author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CLARA M. HESS, Defendant and Appellant.
    No. 91-005.
    Submitted Nov. 6, 1991.
    Decided March 10, 1992.
    Rehearing Denied March 31, 1992.
    49 St.Rep. 217.
    252 Mont. 205.
    828 P.2d 382.

      For Appellant: Charles F. Moses argued, Attorney at Law, Billings.
    For Respondent: Marc Racicot, Attorney General, Jennifer Anders argued, Assistant Attorney General, and John P. Connor, Assistant Attorney General, Helena; William Neis Swandal, County Attorney, Livingston.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Clara Hess (Clara) appeals her conviction for the mitigated deliberate homicide of her husband, William “Bill” Hess, following a jury trial in the Sixth Judicial District, Park County. We affirm. We rephrase the issues presented on appeal as follows:

1. Did the District Court err in requiring the defendant to submit to a psychiatric and psychological evaluation by the States expert witnesses for use by the State in rebuttal?

2. Did the District Court err by giving inappropriate jury instructions?

Clara married William “Bill” Hess (Bill) in 1947. Years later, Bill initiated divorce proceedings; the couple divorced in 1964. After their divorce, the couple continued to live together. In 1972, the couple remarried. Clara testified that in June 1989, the two agreed to part, but neither party initiated legal proceedings.

During the years she lived with Bill, Clara testified that Bill was tempestuous and subjected her to physical, sexual, and verbal abuse. She testified that Bill threatened her with a gun on three occasions. She testified that Bill oftentimes controlled her freedom. She also testified, however, that she frequently traveled without Bill to Washington and stayed with family and friends, sometimes for several weeks at a time. She testified that she also made other trips without Bill, including trips to Canada, Ohio and Disneyland. She further testified that she managed the checkbook and household finances of the couple, and had access to money from her mother’s estate.

Some witness testimony supported Clara’s depiction of Bill as abusive, controlling, and hot-tempered. Other witness testimony depicted Bill as kind-hearted and gentle, and depicted Clara as the dominant and oftentimes absent person in the marriage.

Clara testified that in September 1988, she sought medical attention for a leg injury resulting from Bill’s physical abuse. Medical records indicate that Clara told a treating doctor that her leg injury was a result of a “burning membrane” that started after riding in a car and was aggravated after another car trip.

Both Bill and Clara enjoyed hunting. Clara testified that she engaged in target-shooting. Both owned and were accustomed to shooting various handguns and rifles. Clara kept a Beretta .22 pistol in a downstairs washroom and a .38 pistol in her bedroom. While traveling, she carried a loaded pistol in her purse. Bill kept several guns in his bedroom, including a High Standard .22 pistol.

On the evening of August 19,1989, Clara and Bill were home alone. Clara testified that Bill said if she “didn’t move back into his bedroom and do everything he wanted,” he would tell Clara’s then forty-four-year-old son about his true paternity. Clara testified that she responded to Bill’s threat by sprinkling sleeping pills in Bill’s tapioca pudding. After eating his tapioca pudding, Bill went upstairs to his bedroom and retired.

Clara testified that on the morning of August 20,1989, she entered Bill’s bedroom and Bill threatened to kill her. She testified that she believes Bill moved toward the dresser to retrieve the High Standard .22 pistol. She testified that she recalls grabbing the pistol from the dresser, but does not recall struggling with Bill, firing the pistol, or dropping the pistol. She recalls leaving Bill’s bedroom and going to her bedroom for an undetermined amount of time. A pathologist later testified that Bill died from two gunshot wounds to the left temple of his head. The pathologist could not determine whether Bill was standing or lying down when he received the wounds nor whether Bill was shot from close range. A firearm and toolmark examiner testified that 1) two spent cartridge cases taken from the scene were shot from Bills High Standard .22 pistol, and 2) of the two bullet fragments taken from Bill’s skull, one bullet fragment was from a .22 bullet and the other was probably from a .22 bullet. The Park County Sheriff testified that Bill’s High Standard .22 pistol was later found in Clara’s bedroom under her pillow.

When Clara returned to Bill’s bedroom some time later, she recalls seeing Bill on the floor with “some dark stuff coming out of his mouth.” She placed a pillow under his head and a blanket over him and did not realize he was dead until sometime that afternoon.

That evening, Clara wrapped Bill’s body in the blanket that covered him and tied his body with a rope to a rubber raft. She then dragged Bill’s body downstairs and outside to a deep hole meant for a root cellar. She testified that she first placed straw in this hole, then Bill’s body, then the box spring and mattress from Bill’s bedroom. She later testified that she also placed into this hole a blood-stained piece of carpet that she had removed from Bill’s bedroom. The Park County Sheriff testified that this hole additionally contained a piece of carpet padding from Bill’s bedroom, a spent .22 casing, and another rubber raft. Clara testified that she covered the contents of the hole with dirt.

The next morning on August 21, 1989, Clara telephoned Bill’s sister, Sarah Leyde (Sarah) and told her that Bill was ill and that the Leyde family should not come over to their house that day to help side the garage as earlier planned. Later that day, Sarah telephoned Clara to check on Bill’s health, and Clara told her that Bill was still ill.

On August 22,1989, Clara purchased and had delivered ten yards of garden dirt from a local company. She then asked a neighbor who had access to a backhoe if he could use the backhoe to fill in the remainder of the hole with the garden dirt. Additionally that day, Clara went over to Sarah’s house and told Sarah that Bill had gone fishing, but she did not know where. OnAugust23,1989, the neighbor using his backhoe filled in the hole meant for a root cellar with the garden dirt.

Thereafter, Clara left Montana and traveled to Washington to visit family. On August 24, 1989, she telephoned Sarah from Washington and told her that Bill was fishing in Alaska. OnAugust29,1989, Clara telephoned Sarah from Washington and told her that Bill was at a fishing camp in Williams Lake, British Columbia, and she was going to drive there to pick him up. On August 31, 1989, Clara telephoned Sarah and told her that Bill had died from a heart attack in Williams Lake, British Columbia, and his body had been cremated.

When Clara returned to her home in Montana, Sarah helped Clara pack Bill’s belongings. Sarah became suspicious when Clara refused to allow anyone in Bill’s locked bedroom because Clara claimed that Bill had killed a cat in his bedroom, leaving the floor stained. Sarah became more suspicious when she found Bill’s glasses and fishing tackle in his car. Acting on these suspicions, Sarah telephoned authorities in Williams Lake, British Columbia, to confirm Bill’s death and was told that there were no records of his death or cremation. Sarah then telephoned local police, which resulted in an investigation and the eventual excavation of Bill’s body. Clara was later arrested in Washington.

On October 23, 1989, Clara was charged by information with deliberate homicide under § 45-5-102, MCA. At her arraignment hearing on October 24, 1989, she pled not guilty to this charge. On December 11, 1989, Clara gave notice of her intent to rely upon the affirmative defense of “use of justifiable force or self-defense under the battered woman syndrome.” This notice stated that Dr. Lenore Walker, a nationally known expert on battered woman syndrome, would examine Clara and testify at trial.

The State did not challenge Clara’s reliance on the defense of justifiable use of force under battered woman syndrome, even though this defense has never been recognized in Montana. On January 12, 1990, however, the State gave notice of its intention to call Dr. Walters and Dr. Stratford, both experts on battered woman syndrome, to rebut the testimony of Dr. Walker. The State further moved and the District Court ordered, a psychiatric and psychological evaluation of Clara by Dr. Walters and Dr. Stratford at State expense.

Clara twice refused to participate in this court-ordered evaluation and requested a writ of supervisory control from this Court. On April 11, 1990, the District Court sanctioned Clara and ordered that if she refused to participate in this evaluation, Dr. Lenore Walker would not be allowed to testify at trial.

On May 10, 1990, this Court granted limited supervisory control to Clara, and vacated the District Court’s April 11,1990 order regarding Dr. Lenore Walker’s testimony. However, on May 16, 1990, this Court granted rehearing and vacated its May 10, 1990 order. In July 1990, Clara submitted to the court-ordered evaluation.

At trial, Dr. Walker testified that in her expert opinion, Clara suffered from battered woman syndrome. In rebuttal, Dr. Walters and Dr. Stratford testified that in their expert opinions, Clara exhibited some symptoms of post-traumatic stress disorder (battered woman syndrome category).

On August 30,1990, a jury convicted Clara of mitigated deliberate homicide. On September 26,1990, the District Court sentenced Clara to thirty years imprisonment for mitigated deliberate homicide and five years imprisonment for the use of a weapon in commission of an offense, fined her $15,000, and designated her a nondangerous offender for parole eligibility purposes. From this conviction, Clara appeals.

1. Did the District Court err in requiring the defendant to submit to a psychiatric and psychological evaluation by the State’s expert witnesses for use by the State in rebuttal?

Clara challenges, on both constitutional and statutory grounds, the District Court’s authority to compel an independent psychiatric and psychological evaluation by State-chosen experts for use during rebuttal.

A. Constitutional Grounds

Clara argues that the compelled evaluation violated her Fifth Amendment right protecting her against self-incrimination; she argues that she in no way waived this right. Clara argues that her Miranda rights were violated as she was never informed prior to the compelled evaluation that she had the right to remain silent. Clara argues that her Sixth Amendment right was violated as she did not have counsel present during the compelled evaluation. Clara also argues that Smith v. McCormick (9th Cir. 1990), 914 F.2d 1153, is applicable to these facts as it supports the proposition that a compelled evaluation is prohibited constitutionally, as well as statutorily.

We agree with the State that Clara put her mental state at issue when she relied upon the affirmative defense of justifiable use of force and offered psychological evidence, the expert witness testimony of Dr. Lenore Walker, to support that defense. Accordingly, the State was entitled to have Clara examined by expert witnesses of its own choosing and to have these expert witnesses testify for the limited purpose of rebutting Dr. Lenore Walker’s testimony. State v. Briand (N.H. 1988), 547 A.2d 235. See also, State v. Goodwin (1991), 249 Mont. 1, 813 P.2d 953. We therefore hold that Clara’s Fifth Amendment right against self-incrimination was not violated.

