author: JUSTTICE WEBER JUSTICE HUNT,

text:
    GENE AND LESLIE MICHELETTO, Plaintiffs and Appellants, v. STATE OF MONTANA, Defendant and Respondent.
    No. 89-452.
    Submitted on Briefs March 16, 1990.
    Decided Sept. 14, 1990.
    798 P.2d 989.

      JUSTICE McDONOUGH, issued a dissenting opinion in which JUSTICE BARZ concurred.
    JUSTICE HUNT issued a dissenting opinion.
    Steven J. Harman, Anderson, Brown, Cebull, Fulton, Harmon & Ross, Billings, Theodore R. Dunn, Goetz, Madden & Dunn, Bozeman, for plaintiffs and appellants.
    K. Kent Koolen, Moulton, Bellingham, Longo & Mather, Billings, for defendant and respondent.
   JUSTTICE WEBER

delivered the Opinion of the Court.

The plaintiffs appeal the grant of summary judgment to the State of Montana, acting through the Department of Highways, herein referred to as the State. Mountain States Telephone Company (Telephone Company) entered into a subcontract with the State. Gene Micheletto was seriously injured in the course of his employment by the Telephone Company and received workers’ compensation benefits for that injury. Gene Micheletto and Leslie, his wife, then sought recovery in tort from the State in its capacity as general contractor. The plaintiffs now appeal the summary judgment for the State. We affirm.

The plaintiffs raise the following issues:

(1) Was it error for the District Court to conclude that the State as general contractor did not have a non-delegable contractual duty to supervise the safety of the trenching operations by the Telephone Company?

(2) Was it error for the District Court to conclude that trenching is not an inherently dangerous activity under the facts of this case?

(3) Were there disputed issues of material fact demonstrating control on the part of the State which prohibited summary judgment for the State?

In 1985 the State widened State Highway 200 between Sidney and Fairview as part of a federal aid road project. Such widening required the Telephone Company to relocate some of its cables which were buried adjacent to the existing roadway. The State and the Telephone Company entered into a Utilities Agreement.

Gene Micheletto was employed as a lineman by the Telephone Company and assisted in the relocation of the buried telephone cable. The Telephone Company work crew dug a trench in connection with the cable relocation. On the afternoon of July 18, 1985, Micheletto entered the trench with the aim of digging under a culvert to assist in the cable relocation. While he was in the trench, a large portion of the trench caved in upon him, resulting in severe injury and disability.

Deposition witnesses testified that prior to the cave in, the trench was between six and seven feet deep and no shoring, sloping, or other support was used. Additional testimony established it had rained the previous day and a cave-in occurred earlier that day at a different location. The testimony established that an inspector employed by the State had observed the earlier cave-in after it had occurred.

Gene Micheletto received workers’compensation benefits from the Telephone Company. The plaintiffs brought suit against the State on several tort theories. The State moved for summary judgment on several grounds. In granting summary judgment for the State, the District Court made the following findings and conclusions:

“(2) Under the subcontract, The Telephone Company became a subcontractor and assumed the status of an independent contractor.
“(3) As a general rule, the State of Montana, as a general contractor, would not be liable for injuries suffered by an employee of the subcontractor.
“(4) A nondelegatable [sic] duty, based on contract, does not apply in this case.
“(5) The State of Montana, as a general contractor, had no nondelegatable [sic] duty under the inherent danger or peculiar risk exception to nonliability rule.
“(6) Plaintiff failed to establish vicarious liability based on breach of duty based on control.
“(7) The duty of the State’s project engineer did not include safety and did not run to the Plaintiff who was The Telephone Company’s employee.”

The plaintiffs appeal the granting of summary judgment to the State based upon the foregoing.

There is no dispute that the Telephone Company was a subcontractor of the State, that the Telephone Company was an independent contractor, and that the State was the general contractor.

The parties also agree that the general rule was properly stated by the District Court. In Kemp v. Bechtel Constr. Co. (1986), 221 Mont. 519, 720 P.2d 270, we stated the general rule as follows:

“Montana follows the general rule that ‘absent some form of control over the subcontractor’s method of operation, the general contractor and owner of the construction project are not liable for injuries to the subcontractor’s employees.’ Shannon v. Howard S. Wright Construction Co. (1979), 181 Mont. 269, 275, 593 P.2d 438, 441.”

The issues framed by the plaintiffs correspond directly to the three exceptions to the foregoing general rule of non-liability on the part of the general contractor: (1) the non-delegable duty based on a contract exception; (2) the “inherently or intrinsically dangerous activity” exception; and (3) the negligent exercise of control reserved over a subcontractor’s work exception. For further discussion of these exceptions, See Shannon v. Howard S. Wright Constr. Co. (1979), 181 Mont. 269, 593 P.2d 438; Storrusten v. Harrison (1976), 169 Mont. 525, 533, 549 P.2d 464, 469; Wells v. Thill, (1969), 153 Mont. 28, 452 P.2d 1015; Kemp v. Bechtel Constr. Co.; and generally, Prosser, Law of Torts § 71 (5th ed. 1984); Restatement (Second) of Torts § 410-429 (1965).

I

Was it error for the District Court to conclude that the State as general contractor did not establish a non-delegable contractual duty to supervise the safety of the trenching operations by the Telephone Company?

Plaintiffs contend that the contract between the parties raised a non-delegable duty with regard to safety in the trenching operations as to the State. This contention is primarily based on Paragraph 15 of the Utilities Agreement which provides in part:

“15. Work done on Highway right-of-way with respect to the location of the facilities and in the manner which the facilities are installed or attached within the right-of-way must be approved by the District Engineer to insure that installation of the facilities will meet the ‘Standard Specifications for Road and Bridge Construction’ as adopted by the Department.”

Plaintiffs contend that this language created a duty on the part of the State to supervise the trenching operation and ensure his safety. As a part of this argument, the plaintiffs refer to the Standard Specifications for Road and Bridge Construction adopted by the State and which were in effect at the time. Such Standard Specifications contain the following with regard to excavations:

“52.03 CONSTRUCTION REQUIREMENTS:
“All excavated material piled adjacent to the excavation or in a roadway or public thoroughfare shall be piled and maintained so that the toe of the slope or the pile is at least 2 feet from the edge of the excavation... The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means consistent with the type of excavation.”

Standard Specifications For Road and Bridge Construction. 1981 ed. adopted by the Montana Department of Highways and the Montana Highway Commission, March 1, 1981.) In addition, the Standard Specifications require that all excavations conform to the requirements of the U.S. Department of Labor, Occupational Safety and Health Administration [OSHA], and Safety and Health Regulations for Construction. The OSHA regulations include provisions regarding safety during excavation operations. See 29 C.F.R. § 1926.651(i)(l) (1986). The regulations require that trenches more than five feet deep shall be shored or sloped or otherwise supported to prevent cave-ins. 29 C.F.R. § 1926.652 (1986). Like the Standard Specifications OSHA also requires that “spoils” (the material that is excavated from the trench) are stored at least two feet from the edge of the excavation.

The plaintiffs argue that Stepanek v. Kober Constr. Co. (1981), 191 Mont. 430, 434, 625 P.2d 51, 53, establishes the theory for non-delegable duty under the contract in this case. In this Court’s analysis of Stepanek in Kemp v. Bechtel Constr. Co., the Court stated:

“In Stepanek, the non-delegable duty which subjected the general contractor to liability to an employee of a subcontractor was created by a provision in the general contract between the general contractor and Yellowstone County. Specifically, that provision required the general contractor to be ‘responsible for initiating, maintaining, and supervising all safety precautions and programs’ connected with construction. We held that this provision resulted in a duty that could not be delegated to the subcontractor... There is no similar provision in the general contract between MPC and Bechtel in the instant case.

Kemp v. Bechtel Constr. Co., 720 P.2d at 274. Our present case does not contain a similar contractual provision establishing non-delegable duty.

In Kemp v. Bechtel Constr. Co., the employee of a subcontractor who had been injured in a trench cave-in sought recovery from the general contractor claiming that the general contractor had contractually assumed safety duties. In Kemp v. Bechtel Constr. Co., the subcontractor had agreed to “comply with all the applicable laws, regulations, and standards and the project safety program.” The Court concluded that there was no provision in the contract between MPC and Bechtel which was similar to Stepanek and that as a result the theory of non-delegable duty based on contract did not apply.

