author: JUSTICE WEBER

text:
    DANIEL L. REMINGTON, Applicant and Appellant, v. THE MONTANA DEPARTMENT OF CORRECTIONS AND HUMAN SERVICES; CURTIS CHISHOLM, DIRECTOR OF THE MONTANA DEPARTMENT OF CORRECTIONS AND HUMAN SERVICES; MONTANA STATE PRISON; and JACK T. McCORMICK, WARDEN OF MONTANA STATE PRISON, Respondents and Respondents.
    No. 92-284.
    No. 92-451.
    Submitted on Briefs October 8, 1992.
    Decided December 15, 1992.
    49 St.Rep. 1084.
    255 Mont. 480.
    844 P.2d 50.

      For Appellant: Mark P. Yeshe, Donahoe & Yeshe, American Civil Liberties Cooperating Attorney, Helena.

      For Respondent: James B, Obie, Department of Corrections and Human Services, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an order and opinion of the Third Judicial District Court, Powell County, dismissing Daniel L. Remington’s application for mandamus, habeas corpus, and declaratory relief. We affirm.

We consider the following issues on appeal:

1. Did the District Court abuse its discretion in dismissing Remington’s petition for declaratory judgment?

2. Should this Court issue a writ of habeas corpus based on an inmate’s liberty interest in prison “good time” credits for correspondence courses?

Daniel L. Remington (Remington) is currently a parolee from the Montana State Prison. During his confinement, Remington has pursued a college degree by engaging in college level extension courses and numerous correspondence courses from accredited colleges across the country. For his College of Great Falls extension courses, Remington has received “good time” credit pursuant to Section 53-30-105, MCA, and prison policies No. 505 and PD 84-214. This “good time” acts to shorten his term of incarceration or parole. However, Remington has received no “good time” credit for the correspondence courses he has successfully completed at accredited universities such as University of Nevada at Reno, University of Utah, Eastern Washington University, and the University of Ohio.

Over a period of years, Remington sought approval from various prison authorities for “good time” credit to which he claims entitlement based on his correspondence courses. This credit has been denied.

Remington filed a petition for mandamus, habeas corpus, and declaratory relief with the Third Judicial District Court, Powell County. The court dismissed Remington’s petition in an opinion and order dated March 31, 1992. Remington appealed. By order dated November 24, 1992, this Court granted Remington’s motion to consolidate his appeal of denial of his petition for declaratory judgment and his application to this Court for habeas corpus.

I.

Did the District Court abuse its discretion in dismissing Remington’s petition for declaratory judgment?

The District Court dismissed Remington’s petition for writ of habeas corpus, mandamus and declaratory judgment. Denial of a writ of habeas corpus is not appealable to this Court. Coble v. Magone (1987), 229 Mont. 45, 744 P.2d 1244.

We will not address Remington’s petition for mandamus because the District Court did not review the petition as a request for mandamus and Remington has not argued it to this Court.

Dismissal of Remington’s petition for declaratory judgment is reviewable by this Court. When a District Court determines that declaratory relief is not necessary or proper, we will not disturb the court’s ruling absent an abuse of discretion. Empire Fire and Marine Ins. Co. v. Goodman (1966), 147 Mont. 396, 412 P.2d 569.

A declaratory judgment is primarily intended to determine the meaning of a law or a contract and to adjudicate the rights of the parties therein, but not to determine controverted issues of fact such as facts which give rise to a claim of denial of procedural due process. Raynes v. City of Great Falls (1985), 215 Mont. 114, 696 P.2d 423. The resolution of the questions in this case involves factual determinations prior to any consideration of due process or equal protection. We conclude, therefore, that declaratory judgment was not the proper procedure for resolution of this case.

We hold that the District Court did not abuse its discretion in dismissing Remington’s petition for declaratory judgment.

II.

Should this Court issue a writ of habeas corpus based on an inmate’s liberty interest in prison “good time” credits for correspondence courses?

Remington filed a second habeas corpus application to this Court in the event that this Court determined that it could not review the District Court’s denial of his petition. We have considered Remington’s arguments and find that he has failed to present facts that warrant habeas corpus.

Remington argues that he has a liberty interest in receiving “good time” credit and that because the Department of Corrections and Human Services (Department) has denied him “good time” credit for his correspondence courses, he is being restrained of liberty and denied his due process rights and equal protection of the law. The State argues that Remington does not have a liberty interest in “good time” credit and, therefore, has not been denied due process or equal protection of the laws.

The District Court determined that the Montana statute did not create a liberty interest in good time credit. The court went on to consider Remington’s equal protection argument, finding that he had not been denied equal protection as no inmate has ever been given “good time” credit for correspondence courses. Because of the consistent administering of the prison policies, the court determined that the policy was not being arbitrarily applied.

If Remington has a liberty interest in “good time” credits, as he argues, due process concerns are raised “to insure that the state-created right is not arbitrarily abrogated.” Wolff v. McDonnell (1974), 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, 951. A liberty interest is created when the legislature expressly mandates to an agency the performance of some activity to be carried out within specific parameters which include definitions, criteria, and mandated “shalls.” Connecticut Board of Pardons v. Dumschat (1981), 452 U.S. 458, 466, 101 S.Ct. 2460, 2465, 69 L.Ed.2d 158, 166.

The enabling statute for the Department of Institutions is Section 53-30-105, MCA. The statute enables the Department to make rules concerning the dispensation of “good time” credits:

(1) The department of corrections and human services shall adopt rules providing for the granting of good time allowance for inmates employed in any prison work or activity. The good time allowance shall operate as a credit on his sentence as imposed by the court, conditioned upon the inmate’s good behavior and compliance with the rules made by the department or the warden. The rules adopted by the department may not grant good time allowance to exceed:
(d) 13 days per month for those inmates enrolled in school who successfully complete the course of study or who while so enrolled are released from prison by discharge or parole;

Section 53-30-105, MCA. This statute contains no definitions, no criteria, and no mandated “shalls” for the rules it directs the Department to make.

The Department has virtually unfettered discretion in establishing the rules which will govern the dispensation of “good time” credits to prisoners. The only applicable limitations placed upon the Department by the legislature are a thirteen day cap on the amount of credits given for educational pursuits and that this credit be conditioned on the inmate’s good behavior and compliance with the Department or the warden’s rules.

Considering the enabling legislation, the Department instituted a basic policy on July 1,1983, called Policy #505. This policy established parameters for assessing “good time” credits for all activities deemed eligible for good time by the Department. According to Policy #505 and in line with the enabling statute’s cap on “good time” credits for educational pursuits, the Department allotted thirteen days per month for good time earned by pursuing educational activities.

Subsequently, in September of 1984, the Department published the revised PD 84-214 which “outlines and defines the function and operation of the Education Department at the prison.” This particular directive deals with good time earned through educational pursuits. It is a more specific policy. PD 84-214 states unequivocally that “term-based extension services” provided by approved colleges or universities will receive good time credit. Also stated unequivocally, is the denial of “good time” credit for correspondence courses.

PD 84-214 deals with two different kinds of prison educational programs: extension programs from approved colleges or universities and correspondence courses. One type of course is approved for “good time” credits and the other is not.

Nothing in the prison educational policies conflicts with the enabling statute. Therefore, we conclude the Department has set these rules in line with the broad directive provided to it by the enabling statute. Because a liberty interest is created only when the enabling statute (Section 53-30-105, MCA) specifically constrains or limits the discretion of the decision maker (the Department) and such constraint is absent here, we hold that Remington and the other inmates of the Montana State Prison do not have a liberty interest in “good time” credits. Such liberty interest being absent, Remington has not been denied due process of law because he has been denied credit for his successfully completed correspondence courses.

Remington also argues that the enabling statute denies him equal protection under the law because the prison regulation infringes on his constitutional rights. He argues that the regulation forbidding “good time” credit to inmates taking correspondence courses is valid only if it is reasonably related to a legitimate penological interest. Turner v. Safley (1987), 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64. Remington contends that the Department has not shown a reasonable relationship to a penological interest.

The record reveals testimony from respondents that correspondence courses put an unwieldy time pressure on the prison because prison personnel need to proctor exams. Extension classes are controlled and staffed by the home college. The record also suggests that extension courses are structured to guide their students.

Further, correspondence courses are missing easy access to instructors and counselors when problems arise. Remington himself testified at the evidentiary hearing that when he needed to call a contact person in Ohio or another state that he had to forgo his allotted weekly telephone call. In addition to on-site classes, extension programs provide on-site personnel who are available at regular times to help inmates even if the inmate is involved in a self-study course more individually tailored to his needs. The basic difference between these two types of courses is that the universities control and staff the extension programs while prison personnel provide the needed time to help with correspondence courses. Such time required of prison officials is not always easily found, particularly if many prisoners are enrolled in these courses from various universities.

