author: RETIRED JUSTICE McDONOUGH JUSTICE TRIEWEILER

text:
    DEBRA ARNESON, Plaintiff and Respondent, v. STATE OF MONTANA, by and through its DEPARTMENT OF ADMINISTRATION, TEACHERS’ RETIREMENT DIVISION, and TEACHERS’ RETIREMENT BOARD, Defendants and Appellants.
    No. 92-301.
    Submitted August 16, 1993.
    Decided December 7, 1993.
    50 St.Rep. 1546.
    262 Mont. 269.
    864 P.2d 1245.

      For Defendants and Appellants: Brenda Nordlund, State of Montana Teachers’ Retirement Division, Helena.
    For Plaintiff and Respondent: Peter Michael Meloy, Meloy Law Firm, Helena.
   RETIRED JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from the decision of the District Court of the First Judicial District, Lewis and Clark County, concluding that § 19-4-711, MCA (1991) (now codified at § 19-20-711, MCA), is unconstitutional to the extent that it employed an unreasonable classification in violation of the equal protection clause of the Montana Constitution, Article II, Section 4. We affirm.

The appellants’ appeal and the respondent’s cross appeal raise the following issues:

1. Did the District Court err when it applied the rational basis test rather than the middle-tier analysis to determine whether the age classification in § 19-4-711, MCA (1991), violates equal protection guarantees of the Montana Constitution?

2. Did the District Court err when it concluded that the age classification in § 19-4-711, MCA(1991), violates Article II, Section 4, of the Montana Constitution by denying respondent equal protection of the laws?

3. Did the District Court err when it concluded that the age distinction in § 19-4-711, MCA (1991), does not violate the Montana Human Rights Act?

In 1989 the legislature passed Chapter 115 Session Laws of 1989 which, for its purpose, provided for a post-retirement adjustment increase in the pensions of the beneficiaries of the Teachers’ Retirement System. The law provided that to be eligible for the adjustment, retirees or their beneficiaries must be 55 years of age or older; or, irrespective of age, all those receiving disability or survivorship benefits.

The respondent’s benefit was derived from her mother, who was a member of the Teachers’ Retirement System, and who had reached retirement age and retired. The mother selected the retirement option that would permit benefits to be paid to her for her lifetime and upon her death continue through the life of her beneficiary (respondent). The mother died shortly after her retirement and the respondent began receiving the benefits. The respondent is 31 years of age.

The respondent has been classified as a beneficiary due to the fact that her mother had retired and was a beneficiary at time of her death, and respondent succeeded to the benefits. Being under 55 years of age she did not receive the adjustment. However, if her mother had continued to work and died while working the respondent would be considered a survivor and would receive the adjustment even though she was 31 years of age. Her request for the post-retirement adjustment was denied and she brought this action.

The respondent contends that the statute violates Article II, Section 4 of the Montana Constitution in that it denies her the equal protection of the laws.

No facts are in dispute. Our scope of review will be as to determine whether the District Court’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 603.

We will discuss the first two issues together. Different tests of scrutiny are applied to such statute relative to the contentions of the respondent.

This statute, under the equal protection question, does not come under the strict scrutiny test because strict scrutiny of a legislative classification is required only when the classification impermissibly interferes with the exercise of a fundamental right or operates to a peculiar disadvantage of a suspect class. Here the respondent is not a member of a suspect class nor is a fundamental right involved.

In her cross appeal the respondent urges us to adopt the middle-level scrutiny test. The test is applied when the middle level of review is used and is as follows: The means chosen by the legislature (classification) must serve important governmental objectives and must be substantially related to the achievement of those objectives. The middle-level scrutiny test has been recently applied by the U.S. Supreme Court in discussing cases involving such things as gender, alienage and illegitimacy, but the court has specifically refused to invoke it involving age and has applied the rational test thereto. Gregory v. Ashcroft (1991), 501 U.S._, 111 S.Ct. 2395, 115 L.Ed.2d 410; Massachusetts Bd. of Retirement v. Murgia (1976), 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520.

This Court applied the middle tier scrutiny test in Butte Communion Union v. Lewis (1986), 219 Mont. 426, 712 P.2d 1309, in which we said in developing a middle tier test, as follows:

We proceed to develop our own middle-tier test for determining whether HB 843 violates the Montana Constitution. We do so because although a right to welfare is not contained in our Declaration of Rights, it is sufficiently important that art. XII, sec. 3(3) directs the Legislature to provide necessary assistance to the misfortunate. A benefit lodged in our State Constitution is an interest whose abridgment requires something more than a rational relationship to a governmental objective.

Butte Community Union, 712 P.2d at 1313. The Court in that opinion also stated:

However, because the Constitutional Convention delegates deemed welfare to be sufficiently important to warrant reference in the Constitution, we hold that a classification which abridges welfare benefits is subject to a heightened scrutiny under an equal protection analysis and that HB 843 must fall under such scrutiny.

Butte Community Union, 712 P.2d at 1311.

The application of the middle tier scrutiny test in the above case was based on a benefit directed in our Constitution. Here there is no such constitutional direction. We have previously declined to apply the middle tier scrutiny test to an “age plus” classification, absent a constitutionally based benefit. See Matter of Wood (1989), 236 Mont. 118, 127, 768 P.2d 1370, 1376. We also decline to apply it here.

The District Court applied the lowest level of scrutiny, the rational basis test, which determines whether the classification is rationally related to furthering a legitimate state purpose. The trial court found the classification here did not rationally relate to furthering a legitimate state purpose.

The District Court basically found in applying the rational basis test that there was not any reason which was rationally related to the legitimate state purpose to grant a post-retirement adjustment to those who are receiving disability or survivorship allowances and who are under 55 years of age and to deny such adjustment to people in the plaintiff’s position under age 55.

We will also apply the rational basis test.

To a certain extent, nearly all legislation classifies or sets forth classifications of applicability, benefits and recipients. If some of these classifications are imperfect they do not necessarily violate the equal protection clauses.

We note that every possible presumption must be indulged in favor of the constitutionality of the statute. See State v. Safeway Stores (1938), 106 Mont. 182, 199, 76 P.2d 81, 84.

The purpose of this law is to grant to the Retirement System beneficiaries, retirees’ survivors, and disabled, an amount to alleviate the eroding effect of inflation on their pension. Both the survivor of an employee and the beneficiary of an employee who has retired, are subject to the effect of inflation. But the classification as to who is to receive the post-retirement adjustment does not include the respondent who is the beneficiary of a former employee who had retired. As a result, this legislation is “under inclusive.” This differentiation does not create a reasonable classification between such ultimate adult survivor and adult beneficiary. They are both similarly situated with respect to the purpose of this law.

The respondent states that there is no possible purpose which can be conceived to justify such a classification considering the overall purpose of the legislation of post-retirement adjustment to compensate for inflation. The respondent contends no distinction should be made between a beneficiary of a retired employee and the beneficiary of an employee who died while working when the beneficiaries are both under the age of 55. We agree.

We are unable to find any rational relationship to the purpose of the legislation for the establishment of such a classification. It is wholly arbitrary and an example of the legislature picking and choosing who will receive benefits. Such a classification must distinguish one class from another taking into consideration the purpose of the statute. See Peter Kewitt Sons’ Co. v. State Board of Equalization (1973), 161 Mont. 140, 147, 505 P.2d 102, 106-07 (quoting State v. State Board of Equalization (1965), 145 Mont. 380, 403 P.2d 635).

The granting of a post-retirement adjustment does not come within the approach of considering whether the enactment is experimental or piecemeal, and therefore applying the legislation to one phase of the problem and not affecting others. See Eastman v. Atlantic Richfield Co. (1989), 237 Mont. 332, 339, 777 P.2d 862, 866. As we stated above, the legislature cannot arbitrarily pick and choose. The appellant has made such an argument on a money saving basis, but even if the governmental purpose is to save money, it cannot be done on a wholly arbitrary basis. The classification must have some rational relationship to the purpose of the legislation. There is nothing in the record or by conjecture which would justify the differentiation here.

The appellant makes a distinction between the class of service retirees and their beneficiaries and the class of disability and survivorship beneficiaries in that the class of service retirees is based on voluntariness and the class of disability and survivorship beneficiaries is not. That may be true on the basis of the retirees or the disabled, but it is not true as applied to the adult beneficiaries of an employee, a retired employee, or a disabled employee. In addition, there is no record as to what is voluntary and what is not voluntary.

There is no reasonable basis to the classification which permits an adult beneficiary of a disabled or deceased member to receive the adjustment regardless of age, and deny the adult beneficiary of a deceased service retiree who retired under voluntary or involuntary circumstances the adjustment because the beneficiary is under 55 years of age. The constitutional defect of the statute as applied to respondent is revealed when it is reviewed in light of its practical application. See State v. Jack (1975), 167 Mont. 456, 462, 539 P.2d 726,729. We conclude that its application to this respondent whereby the classification excludes her from receiving the post-retirement adjustment, is unconstitutional and in violation of Article II, Section 4 of the Montana Constitution. We affirm the District Court on the first two issues. Because of our holdings on the first two issues, there is no need to decide the third issue of whether the age distinction violates the Montana Human Rights Act. Affirmed.

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

JUSTICE TRIEWEILER

specially concurring.

I rejoice at the majority’s re-discovery of the rights provided for in the Equal Protection Clause of Article II, Section 4, of Montana’s Constitution. However, I find it peculiar that nowhere in the majority’s opinion is any mention made of the majority’s decision in Stratemeyer v. MACO Workers’ Compensation Trust (Mont. 1993), 855 P.2d 506, 50 St. Rep. 731. Perhaps that is because the result in this case cannot be reconciled with the majority’s decision in Stratemeyer. That is because under Stratemeyer there is no legislative classification which won’t satisfy the toothless rational basis test.

