text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM JOHN RODGERS, Defendant and Appellant.
    No. 92-342.
    Submitted on Briefs November 24, 1992.
    Decided March 30, 1993.
    50 St.Rep. 335.
    257 Mont. 413.
    849 P.2d 1028.

      For Defendant and Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena; and Robert Slomski, Sanders County Attorney, Thompson Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant William John Rodgers was convicted by a jury in the Twentieth Judicial District Court, Sanders County, Montana, of felony theft for the unauthorized taking of property valued in excess of $300 from Burtch Construction with the intent to permanently deprive the owner of his property. Rodgers appeals his conviction. We affirm.

There are four issues on appeal:

1. Was there sufficient evidence presented at trial to support a finding that Burtch owned the property that Rodgers was charged with stealing?

2. Is the issue of prosecutorial misconduct barred by the contemporaneous objection rule?

3. Was there an illegal search of the defendant’s home?

4. Was defendant denied his constitutional right to effective assistance of counsel?

In February 1990, Richard L. Burtch, owner and operator of Burtch Construction, and William J. Rodgers orally agreed to become partners in a secondhand store business. The two men planned to construct a new building to house the store and to locate it on Burtch Construction property. As his contribution to the partnership, Burtch furnished the land, construction materials, laborers, and money for the secondhand store building (referred to as Shop 2). Rodgers supplied his labor.

From February 1990 to April 1991, Rodgers worked on the construction of Shop 2. With Burtch’s permission, Rodgers used tools and supplies owned by Burtch Construction to build the store. Rodgers had a key and unlimited access to the Burtch Construction property and tools.

In late April 1991, Rodgers stopped working on the building and quit the partnership. The day after Rodgers withdrew, Burtch and his foreman went to Shop 2 and noticed there were numerous tools missing. Burtch contacted the Sanders County Sheriffs Office to report the missing items. In accordance with the sheriffs instructions, the Burtchs’ began to develop a list of missing items.

In late August 1991, Burtch’s daughter, Tina, went to Rodgers’ home to inquire about a green washer and dryer set that she had been promised by her parents and that had been stored in Shop 2. During her visit, Tina observed a green washer and dryer set at Rodgers’ residence. When asked if he knew where her parents’ washer and dryer set was, Rodgers told Tina that he had disposed of it at a junk pile on Burtch Construction property. Tina and her father could not find the set in the junk pile.

In September 1991, Tina reported the missing washer and dryer to the sheriffs office. Based on Tina’s information, Deputy Sheriff Perry Mock determined he had probable cause to search Rodgers’ residence. The sheriff was unable to obtain a search warrant at this time because the county attorney was on vacation. Therefore, the sheriff asked Rodgers directly for permission to search his house. Rodgers gave his consent to Deputy Mock.

In his search of Rodgers’ house, Deputy Mock discovered several items which he was able to identify as property which belonged to Burtch. When Deputy Mock opened a cabinet drawer and found a staple gun with the name “Burtch” stamped on its surface, he arrested Rodgers for theft.

Deputy Mock enlisted the assistance of Burtch and his family in an effort to identify more of their property. The Burtch family and one Burtch Construction employee arrived to help. Deputy Mock advised the group not to remove any items, but to find items allegedly belonging to them for the deputy to photograph and catalog.

The search team moved to the residence of Lloyd Mikkelson, Rodgers’ brother-in-law. Mikkelson gave the group permission to search his woodshed. Deputy Mock found several tools in the shed with the name “Burtch” engraved on them. In total, Deputy Mock seized two pickup loads of tools, materials, and appliances from the Rodgers and Mikkelson properties. The value of the two loads was in excess of $300.

On November 21,1991, Rodgers was charged by information with the crime of felony theft in violation of § 45-6-301(l)(a), MCA. At trial, Burtch, his family, Burtch Construction employees, and an appliance repairman identified many of the 60 exhibits introduced as belonging to Burtch. When Burtch could not positively identify a tool or material as his own, he emphasized that he knew he “had one like it,” but that it was now missing.

Rodgers’ son, Keith Rodgers, testified on behalf of his father at trial. During the State’s closing argument, the Prosecutor characterized Keith’s testimony as a deliberate lie. The Prosecutor also told the jurors that defendant Rodgers lied to their faces. Defense counsel for Rodgers did not object to the Prosecutor’s comments during closing arguments. On March 3, 1992, the jury found Rodgers guilty of felony theft.

I.

Was there sufficient evidence presented at trial to support a finding that Burtch owned the property that Rodgers was charged with stealing?

On appeal, Rodgers asserts the State failed to prove that he possessed property owned by Burtch with a value greater than $300, and therefore, the State failed to prove a necessary statutory element for a felony theft charge, pursuant to § 45-6-30 l(6)(b), MCA. Rodgers contends that Burtch’s failure to positively identify some items was evidence that Burtch was not the owner of those items. We disagree and conclude that there was sufficient evidence presented at trial to support a finding that Burtch was the owner of stolen property valued in excess of $300.

Burtch was asked if the washer and dryer exhibit at trial was his washer and dryer. Burtch was unable to recall the brand name of his washer and dryer and to say with certainty that the washer and dryer set presented at trial was his; however, he testified that he owned a washer and dryer set worth $200 and that he stored it in Shop 2 on his property prior to the time it was discovered missing. An appliance repairman testified that he had worked on a washer and dryer set that was owned by Burtch and located in Shop 2. The repairman testified that the serial numbers of the washer and dryer exhibit at trial matched the serial numbers of the washer and dryer on his work order.

At trial, ten tools were introduced into evidence without objection. Each of the ten tools was engraved with the name “Burtch” on its surface and was positively identified as the property of the Burtchs’ or Burtch Construction. These tools included a ratchet and torque wrench, staple gun, wheel barrow, crescent wrench, radio, screw driver, nipper or nibbler, crimping tool, tin snipers, and a 10-inch saw blade. The combined value of these tools was $175.

We conclude there is sufficient evidence in the record to establish that Burtch owned the washer and dryer and the ten tools. Together, the washer and dryer set valued at $200 and the ten tools valued at $175 were worth $375. Therefore, we conclude Burtch owned stolen property sufficient to satisfy the $300 statutory minimum for a felony theft charge. We need not discuss any of the other allegedly stolen items for purposes of affirming Rodgers’ conviction.

II.

Is the issue of prosecutorial misconduct barred by the contemporaneous objection rule?

Rodgers asserts that the State engaged in prosecutorial misconduct when the Prosecutor called the defendant and his son liars during closing argument, argued facts in closing that were not in evidence, and mischaracterized Rodgers’ testimony to infer Rodgers’ guilt. Defense counsel for Rodgers did not object to the Prosecutor’s comments during closing argument. Despite the failure to raise any objections, Rodgers asserts our Court should take notice of the Prosecutor’s improper argument on appeal. Rodgers asserts such prosecutorial misconduct denied him his right to a fair trial as guaranteed by the Sixth Amendment of the United States Constitution and Article II, Section 24, of the Montana Constitution.

This Court has held that it is highly improper for an attorney, in closing argument, to characterize the testimony of a witness as lies, or to identify the party or a witness as a liar. State v. Musgrove (1978), 178 Mont. 162, 172, 582 P.2d 1246, 1253. We restate our strong disapproval of such conduct. However, the contemporaneous objection rule at § 46-20-104, MCA, precludes this Court from considering an alleged error unless a timely objection was made at trial or unless certain statutory criteria are met.

According to Section 46-20-104(2), MCA:

Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgement. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in § 46-20-701(2), MCA.