In our case, under the Utilities Agreement, the Telephone Company was required to perform the work in accordance with the various specifications and safety requirements as previously outlined. Clearly the Telephone Company expressly assumed the safety responsibilities under the subcontract. The Utilities Agreement which constitutes the subcontract in the present case does not contain any provision requiring the State to be responsible for either initiating, maintaining or supervising safety programs as was present in Stepanek. We agree with the conclusion by the District Court that a non-delegable duty, based on contract, was not assumed by the State. We hold that the District Court correctly concluded that the State as general contractor did not have a non-delegable contractual duty to supervise the safety of the trenching operations by the Telephone Company.

II

Was it error for the District Court to conclude that trenching is not an inherently dangerous activity under the facts of this case?

As mentioned, the District Court concluded that the State did not have a non-delegable duty under the inherent danger or peculiar risk exception to the non-liability rule. As pointed out in Kemp v. Bechtel Constr. Co., two sections of the Restatement are applicable. Sections 416 and 427, Restatement 2d of Torts, state:

“Section 416. Work Dangerous in Absence of Special Precautions.
“One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
“Section 427. Negligence as to danger inherent in the work.
“One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.”

On this issue the present case is indistinguishable from Kemp v. Bechtel Constr. Co. In its analysis of the claim of vicarious liability arising from the collapse of a trench, this Court in Kemp v. Bechtel Constr. Co., 720 P.2d at 275, stated:

“The Supreme Court of North Dakota has interpreted § 416 and § 417 with respect to a sewer trench dug to a depth of six feet in sandy soil. See Peterson v. City of Golden Valley, North Dakota (N.D. 1981), 308 N.W.2d 550. In Peterson, an employee of a contractor with the city was killed when the banks of the trench in which he was working caved in. The trench was not dug according to Occupational Safety and Health Administration (OSHA) regulations or standard protective practices which call for sloping or use of a trench box whenever a trench exceeds five feet in depth. The court held that § 416 and § 427 did not operate to make the City vicariously liable for the omission of the contractor, because ‘this type of excavation when done with standard precautions, presents no extraordinary risk of caving in ’Peterson, 308 N.W.2d at 554. Peterson is on point with the instant case, and we adopt the North Dakota Supreme Court’s analysis.”

This Court in Kemp v. Bechtel Constr. Co. then concluded:

“In order for § 416 to apply the work must present ‘a peculiar risk ... unless special precautions are taken.’ Section 427 is only applicable to work ’involving a special danger . . . inherent in . . . the work.’ Here, the type of trenching contemplated in the subcontract presented no peculiar risk or inherent danger. Rather, the risk or danger arose out of a failure to use standard precautions.”

In its holding the Kemp Court then referred to OSHA regulations and other elements which are directly comparable to the present case. The Court stated:

“The OSHA regulations, project safety manual and deposition of the backhoe operator establish that sloping or using a trench box during trenching is standard procedure. Moreover, the subcontract specifically required the subcontractor to use standard precautions and follow regulations. The injury occurred after the diggers failed to use a trench box that they knew was available. Sections 416 and 427 are thus not applicable. We hold that the companies had no nondelegable duty under the inherent danger or peculiar risk exception to the nonliability rule.”

Kemp v. Bechtel Constr. Co., 720 P.2d at 275. As previously described, in this case the Standard Specifications required that all excavation be guarded by a shoring system, sloping of the ground, or some other equivalent means consistent with the type of excavation; and also required all excavations conform to OSHA. We conclude that the Kemp v. Bechtel Constr. Co. decision is controlling on this issue. We hold that trenching is not an inherently dangerous activity under the facts of this case.

III.

Were there disputed issues of material fact demonstrating control on the part of the State which prohibited summary judgment for the State?

Plaintiffs contend that summary judgment is inappropriate because of genuine issues of material fact as to whether the State negligently exercised control over the Telephone company’s trenching operation. See Rule 56(c), M.R.Civ.P. The core of the plaintiffs’ contention is that the district engineer of the State must approve the manner used by the Telephone Company to relocate the cables, which establishes a reservation of control by the State over the Telephone Company’s work.

Paragraph 15 of the Utilities Agreement provides:

“Work done on Highway right-of-way with respect to location of the facilities and in the manner which the facilities are installed or attached within the right-of-way must be approved by the District Engineer to insure that installation of the facilities will meet the ‘Standard Specifications for Road and Bridge Construction’ as adopted by the Department.”

The legal basis for the plaintiffs’ claim is contained in Restatement (Second) of Torts § 414 which provides:

“Section 414. Negligence in Exercising Control Retained By Employer
“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”

Before we further analyze the contractual provisions and the facts presented, we think it appropriate to discuss some of the policy considerations which must be considered and balanced, one against the other. The facts establish that the Telephone Company clearly was negligent. However, under our workers’ compensation laws, the employee’s recovery against his employer is limited to workers’ compensation benefits. The plaintiffs seek to establish the right to recover amounts above the workers’ compensation benefits from the State on the theory that it was negligent. Because of the serious injuries to Gene Micheletto, an argument can be made that we should allow recovery against the State in order that some additional damages may be paid to this severely injured worker.

As pointed out in Kemp v. Bechtel Constr. Co., we have the Montana Safe Place to Work statute, § 50-71-201, MCA, which requires an employer to furnish a safe place to work and which requires the use of safety devices and safeguards. As a part of that policy, it is important that general contractors who employ independent subcontractors require reasonable and specific safety standards on the part of the subcontractor. Clearly it is in the best interest of all involved that the State here be required to insert safety precautions which must be performed by the Telephone Company, its subcontractor. It would result in a contradiction in policy if general contractors who employ independent contractors were encouraged to omit safety regulations upon a theory that a failure to make such provisions would grant greater protection against a claim of negligence by the employees of the subcontractor. Clearly that would not be sound public policy.

In general we conclude that before liability is found on the basis of control by the general contractor, there must be a contractual provision which establishes that the general contractor has assumed the responsibility for initiating, maintaining and supervising safety precautions as was present in the Stepanek contract. We conclude that the holding in Kemp v. Bechtel Constr. Co., is controlling on this issue.

In Kemp v. Bechtel Constr. Co. the Court quoted Restatement (Second) of Torts, § 414, and pointed out that a general contractor is responsible for his own duty of reasonable care, but is not vicariously liable for the subcontractor’s negligence -under this control exception. The Court then pointed out:

“Here, by the subcontract the companies were to establish a project safety program. However, no control over the day-to-day implementation of the safety program was reserved by the companies. The subcontract places the responsibility for onsight implementation of the safety program and job safety on the subcontractor, COP. Thus, the company’s duty under § 414 extended only to the establishment of the safety program. There is no evidence that this duty was breached.”

Kemp v. Bechtel Constr. Co., 720 P.2d at 275. The Court then analyzed § 50-71-201, MCA, the Montana Safe Place to Work statute and concluded that under the statute the general contractors had a duty to require the subcontractor to use safe procedures and to take reasonable steps to ensure those procedures were followed. The Court emphasized that such a duty does not require a general contractor to constantly oversee each individual task of the subcontractor - and that only constant supervision could have prevented this accident. The Court then reached the following conclusion:

“The record is clear and undisputed that the companies required COP to use safety precautions and comply with regulations. The companies utilized daily spot checks and monitored injury reports to make sure the construction was proceeding safely. We find the companies complied with their duty of reasonable care.”

Kemp v. Bechtel Constr. Co., 720 P.2d at 276. In our case, in addition to Paragraph 15 of the Utilities Agreement, the subcontract included the Standard Specifications which required shoring systems, sloping of the ground, or some equivalent means in connection with trenching, and also incorporated the OSHA requirements which in substance require that trenches more than five feet deep shall be shored or sloped or otherwise supported to prevent cave-ins. We conclude that the State here had properly provided appropriate safety precautions in its contract with the Telephone Company in a manner directly comparable to the contract provisions in Kemp v. Bechtel Constr. Co. Notwithstanding that comparison, the plaintiffs contend that Paragraph 15 of the Utilities Agreement established control. We will restate Paragraph 15 to emphasize only the key aspects which are applicable to this contention:

“Work done . . . with respect to the location of facilities and in the manner in which the facilities are installed or attached within the right-of-way must be approved by the district engineer to ensure that installation . .. will meet the ‘standard specifications’... as adopted by the Department [State].” (Emphasis added.)

In substance, the plaintiffs argue that the requirement of approval by the district engineer of the manner in which the facilities are installed establishes that the State retained control under § 414. We do not agree with that contention.

