author: MR. JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DANNY LEROY MARTIN, Defendant and Appellant.
    No. 86-358.
    Submitted March 5, 1987.
    Decided April 28, 1987.
    736 P.2d 477.

      Mary Ann Sharon, Dillon, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Kimberly A. Kradolfer, Asst. Atty. Gen., Helena, Thomas R. Scott, Co. Atty., Dillon, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mr. Martin appeals his conviction of burglary, felony theft, and criminal mischief. The District Court for the Fifth Judicial District, Beaverhead County, sentenced him to 20 years in prison, including 10 years as a persistent felony offender. We affirm.

The issues are:

1. Did the District Court abuse its discretion when it ruled that the State’s fingerprint experts were qualified to testify?

2. Does sufficient evidence corroborate the accomplice testimony?

3. Did the District Court act improperly and in violation of Rule 614(b), M.R.Evid., when it asked certain questions during the trial?

4. Was Mr. Martin denied effective assistance of counsel at sentencing?

In November 1984, a break-in occurred at Parkview Junior High School in Dillon, Montana. A window panel was removed on an outside door and the doorknobs on several classrooms were smashed. The following day, school officials discovered that a microwave oven, an undetermined amount of cash, and several hand calculators were missing. The Dillon police dusted the area for fingerprints.

James Reinke later confessed to the crime and implicated defendant Mr. Martin. Mr. Reinke testified at Mr. Martin’s jury trial. The State also presented testimony by two expert witnesses who identified as Mr. Martin’s a fingerprint found on a cash box in the school principal’s office. Other persons testified that Mr. Martin had no permissive or rightful basis for being in the school. Mr. Martin presented testimony from a third expert witness, who contradicted the prosecution’s experts, stating that the fingerprint on the cash box could not be matched to Mr. Martin’s fingerprint. The jury found Mr. Martin guilty.

At his sentencing hearing, Mr. Martin requested that his court-appointed counsel be dismissed. The District Court granted the request and proceeded with the hearing, with the dismissed counsel remaining in the courtroom in a standby capacity.

I

Did the District Court abuse its discretion when it ruled that the State’s fingerprint experts were qualified to testify?

Rule 702, M.R.Evid., provides:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

Mr. Martin argues that the two police officers who testified as the State’s experts were not qualified as fingerprint experts. He says their education and experience were too limited to qualify them as experts in this field.

One of the police officers who testified on behalf of the State had dusted for fingerprints at the school. He was the assistant chief of police in Dillon. He testified that he had received basic training at the Montana Law Enforcement Academy. He had also completed 40 hours of training on fingerprint classification and 40 hours of training in fingerprint identification. He had testified as an expert in three previous court proceedings. He had lifted from various surfaces at the school approximately 20 fingerprints which he thought might be of value. After Mr. Reinke confessed and implicated Mr. Martin, the officer compared Mr. Martin’s fingerprints with the fingerprints taken from the school. He demonstrated 12 points of comparison between Mr. Martin’s fingerprint and the print from the cash box at the school, and testified that he concluded that the prints belonged to the same person.

Mr. Martin presented testimony by his own expert witness. This witness had extensive fingerprint identification experience. He was retired from the FBI and from the Montana Identification Bureau, is a Certified Fingerprint Expert, and has taught fingerprint identification at the Montana Law Enforcement Academy. He testified that there were at least 13 inexplicable differences between the fingerprint from the cash box and Mr. Martin’s fingerprint.

The other police officer testifying as an expert witness for the State appeared on rebuttal. He was also a Montana Law Enforcement Academy graduate and had also taken classes in fingerprint classification and latent identification. He had also previously testified as an expert on fingerprint identification. He testified that he had verified the first officer’s conclusion that the print taken from the cash box at the school was Mr. Martin’s.

The transcript shows that Mr. Martin’s counsel did an excellent job of bringing out to the jury the limited experience of the police officers in fingerprint identification as compared with the extensive experience of the defense’s expert. The jury was presented with a clear conflict in the evidence.

The determination that a witness is an expert is within the discretion of the district judge and will not be disturbed absent an abuse of discretion. Foreman v. Minnie (Mont. 1984), [211 Mont. 441,] 689 P.2d 1210, 1212, 41 St.Rep. 1478, 1480. This Court has previously allowed police officers to testify as experts in such areas as accident reconstruction. The degree of a witness’ qualifications affects the weight of the expert’s testimony, not its admissibility. State v. Berg (Mont. 1985), [215 Mont. 431,] 697 P.2d 1365, 1367, 42 St.Rep. 518, 520. The jury was instructed that it could weigh any expert testimony and reject it entirely if it concluded the opinion was unsound.

We conclude that both of the State’s witnesses had sufficient training and experience to qualify them to testify as experts on fingerprint identification. While their experience and training were not as extensive as that of the defense’s expert, the court properly left it within the jury’s province to weigh all of the expert testimony. We hold that the District Court was within its discretion in allowing the State’s two witnesses to testify as experts.

II

Does sufficient evidence corroborate the accomplice testimony?

The testimony of Mr. Reinke, as an accomplice, must be independently corroborated in order for Mr. Martin’s conviction to be upheld. Section 46-16-213, MCA, provides:

“A conviction cannot be had on the testimony of one responsible . . . unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible . . . tends to connect the defendant with the commission of the offense.”

The corroborating evidence presented by the State in this case was the expert testimony regarding the fingerprint. Mr. Martin says this is not sufficient because the fingerprint and the testimony about it have no probative value.

Since Mr. Martin’s argument is premised on his position in Issue I, which we have rejected, his argument here fails. We hold that the evidence regarding the fingerprint on the cash box was sufficient to corroborate the testimony of Mr. Reinke. The fingerprint evidence found under the circumstances of this case is sufficient to sustain a conviction. State v. Lucero (Mont. 1984), [214 Mont. 334,] 693 P.2d 511, 41 St.Rep. 2509; People v. Ray (Colo. 1981), 626 P.2d 167.

Ill

Did the District Court act improperly and in violation of Rule 614(b), M.R.Evid., when it asked certain questions during the trial?

Rule 614(b), M.R.Evid., provides:

“The court may interrogate witnesses, whether called by itself or a party; provided, however, that in trials before a jury, the court’s questioning must be cautiously guarded so as not to constitute express or implied comment.”

Mr. Martin asserts that the District Court violated this rule on three separate occasions during his two-day trial. The incidents occurred during the testimony of Mr. Reinke, of the State’s chief expert witness, and of the defense’s expert witness.

The first alleged impropriety occurred while Mr. Reinke was on the witness stand. Mr. Reinke was testifying about what he and Mr. Martin did as they proceeded through the school after breaking in. During the testimony, the judge asked, “Didn’t you boys have a flashlight?” The defense argues that this question from the court tended to give credibility to the witness’ testimony, in the minds of the jury.

This Court has made it clear that where a defendant does not object at trial to the remarks and conduct of the trial judge, the issue will not be considered upon appeal. State v. Lloyd (Mont. 1984), [208 Mont. 195,] 676 P.2d 229, 231, 41 St.Rep. 263, 265. No objection was made to the District Court’s remark until it was raised in this appeal. The defense contends that “[a]n objection [during trial] by Mr. Martin’s counsel to the most damaging comment by the presiding judge would clearly have created more prejudice on the part of the jury.” That view does not relieve the obligation of counsel to object at trial.

Further, the judge’s question did not constitute plain error. While the question could possibly be viewed as a reflection of the judge’s belief in what Mr. Reinke stated, it does not necessarily imply belief in the testimony. We conclude that it does not constitute express or implied comment on the evidence.

The second comment raised as grounds for a new trial occurred during cross-examination of the State’s fingerprint expert. The witness was asked whether he had sought a second opinion on his conclusion that the print on the cash box matched Mr. Martin’s. He answered, “Yes, I did. I asked Deputy Reeder if he would take a look at the enlargements that I had made.” The court asked, “And?” Defense counsel objected that the court’s question was improper, but the District Court instructed the witness to answer, and he did.

Nothing in the rules of evidence prohibits a trial judge from asking questions to clarify testimony. State v. Bier (1979), 181 Mont. 27, 34, 591 P.2d 1115, 1119. We conclude that the court’s question did not constitute an express or implied comment upon the evidence, but was in the nature of an effort to clarify the testimony.

The third allegedly improper question by the judge occurred during the testimony of the defense’s expert witness. The witness testified at length on his qualifications and on the subject of comparing fingerprints. During the questioning, the trial judge asked, “I gather this art of fingerprint identification is not an exact science, huh?” The witness acknowledged that the science is not exact.

Again, defense counsel failed to object at trial to the court’s question. Further, the idea that fingerprint identification is not an exact science applies to the testimony of the State’s expert witnesses as much as it does to the testimony of the defense’s witness. Mr. Martin has not shown reversible error. We must, however, caution the District Court that its comments are close to the line of impermissible comment on the evidence and are the type of remarks which could be a basis for reversal.

IV

Was Mr. Martin denied effective assistance of counsel at sentencing?

Mr. Martin points out that a criminal defendant is entitled to the assistance of counsel at a sentencing hearing. His position appears to be that after his trial counsel was dismissed at the beginning of the sentencing hearing, the remainder of the hearing should have been postponed until new counsel was appointed for him.

