text:
    THE ASSOCIATED PRESS; Bigfork Eagle; Billings Gazette Bozeman Daily Chronicle; Butte Montana Standard; Carbon County News; Great Falls Tribune; Hamilton Ravalli Republic; Havre Daily News; Helena Independent Record; Hungry Horse News; Kalispell Daily Interlake; KECI-TV, Missoula; KFBB-TV, Great Falls; KPAX-TV, Missoula; KRTV-TV, Great Falls; KTVQ-TV, Billings; KULR-TV, Billings; KXLF-TV, Butte; Lewistown News-Argus; Livingston Enterprise; Miles City Star; Missoula Missoulian; Montana Broadcasters Association; and Montana Newspaper Association; Plaintiffs, v. THE STATE OF MONTANA, Defendant.
    No. 91-475.
    Oct. 29, 1991.
    250 Mont. 299.
    820 P.2d 421.
   OPINION AND ORDER

On September 30,1991, the plaintiff news organizations filed with this Court an application for writ of supervisory control, injunction pendente lite, and declaratory relief. They allege that § 46-11- 701(6), MCA, is an unconstitutional deprivation of the public’s right to know, as guaranteed by Article II, section 9, of the Montana Constitution. The Attorney General has filed a written response in which he concedes that § 46-11-701(6), MCA, is unconstitutional. The Criminal Defense Section of the State Bar of Montana has filed an amicus curiae brief opposing the plaintiffs’ petition.

Rule 17(a), M.R.App.R, provides:

“The supreme court is an appellate cotut but it is empowered by the constitution of Montana to hear and determine such original and remedial writs as may be necessary or proper to the complete exercise of its jurisdiction. The institution of such original proceedings in the supreme court is sometimes justified by circumstances of an emergency nature, as when a cause of action or a right has arisen under conditions making due consideration in the trial courts and due appeal to this court an inadequate remedy, or when supervision of a trial court other than by appeal is deemed necessary or proper.”

In this instance, the plaintiffs claim that § 46-11-701(6), MCA, which became effective on October 1, 1991, irreparably harms their ability to gather and disseminate information about pending criminal matters and that they have no adequate and speedy remedy through the normal judicial process to correct this harm. They seek a declaratory judgment that the statute is unconstitutional.

The Court agrees with plaintiffs that this is a constitutional issue of statewide importance and that due consideration in the trial courts and due appeal to this Court would be an inadequate remedy because of the time necessarily involved. We therefore accept original jurisdiction over this matter.

The statutory provision under challenge, § (6) of § 46- 11-701, MCA, requires that

“[a]n affidavit filed in support of a motion for leave to file a charge or warrant must be sealed unless the judge determines that disclosure of the information in the affidavit is required to protect the health, safety, or welfare of the public.”

Subsection (6) was enacted as part of Senate Bill 51, now Ch. 800, L. 1991, a voluminous package of amendments to Montana’s criminal procedure statutes. The House Judiciary Standing Committee report of March 26, 1991, in which the Committee recommended that the House concur in Senate Bill 51 as amended, added subsection (6) to that bill. We note that copies of the House Judiciary Committee minutes of March 19,1991, set forth a lengthy discussion and several amendments to Senate Bill 51; however, no mention is made of § (6) of § 46-11-701, MCA, or of a motion to add this amendment. The Criminal Procedure Referral Committee of the State Bar of Montana, which previewed the bill enacted as Ch. 800, L. 1991, had earlier rejected a proposal like § (6). In the words of one committee member, “it seemed an onerous restriction on the public’s right to know relevant facts about a pending criminal matter.”

Plaintiffs’ key contention is that subsection (6) violates Article II, section 9, of the Montana Constitution:

“Right to know. 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.”

We must first determine whether an affidavit filed in support of a motion for leave to file a criminal charge or warrant is a document of a public body or agency of state government or a subdivision thereof, subject to the provisions of Art. II, § 9, Mont. Const.

The provisions of Art. II, § 9, Mont. Const., apply to local government. V Mont. Const. Conv. Trans. 1670-71 (1972). The clerk of district court is an office of local government. Art. XI, subsection 3, Mont. Const. We conclude that an affidavit filed with the clerk of a district court in support of a motion for leave to file a criminal charge or warrant is a document of a public body or agency of a subdivision of state government.

Next we consider whether sufficient reasons have been presented to except the affidavits described under subsection (6) from the public’s right to know. The standard set forth under Article II, section 9, of the Montana Constitution is that the right to know applies to all documents of a public body or agency of a subdivision of state government, “except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”

The amicus curiae brief filed by the Criminal Defense Section of the State Bar of Montana includes extensive argument that subsection (6) is justified because a criminal defendant’s right to privacy outweighs the public’s right to know the contents of affidavits sealed under subsection (6). However, there is nothing in the legislative record to indicate that the legislature determined that, or even considered whether, individual privacy requires that the affidavits described in subsection (6) must be sealed. Nor does subsection (6) require such an evaluation by district judges in individual cases. The standard under subsection (6), that affidavits shall be sealed “unless the judge determines that disclosure of the information in the affidavit is required to protect the health, safety, or welfare of the public,” is in fact the antithesis of the standard required under the Montana Constitution.

In addition, subsection (6) represents the reversal of a long-standing policy of allowing public access to such affidavits. In Montana, from the days of territorial government until October 1, 1991, documents filed with clerks of court charging the commission of a criminal offense have been open for public inspection. The perception of fairness in our judicial system, the ability of the criminally accused to defend themselves, and the public’s knowledge about criminal proceedings all benefit from allowing public access to affidavits filed in support of a motion for leave to file a charge or warrant.

We hold that § 46-11-701(6), MCA, violates the right to know guaranteed by Article 11, section 9, of the Montana Constitution. We therefore order that § 46-11-701(6), MCA, be stricken from the laws of Montana.

Plaintiffs have requested that they be awarded their costs and reasonable attorney fees incurred in this action, pursuant to § 2-3-221, MCA:

“A plaintiff who prevails in an action brought in district court to enforce his rights under Article II, section 9, of the Montana constitution may be awarded his costs and reasonable attorneys’ fees.” Plaintiffs have chosen to bypass a district court action in this case. Their request for costs and attorney fees is therefore denied.

DATED this 29th day of October 1991.

s/ J.A. TURNAGE. Chief Justice

s/ JOHN CONWAY HARRISON. Justice

s/ TERRY TRTEWEILER. Justice

s/ WILLIAM E. HUNT flR... Justice

s/ KARLA M. GRAY. Justice

s/ R-C. McDonough justice

s/ FRED J. WEBER. Justice


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    FRANK DeHAAN, INC., Frank DeHaan and Vera DeHaan, Plaintiff and Respondent, v. GALLATIN-MADISON RANCH CO., Mae DeHaan and Henry DeHaan, Defendants and Appellants.
    No. 91-162.
    Submitted on briefs Sept. 19, 1991.
    Decided Nov. 5, 1991.
    250 Mont. 304.
    820 P.2d 423.

      H.A. Bolinger, Bolinger & Quist, Bozeman, for defendants and appellants.

      Edmund R Sedivy, Jr., Morrow, Sedivy & Bennett, Bozeman, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Gallatin Madison Ranch Company, Inc., Henry DeHaan and Mae DeHaan, appeal the judgment of the Eighteenth Judicial District of Gallatin County in a suit for partition. The court found the subject property capable of partition, adopted the report of appointed referees and divided the DeHaan ranch. We affirm.

The appellant raises 11 issues for review. For the purpose of our discussion, we have consolidated the issues as follows.

I. Did the District Court err in finding that the property could be equitably divided without great prejudice to the owners?

II. Did the District Court err by adopting the report of the referees?

III. Did the District Court err by allocating property to Mae DeHaan and Gallatin Madison Ranch Company, Inc., as tenants in common rather than providing each an individual share?

IV. Did the District Court err by denying a motion to order an accounting and distribution of partnership property?

Frank DeHaan, Inc. (plaintiff/respondent), initiated an action to partition property basically controlled jointly by Frank DeHaan and his brother, Henry DeHaan, by virtue of respective family corporations. The property consists of approximately 17,575 deeded acres acquired by the brothers in eight separate purchases over a period of years. The majority of the land was purchased in the name of Henry DeHaan and Frank DeHaan. Several sections (known as Lower Big Pasture and White Place) were purchased in the names of Mae DeHaan and Vera DeHaan (Henry’s and Frank’s wives).

In 1973, Henry and Mae DeHaan deeded their undivided interests in the “DeHaan Ranch” to a family corporation known as Gallatin Madison Ranch Company, Inc. (G.M.R.C.). Mae’s interest in Lower Big Pasture and White Place were omitted from the corporation. In 1981, Frank and Vera DeHaan transferred all of their individual interests into a family corporation known as “Frank DeHaan, Inc.” The court determined that Frank DeHaan, Inc., Frank DeHaan and his family (hereinafter Frank) were owners and entitled to one-half of the subject property. G.M.R.C., Henry DeHaan, his family and Mae DeHaan (hereinafter Henry) were found to be owners of the other half. No separate distinction was granted Lower Big Pasture or White Place.

Frank, with Henry’s approval, hired N. Clark Wheeler to prepare an appraisal. Frank made an offer to Henry for partition, but an argument ensued over whether the land was in fact divisible or should be sold in its entirety with the proceeds divided. Frank then initiated this action.

An evidentiary hearing was held and the court determined that the property was subject to equitable division between the parties and ordered that the property be partitioned. Three referees were appointed: one nominated by Frank, one nominated by Henry, and the third nominated by the first two. The court gave the referees instructions designed to aide them in fulfilling the mandates of the partition statutes. The propriety of several instructions is in dispute. After some difficulty, relating to the referees’ attempt to appease both parties, the referees produced a report and recommendation for partition that was adopted by the court. Henry appeals.