This same majority held in Stratemeyer that even where no rational basis for a legislative classification is established by the Legislature or proven in district court, this Court can speculate about why the Legislature acted as it did, and that speculation can serve as the basis for overcoming a constitutional challenge. This Court went on to add that even when the State offers no evidence to justify a legislative classification, a person challenging the legislation has the burden of proving that there is no rational basis. In other words, under the Stratemeyer decision, a citizen victimized by legislative discrimination has to, first of all, imagine every conceivable basis for that discrimination about which this Court might speculate and then somehow disprove it. This Court then went on in Stratemeyer to conclude that a justification for the classification at issue in that case could have been the Legislature’s intention to save money, even though there was no evidence in the record that the classification would save money. This Court held that:

The exclusion of mental claims rationally relates to the possible goal of reducing costs and having a viable program for the State and the enrolled employers and employees in the workers’ compensation field. [Emphasis added].

Stratemeyer, 855 P.2d at 511.

Certainly, by that standard the classification in this case passes any rational basis test. Who can dispute that discriminating against beneficiaries under a certain age “relates to the possible goal of reducing costs” for the teachers’ retirement system?

I, of course, have no regard for the Stratemeyer decision. I would not follow it and will urge its early demise at every opportunity.

The majority, however, has neither followed it, distinguished it, nor overruled it. Therefore, its decision in this case is both legally and intellectually inconsistent.

Surely this decision must cause a great deal of confusion to those legal scholars and lawyers who follow this Court’s decisions for the purpose of discerning reliable legal and constitutional principles upon which to base future advice and conduct. To you, let me simply provide the following explanation. Stratemeyer dealt with a classification in the highly political area of workers’ compensation law. This case deals with the less politically controversial area of teachers’ retirement benefits.

Because of this Court’s history of using the rational basis test as a flexible tool for political expediency, I would not base this decision on such a fragile foundation. I believe that the right to be free from discrimination based on age is a significant enough right that classifications based on age warrant middle-tier scrutiny.

The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and the Equal Protection Clause in Article II, Section 4, of the Montana Constitution, provide that “[n]o person shall be denied the equal protection of the laws.” The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the government. Butte Community Union v. Lewis (1986), 219 Mont. 426, 430, 712 P.2d 1309, 1311.

Traditionally, the United States Supreme Court has relied on a two-tier system of scrutiny for reviewing whether a state’s statutory scheme violates the comparable provision in the Fourteenth Amendment to the United States Constitution. Butte Community Union, 712 P.2d at 1311. Historically, the two modes of analysis have been strict scrutiny and the rational basis test. Matter of Wood (1989), 236 Mont. 118, 123-24, 768 P.2d 1370, 1374.

Justice Marshall pointed out the inadequacy of the two-tiered system of scrutiny for analyzing age discrimination cases in his dissent in Massachusetts Board of Retirement v. Murgia (1976), 427 U.S. 307, 319, 96 S.Ct. 2562, 2569-70, 49 L.Ed.2d 520, 528-29 (Marshall, J., dissenting), as follows:

If a statute invades a “fundamental” right or discriminates against a “suspect” class, it is subject to strict scrutiny. If a statute is subject to strict scrutiny, the statute always or nearly always, see Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), is struck down. Quite obviously, the only critical decision is whether a strict scrutiny should be invoked at all....
But however understandable the Court’s hesitancy to invoke strict scrutiny, all remaining legislation should not drop into the bottom tier, and be measured by the mere rationality test. For that test, too, when applied as articulated, leaves little doubt about the outcome; the challenged legislation is always upheld. It cannot be gainsaid that there remain rights, not now classified as “fundamental,” that remain vital to the flourishing of a free society, and classes, not now classified as “suspect,” that are unfairly burdened by invidious discrimination unrelated to the individual worth of their members. Whatever we call these rights and classes, we simply cannot forego all judicial protection against discriminatory legislation bearing upon them, but for the rare instances when the legislative choice can be termed “wholly irrelevant” to the legislative goal. McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1104, 6 L.Ed.2d 393 (1961). [Citations omitted].

Perhaps in response to the legitimate concerns articulated so clearly by Justice Marshall, the U.S. Supreme Court has begun to recognize a third level of scrutiny for rights that are not “fundamental” and classes that are not now considered “suspect,” but which deserve more scrutiny than provided for under the rational basis test. In analyzing the circumstances which will give rise to this heightened “middle-tier” of scrutiny, Professor Laurence Tribe offers the following explanation:

Broadly speaking, there are two circumstances that trigger heightened scrutiny. The first involves infringement of “important,” although not necessarily “fundamental,” rights or interests. The extent to which the Court’s scrutiny is heightened depends both on the nature of the interest and the degree to which it is infringed. Thus, in Plyler v. Doe, [457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)], the Court adopted a requirement that the State’s goal be “substantial” when faced with a classification which served to deprive illegal alien children of any education, an interest which the Court explicitly held to be “importan[t]” in “maintaining our basic institutions.” Significant in the Court’s decision to heighten scrutiny was the risk that such deprivation would serve to “creat[e] and perpetuat[e]... a subclass of illiterates within our boundaries.”
Likewise, in Hampton v. Mow Sun Wong, [426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976)], infringement of the interest of aliens in employment in the federal competitive civil service was struck down specifically because of how broadly the “liberty” of aliens is restricted by their exclusion from such a large part of the economy....
A second broad circumstance in which intermediate review has been triggered involves government’s use of sensitive, althoughnot necessarily suspect, criteria of classification. Rules discriminating against aliens are subjected to a judicial approach clearly more demanding than the basic requirement of minimum rationality and yet sometimes less demanding, particularly when federal laws or regulations are involved, than the scrutiny employed to review rules burdening racial and ancestral minorities. Rules discriminating against illegitimates are now explicitly subjected to an intermediate form of heightened review. Gender discrimination similarly occupies an intermediate position. Likewise, the Court has implicitly subjected a classification based on mental retardation to intermediate review despite explicit efforts to deny that it was doing so.

L. Tribe, American Constitutional Law, § 16-33 (2d ed. 1988).

It is true that the U.S. Supreme Court has declined to extend this heightened level of scrutiny to classifications based upon age. Murgia, 427 U.S. 307, 96 S.Ct. 2562. However, our Court has developed its own line of authority recognizing a middle-tier of analysis, and in doing so, we have stated that:

This Court need not blindly follow the United States Supreme Court when deciding whether a Montana statute is constitutional pursuant to the Montana Constitution....
We will not be bound by decisions of the United States Supreme Court where independent state grounds exist for developing heightened and expanded rights under our state constitution.

Butte Community Union, 712 P.2d at 1313.

In Butte Community Union, this Court was asked to decide whether legislation which linked eligibility for welfare benefits to a person’s age violated the Equal Protection Clause found in Article II, Section 4, of the Montana Constitution.

We held that to be a fundamental right under Montana’s Constitution, the right must be found in Montana’s Declaration of Rights or be a right “without which other constitutionally guaranteed rights would have little meaning.” Butte Community Union, 712 P.2d at 1311. We held that, although mentioned in the Constitution, the right to welfare was not a fundamental right. However, since it was an important enough right to be mentioned elsewhere in the Constitution, we held that its abridgment required something more than a rational relationship to a governmental objective. We stated that:

A need exists to develop a meaningful middle-tier analysis. Equal protection of law is an essential underpinning of this free society. The old rational basis test allows government to discriminate among classes of people for the most whimsical reasons. Welfare benefits grounded in the Constitution itself are deserving of great protection.
... Where constitutionally significant interests are implicated by governmental classification, arbitrary lines should be condemned. Further, there should be balancing of the rights infringed and the governmental interests to be served by such infringement.

Butte Community Union, 712 P.2d at 1314.

For these reasons, we adopted the following standard of review for those interests which we deemed significant enough to warrant a middle-tier analysis:

We hold that a finding that HB 843 is constitutional requires the State to demonstrate two factors: (1) that its classification of welfare recipients on the basis of age is reasonable; and (2) that its interest in classifying welfare recipients on the basis of age is more important than the people’s interest in obtaining welfare benefits.

Butte Community Union, 712 P.2d at 1314.

Based upon that test, we held in language relevant to the issue raised in that case that:

[T]he State’s objective in enacting HB 843 — savingmoney — must be balanced against the interest of misfortunate people under the age of 50 in receiving financial assistance from the State. The trial record does not show the State to be in such a financially unsound position that the welfare benefit, granted constitutionally, can be abrogated.

Butte Community Union, 712 P.2d at 1314.

In this case, the District Court and the majority have declined to apply the middle-tier analysis provided for in Butte Community Union based on their conclusion that retirement benefits are not the same as welfare benefits and that there is no requirement in Montana’s Constitution that retirement benefits be provided. However, the involvement of an important right or interest is only one of the two circumstances that triggers heightened scrutiny. “A second broad circumstance in which intermediate review has been triggered involves government’s use of sensitive, although not necessarily suspect, criteria of classification.” L. Tribe, American Constitutional Law, § 16-33 (2d ed. 1988). According to the laws of Montana, age is a “sensitive” if not “suspect” basis for classification. To hold otherwise would be to ignore the import of § 49-1-102, MCA, of the Montana Human Rights Act which provides that “[t]he right to be free from discrimination because of... age ... is recognized as and declared to be a civil right.”

Accordingly, I would hold that statutory classifications based upon age involve a sensitive basis for classification and warrant a middle-tier test for determining whether they violate the Equal Protection Clause of Montana’s Constitution. I would conclude that the District Court erred when it applied the rational basis test, rather than the middle-tier analysis, to determine whether the age classification in § 19-4-711, MCA (1991), violates equal protection guarantees of the Montana Constitution.