It is true that Paragraph 15 provides that the manner in which facilities are installed must be approved by the district engineer. It is also true the location of the facilities must be approved by the district engineer. Last, it is important to note that the requirements of both location and manner of installation are followed by the provision that this is done to ensure that installation will meet the standard specifications. We conclude that the requirements of Paragraph 15 could be met by a review on the part of the State district engineer of the detailed plans submitted by a subcontractor, without any review of the actual construction site. In addition, we emphasize that there is no specific provision in the subcontract which obligates the State of Montana to be responsible in any maimer for initiating, maintaining, or supervising safety precautions and programs as described in Kemp v. Bechtel Constr. Co. and as was contained in the Stepanek contract. As we examine Paragraph 15 we do not find provisions which clearly establish additional safety obligations on the part of the State. We conclude that the State here complied with its duty of reasonable care with regard to safety procedures. We further conclude that the making of spot checks by the State with regard to construction, including the presence of an inspector for the district engineer, do not establish any additional duty on the part of the State.

The dissent concluded that the State retained control over methods of work and operative detail, and as a result the Telephone Company was not entirely free to perform the work in its own way. We do not agree with that conclusion. The essence of Paragraph 15 is that the district engineer (the State) was required to approve the facilities to ensure that the installation met standard specifications. As a result, the Telephone Company was limited in its installation to the extent that it was required to comply with the standard specifications issued by the State. We do not conclude that such a limitation qualifies as a control limitation under the Restatement.

As quoted by the dissent, comment (c) to § 414 of the Restatement states that before the employer has retained control, there must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. While the requirement that the Telephone Company comply with the standard specifications did mean that the Company was not entirely free to do the work in its own way, we do not believe that the Restatement intended to suggest that requiring a subcontractor to comply with specifications or written plans constitutes a sufficient limitation so that control has been retained by the employer. In addition, as previouly stated, we conclude that before liability is found on the basis of control by the general contractor, there must be a contractual provision which establishes that the general contractor has assumed the responsibility for initiating, maintaining and supervising safety precautions. We conclude that none of these tests were established by Paragraph 15.

We hold that the State complied with all contractual duties of reasonable care required under the contract and statutes, and that the State did not negligently exercise control over the trenching operation of the Telephone Company.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and GULBRANDSON, retired, sitting for JUSTICE SHEEHY concur. JUSTICE McDONOUGH, dissenting:

Summary judgment is inappropriate in this case because genuine issues of material fact exist concerning whether the Department of Highways of the defendant (Department) negligently exercised control over the Telephone Company’s operations. See Rule 56(c), M.R.Civ.P.

According to the wording of paragraph 15 of the Utility Agreement, the Department district engineer must approve the manner used by the Telephone Company to lay or relocate the cables. Paragraph 15 is as follows:

“Work done on Highway right-of-way with respect to the location of the facilities and in the manner which the facilities are installed or attached within the right-of-way must be approved by the District Engineer to insure that installation of the facilities will meet the ‘Standard Specifications for Road and Bridge Construction’ as adopted by the Department.” (Emphasis added.)

Under § 414 of the Restatement (Second) of Torts, this language could be construed as a reservation of control over the subcontractors which would give rise to a duty on the part of the Department:

“Section 414. Negligence in Exercising Control Retained by Employer.
“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” (Emphasis added.)

Under this section the Department or general contractor (employer) is not vicariously liable for the subcontractor’s negligence, rather the general contractor has a separate duty of reasonable care in exercising control. Kemp v. Bechtel Constr. Co. (1986), 221 Mont. 519, 526, 720 P.2d 270, 275. That is, regardless of whether the general contractor has assumed safety duties contractually, if the general contractor retains control over any part of an independent contractor’s work the general contractor has a duty of reasonable care to third parties in exercising such control. Thus, a general contractor who attempts to delegate safety duties to a subcontractor contractually may still be directly hable for his own negligence if he retains the requisite amount of control over operations and exercises such control negligently. This is as it should be. We have here a claim of negligence brought by an employee of a subcontractor, which is a constitutional right of such employee under Section 16 of Article II of the 1972 Montana Constitution. It is important to note that this duty owed by the general contractor also applies to protect other persons not employees and the traveling public from negligence by the Department. See e.g.. Ulmen v. Schweiger (1932), 92 Mont. 331, 12 P.2d 856. Public policy is not served by the narrow construction of the majority opinion.

I will now examine the scope of such a duty. In Storrutsen v. Harrison (1976), 169 Mont. 525, 534, 549 P.2d 464, 469, this Court recognized the rationale of comment (c) to § 414 which states the type of control that must be retained for the exception to be applicable:

“In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” (Emphasis added.)

Here, it can be argued that the telephone company was not entirely free to perform the work or install the cable in its own way; rather, paragraph 15 could be construed as a retention of control by the Department over methods of work and operative detail by expressly requiring approval by the distinct engineer. Such an interpretation involves a specific reservation of control over a portion of the construction work, to-wit: the installation. Note that the manner in which the work was done was not merely subject to the inspection, tests and approval of the Department, rather, the use of the word “must” seems to make approval of the methods of work mandatory. Thus, the contract is somewhat ambiguous regarding whether and how much control was actually reserved by the Department. It is permissible to look to extrinsic evidence, such as the conduct of the parties under the contract to resolve the ambiguity. Souders v. Montana Power Co. (1983), 203 Mont. 483, 486, 662 P.2d 289, 290; Section 28-2-905(2), MCA. Where ambiguity exists on the face of the contract, question of parties intent as to language involved should be submitted to the trier of fact. S-W Co. v. Schwenk (1977), 176 Mont. 546, 550, 568 P.2d 145, 147.

Here, the evidence suggests that the Department may have been exercising control through its inspectors who were present at the job site. Thus, there are factual issues to be resolved regarding the purpose and duties of these inspectors that would clarify the question of whether the Department was in fact exercising retained control over the operations and how much control it exercised. If there is an exercise of retained control in this case involving operative detail, then it does not matter who expressly assumed safety duties under the contract, as the general contractor has a separate and distinct duty of reasonable care to third persons under § 414 of the Restatement in such cases.

It is contended that our holding in Kemp regarding the issue of control is dispositive of the issue raised here. However, the present case is distinguishable from Kemp. In Kemp the companies by contract were to establish a safety program. We held that the general contractor had a duty to require the subcontractor to take reasonable steps to ensure safety procedures were followed. Kemp, 720 P.2d at 276. Moreover, we held that such a duty does not require constant supervision of each individual task of the subcontractor. Id. It was sufficient in Kemp that the general contractor used daily spot checks and inspected injury reports to monitor project safety. In the instant case, like in Kemp, spot checks were employed by the Department. But here the Department’s duty may have involved more than merely monitoring safety procedures; the Department could be interpreted to have specifically retained control over the manner in which the installation was done, giving rise to a duty of reasonable care to others under the Restatement. Whether the Department exercised this control with reasonable care in compliance with the requirements of paragraph 15, the Restatement, and a review of the detailed plans is a question of fact.

Furthermore, in Kemp there was no evidence of a negligent exercise of control by the employer’s acts as there is in this case. In Kemp, we concluded that “[ojnly constant supervision could have prevented ... [the] accident.”Kemp, 720 P.2d at 276. Here, the evidence suggests that the Department was in fact supervising the manner of installation when the accident occurred. The district engineer’s inspector, Larry Wolf, although not inspecting or observing the work taking place in the trench at the time of the cave-in, was actually present at the job site when the cave-in occurred. He testified in his deposition that he was the principal inspector on the cable relocation project, although he maintained that he was not a safety inspector. He also testified that while at the job site that morning another portion of the trench had caved in. Wolf had examined the earlier cave-in. His deposition also indicates that he may have been aware that it would be necessary for someone to enter the trench to dig beneath a culvert in order to run the cable below the culvert. His notes regarding the accident indicate that he was aware of the absence of a shoring device in the trench. Also, Mr. Victor R. Scheuffle, the Department’s district utility agent, testified in his deposition that on an earlier date he suggested to the telephone company that they use a trenching box or cage to alleviate cave-in problems associated with saturated ground conditions. In light of the language in paragraph 15 of the utility agreement and the deposition testimony, there are genuine issues of material fact regarding how much control the Department reserved over the telephone company’s relocation and whether the Department negligently exercised that control and proximately caused Micheletto’s injuries. Without resolving factual issues, one cannot simply conclude that paragraph 15 does not constitute a reservation of control as a matter of law nor can one conclude that the Department complied with its duty of reasonable care. Therefore, under Rule 56(c), M.R.Civ.P., the District Court’s grant of summary judgment was improper. I would reverse and remand on this issue.