We further agree with the State that Clara was not entitled to Miranda warnings prior to the compelled evaluation because 1) Clara was represented by counsel, 2) said counsel was fully informed of the time and place of the evaluation, 3) Clara was not in custody at the time of the evaluation, 4) as discussed, Clara placed her mental state at issue, and 5) the compelled evaluation was limited to use for rebuttal only. See McNeill v. Fulcomer (E.D. Pa. 1990), 753 F.Supp. 1294.

Clara next argues that under the Sixth Amendment, she was entitled to have her counsel present during the compelled evaluation. The record indicates that Dr. Walters, a psychologist, examined Clara on July 11 and 12, 1990. Clara’s counsel was present in Dr. Walters’ office at both sessions, although he was not in the examination room. The record further indicates that Dr. Stratford, a psychiatrist, examined Clara during two separate sessions in July 1990. Clara’s counsel, although not present in the examination room, was present in Dr. Stratford’s office during the first session and was apparently in contact with her by telephone during the second evaluation.

In the District Court’s February 5, 1990 order relating to the State’s motion for a compelled psychiatric and psychological evaluation by State experts, the court ordered:

B. That in [the] event defendant chooses to submit to such evaluation ... her attorney may attend and be present.... The state shall thereafter also promptly furnish defense counsel with a true copy of any report or reports prepared by Drs. Stratford and Walters.
C. That such evaluation shall be made subject to defendant’s constitutional and statutory rights not to make statements or produce documents that may incriminate her, that the state’s counsel and witnesses may use such examination only for determining the mental condition of defendant and for rebuttal, and that all experts and counsel shall keep their records and reports confidential except as necessary for use in trial of this case.

From the record in this case, the only information elicited by Dr. Stratford and Dr. Walters in their examinations related to the mental condition of Clara and their testimony was used only to rebut the testimony of Dr. Lenore Walker, Clara’s expert witness. Accordingly, the testimony of Dr. Stratford and Dr. Walters stayed well within the parameters of the District Court’s order.

Additionally, following a careful review of the entire record, we hold that this testimony did not prejudice Clara and therefore is not a ground for reversal. See § 46-20-701, MCA. Dr. Stratford testified during cross-examination that he was unable to reach a conclusion on whether Clara suffered from post-traumatic stress disorder. Dr. Walters testified during cross-examination: “I am confident saying that [Clara] reports a number of symptoms that are consistent with post-traumatic stress disorder.” Although Dr. Walters did not conclude that Clara suffered from post-traumatic stress disorder, he testified during cross-examination that based on his limited test results of Clara, “[i]t appears likely” that she suffers from post-traumatic stress disorder. Accordingly, the testimony of Dr. Walters and Dr. Stratford did not prejudice Clara regarding her defense of battered woman syndrome.

Clara also argues that Smith v. McCormick (9th Cir. 1990), 914 F.2d 1153, is applicable to these facts as it supports the proposition that a compelled evaluation is prohibited constitutionally, as well as statutorily. We disagree that Smith stands for this proposition; if anything, the language of Smith supports the State’s position that, as a matter of trial fairness, the State must be provided an opportunity to rebut the evidence offered by the defendant’s expert witness and that a compelled evaluation is proper:

Consistent with the adversarial nature of the fact-finding process and the quasi-scientific nature of psychiatric opinion, theA&e court explicitly rejected the notion that psychiatrists can be expected to reach a unanimous diagnosis of the current mental condition of a defendant and unanimous prognosis as to future expected conduct or that there is such a thing as “neutral” psychiatric testimony: “Psychiatry is not... an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of future dangerousness. Perhaps because there often is no single, accurate psychiatric conclusion on legal insanity in a given case, juries remain the primary factfinders on this issue, and they must resolve differences in opinion within the psychiatric profession on the basis of the evidence offered by each party.”

Smith, 914 F.2d at 1157 (citing Ake v. Oklahoma (1985), 470 U.S. 68, 81, 105 S.Ct. 1087, 1095, 84 L.Ed.2d 53, 64-65). We therefore hold that the Smith decision presents no basis for reversing this case.

B. Statutory Grounds

Clara argues that Montana’s statutory scheme does not provide the District Court the authority to compel a psychiatric and psychological evaluation of a defendant who asserts the affirmative defense of justifiable use of force based on battered woman syndrome under §§ 46-15-323, -324, -331, and -332, MCA (1989). Clara further argues that statutes governing the procedure for mental evaluation when mental state is an issue, §§ 46-14-101 to -313, MCA (1989), are inapplicable here because the defense of justifiable use of force based on battered woman syndrome does not place a defendant’s mental state at issue and these statutes do not expressly provide for battered woman syndrome.

We hold that §§ 46-15-323, -324, -331, and -332, MCA (1989), are inapplicable because, as previously discussed, Clara put her mental state at issue when she relied upon the defense of justifiable use of force based on battered woman syndrome and offered the testimony of Dr. Lenore Walker in support of that defense. The applicable statute, § 46-14-212, MCA (1989), authorizes the State to request a mental evaluation once the defendant’s mental state is at issue. Furthermore, the District Court had authority to apply §§ 46-14-101 to -313, MCA (1989), without specific statutory reference to the defense of justifiable use of force based on battered woman syndrome. See State v. Briand (N.H. 1988), 547 A.2d 235, 237. We therefore hold that § 46-14-212, MCA (1989), provided the District Court the authority to compel Clara to undergo a psychiatric and psychological evaluation by expert witnesses chosen by the State for the limited purpose of rebuttal. We further hold that the District Court had the right to sanction Clara when she twice refused to cooperate with undergoing the court-ordered evaluation under § 46-15-329, MCA (1989).

2. Did the District Court err by giving inappropriate jury instructions?

Clara argues that the District Court erred when it refused her instructions on 1) presumption of innocence and 2) deliberation. Clara further argues that the District Court should have given instructions that the testimony of law officers should not be given special credibility and that the State bears the responsibility to disprove the theory of self-defense.

We hold that the District Court properly refused Clara’s instructions on presumption of innocence and deliberation because they are repetitive, conflict with the instructions already approved by the District Court, and are redundant. Furthermore, the District Court was not bound to give jury instructions concerning the credibility of law officer testimony because these instructions were never offered at trial, and this Court has never held these instructions as necessary to avoid reversible error. We therefore hold that the District Court committed no error in refusing these jury instructions.

In conclusion, we affirm Clara Hess’s conviction of the mitigated deliberate homicide of her husband, William “Bill” Hess.

JUSTICES HARRISON, GRAY, HUNT, TRIEWEILER, McDONOUGH and WEBER concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    WAYNE FRANCETICH, Claimant and Appellant, v. STATE COMPENSATION MUTUAL INSURANCE FUND, Defendant and Respondent.
    No. 91-093.
    Submitted Nov. 5, 1991.
    Decided March 10, 1992.
    49 St.Rep. 222.
    252 Mont. 215.
    827 P.2d 1279.

      For Appellant: Don Edgar Burris argued, Attorney at Law, Billings.
    For Respondent: Laurence A. Hubbard argued, Attorney at Law; Mark E. Cadwallader, Attorney at Law, Helena.
    For Amicus Curiae: Patricia Cotter argued, Cotter & Cotter, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

Claimant and appellant Wayne Francetich suffered an on-the-job injury on December 2,1988. Respondent State Compensation Mutual Insurance Fund accepted liability and paid workers’ compensation benefits to the claimant. The claimant also obtained a policy limits insurance settlement from the third party responsible for the accident. The State Fund attempted to exercise subrogation rights pursuant to § 39-71-414(6)(a), MCA. The claimant resisted the State Fund’s attempt to subrogate, contending that the statute providing for subrogation in this instance is in direct violation of Article II, Section 16, of the Montana Constitution. We reverse.

We are presented with the following three issues for review:

1. Is § 39-71-414(6)(a), MCA, unconstitutional in that it directly contravenes the clear language of Article II, Section 16, of the Montana Constitution?

2. Does § 39-71-414(6)(a), MCA, violate constitutional guarantees of equal protection?

3. Does § 39-71-414(6)(a), MCA, violate the worker’s right to due process of law?

Because of our holding on issue one that § 39-71-414(6)(a), MCA, is unconstitutional, we need not address issues two and three. The determinative issue before this Court is whether § 39-71-414(6)(a), MCA, is unconstitutional in that it directly contravenes the clear language of Article II, Section 16, of the Montana Constitution.

Claimant petitioned for a hearing before the Department of Labor and Industry for a determination of the State Fund’s subrogation interest. The parties submitted their dispute to an administrative hearing officer before the Department of Labor and Industry by way of the following stipulated uncontested facts, along with a motion for summary judgment.

1. On December 2, 1988, the claimant Wayne Francetich suffered an industrial injury while employed by an insured of the respondent State Fund.

2. The State Fund paid temporary total disability and other benefits to claimant.

3. Claimant accepted a policy limits settlement in the amount of $25,000 from the third-party tortfeasors responsible for the December 2,1988, accident.

4. The State Fund contends that it has a 50 percent subrogation interest in the settlement proceeds from the claimant’s third-party recovery and is entitled to subrogation in the amount of $10,865.14.

5. The State Fund demanded payment from claimant in the sum of $5,391.03, that amount being 50 percent of the benefits previously paid to claimant.

6. On April 6, 1990, the State Fund refunded to claimant the aforesaid $5,391.03 pursuant to the decision of this Court in Malek v. Henry’s Safety Supply Company (1990), 242 Mont. 311, 790 P.2d 965.

7. The State Fund has demanded that it only be required to pay any future compensation or medical benefits to the claimant at 50 percent until the State Fund has reached their total entitlement of $10,879.61.

On September 26, 1990, the hearing examiner granted summary judgment for the respondent while correctly declining to address the constitutional questions on the grounds that administrative agencies lack the necessary judicial power to decide such issues. Jarussi v. Board of Trustees (1983), 204 Mont. 131, 135-36, 664 P.2d 316, 318. Claimant appealed this decision to the Workers’ Compensation Court. Following a briefing of the constitutional issues by the parties, the Workers’ Compensation Court on January 17,1991, entered its order on appeal, affirming the administrative decision of the Department of Labor and Industry. Claimant appeals from the decision of the Workers’ Compensation Court.