However, I would affirm the result of the District Court’s decision. In order to establish that the age classification set forth in § 19-4-711, MCA (1991), does not violate the State’s Equal Protection Clause, the State must demonstrate two factors: (1) that its classification on the basis of age is reasonable; and (2) that its interest in classifying entitlement to retirement benefits on the basis of age is more important than plaintiff’s interest in obtaining retirement benefits.

The record in this case fails to satisfy either requirement. There is no legislative history which even attempts to set forth the reason for the discriminatory treatment of retiree beneficiaries as opposed to disability or death beneficiaries. Neither was there any evidence offered in the District Court or before the Legislature which would demonstrate on an actuarial basis the State’s interest in limiting the post-retirement adjustment to retirees or their beneficiaries who are at least 55 years of age. Without such an evidentiary basis, it is impossible for plaintiff, or for this Court, to compare the interests of the State Retirement System to the interests of retirees and their beneficiaries who are denied benefits because of their age.

On appeal, the attorneys for the Teachers’ Retirement System have asserted that voluntary retirees are more likely to be financially prepared to retire than involuntary retirees. It contends that young voluntary service retirees and their beneficiaries who are under 55 years of age may rely on their earning capacity to supplement their retirement benefits. By contrast, the Teachers’ Retirement System argues that involuntary retirees (those who are disabled or the beneficiary of deceased employees) have only their retirement allowance to rely on. The problem with the arguments raised by the Teachers’ Retirement System on appeal is that they have no factual basis in the legislative history or the record from the District Court.

Without a factual basis for their assertion, these arguments are merely broad generalizations such as those that we condemned in Butte Community Union. There, we held that the State employed an arbitrary classification when it asserted, without a factual basis, that “people under the age of 50 are more capable of surviving without assistance than people over the age of 50.” Butte Community Union, 712 P.2d at 1314. Likewise, I would conclude that the age classification in § 19-4-711, MCA(1991), is arbitrary, not grounded in fact, and therefore, invalid. Accordingly, I would hold that to the extent that the age classification in § 19-4-711, MCA (1991), denies a post-retirement benefit to those service retirees and their beneficiaries under the age of 55, the statute violates the Equal Protection Clause of the Montana Constitution.

JUSTICE HUNT joins the foregoing special concurrence.


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    CYNTHIA K. MILLS, Plaintiff and Respondent, v. LINCOLN COUNTY, MONTANA, Defendant and Appellant.
    No. 92-520.
    Submitted on Briefs October 5, 1993.
    Rehearing Denied Jan. 20, 1994.
    Decided December 7, 1993.
    50 St.Rep. 1552.
    262 Mont. 283.
    864 P.2d 1265.
    For Defendant and Appellant: Daniel W. Hileman, Murray & Kaufman, Kalispell.
    For Plaintiff and Respondent: Russell Jones, Spokane, Washington.
   JUSTICE NELSON

delivered the Opinion of the Court

This is an appeal from a Nineteenth Judicial District, Lincoln County, decision ordering a new trial and from the District Court’s order denying Lincoln County’s motion for summary judgment. We reverse.

The dispositive issue on appeal is whether the District Court incorrectly denied Lincoln County’s motion for summary judgment.

Respondent Cynthia K. Mills (Mills) was physically injured on August 6,1988, at the Lincoln County Landfill, near Libby in Lincoln County, when she fell from a dumping platform into a refuse pit. The Lincoln County Landfill is operated by Lincoln County (County).

Mills filed a complaint and demand for a jury trial against the County on May 3, 1989, in the United States District Court for the District of Montana, Missoula District (federal court), alleging negligence. The County filed a motion for summary judgment, claiming immunity under § 2-9-111, MCA, and on January 2,1991, the United States District Judge granted the County’s motion on that basis.

Shortly after the federal court granted summary judgment to the County, the state legislature significantly amended § 2-9-111, MCA, with the stated purpose of clarifying that statutory legislative immunity would extend only to legislative bodies of governmental entities and only to legislative actions taken by those bodies; immunity would not extend to non-legislative actions. Hedges v. Swan Lake & Salmon Prairie S.D. (1992), 253 Mont. 188, 193, 832 P.2d 775, 778. The amendment to the statute effectively negated the County’s immunity defense because the acts alleged were not legislative acts.

At that point, Mills could have filed a motion for reconsideration of the federal court decision based upon the change in the statute, however, she did not file a motion for reconsideration. She, thus, effectively precluded any relief that she may have had in the federal court system, and the federal court judgment became final.

Notwithstanding, Mills, filed a complaint against the County in the Nineteenth Judicial District Court, which was dated March 8, 1991. The County filed a motion for summary judgment on October 21, 1991. Following the denial of the County’s motion for summary judgment the case came to trial on September 22,1992. On September 25, 1992, the jury found that the County was not negligent. On October 6, 1992, the District Court, upon its own motion, ordered a new trial. The County filed its notice of appeal to this Court from the trial court’s order granting a new trial and from its order denying the County’s motion for summary judgment.

A number of issues were raised upon appeal, but one of the issues is dispositive — whether the trial court correctly denied the County’s motion for summary judgment. “Under Rule 56(c), M.R.Civ.R, summary judgment is proper if the record discloses no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.” Kaseta v. N. Western Agency of Gr. Falls (1992), 252 Mont. 135, 138, 827 P.2d 804, 806.

The County argues that Mills was barred from bringing her action in the state court because of the federal court’s grant of summary judgment in favor of the County in Mills’ first action. When she filed her action in state court, the County again moved for summary judgment, this time contending that Mills’ complaint was barred by the doctrines of res judicata and collateral estoppel. In response, Mills argues that res judicata requires a final judgment on the merits but that in this case, Montana’s then existing doctrine of sovereign immunity under § 2-9-111, MCA, deprived the federal court of jurisdiction and abated the action. Therefore, Mills concludes, there was no final judgment on the merits. In reply, the County argues that the case in the federal court was dismissed pursuant to a summary judgment motion, not a motion to dismiss for lack of subject matter jurisdiction. It concludes its argument by asserting that a summary judgment is a final judgment on the merits.

A review of the opinion and order of the federal court dismissing Mills’ case provides that “ ‘the plain language of the statute [§ 2-9-111, MCA] grants immunity to the county for the actions of its Board, and the Board’s members and agents.’... IT IS HEREBY ORDERED that Defendants’ motion for summary judgment is GRANTED.” The case was disposed of on a motion for summary judgment, not on a motion to dismiss for lack of subj ect matter jurisdiction. Mills did not petition for reconsideration of the opinion when, some months later, the legislature amended § 2-9-111, MCA, and limited the scope of legislative immunity.

The question then remains — is a summary judgment a final judgment on the merits so that res judicata applies to bar the state action?

We reaffirm the proposition that a summary judgment is, indeed, a final judgment on the merits and that the res judicata bar is, therefore, applicable. Smith v. Schweigert (1990), 241 Mont. 54, 785 P.2d 195.

The doctrine of res judicata bars not only the issues litigated in the former action, but also issues which might have been litigated in the former action.

The doctrine of res judicata is firmly established to stand for the proposition that a party should not be able to relitigate a matter that that party has already had the opportunity to litigate, and the public policy that there must be some end to litigation.
“Once there has been full opportunity to present an issue for judicial decision in a given proceeding ... the determination of the court in that proceeding must be accorded finality as to all issues raised or which fairly could have been raised, else judgments might be attacked piecemeal and without end.” (Citations omitted.) (Emphasis in original.)

First Bank v. Fourth Judicial Dist. Court (1987), 226 Mont. 515, 519-520, 737 P.2d 1132, 1134-1135. See also: Sheffield Ins. v. Lighthouse Properties (1992), 252 Mont. 321, 324, 828 P.2d 1369, 1371. (“Generally, res judicata bars relitigation not only of issues that have already been decided but also issues that the parties had the opportunity to present for decision.”)

Unfortunately, Mills’ recourse from the unfavorable decision in federal court was to file a motion for reconsideration or relief from judgment in the United States District Court after the legislature amended § 2-9-111, MCA. See, for example, Koch v. Billings School Dist. No. 2 (1992), 253 Mont. 261, 833 P.2d 181. In this case, Mills did not file a motion for reconsideration.

We hold simply that the federal court summary judgment was a final judgment on the merits and that Mills’ state court action was, consequently, barred. In so ruling, we point out that the dispositive issue raised and argued here was whether a summary judgment is a final judgment on the merits. Mills did not analyze the four criteria necessary for the application of res judicata and whether those four criteria were present here. Furthermore, Mills did not discuss or analyze the effect of an intervening change in the law on the element of identity of issues necessaiy for the application of res judicata. We decline to consider those issues sua sponte. Mills simply argued that § 2-9-111, MCA, deprived the federal court of subject matter jurisdiction and that consequently, there was no adjudication on the merits of her claim.

Whether the federal court had subject matter jurisdiction of Mills’ claim is not the issue here, and the federal court made no determination on that as a basis for its ruling. The point to be noted is that, right or wrong, the federal court entered summary judgment against Mills; that judgment became final by Mills’ failure to pursue the available remedy in federal court; and she is now bound by that judgment. Public policy requires that, at some point, there must be finality to litigation. Wellman v. Wellman (1982), 198 Mont. 42, 46, 643 P.2d 573, 576. If parties are allowed to commence new lawsuits on already-litigated claims and issues every time a subsequent change in the law might, arguably, change the result of the first litigation, it is safe to say that there would be few “final judgments” ever entered.

The District Court erred in not granting the motion for summary judgment filed by the County. Furthermore, because the County’s motion for summary judgment should have been granted, it was improper for the court to, sua sponte, order a new trial and to award judgment for sanctions against the County.

