller stated that he lives in the Potomac area and has personal knowledge of the transactions. The caller said that this was the first time he had ever contacted law enforcement, but he would call again if he found out more.

5) March 30,1988 — The above crimestoppers tipster called again to the sheriff’s department and related that on the previous night he overheard a conversation in the Potomac Bar between four individuals in which two of them stated that they were going to Valley’s residence to purchase marijuana. The caller described the location of Valley’s residence and described the property as having several outbuildings, including a large red bam, and a gate bearing the name ‘Valley” at the entrance to the property.

On March 31, 1988, detectives Terry Lambert and Larry Jacobs drove to the Potomac area and located Neal Valley’s residence. They saw a large red barn and several outbuildings along with the single story brown wood framed residence. Based upon all of the above information the District Court found probable cause and issued the warrant.

On April 1, 1988, the detectives searched the defendant’s residence. The search recovered several pounds of marijuana, marijuana paraphernalia, and evidence of a marijuana growing operation.

On June 23, 1988, defendant moved to suppress the evidence obtained as a result of an illegal search. At a March 3,1989 hearing, the District Court concluded that the first three tips in the application for the warrant were in and of themselves too remote to be a basis for probable cause. The information in the application for the warrant which the court did not consider too remote were the two Crimestopper’s tips given by the same person on March 28 and March 30, 1988. On November 8, 1989, the District Court denied Valley’s motion to suppress, based on this Court’s application of the “totality of the circumstances” test in State v. Rydberg (1989), 239 Mont. 70, 778 P.2d 902.

This appeal followed.

Section 11 of Article II of the Montana Constitution protects the homes of the citizens of this State against unreasonable searches and seizures. Section 11 provides in part: “No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.” A showing of facts in the application for a search warrant is required to establish there is probable cause to believe that contraband or evidence is to be found at the place to be searched at the time the warrant is issued. Under the “totality of the circumstances” test set forth in Illinois v. Gates, the factors to be considered in determining probable cause are:

[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. 462 U.S. 213, 238 (1983).

We have since adopted the totality of the circumstances test. State v. O’Neill (1984), 208 Mont. 386, 679 P.2d 760. “The totality of the circumstances test is fact specific.” See State v. Olsen (Minn. 1989), 436 N.W.2d 92. Informants’ statements and tips are to be taken into consideration.

In the instant case, the major problem with the first three statements is they are stale. They do not give any indication that contraband or evidence would presently be at the place to be searched. The tips range in time and age from eleven months to over seven years. After receiving the tips, no independent investigation was made to verify or corroborate the tips. Such tips do not ripen and bear fruit on their own, or by the passage of time. Time does just the opposite. Their value recedes with the dimming of memories, changes of circumstances and availability of witnesses. The passage of time makes it all the more imperative that a current investigation be made. The failure to verify or corroborate, or setting forth valid reasons why not, distracts from the probability proof in the application. Common sense dictates further investigation.

In determining probability, it is not the number of statements, tips or events that is determinative relative to the common sense approach, it is the probative force of one, some or all of them. Insufficient data to establish probable cause is not strengthened by number or repetition.

Stale information along with the lack of any evidence of the informant’s veracity and the lack of investigation, defeats any valid showing which can serve as a basis for probable cause. We agree with the District Court in not taking into consideration the statements in tips No. 1, 2 and 3.

The only current information available to law enforcement was tips four and five. These were crimestoppers tips. They were given anonymously by a citizen informant. Did the information contained in such tips establish probable cause? The Iowa Supreme Court in analyzing the reliability of a citizen informant said that a citizen informant is presumed reliable. However, this is not a per se rule. The reliability of a citizen informant is generally shown by the very nature of the circumstances under which the incriminating information became known. State v. Niehaus (Iowa 1990), 452 N. W.2d 184, 189.

One of the circumstances here is that the informant is anonymous. Usually a citizen informer known to the police is more probative. Then -under what circumstances did this incriminating information become known to the informant? He stated he had personal knowledge of the sale of marijuana by the defendant from defendant’s house in tip No. 4, but gave no basis for his knowledge or any further detail relative to his personal knowledge. He also stated his son was delivering marijuana for the defendant but does not state how he obtained this information or any further details related to the same. In tip No. 5, he does disclose the source of his information was overhearing a conversation in a bar by two bar customers who stated they were going to the defendant’s home to buy marijuana. The facts of the description and location of defendant’s property were easily confirmable by a driveby and can hardly be probative to the probability of contraband therein. Common sense required further investigation to confirm the reliability of these tips.

Given the circumstances, we conclude a magistrate could not properly assess the credibility of the informant or his sources. The underlying circumstances from which an informant receives his information can be the basis of his knowledge but here such circumstances were nominal and there was no inclusion of such detail that the information became self-verifying or was able to be sufficiently corroborated. See State v. Schaffer 107 Idaho 812, 693 P.2d 458 (Ct.App. 1984).

We conclude that the application for the warrant did not Contain sufficient facts and circumstances under the Gates test.

If this search were to be upheld, the law would allow an anonymous tipster to call the police on a phone and state that John Doe is selling marijuana, the tipster’s son is delivering it (who told him his son is dehvering is not stated), and the tipster heard bar talk of John selling and that John lives at such and such an address in a brown house with a red garage. No other verification, corroboration or facts would need to be presented. The magistrate would have no way of ascertaining whether this tip was rumor, speculation, vendetta, reprisal, or gossip. It is contrary to common sense that this information is a basis for probable cause to search a citizen’s home and invade his privacy.

The motion to suppress should have been granted and the judgment reversed and the cause remanded for further proceedings in accordance with this opinion.

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

JUSTICE WEBER

specially concurs as follows:

I concur with the majority opinion that the motion to suppress should have been granted and the judgment reversed. I specially concur in order to emphasize that the absence of adequate police investigation caused the reversal.

I agree with the majority’s conclusion that tips 1, 2 and 3 had not been adequately investigated by the police and therefore could not properly be considered. I do emphasize that the staleness of these claims is not only because of age of the information, but results primarily from the absence of any prompt corroborating police investigation.

The majority emphasizes the inadequacy of the information contained in tips 4 and 5 which were the crimestoppers’ tips given by an anonymous citizen informant. Such conclusions may tend to indicate that crimestoppers’ tips are not usable. Experience has shown that crimestoppers’ tips frequently afford a basis for arrest and ultimate conviction. The key missing link as to both tips 4 and 5 was the absence of an adequate law enforcement investigation to confirm the truthfulness of the tips. Where crimestoppers’ tips and other similar tips are received, I emphasize the necessity of a prompt and adequate law enforcement investigation.

Unfortunately such investigation was not conducted in the present case. An adequate law enforcement investigation sufficient to demonstrate probable cause would have prevented the dismissal of the conviction of a clearly guilty defendant.

I join in the judgment of reversal in this case.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. MONA LORRAINE HAMILTON, Defendant and Respondent.
    No. 91-435.
    Submitted on briefs December 4, 1991.
    Decided January 14, 1992.
    49 St.Rep. 33.
    252 Mont. 496.
    830 P.2d 1264.

      For Appellant: Marc Racicot, Attorney General, and Kathy Seeley and Kimberly Kradolfer, Assistant Attorneys General, Helena; Christine A. Cooke, Big Horn County, Hardin.
    For Respondent: James L. Vogel, Attorney at Law, Hardin.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The State of Montana appeals from an order of the District Court for the Thirteenth Judicial District, Big Horn County, dismissing three counts of official misconduct against Mona Lorraine Hamilton. We affirm.

The issue is whether the official misconduct charges brought against Hamilton were based on a continuing course of conduct so that they were not barred by the one-year statute of limitation for misdemeanors.

In April 1991, an information was filed against Hamilton, the County Treasurer of Big Horn County, charging her with nine counts of official misconduct in violation of 45-7-401, MCA. These included charges of transferring vehicle registration fees into an unauthorized “overage account;” removing cash from the “overage account” for her own personal use, both with and without replacing the cash with personal checks; replacing cash from the treasurer’s cash register with personal checks and then delaying processing of the checks; and, without payment, issuing vehicle registration certificates for vehicles belonging to her.

In July 1991, the State moved to dismiss six of the nine counts against Hamilton on the grounds that they unnecessarily duplicated other similar acts charged under the remaining counts. That motion was granted. The defense moved to dismiss the remaining three counts on the basis that all were barred by the one-year statute of limitation set forth at 45-l-205(2)(b), MCA.