Both parties stipulated to an agreement of facts below and the dispute was before the Workers’ Compensation Court solely for an interpretation of the law. In reviewing conclusions of law of the Workers’ Compensation Court, we apply a different standard of review than we would if reviewing factual findings. Factual findings by the Workers’ Compensation Court are reviewed using the substantial credible evidence standard. Our review of conclusions of law is, as we recently stated:

“In such a case, the appropriate standard of review is simply whether the lower court’s interpretation of the law is correct. We are not bound by the lower court’s conclusion and remain free to reach our own.”

Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523. We explained the rational for this standard in Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601:

The reasoning for simply determining if the court’s conclusions are correct is that no discretion is involved when a tribunal arrives at a conclusion of law — the tribunal either correctly or incorrectly applies the law. For that reason, this Court concludes that our standard of review relating to conclusions of law, whether the conclusions are made by an agency, workers’ compensation court, or trial court, is whether the tribunal’s interpretation of the law is correct.

Steer, 803 P.2d at 603. The instant case involved only an interpretation of the law by the Workers’ Compensation Court, and therefore, upon review we will simply determine whether or not the conclusion was correct.

Additionally, this case involves the interpretation of a statute that is being challenged on constitutional grounds. This Court has long held that when the constitutionality of a statute is in question:

‘We commence inquiry into the constitutional questions with the well-settled rule that when the constitutionality of a statute is under scrutiny, the statute is presumed to be constitutional and [that] the party attacking it has the burden of proving its invalidity. [Citations omitted.] This presumption of validity applies to all legislative enactments and it is the duty of the court to resolve all conceivable doubts in favor of validity whenever possible. [Citations omitted.]” Reeves v. Ille Electric Co. (1976), 170 Mont. 104, 109, 551 P.2d 647, 650.

McClanathan v. Smith (1980), 186 Mont. 56, 65-66, 606 P.2d 507, 512.

This case involves an analysis of § 39-71-414(6)(a), MCA, in relation to Article II, Section 16, of the Montana Constitution. Section 39-71-414(6)(a), MCA, provides:

The insurer is entitled to full subrogation rights under this section, even though the claimant is able to demonstrate damages in excess of the workers’ compensation benefits and the third-party recovery combined. The insurer may subrogate against the entire settlement or award of a third party claim brought by the claimant or his personal representative, without regard to the nature of the damages.

Article II, Section 16, of the Montana Constitution, as amended in 1972, provides:

Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen’s Compensation Laws of this state. Right and justice shall be administered without sale, denial, or delay. [Emphasis added.]

The emphasized portion of Article II, Section 16, was added by amendment during the Constitutional Convention of 1972. Subsection 6(a) was added to § 39-71-414, MCA, in 1987. Prior to the 1987 amendment, the statute was silent concerning the issue of subrogation when the injured worker’s damages were in excess of the workers’ compensation benefits and the third-party recovery combined. This is the first time that we have been called upon to review the 1987 amendment to the subrogation statute in light of Article II, Section 16, of the Montana Constitution.

A review of the history of the cases interpreting Article II, Section 16, as well as those cases discussing subrogation when the injured worker’s damages exceed the worker’s compensation benefits and the third-party recovery combined, is necessary to demonstrate the rationale and reasoning underlying our decision in this case.

A good starting point for the discussion on Article II, Section 16, is our decision in White v. State (1983), 203 Mont. 363, 661 P.2d 1272. In White, the issue before this Court was the constitutionality of § 2-9-104, MCA (1981), a statute which limited the liability of any governmental entity of the State. The statute provided that governmental entities were not hable for noneconomic damages, nor for any economic damages in excess of $300,000 for any one claimant, or more than $1,000,000 in any one occurrence. White held that Article II, Section 16, created a fundamental right to full legal redress for all injuries. The Court stated in White that:

Article II, section 16 of the Montana Constitution guarantees that all persons shall have a “speedy remedy... for every injury of person, property, or character.” In Corrigan v. Janney (1981), 192 Mont. 99, 626 P.2d 838, 38 St.Rep. 545, this Court held that it is “patently unconstitutional” for the legislature to pass a statute which denies a certain class of Montana citizens their causes of action for personal injury and wrongful death. We affirm and refine our holding in Corrigan v. Janney, supra; we hold that the Montana Constitution guarantees that all persons have a speedy remedy for every injury. The language “every injury” embraces all recognized compensable components of injury, including the right to be compensated for physical pain and mental anguish and the loss of enjoyment of living.

White, 661 P.2d at 1275. Having found a fundamental right to full legal redress, White then held that the statute in question violated the equal protection guarantee of the Montana Constitution. The State could provide no compelling interest to justify classifying tortfeasor victims on the basis of whether they had suffered pain and loss of quality of life or whether they had suffered primarily economic loss. The section in its entirety was found to be unconstitutional.

In 1989, this Court again had the opportunity to examine Article II, Section 16, in Meech v. Hillhaven West, Inc. (1989), 238 Mont. 21, 776 P.2d 488. Meech involved a challenge to the Wrongful Discharge From Employment Act on the grounds that the Act violated an individual’s fundamental right to full legal redress within the meaning of Article II, Section 16, of the Montana Constitution. In Meech, this Court concluded that full legal redress, as provided for in the Montana Constitution, means “the equal right to be made whole again by what the law defines as a cause of action and its elements.” Meech, 776 P.2d at 498. Further, it is up to the courts and the legislature to determine what constitutes available causes of action, remedies, and redress. Therefore, this Court held that there is no fundamental right to any particular cause of action, remedy, or redress. Regarding the second sentence of the provision which specifically refers to full legal redress, the majority stated that “the delegates narrowly drafted the amendment to accomplish the single purpose of limiting the lawmakers’ power in restricting third-party actions in workers’ compensation law.” Meech, 776 P.2d at 497. Additionally in Meech, this Court stated that:

[T]he testimony before the Convention demonstrates that the amendment to Article II, Section 16, was to operate in only one particular area of law. Specifically, the addition prevents lawmakers, that is both the courts and the legislature, from denying workers’ compensation claimants a cause of action against negligent third parties for job related injuries. The amendment did not seek to define “full legal redress” as a fundamental right which could not be altered by the legislature.

Meech, 776 P.2d at 499.

Several cases involving subrogation also need to be examined. In Skauge v. Mountain States Telephone and Telegraph (1977), 172 Mont. 521, 565 P.2d 628, the plaintiffs’rented home was destroyed by an explosion. The value of the plaintiffs’ personal property destroyed exceeded $11,000. The personal property was insured up to $4000, and this amount was paid to the plaintiffs by the insurer. Plaintiffs then initiated suit against a third party who plaintiffs alleged were responsible for the fire. The issue before this Court in Skauge was whether the insurer could subrogate from any award the plaintiffs might recover, and if so, how much was the insurer entitled to. In Skauge, we held that:

[T]he doctrine of legal subrogation is applied to subserve the ends of justice and to do equity in the particular case under consideration. Bower v. Tebbs, supra.
For these reasons we adopt the view that when the insured has sustained a loss in excess of the reimbursement by the insurer, the insured is entitled to be made whole for his entire loss and any costs of recovery, including attorneys fees, before the insurer can assert its right of legal subrogation against the insured or the tortfeasor.

Skauge, 565 P.2d at 632.

The issue of subrogation in relation to Article II, Section 16, of the Montana Constitution was considered by this Court the year following the Skauge decision in Brandner v. Travelers Insurance Company (1978), 179 Mont. 208, 587 P.2d 933. In Brandner this Court allowed subrogation against a third-party recovery by an injured worker. The worker, an employee of Con Agra Montana, Inc., was injured while loading a railroad car owned by Burlington Northern. The worker then settled with Burlington Northern for $70,000, an amount not dictated by the upper limits of any insurance policy. The employer’s insurer sought subrogation for amounts previously paid to the injured worker. The insurer disagreed with the Workers’ Compensation Court’s determination concerning the subrogation right and sought review by this Court. This Court reversed the Workers’Compensation Court and held that subrogation was appropriate in light of Article II, Section 16, of the Montana Constitution. The Court also distinguished the situation in Brandner from the decision in Skauge. The basis for this distinction apparently was the Court’s belief that the injured worker’s voluntary settlement with the third party for less then the upper limits of the third party’s insurance policy indicated that the worker had been fully compensated for his injuries. There is language in Brandner which might be viewed as indicating that subrogation might have been appropriate even if the injured worker had not been fully compensated for his injuries. To the extent that Brandner might be interpreted as allowing for subrogation prior to the injured worker receiving full compensation it is overruled.

In Hall v. State Compensation Insurance Fund (1985), 218 Mont. 180, 708 P.2d 234, this Court was faced with a factual situation nearly identical to the present case. The claimant in Hall suffered damages in excess of the workers’ compensation benefits and a policy limits recovery of $25,000 from the responsible third-party tortfeasor combined. The insurer sought subrogation from the third-party recovery, even though the injured worker had not been made whole. In 1985, the subrogation statute was silent as to an insurer’s subrogation rights before the injured worker was made whole. The Court relied on its decision in Skauge and the theory of equitable limitation on legal subrogation in deciding that the insurer in Hall could not subrogate until the injured worker had been made whole. Additionally, the Hall decision mentioned White, and indicated that allowing subrogation in this instance, when the injured worker’s damages exceeded his total recovery, would violate his fundamental right to full legal redress created by Article II, Section 16, of the Montana Constitution. The result in Hall was, therefore, justified on two separate grounds. In the absence of statutes governing like cases, this Court was free to apply appropriate theories of equity in reaching our conclusion. Additionally, the fundamental right to full legal redress established in White served as an alternative basis for the decision.