Section 46-20-701(2), MCA, provides:

No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant establishes that the error was prejudicial as to his guilt or punishment and that:
(a) the right asserted in the claim did not exist at the time of the trial and has been determined retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated were not known to the defendant or his attorney and could not have been ascertained by the exercise of reasonable diligence. [Emphasis added.]

We conclude that Rodgers does not meet any of the three requirements listed in § 46-20-701(2)(a)-(c), MCA. Because Rodgers has not met any of these requirements, his failure to object at trial constitutes a waiver of his constitutional claim. Section 46-20-104, MCA.

Our decision in the present case is supported by the United States Supreme Court decision in Estelle v. Williams (1976), 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126. In Estelle, an accused stood trial before a jury while wearing a prison uniform. The accused made no objection during the trial regarding his having to stand trial in the prison uniform; consequently, the objection was not allowed to be raised on appeal. In Estelle, the United States Supreme Court explained the reasoning behind the rule that failure to raise an objection at trial constitutes waiver of one’s constitutional claim. “[I]f the defendant has an objection, there is an obligation to call the matter to the court’s attention so the trial judge will have an opportunity to remedy the situation.” Estelle, 425 U.S. at 508, n.3, 96 S.Ct at 1695, n.3.

We have addressed the issue of a defendant raising objections for the first time on appeal in a previous Montana case. See State v. Cain (1986), 220 Mont. 509, 717 P.2d 15. In Cain, we stated: “The District Court was never given an opportunity to rule on admission of the statements or to correct itself if admission was not proper. We will not put the trial court in error where it has not been given such a chance.” Cain, 717 P.2d at 19 (citing State v. Weinberger (1983), 204 Mont. 278, 304, 665 P.2d 202, 216).

Rodgers urges this Court to exercise the discretionary powers of the “plain error doctrine” to prevent a manifest injustice in this case. We have stated that the power of discretionary review is only to be used in exceptional cases. State v. Voegele (1990), 243 Mont. 222, 224, 793 P.2d 832, 834.

We have refused to invoke the plain error doctrine in previous cases in Montana when objections to a prosecutor’s closing arguments were made for the first time on appeal. See State v. Laverdure(1990), 241 Mont. 135, 785 P.2d 718; State v. Smith (1988), 232 Mont. 156, 755 P.2d 569; State v. Pease (1986), 222 Mont. 455, 724 P.2d 153. Although we do not foreclose the option to invoke the plain error doctrine in a future case involving prosecutorial misconduct, we decline to invoke the doctrine under the circumstances of this case.

III.

Was there an illegal search of the defendant’s home?

Rodgers contends that the search of his home was illegal. He contends that the voluntary consent form which he signed only granted permission for Deputy Mock to search his home, and that it did not extend to the Burtch family and their employees who assisted Deputy Mock in the search. Rodgers asserts that the search violated his Fourth Amendment right to be free from unreasonable searches and that the search violated his right of privacy under Article II, Section 10, of the Montana Constitution.

We hold that the search of Rodgers’ home was legal and was not in violation of either constitutional provision. Although the consent form provides that Deputy Mock was authorized to search Rodgers’ premises, it does not prohibit Deputy Mock, either expressly or by implication, from requesting assistance in the search. We conclude that when Rodgers gave consent to Deputy Mock to search his home, Rodgers waived any reasonable expectation of privacy in his home, including any limitation on the authority of Deputy Mock to request assistance in the search of Rodgers’ home. See State v. Lerch (Or. Ct. App. 1983), 666 P.2d 840, 845, aff’d, (Or. 1984) 677 P.2d 678.

In a previous Montana case, State v. Yoss (1965), 146 Mont. 508, 409 P.2d 452, the owners of burglarized property accompanied and assisted the police in the search for their possessions, despite the fact that they were not listed on defendant’s voluntary consent form as parties who were given permission to search his premises. We held that the presence of the owners did not make the search illegal in the absence of a showing of any prejudice to the defendant. We explained in Yoss:

We find no merit to defendant’s contention that the fact [the owners] Mr. and Mrs. Maupin accompanied the officers at the time of the search, but were not listed on the voluntary statement given by him[,] would make the search illegal. There is no showing of any prejudice arising from their being present.

Yoss, 409 P.2d at 455.

Similarly, there was no prejudice to Rodgers when the Burtch family and a Burtch Construction employee assisted Deputy Mock in identifying stolen items on Rodgers’ premises. We conclude that the search was not illegal.

IV.

Was defendant denied his constitutional right to effective assistance of counsel?

Based on his assertion that the search of his home was illegal, Rodgers contends that his defense counsel’s failure to move to suppress the evidence seized from the search denied him effective assistance of counsel. We conclude that because the search was legal, defense counsel’s failure to object to the items seized at the search is of no consequence.

When evaluating a claim of ineffective assistance of counsel, this Court applies the two-pronged test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

First, counsel’s performance must be deficient. To assess deficient performance, this Court employs the “ ‘reasonably effective assistance’ test of whether a defendant’s counsel acted within the range of competence demanded of attorneys in criminal cases.” Second, counsel’s deficient performance must have so prejudiced the defendant as to deprive the defendant of a fair trial. The standard for evaluating prejudice is whether a reasonable probability exists that but for counsel’s deficient performance, the trial’s outcome would have been different. [Citations omitted.]

State v. Coates (1990), 241 Mont. 331, 337, 786 P.2d 1182, 1185.

We hold that the second part of the test set forth in Strickland is not satisfied in this case. If defense counsel had moved to suppress the evidence seized from the search of Rodgers’ home (as Rodgers suggests he should have), the motion would not have changed the outcome of the case. Because the search was legal, the fruits of the search would have been allowed into evidence over the objection of defense counsel, and the result would have been the same. Rodgers has not shown that he was prejudiced by his defense counsel’s failure to object to the evidence seized during the legal search. Therefore, we conclude that he was not denied effective assistance of counsel. The judgment of the District Court is affirmed.

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


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    ROBERT L. MILLER, Plaintiff and Appellant, v. THE COUNTY OF GLACIER, MONTANA; WILLIAM BIG SPRINGS, DON KOEPKE, FRED JOHNSON, as members of the Board of County Commissioners of Glacier County, Montana, Defendants and Appellees.
    No. 92-357.
    Submitted on Briefs February 11, 1993.
    Decided March 30, 1993.
    50 St.Rep. 339.
    257 Mont. 422.
    851 P.2d 401.

      For Plaintiff and Appellant: Timothy J. McKittrick, McKittrick Law Firm, Great Falls.
    For Respondent: Gary M. Zadick, Ugrin, Alexander, Zadick & Slovak, Great Falls, and Dennis P. Clarke, Smith, Clarke, Walsh & Gregoire, Great Falls.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an order of the Ninth Judicial District Court, Glacier County, granting a motion to dismiss. We reverse.

The issue on appeal is whether the District Court erred in granting dismissal to the County based upon the inability of Miller to sue in a court of law after he has been through arbitration.

Robert L. Miller (Miller) had been employed by the Glacier County Medical Center from July 3,1979 until his termination in October of 1984. At the time of his termination, Miller was head of the radiology department. While employed with the hospital, Miller’s employment was covered by a collective bargaining agreement.

Miller’s discharge in October of 1984 centered around disposition of an ultrasound machine (machine) which had been purchased by the previous hospital administration. The machine was financed by the First National Bank (Bank) which held a security interest in the machine.

Miller claims that on or about October 29, 1984, he was contacted by hospital personnel and told to crate the machine for pick up by the Bank. Subsequently, according to Miller, he contacted the Bank president and discussed with him the delicate nature of the machine. Miller determined that the best way to make the machine inoperable was to remove the transducers from the machine.