Although the State argued that the three remaining counts were within exceptions to the one-year statute of limitation for misdemeanors under 45-l-205(2)(b), MCA, the court disagreed and granted the defense’s motion to dismiss. The State appeals.

The three counts which the defense moved to dismiss were set forth in the information as follows:

COUNT IV: OFFICIAL MISCONDUCT
On or about June 29, 1987, in Hardin, Big Horn County, Montana, the Defendant committed the offense of official misconduct when, in her official capacity as Big Horn County Treasurer and with the purpose to obtain advantage for herself or another, she performed an act in excess of her lawful authority, in violation of Section 45-7-401, MCA. More specifically, the Defendant issued a personal check in her name, placed that check in the unauthorized “overage” account maintained by the Big Horn County Treasurer’s Office, as described in Counts I, II and III above, and removed cash for her personal use.
COUNT VIL OFFICIAL MISCONDUCT
Between October 31, 1989, and February 27, 1991, in Hardin, Big Horn County, Montana, the Defendant committed the offense of official misconduct when, in her official capacity as Big Horn County Treasurer and with the purpose to obtain advantage for herself or another performed an act in excess of her lawful authority in violation [of section] 45-7-401, MCA, more specifically the Defendant deposited a check in the cash register of the Big Horn County Treasurer’s Office and obtained cash for her personal use.
[As noted in that portion of the affidavit in support of motion for leave to file the information charging Count VII, the alleged date of the offense in Count VII is “approximately October, 1989.” The reference to the date of February 27,1991, allegedly is the date the October 1989 check was repaid and, therefore, was not the charging of an offense on February 27, 1991.]
COUNT IX: OFFICIAL MISCONDUCT
On approximately January 31,1990, in Hardin, Big Horn County, Montana, the Defendant committed the offense of official misconduct when, in her official capacity as Big Horn County Treasurer and with the purpose to obtain advantage for herself or another, [she] performed an act in excess of her lawful authority in violation [of section] 45-7-401, MCA. More specifically, the Defendant registered a vehicle belonging to her without paying registration fees as required by law.

The sufficiency of charging documents is established by reading the information together with the affidavit in support of the motion for leave to file the information. State v. Longneck (1981), 196 Mont. 151, 154, 640 P.2d 436, 438, aff’d after remand, 201 Mont. 367, 654 P.2d 977. The affidavit in support of the motion for leave to file the information against Hamilton stated, regarding Count IV:

A check issued in the Defendant’s own name, dated June 29,1987, in the amount of $50.00 was found in the unauthorized ‘overage account.’ Clerks of the Big Horn County Treasurer’s office have stated that the $50.00 check has been in the ‘overage account’ since approximately the date of the check. The Defendant has admitted to Agent O’Brien that she removed $50.00 in cash from the ‘overage account’ in exchange for the $50.00 check. The cash has never been returned, nor has the check been turned over to a bank for payment.

The portion of the affidavit in support of the motion for leave to file the information pertaining to Count VII provided:

In approximately October, 1989, a check issued from Rock Hamilton, the Defendant’s son, to the Defendant was placed in the cash register in the Big Horn County Treasurer’s Office. The check, in the amount of $154.00, was used by the Defendant to obtain cash from the Treasurer’s cash register. The check was presented to a bank and was ultimately returned to the Big Horn County Treasurer’s Office indicating insufficient funds in the account of the issuer. The same check was resubmitted to the bank approximately three (3) times until on October 31, 1989, the bank refused to receive the check again. The amount of the check remained unpaid by the Defendant until February 27, 1991.

The affidavit in support of the motion for leave to file the information stated concerning Count DC:

On approximately January 31, 1990, the Defendant directed a clerk of the Big Horn County Treasurer’s Office to type a registration certificate for the Defendant’s 1986 Dodge Lancer. Normally, at this time, such registrations were printed and recorded on computer by the Big Horn County Treasurer’s Office. Such a methodology assured the maintenance of a proper record of the receipt of registration fees. By typing the registration certificate on a typewriter such a record was not kept. The typed registration certificate indicated that the Defendant had paid $103.25 in registration fees. The records of the Treasurer’s office indicate that the Defendant never has paid the registration fees associated with the registration certificate just described.

A prosecution for a misdemeanor must be commenced within one year after the offense is committed. Section 45-l-205(2)(b), MCA. That statute further provides, at subsection (6), that “[a]n offense is committed either when every element occurs, or when the offense is based upon a continuing course of conduct, at the time when the course of conduct is terminated. Time starts to run on the day after the offense is committed.” Although the information filed against Hamilton did not allege a continuing course of conduct, that is the argument made by the State on appeal.

Statutes of limitation in criminal matters are to be liberally interpreted in favor of repose. Toussie v. United States (1970), 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed. 2d 156, 161, citing United States v. Scharton (1932), 285 U.S. 518, 52 S.Ct. 416, 76 L.Ed. 917. A particular offense should not be construed as continuing “unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that [the legislature] must assuredly have intended that it be treated as a continuing one.” Toussie, 397 U.S. at 115.

The substantive criminal statute here is 45-7-401, MCA:

(1) A public servant commits the offense of official misconduct when in his official capacity he commits any of the following acts:
(c) with the purpose to obtain advantage for himself or another, performs an act in excess of his lawful authority.

The State concedes that the explicit language of this statute does not compel a conclusion that the offense is a continuing one. However, it argues that the nature of the offense is such that legislative intent must have been to treat official misconduct as a continuing offense. It contends that Hamilton’s official misconduct continued during the entire period she abused her authority and failed to properly handle the funds entrusted to her by the citizens of Big Horn County. It argues that this continuing coruse of conduct was never terminated as to Counts IV and IX and was only terminated as to Count VII in February 1991 when Hamilton paid to the treasurer’s office the amount of her son’s bad check. The State asserts that, therefore, prosecution of these three counts is not barred by the one-year statute of limitation.

The State cites State v. Earl (1990), 242 Mont. 279, 790 P.2d 464. In that case, this Corut held that violation of 87-2-509, MCA, was a continuing offense. However, under that statute, a tag provided by the Department of Fish, Wildlife, and Parks “shall be kept attached to the carcass” of a game animal taken or killed in Montana “so long as any considerable portion of the carcass remains unconsumed.” Section 87-2-509(1), MCA. That language concerning the continuing duty to keep the tag attached to the carcass was the basis for this Court’s classification of the offense as continuing.

The State cites the provision of 45-l-205(3)(b), MCA, that in a prosecution for theft involving a breach of fiduciary duty, the limitation period is extended to one year after the prosecuting officer becomes aware of the offense. Section 45-1-206(2), MCA, which is also cited by the State, provides that the period of limitation does not run during any period during which the offender is a public officer and the offense charged is theft of public funds while in public office.

Hamilton was not charged with theft involving a breach of fiduciary duty or theft of public funds while in public office. Although the legislature has seen fit to explicitly extend the statute of limitation for those two offenses, as well as for several others, e.g., 45-1-205(4) and (5), MCA, it has not seen fit to extend the statute of limitation for the offense of official misconduct.

An exception to a general statute of limitation cannot be enlarged beyond that which its plain language imports, and whenever the exception is invoked the case must unequivocally fall within it. State v. Clemens (1910), 40 Mont. 567, 569, 107 P. 896, 897. Under the circumstances, we cannot conclude that the offense of official misconduct is of such a nature that the legislature "must assuredly have intended that it be treated as a continuing one.” We hold that the charges against Hamilton are subject to the general one-year statute of limitation for misdemeanor offenses.

Assuming the truth of the allegations in the information against Hamilton and the affidavit upon which it is based, every element of each offense in Counts IV, VII, and IX occurred more than one year prior to the filing of the information. The order of the District Court dismissing Counts IV, VII, and IX is therefore affirmed.

JUSTICES HARRISON, MCDONOUGH, TRIEWEILER, and HUNT concur.


author: JUSTICE McDONOUGH

text:
    SHIRLEY A. HERBST, Plaintiff and Appellant, v. BESSIE MILLER, Defendant and Respondent.
    No. 91-347.
    Submitted on briefs November 8, 1991.
    Decided January 16, 1992.
    49 St.Rep. 40.
    252 Mont. 503.
    830 P.2d 1268.