The District Court’s order for a new trial is reversed, and this case is remanded with instructions to the District Court to enter summary judgment in favor of the County on Mills’ claim and to vacate the judgment for sanctions against the County.

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


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GARY LEVIN JOSEPH DUFF, Defendant and Appellant.
    No. 92-620.
    Submitted on Briefs September 16, 1993.
    Decided December 7, 1993.
    50 St.Rep. 1561.
    262 Mont. 288.
    865 P.2d 238.

      For Defendant and Appellant: Michael KUnkhammer, Seeley Lake.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Michael S. Wellenstein, Assistant Attorney General, Helena; Robert L. Deschamps, III, Missoula County Attorney, Fred Van Valkenburg, Deputy County Attorney, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Gary Levin Joseph Duff filed a petition for post-conviction relief in the District Court for the Fourth Judicial District, in Missoula County, in which he asked that his guilty pleas to one count of aggravated assault and two counts of felony assault be set aside. The District Court denied his petition and Duff appeals from that denial. We affirm the District Court.

The issue on appeal is whether the District Court correctly denied defendant’s request to withdraw his guilty pleas based upon a claim of ineffective assistance of counsel, and a claim that the evidence was insufficient to support the charges against him.

When reviewing an order denying post-conviction relief, this Court’s inquiry is whether substantial evidence supports the findings and conclusions of the district court. State v. Coates (1990), 241 Mont. 331, 336, 786 P.2d 1182, 1185.

On May 29,1991, Duff entered separate pleas of not guilty to one count of aggravated assault pursuant to § 45-5-202(1), MCA, and two counts of assault pursuant to § 45-5-202(2)(b), MCA. However, on September 18, 1991, Duff changed his plea to guilty of all three charges and received a 40-year prison sentence and designation as a dangerous offender. He filed his petition for post-conviction relief on October 21, 1992.

Duff contends that the evidence against him was inadequate to prove guilt beyond a reasonable doubt. It is an established rule however, that having pled guilty, he is precluded from attacking the sufficiency of the evidence against him. See United States v. Broce (1989), 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927; State v. Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788.

Duff also attacks the validity of his guilty plea on the basis of ineffective assistance of counsel.

Recently, in State v. Senn (1990), 244 Mont. 56, 795 P.2d 973, this Court reiterated the standard for determining whether an attorney has provided effective legal assistance to a criminal defendant, as required by Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674:

Under the two-pronged test set forth in Strickland, the defendant must first demonstrate that counsel’s performance was deficient. To demonstrate that a counsel’s performance was deficient, defendant must prove that counsel’s performance fell below the range of competence reasonably demanded of attorneys in light of the Sixth Amendment. Second, the defendant must demonstrate that the counsel’s deficiency was so prejudicial that defendant was denied a fair trial. ... When a guilty plea is at issue rather than the result of a trial, the defendant must demonstrate that but for counsel’s deficient performance, the defendant would not have pled guilty, and would have insisted on going to trial. [Citations omitted].

Senn, 795 P.2d at 975. Duff argues that his attorney was ineffective by failing to negotiate a plea bargain, by encouraging Duff to plead guilty, by telling Duff he had no hope of an acquittal, and that he would receive at most, a sentence for five to seven years without designation as a dangerous offender.

However, “[w]hen a claim of ineffective assistance of counsel is made, this Court has concluded that the attack must be based upon facts in the record or easily deducible from the record, and that there must be more than conclusory allegations.” State v. Dess (1984), 207 Mont. 396, 398, 674 P.2d 501, 502. In this case, we agree with the State that no evidence was offered by Duff to support his conclusory allegations which were set forth previously.

Duff also argues that, as a result of his counsel’s inadequacy, his guilty plea was neither voluntary nor knowing, and therefore, the District Court had no authority to accept the plea. Section 46-16-105, MCA, provides that a plea of guilty may be accepted in open court after the judge has informed the defendant of the consequences of his plea and of the maximum applicable penalty.

In State v. Martz (1988), 233 Mont. 136, 143, 760 P.2d 65, 68-69, this Court held that a guilty plea was voluntary and intelligent where a district court addressed the following issues: the defendant’s constitutional rights; the consequences of a guilty plea; and the possible maximum penalty involved; and that the court could not involve itself in the plea agreement and was not obligated to accept the recommended sentence. While in this case there was no plea agreement, we find that the colloquy between the District Court judge and Duff met the necessary constitutional requirements. The following is an excerpt of Duff’s change of plea hearing:

BY THE COURT:
Q. Mr. Duff, I have your Plea of Guilty and Waiver of Rights form. Do you 'understand that by withdrawing your plea of not guilty and pleading guilty, you’re giving up virtually all of your rights except the right to be represented by an attorney?
A. (BY MR. DUFF) Yeah.
Q. Are you satisfied with the services of your attorney?
A. Yes.
Q. Has he done everything you have requested of him?
A. Yes.
Q. Are you attempting to plead guilty because of a plea bargain agreement?
A. No.
Q. Have any threats or promises been made to you?
A. No.
Q. Are you under the influence of alcohol, any medication, or drug which affects your reasoning power here today?
A. No.
Q. You have been charged with one count of aggravated assault and two counts of assault, both felonies. You wish to withdraw your pleas on all of those counts?
A. Yes.

The District Court referred to the waiver form at the outset of its interrogation. This Court has upheld a guilty plea under similar circumstances. “[A] written acknowledgment combined with oral questioning of the defendant constituted adequate interrogation....” State v. Walker (1986), 220 Mont. 70, 73, 712 P.2d 1348, 1350.

Despite his indication at the change of plea hearing that his plea was not influenced by “threats” or “promises,” Duff argues on appeal that he was coerced into pleading guilty in exchange for a smaller bond and a short period of time on house arrest. It is true that,

a plea may be withdrawn if [a] defendant is persuaded or coerced into pleading guilty by his attorney, or if the plea is entered involuntarily or by one not competent to know the consequences of his action or by one who is induced to plead guilty by “fear, persuasion, promise or ignorance.” [Citations omitted].

State v. Hilton (1979), 183 Mont. 13, 17, 597 P.2d 1171, 1173. However, the record shows that Duff signed a “Plea of Guilty and Waiver of Rights” in which he acknowledged his constitutional rights, the consequences of his guilty plea, a possible maximum penalty, the fact that his plea was entered voluntarily, his satisfactory relationship with his attorney, and his own mental and emotional clarity.

Our review of the record indicates that there is no evidence to establish that Duff’s attorney’s performance was deficient. We further conclude that the District Court adequately interrogated Duff before accepting his guilty plea, that there was substantial evidence that Duff fully understood the circumstances and consequences of changing his plea to guilty, and that no evidence was offered to substantiate Duff’s allegation that his plea was coerced.

The last of Duff’s arguments is that his attorney failed to explain the consequences of lesser included offenses. This issue was not raised in Duff’s arguments to the District Court in support of his petition for post-conviction relief. It is a well-established principle that this Court will not review an issue raised for the first time on appeal. See State v. McColley (1991), 247 Mont. 524, 528, 807 P.2d 1358, 1361.

The order of the District Court is affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM JAY GOLLEHON, Defendant and Appellant.
    No. 93-066.
    Submitted on Briefs September 23, 1993.
    Decided December 7, 1993.
    50 St.Rep. 1564.
    262 Mont. 293.
    864 P.2d 1257.

      For Defendant and Appellant: Byron Boggs, Missoula, and William F. Hooks, Appellate Defender, Helena.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, John P. Connor, Jr., Assistant Attorney General, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant William Jay Gollehon was charged in the District Court for the Third Judicial District in Powell County with two counts of kidnapping by accountability, one count of burglary, and five counts of deliberate homicide. Following a seven-day jury trial in Bozeman, Montana, Gollehon was convicted of all charges and was subsequently sentenced by the District Court. Gollehon appeals from his convictions. We affirm the judgment of the District Court.

The following issues are presented on appeal:

1. Did the District Court err when it denied defendant’s motion to dismiss the charge of burglary?

2. Did the District Court err when it denied defendant’s motion to dismiss the five counts of deliberate homicide?

3. Did the District Court abuse its discretion when it admitted into evidence autopsy photographs of the victims?

4. Did the District Court err when it denied defendant’s motion for mistrial on the basis of juror misconduct?

5. Did the State’s destruction of certain physical evidence deny defendant his constitutional right to due process of law?

On the morning of September 22,1991, William Jay Gollehon and eight other Montana State Prison inmates gained access to, and took control of, the maximum security unit of the prison. When officers regained control of the building four hours later, five protective custody inmates had died as a result of the riot that Gollehon and others participated in.

The maximum security building is divided into two separate areas. “A Block,” “B Block,” and “C Block” are located on the west side of the building. “D Block,” “E Block,” and “F Block” are located on the east side. Control cages are located on each side of the building. The west control cage regulates the power to A, B, and C Blocks, and the east control cage regulates the power to D, E, and F Blocks. Centered between the two units of the building are six separate exercise yards. At the time of the riot, there were ten protective custody inmates housed on D Block, and a total of 68 inmates in the maximum security building. Gollehon was one of the maximum security inmates housed on C Block.

During the morning of September 22, 1991, thirteen inmates, including Gollehon, were in the exercise yards. While officers were returning some of the inmates from the exercise yards to their cells, Gollehon and eight other inmates broke through the wire fences separating the exercise areas and eventually gained access to the section of the maximum security building leading to A, B, and C Blocks. Once inside the building, the inmates were able to reach both control cages and ultimately were able to open the doors to all of the blocks in the maximum security unit.