The Department has set as its goal for the Education Program “to educate inmates to render them more knowledgeable, better socialized, and more employable upon release.” The Department has made a careful assessment that extension programs are more capable of carrying out this goal. If the Department has applied the prohibition of “good time” credits to all inmates, as the record shows, then Remington is not being denied equal protection. We conclude that the Department has a legitimate interest in promoting inmate education while also preserving the efficient administration of the prison. We conclude that the record establishes that the denial of “good time” credit for correspondence courses has not been arbitrarily made but is reasonably related to a legitimate penological interest.

We hold that a writ of habeas corpus is not appropriate because Remington is not being unconstitutionally restrained of freedom due to the prison’s denial of “good time” credits for his successfully completed correspondence courses.

Remington’s application for writ of habeas corpus to this Court is denied.

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


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    MILTON J. HILLIARD, a/k/a MEL J. HILLIARD, a/k/a J. HILLIARD, Plaintiff and Respondent, v. LaDONNA M. HILLIARD, individually and as Personal Representative of the ESTATE OF HARLAN F. HILLIARD, Deceased, Defendant and Appellant.
    No. 92-225.
    Submitted on Briefs October 14, 1992.
    Decided December 15, 1992.
    49 St.Rep. 1080.
    255 Mont. 487.
    844 P.2d 54.

      For Appellant: Donald L. Shaffer, Libby.
    For Respondent: William A. Douglas, Douglas & Sprinkle, Libby.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Nineteenth Judicial District, Lincoln County, the Honorable Robert S. Keller presiding. Appellant La-Donna Hilliard (LaDonna) appeals a judgment entered after a bench trial in which the District Court found that she held certain real property in trust for respondent Milton J. Hilliard (Milton) and ordered her to convey the property to him. We affirm.

We note at the outset that the parties seem unclear whether this case involves a resulting trust or a constructive trust. In his complaint to quiet title, Milton asserted that appellant held the property in a constructive trust for his benefit. He also included that theory in his proposed conclusions of law. However, he did not make any allegations of fraud or other wrongful act or present any evidence of such, although these are the basis upon which a constructive trust is found. Gitto v. Gitto (1989). 239 Mont. 47, 778 P.2d 906; Howard v. Dalio (1991), 249 Mont. 316, 815 P.2d 1150. Further, in bis brief to this Court, Milton concludes that “a finding by the lower Court of a ‘resulting trust’ is predicated upon reasonable grounds and should not be disturbed.” In her brief, LaDonna argues against a constructive trust and cites a 1947 case, Thompson v. Steinkamp (1947), 120 Mont. 475, 187 P.2d 1018, as authority, even though that case involved a resulting trust.

We also note that the District Court did not make it clear whether it found a resulting trust or a constructive trust in this matter. In its conclusions of law, the court found that a trust had been created, but it did not state whether the trust was a resulting trust or a constructive trust. The court then stated that “LaDonna would be unjustly enriched if she were permitted to retain title to the real property.” We look for unjust enrichment of the party holding the property when dealing with constructive trusts. Section 72-33-219, MCA. The court also spoke to the intent of the parties. We look to intent when dealing with resulting trusts. Section 72-33-218, MCA. The court then cited Sections 72-33-220 and 72-33-208(3), MCA, in finding that this action was not barred by the Statute of Frauds. However, it did not cite either Section 72-33-218 — purchase money resulting trust — or Section 72-33-219 — constructive trust — to indicate clearly which type of trust it found in this case.

Because Milton actually presented his case on a theory of resulting trust, LaDonna defended that theory, and the District Court made findings on that theory, we will speak as if the parties and the court had proceeded on that theory alone.

Although appellant raises four issues on appeal, we combine and restate them as follows:

1. Do the clean hands doctrine and other principles of equity prevent Milton from claiming a resulting trust on the property in question?

2. Did the District Court err in finding that a resulting trust had been created?

In August 1987, Milton filed a complaint against LaDonna and Harlan’s estate seeking to quiet title to certain real property located in Lincoln County. Harlan Hilliard (Harlan) was Milton’s son. La-Donna was Harlan’s wife. Harlan died on April 10, 1987. LaDonna has since remarried and is now LaDonna Mack.

The incidents giving rise to this matter initially began in Oregon in 1971 when Milton’s second marriage ended in divorce. At that time his attorney advised him to avoid holding property in his own name to prevent his ex-wife from levying on it. Therefore, he placed certain real property in Harlan’s name. When Milton sold this property, Harlan provided him with a quitclaim deed to complete the transaction. Milton received the money.

Milton eventually liquidated all his holdings in Oregon. He testified that he put the $23,800 he received from those sales in a joint bank account at the United Bank of Libby under the name of “J. Hilliard and LaDonna Hilliard.” Once again, the purpose was to avoid putting assets in his own name. LaDonna denies having any knowledge of that account.

Milton intended to move to Libby, Montana, and establish a retail tire store. He located a suitable piece of property •— the property at issue here — which was owned by Carl and Velmeda Cole (the Coles). At that time the property included a house, as well as space for a tire shop. The terms of the contract for deed were $25,000 as the purchase price with a $10,000 down payment and equal monthly installments over a ten-year period. In 1974 the property was purchased in Harlan’s and LaDonna’s names, but the $10,000 down payment came from the account Milton established. The $13,800 remaining in the account was partially used to pay for the construction of a tire store on the property. Harlan and LaDonna executed a quitclaim deed and Harlan gave a copy to Milton. Milton testified that the original was to be delivered when the contract for deed was paid off. The contract was paid off on February 4, 1982, and the warranty deed from the Coles to Harlan and LaDonna was recorded. However, Milton did not receive the quitclaim deed at that time.

On August 20, 1984, Harlan and LaDonna executed mutual reciprocal wills in which all property was to go to the surviving spouse. If neither spouse survived, specific property, including the property at issue here if Milton was not alive, was devised to their children. In the event that Milton survived both Harlan and La-Donna, he was to receive the property in question. Harlan died on April 10, 1987 without delivering the original quitclaim deed to Milton. Milton testified that LaDonna assured him that the quitclaim deed would be forthcoming. She denies this.

Milton filed this suit to quiet title. LaDonna claims that Milton is only entitled to a life estate in the property.

I

Do the clean hands doctrine and other principles of equity prevent Milton from claiming a resulting trust on the property in question?

LaDonna contends that Milton cannot now come to the court seeking to enforce a resulting trust when his purpose in placing his assets in Harlan’s and her name was to avoid execution by his ex-wife. She quotes extensively from Thompson where this Court was asked to determine the same question under very similar facts. In Thompson, Fred Thompson, the decedent, gave money to the defendant to buy real property in her name. A witness testified that he did this because “‘he didn’t want to have his second wife, to whom he was paying alimony, to come back and take a crack at the property.’ ” Thompson, 187 P.2d at 1020. The defendant argued that Thompson’s estate should not be entitled to the property because of the general rule that a court of equity will not aid one who transfers his property to another with the intent to hinder, delay, or defraud his creditors. We said in Thompson:

The general rule is as contended for by defendant but it is not a universal rule. Thus in Scott on Trusts, Vol. 3, section 444, it is said: “Although a resulting trust ordinarily arises where A purchases property and takes title in the name of B, A may be precluded from enforcing the resulting trust because of the illegality of his purpose. If A cannot recover the property, B keeps it and is thereby enriched. The question in each case is whether the policy against the unjust enrichment of the grantee is outweighed by the policy against giving relief to the payor who has entered into an illegal transaction.
The rule is likewise stated in the Restatement of the Law of Trusts, section 422, as follows: “Where the owner of property transfers it inter vivos upon an intended trust which fails for illegality, a resulting trust does not arise if the policy against permitting unjust enrichment of the transferee is out-weighed by the policy against giving relief to a person who has entered into an illegal transaction.”
As stated in the Comments in the Restatement, “... It is impossible to state a definite rule which will determine in all cases whether a resulting trust will be imposed or not, since the court will consider all the circumstances involved in the particular case.”

Thompson, 187 P.2d at 1021-1022. These rules hold true today. Restatement (Second) of Trusts Section 422.

In holding that the District Court did not abuse its discretion in finding a resulting trust in Thompson, we noted that no claims had been presented against the decedent’s estate and that no creditor had been defrauded. Likewise, in the present case, there is no evidence on the record that Milton defrauded any creditors, including his ex-wife, by following his attorney’s advice.

LaDonna also argues that Milton would be unjustly enriched if he is allowed to keep the property because Harlan supervised and worked on the construction of the tire shop. We disagree. In a memorandum to its Findings of Fact, Conclusions of Law and Judgment, the District Court added the following:

It would appear that Harlan assisted his father in constructing the building initially and in the construction of two additions which were made to the property. There is no evidence indicating that the Plaintiff intended to make a gift of the property to Harlan and LaDonna. The evidence does however tend to suggest that the work done by Harlan was intended as a gift to his father.