      For Appellant: Peter M. Kirwan, Kirwan & Barrett, Bozeman.
    For Respondent: Gene I. Brown, Landoe, Brown, Planalp & Braaksma, Bozeman.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from the District Court of the Eighteenth Judicial District, Gallatin County. The plaintiff, Shirley Herbst, initiated a negligence action after sustaining injuries from a fall down the stairway of a building owned by the defendant, Bessie Miller. A jury found for defendant and judgment was entered. We reverse and remand.

The sole issue for review is whether the District Court erred in refusing to instruct the jury that Bessie Miller was “negligent per se” for allegedly violating building and maintenance requirements mandated by the Town of Belgrade.

Bessie Miller (Miller) owns a building in Belgrade that includes a single rental apartment in the basement. The remainder of the building is occupied by a business owned and operated by Miller. The foundation, including the basement apartment, was built and the building moved onto the foundation in late 1977 or early 1978. The only access to the basement apartment is a concrete stairwell on the outside of the building. There was no handrail along the stairway prior to the plaintiff’s accident.

Shirley Herbst (Herbst) was visiting the tenant in the basement apartment in December, 1988, when she slipped, fell down the stairs and was injured. Herbst initiated this action, alleging Miller was negligent on several grounds. A jury trial was held. Among Herbst’s allegations, she maintained that the absence of a handrail was in violation of the building and maintenance ordinance of the Town of Belgrade, was “negligence per se,” and that the jury should be so instructed. Herbst’s proposed instruction provided:

If you find that the Defendant violated any of the following provisions of the State Building Code, then the Defendant is negligent. You should then determine whether that negligence was a cause of the Plaintiff’s injury.

The court declined to instruct the jury that breach of the building code is negligence as a matter of law because the court was concerned it would, in essence, be directing the verdict by diverting the jury from addressing the issue of causation. Any breach of the building code was determined by the court to be evidence of negligence and no more. The jury found no negligence by special verdict, and judgment was entered in favor of Miller. Herbst appeals.

It is undisputed at the time of the accident there was no handrail along the basement stairway. Miller argues that the applicable building code did not require there to be a handrail when Herbst fell down the stairs. Resolution of this controversy requires our determination of the applicable building code.

Prior to the 1977/1978 construction of the basement apartment, the Department of Commerce, pursuant to 50-60-203, MCA, adopted the Uniform Building Code (UBC), which, when adopted, constituted the State Building Code. Section 50-60-205, MCA, as amended effective April 4, 1977, provided:

If a municipality or county does not adopt a building code as provided in 50-60-301, the state building code applies within the municipal or county jurisdictional area and the state will enforce the code in these areas.

At the time the basement apartment was constructed, the Town of Belgrade had not adopted a building code, and the State Building Code applied. Chapter 33, 3305(j), of the 1976 edition of the UBC, as adopted by the State, requires that stairways have handrails. The basement apartment as constructed was in violation of the then applicable building code because no handrail was installed.

Section 50-60-301, MCA, provides that

The local legislative body of a municipality or county may adopt a building code by ordinance to apply to the municipal or county jurisdictional area.

On January 8, 1979, the Town of Belgrade pursuant to 50-60-301, MCA, adopted by reference the 1976 edition of the UBC.

In 1981, the State Legislature amended 50-60-102, MCA, modifying the State’s application of the UBC. Section 50-60-102, MCA, as amended in part provides:

(1) The state building codes do not apply to: (a) residential buildings containing less than five dwelling units ....

Miller argues that the Belgrade ordinance adopting the UBC and requiring handrails cannot be retroactively applied to her 1977 construction of the basement apartment. Furthermore, Miller argues that the accident occurred after the 1981 amendment and buildings such as Miller’s are no longer required by the State to have handrails because it is a residential building with a single dwelling unit. Herbst, Miller contends, must show that the code was not only in effect at the time of construction, but also that it remained in effect at the time of the accident.

As previously stated, Miller was in violation of the applicable code (the State Code) at the time of construction. Furthermore, the State’s application of the UBC, in regards to residential dwellings like Miller’s, was modified by the 1981 amendment to 50-60-301, MCA. In 1988, the State Building Code provisions regarding the installation of handrails were not applicable to Miller’s building. However, we must take into account that municipalities have been authorized to regulate by their own building codes.

Here, the Town of Belgrade did adopt their own code, the UBC. However, Belgrade has not modified the application of the UBC as did the State. The Town of Belgrade continues to apply the UBC to single unit buildings such as Miller’s. The 1988 edition of the UBC, Chapter 33, (now) 3306(j), continues to require handrails on stairways such as the one leading to Miller’s basement apartment. Miller’s building was required to have handrails installed at the time of construction (via the State Code) and continues to be required to have handrails (via the Town of Belgrade’s ordinance adopting the UBC). Miller violated both the building code in effect at construction and the building code in effect at the time of Herbst’s accident.

The remaining question is whether Miller’s violation of the building code is negligence per se or whether the District Court correctly characterized the violation as evidence of negligence. We have held that violation of an administrative rule adopted under 50-60-203, MCA, as in the instant case, is not negligence per se but instead is evidence of negligence. Cash v. Otis Elevator Company (1984), 210 Mont. 319, 684 P.2d 1041. In Otis, we recognized that 50-60-203, MCA, mandates the Department of Commerce to adopt rules but that the legislature did not act further to incorporate by reference the rules adopted by the agency. In contrast, we held that violation of a national standard adopted by specific statutory reference is negligence as a matter of law. Martel v. Montana Power Company (1988), 231 Mont. 96, 752 P.2d 140. In the instant case, the legislature has not adopted the UBC by reference. Therefore, violation of the State Building Code is violation of an administrative rule and is only evidence of negligence and not negligence per se.

However, we have determined that the applicable building code at the time of the accident was the UBC as adopted by the Town of Belgrade. The Town of Belgrade adopted a resolution whereby the UBC is incorporated by reference. The ordinance adopted by the Town of Belgrade unambiguously states that it is unlawful to “.... use, occupy or maintain any building or structure in the Town limits, or its jurisdiction ... contrary to or in violation of any of the provisions of this Code.” In Martel, we determined that standards implemented for public safety are not only applicable for initial design and construction but can also include elements of maintenance. Martel, at 103.

We conclude, the ordinance, by its wording, adopted by the Town of Belgrade applies to the maintenance of all buildings in the Town of Belgrade’s jurisdiction. Miller’s failure to install a handrail leading to the basement apartment is a failure to maintain her building in adherence with the ordinance and is therefore a violation of the ordinance. It is long settled that violation of a city ordinance constitutes negligence per se. Marsh v. Ayers (1927), 80 Mont. 401, 260 P. 702.

The District Corut erred by not instructing the jury that violation of the Town of Belgrade’s municipal building code was negligence per se. Herbst is entitled to such an instruction and therefore the District Court is reversed and this case is remanded for further proceedings consistent with this opinion.

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


author: JUSTICE HARRISON JUSTICE TRIEWEILER, JUSTICE GRAY,

text:
    FRANCIS J. SEMAN, Personal Representative of the ESTATE OF GARY W. SEMAN, Deceased, Plaintiff and Appellant, v. JUDY LEWIS, Defendant and Respondent.
    No. 91-287.
    Submitted January 2, 1992.
    Decided March 5, 1992.
    49 St.Rep. 206.
    252 Mont. 508.
    830 P.2d 1294.

      For Appellant: Donald J. Beighle argued, Deer Lodge. John A. Alexander, Butte.
    For Respondent: Patrick T. Fleming argued, Butte.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Second Judicial District Court, Silver Bow County, Montana, in which the Honorable James E. Purcell granted summary judgment in favor of Judy Lewis, respondent. Francis Seman, personal representative of Gary Seman’s estate, appeals. We affirm.

The issue presented for our review is whether a bank signature card which designates an account as “joint” creates a joint tenancy with right of survivorship or a tenancy in common.

The undisputed facts of the case at bar are as follows:

Gary Seman died intestate. Appellant, Francis Seman, was appointed personal representative of Gary Seman’s estate. Respondent, a personal friend of Gary Seman, was a co-owner and cosignatory with him on a joint savings account (the Seman/Lewis account).