An indigent defendant may, by his actions, make a knowing and intelligent waiver of his right to an attorney, State v. Harvey (1979), 184 Mont. 423, 430, 603 P.2d 661, 665, but he does not have the right to choose appointed counsel. State v. Lopez (1980), 185 Mont. 187, 192-93, 605 P.2d 178, 181. Prior to the sentencing hearing, Mr. Martin filed a pro se motion for new trial with over 50 pages of supporting documents in which he claimed that his counsel was ineffective. At the sentencing hearing, the motion was discussed and the judge relieved that attorney from any further duty to represent Mr. Martin. The court appointed the same attorney as standby counsel for Mr. Martin, with the understanding that Mr. Martin could consult the attorney during the remainder of the hearing if he wished to do so.

During the remainder of the sentencing hearing, the court invited Mr. Martin to question witnesses and to object to the introduction of evidence. Mr. Martin did not question any of the witnesses or object to any evidence introduced, but stated that he wished to have new counsel to pursue the claims he set forth in his motion for a new trial. The District Court explained that the matters raised in the motion for a new trial could be properly raised on appeal, not at the sentencing hearing. Mr. Martin’s detailed motion for a new trial and his extensive supporting memorandum, along with the presentence investigation report, support the court’s conclusion that Mr. Martin is thoroughly familiar with the criminal justice system.

We conclude that Mr. Martin was not denied effective assistance of counsel at his sentencing hearing. The judgment of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, GULBRANDSON and HUNT concur.


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    RONALD W. BARNES, Plaintiff and Appellant, v. DONALD KOEPKE and William Big Springs, Commissioners of Glacier County and Glacier County, a Political subdivision of the State of Montana, Defendants and Respondents.
    No. 86-416.
    Submitted Feb. 9, 1987.
    April 28, 1987.
    736 P.2d 132.

      Trieweiler Law Firm, Terry N. Trieweiler argued, Whitefish, for plaintiff and appellant.
    Alexander & Baucus, Gary M. Zadick argued, Great Falls, for defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal arises from a motion to dismiss granted defendants by the District Court of the Ninth Judicial District in and for Glacier County. Plaintiff appeals. We affirm.

Glacier County owns a hospital and nursing home complex located in Cut Bank, Montana. From 1964-1984, the County leased these premises to the Glacier County Hospital Association, a non-profit corporation which under the terms of the lease became responsible for the operation of the hospital and nursing home. This agreement originally ran for five years and was renewed in writing in 1969 and 1974; from 1979 to 1984, the agreement was renewed orally year to year.

In July 1981, the Hospital Association entered into a contract with Brim and Associates to provide management services to the complex. Brim and Associates hired plaintiff, Ronald Barnes, to serve as the administrator of the facilities.

However, Barnes and much of the hospital staff quickly grew disenchanted with one another. Deposition testimony from doctors who worked in the hospital during Barnes’ tenure reveals their displeasure with Barnes’ performance as administrator.

In October 1983, the doctors of the hospital staff presented a letter to the Board of Directors of the Hospital Association demanding Barnes’ dismissal. The Hospital Association, though, refused to terminate Barnes.

In December 1983 and March 1984, the County Commissioners notified the Hospital Association that the County would not renew the lease agreement when it expired on June 30,1984. On that date, the County formally declined to renew the lease. What effect this non-renewal had on the contract between the Hospital Association and Brim and Associates is not noted. However, Barnes was terminated by his employer, Brim and Associates, as hospital administrator in August 1984, and as administrator of the nursing home on January 1, 1985.

In July 1985, Barnes filed this action against Glacier County and its Commissioners. In his complaint, Barnes alleged that the defendants’ personal dislike for him led them willfully to conspire to secure his discharge from his present position as administrator and to ruin him professionally. When the Hospital Association refused to discharge Barnes, the complaint states that the defendants then terminated the Association’s lease for the sole purpose of harming Barnes and destroying his contractual relationship with his employer and the Hospital Association.

The defendants moved to dismiss this action on the ground that the suit was barred by a governmental immunity statute, Section 2-9-111, MCA. The District Court, in July 1986, granted defendants’ motion and dismissed this action pursuant to Section 2-9-111, MCA. Barnes now appeals.

Section 2-9-111, MCA, provides in pertinent part:

“(1) As used in this section:
“(a) the term ‘governmental entity’ includes the state, counties, municipalities, and school districts;
“(b) the term ‘legislative body’ includes the legislature vested with legislative power by Article V of The Constitution of the State of Montana and any local governmental entity given legislative powers by statute, including school boards.
“(2) A governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof.
“(3) A member, officer, or agent of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body.

This statute clearly provides immunity for the defendants herein. Subsection (2) grants a county immunity for an act undertaken by its legislative body. The decision complained of by appellant — the decision not to renew the lease with the Hospital Association — was clearly one made by the legislative body of Glacier County, that is, its County Commissioners. As such, the act comes within the express language of the statute. We accordingly find that Section 2-9-111, MCA, renders Glacier County immune from suit in this action. See W. D. Construction, Inc. v. Board of County Commissioners of Gallatin County (Mont. 1985), [218 Mont. 348,] 707 P.2d 1111, 42 St.Rep. 1638.

In a related manner, Subsection (3) provides immunity for members of a legislative body from damages arising from the lawful discharge of an official duty. Appellant attempts to distance his case from this language by asserting that acts committed in bad faith and with malice cannot be considered the lawful discharge of an official duty. Appellant’s emphasis on the motive underlying the act is misplaced. We will look only to see whether the act in question was performed pursuant to the lawful discharge of an official duty. In this case, the Commissioners clearly possessed the authority to choose not to renew the County’s lease agreement with the Hospital Association. As such, this action falls within the statutory immunity. We will not delve deeper and attempt to discover the potential motives of decision makers. To do so would clearly weaken both the plain meaning and the intent of this statute.

We find that the District Court properly dismissed this action on the ground that it failed to state a claim upon which relief can be granted. As applied, the District Court’s action did not raise a constitutional challenge.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY, GULBRANDSON and HUNT concur.


author: MR. JUSTICE HUNT

text:
    MARY ELIZABETH KREIN, Plaintiff and Appellant, v. RICHARD W. HEINEMAN, Defendant and Respondent.
    No. 86-422.
    Submitted on Briefs Jan. 22, 1987.
    Decided April 28, 1987.
    As Amended May 26, 1987.
    736 P.2d 481.

      James L. Norris, Bismarck, N.D., for plaintiff and appellant.
    Ira D. Eakin, Baker, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Mary Elizabeth Krein appeals the July 28, 1986, order and explanatory comment entered by the Seventh Judicial District Court granting defendant, Richard W. Heineman’s motion for summary judgment. We affirm in part and reverse in part.

Mary Elizabeth and Richard were married for four and one-half years prior to the May 4, 1981, decree dissolving the marriage. Richard is an attorney. Mary Elizabeth contends that at least seven attorneys refused to represent her in the divorce action because Richard was an attorney. From the record, it is unclear that all seven actually refused to represent her. Richard thereafter agreed to obtain the divorce for the parties. He prepared the petition for dissolution as well as Mary’s response thereto. In her response, Mary Elizabeth agreed “[t]hat the parties have mutually divided all property they have acquired during the marriage relationship and have entered into a fair and equitable property settlement agreement . . .”

Richard also prepared a property settlement agreement wherein he agreed to pay Mary Elizabeth alimony consisting of three $5,000 payments. The original agreement provided that the obligation would end upon Mary Elizabeth’s remarriage. She refused to agree to that stipulation. Therefore, Richard removed the language stating that payments would cease upon Mary Elizabeth’s remarriage, but continued to use the term alimony to describe the payments.

The property settlement agreement also provided that Richard would pay all known outstanding obligations and debts of the marriage, that each individual would thereafter be solely responsible for his or her own obligations, and that Mary Elizabeth relinquished all claims to any property in Richard’s possession in consideration for the personal property she had received.

Richard paid Mary Elizabeth $5,000 in February 1981, and again in February 1982. He refused to make the February 1983, payment as Mary Elizabeth had remarried. In response, Mary Elizabeth pursued two legal remedies. On July 12, 1984, she filed a motion in the original divorce action to set aside the property settlement agreement, alleging that fraud had been committed on the court. Also on July 12, 1984, Mary Elizabeth filed the complaint in this action, requesting to set aside the earlier property settlement agreement on the basis of fraud.

Although not denominated as such, the motion was a Rule 60(b)(3), M.R.Civ.P., motion. Rule 60(b)(3) motions are to be filed within 60 days of service of notice of entry when service of notice of entry is required by Rule 77(d), M.R.Civ.P. Rule 77(d) requires that notice of entry of judgment be served “upon all parties who have made an appearance . . . .” Mary Elizabeth appeared in the original dissolution action, but was never served with notice of entry of judgment. Therefore, the 60 days never commenced to run and the July 12, 1984, motion was timely filed. Morrison v. Higbee (Mont. 1983), 204 Mont. 501, 668 P.2d 1029, 1031-32, 40 St.Rep. 1031, 1034.

Rule 60(b) motions, at the time this motion was filed, had to be scheduled for hearing within 10 days. The specific hearing requirements have now been eliminated by Rule 59(d), which in substance provides that if the court fails to rule within 45 days of the filing of the motion, the motion is deemed denied. The hearing was held August 14, 1984, more than a month after the motion was filed. The motion was denied August 17, 1984, because of Mary Elizabeth’s failure to set the hearing within ten days of filing the motion.

Although the motion was dismissed, the complaint still existed. An amended complaint was filed February 4, 1986. In addition to requesting that the property settlement agreement be set aside for fraud, as had the first complaint, the amended complaint alleged that Richard’s conduct toward Mary was legal malpractice and that it involved a conflict of interest, a breach of his attorney fiduciary duty and intentional or negligent infliction of emotional distress; mental anguish; punitive damages; treble damages for an attorney’s deceit; attorney fees; and costs. Richard filed a motion and brief for summary judgment on March 19, 1986. A hearing on the motion was held July 22, 1986. At the close of the hearing, defendant’s motion was granted. The trial judge determined that the original dissolution decree was in full force and effect and res judicata with respect to the issues raised by Mary Elizabeth.