Milton financed the property and the improvements. The evidence does not establish that Harlan intended anything other than to assist his father in the matter. Therefore, Milton will not be unjustly enriched.

We hold that the clean hands doctrine and other principles of equity do not prevent Milton from claiming a resulting trust in this property.

II

Did the District Court err in finding that a resulting trust had been created?

As noted above, the District Court concluded that an involuntary or implied trust had been created. Trusts must be established by evidence that is clear, convincing and practically free from doubt. Eckart v. Hubbard (1979), 184 Mont. 320, 325, 602 P.2d 988, 991. Involuntary trusts are equitable in nature. Therefore, in reviewing this matter we are guided by Section 3-2-204(5), MCA, which requires this Court to review and determine both questions of fact and law. We are also guided by the rule that this Court will not disturb the lower court’s findings of fact unless the record shows a decided preponderance of evidence against them. Gitto, 778 P.2d at 908.

Neither the parties nor the court cited the controlling statute in this case. That statute provides in pertinent part:

72-33-218. Purchase money resulting trust. (1) Where a transfer of property is made to one person and the purchase price is paid by another, a resulting trust arises in favor of the person who paid the purchase price.
(2) Subsection (1) does not apply in any of the following circumstances: ...
(b) whenever the transferee is a spouse, child, or other natural object of the bounty of the person who paid the purchase price; ...
(3) Subsection (2)(b) does not apply if the party paying the purchase price manifested an intention that the transferee should not have the beneficial interest in the property.

Subsection (1) states the general rule regarding purchase money resulting trusts. As noted above, Milton placed $23,800 in an account with United Bank of Libby. The evidence showed that $10,000 of the funds in that account were used as down payment for the purchase of the Coles’ property. Milton also made all payments on the contract for deed to the Coles. There is no dispute that the property was placed in Harlan’s and LaDonna’s name. Therefore, this case falls within subsection (1) of this statute.

Subsection (2) seemingly makes subsection (1) inapplicable because this transaction occurred between father and son. This subsection creates a rebuttable presumption that the transaction created a gift. However, subsection (3) provides for a rebuttal by showing that the payor manifested an intention that the transferee should not have a beneficial interest.

The presumption of a gift must be overcome by clear and convincing evidence. In re the Estate of Lettengarver (1991), 249 Mont. 92, 96, 813 P.2d 468, 471. The evidence establishing that this was not a gift begins in Oregon where Milton and Harlan established a practice whereby Milton placed his property in Harlan’s name and Harlan quitclaimed it back to him when Milton sold the property. The procedure followed in Libby is wholly consistent with that practice. Also, Milton testified that he located the property and negotiated for its purchase. LaDonna points to the testimony from Roy Cook who testified that he was present when Harlan and LaDonna were discussing the property with the Coles. However, Mr. Cook was not present at the final negotiations. Further, Milton paid for the property and all improvements including the tire shop and two additions to the shop. Milton also collected all the rents and paid all the insurance and taxes and maintained the property. And Milton treated the property as his own by taking exclusive possession, excepting the renters, and using it for his business.

On the other hand, Harlan and LaDonna bore none of the expenses associated with the property. Both parties presented evidence that they claimed depreciation on the property for tax purposes. This does not cast a shadow of doubt in light of the other evidence of record. The facts clearly and convincingly establish that a gift was not intended here.

Further, the copy of the quitclaim deed and statement that the original would be forthcoming are evidence of an understanding between Harlan and Milton that Milton was to have the property. LaDonna admits that she had nothing to do with the dealings between Harlan and Milton and that she was not present during their conversations concerning the property. Although the wills, which left the property to Milton only if he survived Harlan and LaDonna, tend to show a different perspective, we do not look to Harlan’s and LaDonna’s intent; we look to Milton’s intent. Milton’s actions manifested a quite different intent.

The facts clearly and convincingly establish that a purchase money resulting trust was intended and created.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES WEBER, HUNT and McDonough concur.


author: JUSTICE McDONOUGH JUSTICE TRIEWEILER

text:
    MICHAEL BROCKIE, as Personal Representative of the Estate of ARIC C. BROCKIE, Deceased, Plaintiff and Appellant, v. OMO CONSTRUCTION, INC., Defendant and Respondent.
    No. 91-585.
    Submitted on Briefs June 11, 1992.
    Rehearing Denied January 14, 1993.
    Decided December 16, 1992.
    49 St.Rep. 1092.
    255 Mont. 495.
    844 P.2d 61.

      For Appellant: Kurt M. Jackson, Hoyt and Blewett, Great Falls.
    For Respondent: Michael J. Milodragovich and Margaret L. Sanner, Milodragovich, Dale and Dye, Missoula.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Michael Brockie, personal representative of the estate of Aric C. Brockie, appeals from an order of the First Judicial District, Lewis and Clark County, denying his motion for a new trial. We affirm in part and reverse in part.

The following issues are presented on appeal:

1. Whether the District Court erred in denying Brockie’s motion for a new trial;

2. Whether the District Court erred in refusing to instruct the jury that Omo Construction, Inc.’s violation of the Manual on Uniform Traffic Control Devices constituted negligence as a matter of law;

3. Whether the District Court erred in refusing to instruct the jury that mere compliance with traffic regulations does not necessarily constitute due care; and

4. Whether the District Court erred in excluding certain impeachment evidence and by admitting certain prejudicial evidence.

On November 26, 1989, Aric Brockie was killed in a one car accident on 1-94 near the Huntley Interchange east of Billings. Aric Brockie was the passenger in a vehicle driven by a friend. The two were returning to Billings after a Thanksgiving holiday in Miles City. The vehicle skidded as it approached an icy bridge. The car slid off the highway into the median where it struck a flasher board owned by Omo Construction, Inc. (Omo).

Omo was performing traffic control and guardrail work on 1-94 as part of a construction contract with the State Highway Department. On Wednesday, November 22, 1989, Omo had installed a new guardrail and median hazard closures on a bridge structure. In order to erect the guardrail on the median sides of the bridge, the crew was required to close the passing lane of the interstate in each direction of travel. Omo erected a number of advance warning signs for each lane plus two portable “arrow boards” or “flasher boards” which directed traffic with flashing arrows.

At the end of the day, on Wednesday, November 22, 1989, the foreman on the project directed worker Michael Stookey to remove the equipment from the highway and store it for the Thanksgiving holiday. Stookey removed the advance warning signs to a location east of the bridge next to the highway right-of-way fence. He pulled other signs to the parking lot of the Longhorn Cafe. Upon instructions from the foreman he placed the flasher boards in the middle of the median at either end of the bridge.

Highway Patrol Officer Virginia Kinsey drove past the area several times during her shift on November 26, 1989. She testified that she had the authority to have construction equipment removed if it was hazardous to the public. She saw the flasher board and did not believe it was in a hazardous area. Officer Kinsey responded to the Brockie accident and along with two other officers, made measurements at the scene. She testified that the flasher board was 27 feet 2 inches from the yellow median strip of the westbound lane at the time of impact. Traffic control provisions of the contract required compliance with highway safety standards. A “30 foot clear” zone requirement prohibits storage of a traffic control device within 30 feet of the traveled highway.

Omo’s expert, Dr. Thomas Blotter, an accident reconstruction expert, opined that the flasher board was parked between 34 and 48 feet from the westbound lane at the time of impact. Dr. Blotter testified at trial, basing his analysis on motion theory and kinematics. Since Brockie did not put an expert on the stand, Dr. Blotter’s testimony went uncontroverted.

Francis H. Rice, the jury foreman, after the close of the evidence, went to the library of Carroll College to do some research about Dr. Blotter’s testimony. Rice had taken some physics courses in college, and by affidavit, stated he wished to refresh his memory about physics principles concerning kinematic theory and motion theory. He stated his research clarified the testimony of Dr. Blotter. Rice stated that he mentioned to only one other juror that over the weekend he had done some research into kinematic theory and motion theory. However, affidavits of two separate jurors stated Rice mentioned his research to them in the jury room. By affidavit Rice stated he did not mention his research during deliberations.

Brockie’s counsel, upon hearing that Rice had done some independent research, filed a motion for a new trial with the District Court. The District Court denied Brockie’s motion. This appeal followed. Our standard of review is whether or not the District Court abused its discretion in denying Brockie’s motion for a new trial and ruling on evidentiary matters. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

I

Whether the District Court erred in denying Brockie’s motion for a new trial.