We again considered this same issue in the recent case of Zacher v. American Insurance Company (1990), 243 Mont. 226, 794 P.2d 335. It should be noted that although Zacher was decided in 1990, it construed the 1983 subrogation statute. The claimant was injured in 1983 and it is well-settled that the statute existing at the time of the injury governs. Watson v. Seekins (1988), 234 Mont. 309, 312, 763 P.2d 328, 331. Additionally, it is significant to recognize that the Meech decision was a 1989 decision and in effect at the time of Zacher. The claimant alleged in Zacher that allowing subrogation under these circumstances would deprive him of full legal redress. This Court agreed that the insurer was not entitled to subrogation, but did not rely on the full legal redress argument presented by the claimant in reaching that conclusion. Instead, the Court relied on the equitable limitation on legal subrogation doctrine which was the basis for the earlier Skauge and Hall opinions. This doctrine is based

[U]pon an equitable balancing of the rights of the insurer as compared to the claimant. As previously quoted, the basic conclusion is that when the amount recovered by a claimant is less than the claimant’s total loss, with a result that either the claimant or the insurer must to some extent go unpaid, then it is equitable that the loss be bom by the insurer which had been paid an insurance premium for the assumption of its liability.

Zacher, 794 P.2d at 338. To the extent that the Hall decision had relied on White, and the full legal redress doctrine which was abandoned in Meech, it was overmled.

We are presented with the same factual circumstances in this case as in both Hall and Zacher. However, this is the first case to come before the Court since the 1987 amendment to the workers’ compensation subrogation statute which specifically directs that the insurer shall have the right to subrogate even though the injured worker’s damages exceed his total recoveries. This specific legislative directive effectively overrules the equitable theories concerning subrogation that this Court relied on in deciding Hall and Zacher, i.e., that subrogation could not begin until the injured worker had been made whole.

However, the claimant argues that subrogation in this instance specifically violates the second sentence of Article II, Section 16, of the Montana Constitution, which was added during the Constitutional Convention of 1972. The claimant recognizes that in Meech this Court held that entitlement to full legal redress is not a fundamental right. The claimant argues, however, that the present situation is the one instance in which the Montana Constitution does specifically guarantee a full legal redress, which neither the courts nor the legislature may take away.

Section 39-71-414(6)(a), MCA, restricts an injured worker’s right to obtain a full legal redress against third-party tortfeasors. The second sentence of Article II, Section 16, states this cannot be done. The record of the debate at the Convention is clear that this was the delegates’ intent in amending the provision. The second sentence is mandatory, prohibitive, and self-executing and it prohibits depriving an employee of his full legal redress, recoverable under general tort law, against third parties. Finally, as noted above, we recognized and explained this very idea in Meech.

We hold that § 39-71-414(6)(a), MCA, is unconstitutional in light of the clear and direct language of Article II, Section 16, of the Montana Constitution. We hold that in a case of reasonably clear liability where a claimant is forced to settle for the limits of an insurance policy which, together with claimant’s workers’ compensation award, do not grant full legal redress under general tort law to the claimant, under workers’ compensation laws the insurer is not entitled to subrogation rights under § 39-71-414, MCA.

The record before the Workers’ Compensation Court does not contain evidence relative to the extent of the damages, recovery, costs of recovery, and attorney fees so far as the claimant is concerned. We therefore remand the matter to the Workers’ Compensation Court so that the court may make a factual determination as to whether the claimant’s damages and costs of being made whole exceed his workers’ compensation and third-party recovery combined, and for an appropriate order in accordance with the principles stated in this opinion.

Reversed and remanded.

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


text:
    IN THE MATTER OF W.M., Respondent and Appellant.
    No. 91-212.
    Submitted on briefs Feb. 6, 1992.
    Decided March 10, 1992.
    49 St.Rep. 227.
    252 Mont. 225.
    828 P.2d 378.

      For Appellant: Andre Larose, Attorney at Law, Helena.
    For Respondent: Miare Racicot, Attorney General; Kathy Seeley, Assistant Attorney General; Mike McGrath, County Attorney; and K. Paul Stahl, Deputy County Attorney; Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

W.M. appeals the order of the District Court of the First Judicial District, Lewis and Clark County, which involuntarily committed him to the Montana Developmental Center. We affirm.

The issue is whether the District Court erred in finding that W.M. was seriously developmentally disabled and in ordering him committed to the Montana Developmental Center for one year.

W.M. was adopted as an infant and lived with his adoptive family until he was sixteen years old, when he moved to a foster home. After he ran away from the foster home repeatedly, he returned to live at his adoptive home for a short time and then was briefly and unsuccessfully placed in several group homes for developmentally disabled adults. He was first admitted to Montana’s state institution for the developmentally disabled, the Montana Developmental Center (MDC), in 1983, when he was nineteen years old. At the time of these proceedings, W.M. was an athletic twenty-six-year-old man diagnosed as functioning in the severe range of mental retardation.

On May 29, 1990, W.M. moved from MDC into the Jerome House group home for developmentally disabled adults, located in Helena, Montana, and operated by West Mont. That evening at about 10:00 p.m., W.M. ran away from the group home wearing only his night clothes. Although the staff immediately implemented their in-house missing persons policy, they were unable to locate W.M. About an hour later, neighbors from approximately six blocks away returned W.M. to the group home. They said that he had knocked on their door and asked for help.

On June 21,1990, after emptying the garbage outside at 9:45 p.m., W.M. again ran away from the group home. The staff called city police to help locate him. According to police reports, he was seen lying on a highway at about 1:00 a.m. He was apprehended by the police two hours later, miles from the group home, while trying to enter a woman’s mobile home.

On the afternoon of July 29, 1990, residents of Jerome House, including W.M., went to the Last Chance Stampede Fair and Carnival. As they were leaving the fairground at about 4:30 p.m., W.M. ran away from the group. A staff member was able to follow, but not to stop him during the next hour and a half. During his flight, W.M. ran through an empty field and then into a housing subdivision. He trampled through people’s gardens and threw rocks at the staff person who was following him, some of which missed their target and hit homes and other property. He took a bicycle from a garage and rode it (at which point neighbors joined in the chase) and punched the Jerome House staff person when the staff person caught up with him. W.M. entered a vehicle which he found running in a driveway, put it into reverse gear, and ran into the owner’s fifth-wheel trailer. When the vehicle stalled, he resumed running on foot until he was apprehended and physically subdued by police officers about a quarter mile from the accident.

W.M.’s July 29, 1990 run resulted in approximately $5,000 worth of damages, two misdemeanor and two felony charges against him, and a petition by a deputy county attorney that he be detained and treated at MDC. At the hearing held before W.M. was committed to MDC, the District Court heard the following evidence:

Glen Cuchine, an MDC employee who qualified as a “professional person” under § 53-20-102(7), MCA (1989), testified that he had evaluated W.M. pursuant to the District Court’s order. He filed with the court his written conclusion that W.M. was seriously developmentally disabled and that the most appropriate placement for him was MDC. Cuchine testified that W.M.’s running behavior was of longstanding duration and had occurred both in group homes and at MDC. He testified that he was not aware of a group home in the state that had enough space or staff to handle W.M.’s running behavior, but that MDC had the resources to handle the behavior.

Daphne Crosbie, an employee of the Montana Department of Social and Rehabilitation Services who handled placement of developmentally disabled persons throughout the state, testified that in her opinion there was no group home in the state where a placement was available and appropriate for W.M. She testified that, at Jerome House, “I don’t think they have the staffing capability given what he needs when an incident occurs, a running incident.”

The habilitation coordinator for West Mont, Jan Paulsen, testified that when W.M. left on his May 29 run there was only one staff person on duty. When he went on his second run, his leaving caused another resident of the group home to become “very upset” and “highly aggressive,” which occupied the attention of the staff and led them to call the police to locate W.M. She testified that the staff at West Mont felt that the only way they could successfully serve W.M. would be if they had the ability to lock him in the house, and that this would pose a risk to other persons in the group home. She testified that they would also need a registered nurse on staff to administer a shot intermuscularly, and perhaps mechanical restraints, which would require the hiring of additional staff. She further testified that because these things were not feasible,

if [W.M.] came back to the Jerome House we would allow him to run, we would probably not be able to follow him, and we would just have to let the city police deal with it and let [W.M.] be at large in the community.

She testified that W.M. was on medication for frontal lobe seizures and that when persons have seizure activities they are not in control of their physical movements or their mental capabilities. She also testified that, following a run, W.M. did not remember his actions on the run.

Did the District Court err in finding that W.M. was seriously developmentally disabled and in ordering him committed to MDC for one year?

Section 53-20-103(12), MCA (1989), provides the following definition of “seriously developmentally disabled:”

developmentally disabled due to developmental or physical disability or a combination of both, rendering a person unable to function in a community-based setting and which has resulted in self-inflicted injury or injury to others or the imminent threat thereof or which has deprived the person afflicted of the ability to protect his life or health.

Civil commitment for any purpose constitutes “a significant deprivation of liberty that requires due process protection.” Addington v. Texas (1979), 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323, 330-31. As a result, clear and convincing evidence is the standard of proof in a civil commitment proceeding. Addington, 441 U.S. at 433.

W.M. cites Youngberg v. Romeo (1982), 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28, as authority that he has a constitutional right to receive minimally adequate habilitation and treatment necessary to afford him freedom from involuntary commitment. In doing so, he equates “freedom from undue restraint,” Youngberg, 457 U.S. at 319, with a right to community placement. The holding in Youngberg is not that broad. In Youngberg, the Court addressed the substantive due process rights of involuntarily committed retarded persons within the institution. The Court held that an involuntarily committed person “enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.” Youngberg, 457 U.S. at 324. Several United States Circuit Courts of Appeal have held that there is no constitutionally-founded right of developmentally disabled persons to receive treatment in a community setting. Gieseking v. Schafer (W.D. Mo. 1987), 672 F.Supp. 1249, citing cases from the Second, Third, Fifth, and Seventh Circuits.

W.M. points out the statutory preference for community placement over institutionalization of developmentally disabled persons in Montana. Section 53-20-101, MCA. But that preference does not create an absolute right to community placement. The preference for community-based settings is to be given “whenever possible”. Section 53-20-101(2), MCA.