Mary Elizabeth now requests that this Court determine whether the trial judge erred in granting Richard’s motion for summary judgment because the legal doctrine of res judicata does not apply and because there are genuine issues of material fact.

Rule 60(b), M.R.Civ.P., provides:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; . . . This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as may be required by law, or to set aside a judgment for fraud upon the court.”

In Kamp Implement Co. v. Amsterdam Lumber, Inc. (1975), 166 Mont. 435, 441, 533 P.2d 1072, 1075, this Court held that the last sentence of Rule 60(b), M.R.Civ.P., permits a litigant to “obtain relief from a judgment obtained by fraud either by a motion under Rule 60(b), M.R.Civ.P., or by an independent action, it does not state that a litigant may pursue both remedies.” Although Mary Elizabeth filed the Rule 60(b) motion and the independent action on the same day, she elected to pursue the motion remedy first. The motion might have provided a “plain, speedy, and adequate” remedy for the fraud claim had the hearing been timely held. As in Meyer v. Lemley (1929), 86 Mont. 83, 97, 282 P. 268, 272, cited in Kamp Implement, 166 Mont. at 441, 533 P.2d at 1075,

“[Appellant had an adequate remedy, invoked it, lost it through [her] own fault. . . [She] cannot be permitted, after having selected an appropriate and adequate remedy and having failed through [her] own fault to obtain relief thereby, to then harass [her] blameless adversary by pursuing another and different remedy. It is to the interest of society that litigation end; ...”

Mary Elizabeth cannot, after wasting her opportunity to pursue a Rule 60(b) remedy, use an independent action to drag Richard back into court for the same purpose.

However, the amended complaint in the independent action also contains counts which are not precise, but involve claimed negligence, legal malpractice and breach of fiduciary duty by Heineman. The Rule 60(b), M.R.Civ.P., motion did not cover those torts. They exist separate and independent from any fraud which might have resulted in the granting of the Rule 60(b) motion. We therefore remand this action for further proceedings on the non-fraud issues raised in the amended complaint.

Affirmed in part and reversed in part.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and SHEEHY concur.

MR. JUSTICE GULBRANDSON did not participate in this decision.


text:
    In the Matter of W.J.H., a youth.
    No. 86-287.
    Submitted Feb. 10, 1987.
    Decided April 30, 1987.
    736 P.2d 484.
    Bosch, Kuhr, Dugdale, Warner, Martin & Kaze; John Warner argued, Havre, for appellant.
    Mike Greely, Atty. Gen., Helena, John Paulson, Asst. Atty. Gen., Helena, David G. Rice argued, Co. Atty., Havre, Leslie C. Taylor argued, Dept, of SRS, Helena, for respondent.
    Richard P. Bartos argued, Office of Public Instruction, Helena, Bruce W. Moerer argued, Schools Boards Assoc., Helena for amicus curiae.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal arises from an order entered by the District Court of the Twelfth Judicial District in and for Hill County. The District Court, acting as a Youth Court, ordered a youth’s high school district to pay a segment of the daily cost associated with the placement of the Youth in an out-of-state program. The School District appeals. We reverse.

On August 14, 1985, the Hill County Youth Court committed W.J.H. (hereinafter Youth) to the Hennepin County Sexual Offenders Program located in Minnetonka, Minnesota. The court committed the Youth for a period of 180 days subject to further commitment at the court’s discretion. At the time of his commitment, the Youth was seventeen years of age and was a resident of Hill County School District No. 16A (School District).

As of the date of the Youth’s commitment, the Minnesota program charged $145 per day per person. In its commitment order, the Youth Court ordered that the bulk of these charges be shared by Hill County and the Department of Social and Rehabilitation Services (SRS). However, because this program designated $48 of the daily charges as education costs, the Youth Court ordered that that part of this daily expense be paid by the School District.

The School District received no notice of and did not attend the hearing which resulted in the August 14 order. Upon learning of the order the School District filed a petition with the Youth Court to vacate that portion of the order requiring it to pay the daily $48 education expense. The Youth Court stayed that portion of its order during the pendency of this action.

On February 10, 1986, the Youth Court issued an order extending the Youth’s commitment in the Minnesota program. Again the School District received no prior notice of and did not participate in the hearing.

On April 3, 1986, the Youth Court formally held a hearing on the School District’s responsibility to pay the program’s education expenses. In its order issued April 14, 1986, the Youth Court noted that it had placed this Youth in the Minnesota program pursuant to the Interstate Compact for the Placement of Children, Section 41-4-101, MCA. Pursuant to this Interstate Compact, the Youth Court designated Hill County as the “sending agency” which rendered the County primarily responsible for the support and maintenance of the Youth during the period of placement. However, the Youth Court held that other agencies were legally responsible for payment of a share of those costs and that it had the authority to identify and designate those other agencies. Exercising this authority, the court then held the School District legally responsible for the education expenses associated with the placement of this Youth.

The sole issue raised on appeal is whether the Youth Court erred in holding the School District legally responsible for payment of the education costs associated with the placement of this Youth.

The School District raises several allegations of error, but because we find it dispositive, we will address only the issue of whether the' School District is legally responsible for payment of the Youth’s education costs.

The Youth Court held that the School District became legally responsible for the Youth’s education expenses as a result of the enactment of Chapter 655, Laws of 1985, which amended Section 20-7-401, MCA. All parties agree that the Youth Court misquoted the applicable statute. Chapter 655, Laws of 1985, amended not Section 20-7-401, MCA, but Section 20-5-311, MCA, which is the statute covering payment of tuition costs of a high school student who attends school outside his resident school district. Section 20-7-401, MCA, is a definitional statute identifying the various characteristics of special education pupils. The parties had previously agreed that this Youth did not qualify as a special education student. We agree that Section 20-5-311, MCA, is the statute at issue in this case.

In pertinent part, Section 20-5-311, MCA, provides:

“(1) Any child may be enrolled in and attend a high school outside of the high school district in which he resides when such high school is located in Montana or in a county of another state that is adjacent to the state of Montana. When a parent or guardian of a child wishes to have his child attend a school under the provisions of this section, he shall apply to the county superintendent of the county of his residence before July 1 of the school fiscal year for which he seeks approval except in those cases when substantial changes in circumstances occurred subsequently to justify later application. Such application shall be made on a tuition agreement form supplied by the county superintendent. The trustees of the district of residence, the trustees of the district in which the child wishes to attend school, and the county superintendent are the approval agents for tuition to another high school within the county. The county superintendent of the county of residence and the trustees of the district in which the child wishes to attend school are the approval agents for attendance outside the county.
“(2) (a)(i) The approval agents shall approve a tuition application when a child lives closer to a high school of another district than any high school located within his resident district or when, due to road or geographic conditions, it is impractical to attend the high school nearest his residence.
“(b) The approval agents shall approve a tuition application when a child is required to attend high school outside the district of residence as the result of an order of a court of competent jurisdiction. For purposes of this Subsection (b), the following do not apply:
“(i) the prescribed geographic relationship of the receiving district to the district of residence in this Subsection (2) [.]”

Thus, looking to those paragraphs relevant in this case, this statute covers different situations. Subsections (1) and (2) (a) cover those situations where a child chooses to attend a school outside his or her resident district while Subsection (2)(b) deals with a child required to attend an out-of-district school pursuant to a court order.

Subsections (1) and (2) (a) contain important geographic considerations. Subsection (1) states that a child may attend an out-of-district school when such school is located within this state or in a county of another state that is adjacent to the state of Montana. And Subsection (2) (a) requires approval agents to approve a tuition application when a child lives nearer a high school of another district than any resident district high school.

The specific question raised on appeal is what effect the language of subsection (2) (b) (i) has upon the geographic considerations mentioned above. This paragraph was added in 1985 through enactment of Chapter 655, Laws of 1985. The parties disagree whether this amendment now requires approval agents to approve a tuition application regardless of where a youth is placed.

SRS and Hill County assert that this language mandates that approval agents approve a tuition application when, by valid court order, a child is required to attend high school outside his resident district; it matters not whether a court places the child in a school farther away from his resident district school nor does it matter whether a court places a child outside this state or an adjacent state. The School District disagrees, asserting that the language of (2)(b)(i) affects only the requirement that approval agents determine whether the child lives nearer the out-of-district school than the district school. The School District contends that the language in question does not affect the “adjacent states” doctrine, so that approval agents are not required to approve a tuition application if a child is placed outside this state or an adjacent state. This question is of obvious importance in this case where the child was placed in Minnesota.

A reading of this statute does not plainly convey the intent of the legislature; we find both sides present plausible interpretations of the language in question. We therefore turn to the rules of statutory construction to determine legislative intent.

We first note that Subsections (1) and (2) of Section 20-5-311, MCA, are interdependent, at least to some degree. Subsection (2) refers to approval agents who are defined only in subsection (1). SRS correctly notes that the two subsections pertain to different situations — voluntary attendance at an out-of-district school versus attendance at an out-of-district school pursuant to court order. Nevertheless, a reading of the entire statute at least suggests that the two subsections should be read together.