The District Court found that the actions of Mr. Rice amounted to jury misconduct. However, relying on Arthur v. Washington Iron Works (1978), 22 Wash.App. 61, 587 P.2d 626, the District Court found that Rice’s conduct was not prejudicial to Brockie. In Arthur, the jury foreman went to the public library and looked for handbooks on rigging and informed the other jurors they were available. He also examined the yellow pages to see if the experts who testified were listed. Arthur, 587 P.2d at 628. The court of appeals upheld the trial court’s determination that the library incident went to the credibility of the witness and that the telephone directory incident gave extra status to the expert listed. Arthur, 587 P.2d at 631.

Generally, courts in both civil and criminal cases have held that to warrant a new trial, the misconduct must be such that actual or potential injury results to the losing party. Section 25-11-102, MCA, governs grounds for a new trial. It provides in part:

The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party;
(1) irregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
(2) misconduct of jury. Whenever any one or more of the jurors have been induced to assent to any general or special verdict or to a finding on any question submitted to them by the court by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

See also Rule 606, M.R. Evid.

We agree with the District Court that the actions of juror Rice constituted jury misconduct, as shown by his affidavit, and the affidavit of two other jurors. The question before us remains whether actual or potential injury to Brockie resulted from Rice’s conduct, and denied Brockie a fair trial. We have said in Putro v. Baker & Mannix Electric, Inc. (1966), 147 Mont. 139, 410 P.2d 717, that the “guiding principle in our legal system is fairness” and that both sides of the lawsuit are entitled to a fair trial. Putro at 147, 410 P.2d at 722. We went on to state that there is no practical method to determine whether the outcome would be different had the misconduct not occurred. We said: “The trial court should have declared a mistrial in justice to itself as well as to parties, so that a fair trial may result and the verdict when rendered may be entitled to the respect of both parties and the confidence of the court.” Putro at 148, 410 P.2d at 722.

In Putro a newspaper article disclosed that the defendant plead guilty to manslaughter, in a related criminal case, as a result of the accident in question. One of the jurors clipped the article and brought it into the jury room. The jurors stated that the article did not influence their verdict. Further, two of the jurors stated that they dropped the subject because they did not think they should read the article. We held that the possibility of influence existed, and probable prejudice resulted. Putro at 149, 410 P.2d at 723.

In Ahmann v. American Fed. Sav. & Loan Ass’n (1988), 235 Mont. 184, 766 P.2d 853, we held that any influence the alleged remark of the bailiff may have had on the jury did not affect the rights of the Ahmanns, and affirmed the District Court’s denial of Ahmann’s motion for a new trial. In Ahmann the jurors raised a question for the judge. The bailiff said the judge wouldn’t answer it until after the trial. However, he did not preclude the jurors from pursuing the matter. Ahmann at 191, 766 P.2d at 857.

In the present case, Omo presented the expert testimony of Dr. Blotter at the trial. Dr. Blotter testified to the theory of kinematics and motion theory in relation to the location of the flasher board at the time of impact. Dr. Blotter’s testimony was not contested or controverted by an expert, but was contested by the testimony of highway patrolman Kinsey. The location of the flasher board was at the very heart of the evidence. Francis Rice by affidavit, related that he went to the Carroll College library to research the theory of kinematics and motion theory and it clarified Dr. Blotter’s testimony. Affidavits of two other jurors confirmed he had mentioned this to them in the jury room. Probable prejudice resulted from Rice’s misconduct. Rice’s independent alleged clarification of Dr. Blotter’s testimony affected the rights of Brockie for any statements by Rice in the jury room relative to the placement and positions of the sign, could in effect make Rice a witness as to those jurors to whom he mentioned his research.

We conclude the District Court abused its discretion in denying Brockie’s motion for a new trial. Because we remand for a new trial, the balance of the issues are instructive only.

II

Whether the District Court erred in refusing to instruct the jury that Omo Construction, Inc.’s violation of the Manual on Uniform Traffic Control Devices constituted negligence as a matter of law.

The District Court refused Brockie’s jury instruction that a violation of the Manual on Uniform Traffic Control Devices (MUTCD) is negligence per se. In 1955 the legislature authorized the State Highway Department to adopt a manual on traffic control devices. The State Highway Commission adopted the MUTCD in 1971. In 1981 the legislature amended Section 61-8-202, MCA, to clarify which traffic control manual the highway department should adopt. The statute now states: “The department of transportation shall adopt a manual for a uniform system of traffic-control devices . . .” Section 61-8-202, MCA. If the legislature mandates a department to adopt rules but does not act further to adopt the rules, the rules do not become part of a statute by reference. Cash v. Otis Elevator Co. (1984), 210 Mont. 319, 326, 684 P.2d 1041, 1045. Here, the MUTCD is not incorporated by reference. The MUTCD is not a statute but an administrative regulation. Violation of the MUTCD is not negligence per se but evidence of negligence. See Williams v. Maley (1967), 150 Mont. 261, 434 P.2d 398, Herbst v. Miller (1992), 252 Mont. 503, 830 P2d 1268.

We conclude that the District Court did not err in denying Brockie’s proposed instruction that a violation of the MUTCD was negligence per se.

Ill

Whether the District Court erred in refusing to instruct the jury that mere compliance with the traffic control regulations does not necessarily constitute due care.

The District Court refused Brockie’s instruction number 44. Instruction 44 Provided:

If you find that defendant OMO Construction, Inc. placed the arrow board more than thirty (30) feet from any traffic lane, you are instructed that defendant Omo Construction, Inc. was still required to comply with the provisions of its contract including the requirements of the MUTCD.

Brockie argues that the District Court’s refusal of this instruction encouraged the jury to conclude that mere compliance with the 30 foot clear zone constituted due care. The District Court also refused Brockie’s No. 17 which instructed the jury that Omo had a duty to remove obstacles which may constitute an unreasonable danger to motor vehicles and a violation of that duty is evidence of negligence.

However, the District Court provided the jury with proposed instructions 42 and 45 which provide respectively:

INSTRUCTION NO. 42
Ordinary care is not an absolute term, but a relative one. That is to say, in deciding whether ordinary care was exercised in a given case, the conduct in question must be viewed in light of all the surrounding circumstances, as shown by the evidence in the case.
INSTRUCTION NO. 45
On December 1, 1971, the Manual on Uniform Traffic Control Devices (MUTCD), was adopted by the Montana Highway Commission as a standard or norm to be used for traffic control devices. Pursuant to the contract signed by the defendant Omo Construction, Inc., it was required to comply with the requirements of the MUTCD. If you find that defendant Omo Construction, Inc. violated any of the provisions of the MUTCD, you may consider such violation as evidence of Omo’s negligence in this case.

We conclude that the District Court’s instructions properly instructed the jury. Therefore the District Court did not err in refusing Brockie’s proposed instructions.

IV

Whether the District Court erred in excluding certain impeachment evidence and by admitting certain prejudicial evidence.

The District Court granted Omo’s motion in limine preventing Mr. Charlton, a retired Project Manager for the Highway Department, from testifying on certain matters. On the Monday following the accident, Mr. Charlton visited the accident scene and made some measurements of highway equipment stored by Omo. When Mr. Charlton arrived at the site, the flasher board in question had already been removed. He made measurements of the other flasher board on the other side of the bridge and equipment some distance from the accident site. The District Court ruled that only evidence concerning the accident would be relevant.

On direct examination, Mr. Charlton testified that for safety’s sake, obstructions should be completely removed from the median. On cross examination, Mr. Charlton testified that the other flasher board parked in the median on the other side of the bridge was outside the clear zone and in conformity with the requirements of the State of Montana. The District Court did not allow redirect examination about equipment unrelated to the accident, placed some two miles from the accident site.

Brockie sought to ‘impeach’ Mr. Charlton through testimony that this other equipment, although in compliance with the clear zone, should be removed for safety reasons. Impeachment is typically used to test the veracity of a witness. On direct examination, Mr. Charlton testified that obstructions should be removed for the sake of safety. However, he admitted on cross that the other flasher board conformed with State requirements. Any testimony stating that equipment two miles from the accident site should have been removed for safety’s sake would not be proper impeachment. The placement of the equipment two miles from the accident site is irrelevant, thus testimony regarding this equipment would not be proper impeachment.

Brockie argues that Mr. Charlton’s testimony that the flasher board on the other side of the bridge was in the clear zone and in conformity with the requirements of the State of Montana was prejudicial based on Rule 403, M.R.Evid. Rule 403 excludes evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Because Mr. Charlton testified that any obstructions should be removed for the sake of safety, we do not find this testimony prejudicial.

We conclude that the District Court did not err in refusing Mr. Charlton’s testimony regarding the other equipment.

For the reasons set forth above, we reverse and remand to the District Court for proceeding not inconsistent with this opinion.

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

JUSTICE TRIEWEILER

specially concurring and dissenting.