On October 30, Miller’s day off, he went to the hospital, removed the transducers from the machine and delivered them to the Bank. Miller next claims that shortly after delivering the transducers to the Bank he received a call from a co-worker claiming that Miller had been fired. Subsequently, Miller went to the Bank, picked up the transducers and returned them to the hospital.

According to the hospital, Miller was fired for misconduct. The hospital claims that Miller refused to follow the instructions of his supervisor on occasions when he did not agree with her. Miller’s supervisor, Ms. Vogt, had warned Miller to stay away from the ultrasound issue. Also, according to the hospital, when Ms. Vogt asked Miller why he was at the hospital on his day off (October 30) he told her it was none of her business. He then proceeded to dismantle the machine.

Following his termination, Miller went to his Union and filed a grievance. The Union brought Miller’s claim to arbitration. On June 27, 1985, the arbitrator ruled that Miller had been terminated because of insubordination, which constituted just cause under the collective bargaining agreement.

Miller filed a complaint in the Ninth Judicial District Court, on February 19,1985, alleging wrongful discharge, breach of the duty of good faith and fair dealing, defamation, and exemplary damages. This complaint was later amended to include wrongful discharge in violation of public policy and denial of due process according to Title 42, USC § 1983. The original complaint was filed prior to the decision in the arbitration. On that basis, the County moved to dismiss the proceedings in the District Court.

After the filing of significant discovery and other materials throughout the next seven years, the District Court issued a final order on May 29,1992, granting the County’s motion to dismiss. This appeal followed the issuance of that order.

Did the District Court err in granting dismissal to the County based upon the inability of Miller to sue in a court of law after he had been through arbitration?

Miller contends his claims were not preempted by federal law because they are not rooted in the collective bargaining agreement, and as a result, the dismissal by the District Court was improper. Miller also contends that the claims which he has presented could not properly be considered by the arbitrator.

The County contends that Miller has no cause of action in District Court. The County argues that Miller’s claims are either preempted by federal law or are based on privileged activity by the County. Further, the County argues that res judicata or collateral estoppel prevents Miller from having his claims heard in District Court.

The District Court in its May 1992 order, determined that Miller was not entitled to both a district court action and an arbitration. The District Court stated that Miller had failed to allege any grounds for vacating, modifying or correcting the arbitrator’s award.

The issue before us directly involves the collective bargaining agreement executed by Glacier County Medical Center and its employees. The record before us does not include a copy of that contract. For the assistance of the parties and the District Court on remand, we will now review pertinent legal principles. Collective bargaining agreements must be interpreted by application of federal law, not state law. Teamsters Union v. Lucas Flour Co. (1962), 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593. This is known as federal preemption under § 301 of the Labor Management Relations Act of 1947 (LMRA):

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

61 Stat. 156, 29 U.S.C. § 185(a) (1988). See also Foster v. Albertsons, Inc. (1992), 254 Mont. 117, 835 P.2d 720, 49 St.Rep. 638. The United States Supreme Court has interpreted § 301 as a congressional mandate to develop a unified federal common law to address labor contract disputes. Foster, 254 Mont. at__, 835 P.2d at 724, 49 St.Rep. at 640, citing Textile Workers Union v. Lincoln Mills (1957), 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. The preemption under § 301 has been limited to the cases where resolution of the state law claim requires construing a collective bargaining agreement. As stated in Foster, 254 Mont at__, 835 P.2d at 726, 49 St.Rep. at 642:

Lingle [Lingle v. Norge Division of Magic Chef, Inc. (1988), 486 U.S. 399, 1085 S.Ct. 1877, 100 L.Ed.2d 410] holds that a state-law claim is preempted by § 301 only where its resolution requires construing the collective bargaining agreement. This is true even if the state-law analysis involves the same factual considerations as the contractual determination under the collective bargaining agreement of whether the employee was discharged for just cause. Thus, our decision in Brinkman is overruled to the extent that it holds that a state-law claim is preempted merely because resolution of such a claim requires the same analysis of the facts as the contractual determination of just cause under the collective bargaining agreement.

However, a collective bargaining agreement may contain an agreement with the employees that the employee will submit to arbitration “any controversies” arising from the collective bargaining agreement. When such an arbitration provision is included in a contract, it may encompass determination of tort claims within the arbitration itself. Vukasin v. D.A. Davidson & Co. (1990), 241 Mont. 126, 785 P.2d 713. Considering the language of the agreement closely, the arbitrator must then act within the scope of the collective bargaining agreement which he or she is interpreting. Savage Educ. Ass’n v. Richland Co. Elem. Sch. (1984), 214 Mont. 289, 692 P.2d 1237.

Therefore, some collective bargaining agreements are written in such a way that arbitrators are empowered to go beyond the federal common contract law in an attempt to decide controversies existing between the employer and employee. In Zolezzi v. Dean Witter Reynolds, Inc. (9th Cir. 1986), 789 F.2d 1447, the court held that Zolezzi (the employee) had agreed to a clause in the collective bargaining agreement that he would submit to arbitration “any controversy ... arising out of the employment or termination of employment.” Zolezzi, 789 F.2d at 1448. The court held that this enabled the arbitrator to arbitrate intentional tort claims of defamation and invasion of privacy which involved events occurring one year after he quit working for Dean Witter.

Similarly, other circuits have held that an ex-employee’s claims of defamation, invasion of privacy and intentional infliction of emotional distress against the employer were within the scope of the arbitration clause requiring arbitration of “any controversy... arising out of the employment or termination of employment.” Aspero v. Shearson American Express, Inc. (6th Cir. 1985), 768 F.2d 106, 109, cert. denied, 474 U.S. 1026, 106 S.Ct. 582, 88 L.Ed.2d 564. See also Vukasin v. D.A. Davidson & Co. (1990), 241 Mont. 126, 785 P.2d 713.

Without such wording, an arbitrator is confined to use of federal common contract law in interpreting a collective bargaining agreement. When this is the case, claims that are not preempted by federal contract law and, therefore, are not rooted in the collective bargaining agreement, are capable of being litigated in court. Miller’s complaint alleges defamation and other state-law tort claims as well as U.S. constitutional claims such as § 1983 claims and equal protection. The resolution of these claims was not considered by the arbitrator and Miller argues that their determination is not rooted in the collective bargaining agreement.

We emphasize that the United States Supreme Court has determined that § 1983 claims represent an issue which the Congress intended to be judicially determined. McDonald v. West Branch (1984), 466 U.S. 284, 290, 104 S.Ct. 1799, 1803, 80 L.Ed.2d 302, 308. According to the Supreme Court, arbitration cannot provide an adequate substitute for judicial proceedings on this issue. McDonald, 466 U.S. at 289, 104 S.Ct at 1802. Thus, the Court found that even when an arbitrator considers constitutional issues, such issues are not precluded from subsequent litigation by the theories of res judicata and collateral estoppel. McDonald, 466 U.S. at 289, 104 S.Ct at 1802.

In so deciding, the Court delineated reasons for its holding. The Court noted that arbitrators do not necessarily have the expertise required to resolve the complex legal questions that arise in § 1983 actions. McDonald, 466 U.S. at 290, 104 S.Ct. at 1803. Further, an arbitrator’s authority is derived solely from the contract; therefore, the arbitrator does not have the inherent authority to enforce § 1983 decisions. McDonald, 466 U.S. at 290,104 S.Ct. at 1803. Also, § 1983 claims are individual claims; yet in most cases, it is the union which pursues the contract action on behalf of the employee. Under these circumstances, there is no guarantee that the union’s interest exactly parallels the employee’s individual interest. McDonald, 466 U.S. at 291,104 S.Ct at 1803-04. Therefore, we conclude that Miller’s § 1983 claim is justiciable in a court of law, regardless of the arbitration decision.