Moreover, we find support for the School District’s position from related statutes. As noted, Section 20-5-311, MCA, covers those situations in which a school district of a child’s residence is required to pay tuition if the child attends a high school outside of his resident high school district. Section 20-5-312, MCA, sets forth the method by which the amount of the tuition that the resident school district must pay is determined. In the event the child attends a high school in a county of an adjoining state, the legislature has, through Section 20-5-314, MCA, authorized the State Superintendent of Public Instruction to negotiate the amount of tuition. These reciprocal tuition agreements and the authority to execute reciprocal tuition agreements are only with “any state adjoining Montana to allow the eligible children of Montana to attend school in the adjoining state and to allow children of the adjoining state to attend school in Montana.” Section 20-5-314, MCA. This statute does not authorize the State Superintendent to enter into a reciprocal tuition agreement with a state not adjoining Montana. The parties have not cited and we have not found any statutory method to calculate the amount of tuition to be paid to a school in another state not adjacent to Montana. In construing legislation, this Court will attempt to harmonize related statutes, giving effect to each. Montana Contractors’ Assn., Inc. v. Department of Highways (Mont. 1986), [220 Mont. 392,] 715 P.2d 1056, 1058, 43 St.Rep. 470, 472; Crist v. Segna (Mont. 1981), 622 P.2d 1028, 1029, 38 St.Rep. 150, 152.

SRS and Hill County, on the other hand, have presented relevant legislative history which they contend convincingly indicates legislative intent in support of their position. Their historical evidence consists of two unsuccessful legislative proposals, which, if passed, would have relieved a local school district from payment of education expenses in cases such as this. The second of these proposals was introduced in 1985 as an attempted amendment to HB 608, the bill which eventually amended Section 20-5-311, MCA, by inserting Subsection (2)(b). We have carefully considered the arguments presented by these parties, and have concluded that the defeat of a relevant amendment is of uncertain value in interpreting legislation which was passed. As the Oregon Court of Appeals stated in Oregon State Employees Assn. v. Workers’ Compensation Department (1981), 51 Or.App. 55, 624 P.2d 1078, 1081.

“An amendment to a statute may be defeated for many reasons. The failure of the legislature to pass a particular proposal is of dubious value in interpreting the legislation which was passed.”

Finally, SRS relies on a New Jersey case, State in the Interest of F.M. (1979), 167 N.J.Super. 185, 400 A.2d 576, in support of its argument that the Youth Court has the authority to assess education costs against the School District. In F.M. a Juvenile and Domestic Relations Court ordered an adjudicated delinquent girl to be placed in a private special education institution and ordered the school board of the child’s resident district to pay the costs. The school board moved to vacate the order but the New Jersey Superior Court upheld the order.

The Juvenile Court’s authority in F.M. to assess education costs against a school district derived from New Jersey statutes which differed from our state statutes. However persuasive the reasoning of a sister jurisdiction, we are bound by the words of our statutes.

Accordingly, we hold that the Youth Court erred in finding the School District legally responsible for this youth’s education costs. We therefore reverse that portion of the lower court’s decision holding the School District liable.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY, GULBRANDSON and HUNT concur.


author: MR. JUSTICE SHEEHY

text:
    In the MARRIAGE OF PAUL W. HERRON, Petitioner and Respondent, and SHARON M. HERRON, Respondent and Appellant.
    No. 86-540.
    Submitted on Briefs Feb. 26, 1987.
    Decided April 30, 1987.
    736 P.2d 487.

      I. James Heckathorn, Kalispell, for respondent and appellant.
    M. Dean Jellison, Kalispell, for petitioner and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Sharon M. Herron appeals from a judgment following remand entered by the District Court, Eleventh Judicial District, Flathead County. We affirm.

This cause was before us in Herron v. Herron (1980), 186 Mont. 396, 608 P.2d 97. Therein we set forth the pertinent facts relating to the marriage of the parties. We reversed the District Court and remanded it for retrial on the issues of property distribution and maintenance.

As to the judgment entered by the District Court after remand, Sharon appeals from the provisions of that judgment involving the division of the marital property, the provision for maintenance of the wife, and the support provision for the minor child of the parties.

Relating to the marital property division, our remand indicated that both parties should share equally in the portion of the value of the property attributable to contribution from the marriage and appreciation during the marriage, but that the parties should not share equally in the total value of the property since much of the marital assets came to the marriage principally as gifts for Sharon from her deceased father, George Robbin. 186 Mont, at 402, 608 P.2d at 102.

On remand, the District Court found that the net value of the marital estate subject to distribution was $508,389, summarized as follows:

Ranch $200,00.00
Lake place 40,000.00
Medical practice 75,089.00
Robbin estate 104,500.00
Gold coins 32,000.00
Third Avenue East home 55,000.00
Savings account 1,800.00
TOTAL NET VALUE $508,389.00

The District Court then divided the net value of $508,389 as follows:

To Paul
Medical practice $75,089.00
Husband’s portion coin collection 32,000.00
One-half Robbin estate 52,250.00
$159,339.00
To Sharon
Ranch $200,000.00
House 55,000.00
One-half Robbin estate 52,250.00
Lake lot 40,000.00
Savings 1,800.00
$349,050.00

Sharon objects to the division of marital property on the grounds that she is required to pay Paul $52,250 out of the sale of the assets given to her; that the award does not take into account that sale of the ranch will require costs of commissions and expenses; and that the valuation of $104,500 determined by the court to be remaining from the George Robbins estate for division is contrary to the evidence. Sharon maintains that the remaining estate merely consists of stock plus a savings account and that the other assets have been distributed or dissipated.

Contrary to Sharon’s contentions, however, the District Court in its findings carefully considered the assets of the marital estate, including the lake place, the value of Paul’s medical practice, the sale of the Kalispell medical arts building, and the George Robbin estate. The District Court traced the acquisition of the assets, beginning with contributions from George Robbin when he was alive, amounts of property received from his estate, contributions made by the parties during their marriage which increased to the value of the marital assets, and the effect of appreciation. In accordance with our remand, it determined the value of direct gifts from George Robbin totalling $117,500, and determined that this amount should be credited to Sharon’s favor in distributable marital assets. In distributing property, the court was faced with the biggest single asset, that of the ranch, which it had to consider in relation to an equitable division. In its conclusion of law, the District Court stated:

“The Supreme Court remand also directs this court to consider assets received by devise or inheritance as made principally for respondent’s [Sharon’s] benefit. 608 P.2d at 100. However, this court found it necessary to split the inherited assets now remaining in the Robbin estate. The two major assets available for distribution in the marital estate are the ranch and the Robbin estate. An award of both of these assets to respondent entirely would result in an inequitable division of the assets in view of the joint marital contributions and appreciation factor during the marriage. 608 P.2d at 102. The parties chose to divide the gold coin collection equally and Respondent did not rebut Petitioner’s contention that the remainder of the two certificates of deposit were depleted on joint obligations. The division of the remainder of the Robbin estate is reflective of an equitable value allocation of the available assets rather than a finding that the parties share equal entitlement to the estate assets.”

It is clear that the District Court followed in the best manner available the directions of our remand in dividing and allocating values to the parties out of the marital estate. The findings of fact by the District Court cannot be set aside by us unless they are clearly erroneous, Rule 52, Montana Rules of Civil Procedure. The conclusions of law by the District Court are reasonable based upon its findings and are equitable in the circumstances. We therefore affirm the division of the marital property by the District Court.

The next issue raised by Sharon is the award of maintenance. In the first decision of the District Court, Paul was ordered to pay Sharon the sum of $400 per month for a period of four years. On remand, the District Court determined that Paul should pay Sharon maintenance in the amount of $1,000 per month for a period of two years commencing in July, 1986. Sharon attacks the maintenance award upon the ground that it is insufficient; that she has but $7,000 per year income of her own; and that she is required to pay the mortgage payments, the delinquent taxes and the costs of repairing the ranch house to make it saleable, in addition to her own living expenses and that of their child.

Yet the District Court was careful in its findings to consider the factors set out in Section 40-4-203, MCA, regarding maintenance. In our remand, we requested the District Court to consider carefully the advisability of placing any time restrictions on the duration of maintenance payments. 186 Mont, at 406, 608 P.2d 102-103.

After determining the distribution of the parties’ marital property, the District Court considered the assets awarded and what they might eventually provide in the way of financial security at a comfortable level for Sharon. The District Court recognized that a certain adjustment period would be necessary until she would be able to convert the assets to income producing property. On that ground the District Court determined, in consideration of her age, her loss of professional skills, and other factors, that she would need maintenance for two years after which the availability of her more than adequate resources would provide maintenance and should provide security. The District Court stated in its conclusions that the distribution was intended to be a means by which Sharon could establish independent financial security fitting her station in life without the need for indefinite maintenance which, in the light of petitioner’s job situation, could not be assured. Since the case first came to us, it appears that Paul’s medical practice had been severely limited due to his loss of rights at the hospital and that the possibility of an assured income from his medical practice was “tenuous at best.”

In resolving the problem by awarding maintenance in the sum of $1,000 per month for two years, the District Court took into account the earning capability of the husband, his assets available to make those payments, and the period of adjustment necessary for the wife to establish her own independent security. This case illustrates the constant problem of district courts in marital dissolutions, that is, the shaping of the most equitable and least futile solution for a problem created by imperfect people in imperfect situations. We hold that the District Court acted properly in making the maintenance award.

The final issue raised by Sharon is that the District Court did nothing about the support payments due the wife from the husband. The parties have four children, three having reached majority, and the fourth child is 17 years old, with a fairly severe learning disability. She is probably unemployable and requires the care of her mother. The former award to Sharon as support money for this child was $300 per month. The evidence here indicates that the husband has been paying Sharon $225 per month. The District Court on remand refused to consider the issue because it was outside the scope of our order of remand. There is no issue therefore upon which we can act with respect to the support money payments. Whatever rights or obligations accrue to either of the parties arising out of the original order of support money for the minor child are undisturbed by the decision of the District Court on remand, and by this Opinion.