W.M. claims that if the behavior management program used with him at MDC had been used in the group home, the placement would have been successful. On this basis, he maintains that it has not been proven that he was unable to function in a community-based setting.

The record reveals several immediate problems with that argument. Jan Paulsen from West Mont testified that

[t]he part of the program that we did not implement was the punishment part. The part that would decelerate the behaviors. Taking away his tokens, his money, and physically restraining him, possibly mechanically restraining him. We are unable to initiate a program of that level of punishment until we have gone through a base line period and a reinforcement period.

In other words, Jerome House was unable to immediately use all components of the behavior management program used at MDC.

According to the written copy of the MDC program which was admitted into evidence, another part of the program used at MDC was an “accompanied walk with a staff member” when W.M. exhibited antecedent behaviors or tried to run away. This part of the program would not be feasible with one staff person on duty at the group home, as was the case on the occasion when W.M. first ran away. Also, Glen Cuchine from MDC testified that when W.M. ran from that facility, he was able to free up a number of staff persons to go find him. Given the level of staffing at the group home, that procedure was clearly not always possible in that setting.

We conclude that after hearing the above testimony, it was not necessary that the District Court hear further testimony on the failure of the group home to duplicate the behavior management program used with W.M. at MDC.

W.M. points out that the emergency exit procedure set out in administrative mies at DD Policy 481.2 was not followed. That policy relates to administrative dismissals from group home programs due to client behaviors. In contrast, this was a judicial proceeding initiated by a deputy county attorney, following the filing of criminal charges against W.M.

The petition to commit W.M. to MDC was filed under § 53-20-121, MCA (1989). That section allows a county attorney, at the request of a professional person, to file a petition alleging that a respondent is developmentally disabled and in need of developmental disability services. Section 53-20-122, MCA (1989), provides that, if the district court finds probable cause, it shall direct a professional person to examine the respondent and to make an inquiry concerning the circumstances of the case.

Section 53-20-123(1), MCA(1989), requires the professional person to report to the court in writing on whether the respondent is developmentally disabled and to make a recommendation for evaluation and treatment including an opinion on whether institutional or community-based services are required. That statute requires that the recommendation as to placement be based on consultation with the Department of Institutions and the Department of Social and Rehabilitation Services, and that the two departments develop written policies to implement this requirement. Section 53-20-125, MCA (1989), provides that if the professional person concludes that the respondent is seriously developmentally disabled and recommends treatment and habilitation in a residential facility on an extended basis, the professional person shall file the written recommendation and report with the court and shall request that the court order the admission.

The record demonstrates that all of the procedural requirements of the above statutes were met. In addition, the petition for commitment advised W.M. of his procedural rights enumerated at § 53-21-115, MCA, as made applicable to developmentally disabled persons under § 53-20-112, MCA (1989).

In light of the unanimous opinion of the witnesses who testified at the commitment hearing that W.M. could not be served in a presently-existing group home setting, we hold that the District Court’s determination that W.M. is seriously developmentally disabled and its decision to commit him to MDC are supported by clear and convincing evidence. W.M. has not shown that his procedural or substantive due process rights were violated. The order committing W.M. to MDC is affirmed.

JUSTICES HARRISON, GRAY, HUNT, TRIEWEILER, McDONOUGH, and WEBER concur.


author: JUSTICE McDONOUGH

text:
    LORRAINE KNIGHT and THE ESTATE OF FORD KNIGHT, SAM MILLER and KRISTINE MILLER, LOIS BLEVINS and THE ESTATE OF KENNETH BLEVINS, RONALD BLOOMQUIST and KARI BLOOMQUIST, RICHARD BORDER and SONJA BORDER, VIRGINIA CLINKER and THE ESTATE OF CHARLES CLINKER, KARL COLEMAN and KAREN COLEMAN, WAYNE HIETT and CORA HIETT, THOMAS HOSHAW and DOROTHY HOSHAW, WAYNE KNUTSON and DOROTHY KNUTSON, PEGGY KURTZ, ROBERT MULLENDORE and TANA MULLENDORE, JAMES MUNRO and NANCY MUNRO, KEVIN MURPHY and JUDY MURPHY, LEON SPITZ and CATHY SPITZ, THOMAS TAYLOR and JOANNE TAYLOR, GORDON SPRING and PATTI SPRING, THERESA COX, Plaintiffs and Appellants, v. The CITY OF MISSOULA, the County of Missoula, Defendants and Respondents.
    No. 91-307.
    Submitted on briefs Dec. 31, 1991.
    Decided March 10, 1992.
    As Modified on Denial of Rehearing April 2, 1992.
    49 St.Rep. 230.
    252 Mont. 232.
    827 P.2d 1270.

      For Appellant: William C. Watt, Mullendore and Watt, Missoula.
    For Respondent: Sara M. Power, Gough, Shanahan, Johnson & Waterman, Helena; Jim Nugent, Missoula City Attorney, Missoula.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Plaintiffs, Lorraine Knight, et al. (Knight), appeal from an order of the Fourth Judicial District, Missoula County, granting summary judgement in favor of the defendant, City of Missoula. Knight initiated nuisance and constitutional claims against the City of Missoula seeking closure of a dirt road and damages for injuries claimed to result from the creation and use of the dirt road. The District Court dismissed all of Knight’s claims as a matter of law. We affirm in part, reverse in part, and remand for further proceedings.

Knight raises the following issues for our review:

1) Did the District Court err by dismissing Knight’s 42 U.S.C. § 1983, claim?

2) Did the District Court err by dismissing Knight’s inverse condemnation claim?

3) Did the District Court err by dismissing Knight’s nuisance claim?

This case involves a dirt road, currently known as Pineridge Drive, that was cut through a park at the end of Knight’s road, Takima Drive, in 1957. Both Takima and Pineridge Drive lie within the plat of the “Far Views Homesites, Missoula County, Montana, Addition No. 1”, which was platted and approved September 21, 1945. The 1945 plat dedicates the area in which Pineridge Drive lies as Hemayagen Public Park. A 1955 replat, titled “Pattee Canyon Addition No. 2, to Far Views Homesites”, shows Takima Drive as a dead-end street. Pineridge Drive first appears in a replat entitled “Far View Homesites, Addition G-l” approved December 19, 1957. Pineridge Drive remained entirely within the County of Missoula until January 6, 1958, when by resolution No. 2000, the City of Missoula annexed a portion of land through which the road passes.

Knight contends that the 1957 dedication of Pineridge Drive was approved in violation of substantive and procedural laws. Several affidavits offered by residents of Takima Drive maintain that when the road was initially made, they were given assurances that it would be temporary. No formal actions were taken by residents of Takima Drive that the road was illegal and should be closed prior to October 2, 1984, when this action was filed. On June 12, 1989, the Missoula City Council held a public hearing and voted 11-1 to deny a closure petition made by Takima residents.

There is evidence to support that Pineridge Drive has created increased traffic, dust, noise, and runoff problems. These problems allegedly have caused a variety of health problems, physical danger, and the loss of use and enjoyment of the plaintiffs’homes and adjacent property. Knight contends that because the road was illegally established it should be permanently enjoined and that the plaintiffs are entitled to damages for the road’s continued use.

I.

Knight alleges that Pineridge Drive was illegally created because it runs through a public park and there was a failure to provide public notice and/or a public hearing prior to vacating a portion of the park and establishing the road. Furthermore, Knight alleges that the road was created by the developer without approval from any authority. The alleged illegality of the road and the dust, drainage, traffic and safety problems allegedly associated with the road are argued to constitute interference with the Knights’ Fourteenth Amendment right to enjoy property. As such, Knight claims, the creation of and the City’s refusal to close the road are actionable under 42 U.S.C. § 1983, which provides that every person who under color of state law, deprives another of rights secured by the U.S. Constitution or federal law, is liable for damages in an action at law or in equity.

The District Court held that any challenges regarding creation of the road are barred by the statutes of limitations. The court reasoned that the cause of action against creation of the road accrued against the City of Missoula in 1958 when annexation proceedings were completed. Because twenty seven years passed from the time this action accrued until the time this action was filed, in 1984, the action was determined to be barred. Furthermore, the District Court ruled that Knight presented no admissible evidence of facts necessary to raise a genuine factual dispute regarding the elements of a § 1983 claim and thereby the claim failed as a matter of law.

Section 27-2-102(l)(a), MCA, provides that a claim or a cause of action accrues when all elements of the claim exist or have occurred, the right to maintain an action on the claim is complete and a court is authorized to accept jurisdiction. Section 27-2-102(3), MCA, states:

The period of limitation does not begin on any claim or cause of action for an injury to person or property until the facts constituting the claim have been discovered

Statutes of limitation commence to run when the cause accrues or, at latest, on date of discovery of facts which would give rise to cause of action. Masse v. State Department of Highways (1983), 204 Mont. 146, 664 P.2d 890. Section 1983 claims accrue when the plaintiff knows of the injury which is the basis for the action. Harvey v. Pomroy (D. Mont. 1982), 535 F. Supp. 78, 81.

In regards to Knight’s claims arising from the creation of the road, the cause of action accrued when the road was created. Affidavits submitted by Knight indicate the Takima residents were aware of the creation of the road even as the bulldozer was at work. We agree with the District Court that the action against the City accrued at the time the City annexed the road. Section 27-2-207, MCA, is the statute of limitations for actions involving the injury to real property, and provides that an action must be brought within two years from the time the action accrues.

Knight offers evidence that representations were made to several Takima residents that the road was temporary in order to aide in construction of other houses in the sub-division. Montana has recognized the doctrine of fraudulent concealment as tolling the statute of limitations until the cause of action is discovered or could have been discovered through due diligence. Johnson v. St. Patrick’s Hospital (1966), 148 Mont. 125, 129, 417 P.2d 469. However, there is no evidence nor claim of fraud presented in this action. When construction was completed, and thereafter, the Takima residents were aware of and continued to complain of the creation of the road and the problems arising therefrom. These problems are the facts upon which Knight now bases the § 1983 claim.