While the inmates had control of the building, five officers took refuge by locking themselves in a shower facility in C Block. The inmates threatened to bum the officers out of the shower if they did not release keys to other sections of the building. The officers complied, and then heard the inmates say they were going to go to D Block and “get” the protective custody inmates. The officers remained in the shower until they were released by other officers after the riot.

Two protective custody inmates who were working outside their cells took refuge by barricading themselves in the laundry room. The rioting inmates, including Gollehon, tried unsuccessfully to break down the door and to smoke them out of the laundry room by starting a fire. At one point, not expecting to survive the attack, one of the inmates wrote the names of the inmates who were trying to get at them on the side of the dryer. Gollehon’s name was included. Unable to get at the inmates in the laundry room, the rioting inmates entered D Block, opened the cells, and proceeded to kill five of the protective custody inmates.

On February 3, 1992, Gollehon was charged in an eight count information with two counts of kidnapping by accountability in violation of §§ 45-2-302 and 45-5-302, MCA; one count of burglary in violation of § 45-6-204, MCA; and five counts of deliberate homicide in violation of § 45-5-102(l)(b), MCA.

Gollehon filed motions to dismiss the burglary and homicide charges on the grounds that the burglary statute was not applicable to the facts of the case and that the homicide counts, based on the felony murder theory, would, therefore, necessarily fall. This motion was denied.

He also filed a motion to produce various items of physical evidence, including the clothing that he was wearing at the time of the alleged offenses and the clothing of the other inmates of the maximum security unit. That motion was denied for the reason that the State had destroyed the clothing and much of the personal property of the inmates after the riot.

Gollehon was convicted of all charges following a jury trial. He was sentenced to 10 years imprisonment on each count of kidnapping, and 20 years on the count of burglary, all of which were to rim consecutively. He was sentenced to five concurrent terms of life imprisonment on the deliberate homicide convictions, to run consecutively with the sentences imposed for kidnapping and burglary, and the sentences already being served for prior offenses. From this judgment, Gollehon appeals.

I.

Did the District Court err when it denied defendant’s motion to dismiss the charge of burglaiy?

The burglary charge was based on the allegation that Gollehon had “knowingly entered or remained unlawfully in an occupied structure, the D block area of the maximum security unit, with the purpose to commit an offense therein, namely, Riot.” Section 45-2-101(40), MCA, defines occupied structure as follows:

“Occupied structure” means any building, vehicle, or other place suitable for human occupancy or night lodging of persons or for carrying on business, whether or not a person is actually present. Each unit of a building consisting of two or more units separately secured or occupied is a separate occupied structure. [Emphasis added].

Gollehon contends that the court should have dismissed the burglary charge on the basis that the definition of occupied structure is inapplicable to his unauthorized entry into D Block. He asserts that the maximum security unit is one single building, and that no sections of the building constitute a separate occupied structure apart from the remainder of the unit. As a matter of law, he contends that he could not be charged with burglary for entering D Block during the September 1991 riot.

When reviewing a trial court’s interpretation of the law, the standard of review employed by this Court is whether the court correctly interpreted the law. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601. In this instance, the court concluded that the burglary statute was applicable because the definition of “occupied structure” encompassed the D Block of the maximum security unit. After considering the express language of the statute in question, and the circumstances of this case, we conclude that the court correctly interpreted the statute and did not err when it denied Gollehon’s motion to dismiss the burglary charge.

The language used in § 45-2-101(40), MCA, defining occupied structure is plain and unambiguous. It clearly states that each unit of a building which consists of two or more separately secured units is a separate occupied structure. The maximum security unit is a building consisting of several “blocks” which are physically distinct and are separately secured. Moreover, each block consists of separately secured cells which are intended for human occupancy. The plain language of the statute clearly contemplates that a burglary can occur within parts of a building when one unlawfully enters or remains within a separately secured unit within that building. The unauthorized entry by Gollehon and the other rioting inmates into D Block of the maximum security unit fits squarely within the burglary statute. When statutory language is plain, unambiguous, direct, and certain, a court cannot apply any other means of interpretation. White v. White (1981), 195 Mont. 470, 636 P.2d 844.

Gollehon claims that this interpretation of the statute is contrary to the provisions of § 45-l-102(l)(c), MCA, which requires that the definition of an offense provides “fair warning of the nature of the conduct declared to constitute an offense.” He notes that the Powell County District Court records reveal that no prisoner has ever been charged with burglaiy for unauthorized entry into another area of the prison, but here, without fair warning that he could be charged in this manner, he stands convicted of five counts of homicide by virtue of the State’s unprecedented application of the burglary statute. He contends that the burglary statute does not state that it specifically applies to prisons and that if the Legislature intended it to apply to the State Prison it could have expressly so stated. Without such a statement, he asserts the inference must be drawn that such an application of the statute was not intended.

Montana’s burglary statute does not enumerate specific structures or types of buildings to which it applies. Rather, the statute refers to an “occupied structure” which, in turn, is generally defined. Because the statute is general in nature, it is inconsistent to suggest that a structure satisfying the definition of an occupied structure cannot be the site of a burglary unless it is specifically enumerated. Even though no prisoners have previously been charged with burglary for conduct occurring within the prison, the language of the statute is clear and provides fair notice to all persons of conduct which constitutes the criminal offense of burglary.

Gollehon also argues that the prison handbook, which describes internal institutional rules, does not warn inmates that an inmate’s presence in an unauthorized area of the prison could result in a charge of burglary in district court. The prison’s orientation handbook does not serve as an exclusive list of offenses for which an inmate can be charged in court. The prison handbook warns inmates to follow all “city, county, state, and federal laws,” and the internal disciplinary procedures established by the prison do not exempt inmates from compliance with the laws of the State of Montana.

Gollehon urges this Court to reject the application of the burglary statute to this situation due to the unique circumstances which exist in a prison. Because prisoners are required to be in certain authorized areas only and are not allowed the same liberties that the general population enjoys, he contends that different concepts must be employed when an inmate ventures into unauthorized areas of the prison.

The law provides that a person is liable for burglary only when he or she unlawfully enters an occupied structure with the purpose to commit an offense therein. Section 45-6-204(1), MCA. The fact that an inmate may be in an unauthorized area of the prison does not, by itself, constitute a burglary. However, if he or she enters that area for the purpose of committing an offense, an inmate should be as liable as anyone else for the consequences of that act. Although this Court has not previously addressed burglary in the context of a correctional facility, our decision is consistent with the holding in People v. Pringle (N.Y. App. Div. 1983), 465 N.Y.S.2d 742, in which a New York court addressed a similar situation. After considering language in the burglary statute defining “building” as a structure consisting of “two or more units separately secured or occupied,” that court held that a nurse’s station within a prison was a “building” for purposes of the burglary statute. The factor deemed decisive was that the nurse’s station was an independent unit within the prison building with its own secure entrance. Pringle, 465 N.Y.S.2d. at 743. Here, D Block is similarly an independent area of the maximum security unit which is separately secured. Because Gollehon entered that area for the purpose of committing an offense, we conclude that he is appropriately chargeable with burglary.

We hold that the District Court correctly concluded that Gollehon could be charged with burglary for his unauthorized entry into D Block during the September 1991 riot.

II.

Did the District Court err when it denied defendant’s motion to dismiss the five counts of deliberate homicide?

As a result of the deaths which occurred during the riot, Gollehon was charged with five counts of deliberate homicide pursuant to § 45-5-102(l)(b), MCA, which is Montana’s “felony-murder rede.” That statute provides, in relevant part, that a person commits the offense of deliberate homicide if, during the course of the commission of burglary, “he or any person legally accountable for the crime causes the death of another human being.”

Gollehon contends that the court should have dismissed the homicide charges because he was improperly charged with burglary, and therefore, there was no underlying felony upon which to base the homicide charges. Since we have held that the burglaiy charge was proper, we conclude that this argument is without merit.

The District Court did not err when it denied the motion to dismiss the deliberate homicide charges.

III.

Did the District Court abuse its discretion when it admitted into evidence autopsy photographs of the victims?

During the trial, the State introduced 20 color photographs taken by the medical examiner during the autopsies of the five victims. Gollehon contends that the corut abused its discretion when it admitted these graphic photographs into evidence because their prejudicial effect far outweighed any probative value. It is his contention that the photographs had little probative value because there was no dispute that the homicides had occurred, nor was there a dispute about the identity of the victims, the position of their bodies, or the nature or location of the injuries or causes of death.

The standard of review of evidentiary rulings is whether the district court abused its discretion. State v. Crist (1992), 253 Mont. 442, 833 P.2d 1052. The court has broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of discretion, the trial court’s determination will not be overturned. Crist, 833 P.2d at 1054.

When considering whether photographs should be admitted as evidence at trial, the court must determine whether their probative value is substantially outweighed by the danger of unfair prejudice. Rule 403, M.R.Evid.; State v. Henry (1990), 241 Mont. 524, 788 P.2d 316. Here, the State contends that the photographs were offered to prove the means by which the victims were killed and to corroborate the testimony of other inmates who described what they heard or saw occurring in D Block. Although the photographs were very graphic depictions of the assaults committed against the victims, the State notes that they were only exhibited during the State Medical Examiner’s testimony and the jury was not allowed to take these photographs into deliberations.

In this instance, the court concluded that the probative value of the photographs was not outweighed by the danger of unfair prejudice. After considering the evidence in question, we are aware that the photographs depict the brutality and viciousness of the crimes committed. However, we do not believe that they would have aroused the jurors’ passions any more than other evidence of Gollehon’s conduct. As we stated in State v. Doll (1985), 214 Mont. 390, 400, 692 P.2d 473, 478, “[w]e will not demand that a trial be sanitized to the point that important and probative evidence must be excluded.” We, therefore, hold that the District Court did not abuse its discretion when it admitted the autopsy photographs into evidence.