I concur with the majority’s conclusion under Issue I that Michael Brockie is entitled to a new trial, based upon misconduct of the juror, Francis Rice.

I also concur with the majority’s conclusion under Issue IV that the District Court did not abuse its discretion by limiting the redirect examination of Robert Charlton. However, I do not agree with all that is said in the majority’s rationale for that conclusion. Specifically, I do not agree that the questions posed to Charlton on redirect examination were improper for purposes of impeachment. However, I do agree that the District Comb has broad discretion when it rules on the propriety of cross-examination or redirect examination. In this case, I agree that that discretion was not abused.

I dissent from the majority’s conclusions under Issues II and III which relate to the District Court’s jury instructions.

I conclude that based on our prior case law, and based upon the better public policy, the jury should have been instructed that a violation of the Manual on Uniform Traffic Control Devices is negligence as a matter of law.

While the majority relies on our prior decisions in Cash v. Otis Elevator Company (1984), 210 Mont. 319, 684 P.2d 1041, and Williams v. Maley (1967), 150 Mont. 261, 434 P.2d 398, I conclude that our decision in Martel v. Montana Power Company (1988), 231 Mont. 96, 752 P.2d 140, is controlling.

The Williams decision is not relevant to our conclusion on this issue because it was decided in 1967, and as pointed out by the majority, the statute upon which it relied was materially amended in 1981. At the time that Williams was decided, Section 32-2134, R.C.M. (now Section 61-8-202, MCA), made no reference to the Manual on Uniform Traffic Control Devices. Therefore, the Highway Commission had no direct mandate from the legislature to consider or adopt that manual. The majority opinion points out that that section was amended in 1981. However, when quoting the statute, the majority fails to include the amended portion. Significantly to our decision, the full statute now reads as follows:

The department of transportation shall adopt a manual for a uniform system of traffic-control devices consistent with this chapter for use upon highways within the state. This uniform system shall correlate with and so far as possible conform to the manual on uniform traffic control devices, as amended. [Emphasis added.]

Section 61-8-202, MCA.

In other words, at the time that Williams was decided, the statute which authorized the Highway Commission to adopt a manual for uniform signing of highways made no specific reference to the MUTCD. At all times relevant to this action, the statute in question mandated that the Department of Transportation adopt a manual and that it conform as closely as possible to the MUTCD.

The correct analysis under our case law regarding when the violation of national standards, such as the MUTCD, constitutes negligence per se is found in Herbst v. Miller (Mont. 1992), 830 P.2d 1268, 49 St. Rep. 40. In that case, we gave the following explanation of the legal effect of national standards which have been adopted in Montana:

We have held that violation of an administrative rule adopted under Section 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 recognize that Section 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 ....
... The Town of Belgrade adopted a resolution whereby the UBC [Uniform Building Code] is incorporated by reference ....
... 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.

Herbst, 830 P.2d at 1271.

The Town of Belgrade adopted the Uniform Building Code by reference, and therefore, we found that violation of the building code was negligence per se.

The Montana Legislature mandated that the Department of Transportation “adopt a manual for a uniform system of traffic-control devices,” and that so far as possible it conform to the “manual on •uniform traffic control devices, as amended.” Section 61-8-202, MCA. From that point on, the MUTCD was clearly “a national standard adopted by specific statutory reference.” I fail to see any practical difference between the circumstances in this case, and the circumstances in Herbst or Martel. Furthermore, I fail to see any justification from a public policy point of view for giving greater legal significance to the Uniform Building Code or the National Electric Safety Code, than the Manual on Uniform Traffic Control Devices. As a practical matter, they are all part of the law of the State of Montana. They were all enacted to protect the public and make Montana a safer place to live, and the violation of one creates just as much potential for danger as the violation of another. The majority opinion constructs intellectual distinctions which make no practical difference, and which are neither supported by our prior case law nor common sense. It does nothing to further the historical purposes of the law of negligence.

Finally, I dissent from the majority opinion because I disagree with this Court’s conclusion, which had its genesis in Stepanek v. Kober Construction (1981), 191 Mont. 430, 625 P2d 51, that there is any rational basis for treating the violation of a statute any differently than the violation of a lawfully enacted safety regulation. Both the statute and the safety regulation have the same purpose. Both are enacted for the public’s protection, and presuming that proper procedures were followed, both are equally enforceable in the event of their violation. When it comes to determining whether one or the other can be used as a threshold standard by which to evaluate the exercise of reasonable care, what reason is there to treat one differently than the other?

Safety regulations are adopted by the various state agencies, or adopted pursuant to notice to interested parties. They are enacted to further a legislative purpose for which that agency was established, and they presumably establish standards of reasonable conduct in the industry or area of activity with which they are concerned. Therefore, when it comes to a conclusion about whether a violation of the law amounts to negligence per se, I would draw no distinction between violations of statutory law and violations of regulatory law.

For these reasons, I conclude that the jury was instructed improperly and dissent from that part of the majority opinion which concludes otherwise.

JUSTICE HUNT concurs in the foregoing concurrence and dissent of JUSTICE TRIEWEILER.


author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    STATE PERSONNEL DIVISION OF THE DEPARTMENT OF ADMINISTRATION, STATE OF MONTANA, Petitioner and Appellant, v. BOARD OF PERSONNEL APPEALS, Division of the Department of Labor and Industry of the State of Montana; and COMMUNITY CORRECTIONS SPECIALIST II, Department of Institutions, Respondents and Respondents.
    No. 91-403.
    Submitted January 8, 1992.
    Decided December 16, 1992.
    49 St.Rep. 1087.
    255 Mont. 507.
    844 P.2d 68.

      For Appellant: David L. Ohler argued, Dept, of Administration, State Personnel Div., Helena.
    For Respondents: Melanie Symons argued, Dept, of Labor and Industry, Bd. of Personnel Appeals, and J.C. Weingartner argued, Community Corrections Specialists II, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

The State Personnel Division (Division) of the Department of Administration appeals from a decision and order of the District Court of the First Judicial District, Lewis and Clark County. The District Court affirmed a final order of the co-respondent Board of Personnel Appeals (Board) which granted retroactive pay to the co-respondents Community Corrections Specialists II, employees of the Department of Institutions (employees). We reverse and remand.

The issue we address on appeal is whether the District Court erred in affirming the Board’s order granting retroactive pay to the employees.

The employees initiated a classification appeal by filing a petition with the Board on April 24,1987. They sought a classification review of their Community Corrections Specialist II (CCS II), grade 12, classification. The Board designated the classification appeal a group classification appeal pursuant to 24.26.513, ARM.

The Division submitted a Step III response to the group classification appeal on August 31,1987. The response included the Division’s findings that the employees’positions were properly classified as CCS II, grade 12. The Division also found that while the appeal investigation did not yield a more appropriate class for the employees, comparisons to other positions, including Community Corrections Specialist III (CCS III), grade 13, indicated a need for a series review; complicating the classification appeal was a reassignment of some employees to the then newly-created Department of Family Services. The Division further found:

The State Personnel Division shall conduct a review of the Community Corrections Specialist Series to determine whether 1) the reassignment of some [of the employees] to the Department of Family Services will affect their position classifications; 2) a grade level distinction exists between the [CCS II and CCS III] classes; and 3) the appropriate grade levels have been assigned to Community Corrections Specialists Series.

On September 15, 1987, the parties stipulated that, pending the series review, the employees’ classification appeal would remain in full force and effect; the stipulation specifically preserved the established date of filing. The stipulation also waived the time requirement for appealing the Step III decision until the series review was completed.

The Division completed its series review on June 3, 1988. It developed a new classification for positions assigned adult case supervision under the Department of Institutions. All positions at grades 11 and 12 were reclassified to Probation and Parole Officer, grade 13. Positions assigned juvenile case loads, under the Department of Family Services, were reclassified as Family Services Specialists II, grade 13. The reclassification and resultant upgrade became effective on July 1, 1988. The Division determined that the employees were not entitled to retroactive pay because they were properly classified when they filed their classification appeal, based on the standards then in place.

On June 10, 1988, the employees advanced their classification appeal to Step IV of the grievance procedure. The parties stipulated to the issues to be presented to the hearing examiner at a hearing which was held on January 13, 1989. The issues were whether the CCS III class specification was a better description of the employees’ position duties than CCS II and whether the employees’ position duties were more similar to those positions assigned to CCS III.

The hearing examiner issued his findings of fact, conclusions of law and recommended order on April 7,1989. He found that the CCS III class was distinguished from the employees’ class only by the addition of special assignments. However, he denied the employees’ request to be reclassified on the grounds that they did not demonstrate that they performed the additional duties assigned to the higher class, that they were improperly classified, or that the Division failed to comply with the established methods or standards when considering their classification appeal.