Approximately five years before he died, Gary Seman added respondent’s name to his savings account. A bank representative completed a new signature card which controlled access to the account which was placed in the names of “Gary Seman or Judy Lewis.” The card indicated that the ownership of the account was “joint.” Gary Seman and respondent signed this card.

Deposition and affidavit testimony indicate that Gary Seman intended respondent to have full access to the funds in this account. Nonetheless, respondent made no deposits in or withdrawals from the account prior to Gary Seman’s death. Shortly after Gary Seman’s death, respondent withdrew the balance and closed the Seman/Lewis account.

Appellant brought the initial action in district court to recover one-half of the amount contained in the Seman/Lewis account on the date of Gary Seman’s death, claiming that respondent and Gary Seman held the account as tenants in common. Finding that the parties held the account as joint tenants with right of survivorship and that the survivor was entitled to the entire balance of the account, the District Court granted summary judgment in respondent’s favor.

Appellant urges reversal of the District Court pursuant to our decision in University of Montana v. Coe (1985), 217 Mont. 234, 704 P.2d 1029, contending that Gary Seman and respondent held the funds as tenants in common, entitling appellant to at least one-half of the account balance on the date of Gary Seman’s death. We disagree.

In Coe, this Court found that a signature card designating an account as “joint” without language of survivorship created a tenancy in common. In the case at bar, the District Court, faced with an almost identical signature card, adopted the opposite result finding that the joint account was a joint tenancy with right of survivorship. Consequently, when Gary Seman died, the entire balance in the account transferred to respondent.

Coe is distinguishable. In Coe we specifically limited our holding to the facts of that case, thereby rendering it inapplicable to the case at bar. Coe, 217 Mont. at 240, 704 P.2d at 1033.

Joint bank accounts have a special attribute which allows either joint owner, by virtue of a contract with the bank, to acquire complete control over the entire account. Casagranda v. Donahue (1978), 178 Mont. 479, 483, 585 P.2d 1286, 1288. Nonetheless, the rules governing property ownership remain applicable to joint bank accounts. Casagranda, 178 Mont, at 483, 585 P.2d at 1288. If bank policy contradicts Montana law, Montana law governs.

The ownership of personal property held by more than one person is either of joint interests, partnership interests, or interests in common. Section 70-1-306, MCA. Joint interests are defined as follows:

A joint interest is one owned by several persons in equal shares by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy or when granted or devised to executors or trustees as joint tenants.

Section 70-1-307, MCA. “An interest in common is one owned by several persons, not in joint ownership or partnership.” Section 70-1-313, MCA. Every interest created in favor of more than one person is an interest in common unless specifically declared to be a joint interest. Section 70-1-314, MCA.

In the case at bar, Gary Seman and respondent selected a “joint” account by marking the appropriate box on the applicable signature card. Further explanation regarding the significance of owning a joint account failed to appear on the signature card. Applying Montana’s statutory scheme regarding ownership of personal property, as set forth above, it appears that Gary Seman and respondent held this account as tenants in common because they failed to designate the account as a joint tenancy and the signature card lacked words of survivorship. However, the use of the word “joint” and nothing further, creates an uncertainty.

To clarify this uncertainty we must determine the intent of the account owners since intent is the determinative factor in this case. To create a joint tenancy with right of survivorship, the requirement is one of clear manifestation of intention, not of particular words. Hennigh v. Hennigh (1957), 131 Mont. 372, 381, 309 P.2d 1022, 1027 (quoting cases). When third party rights are involved, extrinsic evidence is inadmissible if the written agreement is certain and clear. In such cases, the intent of the parties must be gleaned from the signature card alone. Ludwig v. Montana Bank and Trust Co. (1939), 109 Mont. 477, 98 P.2d 377. In Ludwig, this Corut found:

“[WJhere such intention is evidenced by a written agreement, ... this question of intention ceases to be an issue, and the courts are bound by the written agreement.... [Pjarol evidence is not admissible to change the terms of the legal effect of such a written instrument where it is in no respect uncertain or ambiguous.” (Citing cases.)

Ludwig, 109 Mont. at 502, 98 P.2d at 389, quoting Hill v. Badeljy (Cal. 1930), 290 P. 637, 640, (followed in Coe, 217 Mont. 234, 704 P.2d 1029; Casagranda, 178 Mont. 479, 585 P.2d 1286; and State Board of Equalization v. Cole (1948), 122 Mont. 9, 195 P.2d 989).

In many prior Montana cases concerning the ownership of joint bank accounts, this Corut found it unnecessary to look beyond the signature card to determine the intent of the depositors. In these cases, the signature cards explicitly referred to the owners of the accounts as joint tenants, or they explicitly stated that any money in the joint account was to be paid to either, both, or the survivor upon the other owner’s death. See Casagranda, 178 Mont. 479, 585 P.2d 1286; Malek v. Patten (1984), 208 Mont. 237, 678 P.2d 201; and Cole, 122 Mont. 9, 195 P.2d 989. As a result, we have concluded that signing a signature card containing such an agreement demonstrated intent to create a joint tenancy with rights of survivorship since intent to create a joint tenancy was clearly manifested on the face of the agreement. Casagranda, 178 Mont. at 483, 585 P.2d at 1288.

This case is different. The signature card in the case at bar provided a method for Gary Seman and respondent to choose the type of account they desired. They chose a “joint” account. In addition, the signature card reflects that the account was held in the names of “Gary Seman or Judy Lewis.” The signature card did not evidence a clear intention to create a joint tenancy. The instant case is identical to Coe without the use of extrinsic evidence.

Extrinsic evidence is only inadmissible if terms in the written agreement are uncertain and the extrinsic evidence is being presented to contradict the terms of the written agreement. Coe, 217 Mont, at 238, 704 P.2d at 1032. In Coe, extrinsic evidence was not allowed because its only possible purpose was to contradict the express terms of the agreement. The express terms of that agreement stated that Mark Coe was an owner of the account with his sister, Tammerly. To prevent a judgment creditor from levying on the funds in the account, the Coes tried to submit extrinsic evidence to prove that Mark did not own any of the funds in the account. Clearly, this evidence was intended to contradict the plain meaning of the agreement and therefore, inadmissible. Accordingly, the only proper evidence before the Court regarding intent of the parties was the signature card. Since the signature card did not clearly indicate an intent to create a joint tenancy, this Court concluded that Mark and Tammerly owned the account as tenants in common, allowing the judgment creditor to levy on Mark’s half of the account.

Coe is distinguishable; extrinsic evidence regarding intent was admissible in the instant case because respondent submitted it to supplement, rather than contradict, the uncertain terms of the signature card. Respondent did not offer this evidence to refute ownership in the account. Deposition and affidavit testimony of respondent, bank personnel, and the bank vice president was offered to indicate Gary Seman’s desire to have the funds in the Seman/Lewis account revert to respondent upon his death. This evidence merely explains Gary Seman’s intent regarding the type of ownership he desired when acquiring this joint account.

As neither party has presented any disputed issues of material fact and the District Court correctly distinguished Coe from the case at bar, the court did not err in granting summary judgment in favor of respondent.

AFFIRMED.

JUSTICES HUNT, and McDONOUGH concur.

JUSTICE TRIEWEILER,

specially concurring:

I concur with the opinion of the majority.

I disagree with the conclusion of the dissenters that 70-1-306, MCA, requires use of the word “tenancy” in order to create a joint ownership in property with rights of survivorship. My interpretation of 70-1-306, MCA, is that joint forms of ownership must be designated as joint ownership, as opposed to some other form of ownership. That is exactly what the signature card signed by Gary Seman and Judy Lewis did. I am satisfied that the legislature intended nothing so literal as suggested by the dissenters in this case.

However, neither am I in accord with everything that is said in the majority opinion.

I believe that the result arrived at by the majority is required by our earlier decision in First Westside National Bank v. Llera (1978), 176 Mont. 481, 580 P.2d 100. In that case, we addressed the form of ownership for an automobile where the certificate of ownership indicated that the owners were “Edith S. Tynes and/or Allen R. Llera.” There was no language indicating that the automobile was owned in “joint tenancy.” However, we held that:

[It] has come to be widely accepted, particularly in the consumer goods industry, that ownership documents which carry the names of two or more persons with the phrase “and/or” does in fact create a joint tenancy estate. Moreover, this Court held in Marshall v. Minlschmidt (1966), 148 Mont. 263, 269, 419 P.2d 486, that the names of three owners shown on a recorded cattle brand, joined by the word “or,” was in fact a joint tenancy interest in the brand, and therefore of the cattle bearing such brand.
Following Marshall, therefore, we may assume that in Montana an ownership document showing title in two or more persons “and/or” has the effect of creating a joint tenancy estate with right of survivorship. This applies to personal property, not real estate. See: 67-310 R.C.M. (1947).