JUSTICE BARZ concurs in the foregoing dissent.

JUSTICE HUNT,

dissenting:

I concur in the dissent of Justice McDonough. In addition, for the reasons stated in my dissent in Kemp v. Bechtel Constr. Co., 221 Mont. 519, 528-34, 720 P.2d 270, 276-80 (1986), I must dissent from the Majority’s conclusion that trenching is not an inherently dangerous activity.

Trenching is precisely the type of inherently dangerous activity envisioned by the Restatement (Second) of Torts §§ 416 and 427 (1977). By its very nature, trenching is “likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken....” Restatement § 416. Further, trenching involves “a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work ....” Restatement § 427. The danger inherent in or normal to trenching is exactly the type that appears in the present case — the risk that an excavation might collapse upon and injure an individual inside the trench.

The Majority apparently believes that trenching is not inherently dangerous because “standard” precautions, rather than “special” precautions, can be taken to prevent or lessen the perils of excavating. However, as I noted in my dissent in Kemp, 221 Mont. at 530-31, 720 P.2d at 278, the special precautions contemplated by the Restatement are precautions specially designed to counter the peculiar risks inherent in the activity, not extraordinary precautions. Indeed, the safeguards that may be taken to prevent the dangers inherent in trenching are “ordinary in the sense that a reasonably cautious contractor would take them.” Kemp, 221 Mont. at 531, 720 P.2d at 278. What makes the precautions “special” in trenching is that they are needed to lessen the dangers inherent in or normal to the activity.

The Majority confuses the idea of “standard” precautions with the idea of “standard” activity, i.e., activity that is not inherently dangerous. The fact that “standard” rather than extraordinary safeguards may counter the risks inherent in trenching does not mean that trenching itself is “standard” activity.

With or without precautions, the basic character of trenching remains inherently dangerous. Therefore, the activity gives rise to a nondelegable duty on the part of the contractor to provide for the safety of the subcontractor’s employees.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Defendant, v. GILBERT BELGARDE, Defendant and Appellant.
    No. 89-592.
    Submitted on Briefs Aug. 23, 1990.
    Decided Sept. 18, 1990.
    798 P.2d 539.

      Gilbert Belgarde, Box Elder, pro se.
    Marc Racicot, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Patricia Jensen, Hill County Attorney’s Office, Havre, for State.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Twelfth Judicial District of the State of Montana, in and for the County of Hill. Defendant, Gilbert Belgarde, was found guilty by a jury of driving a motor vehicle while under the influence of alcohol (DUI). We affirm.

We restate the issues on review before this Court as follows:

1. Whether the District Court erred in denying the defendant’s motion to exclude an audio-tape of defendant.

2. Whether the law enforcement officer had a “particularized” suspicion to justify an investigative stop of the defendant’s vehicle.

3. Whether there was probable cause to arrest defendant for driving under the influence of alcohol.

4. Whether the defendant was denied his right to a speedy trial.

On October 12, 1988, at approximately 1:50 a.m., Hill County Deputy Sheriff Larry Overcast was driving north on Highway 87, south of Havre near the Rocky Boy Indian Reservation. By radar, Officer Overcast clocked an oncoming car at about 46 m.p.h. The officer began to follow the car. Officer Overcast testified that the car: (1) swerved over the fog line twice in three miles; (2) veered toward an oncoming car; and (3) accelerated to speeds of over seventy miles an hour. Considering these facts and the fact that the bars in Havre had recently closed, Officer Overcast determined that there was reasonable suspicion that a DUI offense was in progress and proceeded to stop the vehicle.

The driver of the vehicle was defendant Gilbert Belgarde. Defendant failed several field sobriety tests administered by Officer Overcast. Overcast also testified that he detected the odor of alcohol upon the defendant. For these reasons Officer Overcast arrested defendant and transported him to the Havre Police Department.

While in the squad car en route to Havre, Officer Overcast tape recorded defendant. The recording demonstrates that the defendant cussed and verbally abused the officer. In addition, a video taped interview at the station shows that the defendant refused to follow the officer’s directions to perform various field sobriety tests, and was obnoxious and irate toward the officers present. A second law enforcement officer at the station testified that he observed the defendant’s staggering movements and also detected the odor of alcohol on the defendant.

Following a jury trial on April 12, 1989, in the Justice Court of Hill County, City of Havre, the defendant was found guilty of DUI. A notice of appeal dated April 13,1989, was filed in the Justice Court. The defendant filed motions to dismiss and to exclude evidence in the District Court. The District Court ruled on these motions on July 24, 1989.

In its order dated July 25, 1989, the court denied defendant’s motion to dismiss for lack of probable cause to make the initial stop and granted defendant’s motion to exclude a transcript of the subject tape recording but that the tape recording itself would be admissible.

Following a jury trial held in the District Court on August 22,1989, defendant was found guilty of DUI. Defendant appeals this conviction. We affirm.

Additional facts will be discussed as necessary.

I.

Whether the District Court erred in denying the defendant’s motion to exclude a tape recording made by the arresting officer.

Defendant’s underlying contention is that his right against self-incrimination was violated because the tape recording was made without his knowledge or consent. Defendant also argues that the Montana statute authorizing law enforcement officers to record conversations, § 45-8-213(1), MCA, is unconstitutional.

We first consider defendant’s exception to § 45-8-213(1), MCA. Apparently, defendant is contending that the right to privacy section of the Montana Constitution prohibits the use of audio-tape recordings as evidence under the facts of this case. Defendant cites no legal authority in support of his argument.

We have disposed of a similar argument in State v. Brown (1988), 232 Mont. 1, 755 P.2d 1364. In Brown, defendant was convicted of criminal sale of dangerous drugs. During the sting operation which led to defendant’s conviction, an audio-tape was made of conversations between defendant and an undercover officer who posed as a purchaser. The audio-tape was admitted at trial. On appeal defendant argued that the audio-tape violated her right to privacy. We held that “warrantless consensual electronic monitoring of face-to-face conversations by the law enforcement officers while pursuing their official duties, does not violate the right to be free of unreasonable searches and seizures nor the privacy section of the Montana Constitution.” Brown at 8, 755 P.2d at 1369. So long as one of the parties to the conversation clearly, knowingly and voluntarily consents, the evidence obtained by such monitoring is admissible at a criminal trial. Id. We refuse to reverse this rule.

Furthermore, § 45-8-213(l)(c), MCA, provides quite clearly that a public official or employee is exempt from the privacy in communications statute so long as the recording is made in the performance of official duty. Officer Overcast made the recording while on official duty as a police officer during the transport of defendant to Havre. We hold that there was no violation of any statute or constitutional guarantee by the tape recording.

We now turn to defendant’s contention of self-incrimination. In the case of State v. Finley (1977), 173 Mont. 162, 566 P.2d 1119, this Court upheld the use of an audio-video tape of a defendant performing sobriety tests against a claim of self-incrimination. We held that the audio-video tape was objective evidence which was outside the scope of protection provided by Article II, Section 25 of the Montana Constitution and the Fifth Amendment to the United States Constitution. Finley at 166, 566 P.2d at 1121.

We reaffirmed our holding of Finley in State v. Thompson (1989), 237 Mont. 384, 773 P.2d 722. We held that the audio-video tape which demonstrated defendant’s performance of sobriety tests and his manner of speaking was objective evidence and not entitled to Fifth Amendment protection.

Here, as in Finley and Thompson, the crucial inquiry is whether the taped comments of the defendant constituted constitutionally prohibited testimonial compulsion or merely real, physical, or objective evidence. The record is devoid of evidence indicating that the recording contained any speech of defendant which was testimonial in nature. Rather, all defendant’s statements captured by the tape were voluntary and none served to incriminate the defendant. Additionally, the tape did not contain defendant’s responses to interrogation by police. The tape recording was introduced into evidence for the sole purpose to aid the jury in understanding the testimony of Officer Overcast who observed defendant’s demeanor in the police car. The content of defendant’s tape-recorded words are not meaningful, in and of themselves, but rather the manner in which they were delivered and the nature of defendant’s “tirade” is probative of defendant’s intoxication. We find that the tape provides positive indicia that defendant was under the influence of alcohol. We hold that the tape is objective evidence and, therefore, outside the protection of the Fifth Amendment to the United States Constitution and Article II, Section 25 of the Montana Constitution. We further hold that defendant was not denied his privilege against self-incrimination when the District Court properly admitted the tape into evidence.