The hearing examiner also found that the Division’s investigation resulting from the employees’ classification appeal indicated a need for a classification series review and that “[a]ny upgrade resultant from that series review must be retroactive.” He concluded that the employees were aggrieved when their reclassification was not made retroactive. He recommended an order that those employees reclassified as a result of the series review be paid the difference between what they had been paid and what they would have been paid had the results of the series review been made retroactive to thirty days prior to the date of their classification appeal.

The Division filed exceptions to the findings of fact, conclusions of law and recommended order. The Division asserted that because the hearing examiner found against the employees on the two issues stipulated to by the parties prior to the hearing, the hearing examiner’s recommendation that the employees be awarded retroactive pay was improper. After oral argument, the Board remanded the case to the hearing examiner for further proceedings pursuant to the stipulations in effect at the time of the previous hearing, together with the issue of retroactive pay. The Board’s order did not address the question of retroactivity other than setting the cause for rehearing.

Another hearing was set for September 26, 1989. At a prehearing conference on September 5,1989, the parties agreed that the hearing examiner would not hear additional evidence on the two previously stipulated issues. The sole issue presented to the hearing examiner was whether there was “linkage” between the employees’ classification appeal and the series review and, if so, whether that linkage provided a basis for retroactive pay.

The hearing examiner issued his second findings of fact, conclusions of law and recommended order on March 14, 1990. He reaffirmed his earlier findings on the original two issues and further found that there was linkage between the employees’ classification appeal and the series review. He found that the Division recognized the need for a series review prior to the employees’ classification appeal and, while the classification appeal may not have been the motivating factor for the series review, it was a factor which, together with others, accelerated that review to correct a recognized need. The hearing examiner again recommended retroactive pay based on his conclusion that the linkage between the employees’ classification appeal and the series review “[m]eans that the [employees] were aggrieved when their resultant reclassification and upgrade was not made retroactive to thirty (30) days prior to the date of their Wage and Classification Appeal.”

The Division again filed exceptions to the findings of fact, conclusions of law and recommended order. The matter was argued to the Board on June 6, 1990. The Division argued that the hearing examiner’s recommendation of retroactive pay was improper because the employees were not found to be aggrieved on the two original stipulated issues. It further argued that, because the employees were properly classified at the time they brought their appeal, any link between the employees’ appeal and the Division’s series review was not sufficient to provide a basis for retroactive pay. The Board adopted the hearing examiner’s findings of fact, conclusions of law and recommended order on June 28,1990. The Division’s petition for rehearing was denied.

The Division filed a petition for judicial review of the Board’s decision and order in the District Court on October 5,1990. The court determined that the Board’s decisions were substantially supported by the record. It further determined that the award of retroactive pay to the employees was proper and affirmed the Board’s decision and order. This appeal followed.

Did the District Court err in affirming the Board’s order granting retroactive pay to the employees?

In reviewing an administrative agency’s findings of fact, the standard of judicial review used is whether the findings are clearly erroneous in view of the reliable, probative and substantial evidence in the whole record. Section 2-4-704, MCA; Dept. of Revenue v. UPS, Inc. (Mont. 1992), [252 Mont. 476,] 830 P.2d 1259, 49 St.Rep. 20. An agency’s conclusions of law will be upheld if the agency’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

The Division contends that the District Court erred in affirming the Board’s order granting retroactive pay because the order was contrary to this Court’s decision in Matter of the Classification Appeal of Warren C. Mead v. Board of Personnel Appeals (1988), 235 Mont. 08, 766 P.2d 1300. A review of Matter of Mead is necessary for resolution of the present case.

Matter of Mead involved a classification appeal by Highway Patrol Officers. Employees in the positions of Sergeant, Lieutenant and Captain initiated a grievance before the Board seeking to compel the Division to adopt new position descriptions, develop new class specifications and reclassify their respective positions. New position descriptions were submitted to, and adopted by, the Division. The Division then reclassified the positions. The new classification resulted in an assignment of the same grades to the officers. The officers appealed the assignment of grades to the Board. A hearing examiner found that the officers were aggrieved and recommended that they be reclassified by raising their grade levels one pay grade. The Board amended the recommended order by requiring the Division to conduct a classification series review.

The Division conducted a series review and recommended that the officers retain the original grade assigned to their class. The Board rejected the recommendation and adopted the hearing examiner’s original findings of fact, conclusions of law and recommended order. The district court reversed the Board’s order on the basis that it violated Section 2-18-203(2), MCA, which prohibits an appeal of the grade assigned to a class.

On appeal, the Board argued that under Section 2-18-1012, MCA, and our decision in Hutchin v. State (1984), 213 Mont. 15, 688 P.2d 1257, it had authority to resolve any grievance even if resolution of the classification appeal resulted in reallocation of the grade assigned to a class. Section 2-18-1012, MCA, provides in part:

If upon the preponderance of the evidence taken at the hearing the board is of the opinion that the employee is aggrieved, it may issue an order to the appropriate agency or agencies of state government requiring such action as will resolve the employee’s grievance.

Hutchin involved a wrongful discharge grievance — rather than a classification appeal under Section 2-18-203 — by a former employee of the Department of Fish, Wildlife and Parks. Under Section 87-1-205, MCA, grievances against that Department are governed by Sections 2-18-1011 through 2-18-1013, MCA. The Board found the employee aggrieved, ordered reinstatement and denied an award of back pay. In affirming the Board’s decision, we stated that “[i]t is apparent from section 2-18-1012, MCA, that if the Board of Personnel Appeals determines that the employee is aggrieved, it has full discretion to resolve the employee’s grievance.” Hutchin, 213 Mont. at 19, 688 P.2d at 1260.

We rejected the Board’s contention in Matter of Mead that, based on our holding in Hutchin, it had the authority to resolve any grievance. We affirmed the district court’s reversal of the Board’s decision, stating:

Contrary to [the Board’s] contention, the District Court found that the Board is limited in a classification appeal by Section 2-18-203(2), MCA, to determining whether a position has been properly classified by the Division. The court held that the Board was without authority to create new classifications or to assign grades to classifications, and it distinguished Hutchin by stating:
“Hutchin involved the discharge of a state employee for personal use of state owned property. In Hutchin the board directed that the discharged employee ‘be reinstated as of the date of this final order to the position he held with the department’ at the time of his termination. That is the type of remedy that is uniquely within the discretion of the board. However, the board’s order here usurps a function that has been delegated exclusively to the division.”
We agree with the District Court’s holding that the board is limited to determining whether a position is properly classified. If a position is improperly classified, the Board may then order the Division to reclassify the position in accordance with its existing policy.

Matter of Mead, 235 Mont. at 215-16, 766 P.2d at 1304-05.

Thus, under Section 2-18-203(2), MCA, and Matter of Mead, the Board in a classification appeal is limited to determining whether a position is properly classified. If the Board determines that the position is improperly classified, and the employee is, therefore, aggrieved, the Board can resolve the grievance under Section 2-18-1012, MCA, by ordering the Division to reclassify the employee’s position and, as appropriate, ordering other remedies such as retroactive pay. In contrast, because no classification appeal was involved in Hutchin, the Board was not limited by Section 2-18-203, MCA, and was free to fashion an appropriate remedy under Section 2-18-1012, MCA, upon finding that an employee was aggrieved.

We conclude that, under the circumstances presented in the present case, the Board exceeded its legal authority when it granted retroactive pay to the employees. Prior to the first hearing before the hearing examiner, the parties stipulated that the issues were whether the employees were improperly classified as CCS II and whether they should have been classified as CCS III. The employees were not found to be aggrieved on either issue. The hearing examiner, and ultimately the Board, found that the employees were properly classified as CCS II based on the class specifications that were in place at the time the employees brought their classification appeal. These findings remained unchanged throughout the subsequent history of the case.

Even though the Board found that the employees were properly classified at the time they brought their classification appeal, it awarded the employees the increase in pay which resulted from their reclassification, retroactive to thirty days before they brought their appeal. This grant of retroactive pay was based on a finding of “linkage” between the employees’ classification appeal and the Division’s series review. While linkage between the classification appeal and the series review existed, we conclude that that linkage was not legally sufficient to provide a basis for retroactive pay. Under Section 2-18-203, MCA, and Matter of Mead, a determination by the Board that the employees were improperly classified was a prerequisite to granting a remedy to the employees. Having found the employees to be properly classified, the Board exceeded its statutory authority in granting retroactive pay.

In addition, because the employees were found to be properly classified as CCS II, grade 12, at the time they brought their appeal, the effect of the award of retroactive pay was to upgrade the employees’ positions to a higher pay grade during the very time period that they were found to be properly classified. As such, the Board’s order was tantamount to an assignment of a new grade to the employees’ class in violation of Section 2-18-203(2), MCA. Matter of Mead, 235 Mont. at 217-18, 766 P.2d at 1306. Based on the foregoing, it is clear that the Board incorrectly concluded that the employees were entitled to retroactive pay and exceeded its authority in granting such pay. Accordingly, we hold that the District Court erred in affirming the Board’s order.