IV.

Did the District Court err when it denied defendant’s motion for mistrial on the basis of juror misconduct?

In the course of the trial of this matter, a brief conversation occurred among one, or possibly two, jurors and a correctional officer who was providing security at the courthouse and who had testified earlier in the trial. After the presiding judge was notified of the conversation, Gollehon moved for a mistrial due to juror misconduct. The officer was questioned in chambers and he testified that the conversation concerned the Montana State University football team. He stated that the conversation occurred when two persons were waiting outside the courtroom near his security post, and that he did not realize they were members of the jury. Based on this testimony, Gollehon’s motion was denied.

On appeal, Gollehon contends that the court improperly denied this motion, and that it erred by not examining the jurors in addition to the security guard. He asserts that the discussion among the jurors and a witness constituted juror misconduct which gives rise to a presumption of prejudice to Gollehon. The burden is then on the State to rebut this presumption, and testimony of the juror(s) is the appropriate method to determine if prejudice resulted. Here, because the State did not examine the jurors, he contends there was no evidence to rebut the presumption of prejudice and the court improperly denied his motion.

The standard of review for reversing a lower court’s denial of a motion for mistrial requires clear and convincing evidence that the trial court’s ruling was erroneous. State v. Gambrel (1990), 246 Mont. 84, 803 P.2d 1071; State v. Salois (1988), 235 Mont. 276, 766 P.2d 1306. Because the trial court is in the best position to observe the jurors and determine the potential for prejudice when allegations of jury misconduct are raised, the court has significant latitude when ruling on these matters, and its determination is given considerable weight by this Court. State v. Eagen (1978), 178 Mont. 67, 582 P.2d 1195.

Citing this Court’s holding in Eagen where we stated that jury misconduct tending to injure the defendant creates a rebuttable presumption of prejudice, Gollehon contends that a presumption of prejudice remains in this case because the State failed to examine the jurors and relied only on the testimony of the security guard. However, we have recently made clear that the burden of rebutting a presumption of prejudice shifts to the State “only after there has been a threshold showing of misconduct which injures or prejudices the defendant.” State v. McNatt (1993), 257 Mont. 468, 472, 849 P.2d 1050, 1052-53. In this instance, we find no initial showing that the conversation resulted in prejudice against Gollehon. The conversation was a brief, casual interchange right outside the courtroom doors, and these circumstances do not suggest a degree of impropriety which would have warranted examining those jurors or declaring a mistrial. The District Court was in the best position to evaluate the incident, and in the absence of a showing of prejudice, we will defer to the court’s determination that the alleged jury misconduct did not entitle Gollehon to a mistrial. We conclude that the court’s denial of the motion for mistrial was not clearly erroneous.

V.

Did the State’s destruction of certain physical evidence deny defendant his constitutional right to due process of law?

When prison officials regained control of the maximum security unit on September 22,1991, all of the inmates who had participated in the riot were required to strip and immediately leave the building. Prior to trial, Gollehon’s counsel requested that certain items of physical evidence, including the clothing worn by the maximum security inmates, be produced for inspection. The State responded to this discovery request by stating that the inmates’ clothing had been destroyed after the riot. The State noted that, contrary to defense counsel’s understanding, clothing issued to maximum security inmates had no identifying marks which would allow it to be traced to any particular inmate.

On appeal, Gollehon asserts that he was denied a fair trial because the State failed to produce what could have been powerful exculpatory evidence for his defense. It is his contention that the absence of blood on his clothing would have established that he had not engaged in the struggles with the inmates who were killed and that the State’s destruction of this evidence resulted in substantial prejudice to him.

The State first argues that Gollehon failed to properly raise this issue at the trial court level because no motion to dismiss was made. Therefore, the State asserts that this issue is waived on appeal. After considering the circumstances of this case, however, and the fact that rulings in regard to the production of this evidence were made during the trials of the other rioting inmates, we conclude that Gollehon’s motion in limine sufficiently preserved the issue for consideration by this Court.

However, after reviewing the record, we do not find that the destruction of the inmates’ clothing provides a basis for reversing Gollehon’s conviction. This Court has made clear that a criminal defendant has a right to obtain exculpatory evidence, but his right is personal and does not require that police officers take initiative or even assist in procuring evidence on behalf of a defendant. State v. Sadowski (1991), 247 Mont. 63, 79, 805 P.2d 537, 546. Although the denial of one’s right to obtain exculpatoiy evidence is a violation of due process, a defendant must show a deliberate or intentional suppression of exculpatory evidence in order to claim a per se violation of due process. Sadowski, 805 P.2d at 547. Furthermore, there must be a showing that the evidence in question meets the test for constitutional materiality as adopted in State v. Halter (1989), 238 Mont. 408, 777 P.2d 1313:

Whatever the duty the Constitution imposes on the State to preserve evidence, that duty must be limited to those that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality ... evidence must both possess an exculpatoiy value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Halter, 777 P.2d at 1316 (quoting California v. Trombetta (1984), 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422).

In this instance, there is no showing that the clothing was destroyed with the knowledge of its potential exculpatory value or with the intent of deliberately suppressing valuable evidence. It is clear that the objective of ordering the inmates to strip was to get the unit ■under control and to restrain the rioting inmates from further violence. Even if Gollehon had been able to establish the absence of blood on his clothing, this would not necessarily have vitiated his accountability for the deaths of the inmates during the riot according to the statute with which he was charged.

We conclude that the destruction of the clothing does not constitute a deliberate suppression of valuable exculpatory evidence and Gollehon was, therefore, not constitutionally deprived of his right to due process.

The judgment of the District Court is affirmed.

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


text:
    DAN BUCKLEY and ROBERT DOUGLAS and DONNA DOUGLAS, ALBERT ADAMS and MARILYN ADAMS, GLORIA DOYLE, CHET DREHER and VERA DREHER, LOUIS DYLL, JAMES DYLL, DONALD FREDRICKSON, LOUISE FULBRIGHT, GARY GUTHRIE and JILL GUTHRIE, DAVID HARTNETT, RICHARD JORGENSEN, DONALD LAIS, KATE LAWLER, VICTORIA MACLEAN, THOMAS MCBRIDE, INDIA SUPERA and LAUGHING WATER, CHRIS YAHVAH, DOUG POWELL and SONIA POWELL, JAMES POWELL, GAIL WILSON and PAUL WILSON, EUGENE NIXON and NORMA NIXON and STEVE BALAZS and JANELLE BALAZS, Plaintiffs and Respondents, v. BLAKE WORDAL, LINDA STOLL-ANDERSON, and DAVID FULLER, in their capacity as Lewis and Clark County Commissioners, LEWIS AND CLARK COUNTY, a local governmental unit and political division of state government, and MONTANA ATTORNEY GENERAL MARC RACICOT, Defendants and Appellants.
    No. 93-183.
    Submitted on Briefs October 28, 1993.
    Decided December 7, 1993.
    50 St.Rep. 1570.
    262 Mont. 306.
    865 P.2d 240.

      For Defendants and Appellants: K. Paul Stahl, Deputy County Attorney, Helena.
    For Plaintiffs and Respondents: John C. Doubek & Carl A. Hatch, Small, Hatch, Doubek and Pyfer, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

Defendants/Appellants appeal an order of the First Judicial District Court, Lewis and Clark County, stating that the Defendants/Appellants had not complied with a prior modified order and ordering them to delete or refund rural improvement district assessments and re-notice the hearings which initiated the rural improvement district process. We reverse.

We state the issues on appeal as follows:

1. Did the Board of County Commissioners for Lewis and Clark County (BOCC) timely file its notice of appeal?

2. Did the BOCC follow the correct statutory procedures when it created the Colorado Gulch Rural Improvement District (CGRID)?

3. Did the District Court err in holding that the BOCC failed to hold adequate public hearings when creating the CGRID?

The BOCC also contends that the plaintiffs did not file a timely complaint. Given our holdings on the above issues, that issue is moot.

The current controversy began in 1991, when landowners in the Colorado Gulch area formed a committee to address various road problems. However, the controversy regarding improvements to the road in question has a long history, and the BOCC has been actively involved since as early as 1984 or 1985.

On March 23, 1992, the committee called a meeting of all landowners in the Colorado Gulch area to vote on whether to form a rural improvement district. At this meeting, each parcel of property in the area for which a property identification number could be traced was given a vote, and the assessed value of each parcel was not taken into consideration. A vote regarding the rural improvement district was taken, and the majority of landowners present opposed creating the district.

After the March, 1992, meeting, the original committee was disbanded. Thereafter, a “splinter group” from the committee sent a letter to all Colorado Gulch landowners, revealing their intent to attempt to persuade the BOCC to create a rural improvement district for the purpose of having the road chip-sealed.

The BOCC requires that, prior to any formal action on a proposed improvement district, a petition from the potentially-affected landowners be filed evidencing a “significant interest” in the creation of such a district. The purpose of this requirement is to avoid county staff time being wasted if no interest exists for the creation of a district.

In this case, the “splinter group” filed the required petition. Based on that petition, the BOCC found significant public interest in the rural improvement district, and adopted a resolution of intent to create the CGRID on April 28, 1992. After the adoption of the resolution to create the CGRID, a Notice of Resolution of Intent and Public Hearing was sent to all property owners in the proposed district. The notice informed the landowners of the adoption of the resolution to create the CGRID, indicated the nature of the proposed improvements and maintenance, and proposed a formula to be used for assessments. The notice also provided estimated costs, informed the landowners of their right to file a written protest within fifteen days (by 5:00 p.m. on May 18, 1992), and informed the landowners that the public hearing was scheduled for May 19,1992.

All written protests were properly filed by May 18, 1992. On the morning of May 19, 1992, two landowners filed rescissions of their prior written protests.