We conclude that the District Court should be reversed in dismissing the plaintiffs claims in District Court on the grounds that he had been through arbitration. Clearly, Miller’s § 1983 claim must be considered by the District Court. Because of the absence of a copy of the collective bargaining agreement, we are not able to comment on which of Miller’s state-law claims may be justiciable in District Court.

We reverse the holding of the District Court and remand to the District Court for consideration of Miller’s various state-law claims in light of the authority cited in this opinion and for consideration of his § 1983 claim.

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

JUSTICE TRIEWEILER did not participate in this decision.


author: CHIEF JUSTICE TURNAGE

text:
    JOAN MINNIE and KENNETH MINNIE, Plaintiffs and Appellants, v. THE CITY OF ROUNDUP, MONTANA, and VICKI KNUDSEN, Defendants and Respondents.
    No. 92-384.
    Submitted on Briefs January 28, 1993.
    Decided March 30, 1993.
    50 St.Rep. 342.
    257 Mont. 429.
    849 P.2d 212.

      For Plaintiffs and Appellants: Kevin M. Funyak, Billings.
    For Defendants and Respondents: Mark D. Parker, Parker Law Firm, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Joan and Kenneth Minnie (the Minnies) appeal an order granting summary judgment in favor of the City of Roundup, Montana (Roundup) entered in the District Court for the Fourteenth Judicial District, Musselshell County. This appeal involves only that portion of the District Court’s summary judgment order pertaining to the Minnies’ 42 U.S.C. § 1983 civil rights claim. We reverse the District Court in part.

Although the Minnies raise two issues for our consideration, because of our holding, we address only one. We restate that issue as:

Did the District Court apply the correct standard to Roundup’s motion for summary judgment?

In 1979 Joan Minnie (Minnie) was hired as the City Clerk for Roundup. Prior to that time, Minnie had been the City Water Clerk for Roundup. In July 1990 Minnie was terminated by Roundup as the City Clerk. After her termination, the Minnies filed a complaint against Roundup and thirteen individuals alleging they were liable for wrongful termination.

The Minnies’ complaint alleged that Roundup and the other thirteen named defendants were liable for Joan Minnie’s wrongful termination under § 39-2-901, MCA, et. seq. Additionally, the complaint alleged: breach of the covenant of good faith and fair dealing; negligent infliction of emotional distress; intentional infliction of emotional distress; loss of consortium; and violation of the Open Meeting Act, § 2-3-203, MCA. Furthermore, Joan Minnie alleged violation of her constitutional rights pursuant to 42 U.S.C. § 1983.

In September 1991 both Roundup and Vicki Knudsen (Knudsen), the City Attorney, moved the District Court for summary judgment as to all claims against them. After a hearing on the motion, the District Court granted summary judgment in favor of Roundup and Knudsen. The District Court concluded that the Minnies’ claim against Roundup was barred by the statute of limitations in § 39-2-911, MCA. It also concluded that Roundup had the absolute power pursuant § 7-4-4105, MCA, to terminate the City Clerk. Finally, the District Court concluded the bare allegations in the Minnies’ pleadings as to the 42 U.S.C. § 1983 civil rights claim did not create an issue of material fact and therefore summary judgment was proper.

We note that although Knudsen appears as a respondent in this appeal, the Minnies advance no argument contending the District Court erred in granting summary judgment in her favor. In their reply brief, the Minnies state they are only appealing the order of summary judgment in favor of Roundup. Furthermore, after entry of the summary judgment order, the remaining twelve defendants named in the complaint were dismissed by stipulation of the parties. Therefore, they are not considered in this appeal.

In its summary judgment order, the District Court certified its order as a full and final judgment for purposes of appeal pursuant to Rule 54(b), M.R.Civ.P. This appeal is taken only from that portion of the District Court’s order pertaining to the Minnies’ § 1983 civil rights claim.

Was the standard applied by the District Court to Roundup’s motion for summary judgment correct?

As with all summary judgment appeals, our standard of review is de novo. That is, we review an order of summary judgment by utilizing the same criteria used by the District Court initially under Rule 56, M.R.Civ.P. Kronen v. Richter (1984), 211 Mont. 208, 211, 683 P.2d 1315, 1317. We determine whether “there is no genuine issue of material fact, and the moving party is entitled to the judgment as a matter of law.” Gamble Robinson Company v. Carousel Properties (1984), 212 Mont. 305, 311, 688 P.2d 283, 286. In this case, summary judgment was an improper vehicle by which to dismiss this action because the record is devoid of the required showing of proof entitling Roundup to judgment as a matter of law.

Roundup contends that its motion was properly brought pursuant to Rule 56(b), M.R.Civ.P. Under Rule 56(b), M.R.Civ.P., a defendant against whom a claim has been asserted, may “move with or without supporting affidavits for a summary judgment in the party’s favor as to all or any part thereof.” Roundup argues the affidavit filed by Knudsen was sufficient under Rule 56(e), M.R.Civ.P., to shift the burden to the Minnies to come forward with proof showing there was a genuine issue of fact for trial. We do not agree. Roundup merely bootstraps itself to the affidavit of Knudsen in an attempt to place itself in the summary judgment arena.

The party opposing a motion for summary judgment has the burden of demonstrating the presence of a genuine issue as to some material fact when the movant has met its initial burden of demonstrating there is no genuine issue as to any material fact. Peschel v. Jones (1988), 232 Mont. 516, 521, 760 P.2d 51, 54.

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegation ... of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Rule 56(e), M.R.Civ.P. (emphasis added). In order to meet this initial burden, the moving party must support its motion for summary judgment with an appropriate evidentiary basis before the burden shifts to the non-moving party to set forth facts demonstrating that a genuine issue exists. Mathews v. Glacier General Assurance Co. (1979), 184 Mont. 368, 381, 603 P.2d 232, 239.

The appropriate evidentiary basis required under Rule 56(e), M.R.Civ.P., to support a summary judgment motion, is found under section (c) of Rule 56. When a party moves for summary judgment:

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

Rule 56(c), M.R.Civ.P. In this case, Roundup presented nothing outside its responsive pleading and the argument of counsel to support its summary judgment motion. The affidavit of Knudsen was not applicable to Roundup’s summary judgment motion.

“On a motion for summary judgment the issues presented by the pleadings are not controlling.” Brown v. Thorton (1967), 150 Mont. 150, 155, 432 P.2d 386, 389. Rather, in light of the pleadings, and the evidence before the court, there must be no material issue of fact remaining which would entitle the non-moving party to recover. Marriage of Hoyt (1985), 215 Mont. 449, 454, 698 P.2d 418, 421.

Here, no such evidence was before the District Court. Roundup failed to satisfy the requirement that it support its motion with an appropriate evidentiary basis. Mathews, 603 P.2d at 239. Therefore, the Minnies were under no obligation to do more than simply rest upon the allegations contained in their complaint. Mathews, 603 P.2d at 239. Under the facts of this case, we hold the District Court erred in shifting the burden of coming forth with proof to the Minnies, when Roundup failed to initially support its summary judgment motion with an appropriate evidentiary basis.

As we have held the District Court erred in granting Roundup’s summary judgment motion because it failed to satisfy the requirements of Rule 56, M.R.Civ.P., we do not address whether the Minnies’ complaint properly pleads a cause of action under 42 U.S.C. § 1983. That portion of the District Court’s order granting summary judgment in favor of Roundup is reversed.