The Division raises additional arguments in support of its position that the District Court erred in affirming the Board’s order granting retroactive pay to the employees. In light of our holding in this case, these arguments need not be addressed.

Reversed and remanded for proceedings consistent with this opinion.

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

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

The majority is correct that pursuant to our decision in Matter of Mead (1988), 235 Mont. 208, 766 P.2d 1300, the Board of Personnel Appeals cannot review and correct the grade assigned to a particular class. However, the majority opinion is incorrect when it concludes that our decision in Mead and Section 2-18-203, MCA, requires a determination by the Board that employees were improperly classified before retroactive pay can be awarded. Our decision in Mead did not deal with the circumstances under which retroactive pay can be awarded, and there is nothing in Section 2-18-203, MCA, which specifically links an award of retroactive pay to the Board’s decision on the issue of classification.

Furthermore, I disagree that the employees were found to be properly classified at the time they brought their appeal. The State Personnel Division’s investigation found that based upon the classes then available, Community Corrections Specialist II, Grade 12, was as good as any. However, the Department went on to acknowledge that its investigation indicated that a complete review of the classifications was necessary. That review resulted in the employees’ reclassification. It was in that reclassified posture that this case came before the Board. The Board simply determined whether the Department’s reclassification of the employees was a result of their appeal. No one has challenged the Board’s finding that there was in fact linkage between the appeal and the reclassification by the Department.

The facts in this case are not similar to the facts in Mead. In that case, the hearing examiner for the Board of Personnel Appeals recommended raising the employees’ grade level by one pay grade. The Board issued findings and conclusions adopting that recommendation and we held that the Board was without authority to entertain an appeal of a pay grade.

In this case, the Board did not issue an order changing the employees’ pay grade. No action of the Board resulted in a change in the employees’ pay grade. The employees appealed their classifications to the State Personnel Division. As a result of that appeal, the Division concluded that the classifications in question should be reviewed. As a result of that review, the employees were reclassified by the Department and assigned a different grade.

All the Board did in this case was determine that based upon the employees’ reclassification, they were entitled to retroactive pay for 30 days prior to the date their appeal was filed. This is the exact relief authorized by Section 2-18-203(3), MCA. The majority opinion has placed qualifications on the award that are not found in the statute.

Our specific holding in Mead was that the Board of Personnel Appeals could not create classifications, nor assign grades within classifications. In this case, the Board’s decision to award retroactive pay was not based on its creation of any new classification. Nor was it based on the Board’s assignment of any new grade to the employees. It was based on the Board’s determination that the Division’s review of the employees’ classifications, and the Department’s subsequent reclassification of the employees, was linked to the employees’ original classification appeal to the Division.

On appeal, the Division argues, and the majority concludes, that the only issue before the Board was whether the employees should have been classified CCS III, rather than CCS II. The majority concludes that since the employees did not prevail on this issue, they were not aggrieved. However, limiting the issue presented to the Board in that manner is incorrect. At the second hearing before the Board’s hearing examiner, the parties stipulated that the issue to be decided by the hearing examiner would be:

Whether there is linkage between the wage and classification appeal of the Community Corrections Specialist II class and the class review of the Community Corrections Specialist series, and if so, does that linkage provide a basis for awarding retroactive pay.

After considering the evidence, the hearing examiner found that there was linkage. There was substantial evidence to support that finding on appeal, and no one contends that it was clearly erroneous.

Therefore, I conclude that it was not the Board which changed the employees’ grade. That grade was changed by the Department in response to the employees’ appeal. The Division, however, refused to award the retroactive pay to which the employees were entitled, based upon that reclassification. Therefore, the Board was within its authority when it considered the issue of retroactive pay on appeal. For these reasons, I would affirm the decision of the District Court.

JUSTICE HUNT concurs in the foregoing dissent of JUSTICE TRIEWEILER.


author: JUSTICE TRIEWEILER

text:
    CITIZENS TO RECALL MAYOR JAMES WHITLOCK, Plaintiffs and Respondents, v. MAYOR JAMES WHITLOCK, Defendant and Appellant, and HAMILTON CITY COUNCIL, EDNA MAE LEONARD, VIVIAN YANG, JACK EDMONDS, JOHN ROBINSON, CLAUDIA WILLIAMSON, CRAIG STIRLING, Third Party Plaintiffs and Respondents, and JOHN AND JANE DOES 1 THROUGH 10, Third Party Defendants and Respondent.
    No. 92-177.
    Submitted on Briefs July 23, 1992.
    Decided December 17, 1992.
    49 St.Rep. 1113.
    255 Mont. 517.
    844 P.2d 74.

      For Appellant: Larry W. Jones, Missoula.
    For Respondent: Joan Jonkel, (Jane Doe), Missoula, Richard A. Weber, Jr., City Attorney, and David A. Trihey, Pro Se, Hamilton.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Hamilton City Mayor James Whitlock appeals from a March 24, 1992, order and declaratory judgment of the Fourth Judicial District Court, Ravalli County, authorizing public disclosure of the “Toole Report” by the Hamilton City Council. On March 27, 1992, District Court Judge Ed McLean stayed enforcement of the order pending appeal. We affirm.

The issues on appeal are:

1. Was the request made by the Citizens to Recall Mayor James Whitlock to order disclosure of the Toole Report barred by the statute of limitations?

2. Was the District Court’s order authorizing the Hamilton City Council to disclose the Toole Report a violation of Mayor WTiitlock’s individual right of privacy?

3. Was the District Court’s order an improper judgment on the pleadings?

Hamilton City Judge Martha A. Bethel filed a complaint with the Montana Human Rights Commission against the City of Hamilton and Mayor Whitlock in June 1990. She claimed she had been sexually harassed and discriminated against by Whitlock. The City Council hired Ken Toole, an independent investigator, to look into Bethel’s allegations and prepare a report for the City Council. Following Toole’s investigation and lengthy negotiations, the City entered into a mediated settlement agreement with Bethel in September 1991. The settlement included a waiver of Bethel’s individual right of privacy in regard to Toole’s findings, payment of her attorney’s fees, and other monetary and nonmonetary considerations. The contents of Toole’s investigatory report (“Toole Report”) were never made public, and Bethel’s complaint against WTiitlock is still pending before the Human Rights Commission.

On December 3, 1991, the Citizens to Recall Mayor James Whit-lock (Citizens Group) filed a complaint in District Court requesting the court to order the City Council to release copies of the Toole Report. The City Council stated in its answer and counterclaim that the report had been kept confidential because Whitlock had invoked his constitutional right of privacy to prevent disclosure of the report’s contents and to keep council meetings regarding the matter confidential and closed. Even though the settlement agreement specifically provided for disclosure of the investigation report, the City feared it would subject itself to a claim for damages for violating an individual’s privacy right if the Council publicly discussed or released Information related to Bethel’s allegations. However, the Council, acknowledging constitutional and statutory provisions requiring open meetings and the public’s right to know, stated its belief that the public’s right to know in this instance clearly exceeded Whitlock’s individual privacy right. Therefore, in its counterclaim, the Council requested a declaratory judgment directing public disclosure of the report and public participation in Council meetings which discussed the investigation.

At the conclusion of a hearing on March 24,1992, the District Court agreed with the City and held that an elected official had no reasonable expectation of privacy when accused of misconduct in office. The court, therefore, concluded Whitlock’s right of privacy did not outweigh the public’s right to know, and authorized release of the Toole Report. On March 27, 1992, enforcement of this bench order was stayed pending Whitlock’s appeal.

I

Was the request made by the Citizens to recall Mayor James Whitlock to order disclosure of the Toole Report barred by the statute of limitations?

Appellant Whitlock initially raises a statute of limitations argument, claiming the Citizens Group is challenging a City Council decision, made at a closed meeting, to keep the Toole Report confidential. Whitlock notes that Montana’s Open Meeting Law requires a suit seeking voidance of such a decision to be made within 30 days of the time the decision was made. Section 2-3-213, MCA. Because the Citizens Group failed to plead that it filed suit within 30 days, Whitlock claims the matter should be remanded to the lower court with an order directing dismissal of the suit, or in the alternative, ordering discovery to determine if the Citizens Group had complied with proper time frames for an Open Meeting Law challenge.

We find this argument without merit. Whitlock concedes, and we agree, that the Open Meeting Law argument is directed only at the Citizens Group, and has no application to the City Council’s request for declaratory judgment on the question of whether the public’s right to know outweighs Whitlock’s privacy interest. Yet Whitlock maintains that because the Citizens Group remains a party in this suit, the statute of limitations argument may still be at least partially controlling.