I.

Section 70-29-202, MCA, provides the basis for a court’s determination of whether property is suitable for partition or must be sold.

“[If] property or any part is so situated that the partition cannot be made without great prejudice to the owners, the court may order a sale thereof; otherwise, upon the requisite proofs being made, it must order a partition ...”

In February 1990, the corut-ordered partition, finding the property subject to partition pursuant to 70-29-202, MCA. In the court’s findings of fact dated December 11, 1990, the court found that “all expert witnesses felt then the properties could be equitably divided without great prejudice to the owners.”

Henry contends that a review of the record demonstrates that the expert testimony is contrary to the court’s finding that the ranch can withstand partition without great prejudice. Henry specifically cites the testimony of the appraiser, Wheeler, who stated that it was his belief that the land could be divided on a value basis but maybe not on a use basis. It is Henry’s contention throughout that if property cannot be divided on a use basis, it cannot be divided without great prejudice. Henry’s prayer for relief is to have this Court order the ranch sold and profits divided. He suggests that the sale and division of the property (which we note would be entirely value based) would not be prejudicial, while simultaneously he suggests that partition on a value basis is prejudicial. We find Henry’s argument to be inherently contradictory and not reflective of the law.

The applicable standard of review of the trial court’s findings in determining whether to sell or partition is the clearly erroneous standard of Rule 52(a), M.R.Civ.P. Kravik v. Lewis, (1984), 213 Mont. 448, 691 P.2d 1373. “[A] finding is ‘clearly erroneous’when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” U.S. v. U.S. Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. The evidence is undisputed that the ranch was purchased in many separate parcels over a period of many years. Furthermore, it is Wheeler’s testimony that the property is likely to have greater market value if sold piecemeal rather than as a single ranch. A second expert, a realtor, also testified that the property could be divided on an equitable basis. We conclude the District Court’s findings were not clearly erroneous. The order of the District Court to partition the subject property is affirmed.

II.

A presumption exists that the referees’ conclusions are arrived at in a fair and honest manner. Lawrence v. Donovan (1983), 207 Mont. 130, 673 P.2d 130. The report of the referees is to be rejected only for reasons that would justify the reversal of a jury’s verdict. Ivins v. Hardy et al (1950), 123 Mont. 513, 217 P.2d 204. In other words, if there is substantial evidence to support the referees’report, it is to be confirmed by the court.

Henry argues that the property was not partitioned under the principles established by the legislature. Specifically, he alleges that the referees used a “needs and wishes” standard rather than the requisite quality and quantity standard required by § 70-29-205, MCA. Furthermore, Henry alleges that the referees failed to consider improvements in reaching their conclusion. Lastly, he contends that the referees’ meetings with the parties were improper.

Section 70-29-205, MCA, provides the basis for which referees are to partition property. They are to

“... divide the property and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties as determined by the court,

In its instructions to the referees the court elaborated as follows:

“2. In allotting the portions of property to the parties in accordance to their respective interests, you should consider the quantity and quality of the property allocated according to the rights of the parties. This does not mean that you must give each of the parties the same amount of each kind of property. However, both the plaintiff and the defendants are entitled to receive properties of a value equivalent to the respective rights of each.”

Substantial evidence exists that the referees followed the instruction as provided above. The appraisal on which the referees relied heavily was based on a breakdown of the land according to quality and quantity. Testimony of the referees indicates an adherence to the instruction as provided.

The record indicates that the referees initially attempted to meet the needs and wishes of the parties but found it impossible. That they attempted is not error. We have said that “partitions should be fashioned to cause the least degree of harm to the co-tenants and to confer no unfair advantage on any one cotenant.” Kravik v. Lewis 213 Mont. at 454, 691 P.2d 1373. Interviewing the parties was a viable approach to fashioning a partition “least harmful” to the parties, and interviewing the parties was included as an option in the court’s instructions and is not precluded by law.

Section 70-29-207, MCA, provides that in partition suits, the court is to direct the referees to include “as far as practicable” the improvements on the property sought to be partitioned. The referees were instructed by the court to consider improvements but not to consider whether any of the improvements were made by a specific party.

The referees relied on the Wheeler appraisal which the record indicates incorporated the value of improvements into the value attributed to the various sections of land. The court found that the referees did consider the value of the improvements by using the Wheeler appraisal and offered a remedy (a motion to hear evidence) to any party who felt that individual improvements required further consideration. N o motion was filed. We find that the value of improvements was properly considered by the referees and reviewed by the District Court.

Henry raises two additional issues in regards to the improvements. First, Henry finds error in the court’s failure to inform the referees that a steel building erected by Frank, which by request had been omitted from the Wheeler appraisal, was not jointly held. The court provided adequate procedure for the consideration of individual improvements as discussed above and there was no error.

Second, a list of all improvements allegedly made by Frank was offered and denied admission into evidence. Despite that denial, it appears the referees had opportunity to review the document by its having been included with other documents. Henry argues that this constituted prejudicial error. Assuming that the referees did see the document, we find that the substantial rights of the parties were not affected and therefore hold the error harmless. Rule 61, M.R.Civ.R The referees did not consider the improvements separately, instead they were incorporated into a section-by-section analysis and divided equally.

The decision of the District Court to adopt and confirm the report of the referees is affirmed.

III.

The law mandates that every person having an undivided share in the property must be a party in an action for partition. § 70-29-104, MCA. A party with an undivided interest has a right to have that part set off in severalty. Lawrence v. Donovan, (1980), 190 Mont. 150, 619 P.2d 1183. We do not find the court to have interfered with the right to set off in this case.

The court utilized § 70-29-204, MCA, which provides:

“Whenever from any cause it is in the opinion of the court impracticable or highly inconvenient to make a complete partition in the first instance among all the parties in interest, the court may first ascertain and determine the shares or interests respectively held by the original co-tenants and thereupon adjudge and cause a partition to be made as if such original co-tenants were the parties and sole parties in interest and the only parties to the action and thereafter may proceed in like manner to adjudge and make partition separately of each share or portion so ascertained and allotted, as between those claiming under the original tenant to whom the same shall have been so set apart, or may allow them to remain tenants in common thereof, as they may desire.”

Henry contends that this section is inapplicable because his corporation, Gallatin Madison Ranch Company, and Mae, Henry’s wife, were never co-tenants of Lower Big Pasture or White Place. It is Frank DeHaan, Inc., and Mae who were co-tenants while G.M.R.C. owned no interest at all. Henry alleges that the court abused its discretion when it allocated Lower Big Pasture and White Place to Mae DeHaan and his corporation as tenants in common.

We understand Henry’s argument to suggest that § 70-29-204, MCA, applies only when there is actually joint ownership between the parties whose interests are considered collectively. Because Mae DeHaan and G.M.R.C. do not have joint ownership of Lower Big Pasture and White Place, the court allegedly abused its discretion by invoking § 70-29-204, MCA. The inference drawn from this interpretation is that because Frank DeHaan, Inc., and Mae DeHaan are co-tenants, § 70-29-204, MCA, could only be properly invoked by considering their interests collectively and not by considering Henry’s corporation, G.M.R.C. and Mae DeHaan interests collectively.

We find technical merit in Henry’s argument; however, it would have been highly impracticable for the referees and the court to have partitioned in the fashion that Henry’s reading of the statute prescribes. Lower Big Pasture and White Place are included in Henry’s share. The court clearly included Mae’s individually held interests collectively with Henry’s corporation. The result is that Lower Big Pasture and White Place are owned as tenants in common by Henry and Mae. Mae maintains her one-half interest in these parcels, and no inequity arises.

The corut, consistent with § 70-29-204, MCA, provided opportunity to have shares, considered collectively, set apart. Conclusion of Law #2 states that:

“The Defendants shall have the opportunity to allocate the various assets as between themselves and report back to the Court within fifteen (15) days from date hereof. Otherwise, this Court will allocate the properties as tenants in common.”

Henry did not seek to allocate his and Mae’s assets separately. Furthermore, both remain free to bring an action in partition to set apart their respective shares. We find the District Court’s application of § 70-29-204, MCA, to be appropriate and thereby affirm.

IV.

The District Court refused a motion to provide an accounting and distribution of the partnership personal property. Henry designated as an affirmative defense, “That in addition to the real property the parties are equally the owners of cattle, irrigation and farming equipment, grain storing facilities which should likewise be ordered sold and the monies equally divided between the parties hereto.” Henry argues that if the request was improperly pleaded, the court still should have construed it as proper under Rule 8(c), M.R.Civ.R Furthermore, Henry contends that partnership accounting is prerequisite and essential to the partition of real estate.

We find it unnecessary to review the proper application of Rule 8(c), M.R.Civ.R We find no authority demanding its application, nor do we find that prejudice incurred as a result of the District Court refusing to combine the actions. Both parties remain free to bring an action for accounting and distribution of partnership assets. The decision of the District Court to deny combining the actions is affirmed.

Affirmed.

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


author: JUSTICE TRIEWEILER JUSTICE McDONOUGH,

text:
    GARY DRILLING COMPANY, Plaintiff and Respondent, v. The STATE OF MONTANA, DEPARTMENT OF REVENUE; The State of Montana; the County of Yellowstone; Treasurer of Yellowstone County; and Assessor of Yellowstone County, Defendants and Appellants.
    No. 90-632.
    Submitted on briefs Sept. 18, 1991.
    Decided Nov. 8, 1991.
    250 Mont. 313.
    820 P.2d 428.