We affirm the District Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, GULBRANDSON and HUNT concur.


author: MR. CHIEF JUSTICE TURNAGE

text:
    In the MATTER OF J.W. and J.C., Youths in Need of Care.
    No. 86-399.
    Submitted on Briefs Jan. 29, 1987.
    Decided May 11, 1987.
    736 P.2d 960.

      Cannon & Sheehy, Edmund F. Sheehy, Jr., Helena, for appellant.
    Mike Greely, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen., Mike McGrath, Co. Atty., Carolyn Clemens, Deputy Co. Atty., Nicholas Jacques, (Children), Helena, for respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The natural mother of J.W. and J.C. appeals orders of the First Judicial District Court, County of Lewis and Clark, finding J.W. and J.C. to be youths in need of care and granting temporary custody to the Lewis and Clark County Office of Human Services. We affirm.

The natural mother, B.W. (hereinafter “mother”) has two children, J.C. and J.W. J.C., currently twelve, was born of a prior marriage of the mother. J.W. was delivered at home on December 18, 1984. Lewis and Clark County Office of Human Services (LCCOHS) received a referral concerning the birth. The mother stated she was unaware of her pregnancy.

On February 4, 1985, LCCOHS received a report that J.C. had extensive unexcused absences from school. On May 1, 1985, the mother was hospitalized for psychiatric care. The deputy county attorney filed a petition on behalf of LCCOHS requesting temporary investigative authority and protective services. The petition was granted by the District Court May 10, 1985. J.C. and J.W. were placed in foster care, with J.C. subsequently being allowed to spend the summer with his natural father in Arizona.

Both children were returned to the mother and LCCOHS terminated its involvement with the family in September, 1985, as it appeared the mother had successfully completed psychiatric treatment.

Following further reports concerning the children’s welfare, a supplemental petition for temporary investigative authority and protective services was filed November 15, 1985, on behalf of LCCOHS. A report attached to the petition listed the following LCCOHS referrals concerning the children:

“10-10-85: Educational neglect — extensive absences from school. Referrant noted that [J.C.] has attended many different schools in Helena and has a history of lengthy unexcused absences.
“10-25-85: Concerns about [the mother’s] emotional condition and ability to care for her children, (J.C.’s) nonattendance at school, and fires in the family apartment on two consecutive days. Referrant said [the mother] attributed the fires to someone who she said had broken into her apartment, but [the mother] had been home both days.
“10-28-85: Continued educational neglect of [J.C.]. Neighbors have seen him outside playing.
“10-29-85: Concern expressed about [the mother’s] emotional state and about [J.C.’s] not being in school since October 2.
“11-01-85: Continued educational neglect of [J.C.].
“Social worker Paul Heath made several attempts to visit the family but no one came to the door until 11-07-85. He was admitted briefly by [the mother] and saw both children, who seemed to be okay. [The mother] spoke very slowly and the house was stuffy and dark. [The mother] insisted that the social worker leave right away. Later on 11-07-85 social worker Laura Taffs attempted to visit to explore the recent concerns. [The mother] opened the door for about two minutes, would not allow the social worker in, and said she and her children were sick and were staying home. She then shut the door and would not respond to further knocking.”

The District Court entered its order November 15, 1985, granting LCCOHS temporary investigative authority and the right to place the children in foster care if deemed necessary for their protection. Pursuant to the order, LCCOHS investigated the matter and placed the children in foster care. A show cause hearing concerning the order was held December 3, 1985. Following hearing, the District Court entered its order dated December 6, 1985, placing temporary custody with the Department of Social and Rehabilitation Services (SRS) and declaring the children to be youths in need of care. The order further required LCCOHS to develop a treatment plan and recommended J.W. be placed in foster care and J.C. be placed with his father if a favorable home study was received from Arizona officials.

Pursuant to the mother’s request for a hearing the District Court held a hearing on March 20, 1986. At the hearing, counsel for the mother questioned whether the District Court orders of November 15,1985, and December 6,1985, were a proper exercise of the court’s jurisdiction. The district judge set a briefing schedule concerning the issue and set hearing for May 15, 1986.

At the hearing on March 20, 1986, testimony was heard from the psychologist and social workers involved with the case, the mother, and the foster mother of J.W. Dr. Leonard, a psychologist who examined the mother, testified that the mother had a borderline personality and most likely was schizophrenic when under stress. Dr. Leonard found the mother denied her problems and tended to reject counseling. Dr. Leonard concluded that without treatment the mother would be incapable at times of caring for her children.

The social workers testified that the visits between the mother and J.C. and J.W. conducted at LCCOHS had not gone well. The mother argued excessively with J.C. and was generally inattentive to J.W.’s needs. Two of the social workers testified that the mother had refused to sign the treatment plan. The mother indicated that she would not take medication if prescribed for her, did not believe she needed counseling, and on one occasion refused to speak with a psychologist who was brought to her home.

The District Court entered its order May 28, 1986, denying the mother’s motion to vacate the November 15, 1985, and December 6, 1985, orders of the court. However, the District Court did strike the portion of the December 6, 1985, order finding the children to be youths in need of care. Prior to the May 28, 1986, District Court order the county attorney filed a petition on April 29, 1986, requesting that the children be declared youths in need of care. A hearing relating to the petition was held May 30, 1986.

At the hearing on May 30, 1986, testimony was heard from the children’s pediatrician and the social worker working on the mother’s case at that time. The pediatrician testified that J.W. has asthma and respiratory problems which are aggravated by cigarette smoke. Additionally, he stated there were no medical reasons for J.C.’s extensive absences from school. The social worker testified that the mother continued to smoke in J.W.’s presence even though aware smoking aggravated J.W.’s asthma. The social worker further testified that the mother continued to deny that she needed therapy and refused to be involved with the family focus program which would have assisted the mother in caring for her children.

On June 20,1986, the District Court entered its order declaring the children to be youths in need of care, and granting continued temporary custody with SRS until a dispositional hearing could be held. A dispositional hearing was held July 28, 1986, and subsequently the District Court entered its order relating to disposition August 22, 1986. The court granted continued temporary custody with SRS and recommended that J.C. remain with his natural father in Arizona and J.W. remain in foster care. The court approved the proposed treatment plan, and ordered LCCOHS to inform the court of its recommendation as to placement of the children upon the mother’s completion of the treatment plan.

The mother appeals and raises the following issues:

1) Whether the District Court erred in denying the motions to vacate?

2) Whether the District Court erred in declaring the children to be youths in need of care and in its subsequent dispositional order?

The mother contends the November 15, 1985, District Court order should have been vacated for the following reasons: 1) the petition for temporary investigative authority was not supported by probable cause that the children were in danger of being abused or neglected; 2) the petition did not request immediate removal of the children from the home; and 3) Section 41-3-403, MCA, does not authorize immediate removal of the children from the home without a prior hearing. We find no merit to these contentions.

The supplemental petition dated November 15, 1985, was filed pursuant to Sections 41-3-402 and -3, MCA. The county attorney chose to file the petition under those statutes because LCCOHS could not actually determine whether the children were in danger of being abused or neglected. Such determination could not be made because the mother would not permit anyone to enter her home to investigate. Pursuant to Section 41-3-402, MCA, the county attorney may file a petition for investigative authority and protective services “in cases where it appears that a youth is abused or neglected or is in danger of being abused or neglected.”

The LCCOHS report accompanying the petition established probable cause to investigate the possibility of abuse or neglect of the children. The report included: 1) numerous referrals concerning J.C.’s absence from school for no apparent reason; 2) concerns from neighbors about the mother’s emotional condition and ability to care for her children; 3) reports of fires in the family apartment on two consecutive days; 4) the mother’s recent hospitalization for psychiatric care and placement of the children in foster care at that time; and 5) social workers’ reports that the mother would not answer the door to speak with them.

Section 41-3-102, MCA, provides in part:

“(2) An ‘abused or neglected child’ means a child whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent or other person responsible for his welfare.
“(3) ‘Harm to a child’s health or welfare’ means the harm that occurs whenever the parent or other person responsible for the child’s welfare:
“(c) causes failure to thrive or otherwise fails to supply the child with adequate food or fails to supply clothing, shelter, education, or health care, though financially able to do so or offered financial or other reasonable means to do so;

We find substantial evidence in the LCCOHS report supporting probable cause that the physical and mental health of J.W. and J.C. was in danger. The mother’s previous history of psychiatric problems, the fires in the family home, J.C.’s extensive absences from school, and the inability of social workers to investigate these matters are sufficient facts to warrant the granting of temporary investigative authority.

The November 15, 1985, District Court order granted LCCOHS the right to place the youths in foster care if deemed necessary for their protection. The mother contends the District Court improperly delegated its authority to remove the children from the home to LCCOHS. We disagree with this contention and find the court order to be within the scope of Section 41-3-403, MCA. Pursuant to this section, the court may grant “such relief as may be required for the immediate protection of the youth.”

LCCOHS was in a difficult position in this case because the mother would not cooperate with its investigative efforts. We find that portion of the court order granting LCCOHS the right to place the youths in foster care if deemed necessary for their protection was proper under the circumstances.

The mother contends she was entitled to a show cause hearing before the removal of her children. The District Court order stated that the mother shall immediately comply with the order or appear before the court to show cause why she should not be required to comply. The order was in compliance with Section 41-3-403, MCA. There is no requirement in Section 41-3-403, MCA, that a show cause hearing be held prior to removal of youths pursuant to this section. We find the November 15, 1985, District Court order to be lawful and a proper exercise of the court’s discretion.