II.

Whether the law enforcement officer had a “particularized” suspicion to justify an investigative stop of defendant’s vehicle.

The defendant alleges that Officer Overcast was without authority to stop his vehicle because he lacked probable cause to do so. This contention is erroneous and we cite the following:

“All that is required of an officer in making an investigatory stop is that he have a ‘particularized’ or ‘reasonable’ suspicion that criminal activity may be afoot. This is the applicable standard for an investigative stop of a vehicle; or in other words ‘some basis from which the court can determine that the detention was not arbitrary or harassing.’ State v. Gopher (Mont. 1981), 631 P.2d 293, 295, 38 St.Rep. 1078, 1081, relying on United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621.”

State v. Sharp (1985), 217 Mont. 40, 45, 702 P.2d 959, 962.

The District Court found that Officer Overcast had sufficient cause to stop defendant and had a right at the time, based on reasonable suspicion and logical inference, to stop the defendant’s vehicle to investigate a possible DUI in progress. The District Court based its finding upon Officer Overcast’s testimony which established the following: (1) defendant’s vehicle was traveling at approximately ten miles per hour below the posted speed limit; (2) the time was 1:50 a.m. which was shortly after the bars close; (3) defendant’s vehicle drifted over the fog line twice while traveling approximately three miles; (4) defendant’s vehicle rapidly accelerated to speeds exceeding 70 miles per hour as Overcast’s car approached; and (5) defendant’s vehicle veered toward an oncoming car.

Based on the District Court’s findings which we will not set aside unless clearly erroneous, we hold that Officer Overcast had a sufficient basis for his particularized suspicion of illegal activity.

The defendant argues that Officer Overcast falsely testified regarding the above factors which justified Overcast’s “particularized” suspicion. The defendant claims that Officer Overcast decided to stop the vehicle only after discovering, through a registration check, that a Native American was driving. The defendant concludes that the decision to make the investigatory stop was discriminatory.

The defendant’s argument was presented to the District Court and jury. Officer Overcast testified that upon stopping the vehicle, he had no idea who was driving the vehicle. The defendant has failed to point to any evidence in the record which supports his argument. Defendant’s argument is supported solely by his own speculation. Pursuant to Rule 52(a), M.R.Civ.P, we give due regard to the opportunity of the trial court to judge the credibility of the witnesses. The trier of fact is responsible for weighing the credibility of Officer Overcast’s testimony and his stated reasons for stopping defendant’s vehicle. Defendant’s claim of racial discrimination is not supported by any objective evidence in the record. We hold that the stopping of defendant’s vehicle was justified.

III.

Whether there was probable cause to arrest defendant for driving under the influence of alcohol.

The threshold issue for the validity of an arrest is probable cause. State v. Lee (1988), 232 Mont. 105, 109, 754 P.2d 512, 515. Defendant contends that Officer Overcast did not have probable cause to arrest defendant for driving under the influence of alcohol. We disagree.

The officer’s reasonable suspicion which justified the stop ripened into probable cause to arrest for DUI. We refer to the substantial evidence comprised of defendant’s intoxicated condition as testified to by two officers, defendant’s staggered movements, failed field sobriety tests, use of obscene language toward Officer Overcast as heard on the audio-tape and other obnoxious and aggressive behavior as shown on the videotaped interview. We hold that the substantial evidence presented indicates that there was ample justification for placing the defendant under arrest for DUI.

Defendant attempts to establish a discriminating basis for his arrest, as well as his stop. Defendant contends that a “jail or bail” policy for Native Americans exists among the law enforcement personnel of Hill County. Defendant attempted to document this policy through a “statement of verification” appended to his brief. Defendant’s “statement of verification” is not properly part of the record on appeal pursuant to Rule 9, M.R.App.R As such, we cannot consider this document in disposing of this appeal. Furthermore, defendant fails to support his discrimination claim with any objective evidence from the record. The record, indeed, is devoid of any evidence that the defendant was arrested because of his race. We hold that probable cause existed for defendant’s arrest and that defendant’s arrest was not discriminatory.

IV.

Whether the defendant was denied his right to a speedy trial.

Speedy trial analysis for misdemeanor prosecutions is governed by statute. State v. Ronningen (1984), 213 Mont. 358, 691 P.2d 1348. Section 46-13-201(2), MCA, provides:

“The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed if a defendant whose trial has not been postponed upon his application is not brought to trial within 6 months after entry of plea upon a complaint, information, or indictment, charging a misdemeanor.”

The defendant was cited on October 12, 1988. Pursuant to Rule 21(a), M.R.App.P., the statutory six-month period within which a prosecution must be brought began the following day, October 13, 1988. The six-month deadline thus expired on April 12, 1989. Similarly, in Ronningen we held that the time period in which to bring a misdemeanor prosecution that commenced with the filing of an information on October 12,1983, expired on April 12,1984. Here, the defendant was tried in Justice Court on April 12, 1989. As such, the prosecution was timely for purposes of § 46-13-201(2), MCA.

The defendant’s conviction is affirmed.

JUSTICES SHEEHY, McDONOUGH, HUNT and WEBER concur.


author: JUSTICE WEBER

text:
    In re the MARRIAGE OF SANDRA L. ARROTTA, Petitioner and Respondent, and LARRY P. ARROTTA, Respondent and Appellant.
    No. 90-139.
    Submitted on Briefs Aug. 23, 1990.
    Decided Sept. 18, 1990.
    797 P.2d 940.

      Randy K. Dix, Dix & Hunt Law Firm, Helena, for respondent and appellant.
    Marcia Birkenbuel, Great Falls, for petitioner and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

In a dissolution proceeding, the District Court for the Eighth Judicial District, Cascade County, awarded primary custody of the parties’ daughter to the wife and distributed the marital property. The husband appeals the District Court’s valuation of his insurance business and the award of primary custody of their daughter to the wife. We affirm.

The issues for our consideration are:

1. Did the District Court properly admit the expert testimony of Nicholas Bourdeau as to the value of Larry Arrotta’s insurance business?

2. Did the District Court properly exercise its discretion to achieve an equitable distribution of the marital estate?

3. Did the District Court abuse its discretion by awarding primary custody of the parties’ daughter to the mother in light of the child’s expressed preference to live with her father?

Larry and Sandra Arrotta were married in Great Falls in 1969. One child, Nikole, was bom of the marriage.

At the time of their marriage Sandra had completed a year of business college and was employed by a bank. Sandra continued working and has advanced with her employer to the position of office manager. The District Court found that Sandra had no accrued pension benefits.

Larry completed his education degree at Eastern Montana College while Sandra worked. Upon graduation, Larry became employed with Farmer’s Union Insurance where he continued to work until he started his own insurance agency. Larry has remained with his insurance agency which operates as a partnership.

The District Court found that at the time of the marriage, neither party owned any real property and owned little personal property.

The parties separated in September of 1988. Larry left the family home and moved into a rented home in Great Falls. Sandra and Nikole remained in the family home. In May of 1989, Nikole moved in with her father, where she was still living at the time of the hearing. Nikole told her attorney and the District Court that she preferred to live with her father.

Sandra hired a Certified Public Accountant (CPA), Nick Bourdeau, to determine the value of Larry’s insurance business and testify to his findings. Prior to the hearing, Larry filed a motion in limine with the District Court requesting the exclusion of any work done or testimony by Nick Bourdeau as to the value of Larry’s insurance business. The District Court denied the motion. From that decision and the decision to award primary custody of Nikole to Sandra, Larry appeals.

I

Did the District Court properly admit the expert testimony of Mr. Bourdeau as to the value of Larry Arrotta’s insurance business?

Larry contends that Mr. Bourdeau was not qualified to testify as an expert because he has no knowledge of the insurance industry and because he had not previously valued a small, independent insurance business. He urges that the goodwill of the business was grossly over-valued.

Sandra maintains that Mr. Bourdeau was well qualified to testify. She points out that not only is he a CPA, but that he has worked in private accounting; in financial investigations; in forensic or litigation accounting; that he has attended several litigation accounting courses; and that his status as a CPA requires him to complete 40 hocus of continuing professional education per year.