First Westside National Bank, 580 P.2d at 103.

In this case, the signature card indicated that the owners of the account were “Gary Seman or Judy Lewis.” In addition, the owners made a conscious indication on that card that ownership of the account was “joint.” The owners did more than was required in the First Westside National Bank case to establish ownership of this account in the form of a joint tenancy.

An apparently inconsistent result was arrived at in the case of University of Montana v. Coe (1985), 217 Mont. 234, 704 P.2d 1029. However, nowhere in the majority opinion of the Coe decision is First Westside National Bank discussed, overruled, or modified. The only reference to it is in Justice Weber’s dissent where he discusses both the Marshall and First Westside National Bank cases and then concludes as follows:

The foregoing cases have not been overruled.
Based on the foregoing authority, I conclude that we must class the present bank account as a joint tenancy bank account, with each of the two account holders having all the rights of joint tenants with right of survivorship.

Coe, 704 P.2d at 1036-37 (Weber, J., dissenting).

I agree. I would follow the First Westside National Bank case, and to the extent that the Coe case is inconsistent, I would overrule that decision.

JUSTICE GRAY,

dissenting:

I respectfully dissent from the opinion of the majority. I agree with the majority that Gary Seman and Judy Lewis intended to create a joint tenancy in the account. It is my opinion, however, that an appropriate analysis of this case requires the application of statutory requirements rather than rules of contract interpretation.

Section 70-1-307, MCA, is clear: no joint interest exists unless the ownership by several people in equal shares is “expressly declared in the ... transfer to be a joint tenancy.” (Emphasis added.) The majority correctly concludes that, the statutory requirements not having been met, Gary and Judy “appear” to have been tenants in common. In my view, the majority should have held at that point that the District Court erred in granting summary judgment to the respondent. The statutory requirement that a joint interest must be expressly declared in the creating instrument to be a joint tenancy could not be more clear. Absent such an express declaration, no joint tenancy can exist.

Inexplicably, the majority verges off on rules of contract interpretation. Finding an “uncertainty” on the face of the signature card, it decides it must determine the intent of the account owners and goes on to discuss the admissibility of extrinsic evidence in vintage contract interpretation terms. The result is to ignore the legislature’s clearly stated intent as to what is necessary to create a joint interest, as a matter of law, and to elevate the intent of the parties to an agreement over specific statutory requirements. I cannot agree.

CHIEF JUSTICE TURNAGE and JUSTICE WEBER join in the foregoing dissent of JUSTICE GRAY.


author: JUSTICE HUNT

text:
    ST. JOHN’S LUTHERAN CHURCH, Appellant, v. STATE COMPENSATION INSURANCE FUND, Respondent.
    No. 91-324.
    Submitted January 8, 1992.
    Decided February. 6, 1992.
    49 St.Rep. 119.
    252 Mont. 516.
    830 P.2d 1271.

      For Appellant: Alden Pedersen argued, Pedersen & Hardy, Billings.
    For Respondent: Laurence A. Hubbard argued, Legal Counsel, State Compensation Mutual Ins. Fund, Helena.
   JUSTICE HUNT

delivered the opinion of the Court.

This matter is before the Court on appeal from the Workers’ Compensation Court which held that appellant’s pastor was an employee of St. John’s Lutheran Church for purposes of workers’ compensation coverage. Appellant argues that the pastor is an independent contractor and not an employee. Appellant also argued unsuccessfully before the Workers’ Compensation Court that the designation of the pastor as an employee violated the free exercise clause of both the United States and Montana Constitutions. We affirm.

We phrase the issues before this Court as follows:

1. Did the Workers’ Compensation Court err in determining that the pastor is an employee of St. John’s Lutheran Church for purposes of the Workers’ Compensation Act, and not an independent contractor?

2. Did classifying the appellant’s pastor as an employee, which is contrary to the appellant’s sincerely held religious beliefs, violate the appellant’s right of free exercise of religion guaranteed under the First Amendment to the United States Constitution and Article II, 5, of the Montana Constitution?

On appeal, both the appellant and the respondent stipulated to the following statement of facts as found by the hearing examiner:

1. St. Johns Lutheran Church is located in Laurel, Montana. The Church has a Pastor to carry out the full-time ministry functions essential to the congregation. The Pastor is selected by the congregation from a list of Pastors in good standing provided by the District President of the Lutheran Church. No written contract exists concerning the relationship between St. Johns Lutheran Church and the Pastor. St. Johns Lutheran Church and the Pastors refer to the relationship as a “call to serve.”
2. The Pastor is paid on a monthly basis for his services. In addition, the pastor receives ... housing accommodations and health insurance. The congregation determines the pay amount and benefits. The Pastor is paid by check from the Treasurer appointed by the congregation.
3. The Church provides the Pastor with an office, place of worship, clerical vestments, hymnals and a support staff consisting of a full-time secretary, part-time bookkeeper, custodian and groundskeeper. The support staff are paid through the congregation Treasurer in the same manner as the Pastor.
4. The Pastor can leave his ministry duties at the Church for any reasons he believes are valid and sufficient. St. Johns Lutheran Church can terminate the Pastor upon the approval of the synodical body for various reasons such as adherence to false doctrine, scandalous life, and willful neglect or inability to perform his pastoral duties.
5. The Church must use an appeal process through an adjudication body in order to terminate the Pastor from his ministerial duties. If the Pastor chooses to leave his position at St. Johns Lutheran Church, he is not bound to the appeals process. Regardless of who is the moving party in the severing of the relationship, neither party can sue the other for liability reasons.
6. St. Johns Lutheran Church and the Pastors do not consider a “call to serve” as a contractual relationship but rather a theological matter. Under their contention, the call does not set up a relationship of employer to employee, but rather a relationship of Pastor to a congregation, as a shepherd. Therefore, the ministry is under the servanthood to God, not to the congregation.

In addition to the facts found by the hearing examiner, both parties accept the following background facts as determined by the Workers’ Compensation Judge in his June 4, 1991, order on appeal:

The pastor may receive remuneration for work from third parties, even if time is taken away from his parish work. For the purposes of Social Security and when filing tax returns, the pastor is considered self-employed.
The church comes within the statutory definition of an employer and pays premiums for workers’ compensation coverage for its support staff. Its insurer is the State Compensation Mutual Insurance Fund (State Fund).
In 1981, the church made application to the State Fund for workers’ compensation coverage and indicated there were four employees, a minister, a bookkeeper, a janitor and a handyman to be included on the policy. The employer’s application and policy was approved for coverage on May 28, 1981. In October 1984, a revised Insurance Policy was sent to all State Fund insureds and on October 19,1985, a Policy Amendment was issued to the church. There is no evidence to show that the church did not pay premiums for workers’ compensation coverage for its pastor during this period of time.
In 1986, Guy Robbins, employer representative for the then, Division of Workers’ Compensation, conducted a routine audit of the account for the church as a result of an incorrect amount of money being reported by the church secretary on a quarterly report. As a result of the audit the Division was advised that it was the position of the church that it was not necessary to have workers’ compensation coverage as its pastor was covered by the “Concordia Plan.” The congregation pays for this plan which is a comprehensive insurance plan, but it does not include coverage for workers’ compensation.
Counsel for the appellant did not disagree with the statement that some Missouri Synod churches in Montana do provide workers’ compensation coverage for their ministers.
At the time of the hearing, that classification code assigned to pastors was at the rate of .33 cents per $100.00 of payroll.

Procedurally this case has a long and somewhat complex history, going back to the fall of 1986. In summary, this matter is before this Court on appeal from an order on appeal of the Workers’ Compensation Court of June 4, 1991, which upheld the findings of fact, conclusions of law, and order of the Department of Labor and Industry made on December 13, 1990.

Appellant argued before the Workers’ Compensation Comb that it was the sincerely held religious belief of the church that the pastor was not an employee of the church, but that the relationship was that of shepherd to flock. The Workers’ Compensation Court initially found that the pastor was an employee of St. John’s Lutheran Church, and not an independent contractor. The Workers’ Compensation Court then held that such a designation did not violate the appellant’s free exercise rights. The court found an overriding governmental interest and no infringement of the religious liberty being exercised.