JUSTICES GRAY, HUNT, McDONOUGH and WEBER concur.


author: JUSTICE McDONOUGH

text:
    JACK MURER, JAY HARBRIGE, LARRY MACK, SUSAN VERNON, WILLIAM LOGAN, STEVE PRICKETT, JAMES BROWN, KEITH MORDJA, and BRUCE NELSON, in their individual capacities and also in their capacities as representatives of a class of workers’ compensation and occupational disease claimants and beneficiaries described herein, Petitioners and Appellants, v. MONTANA STATE COMPENSATION MUTUAL INSURANCE FUND, AND ALL PLAN I AND II INSURERS OF THE CLASS OF CLAIMANTS AND BENEFICIARIES, Defendants and Respondents.
    No. 92-479.
    Submitted on Briefs January 28, 1993.
    Decided March 30, 1993.
    50 St.Rep. 344.
    257 Mont. 434.
    849 P.2d 1036.

      For Petitioners and Appellants: Allan M. McGarvey, McGarvey, Heberling, Sullivan & McGarvey, Kalispell.
    For Defendants and Respondents: State Compensation Mutual Insurance Fund, Helena; Montana Department of Labor & Industry, Helena; Bradley J. Luck & Michael C. Prezeau, Garlington, Lohn & Robinson, Missoula; William J. Mattix & Joe C. Maynard, Crowley Law Firm, Billings; Kristine L. Foot, Missoula; Sue Harold, Schaumberg, Illinois; Geoffrey R. Keller, Billings; Thomas A Marra, Great Falls; Oliver H. Goe, Helena; Norman H. Grosfield, Helena; Alan J. Joscelyn, Gough, Shanahan, Johnson and Waterman, Helena; Paul Haffeman, Cure Borer & Davis, Great Falls; and Kyle A Gray, Paul D. Miller and James Ragain, Holland & Hart, Billings.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order of the Workers’ Compensation Court. We affirm.

The issue is whether the Workers’ Compensation Court erred in denying class certification to the claimants.

Claimants are nine workers injured between July 1,1987 and June 30, 1991. These claimants, and the alleged class they represent, are entitled to various benefits: maximum total disability, partial disability, rehabilitation and/or death benefits. For maximum benefits for total disability the respondents (insurers) have paid $299, claiming there is a permanent “cap” on such benefits under statutory provisions substantially identical to the following:

Notwithstanding subsection (3), beginning July 1, 1987, through June 30, 1989, weekly compensation benefits for temporary total disability may not exceed the state’s average weekly wage of $299 [or the limit as provided], established July 1, 1986.

See § 39-71-701(5), MCA (1987), cf. § 39-71-702(6), MCA; § 39-71-703(3), MCA; § 39-71-721(8), MCA; and § 39-71-1024(3), MCA (1987). The same statutory provisions were continued by the 1989 Legislature and expired on June 30, 1991. The essence of the claimants’ claim is that the weekly benefit limitations of the subsections were temporary in nature and therefore after the cap expired on June 30, 1991, the insurers are obligated to bring past weekly benefit payments up to two-thirds of the time-of-injury wage, limited only by the State’s average weekly wage for the year in which the claim arose. The insurers have refused to make such payments.

The claimants then filed a class action suit in the Workers’ Compensation Court, asking for a declaratory ruling as to the meaning of the subsections. They seek judgment ordering the restitution of the benefits improperly withheld. The claimants’ counsel has represented that the proposed class of claim ants would consist of as many as two thousand claimants and there appear to be more than two hundred insurers.

Although the Workers’ Compensation Court rules do not provide for class action certification, the Workers’ Compensation Court applied Rule 23, M.R.Civ.P., to this question. We have previously approved the Workers’ Compensation Court seeking guidance from the Montana Rules of Civil Procedure. See Moen v. Peter Kiewit & Sons, Co. (1982), 201 Mont. 425, 434, 655 P.2d 482, 486.

Our scope of review is whether the trial court’s decision is an abuse of discretion. City Johnson v. City of Opelousas (5th Cir. 1981), 658 F.2d 1065, 1069; Boggs v. Alto Trailer Sales, Inc. (5th Cir. 1975), 511 F.2d 114, 117. A class action is a “procedural device for promoting the economic and efficient disposition of justiciable controversies.” Harriss v. Pan American World Airways, Inc. (N.D.Cal. 1977), 74 F.R.D. 24, 42. Therefore, trial courts are vested with discretion because they are in the best position to determine the most efficient manner of resolving controversies, taking into account the particular circumstances of the case and the court’s own resources. This is especially true of the Workers’ Compensation Court because it is the only court in the State of Montana having trial court jurisdiction over the subject matter. The Workers’ Compensation Court is best acquainted with its case load, time schedules, and resources. The trial court is in the best position to consider the most fair and efficient procedure for conducting any given litigation. See Doninger v. Pacific Northwest Bell, Inc. (9th Cir. 1977), 564 F.2d 1304, 1309.

As one of the reasons for denying the class action, the Workers’ Compensation Court stated that this action did not comply with Rule 23(a), M.R.Civ.P., which sets forth the prerequisites to a class action, all of which the claimants must meet. Inasmuch as the failure of one of the prerequisites is fatal to the certification of a class action, we will not discuss the other reasons the Workers’ Compensation Court gave in denying the class action. Rule 23(a), M.R.Civ.P., states:

Rule 23(a). Prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

The Advisory Committee’s notes reflect prudence and caution in the authorization of class actions and our approach to Rule 23(a) is in this view and spirit, especially as an appellate court. The Workers’ Compensation Court held that, here, subsection (3) of the prerequisites has not been met. Such prerequisite essentially provides that one or more members of a class may sue or be sued as representative parties on behalf of all, only if the claims or defenses of the representative parties are typical of the claims or defenses of the class.

The requirement of Rule 23(a)(3), is typicality. The Workers’ Compensation Court found that the appellants failed to satisfy this requirement. The court in its order stated:

The petitioners are nine identified individuals. Though the petition does not specify which insurers these nine have claims pending against, the Court does not believe that a purported “class action” was ever intended as a vehicle to ferret out not only class members but defendants as well. Even if we were to assume that these nine individuals can represent a “class” they can only represent a class of which they are a member, i.e. claimants who have claims against the same insurer as the representative. The Court has found no authority and petitioners cite none which would permit an unknown number of class members, yet to be identified to blindly sue an unknown number of defendants. In essence, the way in which the pleadings are drafted creates not only a class of petitioners but also a “class of defendants.”

There would be many different situations among the estimated two thousand claimants who would be included within this class action so that the typicality of the Rule requirement could not be met. Claimants would include unrepresented claimants and those who are already represented by other attorneys, who are suffering either from an industrial injury or occupational disease; claimants whose cases are either open or have been settled; claimants who may be entitled to either a temporary total or permanent total wage supplement impairment, rehabilitation, or death benefit; and different rates for various claimants, depending on whether they were injured or were disabled by an occupational disease. There would be other variables relative to the award of attorney fees and the imposition of penalties with two thousand claimants and two hundred insurers. There are times when competent counsel are not able to fairly and adequately protect the interest of the class.

Generally in the application of the typicality requirement of Rule 23(a)(3), the plaintiffs are not entitled to bring a class action against defendants with whom they have had no dealings. There are numerous defendants in this action with which the plaintiffs have had no dealing. The leading case construing this requirement is La Mar v. H & B Novelty and Loan Co. (9th Cir. 1973), 489 F.2d 461. The court stated: “in our view, under proper application of Rule 23 of the Federal Rules of Civil Procedure, the plaintiffs here are not entitled to bring a class action against defendants with whom they had no dealing.” La Mar, 489 F.2d at 464.