The District Court noted that although Larry disputed Mr. Bourdeau’s valuation of his business, he failed to introduce any evidence of his own as to value. It also noted that “the expert opinion was approximately the same as the valuation method set out in the partnership agreement’s provision for valuation of a partner’s share upon retirement or withdrawal.”

We defined the concept of goodwill in In re Marriage of Hull (1986), 219 Mont. 480, 712 P.2d 1317. We stated:

“Goodwill is property of an intangible nature and is commonly defined as the expectation of continued patronage. Among the elements which engender goodwill are continuity of name, location, reputation for honest and fair dealing, and individual talent and ability... The determination of its value can be reached with the aid of expert testimony and by consideration of such factors as the practitioner’s age, health, past earning power, reputation in the community for judgment, skill, and knowledge, and his comparative professional success. . . .In view of exigencies that are ordinarily attendant upon a marriage dissolution the amount obtainable in the marketplace might well be less than the true value of the goodwill.”

Goodwill is not applicable only to professional practices. It may also exist in a business founded on personal skill or reputation. See Baldwin v. Stuber (1979), 182 Mont. 501, 597 P.2d 1135.

The determination of the qualification of an expert witness is a matter of discretion for the trial court. Absent a showing of abuse of that discretion, the decision will not be disturbed. See State v. Oliver (1987), 228 Mont. 322, 742 P.2d 999; Graham v. Richardson (1967), 150 Mont. 270, 435 P.2d 263. We conclude that the District Court did not abuse its discretion when it found Mr. Bourdeau qualified to testify as an expert witness on the value of goodwill. We hold that the District Court properly admitted the expert testimony of Mr. Bourdeau as to the value of Larry Arrotta’s insurance business.

II

Did the District Court properly exercise its discretion to achieve an equitable distribution of the marital estate?

Larry contends that the distribution of the marital estate was inequitable. He bases this contention largely on the value assigned to his insurance business by Mr. Bourdeau and the District Court. He urges that the over-valuation of the business resulted in an inequitable distribution of marital property. Sandra argues that the division was equitable and that the District Court properly apportioned the property pursuant to § 40-4-202, MCA.

The District Court is vested with broad discretion in distributing property in dissolution proceedings. When the District Court’s judgment was based upon substantial credible is shown. In re Marriage of Cannon (Mont. 1990), [242 Mont. 230,] 790 P.2d 479, 47 St.Rep. 752. The District Court’s clear and complete findings of fact reflect that it carefully considered the factors set out in § 40-4-202, MCA. Furthermore, in light of our holding under Issue I that Mr. Bourdeau’s testimony was proper and uncontradicted, Larry’s argument that the value was erroneous and caused an inequitable distribution of property is without merit. We hold that the District Court properly exercised its discretion to achieve an equitable distribution of the marital estate.

Ill

Did the District Court abuse its discretion by awarding primary custody of the parties’ daughter to the mother in light of the child’s expressed preference to live with her father?

The District Court made the following pertinent findings of fact regarding custody of Nikole:

“8. [Sandra] and the parties’ daughter, Nikole Arrotta, remained in the family home when [Larry] left. Nikole stayed with her mother until May 16,1989, at which time the parties agreed she would spend some time with her father. Nikole has lived with her father, [Larry], from that time to the present. In her interview with the Court and her attorney she indicated a desire to live with her father.
“9. The parties dispute who should have primary custody of the child. However, the Court finds that [Sandra] has been the primary caretaker for the child and has a more stable structured and supervised home environment for Nikole than does [Larry]. It is therefore in the best interest of the child that [Sandra] have primary custody of Nikole with [Larry] having the right to physical custody of her on alternating weekends, alternating holidays, and for a continuous period of six weeks during the summer, commencing July 5, 1990, [Larry’s] alternating weekend periods of custody shall commence the first weekend after the date of the judgment based on these Findings and Conclusions. [Sandra] has agreed that if the Court finds that the child desires a joint custody arrangement, which allows her to spend equal time with each parent, [Sandra] would agree to such a plan. It is apparent, however, that at this time a fixed schedule of custody and visitation is needed and is inNikole’s best interest.” (Emphasis added).

Larry argues that Finding 9 is erroneous because it fails to consider the factors for determining the best interests of the child set forth in § 40-4-212, MCA. He further urges that the District Court erred by ignoring Nikole’s express desire to live with her father absent evidence that he is anything other than a good parent.

The District Court need not make specific findings on each statutory element. Rather, it must demonstrate only that it has considered each element by making specific findings as to the best interests of the child. In re Marriage of Keating (1984), 212 Mont. 462, 689 P.2d 249.

The District Court made the appropriate findings and considered the best interests of Nikole. The judge interviewed Nikole in chambers. The transcript reveals that Nikole testified that she would go to the same school no matter which parent she lived with. She testified as to her relationship with her parents, her adjustments in her home life and her school life. Thus, it is clear from the record that the District Court considered the factors of § 40-4-212, MCA, before making its determination as to Nikole’s best interests.

Larry’s argument that the lower court is bound by the child’s wishes absent a finding of his unfitness is not persuasive. The District Court is not required to award custody based on a child’s preference. The fitness of either party as a parent is only one factor to be considered by the court in granting custody. Bier v. Sherrard (1981), [_Mont. _,] 623 P.2d 550, 38 St.Rep. 158. We hold that the District Court did not abuse its discretion by awarding primary custody of the parties’ daughter to the mother in light of the child’s expressed preference to live with her father.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    FLORIAN EBERL and George Ulrich d/b/a Starline Braunvieh, Plaintiffs and Appellants, v. WAYNE SCOFIELD, an Individual; American Agrinomics, a Missouri Corporation; Holland Ranch Company, a Montana Corporation; and Beaverhead Livestock Auction, a Montana Corporation, Defendants and Respondents.
    No. 90-168.
    Submitted on Briefs Aug. 7, 1990.
    Decided Sept. 18, 1990.
    798 P.2d 536.

      Max A. Hansen, Dillon, for plaintiffs and appellants.
    Thomas R. Scott, Dillon, for Beaverhead Livestock Auction.
    William M. Kebe, Jr., Johnson, Skakles & Kebe, Butte, for American Agrinomics.
    John W. Larson, Missoula, for Holland Ranch Co.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiffs Eberl and Ulrich brought this suit in the District Court for the Fifth Judicial District, Beaverhead County, to recover seventeen purebred Braunvieh bulls or the value thereof, plus related damages. The court granted the motion of Beaverhead Livestock Auction for summary judgment on the claim against it. Plaintiffs obtained certification of that ruling under Rule 54(b), M.R.Civ.P., and appealed. We affirm.

The issues are:

1. Did the District Court err in granting Beaverhead Livestock Auction’s motion for summary judgment?

2. Did the court err in striking the affidavit of Wayne Scofield?

3. Did the court err in allowing the Montana Department of Livestock to file an amicus curiae brief?

The plaintiffs live in Alberta, Canada. They do business as Starline Braunvieh, raising and selling purebred Braunvieh cattle. In March 1987, defendant Scofield, then a resident of Montana, negotiated with plaintiffs for the purchase of forty-four purebred Braunvieh bulls. Fourteen of the bulls were selected from plaintiffs’ stock in Canada, three were shipped from plaintiffs’ Idaho stock, and plaintiffs helped Scofield locate the rest of the bulls from other Canadian sellers.

Scofield provided plaintiffs with business cards indicating that he was an employee of American Agrinomics. He told them that he was authorized to buy the bulls for Holland Ranch Company, located outside Dillon, Montana. Scofield obtained plaintiffs’ agreement that the purchase price for the bulls Starline Braunvieh sold him would not be paid until one week after the bulls were delivered to Montana. Plaintiffs did not, however, convey title to the bulls to Scofield.

On April 3, 1987, the forty-four bulls were shipped to Beaverhead Livestock Auction (BLA) in Dillon, Montana. The other sellers required payment for their bulls before the bulls were unloaded. BLA paid those sellers with the understanding that Scofield would reimburse it.

The bulls were checked into the yard by Jack Ripley, a State Department of Livestock inspector. Ripley indicated on his inspection reports that payment for the bulls should be delivered to the shipper, Scofield.