The BOCC held the public hearing on May 19,1992. At that time, staff members informed the BOCC that further work was required to answer questions raised by various protests. After some discussion, the BOCC chairperson requested comments from the audience, and one person spoke. Following that person’s comments, the chairperson again requested questions or comments, but no one responded. The chairperson of the BOCC then publicly announced that the hearing was adjourned and continued until May 26, 1992, in order to allow the staff time to address the validity of certain protests.

At the May 26, 1992, hearing, staff members again informed the BOCC that additional time was needed to complete a review of the protests. The chairperson of the BOCC again publicly announced that the hearing was adjourned and continued until May 28,1992.

At the May 28,1992, hearing, the BOCC heard and passed on all protests submitted prior to the May 18 deadline. Dorothy Carrico and Leah Tursich rescinded their protests by written request, and the BOCC accepted those rescissions. The BOCC rejected a protest filed by Don Lais because both record landowners did not sign the protest. A protest filed by James Powell was rejected for one parcel because the parcel had been deeded to the Smiths, who did not wish to protest. The BOCC rejected three protests signed by Laughing Water because the joint tenant, India Supera, did not sign the protests and Mr. Water did not present a written power of attorney to sign on her behalf. The protest total, after the BOCC accepted the rescissions and rejected the above protests, was 44.5% of the landowners. After this hearing, the BOCC adopted a resolution creating the CGRID.

On July 1, 1992, the plaintiffs, all of whom own real property affected by the CGRID, filed a complaint alleging violations of Montana statutes and constitutional provisions. The plaintiffs sought temporaiy and injunctive relief and a writ of prohibition, as well as a declaratory ruling that §§ 7-12-2101, et seq., MCA, were unconstitutional.

District Judge Thomas Honzel deemed himself disqualified and invited District Judge James Purcell to assume jurisdiction, which Judge Purcell did on July 7,1992. On July 22,1992, the District Court ordered the BOCC to show cause why injunctive relief should not be granted. Ahearingwas held on August 11,1992. During that hearing, the protest total calculated at the May 28,1992, meeting was revised to 45.45%, as Don Lais’ protest was accepted after he submitted a quit claim deed evidencing his sole ownership of the property in question.

On August 13, 1992, the District Court issued findings of fact, conclusions of law, and an order denying relief to the landowners “under any theory.” However, the District Court chastised the BOCC for taking the “most convenient statutory route ... without debating the substantive nature of the protestor’s complaints.”

The plaintiffs moved the District Court to modify its August 13, 1992, order and the BOCC failed to file a response. On August 18, 1992, the BOCC adopted a resolution levying and assessing a tax upon all benefitted property within the CGRID. On September 3, 1992, the BOCC held a hearing to receive and consider objections to the assessments proposed to be levied on the landowners’ property. The chairperson opened the discussion to comments about the assessments and to questions and comments regarding the creation of the CGRID and the BOCC’s actions. After this hearing, the BOCC delivered the final resolution creating the CGRID to the county treasurer for assessment purposes.

On September 16,1992, the District Court “amended” its original order dated August 13,1992, apparently based on the BOCC’s failure to respond to the plaintiffs’ motion to modify. In that modified order, the District Court ordered the BOCC to re-notice the hearings and allow all the Colorado Gulch landowners an opportunity to participate in the hearings. By this time, the chip-sealing of the road had been completed.

On September 17,1992, the BOCC moved the District Court to modify its “modified order” and requested a hearing. The District Court took no action on the BOCC motion and did not hold a hearing. Then, on November 27, 1992, the plaintiffs moved the District Court to enforce the September 16,1992, modified order. On January 8,1993, the District Court ordered the BOCC to show how it had complied with the modified order or to re-notice the hearings. The BOCC filed proof of compliance with the modified order on January 15, 1993, and the District Court heard oral argument on February 9,1993.

On March 10,1993, the District Court issued a final order stating that the BOCC had failed to comply with the September 16, 1992, modified order by refusing to re-notice the hearings, and ordered the county to mail retroactive notices to delete or refund the CGRID assessments, and to re-notice the hearings which initiated the CGRID process. From that order, the BOCC appeals.

Our standard of review relating to conclusions of law is whether the trial judge’s interpretation of the law is correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

I — NOTICE OF APPEAL

Plaintiffs contend that the BOCC did not timely file its notice of appeal and that this appeal should be dismissed. We disagree.

The basis for the plaintiffs’ argument is that the BOCC is appealing from the District Court’s decision filed September 16,1992, and that the notice of appeal filed March 12,1993, is not timely. The plaintiffs contend that, although the District Court issued an order on March 10, 1993, that order simply determined that the BOCC had not complied with the “final” judgment of the District Court entered on September 16,1992.

Rule 5(a)(1), M.R.App.R, requires that, when the appellant is a political subdivision of the state, the notice of appeal must be filed within sixty days from the entry of the judgment or from the service of notice of entiy of judgment. We have previously held that the time for filing an appeal does not begin to run until the prevailing party serves a notice of entry of judgment. In re Marriage of Robertson (1989), 237 Mont. 406, 411, 773 P.2d 1213, 1217. If the prevailing party does not serve a notice of entry of judgment, the time for appeal never begins to run. See Robertson, 773 P.2d at 1217.

In this case, the plaintiffs never served a notice of entry of judgment on the BOCC, either for the September 16,1992, order, which the plaintiffs contend is the “final” judgment in this case, or for the March 10,1993, order. Therefore, because no notice of entry of judgment was filed and served, the sixty-day appeal time never began to run on either order. Thus, the BOCC’s appeal was timely, and we need not address the issue of whether the September 16,1992, order or the March 10,1993, order was the “final” judgment in this case.

II — STATUTORY PROCEDURES

The BOCC contends that, contrary to the District Court’s conclusion, it followed the correct statutory procedures when it created the CGRID. We agree.

Sections 7-12-2101, et seq., MCA, provide the statutory framework by which a county may create a rural improvement district. This statutory scheme provides a nine-step process which requires notice and the opportunity to be heard. We will address each step in turn.

A. RESOLUTION OF INTENTION

The first step in the statutory process of creating a rural improvement district requires a resolution of intention. Section 7-12-2103, MCA, provides, in pertinent part:

(1) Before creating any special improvement district for the purpose of making any of the improvements or acquiring any private property for any purpose authorized by this part, the board of county commissioners shall pass a resolution of intention to do so.
(2) The resolution shall:
(a) designate the number of such district;
(b) describe the boundaries thereof;
(c) state therein the general character of the improvements which are to be made;
(d) designate the name of the engineer who is to have charge of the work and an approximate estimate of the cost thereof; and
(e) specify the method or methods by which the costs of the improvements will be assessed against property in the district....

“The resolution of intention is the primaiy step to be taken in every [proposed creation of a rural improvement district]. It is the basis of the whole proceeding.” Billings Bench Water Ass’n v. Yellowstone County (1924), 70 Mont. 401, 408, 225 P. 996, 999. In this case, the BOCC adopted Resolution of Intention No. 1992-51 at a public hearing on April 28, 1992. The plaintiffs have not challenged the contents or the adoption of the resolution of intention.

B. NOTICE OF RESOLUTION OF INTENTION

After the resolution of intention is passed, notice of that resolution must be given. Section 7-12-2105, MCA, provides, in pertinent part:

(1) Upon having passed the resolution of intention pursuant to 7-12-2103, the board of county commissioners must publish notice of the passage of such resolution of intention as provided in 7-1-2121.
(2) The board shall also cause a copy of such notice to be posted in three public places within the boundaries of such special improvement district. A copy of such notice shall be mailed as provided in 7-1-2122 to every person ... owning real property within the proposed district listed in his name upon the last completed assessment roll for state, county, and school district taxes.

In addition, subsection (3) of § 7-12-2105, MCA, lists a number of specific details which must be provided in the notice.

Compliance with the notice requirement is essential, as the failure to give notice of the intention to create a rural improvement district deprives the county of jurisdiction to proceed. Billings Bench Water Ass’n, 225 P at 999. In this case, the BOCC published, posted, and mailed notice to all the landowners in the proposed district, and its actions complied with the statute. All landowners were given notice and, in fact, none of the plaintiffs have contended that the required notice was not given. Therefore, the BOCC met this statutory requirement.

C. RIGHT TO PROTEST CREATION OF DISTRICT

After notice of the intent to create the resolution is given, the affected landowners must be given the opportunity to protest the creation of the district. Section 7-12-2109, MCA, provides, in pertinent part:

At any time within 15 days after the date of the first publication of the notice of the passage of the resolution of intention, any owner of property liable to be assessed for said work may make written protest against the proposed work or against the extending or creation of the district to be assessed, or both. Such protest must be in writing, identify the property in the district owned by the protestor, and be signed by all owners of the property....

Here, the BOCC mailed the Notice of Resolution of Intent and Public Hearing on April 30, 1992. This notice contained the following language:

Any owner of property within the proposed district may make protest against the creation of the district. Such protest must be in writing, identify the property in the proposed district by legal description or PIN number, and be signed by all owners of the property. Protests must be delivered to the County Treasurer / Clerk and Recorder’s Office no later than 5:00p.m., on Monday, May 18, 1992. ...

This notice contained all the statutory requirements and gave the affected landowners the opportunity to protest the creation of the CGRID. Again, the plaintiffs have not alleged that they were not given the statutory fifteen days to file written protests. The BOCC complied with the third step in the statutory process.

D. HEARING ON PROTESTS

After all written protests have been filed, a hearing on those protests must be held. Section 7-12-2111, MCA, provides, in pertinent part:

(1) At the next regular meeting of the board of county commissioners after the expiration of time within which protest may be made, the board shall proceed to hear and pass upon all protests so made, and its decision shall be final and conclusive. The board may adjourn said hearing from time to time.