      Paul Van Tricht argued, Montana Dept, of Revenue, Helena, Dennis Paxinos, Yellowstone County Atty., and David W. Hoefer, Deputy County Atty., Billings, for defendants and appellants.
    Raymond K. Peete argued, Billings, for plaintiff and respondent.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Respondent Gary Drilling Company (Gary) filed a complaint for declaratory judgment in the Thirteenth Judicial District Court in Yellowstone County, requesting the District Court to declare that the oil produced from certain wells should be taxed as “new production,” rather than old or existing production. The District Court entered judgment in favor of Gary. The Department of Revenue, the County of Yellowstone, and the Treasurer and Assessor of Yellowstone County appeal from the District Court’s decision. We affirm.

The issue presented is whether the District Court erred in determining that the oil produced from respondent’s wells should be assessed as “new production” under § 15-23-601(2), MCA (1985).

The oil wells in question are located on Section 3, Township 6N, Range 32E, Yellowstone County. The mineral interests in and under Section 3 are owned an undivided 50 percent each by Ralph and Sarah Botts, husband and wife, and by the estate of Inola Botts.

In 1980, Inola Botts granted an oil and gas lease covering her mineral interests in and under all of Section 3. This lease was later assigned to Beartooth Oil & Gas Company, et al. (Beartooth). In November 1984, Ralph and Sarah Botts granted an oil and gas lease to respondent. This lease covers all of their mineral interest in and under all of Section 3, i.e., the same surface description as Beartooth’s lease.

In December 1984, Beartooth began drilling a well known as Botts No. 1 in the SEV4 of the NEV4 of Section 3. This well was completed in the Amsden formation in May 1985. Botts No. 1 produced oil, in limited quantities, between January 1985 and January 1986, when it was abandoned. A total of 1258 barrels of oil were produced from Botts No. 1. Beartooth stated that the cost of drilling and operating Botts No. 1 was more than $375,000; the value of that production was in the order of about $32,000.

In early 1985, Beartooth petitioned the Montana Board of Oil and Gas Conservation to determine that the portion of Section 3 containing Beartooth’s well was an appropriate well-spacing unit for oil production under §§ 82-11-201, et seq., MCA. In order to prevent waste of oil or gas, the Board is authorized to establish well-spacing units for any pool of oil or gas. Generally, the order establishing well-spacing units directs that only one well may be drilled and produced from the common source of supply on a spacing unit. Section 82-11-201, MCA. The Board ordered that all mineral interests in the Amsden formation underlying the EV2 of the NE1/4 of Section 3 were to be pooled.

Pooling is intended to provide for an equitable sharing of the oil or gas produced and the expenses of production among the persons owning interests in the pool. If an owner refuses to pay his share of the costs of a well, the Board can order his share to be paid but only out of the production from the well. Section 82-11-202, MCA. Gary refused to pay its share of the costs from Beartooth’s Botts No. 1. Gary did not bear any of the expenses of Beartooth’s well, except for those costs Beartooth could recover from Gary’s share of the oil produced from Botts No. 1.

Gary contested the Board’s pooling order. By late 1985, after it had become clear that Beartooth’s Botts No. 1 well was not producing much oil, Beartooth agreed that Gary could drill an additional well in the spacing unit, and supported Gary’s application for a modification of the pooling order. The Board granted Gary’s application to drill an additional well in the spacing -unit.

In December 1985, Gary began drilling a well known as Botts No. 2-3 in the NE1/4 of the NE V4 of Section 3 about 1340 feet away from Beartooth’s well. Botts No. 2-3 began producing oil in January 1986, producing more than 80,000 barrels of oil in 1986 and over 50,000 barrels in 1987.

In June 1986, Gary began drilling another well, Botts No. 1-3, in the NW14 of the NE V4 of Section 3 (i.e., not within the well-spacing unit). This well only produced 246 barrels of oil in 1986 and 4039 barrels in 1987. Both of Gary’s wells, like the Beartooth well, produced in the Amsden formation.

During the 1985 legislative session, the legislature amended the statutes governing the oil and gas net proceeds tax. 1985 Mont. Laws 695. “New production,” as defined in § 15-23-601(2), MCA (1985), received favorable treatment, being taxed at seven percent of net proceeds. Section 15-23-607(2)(a), MCA (1985).

Gary believed that the production from its Botts Nos. 2-3 and 1-3 should be taxed as “new production.” Appellants, tax collectors for Yellowstone County and the State of Montana thought otherwise and classified the production from Botts Nos. 2-3 and 1-3 as existing or old production. Gary paid the net proceeds taxes to Yellowstone County under protest.

In January 1988, Gary filed a complaint for declaratory relief in the Thirteenth Judicial District Court. Gary requested the District Court to declare that the production attributable to the Ralph and Sarah Botts lease from Botts Nos. 2-3 and 1-3 was “new production” under § 15-23-601(2), MCA (1985), and that the taxes be reduced accordingly.

On September 5, 1990, the District Court entered judgment in Gary’s favor. Appellants appeal from this order.

The issue in this appeal is whether the District Court erred in determining that the oil produced from Gary’s wells constitutes “new production” within the meaning of § 15-23-601(2), MCA (1985).

The statute states:

“The term ‘new production’ means the production of natural gas, petroleum, or other crude or mineral oil from any lease that has not produced natural gas, petroleum, or other crude or mineral oil during the 5 years immediately preceding the first month of qualified new production.” [Emphasis added.]

The dispute centers around the meaning of the term “lease.” Appellants contend that “lease” means “a tract of land.” The Department of Revenue so defined the word “lease” in its Administrative Regulations, e.g., 42.25.1001(1), ARM (1985). Under the Department of Revenue’s interpretation, Gary’s production would not be “new production” because Beartooth produced oil from the same tract of land within the preceding five years.

Gary contends, and the District Court agreed, that “lease” means “a contract or legal arrangement,” under which Gary was permitted to go on the land and drill for oil. By this definition, Gary’s production was “new production” because Gary drilled its wells under a separate contractual agreement.

We are persuaded that the word “lease,” as used in this statute, refers to the contract or legal arrangement giving the driller the right to go on the land and drill for oil. The “lease” is not “the land” but is a separate interest. This definition is consistent with customary usage in the oil and gas industry. Williams’ and Meyers’ Manual of Oil and Gas Terms defines lease as: “(1) The conveyance of a non-freehold interest in land. (2) The instrument by which a leasehold or working interest is created in minerals.” 8 Williams and Meyers, Oil and Gas Law 503-04 (1987). Further, by so construing the word “lease” in the instant case, we effectuate the legislature’s public policy of encouraging new production on newly-leased lands.

Alternatively, the Department of Revenue contends that the prior production from Beartooth’s well should be attributed to Gary by virtue of the pooling order issued by the Board of Oil and Gas Conservation. As authority for this contention, the Department of Revenue cites three sections of Title 82, ch. 11, MCA (Oil and Gas Conservation), §§ 82-11-202(1), -211(1), and -212, MCA. We note, however, that these statutes are specifically concerned with oil and gas conservation and the prevention of waste, rather than taxation. The portions of the statutes cited by the Department of Revenue were all enacted several years before the 1985 amendments of § 15-23-601(2), MCA, distinguishing “new production” from existing production, and it does not appear that the earlier conservation statutes were drafted in contemplation of a later statute containing a new classification of oil production for tax purposes. We conclude that the cited statutes are not helpful in construing the tax statute at issue in this case.

Gary contends, and we agree, that it is unfair to penalize Gary economically for Beartooth’s production since Gary did not receive any benefit from Beartooth’s production, and, in fact, refused to participate in it. Beartooth’s Botts No. 1 well was drilled by a different operator under a separate contractual agreement, executed several years before Gary’s lease agreement. Gary had no right or ability to control Beartooth’s operations. Gary did not join in drilling Beartooth’s well and received no economic benefit from it. Gary was the sole operator of its own wells under a separate lease. We agree with the District Court that Beartooth’s production should not be charged to Gary. The oil produced from Gary’s Botts Nos. 2-3 and 1-3 wells was production from a new lease which had not produced during the first preceding five years. The District Corut correctly determined that the production from Gary’s wells constituted “new production” under § 15-23-601(2), MCA (1985).

Affirmed.

JUSTICES HARRISON, HUNT, GRAY, and WEBER concur.

JUSTICE McDONOUGH,

respectfully dissenting:

The general oil and gas net proceeds tax, which is involved here, is in lieu of a year-to-year ad valorem property tax on the oil and gas in the ground. The actual tax is arrived at by applying the applicable local millage against 100% of the net proceeds value of the produced oil and gas. The specific sections involved were an exception to the application of the general net proceeds tax and provided that net proceeds for new production would be considered as the equivalent of the gross sale proceeds, and, instead of applying the local millage rate to the net proceeds value, however defined, levied a straight seven percent tax against the gross sale proceeds. See § 15-23-607, MCA (1985). The taxation of “new production” is an exception to the general law taxing net proceeds of oil and gas. See the first sentences of § 15-23-602 and 603, MCA (1985).

The statute at issue, § 15-23-601, MCA (1985), reads as follows:

“(2) The term ‘new production’ means the production of natural gas, petroleum, or other crude or mineral oil from any lease that has not produced natural gas, petroleum, or other crude or mineral oil during the 5 years immediately preceding the first month of qualified new production.” (Emphasis added.)

Webster’s Seventh New Collegiate Dictionary, p. 480 states:

“lease \’les\n 1: a contract by which one conveys real estate for a term of years or at will usu. for a specified rent; also: the act of such conveyance or the term for which it is made 2: a piece of land or property that is leased.”

We have previously said that when a taxing statute is susceptible to two constructions and legislative intent is in doubt, relative to exemptions and deductions, the construction is to be against the taxpayer and in favor of the taxing power. See, State ex rel. Anderson v. State Board of Equalization (1957), 133 Mont. 8, 13, 319 P.2d 221; Anaconda Co. v. Dept. of Revenue (1978), 178 Mont. 254, 258, 583 P.2d 421, citing Anderson.