We conclude that Knight’s § 1983 claim arising from the alleged illegal creation of Pineridge Drive is barred by § 27-2-207, MCA. We further conclude that there was no fraudulent concealment tolling the statute of limitations.

Turning now to the maintenance of and refusal to close Pineridge Drive, Knight alleges that the City of Missoula acted in an arbitrary and capricious manner violating the guarantees of substantive due process and Knight’s constitutional right to enjoy property. Knight contends that the continued use of Pineridge Drive and failure to close the road are actions committed under the color of state law, deprives the Takima residents of property rights guaranteed by the Fourteenth Amendment and therefore is actionable under § 1983. We disagree.

The United States Supreme Court, in companion cases construing the applicability of 42 U.S.C. § 1983, to negligence actions, held that the due process clause is not implicated by the negligent act of an official causing unintended loss to life, liberty or property. Daniels v. Williams (1985), 474 U.S. 327, 328; Davidson v. Cannon (1985), 474 U.S. 344, 347. Essentially, when state tort law remedies are held to satisfy due process requirements in negligence actions, a § 1983 action does not rise. However, if the challenged government action is so egregious, and “shocking to the conscience” so as to constitute a depravation of fundamental due process, the availability of a state remedy does not bar federal relief under § 1983. Rutherford v. City of Berkeley (9th Cir. 1986), 780 F.2d 1444, 1448. The Ninth Circuit has held that:

To establish a violation of substantive due process, the plaintiffs must prove that the government’s action was “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare” (citations omitted) Sinaloa Lake Owners Association v. City of Simi Valley (9th Cir. 1989), 882 F.2d 1398, 1407.

In the case at bar, we do not find the actions of the City of Missoula to be egregious, shocking to our conscience, arbitrary nor capricious. To the contrary, the City held an open public meeting where testimony was received both in support of and against the proposed resolution to close the road. After some debate, the City Council voted down the request to close Pineridge Drive. Knight was afforded opportunity to be heard and the City Council appears to have carefully considered the issue in the context of promoting the general public welfare.

The issue regarding the continued use and maintenance of Pineridge Drive is merely a question of negligence not giving rise to a federal claim under § 1983. Furthermore, Knight has available adequate state remedies that pursuant to this opinion may be sought. We conclude that all claims under 42 U.S.C. § 1983, should be and are dismissed.

II.

In the second amended complaint, Knight alleged that: the interference with the use and enjoyment of Plaintiffs’ property resulting from the construction, use and refusal to close the dirt road constitutes a taking and damage to Plaintiffs’ private property without just compensation in contravention of [U.S. and Montana Constitutions] and entitles Plaintiffs to recover damages and expenses of litigation.

The District Court ruled, and for reasons provided above, we affirm that any claim arising from the creation of the road is barred by the statute of limitations. However, there remains the portion of Knight’s claim arising from the existence, the use, and the City’s refusal to close the road. The District Court ruled on the basis of facts presented, and the questions raised thereby, that the takings claim arising from “increased traffic” and the resultant increase in “noise dust and fumes, etc.” was not barred by the statute of limitations as a matter of law. There is evidence that the problems intensified in 1982 when a nearby road was apparently closed for resurfacing. It is a question of fact to be decided by the finder of fact if there was a taking and if that taking occurred within the applicable statute of limitations.

Nonetheless, the District Court ruled that this Court’s holding in Adams v. Department of Highways (1988), 230 Mont. 393, 753 P.2d 846, precludes a finding of a taking without just compensation for increased traffic and the resultant increase in noise, dust, and fumes, etc., when no physical taking has occurred. As such, the District Court granted summary judgment finding that even if all that Knight alleges is true, the City of Missoula is entitled to judgment as a matter of law.

Adams, involved a situation in which the widening of a road caused similar problems of dust, traffic increase and so forth as alleged in the instant case. In Adams, we held that damage caused by the traffic increase was non-compensable and that a taking had not occurred. However, in Adams, we emphasized that our conclusion was based on the facts of that case. Specifically, the property was adjacent to an already improved highway in an area zoned for residential and commercial use. We stated that although there may have been a diminution in value of the property as residences, there was an increased commercial value. Adams v. Department of Highways (1988), 230 Mont. 393, 401. We stated further that:

“Noise, light, vibration, and fumes from traffic on modern four-lane highways are “inconveniences that are reasonably incident to the prosecution of necessary public enterprises’ and as such must be and are borne by the public at large.” (Citation omitted.) Adams, 230 Mont, at 403.

We conclude that the District Court erred in its broad reading and application of Adams to the instant case which involves a dirt road in a residential area and cannot be dismissed as a matter of law on the basis of a potentially increased commercial value. Adams, does not stand for the proposition that all takings claims arising from increased traffic and the effects thereof are to be dismissed as a matter of law. We emphasized that a factual determination was necessary to determine if:

“the interference caused by increased traffic,... is of direct, peculiar and sufficient magnitude to allow for compensation.”

In addition, quoting Nichols on Eminent Domain we added:

“Personal inconvenience or discomfort to the owner or interference with the business conducted on the land is not compensable unless such results are causative factors in the depreciation in value of the land. Adams, 230 Mont, at 399; citing 2ANichols on Eminent Domain Section 6.31[2], pp. 6-221 - 6-222.”

We conclude that Adams, makes clear that there are certain, though limited, circumstances in which problems associated with increased traffic may be compensable under the doctrine of inverse condemnation.

Generally, acts conducted in the proper exercise of a police power do not constitute a taking of property and do not entitle the owner for compensation for any impairment to such property. Yellowstone Valley Elec. Co-op, Inc. v. Ostermiller (1980), 187 Mont. 8, 608 P.2d 491. If state action is a proper exercise of the police power and is directly connected with manners of public health, safety and welfare, a reasonable burden may be imposed on private property. State Department of Highways v. City of Helena, (Mont. 1981), [193 Mont. 441,] 632 P.2d 332, 38 St.Rep. 1283. Section 7-14-4101, MCA, clearly authorizes road construction as a governmental function of a municipality. Setting Knight’s claim of illegal creation aside, there can be no doubt that the City of Missoula has, within its granted powers, the authority to open and close roads in its jurisdiction. However, valid exercise of police power, standing alone, does not prevent an inverse condemnation suit. Knight v. Billings (1982), 197 Mont. 165, 642 P.2d 141.

In Knight, the residents of a residentially zoned street requested a change in their zoning after their street had grown from a quiet, two lane residential area to a five lane commercialized area. The city denied the request and an inverse condemnation suit was brought alleging similar problems of increased traffic, noise and dust. We held that despite the fact the city had validly exercised its powers to widen the road and to deny the request to rezone, the diminution in property value (20-30%) entitled the appellants to compensation. However, our decision was based on the fact that expansion of the road had necessitated the physical taking and compensation for homes immediately across the street.

There remains a factual question of whether or not the alleged increased traffic and resulting problems on Pineridge Drive have caused a depreciation in the value of the Takima residents’ property such that it gives rise to compensation under the standards discussed above.

Rule 56(c), M.R.Civ.P., instructs the court that summary judgment should be granted when:

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

On review, this Court applies the same standard as the district court in reviewing a grant or a denial of a motion for summary judgment. Kronen v. Richter (1984), 211 Mont. 208, 683 P.2d 1315. A party opposing a motion for summary judgment must present facts of a substantial nature; speculative statements are insufficient to raise a genuine issue of material fact. Brothers v. General Motors Corp. (1983), 202 Mont. 477, 658 P.2d 1108.

A property owner may recover in an inverse condemnation action where actual physical damage is proximately caused to his property by a public improvement as deliberately planned and built. Rauser v. Toston Irrigation Dist., 172 Mont. 530, 565 P.2d 632, citing Albers v. County of Los Angeles, 62 Cal.2d 250, 42 Cal.Rptr. 89, 96, 398 P.2d 129, 136; 20 Hastings Law Journal 431. It is implicit in inverse condemnation that the extent of damage be of such a degree as to amount to a taking of an interest in the property damaged. Rauser, 172 Mont. at 539, citing Albers, 398 P.2d at 136. We held in Knight, that the measure to be used for damages in an inverse condemnation action is the change in the fair market value of the property from before to after the condemnation.

The District Court found that Knight offered very little admissible proof of their claim, doubting that enough evidence was presented to raise a genuine factual issue. We have reviewed the record and disagree. Affidavits submitted clearly provide a factual basis for problems associated with traffic, dust and runoff. Furthermore, in Knight’s complaint, it is alleged that “the value of the property is substantially diminished.” Support of this allegation is provided in affidavits which add that Pineridge Drive:

has greatly affected [our] property value

and

we believe that our property has been devalued significantly. There is no question in my mind that anyone looking at buying our property would lower their estimation of its value ...

We conclude that these statements are sufficient to raise a genuine issue of material fact regarding diminution of the property value. Whether or not there has been a diminution in the value of Knight’s property and whether or not the traffic, dust and runoff problems are of a significant magnitude that compensation is due, are questions of fact. Knight has satisfied his burden of introducing evidence that places these questions of material fact at issue.

Therefore, the District Court’s grant of summary judgment denying the inverse condemnation claim is in error and we reverse.

III.

Knight alleges that the creation, continuing use, and lack of maintenance of Pineridge Drive constitutes a public nuisance which is specifically injurious to the plaintiffs. Knight seeks to have the use of the road enjoined and to recover damages. The District Court held that even if the road were to constitute a nuisance, Knight’s claim is barred by the statutes of limitations and the City’s immunity from suit.

The District Court found the applicable statutory period to be two years for injury to property and three years for any torts. The court stated that:

any liability which the City of Missoula might have incurred on the grounds that the road in question is a public nuisance is limited by the applicable Statutes of Limitations to injury, which occurred within the statutory period immediately preceding the filing of Plaintiffs’ original Complaint.

In other words, the court concluded that any injuries sustained, based on a nuisance claim, prior to October 3, 1981, were time barred. Furthermore, the court concluded that § 2-9-111, MCA, provided immunity to the City after its July 1,1977 effective date and therefore any nuisance claim arising after October 3, 1981, was dismissed on this basis.