The third prerequisite was that the claims of the representative parties be typical of the class. Obviously this requirement is not met when the “representative” plaintiff never had a claim of any type against any defendant. There is nothing in the rule to suggest that the zeal or talent of the “representative” plaintiffs attorney can supply this omission. We believe that this prerequisite is also lacking when the plaintiffs cause of action, although similar to that of other members of the class, is against a defendant with respect to whom the class members have no cause of action. Those who purchased tickets from the appellee airlines, from whom the representative plaintiff purchased no tickets, have no cause of action by reason of such purchases against the airline from whom the representative plaintiff purchased. In brief, typicality is lacking when the representative plaintiffs cause of action is against a defendant unrelated to the defendants against whom the cause of action of the members of the class lies.

La Mar, 489 F.2d at 465. In La Mar, the Ninth Circuit Court of Appeals set forth two specific exceptions regarding the typicality requirement of Rule 23(a), Fed.R.Civ.P. One would be if the injuries suffered were the result of a conspiracy or concerted scheme between the defendants. That is not the case here.

The second exception might occur relative to instances in which all defendants are juridically related in a manner that suggests a single resolution of the dispute will be expeditious. What constitutes a juridical relationship or link is difficult to define and articulate. The connective link must go beyond mere commonality or parallel actions between defendants. See Newberg on Class Actions, 2nd Edition, 1984. The appellants allege that the cases which have found a juridical link to exist between defendants are fact based. One such fact-based juridical link is where the various defendants are related instrumentalities of a single state, such as various law enforcement agencies or welfare agencies. This is not the case here; even though the State Compensation Mutual Insurance Fund is an instrumentality of the State, the other defendants are not.

The only Montana related case cited was Union Pacific Railroad v. Woodahl (D.Mont. 1970), 308 F.Supp. 1002. This also concerned the application of a state statute by state officials. That case is different than the present situation because there all of the defendants were instrumentalities of the State of Montana: the attorney general and all county attorneys. Such parties involved instrumentalities of a state who are charged with the enforcing of or acting in accordance with the challenged state statute. Again the great majority of the defendants here are not instrumentalities of the State, nor is there any type of association or contractual relationship between the defendants. There is also no linkage between the defendants, such as industry-wide collective bargaining agreements, or any other type of industry-wide agreement, any type of holding entity or claims management association, or the like.

We therefore conclude there is no showing of sufficient juridical links among the defendants from which we can determine that the Workers’ Compensation Court abused its discretion in denying certification for failure to comply with the prerequisite of Rule 23(a)(3), M.R.Civ.P.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TROY COGGINS, Defendant and Appellant.
    No. 92-530.
    Submitted on Briefs February 12, 1993.
    Decided March 30, 1993.
    50 St.Rep. 347.
    257 Mont. 440.
    849 P.2d 1033.

      For Defendant and Appellant: William F. Hooks, Appellate Defender, Helena.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; Christopher G. Miller, Powell County Attorney, Deer Lodge.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Troy Coggins pleaded guilty to a charge of theft filed in the District Court for the Third Judicial District, Powell County. He appeals from the District Court’s denial of his motion to withdraw his plea. We affirm.

The issue is whether the court abused its discretion in refusing to permit Coggins to withdraw his plea.

Coggins was charged by information with felony theft. The affidavit for leave to file the information alleged:

On June 28,1991 Ken Fenner reported to the Deer Lodge Police Department that several tools, including a Makita Cordless Drill, had been stolen from his truck while it was parked on Main Street in Deer Lodge, Montana. On July 7, 1991 Bill Crichton reported that a Milwaukee Saw All and other tools had been stolen from an apartment at 702 Missouri, Deer Lodge, Montana between July 3 and July 7,1991. On July 10,1991 Deer Lodge Police Department Officer Mike Grey was informed that Ted Johnson had recently purchased a Makita Drill from Troy Coggins.
Grey contacted Johnson, who brought the drill in for inspection. The drill was identified by Ken Fenner as the one stolen from his truck. Johnson stated that he had bought the drill from Troy Coggins on July 3,1991. Johnson also told Grey that Coggins had offered to sell him a Milwaukee Saw All.
Further investigation by Officer Grey revealed that Troy Cog-gins had pawned a Milwaukee Saw All to Darrell Bowman on July 6, 1991, and that Coggins had redeemed the tool on July 7, 1991. The Saw All has not been recovered. The value of the tools is in excess of $300.

At his initial appearance, Coggins entered a plea of not guilty. On the morning of trial, however, he filed with the court a written acknowledgement of waiver of rights by a plea of guilty, and his attorney advised the court that Coggins wished to change his plea to “guilty.” The following exchange occurred:

THE COURT: It indicates in the agreement that you have doubts about your guilt but you are prepared to and do enter a plea of guilty, that you do that based on all the facts that have been told to you in this case and presented to you by your Counsel. Is that correct?
COGGINS: Yes, sir.

After Coggins formally pleaded guilty, the court granted his request for written approval to leave the state and visit his mother, who was seriously ill in Oregon.

At his sentencing hearing five months later, Coggins moved for permission to withdraw his plea. He maintained that he was innocent of the theft of the Milwaukee Saw All and that the value of the drill was not sufficient to support a felony charge. He also maintained that, because of his mother’s illness, he was under emotional stress at the time he entered his plea. The motion was briefed and argument was heard. The District Court denied Coggins’ motion, finding that it was untimely and that Coggins was not under sufficient stress at the time he entered his plea to prevent him from understanding what was going on.

Did the District Court abuse its discretion in refusing to permit Coggins to withdraw his plea?

Section 46-16-105(2), MCA, provides:

At any time before or after judgment the court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.

The determination of good cause to withdraw a guilty plea is based upon three factors: the adequacy of the court’s interrogation as to the defendant’s understanding of the plea; the promptness of the defendant’s motion to withdraw the plea; and the fact that the defendant’s plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge. State v. Long (1987), 227 Mont. 199, 201, 738 P.2d 487, 489. Absent an abuse of discretion, this Court will affirm a district court’s refusal to permit the withdrawal of a guilty plea. Long, 738 P.2d at 489.

Coggins contends on appeal that the State made no offer of proof whatsoever with regard to the Milwaukee Saw All. He also contends that the court’s interrogation of him was inadequate because he did not declare in open court the facts upon which his guilt is based. Coggins argues that in a case such as this, in which the defendant has entered an Alford plea (not acknowledging guilt but acknowledging only that the evidence is such that he will likely be found guilty, as in North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162), a heightened scrutiny of the factual basis of the plea is required.

In moving the District Court to allow him to withdraw his plea, Coggins challenged neither the sufficiency of the evidence nor the adequacy of the court’s interrogation of him at the time he entered his plea. He first raised these claims in this appeal. We will not reverse the District Court based upon these claims which could have been but were not brought before that court.

As the District Court noted, Coggins’ bench trial was expected to last only two or three hours and the court had agreed to allow him to go to Oregon to be with his mother regardless of the outcome of the trial. To a large degree, these facts negate Coggins’ claim that the stress of wanting to be with his mother during her illness induced him to enter his guilty plea. As the District Court stated, “the record merely reflects [Coggins’] dissatisfaction with his decision to enter an Alford Plea.”

Coggins argues that a motion to withdraw a plea is timely if it is made prior to sentencing, and that, under the circumstances here presented, his motion to withdraw the plea was made within a reasonable time. However, in light of his statement that he knew from “[t]he minute [he] made the plea” that it was a mistake, Coggins has not shown any reason why he did not file his motion sooner. As the District Court noted, Coggins spent some time in Oregon and one month in alcohol treatment between the entry of his plea and his sentencing, but there is no indication that he was unable to contact his attorney during those periods. He also participated in preparation of the presentence report during the five months before he moved to withdraw his plea.