I realize that we are dealing with an exception and not a deduction or an exemption, but it is, in essence, the same because it is a net reduction of the general net proceeds tax. The maxim: “Where the reason is the same, the rule should be the same,” applies here. See § 1-3-202, MCA.

If there is a doubt as to legislative intent then this being an exception, such words should be construed against the taxpayer. Specifically, what is not clear is the meaning of the word “lease” if one looks at it in isolation but when used in the context of “production of natural gas, petroleum, or other crude or mineral oil from any lease,” it becomes clear. The word “from” refers to the source. Oil and gas are produced from a place, real property and premises. For an example, the oil and gas leases involved herein and agreements of the lessees herein, provide in their text for oil and gas produced and saved from the premises. Oil and gas are not produced from a written instrument or lease; if it were to be from a written lease, it would be production under or by virtue of a lease.

The effect of the majority’s construction is to give tax reductions on new production to those who have multiple written leases with production coming from the same place. For example, if minerals in the ground in a piece of land are owned by ten different owners as co-tenants, each gives a different written lease to a lessee or even the same lessee, such lessees then complete nine different additional development wells for each written lease adjacent to a producing well from the same vertical formation and pool. The nine wells would have the advantage of the tax reduction. However, a lessee who has one written lease covering two pieces of land, with a well on each, one five miles away from the other on an entirely different geological structure, would not receive the tax reduction, even though the second well would be geologically considered new production and the second well would be an expensive exploratory wildcat well and would open up a new field. Rules of construction and logic support the reversal of the District Corut.

CHIEF JUSTICE TURNAGE concurs in the dissent of JUSTICE McDonough.


text:
    INTERSTATE PRODUCTION CREDIT ASSOCIATION of Great Falls, Montana, Plaintiff and Respondent, v. JOSEPH L. DeSAYE and Grace L. DeSaye, Defendants, Counter-Claimants and Appellants, v. INTERSTATE PRODUCTION CREDIT ASSOCIATION of Great Falls, Montana, Counter-Defendant.
    No. 90-628.
    Submitted on briefs Oct. 3, 1991.
    Decided Nov. 14, 1991.
    250 Mont. 320.
    820 P.2d 1285.

      Leo Graybill, Jr., Graybill, Ostrem, Warner & Crotty, Great Falls, for defendants, counter-claimants and appellants.
    John Paul, Alexander, Baucus & Linnell, Great Falls, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from a judgment of possession of the Twelfth Judicial District, Chouteau County. Subsequent to a foreclosure action, the District Court found that the appellants, Joe and Grace DeSaye (DeSaye), were not entitled to possession of their farm in Loma, Montana, during the statutory redemption period. We affirm.

A question in this case involves the District Court’s denial of a motion in limine during the foreclosure proceeding. DeSaye was precluded from introducing expert testimony regarding the interest rates charged by respondent, Interstate Production Credit Association of Great Falls, Montana (IPCA). However, this Court granted IPCA’s motion dismissing DeSayes’ appeal of the District Court’s ruling on the motion in limine because DeSayes failed to file their appeal of the foreclosure judgment and decree in a timely fashion.

There is one issue for our review. Did the District Court err by finding that Joseph L. DeSaye was not entitled to possession of the foreclosed farm during the statutory redemption period?

Following a jury verdict in favor of IPCA, the District Court entered a judgment and decree of foreclosure against DeSayes. De-Saye objected that the judgment failed to identify how the issue of possession during the year of redemption would be resolved. The court ordered briefs on the possession issue, and an evidentiary hearing was held. The subject property, located at Loma, Montana, is a large irrigated farm consisting of two houses and several outbuildings. The “large” house is occupied by DeSayes’ son Grant, Grant’s wife and their children. Grant utilizes the property to run cattle independently of his father. In addition, along with his father, he attends to farming operations. Initially, the court found that during the redemption period DeSaye would be entitled to possession of the “small house” but not to the ‘large house,” outbuildings and surrounding grounds.

Subsequent to the District Court’s decision, this Court decided Federal Land Bank of Spokane v. Snider (1991), 247 Mont. 508, 808 P.2d 475, 48 St.Rep. 285, In Snider, this Court held that when determining possession of foreclosed property during the redemption period, there is no basis for dividing lands that the execution debtor occupies. In May 1991, we requested the District Court to reconsider its decision in light of the Snider decision. The District Court reviewed the record, found it unnecessary to obtain further evidence and determined that DeSaye did not occupy the foreclosed land as a home for himself and his family thereby granting possession of all the foreclosed land to IPCA. DeSaye appeals.

Section 71-1-229, MCA, provides in relevant part that:

“The purchaser of lands at mortgage foreclosure is not entitled to the possession thereof as against the execution debtor during the period of redemption allowed by law while the execution debtor personally occupies the land as a home for himself and his family.”

Determining who is entitled to possession of the property hinges on whether DeSaye (the execution debtor) personally occupied the land as a home for himself and his family. Resolution of this matter is a question of fact to be determined by the trial court.

This Court will affirm the findings of a trial court sitting without a jury unless the findings are clearly erroneous. Rule 52(a), M.R.Civ.P. In comparison, this Court will affirm the verdict of a jury if there is substantial credible evidence in the record to support the verdict. It is necessary to clarify these two standards and their proper application.

Substantial credible evidence when used to support a jury verdict is fairly well understood; however, when substantial evidence is used in the clearly erroneous standard, it is less clear. If a finding is not supported by substantial evidence it is clearly erroneous. The converse proposition that a finding supported by substantial evidence cannot be clearly erroneous is not true in a non-jury case. Wright and Miller, 9 Federal Practice and Procedure, Civil § 2585 at p. 735. “Substantial evidence and clearly erroneous are not synonymous, and a finding may be set aside, though supported by substantial evidence if found to be clearly erroneous.” W.R.B. Corp. v. Geer (C.A. 5th, 1963), 313 F.2d 750.

We adopt the following three-part test to determine if a finding is clearly erroneous. First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Western Cottonoil Co. v. Hodges (C.A. 5th 1954), 218 F.2d 158; Narragansett Improvement Company v. United States (C.A. 1st 1961), 290 F.2d 577. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” U.S. v. U.S. Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746.

In the instant case, the District Court based its findings that DeSaye did not reside in Loma on the following six facts. First, DeSaye’s telephone number was listed in Arizona at the home of his present wife, Carol Struck, while no listing was found in his name at the Loma farm. Second, neither DeSaye’s mailing address nor vehicle registration identify the Loma farm. His mailing address is a post office box at Havre, Montana. Third, Desaye was found to have spent more than 50 percent of his time in Arizona. Fourth, his current wife resides in Mesa, Arizona, and has never spent a night at the Loma farm. Fifth, Joe and Grace Desaye divorced in 1989. Joseph L. DeSaye claimed in petition for dissolution and was found in the final decree of marriage dissolution to be a resident of the State of Arizona. Sixth, the farmhouse is occupied by DeSayes’ son and his family who run livestock independent of DeSaye.

We find that the facts above provide substantial evidence that DeSaye did not make his home at the Loma farm. DeSaye contends that these facts are not determinative. He testified and maintains that he considers the Loma farm to be his home. Numerous examples from the record are cited to refute the District Court’s finding and to support his contention that he does in fact live at the Loma farm. DeSaye alleges that the record clearly supports a finding that he does reside at the Loma farm and that he should be given possession during the redemption period.

Although conflicts may exist in the evidence presented, it is the duty of the trial judge to resolve such conflicts. Due regard is to be given the trial court’s ability to judge the credibility of the witnesses. Rule 52(a), M.R.Civ.P. This Court’s function is not to substitute its judgment for the trier of fact. Wallace v. Wallace (1983), 203 Mont. 255, 661 P.2d 455.

The language of § 71-1-229, MCA, is clear in that execution debtors themselves must “personally’ reside at the foreclosed property. We decline Desaye’s invitation to include his son’s family residence at the farm as being able to substitute for his own. While it is unclear why the District Court initially found that DeSaye did reside in the “small house” but on reconsideration found that the small house was not his home, it remains that the substantial evidence does support the court’s finding on reconsideration. The District Court did not misapprehend the effect of its evidence. Furthermore, a review of the evidence does not leave us with a definite and firm conviction that a mistake has been committed. Affirmed.

JUSTICES HARRISON, GRAY, HUNT, and TRIEWEILER concur.


author: JUSTICE HUNT

text:
    In the Matter of the Verified Petition For Review of the Decision of the Character and Fitness Committee on the APPLICATION OF KENNETH J. PEDERSEN.
    No. 91-250.
    Submitted on briefs Aug. 15, 1991.
    Decided Nov. 14, 1991.
    Rehearing Denied Dec. 30, 1991.
    250 Mont. 325.
    820 P.2d 1288.

      Kenneth J. Pedersen, pro se.
    Max A. Hansen, Hansen & Associates, Dillon, for respondent.
   JUSTICE HUNT

delivered the opinion of the Court.

Petitioner Kenneth J. Pedersen appeals from the final decision of the Committee on Character and Fitness of the State Bar of Montana refusing to certify petitioner to this Court for admission to the Montana Bar. We affirm the decision of the Committee.

We phrase the issues before this Court as follows:

1. What is the appropriate standard of review for this Court to apply in reviewing a final decision of the Committee on Character and Fitness of the State Bar of Montana?

2. Did the Committee on Character and Fitness violate petitioner’s constitutional right to due process?

3. Did the Committee on Character and Fitness err in finding that petitioner does not possess the requisite good moral character required for certification for admission to the Montana Bar?