Because the facts pertinent to this appeal have been stipulated to by the parties and are not in controversy, we limit our review to the determination of whether the Workers’ Compensation Court’s interpretation of the law is correct. Allen v. Treasure State Plumbing (1990), 246 Mont. 105, 803 P.2d 644.

I

Did the Workers’ Compensation Court err in determining that the pastor is an employee of St. John’s Lutheran Church for purposes of the Workers’ Compensation Act, and not an independent contractor?

Appellant argues that the pastor is an independent contractor and not an employee. Section 39-71-120, MCA, defines an independent contractor as follows:

(1) An “independent contractor” is one who renders service in the course of an occupation and:
(a) has been and will continue to be free from control or direction over the performance of the services, both under his contract and in fact; and
(b) is engaged in an independently established trade, occupation, profession, or business.
(2) An individual performing services for remuneration is considered to be an employee under this chapter unless the requirements of subsection (1) are met.

It is agreed that the pastor may receive remuneration for work from third parties, even if time is taken away from his parish work. Therefore, the pastor satisfies the second part of the statute which requires that an independent contractor must be engaged in an independently established trade, occupation, profession, or business. As is the case in most instances, the key element is that of control. Independent contractor status will be recognized only when the individual is free from control by the employer. The established standard of determination of independent contractor status in Montana is the “control test” as adopted by this Court in Sharp v. Hoerner Waldorf Corporation (1978), 178 Mont. 419, 584 P.2d 1298. This test is set out in A. Larson’s Workmen’s Compensation Law, Vol. 1C, 44.00, pp. 8-32 (1952). The “control test,” used to determine the right of control in a given situation, requires the examination of four factors. These factors are:

1. Direct evidence of right or exercise of control;
2. Method of payment;
3. Furnishing of equipment; and
4. Right to terminate.

Sharp, 584 P.2d at 1301-02. In applying the four factors of the “control test” to the facts of a particular situation, this Court has noted that:

[T]he consideration to be given these factors is not a balancing process, rather “... independent contractorship ... is established usually only by a convincing accumulation of these and other tests, while employment ... can if necessary often be solidly proved on the strength of one of the four items [above].”

Sharp, 584 P.2d at 1302. After considering the facts in this case in relation to the four factor “control test” the Workers’ Compensation Court concluded that:

The vast majority of the tools of the Pastor’s trade are supplied by the church, and this single factor is sufficient to establish an employer/employee relationship. The Court will not address the remaining three factors, except to note that the substantial credible evidence supports the findings and conclusions of the hearing examiner.

The appellant argues on appeal that the Workers’ Compensation Court erred in not considering in more detail the other factors of the control test of Sharp. However, as has been noted, the employer/employee relationship “can if necessary often be solidly proved on the strength of one of four items.” Sharp, 584 P.2d at 1302. The Workers’ Compensation Court determined that the furnishing of equipment by the church was sufficient to establish that the pastor is an employee and not an independent contractor. We agree.

St. John’s Lutheran Church provides the pastor with an office, place of worship, hymnals, a staff consisting of a full-time secretary, part-time bookkeeper, custodian, and groundskeeper. The church also provides other items necessary for the pastor to perform his services. The Workers’ Compensation Court found that this item alone would be sufficient to establish an employer/employee relationship. Appellant argues that despite the furnishing of equipment, the pastor is truly an independent contractor. Appellant cites to this Court’s opinion in Johnson v. Montana Department of Labor and Industry (1989), 240 Mont. 288, 291, 783 P.2d 1355, 1357-58, wherein we stated:

We feel that whether a person performing services is an employee or an independent contractor is the question before us, and statutes used as guides in making such determinations must not be distorted to allow persons who are truly independent in their operation to be held employees merely for tax purposes and resulting benefits derived from an employer-employee relationship.

Appellant is correct in stating that persons who are truly independent in their operations according to the standards established for determining that issue should not be held to be employees. However, the furnishing of equipment is strong evidence of control and of a lack of independence and by itself is sufficient to establish the pastor’s status as an employee. As this Court has stated:

[W]hen an employer furnishes valuable equipment, an employment relationship almost invariably exists, but the test does not cut in both directions with equal force. Proof showing the worker furnishes his own equipment is not necessarily fatal to a finding of employee status.

Solheim v. Tom Davis Ranch (1984), 208 Mont. 265, 273-74, 677 P.2d 1034, 1038. The furnishing of valuable equipment supports the Workers’ Compensation Court’s finding that the pastor is an employee. We note that aspects of the method of payment and the church’s right to terminate the pastor also indicate the pastor is an employee. However, we need not discuss these factors, as we hold that the Workers’ Compensation Court was correct in finding that the furnishing of valuable equipment was sufficient to establish that the pastor is an employee.

II

Did classifying the appellant’s pastor as an employee, which is contrary to the appellant’s sincerely held religious beliefs, violate the appellant’s right of free exercise of religion guaranteed under the First Amendment to the United States Constitution and Article II, 5, of the Montana Constitution?

The First and Fourteenth Amendments of the United States Constitution prohibit both Congress and the states from enacting any law which prohibits the free exercise of religion. Article II, 5, of the Montana Constitution also proscribes the promulgation of laws prohibiting the free exercise of religion. The right to freely exercise one’s religious beliefs without the interference of the state is one of the most cherished and protected liberties in our society. The wall separating church and state is not absolute, however, and some governmental impacts on religious freedoms have long been recognized as being constitutionally permitted. Cantwell v. State of Connecticut (1940), 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. The determination of whether the impact or interference by the government violates the right of free exercise of religion is a difficult one. As former Chief Justice Burger noted while writing for the majority of the United States Supreme Court in one of that Court’s landmark decisions on church/state relations, “[c]andor compels acknowledgment ... that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law’’ Lemon v. Kurtzman (1971), 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed. 2d 745, 755.

The free exercise of religion clause was recently discussed by this Court in Miller v. Catholic Diocese of Great Falls (1986), 224 Mont. 113, 728 P.2d 794. In Miller, this Court adopted the following standard to be used as a guide on the application of the free exercise clause:

The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.

Miller, 728 P.2d at 796 (quoting from Wisconsin v. Yoder (1972), 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15, 25). Miller involved a suit by a former parochial school teacher. The issue in Miller was whether the free exercise clause barred consideration of the plaintiff’s wrongful discharge complaint in which she alleged a breach of the covenant of good faith and fair dealing in her discharge for failing to maintain discipline in the classroom. We held that a judicial determination of the presence or absence of good faith on the part of the school administrators:

[W]ould impinge upon elements of the teaching of religion, or the free exercise of religion. We conclude that discipline in the classroom is so intertwined with teaching which in turn is intertwined with religious principles that a court cannot properly make the determination requested here without interfering with a legitimate claim to the free exercise of religion.

Miller, 728 P.2d at 797.

It is well established, however, that the state may regulate affairs impacting religious activity when there is an overriding governmental interest in so doing. United States v. Lee (1982), 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed. 2d 127. The State Fund argued, and the Workers’ Compensation Court agreed, that the provision for workers’ compensation is such an overriding governmental interest. When alleging a violation of free exercise it must be shown that the religious belief is sincerely held and that there is or will be some government prohibition of the free exercise of that belief. Thomas v. Review Board of Indiana Employment Security Division (1981), 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624. In this instance, the respondent concedes that the appellant’s religious belief in the shepherd/flock doctrine is sincerely held. However, respondent argues that the impact of classifying the pastor as an employee is indirect and diminimus, and in no way prohibits the appellant’s free exercise of that belief.

The appellant argues that by classifying the pastor as an employee of St. John’s Lutheran Church, the State Fund and the Workers’ Compensation Court have involved themselves in the relationship between the church and the pastor. This involvement led to the classification of the pastor as an employee of the church, which is contrary to the sincerely held beliefs of the appellant, and is violative of the First Amendment prohibition against laws prohibiting the free exercise of religion.

Appellant presented evidence at the hearing by Dr. George Wollenberg, an expert in church/pastoral relationships, of the Missouri Synod Lutheran Churches. He stated that it is of great importance to the church that their pastors not be considered employees because the “pastor must have the freedom to teach and to preach and to guide people in accordance with the word of God, according to the confessions of our Church ....” If the pastor is subject to being fired by the congregation, it places an almost insurmountable obstacle in the way of carrying out his duties and responsibilities to God to proclaim the word of God.