The third factor in determining whether good cause exists to allow withdrawal of a guilty plea reflects the courts’ aversion to lending assistance to an accused criminal in escaping the obligations of his plea agreement after accepting the benefits thereof. State v. Huttinger (1979), 182 Mont. 50, 62, 595 P.2d 363, 370. The benefit granted to Coggins in this case was the sentencing recommendation of the prosecution. Because Coggins made his motion to withdraw his plea prior to being sentenced, this factor weighs neither for nor against granting the motion to withdraw the plea.

We hold that the District Court did not abuse its discretion in denying Coggins’ motion to withdraw his plea. We therefore affirm the judgment of the District Court.

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


author: JUSTICE HUNT

text:
    THE STATE OF MONTANA EX REL. VERA L. DREHER, Plaintiffs and Appellants, v. DAVID E. FULLER, LINDA STOLL-ANDERSON and JIM CAMPBELL, THE LEWIS AND CLARK COUNTY BOARD OF COMMISSIONERS, Defendants and Respondents.
    No. 92-300.
    Submitted on February 10, 1993.
    Decided March 31, 1993.
    50 St.Rep. 349.
    257 Mont. 445.
    849 P.2d 1045.

      For Plaintiffs and Appellants: Jacqueline T. Lenmark, Keller, Reynolds, Drake, Johnson & Gillespie, Helena.
    For Defendants and Respondents: Mike McGrath, Lewis & Clark County Attorney, and K. Paul Stahl (Argued), Lewis & Clark Deputy County Attorney, Helena.
    For Amicus Curiae: Tom K. Hopgood, Luxan & Murfitt, Helena; James G. Goetz, Richard J. Dolan, Goetz, Madden & Dunn, Bozeman; and Mona Jamison, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Vera L. Dreher appeals from an order of the First Judicial District Court, Lewis and Clark County, dismissing her action seeking a writ of mandamus and declaratory judgment that the Montana Subdivision and Platting Act is unconstitutional. We affirm.

Appellant presents several issues and sub-issues for this Court to review. We restate the issues as follows:

1. Does the Montana Subdivision and Platting Act impermissibly delegate legislative authority to the Lewis and Clark County Commissioners?

2. Does the “rebuttable presumption” of evasion contained in the Lewis and Clark County subdivision regulations violate the due process rights of appellant?

3. Does the retroactive use of valid subdivision exemptions to establish an impermissible “pattern” of land divisions impair the substantive rights of appellant?

This case comes on for appeal with an agreed statement of facts. In 1962, Dreher and her husband purchased approximately 132 acres of land in Colorado Gulch, located just west of Helena. From 1963 until 1989, Dreher sold various parcels of the original tract to other parties. Many of the conveyances were under the appropriate exemptions of the Montana Subdivision and Platting Act (Act).

On June 7, 1988, the Lewis and Clark County Board of Commissioners approved a resolution adopting subdivision regulations for the County under the authority of § 76-3-501, MCA. The regulations included “Criteria for Review of Claimed Exemptions from Provisions of Subdivision and Platting Act.” Subdivision Regulations Appendix J, J-1 to J-7.

On April 3, 1989, Dreher applied for approval of the creation of a six-acre tract based on an occasional sale exemption. On May 9,1989, Lewis and Clark County denied the request on the basis that the proposed division did not comply with the newly enacted county subdivision regulations.

The regulations in question creates a rebuttable presumption that the division was an inappropriate use of the occasional sale exemption. The rebuttable presumption arose because previous transactions within the original parcel created three or more parcels that were subdivided from the original tract; the division fit a pattern of land divisions and transfers; and the division was similar to prior transfers from the original tract of land. See, Subdivision Regulations Appendix J, Section D(4)(b)(3), (5), and (6).

Based upon the County’s denial of the proposed division, appellant filed an action in District Court seeking a writ of mandamus and declaratory judgment alleging the unconstitutionality of the Act. The District Court ruled against appellant on April 17, 1992. It is from this order that appellant appeals.

I.

Does the Montana Subdivision and Platting Act impermissibly delegate legislative authority to the Lewis and Clark County Commissioners?

When determining the constitutionality of a statute, we give a strong presumption that the statute is constitutionally valid. McClanathan v. Smith (1980), 186 Mont. 56, 606 P.2d 507. Presumption of the validity applies to all legislative enactments and it is this Court’s responsibility to resolve all conceivable doubts in favor of the validity of the statute when possible. McClanathan, 186 Mont. at 65, 606 P.2d at 512. The party challenging the constitutional validity of a statute has the burden of proving its unconstitutionality. McClanathan, 186 Mont. at 65, 606 P.2d at 512.

The Montana Subdivision and Platting Act was enacted by the Legislature in 1974 to give local government entities the power to regulate subdivision development to protect the health, safety, and welfare of the public. Sections 76-3-102 and -501, MCA. Legislation enacted for such a beneficent purpose is to be liberally construed. State ex rel. Florence-Carlton School District No. 15-16 v. Board of County Commissioners of Ravalli County (1978), 180 Mont. 285, 291, 590 P.2d 602, 605. Accordingly, the exemption provisions of the Act are to be generally given a narrow interpretation. Florence-Carlton School Dist., 180 Mont. at 291, 590 P.2d at 605.

Section 76-3-501(1) and (2), MCA, grants the following authority to local entities:

(1) Before July 1,1974, the governing body of every county, city, and town shall adopt and provide for the enforcement and administration of subdivision regulations reasonably providing for the orderly development of their jurisdictional areas ...
(2) Review and approval or disapproval of a subdivision under this chapter may occur only under those regulations in effect at the time an application for approval of a preliminary plat or for an extension under 76-3-610 is submitted to the governing body.

As set out in § 76-3-207, MCA, the Act exempts certain conveyances including “occasional sales” from its mandate:

(1) ... [U]nless the method of disposition is adopted for the purpose of evading this chapter, the following divisions of land are not subdivisions under this chapter ...
(d) a single division of a parcel outside of platted subdivisions when the transaction is an occasional sale .... [Emphasis added.]

An “occasional sale” is defined as “one sale of a division of land within any 12-month period.” Section 76-3-103(7), MCA.

Appellant claims that the statutory preamble to the Act’s exemptions amounts to an unconstitutional delegation or usurpation of legislative authority on the basis that the Act contains insufficient guidelines as set out in §§ 76-3-102 and -501, MCA. Appellant relies primarily upon Douglas v. Judge (1977), 174 Mont. 32, 568 P.2d 530, which is based upon our holding in Bacus v. Lake County (1960), 138 Mont. 69, 354 P.2d 1056.

In Bacus, the Legislature gave power to the county boards of health to enact rules and regulations “pertaining to the prevention of disease and the promotion of public health” over their areas of jurisdiction “but in no instance shall such rules and regulations be less effective than, nor in conflict with, rules and regulations promulgated by the state board of health.” Bacus, 138 Mont. at 77, 354 P.2d at 1060 (citing § 69-809 R.C.M. (1947)). We held that “if the legislature fails to prescribe with reasonable clarity the limits of power delegated to an administrative agency, or if those limits are too broad, its attempt to delegate is a nullity.” Bacus, 138 Mont. at 78-79, 354 P.2d at 1061. In order for the Legislature to properly delegate authority to an ad ministrative agency, the statutory provisions must be “sufficiently clear, definite, and certain to enable the agency to know its rights and obligations.” Bacus, 138 Mont. at 79, 354 P.2d at 1061. In Bacus, we held that the statute in question was unconstitutional because the Legislature did not provide sufficient and definite standard for the board’s guidance. Bacus, 138 Mont. at 82, 354 P.2d at 1063.