The mother next contends that the December 6, 1985, District Court order should be vacated for failure to comply with Section 41-3-404, MCA, and Section 41-3-406, MCA. Further, the mother contends that the placement of J.C. with his father in Arizona was not in compliance with Section 41-3-406(3)(c), MCA.

The mother argues that the filing of a petition for investigative authority under Section 41-3-402, MCA, must also include a petition drawn pursuant to Section 41-3-401, MCA. The mother points out that the 1985 amendment to Section 41-3-401, MCA, eliminated Section 41-3-401(13), MCA, which provided: “This section does not apply to a petition for temporary investigative authority and protective services.” The mother claims the legislature clearly intended to consolidate petitions to have youths declared in need of care and petitions for temporary investigative authority. We find no legislative history to support this contention, nor is there any language in either section providing a petition filed pursuant to Section 41-3-402, MCA, must be accompanied with a petition filed under Section 41-3-401, MCA.

The mother seeks to have the December 6, 1985, order vacated for lack of an adjudicatory hearing pursuant to Section 41-3-404, MCA, and a dispositional hearing pursuant to Section 41-3-406, MCA. In denying the motion to vacate, the District Court found the proceedings to be under Sections 41-3-402 and -3, MCA, and a show cause hearing was properly held within 20 days as required by Section 41-3-403, MCA.

We agree with the District Court that a show cause hearing is the only hearing required when a petition for temporary investigative authority is filed under Section 41-3-402, MCA. The District Court did strike its finding that the youths were in need of care from the December 6, 1985, order as being in excess of its jurisdiction. We find no error by the District Court.

In its December 6, 1985, order the District Court granted temporary custody of J.C. and J.W. to SRS with a recommendation that J.C. be placed with his father in Arizona following receipt of a favorable home study from Arizona officials. The mother contends this portion of the order is in violation of Section 41-3-406(3)(c), MCA. We disagree. Section 41-3-406, MCA, relates to transfer of legal custody following the adjudicatory and dispositional hearings. The District Court granted temporary custody to SRS with a recommendation that J.C. be temporarily placed with his father in Arizona. We find this to be within the court’s authority under Section 41-3-403, MCA, which permits temporary disposition in the best interest of the youth.

The next issue is whether the District Court erred in declaring J.W. and J.C. youths in need of care in its June 20, 1986, order. We find substantial credible evidence in the record supporting the District Court determination.

Prior to the proceedings at issue herein, the mother experienced a psychotic break in May, 1985, and was hospitalized for psychiatric care. The children were placed in temporary foster care at that time. Contrary to the mother’s assertions this evidence is relevant and was properly admitted. Events from the recent past relating to the mother’s mental condition are clearly relevant in determining whether she is capable of properly caring for her children. The medical testimony reveals that the mother is presently in need of counseling and likely should be receiving medication. The record also indicates the mother has refused to accept medical treatment for the most part.

The older youth, J.C., told social workers that he looks after J.W. during periods when his mother is acting irrationally. J.C. worries about J.W.’s safety when left alone with the mother. The mother leaves cigarettes burning and forgets to turn off the stove. J.W. has a problem with respiratory illness which is aggravated by cigarette smoke. The mother is aware of this, but continues to smoke in the presence of J.W. J.W. will likely need frequent medical attention if exposed to smoke on a regular basis.

The mother claims J.C. has poor school attendance due to sickness. J.C.’s pediatrician disputed this claim stating that J.C. was a normal, healthy child. J.C. missed 73 W days during a school year while at Kessler School. In the fall of 1985, J.C. missed 33 consecutive school days while a student at Bryant School. J.C. informed his counselor that he was bored staying at home and rarely felt sick. Neighbors frequently saw him playing in the yard.

The mother asserts that poor school attendance is not educational neglect as defined in Section 41-3-102, MCA, and is a matter for school authorities, not LCCOHS. We find J.C.’s poor school attendance to be a proper focus of inquiry in the LCCOHS investigation. The record is clear the mother is responsible for educational neglect of J.C.

An abused or neglected child is a child whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent. Section 41-3-102(2), MCA. In this case, it is clear J.W.’s welfare is in danger due to the mother’s emotional and mental condition and J.C. has missed extensive schooling due to his mother. The medical evidence is that the mother’s ability to care for J.W. and J.C. is questionable but that with therapy and medication the mother’s problems are treatable. The treatment plan approved by the District Court provides for counseling and interaction between the mother and her children with the ultimate goal of returning custody of the children to their mother. We find no abuse of discretion or errors of law by the District Court.

The District Court is affirmed.

MR. JUSTICES HARRISON, GULBRANDSON, WEBER and HUNT concur.


text:
    The MONTANA POWER COMPANY, Plaintiff-Respondent, v. ELLANOR FONDREN and Sharon Cochran, Defendants, Counter-Claimants and Third-Party Complainants-Appellants, v. DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Third Party Defendant-Respondent. The MONTANA POWER COMPANY, Plaintiff-Respondent, v. LILLIAN M. KEZER; Farmers Home Administration; and Park County, A Political Subdivision of the State of Montana, Defendants-Appellants.
    No. 86-373, 86-374.
    Submitted Feb. 10, 1987.
    Decided May 12, 1987.
    737 P.2d 1138.

      Knuchel & McGregor, Karl Knuchel, Jon Hesse argued, Livingston, Moore, Rice, O’Connell & Refling, Robert J. Rice, Bozeman, for defendants, counter-claimants and third-party complainants-appellants.
    Corette, Smith, Pohlman & Allen, Gregory C. Black and Marshall Mickelson argued, Butte, Donald D. MacIntyre argued, Dept, of Natural Resources, Helena, Robert J. Brooks, Asst. U.S. Atty., Butte, for plaintiff-respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Landowners Fondren, Cochran and Kezer appeal the order of the District Court, Sixth Judicial District, Park County, which found the District Court had no jurisdiction to determine the existence of public necessity with respect to a proposed electric transmission line under the provisions of the Utility Siting Act of 1973 or the Montana Major Facility Siting Act of 1975, Title 75, Chapter 20, MCA. We affirm for the reasons set forth below.

In June, 1974, Montana Power Company (MPC) filed an application for certification of environmental compatibility and public need under the Montana Utility Siting Act of 1973 (now the Major Facility Siting Act) for the purpose of gaining approval for construction of a transmission facility known as the Clyde Park — Dillon 161 kv transmission line. In October, 1977, the Board of Natural Resources and Conservation (Board) issued a certificate of environmental compatibility and public need, and issued findings of fact, opinion, decision, order and recommendations. The selection of the final center-line for the two mile wide corridor was made by the Board in October, 1985.

Landowners Fondren and Cochran purchased property southwest of Livingston, Montana, in 1980. The property is located in the “Canyon Mountain” area of the Clyde Park to Emigrant segment of the transmission line. When Fondren and Cochran purchased the real estate, there was nothing of record in the office of the county clerk and recorder to indicate that the power line corridor approved by the Board would pass through or include the property. They first learned the power line might be routed through their property in late 1981. After the Board approved the final centerline location by order dated October 11, 1985, MPC sent letters to landowners Fondren, Cochran, and Kezer offering to purchase right-of-way easements and to pay an additional amount in advance for damages to crops and vegetation. The landowners refused the offers.

In February, 1986, MPC filed an action for condemnation of the landowners’ properties pursuant to the Montana Eminent Domain Act. The cases were consolidated in May, 1986. MPC also filed motions to be put in possession and for a preliminary condemnation order. On May 30, 1986, the District Court began hearing testimony in the condemnation action. Hearings were also held June 12. Both MPC and the landowners submitted briefs on the issue of the District Court’s jurisdiction under the Major Facility Siting Act, specifically Section 75-20-407, MCA. On June 26, 1986, the District Court issued an order stating it had no jurisdiction to determine the existence of public necessity under the Major Facility Siting Act. The District Court issued a preliminary condemnation order in favor of MPC on July 7, 1986. That order has been stayed pending this appeal.

The landowners raise nine issues on appeal:

1. Did the District Court err by ruling that it had no jurisdiction to determine the existence of “necessity?”

2. Did the District Court err in finding that respondent MPC has established by a preponderance of the evidence those facts which are a prerequisite to condemnation under Section 70-30-111, MCA?

3. Does the District Court have jurisdiction to determine what constitutes “least private injury” in an action for condemnation pursuant to the Montana Eminent Domain Act, Title 70, Chapter 30, MCA?

4. Does the District Court have jurisdiction to determine whether MPC has violated the findings of fact, opinion, decision, order and recommendation of the Board of Natural Resources?

5. Does the District Court have jurisdiction to determine whether the interests sought by MPC are the “minimum necessary interests” pursuant to Section 70-30-203(6), MCA?

6. Whether MPC is restricted to those remedies provided by the Major Facility Siting Act, Sections 75-20-404, -405, or -408, MCA, thus precluding an action in eminent domain under Title 70, Chapter 30, MCA?

7. Has the District Court violated the landowners’ due process rights under the Montana Constitution by vacating the condemnation hearings?

8. Was judicial review a remedy available to the landowners?

9. Does the Montana Major Facility Siting Act violate the landowners’ due process rights where the Act provides no mechanism for recording and giving notice to successor landowners that a power line corridor has been approved across their property, and where eight and a half years have elapsed between the time of corridor approval and the choice of a centerline?

MPC contends there is only one issue on appeal:

“Whether the District Court was correct in ruling it did not have jurisdiction to determine public necessity because that determination was already properly made by the Board of Natural Resources pursuant to the Major Facility Siting Act?”