Scofield transported twenty-four of the bulls to Holland Ranch Company but Holland Ranch Company then determined that it could not pay the purchase price Scofield had promised. Those bulls were returned to BLA and resold at a lower price through the ring. The buyers of the remaining bulls also paid less than the purchase price Scofield had promised plaintiffs. After BLA deducted its commission and costs and the money Scofield owed for the bulls of the other sellers from the money paid for the bulls, only about $1,000 remained. Plaintiffs have never been paid for the bulls, which they value at $26,000.

Plaintiffs brought this suit in June 1987. Their claim against BLA is that BLA should have held the proceeds of the sale of their bulls for them, the rightful owners. Following discovery, BLA moved for summary judgment, which was granted in an omnibus order from which the plaintiffs appeal.

I

Did the District Court err in granting Beaverhead Livestock Auction’s motion for summary judgment?

Plaintiffs argue that genuine issues of material fact exist which preclude summary judgment for BLA. Specifically, they argue that there is a question as to whether BLA had a duty to determine who owned the bulls before it made payment of the proceeds of sale. They cite § 81-8-233, MCA:

“A livestock market is liable to the rightful owner of all livestock sold for the net proceeds for such livestock whether or not the rightful owner was known to the market at the time of the sale.”

The depositions on file indicate that the long-standing practice in Montana is that a livestock market pays the proceeds of a cattle sale according to the directions of the state livestock inspector, who investigates title to the animals. Section 81-3-203(1), MCA, requires that a state livestock inspector must issue a certificate of inspection as to any livestock for sale, stating that the livestock is being sold by the rightful owner or person with lawful right of possession. Section 81-8-231(3), MCA, provides that the Department of Livestock shall

“supervise and regulate livestock markets in all matters affecting the relationship between the livestock market and owners of livestock and between the livestock market and purchasers of livestock.”

Section 81-8-261, MCA, provides that livestock sold at a livestock market may not be delivered to a purchaser until the purchaser has received an inspection certificate stating that the state livestock inspector is satisfied as to the ownership of the livestock.

In his deposition, state livestock inspector Jack Ripley stated that he determined that title to the bulls was in Scofield because the cattle were shipped to him. “When you ship the cattle from you to me and it shows shipped to, we understand, off of our Canadian records, that that means that the guy down here has title to the cattle.” He stated that his determination was in accord with an unwritten policy which had existed in the Department of Livestock since at least 1963.

We conclude that any duty of BLA to go beyond the directions of the state inspector in ascertaining the name of the true owner of cattle would conflict with the statutory scheme. Accordingly, we conclude that the term “rightful owner” in § 81-8-233, MCA, refers to the owner as determined by the Montana Department of Livestock. We therefore conclude that the District Court was correct in stating that all of the evidence indicates that BLA has fully complied with the applicable laws and rules. We hold that the court did not err in granting BLA’s motion for summary judgment.

II

Did the court err in striking the affidavit of Wayne Scofield?

The District Court ordered stricken an affidavit by Scofield which plaintiffs had submitted. The court stated that “[t]he allegations therein contain no admissible evidence as to any genuine issue of material fact as between Plaintiffs and [BLA].” Plaintiffs argue that the court should have considered the affidavit in ruling on the summary judgment motion, because the affidavit met the criteria of Rule 56, M.R.Civ.P.

Rule 56(e), M.R.Civ.P., provides that

“[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

We have reviewed the proposed affidavit of Scofield, containing his statement concerning the circumstances surrounding the sale of the bulls. We conclude that the District Court was correct in ruling that Scofield did not therein make any statements which were of his personal knowledge and related to the issue on which summary judgment was granted. All his statements relating to that issue were hearsay. We therefore hold that the District Court did not err in striking Scofield’s affidavit.

Ill

Did the court err in allowing the Montana Department of Livestock to file an amicus curiae brief?

The District Court, in allowing the Montana Department of Livestock to file its amicus brief, stated that:

“The Court finds that this brief and its supporting exhibits to be relevant to the principal issues as between Plaintiffs and the Defendant BEAVERHEAD LIVESTOCK AUCTION and has been adopted by the latter in support of its motion for summary judgment.
“The amicus motion and brief is fully within the intent and purpose of a long established procedure therefor. It gives the Court invaluable information on a question of law in respect to which the Court was doubtful and especially from one who, in the Court’s judgment, should have been a named defendant under Plaintiffs’ various theories of liability.”

Plaintiffs argue that the amicus brief was untimely, was not supported by the rules, and was inaccurate. They point out that the brief was filed less than three weeks prior to the trial date and almost two months after the pretrial motion deadline. Plaintiffs assert that it should be stricken.

The Montana Rules of Civil Procedure and the Uniform District Court Rules neither provide for nor prohibit the use of briefs by amicus curiae in the district courts. This Court has stated that “[t]he right to be heard as amicus curiae is within the discretion of the court.” State v. Bonner (1950), 123 Mont. 414, 420-21, 214 P.2d 747, 751. In this case, we conclude that it was within the District Court’s discretion to allow the brief of the Montana Department of Livestock to be filed.

The inaccuracies reported in the amicus brief concern conclusions drawn from a letter written by the Head of the Regulatory Services Branch of the Animal Industry Division of Alberta Agriculture. The conclusions were that the documents conveyed with plaintiffs’ bulls effectively conveyed title to the bulls to Scofield. Because our holding that it was not error to grant summary judgment for BLAis based on the absence of a duty of BLAto determine the true owner of the bulls in contradiction to the determination of the Montana Department of Livestock, we conclude that this argument is irrelevant.

Affirmed.

JUSTICES BARZ, SHEEHY, McDONOUGH and WEBER concur.


author: JUSTICE SHEEHY HON. LEROY McKINNON, Retired District Judge,

text:
    STATE OF MONTANA, EX REL. MARC RACICOT, Attorney General for the State OF Montana, Relators, v. THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT of the State of Montana, in and for the County of Dawson, and the Honorable H. R. Obert, District Judge, Respondents.
    No. 90-421.
    Submitted Sept. 5, 1990.
    Decided Sept. 19, 1990.
    798 P.2d 1004.

      HON. LEROY L. MCKINNON, District Judge, Retired, filed dissenting opinion.
    Marc Racicot, Atty. Gen., Elisabeth S. Baker, Asst. Atty. Gen., Garth Jacobson, Sp. Asst. Atty. Gen., Helena, for relators.
    Richard A. Simonton & Lorraine A. Schneider, Simonton, Howe & Schneider, Glendive, for respondents.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Richard A. Simonton, after years of estimable public service as County Attorney of Dawson County, was defeated in his bid for re-nomination as a candidate of the Democratic party by Gerald Navratil in the primary election held on June 5, 1990.

On July 23, 1990, Simonton and Lorraine A. Schneider filed a complaint for declaratory relief in the District Court, Seventh Judicial District, Dawson County, alleging that § 13-10-503, MCA, barred Simonton’s name from being placed on the ballot as an independent candidate for the office of County Attorney of Dawson County; that the said section denied Lorraine A. Schneider her opportunity to vote for the candidate of her choice at the time of the general election; that the plaintiffs were each denied the right to equal protection and freedom of association under the First and Fourteenth Amendments to the United States Constitution, and Art. II, sec, 4 of the Montana Constitution; and for declaratory judgment that § 13-10- 503, MCA, was unconstitutional.

On August 7,1990, Simonton presented his petition for nomination as an independent candidate for the office of County Attorney of Dawson County together with the requisite signatures and filing fee to the Dawson County Election Administrator. She rejected his petition on the grounds that § 13-10-503, MCA, required the petition for nomination as an independent candidate to be submitted one week prior to the filing deadline for candidates running for state political office.

The defendant in the declaratory judgment action was Patricia Peterson Boje, the Dawson County Election Administrator, who was represented in this case by the office of the Attorney General of the State. On August 10,1990, the District Court entered findings of fact and conclusions of law, to the effect that Simonton’s petition met the requirements of law for placement on the general election ballot in November, 1990, and that § 13-10-503 was unconstitutional and unconstitutional as applied, and further ordered the County Election Administrator to place the name of Simonton on the general election ballot as an independent candidate for Dawson County Attorney, provided that Simonton submitted to the Election Administrator the requisite petition, signatures, oath of office and fifing fee on or before August 10, 1990.

On August 22, 1990, the Attorney General, by and through his special assistant, Garth Jacobson, filed herein a petition and memorandum in support thereof for supervisory control or other appropriate relief from the order of the District Court entered on August 10, 1990.