We disagree. The City Council, as third-party plaintiffs, requested a declaratory judgment which was clearly not barred by a statute of limitations. The District Court’s ruling responded to the constitutional issue raised by the City, and did not address whether a statutory violation of the Open Meeting Law had occurred. Whether the claims raised by the Citizens Group, as the original plaintiffs, were barred by statutory time limitations is not relevant to the decision on appeal.

II

Was the District Court’s order authorizing the Hamilton City Council to release the Toole Report a violation of Mayor Whitlock’s individual right of privacy?

Both the public right to know, from which the right to examine public documents flows, and the right of privacy, which justifies confidentiality of certain documents, are firmly established in the Montana Constitution. Article II, Section 9, of the Constitution defines the right of the public to know as follows:

No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

Balanced against the public right to know is the right of individual privacy, provided for in Article II, Section 10, of the Montana Constitution: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

We have held that the public’s right to observe the workings of public bodies is not absolute. In The Missoulian v. Board of Regents of Higher Education (1984), 207 Mont. 513, 675 P.2d 962, we stated that the constitutional language providing exceptions to examining documents or observing deliberations requires this Court to:

[Bjalance the competing constitutional interests in the context of the facts of each case, to determine whether the demands of individual privacy clearly exceed the merits of public disclosure. Under this standard, the right to know may outweigh the right of individual privacy, depending on the facts. [Emphasis in original.]

The Missoulian, 675 P.2d at 971.

This Court has addressed on several occasions the balancing of these competing interests, and admittedly has more than once carefully guarded against public scrutiny of very private and personal matters. See Flesh v. Mineral and Missoula Counties (1990), 241 Mont. 158, 786 P.2d 4; The Missoulian, 675 P.2d 962; Montana Human Rights Division v. City of Billings (1982), 199 Mont. 434, 649 P.2d 1283. In light of these decisions, Whitlock contends the District Court incorrectly concluded the public’s right to examine the Toole Report clearly outweighed Whitlock’s individual privacy right. However, in the narrow circumstances presented in this case, we disagree, and distinguish this situation from others we have considered.

Whenever the Court must determine whether a privacy interest is protected under the State Constitution, we apply a two-part test: (1) whether the person involved had a subjective or actual expectation of privacy; and (2) whether society is willing to recognize that expectation as reasonable. Flesh, 786 P.2d at 8; The Missoulian, 675 P.2d at 967; Montana Human Rights Division, 649 P.2d at 1287. We will not engage in a lengthy discussion of the first prong of the two-part test because, in this case, we hold that whether or not Whitlock had an expectation of privacy, that expectation was unreasonable as a matter of law.

There are two important reasons for this conclusion. First, Whitlock is an elected official and as such is properly subject to public scrutiny in the performance of his duties. Our previous decisions have shielded certain personnel matters from public review, and have opened those discussions only to the entity responsible for such things as hiring, disciplinary action, and supervision. When a person is elected to public office, the general public has that responsibility, and it is then their right to be informed of the actions and conduct of their elected officials. In this case, the sexual harassment allegations against Whitlock go directly to the mayor’s, and another government official’s, abilities to properly carry out their duties. Information related to the ability to perform public duties should not be withheld from public scrutiny.

This is not the first time we have suggested that public officials may occupy unique positions in regard to expectations of privacy. In Great Falls Tribune v. Cascade County Sheriff (1989), 238 Mont. 103, 775 P.2d 1267, for example, we held that while police officers have a subjective or actual expectation of privacy relating to disciplinary proceedings against them, that expectation was not one which society recognized as a strong right because “law enforcement officers occupy positions of great public trust.” Great Falls Tribune, 775 P.2d at 1269.

Other states’ courts have similarly recognized that public officials cannot reasonably have as great an expectation of privacy as individuals who are not public servants. In Cowles Publishing Company v. State Patrol (Wash. 1988), 748 P.2d 597, 605, the Washington Supreme Court described a diminished privacy interest when the information sought relates to fitness to perform a public duty. The Alaska Supreme Court has taken the same approach, recognizing that the nature and responsibility of public office opens office holders up to more exacting public scrutiny regarding the performance of their duties. City of Kenai v. Kenai Peninsula Newspapers (Alaska 1982), 642 P.2d 1316; Municipality of Anchorage v. Daily News (Alaska 1990), 794 P.2d 584.

The second reason for our decision relates to the kind of information in question. In our previous decisions, we have protected information such as personnel records or job performance evaluations from public review. State v. Bums (Mont. 1992), 830 P.2d 1318, 49 St.Rep. 353; Montana Human Rights Division, 649 P.2d at 1287-88; The Missoulian, 675 P.2d at 968-70. However, in this case, the Toole Report was the result of an investigation commissioned to explore allegations of misconduct. The Citizens Group is not seeking disclosure of information related to private sexual activity, general performance evaluations, or proceedings where Whitlock’s character, integrity, honesty, or personality were discussed. While Whitlock might reasonably expect privacy in regard to those kinds of matters, society will not permit complete privacy and unaccountability when an elected official is accused of sexually harassing public employees or of other misconduct related to the performance of his official duties.

Once the determination is made as to whether a constitutionally protected privacy interest is at stake, the question is then whether the demands of individual privacy clearly exceed the merits of public disclosure. Since we have found the privacy expectation in this particular situation unreasonable, the answer is clearly no.

The merits of publicly disclosing the Toole Report are substantial. Not only is the public entitled to be informed of the actions and conduct of their elected officials, but in this instance the information sought involves a matter in which the City has already settled with the complainant. Though the settlement was reached without a finding of fault or liability on the part of any party, the City admits it perceived a substantial risk of loss and concluded it was in the best interests of the City to settle the claim. Since public funds were used to settle the dispute and may be used to indemnify Whitlock for his attorney fees, the public is entitled to know the precise reason for such an expenditure. Given the strong considerations in favor of public disclosure, and the fact that the demand of individual privacy is absent in this instance, there is no justification for denying the public the right to review the contents of the Toole Report.

After weighing the competing interests involved, we agree with the Court’s determination that Whitlock’s expectation of privacy is unreasonable. Therefore, we hold that the right of the public to know must be accorded greater weight than Whitlock’s claim of privacy.

Ill

Was the District Court’s order an improper judgment on the pleadings?

Whitlock’s final argument characterizes the District Court’s decision as a judgment on the pleadings because no extrinsic evidence was introduced to treat the decision as a summary judgment ruling. Rule 12(c), M.R.Civ.R He contends, therefore, that if the Court ruled only on the information contained in the pleadings, on review the complaint “is to be construed in the light most favorable to the plaintiffs and its allegations are taken as true.” Kinion v. Design Systems, Inc. (1982), 197 Mont. 177, 180, 641 P.2d 472, 474 (citing Fraunhofer v. Price (1979), 182 Mont. 7, 594 P.2d 324). Viewed in this manner, Whitlock argues the District Court’s conclusion was improper and cannot be affirmed.

The City Council maintains the Court did consider matters outside the pleadings and the proper characterization of the Court’s action is one of summary judgment. Since there were no issues of fact to be determined by the Court, the City Council asserts that it was entitled to judgment as a matter of law pursuant to Rule 56(c), M.R.Civ.P., and the court’s ruling should only be set aside if the opposing party can demonstrate that a genuine factual controversy exists. O’Bagy v. First Interstate Bank of Missoula (1990), 241 Mont. 44, 46, 785 P.2d 190, 191.

After reviewing the record, it is apparent that the court did have before it information in addition to the pleadings. This included Bethel’s affidavit of sexual harassment; an affidavit from the City Attorney verifying that Whitlock received, and therefore was aware of, the contents of the Toole Report; and affidavits from witnesses who were interviewed by Toole, waiving any privacy rights in the information contained in the report. Because the court had before it this information which was not part of the pleadings, we will consider the court’s order as one for summary judgment pursuant to Rule 12(c), M.R.Civ.R

We note that at one point during the proceedings, Whitlock moved for summary judgment in his favor, and urged consideration of some of the above-mentioned documents, admitting they supplemented the pleadings. It would be inconsistent to disregard that same information simply because another party prevailed.

Applying the standard of review for a summary judgment proceeding, we must determine whether there is any genuine issue of material fact in controversy. The material facts in this case are all cm disputed. Whitlock is an elected official. He was accused by another elected official of sexual harassment. The City Council investigated the allegation and settled the other official’s claim based on its investigation. The results of its investigation are included in the Toole Report.

Based on these undisputed facts, the public has a right to know, as a matter of law, what is in the Toole Report. There are no disputed issues of material fact which would preclude the entry of summary judgment.

The District Court’s order and declaratory judgment directing release of the Toole Report as recommended by the Hamilton City Council is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES WEBER, HUNT, and McDonough concur.