As a preliminary matter, MPC argues that this Court should not hear issues relating to the preliminary condemnation order, since the landowners never specifically filed a notice of appeal as to that order. The procedural sequence of events was as follows:

1. June 26, 1986: District Court issued its order declining to take jurisdiction over the issue of public necessity.

2. July 3, 1986: Landowners filed their notice of appeal of the June 26 order.

3. July 7, 1986: The preliminary condemnation order was filed in District Court (although signed by Judge Rapkoch July 3).

The filing of a notice of appeal is jurisdictional, and the failure to timely file is a fatal defect altered only on the most extenuating circumstances. Leitheiser v. Montana State Prison (1973), 161 Mont. 343, 346, 505 P.2d 1203, 1205; Payne v. Mountain States Tel. & Tel. Co. (1963), 142 Mont. 406, 408, 385 P.2d 100, 102. While Rule 3, M.R.App.Civ.P., allows a suspension of the rules in the interest of expediting a decision before this Court, the late filing of a notice of appeal is one exception to the equitable reach of Rule 3. See Rules 21(b) and 5, M.R.App.Civ.P.; Zell v. Zell (1977), 172 Mont. 496, 565 P.2d 311.

We therefore hold that appellants’ issues 2 and 3 relating to the preliminary condemnation order of July 7, 1986 are not properly before us, since appellants failed to timely file a notice of appeal to that order under Rule 5, M.R.App.Civ.P.

The other issues raised by appellants essentially fall into two categories: Issues 1, 4, 5 and 6 present questions concerning the jurisdiction of the District Court and Issues 7-9 raise questions of due process under the Montana Constitution. Accordingly, we will treat the issues in that order.

JURISDICTION

The central jurisdictional issue is whether the District Court had the jurisdiction under Section 70-30-111, MCA, to determine if the transmission line was a public necessity. The court ruled it had no jurisdiction to determine necessity since that determination had already been made by the Board of Natural Resources pursuant to the Major Facility Siting Act. The court stated that under Sections 75-20-301, -302, and -303, MCA, the Board was charged with determining the necessity of the facility before it could issue a certificate of environmental compatibility and public need, such a certificate being required before the facility could be constructed. The court reasoned that the combination of those statutes and Section 75-20-103, MCA, (providing that the Siting Act is to supersede all other laws) and Section 75-20-407, MCA, (limiting the jurisdiction of courts to hear issues which would stop or delay construction of a facility) restrained it from determining the issue of necessity. The court thereafter issued a preliminary order of condemnation in favor of MPC.

A general rule of statutory construction is that when several statutes may apply to a given situation, the construction adopted should be one which will harmonize the several statutes and, if possible, give effect to all. Section 1-2-101, MCA; Schuman v. Bestrom (Mont. 1985), [214 Mont. 410,] 693 P.2d 536, 538, 42 St.Rep. 54, 57. In construing statutes, the intention of the legislature should be followed, if possible. Section 1-2-102, MCA. Our task here is to reconcile, if possible, the provisions of the Siting Act and the Montana Eminent Domain Act.

In Issue 6, the landowners contend that actions under the Siting Act and the Eminent Domain Act are separate and exclusive, and that MPC, having elected to file an action in eminent domain, must follow the procedure set forth under the Eminent Domain Act. MPC argues that portions of the Eminent Domain Act have been superseded by the Siting Act, and it need follow eminent domain procedure only to the extent it does not conflict with the Siting Act.

The Siting Act and the Eminent Domain Act were enacted at different times, for different purposes. The eminent domain laws were first enacted in 1877 to authorize the taking of private property for public use. Section 70-30-101, MCA. The Siting Act, first enacted in 1973, was essentially an environmental law whose policy was to maintain and improve the environment while allowing controlled development of large energy facilities. Section 75-20-102, MCA. In terms of location and construction of these facilities, the Siting Act transferred the decision of where to route transmission lines from the utilities to the Board of Natural Resources and Conservation. Section 75-20-105, MCA.

However, while the Siting Act provides the procedure for obtaining approval to construct a major facility, it does not provide a mechanism for the acquisition of specific tracts of property on which to build the facility. The property must be obtained through condemnation proceedings under the laws of eminent domain. When the right of eminent domain is invoked, the provisions of the law granting the right must be complied with. Madison Co. v. Elford (Mont. 1983), 203 Mont. 293, 661 P.2d 1266, 1268, 40 St.Rep. 457, 460; Housing Authority v. Bjork (1940), 109 Mont. 552, 556, 98 P.2d, 326. MPC does not, as the landowners contend in Issue 6, face an election of remedies in having to choose the procedure of either the Siting Act or the Eminent Domain Act. Rather, MPC must follow both laws in order first to gain approval for a transmission line and second to acquire the property upon which to build the facility.

Before private property can be taken for a public use, a court must find that the plaintiff (condemnor) has shown the following facts by a preponderance of the evidence:

(1) that the use to which the property is to be applied is a use authorized by law;

(2) that the taking is necessary to such use; and

(3) that an effort to obtain the property sought to be condemned was made by submission of a written offer and that such offer was rejected.

Section 70-30-111, MCA.

If the court finds and concludes from the evidence presented that the plaintiff has met the burden of proof under Section 70-30-111, it must enter a preliminary condemnation order. Section 70-30-206(2), MCA.

The primary disagreement between MPC and the landowners is over the interpretation of Section 70-30-111(2). MPC contends the District Court has no jurisdiction to determine whether or not the taking of appellants’ property is necessary to the public use (here, construction of a 161 kv transmission line), since the necessity for the transmission line and its location had already been determined by the Board in administrative proceedings under the Siting Act. MPC argues that Section 75-20-407, which limits the jurisdiction of courts to hear controversies involving major facilities, was enacted to foreclose all court action which would delay construction of the certified facility. The landowners, on the other hand, contend strict compliance with eminent domain procedure is required, and that therefore they are entitled to be heard in District Court on the question of the necessity of taking their particular tract of property.

Before turning to the due process issue of whether landowners have been given an opportunity to be heard, we will look at the specific question of whether Sections 75-20-103 and 75-20-407 affect the jurisdiction of the District Court to hear evidence on the necessity of taking a particular tract of property under the Siting Act. Other jurisdictions have had the opportunity to examine this question as it relates to location and construction of power lines across private property. While those jurisdictions do not have the equivalent of a Major Facility Siting Act, they do have specific statutory schemes which provide for location of electric transmission lines. The general rule is that where the legislature has delegated the power of determining the necessity of exercising the power of eminent domain to a private corporation or administrative agency, the corporation’s or agency’s determination of necessity is a political decision which is not subject to judicial review. In Re Bangor Hydro-Electric Co. (Me. 1974), 314 A.2d 800, 803; Otter Tail Power Co. v. Malme (N.D. 1958), 92 N.W.2d 514, 521; United States v. 277.97 Acres of Land (S.D.Cal.1953), 112 F.Supp. 159, 162; see generally Annot., 19 A.L.R.4th Section 8 at 1032 (1983). The corporation determining the location of the power line route is entitled to much latitude in its determination. Otter Tail Power Co., 92 N.W.2d at 521. Given the expertise and detailed knowledge of considerations involved in choosing a location for the power line, the route chosen by the corporation is given great weight under the law of eminent domain. Montana Power Co. v. Bokma (Mont. 1969), 153 Mont. 390, 399, 457 P.2d 769, 775. The determination reached by the corporation or agency will not be overturned absent proof of arbitrariness by clear and convincing evidence. Id.-„ see also Otter Tail Power Co., 92 N.W.2d at 521; In Re Bangor Hydro-Electric Co., 314 A.2d at 804; Northern States Power Co. v. Effertz (N.D. 1959), 94 N.W.2d 288, 291.

Each of the above cited cases, while granting that the corporation has been legislatively empowered with the initial determination of location for a power line, presupposes that the landowner has the opportunity to be heard and to present evidence of abuse of discretion or bad faith on the part of the condemnor. By similar analogy, we find that our legislature has empowered the Board of Natural Resources to make the determination as to the necessity of a facility such as the 161 kv transmission line at issue in this case. Under the statutory scheme of the Siting Act, the Board must make findings as to the environmental compatibility of (including land use patterns) and need for the facility before it can issue a certificate to MPC. Sections 75-20-301(2), 75-20-503, MCA. At the time the certificate is issued, an aggrieved party such as the landowners in this action may seek judicial review of the issuance of the certificate, alleging error in the location of the facility or in the procedure by which the choice was made. Section 75-20-406, MCA. The standards of judicial review are the same as those for a contested case under the Montana Administrative Procedure Act (MAPA). Sections 75-20-406(2) and 2-4-704, MCA. Further, if some aspect of the Siting Act or certain conditions of the certificate are not being complied with by the agency or MPC, any resident of this state may bring an action in mandamus before the District Court of the First Judicial District, County of Lewis and Clark. Section 75-20-404, MCA.

The foregoing administrative procedure, subject to judicial review, controls the general placement of the transmission line under the Siting Act. After the certificate is issued and has survived any challenges under judicial review, MPC has the right to construct its power line within a specific two mile wide corridor. The next step is the approval of a final centerline by the Board. When the final centerline is approved, MPC then may begin purchasing the specific property by means of negotiated settlement or condemnation.