The importance of hearing and passing on the protests is illustrated by § 7-12-2112, MCA, which provides, in pertinent part:

(1) Except as provided in subsection (2), no further proceedings shall be taken for a period of 6 months from the date when said protest was received by the county clerk when the board of county commissioners finds that such protest is made by the owners of property in the district to be assessed for more than 50% of the cost of the proposed work, in accordance with the method or methods of assessment described in the resolution of intention.

Pursuant to this statute, the affected landowners can “block” the proposed district, for a period of six months, by filing an adequate amount of protests.

On May 19, 1992, the BOCC held a public hearing to determine the validity of the protests which had been filed by affected landowners. At that time, staff members informed the BOCC that more time was required to research the validity of certain protests. The hearing was then publicly adjourned and continued to May 26,1992. At the May 26 hearing, staff members again requested additional time, and the BOCC again publicly adjourned and continued the hearing until May 28,1992.

One of the primary issues raised by the county staff at the May 28 hearing was that of ownership. The BOCC was required to determine ownership of each affected parcel to determine the validity of certain protests and to ascertain if the proper owners registered a protest.

Section 7-12-2110, MCA, defines “owner” as the person owning the fee, the person with legal title, or the person in possession of the land. Section 7-12-2105, MCA, requires that the names of the owners of the affected land be taken from the last completed assessment roll for state, county, and school district taxes. Based on these statutes, and on § 7-12-2109, MCA, which requires that the written protest be signed by all owners of the property, the BOCC required that all owners listed on the assessment roll sign the written protest. If that was not done, the BOCC rejected the protest.

For example, Laughing Water signed a written protest on three parcels owned jointly by him and India Supera. However, Ms. Supera was out of the country and did not sign the protest. Mr. Water attempted to file a protest and signed Ms. Supera’s name by power of attorney. However, it was discovered that Mr. Water had no written power of attorney from Ms. Supera. To have any legal authority, a power of attorney must be given pursuant to a written instrument. See §§ 70-15-304 and 72-5-501, MCA. In this case, Mr. Water presented no written power of attorney, and the BOCC properly concluded that the protest filed by Mr. Water must be rejected, because all owners did not sign the protest as required by § 7-12-2109, MCA. Bob Scow also filed a protest by power of attorney on behalf of Mohammad Hanif, which was accepted by the BOCC, because Mr. Scow presented a written power of attorney.

The BOCC rejected the protest of Don Lais on two parcels, because the county assessment records revealed that the two parcels were owned by Don Lais and Luanna Cowen. Because Ms. Cowen did not sign the protest, it was rejected. At the District Court hearing on August 11,1992, the plaintiffs admitted a quit claim deed from Ms. Cowen to Mr. Lais, and the protest was subsequently accepted.

In addition, the BOCC allowed two landowners, who had filed written protests prior to the May 18, 1992, deadline, to rescind the protests after that deadline. Leah Tursich filed a written protest; however, it was not signed by the other owner of the parcel, Joe Tursich. Both parties signed the rescission. In addition, Dorothy Carrico signed a protest and then rescinded the same. We note that, based on the analysis above, Ms. Tursich’s protest was not valid in any case, because all owners of the property had not signed the protest. Therefore, whether the BOCC properly accepted her rescission is moot. However, we must address whether the BOCC properly accepted the rescission of Ms. Carrico.

We have not previously ruled on whether a board can accept a rescission under its discretionary authority “to hear and pass upon all protests.” Section 7-12-2111, MCA. However, we have previously ruled on a similar issue in Ford v. Mitchell (1936), 103 Mont. 99, 61 P.2d 815. In Ford, the plaintiff sought to restrain the Secretary of State from certifying an initiative. In discussing the withdrawal of names from the initiative petition, we stated that “any person signing the petition has an absolute right to withdraw his name at any time before the person or body created by law to determine the matter submitted by the petition has finally acted.” Ford, 61 P.2d at 822. We apply this reasoning to the case at hand, and hold that a landowner has the right to withdraw his or her protest prior to the time the board holds the hearing to pass on the protests. Therefore, when Ms. Carrico rescinded her written protest prior to the May 19,1992, hearing, her rescission was valid and the BOCC properly accepted the same.

After the BOCC heard and passed on all the protests, the total protest vote on May 28, 1992, totaled 44.5% of the eligible property values. We note that, notwithstanding, had the BOCC accepted every written protest which was filed, including those of Mr. Water, Ms. Supera, and Mr. Lais, and rescinded those who no longer wished to protest, including Ms. Tursich and Ms. Carrico, the total amount of protests would have been 48.65%, which was not enough, under § 7-12-2112, MCA, to prevent the BOCC from proceeding to create the CGRID.

The plaintiffs have made issue of the fact that the BOCC adjourned the May 19, 1992, meeting until May 26, 1992, and then again until May 28,1992. However, we note that § 7-12-2111, MCA, specifically states that the “board may adjourn said hearing from time to time.” In this case, the adjournment of the hearing was necessary to allow the staff to adequately research and prepare responses to certain protests. The BOCC adjourned each hearing with a specific time and place given for continuation of the hearing, and was authorized to do so under § 7-12-2111, MCA. We hold that the BOCC complied with the statutory requirements for holding a public hearing to pass on the protests.

E. RESOLUTION CREATING DISTRICT

If, pursuant to § 7-12-2112, MCA, the proposed district is not “blocked” by the affected landowners, the board has the power to create the proposed district. Section 7-12-2113, MCA, provides, in pertinent part:

(1) Before ordering any of the proposed improvements, the board of county commissioners shall pass a resolution creating the special improvement district in accordance with the resolution of intention theretofore introduced and passed by the board.

In this case, the affected landowners did not present sufficient valid protests to prohibit the BOCC from passing a resolution creating the CGRID and the BOCC, within its authority, passed Resolution No. 1992-65 on May 28,1992, in compliance with statutory requirements.

F. RESOLUTION FOR LEVY AND ASSESSMENT OF TAX

After the board passes the resolution which creates the rural improvement district, it must pass a resolution to levy and assess a tax against the affected landowners. Section 7-12-2158, MCA, provides, in pertinent part:

(1) To defray the cost of making or acquiring improvements in any special improvement district, the board of county commissioners shall by resolution levy and assess a tax upon all benefited property in the district created for such purpose, by using for a basis for such assessment the method or methods provided for by this part and described in the resolution of intention.

The statute further provides a list of particulars the resolution must contain. In this case, the BOCC adopted a resolution to levy and assess taxes on August 18,1992. The resolution adopted by the BOCC complied with the statutory requirements, and the plaintiffs have not alleged otherwise.

G. NOTICE OF RESOLUTION FOR LEVY AND ASSESSMENT OF TAX

After adopting the resolution for levy and assessment of taxes, the board must give notice of that resolution. Section 7-12-2159, MCA, provides, in pertinent part:

(1) A notice, signed by the county clerk and stating that the resolution levying a special assessment to defray the cost of making the improvements is on file in the office of the county clerk and is subject to inspection, shall be:
(a) published as provided in 7-1-2121;
(b) mailed to the owner of each lot, tract, or parcel of land to be assessed...; and
(c) mailed to such other persons known to the clerk to have an ownership interest in the property.

In addition, the notice must state the time and place in which objections to the final adoption of the resolution will be heard by the board. Section 7-12-2159(2), MCA.

In this case, legal notice was mailed on August 20, 1992, and published as required by statute on August 21 and 28,1992. Again, the plaintiffs have not alleged that proper notice of the resolution for levy and assessment of taxes was not given, and we hold that the BOCC complied with the seventh step in the process of creating a rural improvement district.

H. HEARING ON PROTEST

After notice of the resolution for levy and assessment of taxes is given, the board must “meet and hear all such objections” as the affected landowners may present. Section 7-12-2160, MCA. In this case, the BOCC held a hearing on September 3, 1992, in which it heard all objections, both regarding the assessment and the CGRID process itself. By holding the hearing, the BOCC satisfied its statutory requirement. The BOCC chose not to reconsider the adoption of the CGRID, and it was not required to do so under the statutory scheme enacted by the legislature.

I. DELIVERY OF RESOLUTION

The last requirement in the creation of a rural improvement district mandates that the final resolution creating the rural improvement district be delivered to the county treasurer within two days after its passage. Section 7-12-2160(2), MCA. Here, the BOCC properly forwarded the resolution to the treasurer for assessment purposes, and the plaintiffs have not challenged the BOCC’s compliance with this final statutory step.

In summary, after reviewing each and every one of the nine statutory steps required to complete the process of creating a rural improvement district, we conclude that the BOCC complied with each of these requirements.

Ill — FAILURE TO HOLD ADEQUATE PUBLIC HEARING

The District Court held that the BOCC failed to hold adequate public hearings when it created the CGRID. We disagree.

In its March 10, 1993, order, the District Court stated that the plaintiffs had been denied their constitutional and statutory rights of a fair hearing and public participation, as no public comment or participation was solicited at the May 26, 1992, or May 28, 1992, hearings. As stated above, § 7-12-2111, MCA, allows the board to adjourn these hearings. Based on our discussion above, it is clear that the BOCC followed each and every step in the nine-step statutory process when it created the CGRID. The legislature has designed the process a board of county commissioners must follow to create a rural improvement district. Whether or not the opportunity for more public participation should be given is a matter left to the discretion of the legislature. Given the statutory requirements now in place, we hold that the BOCC’s hearings complied with those mandates. The District Court erred in concluding that the BOCC failed to comply with the statutes and in requiring the BOCC to delete or refund the CGRID assessments and to re-notice the hearings and provide further opportunity to participate.

Reversed.

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