On April 13, 1989, petitioner filed an application for admission to the State Bar of Montana. As is the case with all apphcations to the Montana Bar, petitioner’s application was referred to the Committee on Character and Fitness for review. Upon review, the Committee, on May 30, 1989, refused to certify petitioner to this Court to take the Montana Bar Examination. Petitioner requested the Committee reconsider its decision. Following an informal hearing on July 25, 1989, which petitioner attended, the Committee reaffirmed its initial decision denying petitioner’s application for admission. Petitioner then requested a formal hearing on the matter. On May 4,1990, the Committee held a formal hearing at which petitioner. personally appeared without counsel. Petitioner presented evidence on his behalf and responded to questions by the Committee members. On April 9, 1991, the Committee issued its Findings of Fact, Conclusions of Law and Final Decision, again refusing to certify petitioner to this Court for admission to the Montana Bar. Petitioner appealed the Committee’s final decision by filing with this Cotut a Verified Petition for Review pursuant to Section 4(i) of the Rules of Procedure of the Committee on Character and Fitness of the State Bar of Montana.

At the time of petitioner’s application for admission to the Montana Bar, he had been a member of the State Bar of Illinois since 1980, an affiliate member of the State Bar of Idaho since 1982, and had been admitted to practice before the United States Patent Office since 1980. Upon receiving petitioner’s application, the Committee undertook an extensive investigation of petitioner’s background. The findings of this investigation raised serious questions concerning petitioner’s moral character in relation to his application for admission to the Montana Bar. Specifically, the Committee was concerned by an apparent pattern of neglect of financial responsibilities and professional obligations by petitioner. The Committee discovered that petitioner was the subject of a number of debt collection actions, one involving a lawsuit. Additionally, it was learned that several complaints against petitioner were filed in Illinois with the Attorney Registration and Disciplinary Commission and that petitioner was the defendant in a legal malpractice action in Illinois. After extensive investigation, deliberation, and three separate hearings on the matter, the Committee ultimately denied petitioner’s application.

I.

What is the appropriate standard of review for this Court to apply in reviewing a final decision of the Committee on Character and Fitness?

The present appeal appears to be the first case in which an applicant for the Montana Bar has sought review of a final decision of the Committee on Character and Fitness. Inasmuch as this is a case of first impression, we must determine the appropriate standard of review to apply in reviewing decisions of the Committee on Character and Fitness. The Committee has been given the authority to “act on behalf of this Court to investigate and determine the moral character and fitness of each applicant to take the Montana Bar Examination.” Rules For Admission to the Bar (1988), 234 Mont. 1, 9. (This Court recently issued new rules regarding admission to the Montana Bar which became effective in January 1991. Rules For Admission To The Bar (Mont. 1991), [247 Mont. 1,] 48 St.Rep. 30. However, since petitioner’s application was denied in 1990, this case is governed by the 1988 rules.)

The Montana Constitution provides that this Court has the power and obligation to regulate the admission of attorneys to the Montana Bar. Mont. Const, art. VII, § 2, cl. 3. The Committee on Character and Fitness assists this Court in fulfilling its obligation to regulate the admission of attorneys in Montana. However, the ultimate decision regarding the admission of attorneys in Montana rests exclusively with this Court. Upon reviewing a final decision of the Character and Fitness Committee we will conduct an independent review of the entire record to determine if the Committee erred. When the facts are admitted and uncontested, as they are in this case, we will give due consideration to the inferences drawn by the Committee, including inferences concerning rehabilitation and mitigation. Consideration will be given to the recommendation of the Committee as to whether the applicant is of the requisite good moral character and fitness to be admitted to the Montana Bar. The Committee will have heard testimonial evidence and will have had the opportunity to observe the demeanor and judge the credibility of the applicant or other witnesses. However, inasmuch as we are designated by the Montana Constitution to ultimately make this decision, we will affirm the Committee’s recommendation if we determine it was correct, and we will reverse if we determine the Committee erred. Our review will be in accordance with the existing standards for admission, taking into consideration the whole record.

II.

Did the Committee on Character and Fitness violate petitioner’s constitutional right to due process of law?

Petitioner asserts a violation of his right to due process by the Committee. Petitioner maintains that in light of the evidence presented, the decision of the Committee was arbitrary and based upon considerations that offend the dictates of reason.

In matters relating to the admission of attorneys to the Montana Bar and the conduct of members of the bar, this Court’s power is both broad and exclusive. The Montana Constitution provides that this Court:

“[M]ay make rules governing appellate procedure, practice and procedure for all other courts, admission to the bar and the conduct of its members. Rules of procedure shall be subject to disapproval by the legislature in either of the two sessions following promulgation.” Mont. Const, art. VII, § 2, cl. 3. We have consistently held that the clear and unambiguous language in our Constitution gives this Court exclusive authority to regulate the admission and conduct of attorneys in Montana. In the Matter of the Petitions of McCabe and Zeman (1975), 168 Mont. 334, 339, 544 P.2d 825, 827-28; Harlen v. City of Helena (1984), 208 Mont. 45, 49, 676 P.2d 191, 193. Prior to the 1972 Constitution, it was already recognized that the power to regulate the admission of attorneys in Montana was a matter peculiarly within the inherent power of this Court. Goetz v. Harrison (1969), 153 Mont. 403, 404, 457 P.2d 911, 912.

However, this power is subject to limits imposed by the Federal Constitution. As the United States Supreme Court has said:

“A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment.”

Schware v. Board of Bar Examiners (1957), 353 U.S. 232, 238-39, 77 S.Ct. 752, 756, 1 L.Ed.2d 796, 801. Those bodies charged with investigating and making decisions upon an applicant’s character and fitness to practice law in a particular jurisdiction must afford the applicant adequate due process of law. Mr. Justice Frankfurter, concurring in Schware, stated that “[rjefusal to allow a man to qualify himself for the profession on a wholly arbitrary standard or on a consideration that offends the dictates of reason offends the Due Process Clause.” Schware, 353 U.S. at 249, 77 S.Ct. at 761. In a later opinion, the United States Supreme Court reiterated that arbitrary or capricious denials of bar applications will not be tolerated. The Court added that the right to engage in the practice of law is not and should not be a matter of grace and favor. Willner v. Committee on Character and Fitness (1963), 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed. 2d 224. In a concurring opinion in Willner, Mr. Justice Goldberg discussed the due process requirement in these cases:

“The constitutional requirements in this context may be simply stated: in all cases in which admission to the bar is to be denied on the basis of character, the applicant, at some stage of the proceedings prior to such denial, must be adequately informed of the nature of the evidence against him and be afforded an adequate opportunity to rebut this evidence.”

Willner, 373 U.S. at 107, 83 S.Ct. at 1182.

The Committee on Character and Fitness has adopted specific rules of procedure to be followed in reviewing applications for the Montana Bar. These rules, which were reviewed and approved by this Court in 1987, provide for various procedural due process safeguards. In addition, this Court, in fulfilling its constitutionally mandated duty to regulate the admission of attorneys in Montana, promulgated a comprehensive set of rules and procedures governing the admission of attorneys to the Montana Bar. Rules for Admission to the Bar (1988), 234 Mont. 1. Section IV of the rules issued by this Court specifically discusses the Committee on Character and Fitness and the process by which it shall review applications for the Montana Bar.

In the instant case, these rules governing the procedure of the Committee and providing for due process for applicants were followed. Early on in the process, the Committee communicated to petitioner its specific concerns. Petitioner was aware of the instances of conduct which the Committee was investigating. Petitioner had ample opportunity to then produce any evidence or witnesses he desired in order to rebut the evidence offered against him. The Committee held three separate hearings on this matter, two of which petitioner personally attended. Petitioner was informed that he had the right to counsel at these hearings. Upon reaching a decision, the Committee issued detailed findings of fact and conclusions of law specifically noting the bases for its decision. It is clear the procedure was followed, and that the constitutional requirements of due process were met. We hold that petitioner’s right to due process of law was not violated by the Committee.

III.

Did the Committee on Character and Fitness err in finding petitioner does not possess the requisite good moral character required for certification for admission to the Montana Bar?

In addition to describing the duties of the Committee and the procedure to be followed, in 1988 this Court set out the standard to be used by the Committee in determining if an applicant is possessed of the required good moral character for admission to the Montana Bar.

“3. Standard of Character and Fitness. Every applicant for the Montana Bar Examination must be of good moral character. Good moral character shall be presumed by the Committee on Character and Fitness and thereafter certified to the Clerk of Court unless prior or present conduct of the applicant of which the Committee becomes aware would, in the opinion and discretion of the Committee, cause a reasonable person to believe that such applicant would, if admitted to practice law in Montana, be unable or unwilling to act in accordance with the standards set forth in the Montana Rules of Professional Conduct, fairly, honestly, reasonably, and with unquestioned integrity in all matters in which he or she acts as an attorney at law.”

[Emphasis added.]

Rules for Admission to the Bar (1988), 234 Mont. 1, 9. This standard differs from that adopted by the Committee and approved by this Court in 1987. The Committee’s rule provides that every applicant shall be of good moral character, but then goes on to say that “[t]he applicant shall have the burden of proving that he or she is possessed of good moral character. The Committee shall certify the Applicant to the Clerk of the Supreme Court unless prior or present conduct....” Rules of Procedure of the Committee on Character and Fitness of the State Bar of Montana, § 3(a) (1987). The 1991 Rules for Admission issued by this Court are in accord with the 1987 Committee Rules in providing that the applicant has the responsibility of proving his or her moral character to the satisfaction of the Committee. However, the 1988 rules indicate that the good moral character of the applicant is to be presumed. To the extent that the Committee Rules are inconsistent with our 1988 rules on this point, the Committee Rules are superseded in this case which is governed by the 1988 rules.

The Committee initially placed the burden on petitioner to prove his good moral character in this case. To that extent the Committee erred. However, the Committee specifically found that past conduct of petitioner would cause a reasonable person to believe petitioner would be unable or unwilling to act in accordance with the standards set forth in the Montana Rules of Professional Conduct. Therefore, even presuming petitioner’s good moral character, this conclusion justifies the Committee’s ultimate decision.