Appellant relies on the case of McClure v. Salvation Army (5th Cir. 1972), 460 F.2d 553, for the proposition that the relationship between a church and its pastor is a matter of singular ecclesiastical concern. Appellant quotes the following from McClure'.

The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection. It is unavoidably true that these include the determination of a minister’s salary, his place of assignment, and the duty he is to perform in the furtherance of the religious mission of the church.

McClure, 460 F.2d at 558-59.

McClure is distinguishable from the present case in that the designation of the pastor as an employee for purposes of workers’ compensation only affects the relationship between the church and the workers’ compensation system. There is no internal impact or infringement on the relationship between the church and its pastor, or on their sincerely held religious beliefs. In fact, the church did pay premiums to the State Fund for several years for workers’ compensation coverage for the pastor. There was no evidence presented showing this in any way affected the relationship between the church and its pastor. The present case is also distinguishable from our decision in Miller in that the designation of the pastor as an employee does not involve the state in an internal matter of the church which would result in a prohibited interference.

We affirm the Workers’ Compensation Court’s holding that the pastor is an employee and not an independent contractor. We also affirm the Workers’ Compensation Court’s holding that designating the pastor as an employee does not violate appellant’s right to free exercise of religion.

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


author: JUSTICE WEBER

text:
    JOE R. MERZLAK and JANENE L. MERZLAK, Plaintiffs and Appellants, v. JAMES E. PURCELL and HENNINGSON & PURCELL, a Montana professional services corporation, Defendants, Respondents and Cross-Appellants.
    No. 91-357.
    Submitted on briefs December 5, 1991.
    Decided February 13, 1992.
    49 St.Rep 139.
    252 Mont. 527.
    830 P.2d 1278.

      For Appellant: Robert B. Gould and James M. Driscoll, Seattle, Washington.
    For Respondent: R.D. Corette and William M. O’Leary; Corette, Pohlman, Allen, Black & Carlson, Butte.
   JUSTICE WEBER

delivered the Opinion of the Court.

Appellants Joe R. Merzlak and Janene L. Merzlak (Merzlaks) brought an action for legal malpractice against their attorney James E. Purcell and his law firm Henningsen & Purcell, PC. (Purcell). The Fourth Judicial District Court, Missoula County, found Purcell negligently represented the Merzlaks, ordered the return of $12,398.20 in attorney’s fees together with interest, and denied punitive damages. Merzlaks appeal the amount of the judgment. Purcell cross-appeals. We reverse and remand.

We find the following issues dispositive:

1. Did the Merzlaks satisfy all elements necessary to prove legal malpractice against Purcell?

2. Did the court improperly award the Merzlaks $12,398.20 in attorney’s fees plus interest?

On November 12, 1982, the Merzlaks, passengers in a vehicle driven by Kerry Hansen, were injured in a head-on collision. The accident occurred on an icy bridge, on Interstate 90, west of Superior, Montana. Joe Merzlak, Janene Merzlak, Kerry Hansen, and Kerry’s wife, Ruth Hansen were traveling from Butte to Spokane when a semi-tractor truck and trailer owned by Livestock Transport Company of Washington (Livestock) struck the vehicle. The Livestock vehicle, traveling east on Interstate 90, veered into Hansen’s westbound lane to avoid a vehicle disabled in the eastbound lane. The impact killed Kerry Hansen, and injured the Merzlaks and Ruth Hansen. Purcell represented the Merzlaks in their settlement negotiations with Livestock’s insurer. This representation underlies the Merzlaks’ malpractice claim against Purcell. Purcell settled the Merzlaks’ claims with Livestock’s insurer for $50,000. Merzlaks claim this settlement amount was undervalued.

The District Court found Purcell negligently represented the Merzlaks by failing to obtain informed consent for settlement, settling without current medical information, and simultaneously representing the Merzlaks, Ruth Hansen and the estate of Kerry Hansen.

I

Did the Merzlaks satisfy all elements necessary to prove legal malpractice against Purcell?

Attorney malpractice is professional negligence. In order to recover in a professional negligence action, “the plaintiff must prove that the professional owed him a duty, and that the professional failed to live up to that duty, thus causing damages to the plaintiff.” Lorash v. Epstein (1989), 236 Mont. 21, 24, 767 P.2d 1335, 1337, quoting Carlson v. Morton (1987), 229 Mont. 234, 238, 745 P.2d 1133, 1136.

The proper measure of damage in an attorney malpractice action is the difference between the client’s recovery and the amount that would have been recovered by the client except for the attorney’s negligence. "... [A] claim of malpractice must be supported not only by a showing of malpractice by ... [the attorney], but by a showing that hut for’ their negligence, [the client] ... would have recovered additional amounts ...” Weaver v. Law Firm of Graybill (1990), 246 Mont. 175, 179, 803 P.2d 1089, 1092.

Purcell contends that the Merzlaks did not prove Purcell’s conduct caused them damage. As later discussed, the District Court agreed with that contention. Failure to prove damages is fatal to an attorney malpractice action. Kinniburgh v. Garrity (1990), 244 Mont. 350, 355, 798 P.2d 102, 105.

In its Memorandum, Findings of Fact and Conclusions of Law, the District Court properly concluded that in order to establish a cause of action for legal malpractice, there must be a showing that the attorney owed his client a duty of care, that there was a breach of this duty by a failure to use reasonable care and skill, and that the breach was the proximate cause of the client’s injury and resulted in damages. The key Finding of Fact with regard to damages is the following partial statement from Finding of Fact 37 by the District Court:

37.....Insufficient evidence was presented to enable this Court to be convinced that a settlement value could be placed on this case had Purcell not handled the case as he did ....

The District Court reached the following key conclusion on the issue of damages:

The issue of damages is a troubling aspect of this case. As noted in Findings of Fact #3 7, the testimony regarding the settlement value of the Plaintiffs’ claims was very speculative and does not afford a sufficient basis for an award of damages.

We have carefully reviewed the evidence and conclude that the District Court was correct in its finding that insufficient evidence was presented to establish a settlement value different from the value negotiated by Purcell. We further agree with the conclusion of the District Court that the testimony regarding the settlement value of the plaintiffs’ claims was speculative and did not afford a sufficient basis for an award of damages. As in Kinniburgh, we conclude that the failure to prove damages is fatal to the attorney malpractice action. We hold that the Merzlaks failed to prove legal malpractice against Purcell because of their failure to prove damages.

II

Did the court improperly award the Merzlaks $12,398.20 in attorney’s fees plus interest?

The District Court concluded that Purcell breached his duty of reasonable care in representing the Merzlaks. Accordingly it ordered a return of the attorney’s fee paid by the Merzlaks to Purcell in the amount of $12,298.20, together with interest.

While Purcell may have breached his duty of care, that is insufficient to justify an award of damages. Lorash, Kinniburgh and Weaver. Failure to prove damages is fatal to the action. Thus, we hold that the District Court improperly awarded the Merzlaks $12,398.20 in attorney’s fees, plus interest.

We remand for the entry of a judgment in accordance with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, HUNT, GRAY, McDONOUGH concur. JUSTICE TRIEWEILER did not participate.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. HARVEY WALTER NIEMI, Defendant and Respondent.
    No. 91-130.
    Submitted on Briefs September 19, 1991.
    Decided February 19, 1992.
    49 St.Rep. 141.
    252 Mont. 531.
    830 P.2d 1280.

      For Appellant: Marc Racicot, Attorney General; Joseph Thaggard, Asst. Attorney General, Helena; Patrick L. Paul, County Attorney; Steven Hudspeth, Deputy, Great Falls.
    For Respondent: Daniel Donovan, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

The State of Montana appeals a judgment of conviction and sentencing order from the Eighth Judicial District, Cascade county, which sentenced Harvey Walter Niemi (Harvey) to ten years imprisonment for attempt (deliberate homicide) and two years imprisonment for use of a dangerous weapon, both sentences suspended except for fifteen days already served. The District Court further sentenced Harvey to 4000 hours of community service. We affirm on another ground.