Bacus has been applied on various occasions. In Bell v. Department of Licensing (1979), 182 Mont. 21, 594 P.2d 331, we held that regulations promulgated by the Montana Board of Barbers and the Department of Professional and Occupational Licensing engrafted additional licensing requirements that were not authorized by the Legislature. We also held that where the Legislature failed to set adequate guidelines and standards for the Board of Natural Resources and Conservation’s determination of projects eligible for renewable resource development loans, the action amounted to an unconstitutional delegation of authority. Douglas, 174 Mont. at 41, 568 P.2d at 535. In White v. State (1988), 233 Mont. 81, 759 P.2d 971, we held that the Legislature unconstitutionally delegated its power to the Science and Technology Development Board. These cases are distinguished from the present case.

The Montana Constitution delineates the power of county government:

(1) A local government unit without self-government powers has the following general powers:
(b) A county has legislative, administrative, and other powers provided or implied by law.
(2) The powers of... counties shall be liberally construed. [Emphasis added.]

Mont. Const, art. XI, § 4(l)(b) and (2).

Under the 1972 Constitution, the relationship between the State, counties, and agencies was more defined in both function and operation. Counties became constitutionally empowered and possessed “legislative, administrative, and other powers provided or implied by law.” The elected officials or county commissions were entrusted with broad legislative powers by the 1972 Constitutional Convention because of the fundamental principle that local affairs should be decided and regulated by local officials who could be held accountable to their constituents. Mont. Const. art. XI, § 4(1)(b).

Agencies, on the other hand, are statutorily created and are part of the executive branch. Agency officials are not directly accountable to the public. Agency powers are limited to specific and definite guidance from the Legislature. State agencies, as a result, have much more limited authority.

We have stated in State ex rel. Leach v. Visser (1989), 234 Mont. 438, 447, 767 P.2d 858, 863, that “governing bodies have the power and duty to evaluate and determine from all the circumstances whether the proposed division of land is based on a purpose to evade subdivision requirements.” In Leach, we adopted the opinion of the Attorney General relating to the extent of authority given county commissioners by the Act.

A local government may legitimately require one claiming an exemption from the Act’s requirements to make some evidentiary showing that the exemption is justified. ... It would also be legitimate for the local government to establish by rule some sort of hearing procedure to allow the local government to evaluate the evidentiary basis for the claimed exemption and to allow or disallow it. ... [A] regulation establishing procedures for evaluation of a claimed exemption gives substance to the Act’s policy of local government control of land use and is certainly consistent with the Act’s requirements.

Leach, 234 Mont. at 448, 767 P.2d at 864 (quoting 40 Op. Att’y Gen. 58, 61-62 (1983)).

In the past, this Court has struck down certain regulations adopted pursuant to the Act. The stricken agency regulations engrafted additional and contradictory requirements on the subdivision statutes. State ex rel. Swart v. Casne (1977), 172 Mont. 302, 308, 564 P.2d 983, 986. This Court has also struck down county regulations if they categorically deny an exemption from the Act. Leach, 234 Mont. at 443-44, 767 P.2d at 861.

However, a regulation which establishes procedures for evaluation of claimed exemptions gives substance to the Act’s policy of local government control. Local governments are authorized to establish procedures to evaluate a proposed conveyance to determine if it is an attempted evasion of the Act. Withers v. County of Beaverhead (1985), 218 Mont. 447, 450, 710 P.2d 1339, 1341. As stated by the Attorney General:

The local governing body should evaluate all relevant circumstances in assessing the claimant’s intent. These circumstances might include, inter alia, the nature of the claimant’s business (i.e., whether the claimant is in the business of dividing and selling land), the prior history of the particular tract in question (i.e., whether this claimant has engaged in prior exempt transactions involving the tract), and the proposed configuration of the tract after the allegedly exempt transactions are completed. ... A claimant who attempts to engage in a pattern of exempt transactions which will result in the equivalent of a subdivision without local government review, should be denied exemption. If necessary, the county attorney may take action to ensure that conveyances do not occur in such circumstances. § 76-3-301(3), MCA. To allow an exemption in such circumstances would obviously subvert the Act’s public policy requiring a priori review of divisions of land which may have substantial impact on public health, safety, and general welfare. § 76-3-102, MCA. [Citation omitted.]

40 Op. Att’y Gen. 58, 62 (1983).

The constitutionality of the “delegation” of power to regulate subdivisions must be viewed under local government parameters and not administrative agency parameters. The County Commission has the power to make a determination as to whether or not the proposed division is an evasion of the Act. The regulations are not inconsistent and contradictory to the Act. They give notice to the property owner as to what the County will look at in making a determination as to whether or not an evasion exists in any particular case. We hold that the Legislature did not impermissibly delegate its authority to the Lewis and Clark County Commissioners for the regulation of subdivisions and that the Montana Subdivision and Platting Act and the subdivision regulations adopted by Lewis and Clark County pursuant to the Act are constitutional.

II.

Does the “rebuttable presumption” of evasion contained in the Lewis and Clark County subdivision regulations violate the due process rights of appellant?

Appellant complains that the rebuttable presumption of evasion contained in the regulations is invalidly created, and further asserts that the effect of the presumption is to change the burden of proof. Discussions relating to the definition and use of rebuttable presumption are primarily found in criminal cases. Both parties cite Barrett v. United States (5th Cir. 1963), 322 F.2d 292, wherein the Fifth Circuit Court of Appeals reviewed certain criteria to determine the constitutional validity of a rebuttable presumption. Barrett involved the unconstitutional use of a rebuttable presumption for a criminal conviction based on a defendant’s possession of a still and of carrying on the business of a distiller based upon a showing of the defendant’s unexplained presence at the site of an unregistered still. Barrett, 322 F.2d at 294. The Court held that for a rebuttable presumption to comply with the due process clause:

[P]roof of the fact upon which the statutory presumption is based must carry a reasonable inference of the ultimate fact presumed.
... [I]t is not enough that the fact proved be relevant to the ultimate fact presumed. The fact proved must carry an inference of the fact presumed. Moreover, the inference must not be “strained”: it must be so reasonably related to the fact proved as to tend to establish the defendant’s guilt.

Barrett, 322 F.2d at 297-98.

Because exemptions of statutes pertaining to health, safety, and welfare of the public should be narrowly construed, a party claiming the exemption should have the burden of proving his entitlement to the exemption. We hold that the “rebuttable presumption” of evasion contained in the subdivision regulations does not violate due process.

III.

Does the retroactive use of valid subdivision exemptions to establish an impermissible “pattern” of land divisions impair the substantive rights of appellant?

Appellant contends that the retroactive use of the prior valid conveyances to establish a presumption is a taking without just compensation. In determining whether a proposed transfer is a violation of the Act, and therefore, an inappropriate use of the exemption, local government officials need to examine the prior history of developers and the tract in question. After such an evaluation, an informed decision can be made regarding whether an applicant is evading the Act.

In this instance, the plain language of the regulations does not have a retroactive application. All of appellant’s previous transactions remain unaffected. We hold that the subdivision regulations do not constitute a taking without just compensation.

We affirm.

JUSTICES GRAY, TRIEWEILER, HARRISON, McDONOUGH, WEBER and DISTRICT RODEGHIERO (sitting in place of CHIEF JUSTICE TURNAGE) concur.