Pursuant to Sections 3(c)(7) and 3(c)(8) of the Committee Rules, discovery of evidence tending to show neglect of financial responsibilities and neglect of professional obligations is cause for further inquiry before certifying the applicant. In this instance, after extensive investigation the Committee concluded that the seriousness of the past conduct required it to deny petitioner’s application. The Committee concluded that the circumstances surrounding petitioner’s past conduct were prima facie evidence of a violation of Rule 1.1 and Rule 1.3 of the Montana Rules of Professional Conduct. The Committee found the past conduct was not mitigated by any of the factors or circumstances which provided the background for the conduct. Additionally, the Committee found insufficient evidence or history of rehabilitation to warrant overlooking the described conduct.

Petitioner did present evidence indicating that for the past several years he has acted responsibly in relation to both financial and professional obligations. This is at least some indication of rehabilitation on the part of petitioner. However, after examining the record as a whole, we cannot say that the Committee erred in determining that petitioner is not possessed of the requisite good moral character required for admission to the Montana Bar. We hold that the Committee did not err in denying petitioner’s application.

The decision of the Committee is affirmed.

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


author:
JUSTICE McDONOUGH
      JUSTICE TRIEWEILER, JUSTICE WEBER,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICKY SCHEFFELMAN, Defendant and Appellant.
    No. 90-220.
    Submitted on briefs June 11, 1991.
    Decided Nov. 18, 1991.
    Rehearing Denied Jan. 8, 1992.
    250 Mont. 334.
    820 P.2d 1293.

      Stephen C. Moses, Charles F. Moses argued, Moses Law Firm, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth S. Baker argued, Asst. Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, Donna K. Heffington, Deputy County Atty., for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Defendant, Ricky Scheffelman, appeals his conviction by a jury of the Thirteenth Judicial District, Yellowstone County, for sexual intercourse without consent and sexual assault. Scheffelman was sentenced to 20 years in prison for sexual intercourse without consent and 15 years for sexual assault. These terms are to be served consecutively. The last ten years of each sentence was suspended. The District Court designated Scheffelman a persistent felony offender and added ten years to each of the above counts to be served consecutively to the above sentences. Scheffelman was designated dangerous for purposes of parole. We reverse.

The issues on appeal are:

1. Whether the District Court erred in admitting the child victim’s prior statements;

2. Whether the District Court erred in admitting the testimony of Linda Crummet, a clinical social worker;

3. Whether the defendant was entitled to a mistrial on the ground that one of the jurors failed to disclose during voir dire examination that he was acquainted with a State witness;

4. Whether the defendant was entitled to a mistrial on the ground that a State witness made a remark regarding drug use;

5. Whether the District Court erred in refusing defendant’s request to review the victim’s psychological records;

6. Whether the District Court erred in instructing the jury;

7. Whether the convictions are supported by substantial evidence;

8. Whether the District Court erred in sentencing defendant.

Defendant, Ricky Scheffelman, was convicted of molesting his step-daughter, S.S., during the period of time between Christmas Eve of 1985 and May of 1986. According to the allegations of the State, Scheffelman entered the victim’s bedroom on Christmas Eve of 1985. The victim was asleep in a bed that was shared with her two siblings. Scheffelman laid down next to the bed, reached over the top and fondled the victim. According to the victim’s testimony, Scheffelman inserted his fingers into her vagina and “wiggled them around.” This conduct continued, on a periodic basis, until May of 1986 when Scheffelman was imprisoned on an unrelated charge.

The victim did not report these incidents to anyone until the spring of 1988, when she was living with her grandmother, Lovyce Smith. At this time, Ms. Smith questioned the victim about sexual abuse. Initially, the victim denied that any abuse occurred. However after several discussions of the matter, the victim recanted her earlier denials and told her grandmother that she had, in fact, been sexually molested by the defendant.

Following these revelations, Ms. Smith brought the victim to see Pastor Johan Rockstad. The victim told him the same stories she told her grandmother. She also told Pastor Rockstad that the defendant had sexual intercourse with her. When the victim’s grandmother questioned her about this incident, the victim admitted that she “lied about that part.”

On December 30, 1988, Scheffelman was charged with sexual intercourse without consent and sexual assault. On November 6, 1989, defendant was convicted of the above-named crimes. Several errors have been set forth in the appeal of those convictions. The facts surrounding these errors will be discussed in greater depth under the appropriate issues contained in this opinion.

ISSUE I

Whether prior consistent statements of the child witness were properly admitted to rebut the defendant’s express and implied charges of fabrication and improper influence.

During trial, the State’s attorney, in her opening statement, believing that the defendant would attack the victim’s credibility through the use of her inconsistent statements, mentioned the prior consistent statements of the victim. She also alluded to the fact that the victim had a motive in reporting Scheffelman’s conduct because she did not want him to return to the family home and molest her again. Defendant objected and was overruled. During the State’s case in chief, and after the testimony of the victim, which included cross-examination by the defendant, the State sought to introduce prior consistent statements of the victim through the hearsay exclusion contained in Rule 801(d)(1)(B), M.R.Evid. The defendant objected; his objections were overruled and the evidence was introduced.

Scheffelman argues that the District Court improperly allowed these statements into evidence. His argument of this issue has two bases. First he maintains the District Court erred when it allowed the State to introduce impeaching evidence against its own witness. Through its introduction of this evidence, the State was able to introduce several out-of-court statements made by the victim under Rule 801(d)(1)(B), M.R.Evid. Scheffelman argues that these tactics deprived him of his ability to formulate his own trial strategy because he was forced to react to the strategy set forth by the State. In his second argument, Scheffelman maintains the out-of-court statements introduced under Rule 801(d)(1)(B), M.R.Evid., should not have been allowed into evidence because they were made after the victim had a motive to falsify. We will address each of these arguments in order.

Rule 801(d)(1)(B), M.R.Evid., provides:

“A statement is not hearsay if... [t]he declarant testifies at trial... and is subject to cross-examination concerning the statement and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of subsequent fabrication, improper influence or motive[.]”

There are four requirements before prior statements qualify for admission under this rule: 1) the declarant must testify and 2) be subject to cross-examination concerning her statement, and 3) the statements to which the witness testifies must be consistent with the declarant’s testimony, and 4) the statement must rebut an express or implied charge of fabrication, improper influence or motive. See State v. Mackie (1981), 191 Mont. 138, 622 P.2d 673.

Scheffelman argues that the statements introduced by the State do not qualify for admission under this rule because they were not introduced to rebut a charge of fabrication. As stated above, the State, through its opening statement and through direct examination, introduced several inconsistent statements made by the victim. It also set forth a possible motive that may have led the victim to falsify testimony concerning the defendant’s conduct. After this evidence was admitted, the State introduced the testimony of the grandmother, Lovyce Smith; Pastor Rockstad; and also Linda Crummet and Terri Herman. Each of these witnesses repeated statements made by the victim that were consistent with her trial testimony. Their testimony was allowed into evidence under the exception to the hearsay rule provided by Rule 801(d)(1)(B), M.R.Evid.

Scheffelman objected to the statements made by the prosecutor during opening statement concerning the victim’s inconsistencies. He also objected to this evidence during the State’s direct examination of the victim. The District Court overruled Scheffelman’s objections. However, in doing so, it reminded the prosecutor that she might “back herself into a comer” if she made statements during her opening that could not be proven by admissible evidence. The assertion of facts in an opening statement which are not proved during trial may constitute grounds for a mistrial if there is a reasonable possibility that the inadmissible evidence contributed to the conviction. State v. West (1980), 190 Mont. 38, 42, 617 P.2d 1298, 1300.

During defendant’s counsel’s opening statement, he stated the victim will tell a tale and that she lied to her grandmother and the pastor. During cross-examination of the victim, Scheffelman’s attorney attempted to challenge her testimony. He also alluded to the possibility that the victim may have had a motive to fabricate and implied she was subject to improper influence on the part of the prosecuting attorney. Following cross-examination, the State was allowed to present testimony of the prior out-of-court statements made by the victim that were consistent with her testimony.

The defendant claims he does not assert a subsequent fabrication on the part of the victim, but that she was fabricating or lying all along. Generally speaking, if this were true, prior consistent statements would not be admitted. However, given the fact that the defense implied improper influence on the part of the prosecuting attorney in cross examining the victim, we hold that her prior consistent statements in this case were properly admitted. The statements made by the prosecutor during her opening statement could possibly have resulted in a mistrial if they could not be proven by the evidence. The prosecutor was warned of this possibility by the District Court. However, the door opened for the introduction of the victim’s prior consistent statements by the defense’s implication of improper influence by the prosecuting attorney. Once this was done, the State was free to introduce the out-of-court declarations through testimony provided by rebuttal witnesses.

Scheffelman next argues that the prior consistent statements should not have been allowed into evidence because they were made after the victim had a motive to falsify. At common law, prior consistent statements were normally excluded from evidence because they were viewed as irrelevant. It was recognized that the mere fact that a declarant made the same statement on several occasions had no bearing on the veracity of that statement:

“Evidence which merely shows that the witness said the same thing on other occasions when his motive was the same does not have much probative force for the simple reason that mere repetition does not imply veracity.”

See Weinstein and Berger, Weinstein’s Evidence 801-105 to -151 (1988).

With the adoption of the new rules of evidence, however, it has been recognized that prior consistent statements are relevant to rebut a charge of fabrication, improper influence, or motive. Most jurisdictions still look to the time that the statement was made in order to address concerns of relevancy, however. These jurisdictions hold that in order to be relevant, a prior consistent statement must be made before the declarant has a motive to fabricate. If a declarant makes consistent statements after the motive to fabricate arises, the relevancy of those statements under Rules 402 and 403, M.R.Evid, is lost because they have no bearing upon truthfulness or veracity. See e.g. United States v. Miller, (9th Cir. 1989), 874 F.2d 1255, 1272; State v. Martin (1983), 136 Ariz. 552, 663 P.2d 236; People v. Buckley (1976), 43 Ill.App.3d 53, 1 Ill.Dec. 831, 356 N.E.2d 1113.