We rephrase the issues presented on appeal to the following:

Did the District court err when it suspended Harvey’s sentences of ten years imprisonment for attempt (deliberate homicide) and two years imprisonment for use of a dangerous weapon under §§ 46-18-201(5) and -221(3), MCA?

Harvey and Katherine Jean Niemi (Jean) were married on June 10,1966. Following their marriage, the couple resided in Great Falls, Montana.

Both Harvey and Jean were employed as teachers; Jean retired in 1988 and Harvey retired in 1989. Through the years, Harvey and Jean generally were viewed as a happily married couple. Many perceived Harvey to be a mild-mannered, non-violent, and kind person. Prior to January 1990, Harvey’s criminal record consisted of one minor traffic violation.

On January 9,1990, Harvey and Jean began a normal day at home. Following a noon-time meal, Harvey told Jean that he was going to a local store to purchase some remodeling supplies. However, Harvey did not leave the home. He went to the basement, changed his clothing, put on an old pair of eyeglasses and a pair of panty hose over bis head, and placed rubber gloves on his hands. He then waited for Jean to enter the basement. When Jean entered the basement to use a bathroom, Harvey stabbed her several times with a knife, wounding her in the head, chest, stomach, and hand. Following the stabbing, Harvey expressed remorse and said he could not understand how he could have committed such an offense. Jean recovered from the stab wounds.

On January 23, 1990, the State charged Harvey by information with one count of attempt (deliberate homicide). Harvey pled not guilty to this charge on February 14, 1990. A jury trial was held on November 13 to November 20,1990. At the trial, Harvey testified that for years he had repressed anger concerning Jean. He further testified that at the time of the stabbing, he felt he was not in his body, but rather, was above and behind his body, watching what was happening. Dr. William Stratford, a psychiatrist, testified that at the time of the stabbing, Harvey experienced a dissociative state of mind. On November 20, 1990, the jury found Harvey guilty of the charged offense.

Prior to sentencing, Harvey moved the District Court to find that § 46-18-222, MCA, exempted him from the mandatory minimum sentencing penalties contained in § 45-5-102(2), MCA, the sentencing provision for deliberate homicide, and § 46-18-221(1), MCA, a sentencing provision for use of a dangerous weapon. Harvey argued that § 46-18-222(2) and (3), MCA, exempted him from the mandatory minimum sentences because at the time he stabbed Jean 1) his mental capacity was significantly impaired, and 2) he was acting under unusual and substantial duress. At the sentencing hearing, Harvey abandoned his argument that he was acting under unusual and substantial duress at the time he stabbed Jean but maintained that his mental capacity was significantly impaired.

Following oral argument, the District Court found that Harvey’s mental capacity at the time he stabbed Jean did not exempt him from the mandatory minimum sentences under §§ 45-5-102(2) and 46-18-221(1), MCA. The District court sentenced Harvey to ten years imprisonment for attempt (deliberate homicide) and two years imprisonment for use of a dangerous weapon, both sentences suspended except for fifteen days already served. The District Court further sentenced Harvey to 4000 hours of community service.

The State filed its notice of appeal regarding Harvey’s sentence on January 15, 1991. Harvey likewise filed a notice of appeal on March 8, 1991. On June 4, 1991, the State filed a brief, which in part anticipated and discussed issues Harvey could raise in his cross-appeal. On August 6, 1991, Harvey filed a brief that resembles the format of a cross-appeal. On August 13, 1991, Harvey moved this Court to stay his appeal pending the outcome of the State’s appeal under Montana Rule of Appellate Procedure 3. On September 9,1991, this Court granted Harvey’s request for a stay of his appeal.

Because Harvey’s cross-appeal has been stayed by this Court, issues raised by both the State and Harvey in their respective briefs that pertain to Harvey’s cross-appeal will not be discussed herein. Accordingly, we will limit our discussion to the following issue:

Did the District Court err when it suspended Harvey’s sentences of ten years imprisonment for attempt (deliberate homicide) and two years imprisonment for use of a dangerous weapon under §§ 46-18-201(5) and -221(3), MCA?

The District Court at the sentencing hearing held that Harvey’s mental capacity at the time he stabbed Jean did not exempt him from mandatory minimum sentencing -under § 46-18-222, MCA. The District Court acknowledged, however, that it was a “close question” as to whether Harvey’s mental capacity was significantly impaired at the time of the offense under § 46-18-222(2), MCA. The District Court stated:

When you look at what happened here, the overall event that occurred it is almost incredible and it is difficult to believe that anybody in their right mind in full possession of their mental faculties would have committed this offense under these circumstances.... And although there has been a psychiatric explanation of what happened, this dissociative state, the jury did not accept that offered evidence in determining guilt of Mr. Niemi. Although the required proof, I think, to establish this mental capacity exception, I don’t think it requires proof beyond a reasonable doubt as do the elements of the criminal offense. But, I really question whether — there is certainly some indication, certainly some testimony here that the mental capacity of Mr. Niemi was impaired at that time when this offense occurred and maybe for a short period of time before it occurred when he was waiting. But, I find it difficult to accept that Mr. Niemi’s mental capacity was so significantly impaired to justify an exception from mandatory minimum sentence.
This is the most -unusual criminal case that I have presided over in my 14 years on the bench. It’s very bizarre. Serious and yet the people that are involved are exemplary people and it just borders on mind boggling.

The District Court further held that incarceration in this instance would be inappropriate in light ofHarvey’s stellar community service record, the nature of the offense, the unlikelihood that Harvey would ever attempt to harm Jean again, Harvey’s remorse, and his lack of a previous criminal record. Thereafter, the District Court, inter alia, sentenced Harvey to the mandatory minimum sentence of ten years imprisonment for attempt (deliberate homicide) under § 45-5-102(2), MCA, and the mandatory minimum sentence of two years imprisonment for use of a dangerous weapon under § 46-18-221(1), MCA; the court suspended both sentences except for fifteen days already served. The District Court cited State v. Arbgast (1983), 202 Mont. 220, 656 P.2d 828, as authority for its ability to suspend Harvey’s mandatory minimum sentences.

The State argues that Arbgast is not applicable to these facts. The State further argues that the District Court erred by suspending the sentences in this case under §§ 46-18-201(5) and -221(3), MCA. Section 46-18-201(5), MCA, provides “[ejxcept as provided in 46-18-222, the imposition or execution of the first 10 years of a sentence of imprisonment imposed under 45-5-102 may not be deferred or suspended.” Section 46-18-221(3), MCA, provides that the mandatory minimum sentence for use of a dangerous weapon “may not be deferred or suspended, except as provided in 46-18- 222. ” The State argues that because the District Court held that § 46-18-222, MCA, did not apply, §§ 46-18-201(5) and -221(3), MCA, require the court to sentence Harvey to serve twelve years imprisonment for attempt (deliberate homicide) and use of a dangerous weapon.

We agree that Arbgast is not applicable here. In Arbgast, suspension of the defendant’s sentence was not specifically limited by statute to one of the exceptions contained in § 46-18-222, MCA. Here, both statutes under which Harvey was sentenced expressly prohibit suspension of the sentence unless § 46-18-222, MCA, applies.

However, following a careful review of the record, we hold that the sentences at issue herein can be suspended because Harvey’s mental capacity at the time of the offense was significantly impaired under § 46-18-222(2), MCA. Section 46-18-222(2), MCA, provides in part that a defendant’s mandatory minimum sentence may be suspended if “the defendant’s mental capacity, at the time of the commission of the offense for which he is to be sentenced, was significantly impaired, although not so impaired as to constitute a defense to the prosecution.” [Emphasis added.] Here, the jury did not find that Dr. Stratford’s testimony concerning Harvey’s mental state supported a defense to the offense. However, § 46-18-222(2), MCA, still allows a court in sentencing a defendant to suspend mandatory minimum sentencing if it finds the defendant’s mental capacity was significantly impaired but not so impaired as to constitute a defense. We emphasize again that the District Court stated that the issue of whether Harvey was significantly impaired was a “close question.” Moreover, we are persuaded by Dr. Stratford’s testimony, which details how Harvey experienced a dissociative state of mind at the time of the offense. We therefore affirm the result of the District Court’s judgment of conviction and sentencing order on the ground that Harvey is exempt from mandatory minimum sentencing under § 46-18-222 (2), MCA.

Affirmed.

JUSTICES TRIEWEILER, HUNTER, WEBER AND McDonough concur.