In nuisance actions, if the nuisance is of a temporary, continuing nature, the statute of limitations is tolled until the source of the injury is abated. Graveley Ranch v. Scherping (1989), 240 Mont. 20, 782 P.2d 371. In contrast, if the nuisance is permanent, the action accrues at the time the cause of the action is discovered. The District Court found that the instant case involved a permanent nuisance because Knight was complaining about the same problems with the road at the time it was built as he complains of 27 years later in this action. We disagree.

We have held that a nuisance is a continuing nuisance when: ... at all times, the City could have abated the nuisance by taking curative action. Since the nuisance was so terminable, it cannot be deemed to be a permanent nuisance as of the creation date ...

Walton v. City of Bozeman (1978), 179 Mont. 351, 356, 588 P.2d 518, 521. In Graveley, we found the presence of exposed lead batteries to be a continuing nuisance because the hazardous situation could have been readily abated at any time by their removal. In Walton, the City of Bozeman relocated an irrigation ditch and constructed a storm sewer which caused annual flooding of plaintiff’s land. We concluded that it was a continuing nuisance because the flooding was terminable by taking curative action such as cleaning the diversion box. Walton, 179 Mont. at 356.

In the instant case, the City could have and may readily abate the problems by closing, paving, or otherwise maintaining Pineridge Drive. Therefore, we conclude that this case involves a continuing nuisance and the statute of limitations is tolled until the nuisance is abated.

The City of Missoula held a public hearing to address the Takima residents’ proposed resolution to abate the alleged nuisance by closing Pineridge Drive. Upon motion, the resolution was denied. The City of Missoula claims that “the language in § 2-9-111, MCA, clearly immunizes the City of Missoula from any claims against it arising out of the actions of its City Council.” Section 2-9-111, MCA, as amended in 1991, provides in pertinent part:

(a) the term “governmental entity” means ... municipalities, and any other local government entity or local political subdivision vested with legislative power by statute;
Immunity from suit for legislative acts and omissions.
(1) As used in this section:
(c)(i) the term “legislative act” means:
(A) actions by a legislative body that result in creation of law or declaration of public policy;
(ii) the term legislative act does not include administrative actions under-taken in the execution of a law or public policy.
(2) A governmental entity is immune from suit for a legislative act or omission by its legislative body ...

There is no dispute that the Missoula City Council is a governmental entity within the meaning of § 2-9-lll,(l)(a), MCA. However, the 1991 amendments to § 2-9-111, MCA, make clear that a governmental entity is no longer immune for all of its actions. Under § 2-9-111, MCA (1991), a governmental entity is immune from suit for its legislative acts or omissions but not for its administrative acts. The statute provides, and we have held, that a legislative act is an action by a legislative body which results in creation of law or declaration of public policy. § 2-9-111, MCA, Dagel v. City of Great Falls (1991), [250 Mont. 224,] 819 P.2d 186, 48 St.Rep. 919. In contrast, the statute provides that an administrative act is one taken in the execution of a law or policy. Section 2-9-lll(l)(c)(ii), MCA.

The City of Missoula and the District Court characterized Knight’s claims in two categories: (1) objections to the manner in which the road was created, and (2) objections to the failure of the City to grant the Takima residents’ desires to close the road. We note that the nuisance claim arises not only from the creation of Pineridge Drive and the denial of the proposed resolution, but also, more accurately, from the manner in which the City has maintained Pineridge Drive.

We have long held that the duty of a city in connection with the maintenance of its streets is an administrative function of the city. Griffith v. City of Butte (1925), 72 Mont. 552, 234 P. 829; Sullivan v. City of Helena (1890), 10 Mont. 134, 25 P. 94; Snook v. City of Anaconda (1901), 26 Mont. 128, 66 P. 756; Ford v. City of Great Falls (1912), 46 Mont. 292, 127 P. 1004.

We have also consistently held that a governmental entity is entitled to no more deference than a private citizen in matters of creating a public nuisance. Murray v. City of Butte (1907), 35 Mont. 161, 88 P. 789; Lennon v. City of Butte (1923), 67 Mont. 101, 214 P. 1101; Walton v. City of Bozeman (1978), 179 Mont. 351, 588 P.2d 518. “There is no doubt that a city is liable for damages with respect to maintaining a nuisance in the same manner as a private person.” Walton, 179 Mont. at 356.

The City of Missoula points to the language of § 27-30-101(2) which states:

Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.

The power to close a road is specifically within the powers granted to the City under § 7-14-4101, and § 7-14-4114, MCA, and as such, the City argues, cannot be deemed a nuisance. However, liability for nuisance cannot be avoided on the ground that a city was exercising governmental powers because when a governmental entity in its method of administration of such powers creates a nuisance it is not exercising the governmental function but is doing something forbidden by law. Speiser, The American Law of Torts, Vol. 2, § 6:14. It is a generally recognized exception to the rule of sovereign immunity that the immunity does not extend to a suit for the abatement of a nuisance. 58 Am. Jur.2d Nuisance, § 55. Furthermore, § 2-9-102, MCA, provides that:

Every governmental entity is subject to liability for its torts... whether arising out of a governmental or proprietary function except as specifically provided by the legislature under Article II, section 18, of The Constitution of the State of Montana.

We conclude that maintenance of Pineridge Drive is an administrative act of the City of Missoula for which § 2-9-111, MCA, provides no immunity. Furthermore, we conclude, consistent with our previous decisions, that a municipality is not immune from nuisance claims.

Section 27-30-101(1), MCA, defines nuisance as follows:

(1) Anything which is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property,... is a nuisance.

Affidavits submitted by Knight state that at least several of the Takima residents are experiencing problems with the increased traffic, dust and runoff, which would give rise to a nuisance claim. Reviewing all of the evidence in a light most favorable to Knight, a prima facie claim of nuisance has been made. Therefore, there is a genuine issue of material fact and summary judgment is inappropriate.

The District court is reversed on this point and this case remanded for further proceedings not inconsistent with this decision.

Affirmed and reversed.

JUSTICES HUNT, TRIEWEILER, GRAY and HARRISON concur.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICK WEBB, a/k/a FREDERICK ROD WEBB Defendant and Appellant.
    No. 91-101.
    Submitted on Briefs September 5, 1992.
    Decided March 19, 1992.
    49 St.Rep. 236.
    252 Mont. 248.
    828 P.2d 1351.

      For Appellant: James A. Manley, Manley Law Offices, Poison.
    For Respondent: Marc Racicot, Attorney General, Carol E. Schmidt, Assistant Attorney General, Helena; Scott B. Spencer, Lincoln County Attorney, Libby.
   JUSTICE GRAY

delivered the Opinion of the Court.

Defendant Frederick Rod Webb appeals the judgment of the Nineteenth Judicial District, Lincoln County, Montana, convicting him of criminal sale of dangerous drugs in violation of § 45-9-101, MCA. This is Webb’s second appeal to this Court. We reversed and remanded the case on appeal from the first trial. State v. Webb (1990), 243 Mont. 368, 792 P.2d 1097. Again, we reverse and remand.

The dispositive issues on appeal, as restated by this Court, are:

1.) Did the District Court err in admitting “other crimes or acts” evidence?

2.) Did the District Court err in admitting certain impeachment testimony of a defense witness?

3.) Did the District Court properly instruct the jury?

4.) Did the District Court err in admitting evidence of drug transactions involving other individuals?

5.) Did the District Court err in admitting opinion testimony regarding the credibility of an informant?

During the summer of 1988, the Lincoln County Sheriff’s Department conducted a drug investigation in the Libby area using Mike Hewson as a temporary undercover agent. This case arises from a drug transaction alleged by Hewson to have occurred on the night of June 27,1988, at the home of Vicki LaCoss. The State charged Webb with selling Hewson methamphetamine (hereinafter, crank) that evening.

Hewson and Webb were both at the LaCoss home on June 27,1988. Webb, Hewson, and LaCoss all agree that Hewson arrived first and that Webb and LaCoss played cribbage for awhile after his arrival. They disagree as to what else happened.

Hewson claims Webb sold him crank, some of which he gave to LaCoss for her participation in arranging the deal. LaCoss and Webb contend that Webb did not sell the crank to Hewson, but that Hewson did give some crank to LaCoss.

The second trial of this action was held October 16, 17, and 18, 1990. The jury found Webb guilty of the offense of criminal sale of dangerous drugs. The District Court sentenced Webb on October 22, 1990, and released him on bond. This appeal followed.

I.

Defendant maintains that the District Court erred in admitting “other crimes or acts” evidence. Hewson testified, on direct examination, that he passed Webb on his way into the site of an earlier alleged drug sale and that a person in the house referred to the drug contact who had just left. Webb argues that this testimony constitutes “other crimes or acts” evidence for which no Just notice was given. State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

We have reviewed the record; it does not contain an objection relating to other crimes or acts evidence under Just. Webb made a motion in limine on February 14,1989, which objected to “any activity allegedly of the Defendant in this matter before June 27, 1988.” The motion objected to an alleged erroneous identification of Webb as more prejudicial than probative; the motion did not center on “other crimes or acts.” Errors not raised at trial cannot be raised on appeal for the first time. State v. Phelps (1985), 215 Mont. 217, 696 P.2d 447; State v. Howie (1987), 228 Mont. 497, 744 P.2d 156.

II.

Defendant also argues that the District Court erred in admitting certain impeachment testimony of a defense witness. LaCoss was an important defense witness from whom the State elicited testimony that she frequented a bar identified as a place where drug dealers congregated, that she sold drugs to Hewson on another occasion, that she associated with known drug dealers, that she was involved in other drug transactions, and that she was an addict at one time. Webb contends that this evidence violates Rules 601-613, M.R.Evid., is irrelevant under Rule 402, M.R.Evid., and constitutes an improper attack on character or improper evidence of other crimes or acts under Rule 404, M.R.Evid.

The trial transcript reveals that no objections were made during the referenced portions of LaCoss testimony. Therefore, based upon the authority cited above, we will not address this second issue.