Other jurisdictions have taken different approaches when considering the admissibility of prior consistent statements. The State argues that this Court should adopt the approach taken by Colorado and New Mexico. These states have rejected the theory that Rule 801(d)(1)(B), M.R.Evid., imposes any time requirement as a prerequisite to admissibility of prior statements. These courts have held that “if the credibility of a witness is at issue, the jury should have access to all the relevant facts including consistent and inconsistent statements and the reasons for possible fabrication.” See e.g. People v. Andrews (Colo. 1986), 729 P.2d 997. Under this view, a jury would have access to all statements made by the declarant, together with evidence surrounding the timing and possible motives for fabrication of such statements. The jury would be able to assess the appropriate weight to be given the statements.

After considering each approach taken by the various jurisdictions, we believe that the most logical view is that held by the Ninth Circuit. As described above, this view requires the prior consistent statement to be made before any motive to fabricate has arisen. This view is most in line with the traditional common law and with common sense notions of relevancy. We now consider whether the prior consistent statements of this case were properly admitted under the guidelines set down by this rule.

According to Scheffelman, the victim’s prior statements should not have been admitted because she had a motive to fabricate when they were made. However, according to the testimony, the victim’s motive for fabrication was that she did not want Scheffelman to return to the family household and continue his pattern of abuse. This reason cannot be considered a motive to fabricate. Rather, it is inherently intertwined with the truth or falsity of the charge of the crime itself. It may provide the impetus to report the defendant’s abuse, but it does not evidence any motive to lie or fabricate. Therefore, we hold no error was committed in allowing the prior consistent statements into evidence.

ISSUE II

Whether the District Court erred in admitting the testimony of Linda Crummet.

The State called Linda Crummet to testify as an expert in the area of child sexual abuse. Following testimony concerning her degrees, her licenses, the nature and extent of her practice and her position as a clinical social worker, the State moved to have Ms. Crummet recognized as an expert in the area of child sexual abuse due to both training and experience. Scheffelman objected to the State’s motion; however, he did agree that she was qualified as an expert in the area of social work. The court granted the State’s motion and allowed Ms. Crummet to testify as an expert in the area of child sexual abuse.

After Ms. Crummet was qualified, the State asked a number of questions that were designed to elicit testimony concerning the nature of the victim’s experiences of sexual abuse. Ms. Crummet also gave her opinion that the victim’s statements were truthful and that she was a victim of sexual abuse, which was subject to a continuing objection.

Under the preceding issue, we discussed the propriety of the District Court’s decision to allow Ms. Crummet to testify under Rule 801(d)(1)(B), M.R.Evid. We held that under this rule, the court properly allowed Ms. Crummet, as well as other witnesses, to testify about prior statements made by the victim that were consistent with her trial testimony. Ms. Crummet’s testimony on factual components of the victim’s testimony was properly admissible for the purpose of rehabilitating the victim’s credibility, which had been attacked by the defense. However, Ms. Crummet could not render expert opinions under the authority of Rule 801, M.R.Evid. The admission of her opinions must, therefore, be justified by some other rule of law.

Montana follows the minority view that allows expert witnesses to testify directly about the credibility of a vi ctim who testifies in a child sexual abuse trial. See State v. Geyman (1986), 224 Mont. 194, 729 P.2d 475. Such testimony is properly admissible when the child victim testifies and her credibility is attacked. See State v. Harris (1991), 247 Mont. 405, 808 P.2d 453, 48 St.Rep. 62. However, in order to render such an opinion and like opinions, the expert must be properly qualified.

In the developing field of child sexual abuse law, the critical factors relating to qualification as an expert include: (1) extensive firsthand experience with sexually abused and non-sexually abused children; (2) thorough and up-to-date knowledge of the professional literature on child sexual abuse; and (3) objectivity and neutrality about individual cases, as are required of other experts. Meyers, Expert Testimony in Child Sexual Abuse Litigation, 68 Nebraska Law Rev. 1, 12 (1989). If these factors cannot be shown, the individual witness should not be allowed to testify as an expert on child sexual abuse. See Meyers, 68 Nebraska Law Rev. at 12.

In the case now before us, it is clear that Ms. Crummet did not meet the qualifications set out above that must necessarily be shown before she can give her opinion relative to the child being a victim of sexual abuse. We have fully read the transcript, and there is no indication that Ms. Crummet has had experience in treating children who have not been sexually abused. She “specialized in working with sexual abuse victims.” Without such experience, her opinion on the particular issue of whether or not the victim had been sexually abused or showed symptoms and behavior consistent with child sexual abuse could not be properly given. Also, there is no indication that she utilized any controlled standard to arrive at this conclusion. See State v. Black (Me. 1988), 537 A.2d 1154.

Indeed many of the symptoms that the victim experienced were general disturbances that are often present in children who experience traumatic events other than sexual abuse. For example, when asked whether the victim had experienced characteristic symptoms of sexual abuse, Ms. Crummet affirmed that the victim had experienced a number of anxiety symptoms that commonly result from such abuse. In the victim’s case, these symptoms included anxiety, having a hard time sitting still, having a hard time staying on a task and some sleep disturbance. It is true that such symptoms often result from sexual abuse; however, it is also true that children who have experienced disruptive events, such as separation from a parent, can experience elevations in these anxiety symptoms. See Meyers, 68 Nebraska Law Rev. 1, at 60-61.

In the victim’s case, we note that during the period of time surrounding the onset of these symptoms, she had been subject to a number of anxiety-producing events which included living in an alcoholic household and separation from her parents who were incarcerated in the Montana State Prison. In order to properly establish that the victim’s symptoms of anxiety did not result from these disturbances, rather than from sexual abuse, the expert testifying on behalf of the State must have experience in treating both sexually and non-sexually abused children.

When Ms. Crummet was asked whether she had formed an opinion on whether or not the victim had been sexually abused, the defense objected on the grounds that she was not qualified to render such an opinion. This objection properly reserved this issue for appeal. As the above analysis indicates, Ms. Crummet was not qualified "... by knowledge, skill, experience, training or education ...” to render this opinion. Rule 701, M.R.Evid. The above question asked of the expert and its answer are difficult to classify. Would the answer to the question be an opinion of fact or law? In order to avoid the opinion being one of law, or being inferred to be one of the law fitting the statutory crime, the expert should give an opinion such as that the child demonstrates age-inappropriate sexual knowledge and awareness; that the child’s symptoms and behavior are consistent with child sexual abuse; and, in the expert’s opinion, no explanation or cause other than sexual abuse seems plausible.

We hold that the admission of Ms. Crummet’s testimony on the issue of whether S.S. was the victim of sexual abuse constituted reversible error.

Because this case will be reversed and remanded for a new trial, the only other issue we find it necessary to address is issue 5, whether Scheffelman should be allowed to review the victim’s psychological records. During cross-examination of Lovyce Smith, Scheffelman’s counsel learned that the victim had seen a psychologist prior to the time she reported any incident of sexual abuse. Apparently, neither the State nor Scheffelman had any knowledge of these counseling sessions. The purpose of these sessions was to provide counseling for problems that the victim may have experienced due to her mother’s drug and alcohol abuse.

Following Scheffelman’s request to view records of these counseling sessions, the District Court reviewed the records in camera. It then determined that they reflected the victim’s participation in a group involving children of alcoholics and consisted primarily of reports of the staff psychologist’s observations of the victim at play and during counseling. The trial court found that the reports would not be useful, and they contained no exculpatory material.

Scheffelman argues that the exclusion of these reports, after it was revealed to the jury that the victim had received psychological counseling, may have left an impression that she received treatment for sexual abuse. However, Terri Herman, the victim’s mother, clearly testified that the victim received counseling as a result of the mother’s drug abuse. Therefore, we fail to see how the record’s exclusion would lead the jury to believe that these sessions were for sexual abuse.

Additionally, Scheffelman maintains that he should have been able to utilize the records to show absence of rape trauma syndrome. He argues that if the records contained no reference to the symptoms of this syndrome, he could use this as evidence that no abuse occurred. We reject this argument. The absence of evidence of psychological trauma logically does not prove that the offense did not occur. State v. Gilpin (1988), 232 Mont. 56, 756 P.2d 445. The District Court held that these records contained no evidence applicable to Scheffelman’s trial. We find no abuse of discretion in this rifling. However, if a qualified expert for the State is anticipated to testify that certain symptoms and behavior of the victim are consistent with sexual abuse, the defense, upon proper motion, should be allowed to examine such pertinent records after examination in camera by the court, if such records show or tend to show other reasons for such symptoms and behavior. As to issues 3, 4, 7, and 8, they need not be addressed because of the retrial. As to issue 6, relative to the court’s instructing the jury, no error was committed.

Reversed and remanded for retrial.

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

JUSTICE TRIEWEILER,

concurring in part and dissenting in part:

I concur with the majority’s conclusions that the victim’s prior consistent statements were admissible under Rule 801(d)(1)(B), M.R.Evid., and that the District Court did not abuse its discretion when it refused to permit inspection of the victim’s psychological records. However, I do not agree with all that is said in the majority’s discussion of prior consistent statements.

I dissent from that part of the majority’s opinion which holds that the testimony of Linda Crummet was inadmissible and reverses the defendant’s conviction on that basis.

The State of Montana, the County Attorney, and the District Court had a right to rely on this Court’s prior decisions in State v. French (1988), 233 Mont. 364, 760 P.2d 86, and State v. Geyman (1986), 224 Mont. 194, 729 P.2d 475, when they offered and admitted the testimony of Ms. Crummet.