If MPC proceeds thereafter to acquire an interest in property in a condemnation action, it must file a complaint alleging the facts necessary to be found under Section 70-30-111, i.e., that the taking of a specific tract of property is necessary for construction of its transmission line. The question then faced by the District Court is whether it is empowered to determine that the final centerline location adopted by the Board is necessary to the public use authorized by law. MPC’s argument, adopted by the District Court, is that the court may not even hear evidence on the question of necessity. Its argument is based on the following three sections of the Siting Act:

“75-20-103. Chapter supersedes other laws or rules. This chapter supersedes other laws or regulations except as provided in 75-20-401 [not applicable here]. If any provision of this chapter is in conflict with any other law of this state or any rule promulgated thereunder, this chapter shall govern and control and the other law or rule shall be deemed superseded for the purpose of this chapter. Amendments to this chapter shall have the same effect.”
“75-20-407. Jurisdiction of courts restricted. Except as expressly set forth in 75-20-401, 75-20-406, and 75-20-408 [not applicable here], no court of this state has jurisdiction to hear or determine any issue, case, or controversy concerning any matter which was or could have been determined in a proceeding before the board under this chapter or to stop or delay the construction, operation, or maintenance of a facility, except to enforce compliance with this chapter or the provisions of a certificate issued hereunder pursuant to 75-20-404 and 75-20-405 or 75-20-408.”
“75-20-205. Centerline location.
“(2) The final centerline location must be determined in a noncontested case proceeding before the board after the submission of a Centerline location report by the department [of natural resources and conservation].”

A review of the legislative history of Section 75-20-205(2), MCA, indicates the issue of judicial review of final centerline location was considered. Minutes of the meeting, Senate Natural Resources Committee, Montana State Senate, Consideration of HB 750 (March 25 and 28, 1985). Representatives of environmental groups proposed an amendment which would have required the final centerline location to be determined in a contested case proceeding. This would have triggered the judicial review section of MAPA, Sections 2-4-701 through -711. Both MPC and the Department of Natural Resources and Conservation (DNRC) opposed the amendment. Larry Fasbender, director of DNRC, argued that changing “noncontested case” to “contested case” would indicate the legislature preferred a contested case hearing. The motion to amend the language was withdrawn, and HB 750 was passed as it now reads in Section 75-20-205.

The foregoing indicates that the legislature did not intend the final centerline determination by the Board to be subject to judicial review. In other words, once the specific route of the transmission line has been set by the Board, no court has jurisdiction to hear challenges to the location of the route. We therefore hold that by enacting Sections 75-20-205(2) and 75-20-407, MCA, the legislature has limited the court’s jurisdiction in eminent domain cases to hear challenges to the necessity of taking private property when such property is taken in compliance with the Montana Major Facility Siting Act.

By this holding, we do not intend to give the condemnor free rein in complying with the laws of eminent domain. In the complaint, the condemnor must still allege the facts necessary to be found in Section 70-30-111, MCA, as well as the other requirements of Section 70-30-203, MCA. However, the preponderance of the evidence on the Section 70-30-111 findings which must be proven to the court before a preliminary condemnation order is issued is satisfied by appending to the complaint the Board’s certificate of environmental compatibility and public need and the Board’s findings of fact, opinion, decision, order and recommendations.

We further note that a landowner is not without judicial remedy when there has been an abuse of discretion on the part of the Board, the DNRC, or the condemnor. In addition to challenges of abuse of discretion brought after the certificate has initially been granted, Section 75-20-406, a landowner may challenge the lack of enforcement of conditions of the certificate under Section 75-20-404. In this case, the certificate was issued to MPC on the condition that the final centerline would be located in cooperation with individual landowners over whose lands the transmission line would pass. Another condition of the certificate was that the selection of the final centerline would, as far as possible, avoid skylining and crossing irrigated or potentially irrigable lands except on property boundaries. Thus if the landowners felt these conditions were being breached, their proper remedy lies in a mandamus action under Section 75-20-404.

DUE PROCESS

In Issues 7 and 9, the landowners raise questions of due process under the Montana Constitution, Art. II, Section 17. MPC argues that constitutional issues may not be raised for the first time on appeal. However, this rule is subject to the exception that issues raised for the first time will be heard when they relate to the fundamental rights of the parties. Halldorson v. Halldorson (1977), 175 Mont. 170, 173, 573 P.2d 169, 171. We find that the taking of private property for public use is a fundamental right under our Constitution, and we will therefore consider the due process issues raised by the landowners.

The landowners argue that their right to an opportunity to be heard has been violated by the District Court, in its refusal to hear evidence from them on the issue of necessity, and by the Siting Act, by its failure to require recording and notice of the power line corridor.

“Due process does not require notice and hearing at any particular stage of an administrative proceeding leading to a deprivation . . . but only ‘at a meaningful time and in a meaningful manner.’ ” Auclair v. Vermont Elec. Power Co., Inc. (1974), 133 Vt. 22, 329 A.2d 641, 645 (citing Armstrong v. Manzo (1965), 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62, 66).

This Court has stated:

“[Due process] requires an orderly proceeding adapted to the nature of the case and in accordance with law, in which the person has an opportunity before the taking to be heard, and to defend, protect and enforce his rights. Before the property of a person can be taken by another and converted to his own use, a hearing or opportunity to be heard is absolutely necessary.”

Sorensen v. Jacobson (1951), 125 Mont. 148, 154-155, 232 P.2d 332, 336. The question is at which point the individual has the right to be heard, so that the hearing is conducted at “a meaningful time and in a meaningful manner.” As we stated in Sorensen, the lawful procedure by which a citizen is deprived of property is related to the nature of the case and the applicable law. Id. The law in this case, as previously discussed, involves both the Siting Act and the Eminent Domain Act. We must scrutinize what happened here to determine whether the landowners had an adequate opportunity for notice and hearing prior to the taking of their property.

In this instance the Board granted MPC’s certificate of environmental compatibility and public need subject to the following conditions:

“C. The final location of the centerline of the right-of-way of the transmission line within the approved corridor is subject to approval by the board. The selection of the final centerline location shall, as far as possible, avoid skylining, will avoid closely paralleling main highways, will avoid crossing irrigation or potential [sic] irrigated lands except on property boundaries, will cross roads and other streams directly rather than obliquely and will otherwise be so designed and constructed including the painting green of poles in forested areas and the minimizing of clear cutting so as to reduce to the fullest extent possible the visual impact of the lines.
“D. The final proposed location of the centerline of the transmission facility shall be located in cooperation with and consultation with the applicant [MPC], the Department of Natural Resources and Conservation and the individual landowners whose lands the said transmission facility passes over, through and across so as to mitigate the effects of said transmission facilities on the individual landowner. When the applicant submits the final proposed location of the centerline for the final approval of this board, they [sic] shall include information substantiating compliance with this related condition.”

A review of the record indicates letters were sent to the appellant landowners on at least three separate occasions notifying them of public meetings to gather landowner comment on the proposed centerline location. On-site inspections and discussion of the proposed centerline location and alternative routes were conducted with the landowners by DNRC and MPC in October, 1984, May, 1985, and July, 1985. A detailed report to the Board was prepared by DNRC evaluating the alternative centerlines for the Canyon Mountain segment of the Clyde Park — Emigrant 161 kv transmission line. The report discussed the landowners’ concerns over the impact of the transmission line on their property, compared the various alternative routes, and explained the reasons for choosing the preferred alternative.

We believe that the procedure outlined above provided adequate opportunity for the landowners to be heard on the subject of where the proposed facility was to be located on their property. Further, violations of the conditions of the certificate may be considered at any time by the District Court. Section 75-20-404, MCA. We therefore hold that the procedure required by the Montana Major Facility Siting Act meets the requirements of due process under the Montana Constitution. We also hold that the District Court did not violate the landowners’ due process rights, in light of our holding limiting a district court’s jurisdiction to determine public necessity under the Siting Act.

Landowners Fondren and Cochran argue that they personally never received notice of the public meetings and notice and comment period involving the initial decision to construct the line since they did not purchase their property until 1980, three years after MPC’s certificate had been issued. While Fondren and Cochran did not have the opportunity to seek judicial review of the Board’s decision to grant the certificate for the corridor, their predecessor-in-interest did. Further, Fondren and Cochran were and are in a position to challenge any violations of the conditions of the certificate. One of the conditions was that the selection of the final centerline location be in consultation and cooperation with the affected land-. owners. The record discloses that Fondren and Cochran were consulted with on at least three separate occasions. If these landowners felt such consultation was ineffective or insufficient, they had a remedy in mandamus under Section 75-20-404.

A final issue we consider is the landowners’ issue No. 5. They claim that since Section 70-30-203(6), MCA, requires a complaint in eminent domain proceedings to contain a statement “that the interest sought is the minimum necessary interest” to be taken, and such a statement does not appear in MPC’s complaint, that therefore the action of the District Court here in determining it had no jurisdiction means it entered a preliminary order of condemnation without finding whether the taking was “the minimum necessary interest.”

Landowners contend such a finding is a necessary part of a district court’s jurisdiction in condemnation cases and must first be found by this District Court before a preliminary order of condemnation can be entered.

In a case arising under the Major Facility Siting Act however, the findings of the Board necessary for the issuance of a certificate are found in Section 75-20-301, MCA. “Minimum necessary interest” in land to be taken by condemnation is not one of the criteria. Instead the Siting Act focuses on the “minimum adverse environmental impact” and that the facility “will serve the public interest, convenience and necessity.” Section 75-20-301(2)(c), (g), MCA. We have set forth earlier in this Opinion the provisions of Section 75-20-407, MCA, which puts great strictures on the power of courts to determine any “issue, case, or controversy concerning any matter” determined by the board in issuing the certificate. The District Court under Section 75-20-407 has no jurisdiction to determine “minimum necessary interest” in this case if such an issue could have been determined in the proceedings before the Board. We find no weight in this issue.

The judgment of the District Court is affirmed, and the cause is remanded for further proceedings.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, GULBRANDSON and HUNT concur.