III.

Defendant next maintains that the District Court improperly instructed the jury by refusing two of his proposed instructions:

Instruction #1: A drug addict informants [sic] testimony should be scrutinized closely to determine whether it is colored in such a way as to place guilt upon a defendant in furtherance of the witness’s own interests.
Instruction #2: The testimony of Informants should be scrutinized closely to determine whether it is colored in such a way as to place guilt upon a defendant in furtherance of the witness’s own interests.

Webb contends that these instructions are correct statements of law as set forth in State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455, and that one of them should have been given.

The State argues that the court, county attorney and defense counsel discussed these two instructions and the county attorney’s concern was that the instructions were too narrow to apply to defense witness LaCoss. On the basis of the discussion, the court gave the following instructions:

INSTRUCTION NO. 2
In determining what the facts are in the case, it may be necessary for you to determine what weight should be given to the testimony of each witness. To do this you should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to indicate whether a witness is worthy of belief. You may consider:
2. Any relation which each witness may bear to the State or to the Defendant, and the manner in which each witness might be affected by the verdict.
INSTRUCTION NO. 3
You have already been instructed that you may consider the manner in which each witness might be affected by the verdict. The fact that a witness is a paid informant or that a witness is a drug addict are factors to be considered by you in the context that the witness might be affected by the verdict.

District courts have broad discretion in formulating jury instructions. This Court reviews jury instructions as a whole. State v. Azure (1979), 181 Mont. 47, 591 P.2d 1125. If the instructions fully and fairly present the applicable law, they will be deemed to be sufficient. State v. Goodwin (1991), 249 Mont. 1, 813 P.2d 953. The defense cannot insist that every nuance of its theory of the case be given to the jury via instructions. State v. Graves (1981), 191 Mont. 81, 622 P.2d 203.

We have reviewed the jury instructions. While they do not contain all the nuances of defendant’s proposed instructions, the instructions given accurately reflect applicable law and are, therefore, sufficient. We hold that the District Court properly instructed the jury.

IV.

Defendant argues that the District Court erred in admitting evidence of drug transactions involving other individuals and locations. Hewson testified at some length regarding various other drug dealers in the Libby area and their possible connections to Webb. Hewson also testified that Webb frequented certain taverns which were known to be drug hangouts and that Hewson passed Webb on his way to another drug deal at which he was told that the drug contact had just left. Hewson also testified that juveniles were present at the aforementioned drug sale site. Defense counsel objected repeatedly to the relevancy of this line of testimony and was repeatedly overruled. He was then granted a continuing relevancy objection to the entire line of inquiry. Webb argues that this line of testimony was irrelevant to any issue in the case and prejudicial in allowing the jury to associate him with a drug-selling ring and to find him guilty by association.

The State argues that the testimony was relevant to establishing Vicki LaCoss as a drug user who set up drug deals with drug sellers, to how Hewson met Webb, and to why Hewson was at the LaCoss home on June 27,1988, at the same time as Webb. The State further argues that the probative value of this testimony is far greater than any prejudice to Defendant, especially in light of the court’s instruction that “mere proximity to a drug, mere presence, or mere association with the person who does sell the drug is insufficient alone to support finding of sales.” District courts have broad discretion to determine whether evidence is relevant. State v. Sadowski (1991), 247 Mont. 63, 805 P.2d 537. Relevancy determinations by the district court will be overturned by this Court only where the district court has abused its discretion. State v. Oman (1985), 218 Mont. 260, 707 P.2d 1117.

Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, M.R.Evid. Thus, the focal point of relevancy determinations is whether the evidence relates to a fact of consequence to a determination of the case. Evidence of matters not pertaining to those at issue is irrelevant and inadmissible. Rule 402, M.R.Evid.

Webb was charged with “criminal sale of dangerous drugs” in violation of § 45-9-101, MCA. The facts that are “of consequence” in the case at bar are whether Webb and Hewson were at the LaCoss residence in Libby, Montana, on June 27, 1988, and whether Webb sold Hewson crank at that time and place. Evidence having a tendency to make the existence of any of these facts more or less probable is relevant.

Hewson’s testimony regarding Webb’s associates and their drug related activities, the presence of juveniles at a drug sale site not at issue in this action, and places Webb may have spent time on occasion does not relate to and is not probative of any “fact that is of consequence” in this case. When a defendant is put on trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone. State v. Jackson (1979), 180 Mont. 195, 589 P.2d 1009.

We conclude that the testimony objected to was irrelevant and inadmissible under Rule 402, M.R.Evid. Further, given the prejudicial nature of the evidence vis-a-vis the explosiveness of the issue of drugs in todays society, the court’s error was not harmless. Therefore, we hold that the District Court abused its discretion and committed reversible error in admitting Hewson’s testimony concerning other drug dealers, buyers, and transactions.

V.

Defendant next maintains that the District Court erred in admitting opinion testimony regarding the credibility of an informant. Lincoln County Sheriff’s Department Detective Donald H. Bernall testified on behalf of the State during rebuttal. He was asked:

Q: Okay. What is your opinion as to Mike Hewson’s truthfulness or what is your opinion as to his truthfulness when he is discussing the drug sales that he is undercover on?
A: That he was telling the truth.

Webb objects that this testimony violates numerous evidentiary rules, including Rule 608(a), M.R.Evid., which reads:

Evidence of character and conduct of witness.
(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

It is clear that Rule 608(a) allows opinion evidence in support of the credibility of a witness only after the witness character for truthfulness has been attacked. Thus, the initial question is whether Hewson’s character was attacked by the defense before the State rehabilitated him with opinion testimony on rebuttal.

Webb asserts that he did not attack Hewson’s character for truthfulness. Webb contends that it was the State which put Hewson’s character into evidence by having him admit, on direct examination during the State’s case-in-chief, that he was a drug addict and by its cross-examination of Webb himself when it asked whether Webb’s testimony essentially came down to Mike Hewson lying, and Webb responded “That is correct.”

The State contends that Hewson’s character for truthfulness was attacked on numerous occasions in testimony elicited by the defense, not in the form of opinion or reputation, but “otherwise” under Rule 608(a), M.R.Evid. These attacks included testimony by LaCoss that Hewson had track marks on his arms and was acting in a bizarre manner on the night of June 27, 1988, and Hewson’s responses on cross-examination regarding his drug of choice and with whom he dealt when buying drugs. The State argues that any testimony relating to Hewson’s use of drugs constituted an attack on his character for truthfulness.

A complete review of the record reveals that the defense did not offer opinion or reputation evidence about Hewson’s character for truthfulness or “otherwise” attack his veracity as part of its own case. It is true that defense witnesses disputed Hewson’s version of the events of June 27 and offered contradictory testimony. But other courts have held that neither contradictory evidence nor extensive cross-examination constitutes an attack upon a witness character for truth and veracity. State v. Deach (Wash.Ct.App. 1985), 699 P.2d 811; United States v. Jackson (5th Cir. 1979), 588 F.2d 1046, cert. denied, 442 U.S. 941 (1979). We agree; to conclude otherwise would result in admitting opinion testimony regarding veracity in virtually every case. We are not prepared to do so. Therefore, we conclude that the defense did not attack Hewson’s character for truthfulness.

While the defense did not place Hewson’s character for truthfulness in issue, the State did so. Hewson testified regarding his drug habit on direct examination by the prosecution. During cross-examination of the defendant, the State asked Webb: “In essence you are saying that Hewson is lying?” Webb answered: “That is correct.” Having put Hewson’s truthfulness at issue twice, the State then offered opinion testimony that he was truthful. We recently ruled that the State cannot itself open the door for opinion testimony regarding the truthfulness of its own witness. In a child abuse case, an expert witness was permitted to testify to the credibility of the alleged victim. We stated:

The State, however, had opened the door to this line of questioning by bringing the matter up on direct. Because Robby’s credibility was not called into question by defendant, the District Court committed reversible error by allowing the psychotherapist to comment directly on his trustworthiness.

State v. Harris (1991), 247 Mont. 405, 410, 808 P.2d 453, 456.

The State also argues that defense counsel asked Hewson questions about his drug use during a “slashing” cross-examination, thus enabling the State to present evidence to rehabilitate its witness. United States v. Lechoco (D.C. Cir. 1976), 542 F.2d 84; Medical Therapy Sciences, Inc. (2d Cir. 1978), 583 F.2d 36. A “slashing” cross-examination includes questioning which carries strong accusations of misconduct and bad character which a witness denial will not remove from the jury’s mind. E. Cleary, 3 McCormick on Evidence, §49 (1984). In Medical Therapy Sciences, the court admitted rehabilitating character evidence because the cross-examination of the witness included “sharp” and accusatory questioning about prior convictions which were predicated on activities characterized as fraudulent.

A review of the record in the instant case reflects that defense counsel asked Hewson three questions involving Hewson’s drug use and drug dealers with whom Hewson dealt. Hewson did not deny the drug use. The total cross-examination preceding and prefatory to the specific events of June 27,1988, covers only one and one-half pages. The questions were neither sharp nor accusatory, and do not constitute a slashing cross-examination of Hewson.

The State contends that Hewson’s testimony on direct examination concerning his drug use did not put his character for truth at issue but was predicated on the State’s right to anticipate defense impeachment so that a jury would not surmise that the State was attempting to hide information. Medical Therapy Sciences, 583 F.2d at 39. The State is correct that it could anticipate impeachment testimony. But here, the State takes an approach that can only be characterized as of the “have its cake and eat it too” variety: it maintains that its questions regarding Hewson’s drug use did not call his truthfulness into issue while at the same time contending that evidence regarding drug use elicited by the defense inherently puts a person’s character for truthfulness at issue.

The State, having opened the door to Hewson’s veracity, was then allowed to put the full weight of Detective Bemall’s drug enforcement experience behind his opinion testimony regarding Hewson’s credibility. Under the facts of this case and the strictures of Rule 608(a), M.R.Evid., we hold that the District Court erred in admitting this opinion testimony.

Reversed and remanded.

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