In French, we held that a school counselor with a master’s degree in counseling and a bachelor’s degree in education who had counseled a young victim of sexual abuse was qualified to testify that in her opinion the victim had been truthful when she described the defendant’s abusive acts to her. There were no foundational requirements established by that case for such testimony, and the rules of evidence are purposely liberal regarding the necessary qualifications for expert testimony. See Rules 701, 702, 703, and 704, M.R.Evid.

In this case, the State went to greater lengths to qualify Ms. Crummet than was done with the expert who testified in French. It established that she is a clinical social worker with a master’s degree in social work who specializes in working with sexual abuse victims. At the time of trial, she had been a specialist in that field for a period of from eight to nine years and had counseled over 1000 children who had been victims of sexual abuse.

Ms. Crummet had attended as many as 30 classes which dealt with the subject of recognizing victims of sexual abuse and during many of those courses was instructed on techniques for evaluating the credibility of children who claimed to be victims. She was certified by the National Association of Social Workers and licensed as a social worker by the State of Montana. She was employed as a clinical social worker by Eastern Montana College, in addition to engaging in private practice.

In fact, the defendant in this case stipulated to Ms. Crummet’s expertise in the area of social work, and the District Court found, without objection, that she was qualified as an expert in the area of child sexual abuse.

When Ms. Crummet was asked for her opinions regarding the victim’s credibility, defendant objected for two reasons. He stated that the question called for her to express an opinion which invaded the province of the jury. However, that issue had clearly been resolved by our previous decisions in French and Geyman. He also objected that her testimony included hearsay statements made by the victim. However, that issue was addressed by the majority under its discussion of prior consistent statements. For these reasons, Ms. Crummet was permitted by the District Court to express her opinions regarding the victim’s credibility.

Interestingly, on appeal, defendant raised no objection to Ms. Crummet’s qualifications for expressing the opinions that she expressed. Defendant’s argument was limited to his claim that Ms. Crummet was improperly allowed to relate the victim’s prior statements.

Based on the aforementioned foundation, Ms. Crummet related what characteristics she has been trained to look for in evaluating an alleged victim’s complaints of sexual abuse and testified that she found several of those characteristics in this victim. She expressed the opinion that, based upon her experience in the ten interviews that she had with the victim, the victim had been abused and the description of that abuse related to her by the victim was truthful. At no time during any of her testimony did defendant raise the objections which now form the basis for the majority’s reversal of defendant’s conviction.

The District Court had no opportunity to consider those objections before allowing Ms. Crummet’s testimony and the prosecutor had no opportunity to consider the majority’s analysis before she decided to offer Ms. Crummet’s testimony.

I question the significance of the new foundational requirements imposed by the majority. However, of greater concern is my belief that all trial lawyers, whether representing the State or private individuals, have a right to know the rules for foundationing expert testimony in advance. If this Court wants to change the rules, then it should do so prospectively.

In this case, the State followed all the rules that it was aware of at the time of trial and still finds its hard-earned conviction of defendant overturned due to another “mid-course correction” by this Court.

Furthermore, I disagree with the majority’s analysis of Ms. Crummet’s testimony on the basis of an article in the Nebraska Law Review. Ms. Crummet observed symptoms in the victim’s behavior which were consistent with victimization by defendant. The majority observes that these symptoms are consistent with other “anxiety producing events” which were present in the victim’s life. However, those observations are more appropriate for cross-examination than as a basis for excluding her opinion as a matter of law. In this case, Ms. Crummet was thoroughly cross-examined regarding other possible causes for the victim’s symptoms. However, after having had the benefit of that cross-examination and the benefit of personally observing the witness, the jury concluded that she properly attributed those symptoms to sexual abuse.

The argument that this victim’s symptoms may have been attributable to some cause other than sexual abuse was appropriate in the District Court. It is not a proper basis for reversal of the jury’s verdict.

For these reasons, I would conclude that, in offering the testimony of Linda Crummet, the State satisfied all foundational requirements of which it had previously been apprised and would affirm the judgment of the District Court.

JUSTICE WEBER,

dissenting:

I dissent from Issue II of the majority opinion where the majority concludes that the District Court erred in admitting the testimony of Linda Crummet. In quoting from Meyers, 68 Nebraska Law Rev. 1,12 (1989), the majority points out that in the developing field of child sexual abuse, the critical factors relating to qualification as an expert include: (1) extensive firsthand experience with sexually abused and non-sexually abused children; (2) thorough and up-to-date knowledge of the professional literature on child sexual abuse; and (3) objectivity and neutrality about individual cases as are required of other experts. The majority opinion raises no issue as to Linda Crummet’s extensive firsthand experience with sexually abused children, her thorough and up-to-date knowledge of professional literature and her objectivity and neutrality. The majority does conclude that there is no indication that Ms. Crummet has had experience in treating non-sexually abused children, and without such experience, her opinion on the issue of whether or not the victim had been sexually abused could not properly be given. To me the record requires a different conclusion. Following are parts of the qualifying testimony on the part of Linda Crummet:

“Q. Would you state your name, please.
“A. Linda Crummet.
“Q. And your occupation.
“A. I am clinical social worker.
“Q. Where do you work, Ms. Crummet?
“A. I work twenty hours a week at Eastern Montana College as a counselor at the Health Center, and I have a private practice.
“Q. Would you tell the jury, please, what your educational background is.
“A. I have a Masters in social work from the University of Minnesota.
“Q. Is there any area in which you specialize in your practice?
“A. I specialize in working with sexual abuse victims.
“Q ... Were there any courses that involved dealing with and recognizing the victims of sexual abuse?
“A. Many. Many in graduate school and then subsequently in specialized workshop and training.
“Q. All right. When would the specialized workshops have taken place, were they before or after you received your masters degree?
“A. After I received my masters degree, and off and on since 1981 and I continue to do so.
“Q. Can you tell the jury within a fair number the workshops you have attended since you obtained your degree.
“A. Oh I would say thirty, forty at least.
“Q. And how many of those workshops would have dealt with sexual abuse of children?
“A. The majority, probably eighty percent.

This establishes without contradiction that Linda Crummet, over the past ten years, had taken many courses involving the recognition and identification of victims of sexual abuse. This was done in approximately thirty specialized workshops over the span of ten years. This directly contradicts the majority conclusion that she had no basis for concluding that a victim had been sexually abused. The uncontradicted record establishes that she had extensive workshops and training for the express purpose of identifying and concluding that a particular person had been or had not been a sexual abuse victim. The foregoing testimony, together with other testimony on the part of Linda Crummet established that at Eastern Montana College where she works twenty horns a week, approximately forty to fifty percent of her cases are not sexual abuse cases. In her private practice, about ten percent are not sexual abuse cases. The District Court in the exercise of its discretion concluded that Linda Crummet was qualified as an expert “by knowledge, skill, experience, training or education, and may testify as an expert in this area of child sexual abuse.” There is certainly substantial evidence for that District Court conclusion and I am unable to see on what basis the majority has in effect concluded that the District Court was clearly erroneous in reaching that conclusion.

We will next discuss additional pertinent information disclosed by the examination and cross-examination of Linda Crummet. Following cross-examination on the question of her ability to determine when a child, sexually abused or not, might be lying, she gave the following response:

“Q. I would like to go into that a little bit farther. What type of training have you had to deal with making a distinction between a child who is lying and a child who is actually a victim of sexual abuse?
“A. Well that’s a focus of much of the training as far as workshops that have to do with determining whether a child is credible and determining whether a child is telling the truth versus telling a lie, how to do that. Interviewing workshops, how to interview children. And there are always a lot of questions and confusion about what legal issues versus treatment issues sometimes can clash. And so much of that has been covered in many treatment workshops, supervision, I have had a great deal of supervision in cases in working with kids.”

With regard to the statements made by S.S., as compared to statements which might be a lie, she testified as follows:

“Q. Let me just stop you a minute here. With regard to the authenticity then, how did that apply to your stated conclusion that you believed the statements [S.S.] made to you were true?
“A. Well [S.S.] would essentially give the same information over time but was able to give, use different words, and she was consistent with her affect without it appearing staged or unreal.
“Q. Now affect you have indicated is difficulty saying words, hesitation, embarrassment?
“A. Emotional kinds of response, yes, and hers was pretty appropriate to the content.
“Q. And with a child who is making up the story what effect do you see?
“A. They can be agitated or flat, meaning they just kind of get the words and don’t have a lot of fear or concern or the kinds of icky feeling that a child shows, and you can see when a child feels real dirty, when they feel responsible, when they feel scared.
“Q. You also indicated that there have been a number of cases you have dealt with where you did conclude the child was lying?
“A. Yes.”

Such testimony demonstrated that Linda Crummet could distinguish between a child who is lying about being a victim of sexual abuse and an actual sexual abuse victim. She also demonstrated an ability to distinguish coached children and lying children from those telling the truth about sexual abuse. She explained some of the characteristics which helped her to distinguish the truth. From that testimony we may properly conclude that she had significant experience in treating abused and non-abused children and had extensive training and experience in determining whether or not a child was telling the truth in connection with claims of sexual abuse. After considering this extensive testimony which goes beyond the initial qualifying testimony, I disagree even more emphatically with the majority conclusion that Linda Crummet did not have experience in treating non-sexually abused children so that her opinion could not be given.

I also emphasize that the defense counsel did not raise an issue as to the lack of experience of Linda Crummet with non-sexually abused children. Had such an objection been raised, it would have given additional opportunity for presentation of additional evidence and consideration of the same by the trial court.

I conclude the record amply demonstrates that Linda Crummet had experience in treating both sexually abused and non-sexually abused children. I conclude that Linda Crummet had the qualifications by knowledge, skill, experience, training, or education to render an expert opinion as required under Rule 701, M.R.Evid.

I would affirm the conviction of the defendant.