On receipt of the petition of the Attorney General, on August 23, 1990, this Court ordered the District Court and all counsel of record to prepare, serve and file written responses to the application for writ of supervisory control, together with appropriate legal memoranda and exhibits in support thereof on or before September 4, 1990; and that the Court would determine upon receipt of those responses whether oral argument was necessary.

On the 5th day of September, 1990, this Court entered an order in this cause finding there was no need for oral argument, and further stating that the application of the Attorney General for writ of supervisory control was granted. The District Court and presiding judge were ordered to take such steps as may be necessary to reverse the decision of August 10,1990, to inform the proper election officials, and to remove from the general election ballot of November, 1990, the name of Richard A. Simonton as an independent candidate for the office of County Attorney. We also stated that a full Opinion respecting the matter would issue later. This Opinion is in fulfillment of that statement.

Acceptance of Jurisdiction

Since this cause is an original proceeding in this Court, the first question to be met is whether the petition and the responses thereto present a cause sufficient to move the remedial jurisdiction of this Court.

The Supreme Court of this state is given general supervisory control over all of the state courts. Art. VII, § 2(2), Mont. Const. Our Rule 17(a), Montana Rules of Appellate Procedure, recognizes that the institution of original proceedings in the Supreme Court is sometimes justified by circumstances of an emergency nature, when supervision of a trial court other than by appeal is deemed necessary or proper. We have found that an assumption of original jurisdiction is proper when (1) constitutional issues of major statewide importance are involved; (2) the case involves purely legal questions of statutory and constitutional construction; and (3) urgency and emergency factors exist, making the normal appeal process inadequate. State ex rel. Greeley v. Water Court, State of Montana (1984), 214 Mont. 143, 691 P.2d 833. We will accept declaratory judgment proceedings “where the issues have impact of major importance on a statewide basis, or upon a major segment of the state, and where the purpose of a declaratory judgment proceedings will serve the office of a writ provided by law...” Grossman v. State, Department of Natural Resources (1984), 209 Mont. 427, 436, 682 P.2d 1319, 1324.

We find that the criteria for exercising original jurisdiction are present in this case and have accepted jurisdiction for the purpose of determining what relief should be granted.

Grounds Used By District Court To Grant Relief

The District Court found that § 13-10-503(2), MCA, and the procedure for the inclusion of an independent candidate’s name on the general election ballot is unconstitutional because it deprived the independent candidate of equal protection of the law afforded by the Fourteenth Amendment, and because it deprived the electorate of an effective right to exercise free speech and the right of association protected by the First Amendment. The District Court found that it was arbitrary and capricious to require independent candidates to file their petitions for office with the Election Administrator prior to the primary filing deadline. The District Court also found no rational basis or compelling state interest for requiring an independent candidate to secure signatures and to submit them in the form of a petition to the Election Administrator at least one week before the primary deadline when the same commitment was not required of major party candidates and when the independent candidate’s name does not appear on the primary ballot. The court further said there was no rational basis for requiring independent candidates for offices other than President or Vice-President to submit petitions prior to the primary deadline when the same is not required of Presidential and Vice-Presidential candidates.

The District Court further stated that § 13-10-503(2), MCA, infringed on Simonton’s right to an effective and meaningful access to the general election ballot and served only to shield party candidates from independent competition in the general election.

Basis For The Constitutional Issue

The parts of our statutes which are pertinent follow:

“13-10-501. Petition for nomination by independent candidates. (1) . . . nominations for public office by an independent candidate . . . may be made by a petition for nomination.
“(2) The petition must contain the same information and the oath of the candidate required for a declaration for nomination.
“13-10-503. Filing Deadlines. (1) A petition for nomination, accompanied by the required filing fee, shall be filed with the same officer with whom other nominations for the office sought are filed. Petitions must be submitted, at least 1 week before the deadline for filing, to the election administrator in the county where the signer resides for verification and certification ... In the event there are insufficient signatures on the petition, additional signatures may be submitted before the deadline for filing.
“(2). .. each petition shall be filed on or before the filing deadline for the primary election or for the special or general election if no primary election is scheduled.
“13-10-504. Independent or minor party candidates for president or vice- president. (1) An individual who desires to run for president or vice- president as an independent candidate . . . must file a petition for nomination with the secretary of state 90 days prior to the date of the general election.
“(2) The petition must first be submitted, at least 1 week before the deadline for filing, to the election administrator in the county where the signer resides for verification and certification . . .”

In addition, § 13-10-327, MCA, provides that if a party candidate dies or withdraws after the primary and before the general election, the affected political party shall appoint someone to replace the candidate. Such appointments to fill vacancies must be made no later than 75 days before the election. Section 13-10-327(2), MCA.

Candidates on a partisan ticket for an elective office must file their declarations for nomination under § 13-10-201(6), MCA, at least 75 days before the date of the primary election.

Insofar as the foregoing statutes affect this case, the primary election was held on June 5, 1990. The final filing date was March 22, 1990. Independent candidates were required to submit their petitions for candidacy by March 15, 1990, to be final by March 22, 1990. Candidates for nomination by a political party for an elective office were required to file their declarations of nomination by March 22, 1990. Since 1990 was not a presidential election year, there were no contests in Montana for the office of President or Vice-President of the United States.

The District Court did not quarrel with the requirement that independent candidates submit their petitions to the election administrator prior to the final filing date. Rather it contended that the statute violates the Fourteenth Amendment’s Equal Protection Clause in two requirements: (1) the required filing before the primary deadline when the independent’s name did not appear on the primary ballot; and, (2) requiring the independent to secure sufficient signatures on a petition and submitting it at least one week before the party candidates must express their intentions. (Under § 13-10-502(2), MCA, the petition of an independent candidate to be placed on the ballot must be signed by electors residing within the county, and the number must be 5% or more of the total vote cast for the successful candidate for the same office at the last general election.)

Disposition

Simonton’s Fourteenth Amendment arguments compare the differences in final filing dates between Presidential and Vice-Presidential candidates, candidates for major party nomination, and candidates who are independents or minor party candidates. He argues that there is no compelling reason for the differences in filing requirements and that such requirements serve only to inhibit minor parties and independent candidates from running for election and they perpetuate the two-party system. He further points out that until 1973, independent candidates could file after the primary election as candidates on the general election ballot and no chaos or confusion resulted thereby.

Simonton relies primarily upon two U.S. Supreme Court decisions, Williams v. Rhodes (1968), 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24, and Anderson v. Celebrezze (1983), 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547.

Williams involved a challenge to Ohio’s election laws which required a person other than a nominee of a major political party to secure signatures of 15 percent of the qualified electors on a petition and the filing of that petition earlier than for other candidates. The case involved candidates of a minor party seeking to secure a place on the Ohio ballot for President and Vice-President. In Williams, the U.S. Supreme Court found that Ohio’s election procedures were burdensome and prevented the minor parties from ever getting on the ballot and that reliance on write-ins was an insufficient remedy when compared to a printed appearance on the ballot.

In Anderson, the U.S. Supreme Corut again examined Ohio law and found its primary deadlines, when applied to independent candidates and minor candidates, to be unconstitutional. There, Anderson, running for president of the United States, did not tender his petition until May 16, when the filing deadline was March 20, and the election administrator refused the petition. The Supreme Court held that Ohio’s early filing deadline placed an unconstitutional burden on the voting and associational rights of Anderson supporters and that the requirement that he must gather 5,000 signatures on a number of petitions would discourage independent candidates who otherwise would have to decide well in advance of the March filing deadline whether to run.

Simonton also relies on Bradley v. Mandel (D. Md. 1978), 449 F.Supp. 983, examining a Maryland statute and resulting in the same kind of decision, and other cases.

Simonton’s and Schneider’s arguments respecting the First Amendment follow along the same lines. They contend that the state must have a compelling interest in order to restrict independent’s rights; that such election laws are the product of legislators elected by major parties who have a direct interest in the failure of independent candidacies; and that such filing limitations burden the rights of individuals to associate for the advancement of political beliefs and prevent qualified voters from casting their votes effectively. They also contend that being independent is evidence of a state of mind and that the statute which prevents independent persons from fielding an opposition candidate to partisan candidates after a primary is in effect a prior restraint.

Simonton and Schneider raise constitutional issues of considerable complexity and depth, but in this case they are not the right parties to raise such issues. Simonton does not come before the Court as a truly independent candidate. He is a partisan candidate who ran for re-election for the office of County Attorney on the Democratic ticket and failed to prevail in the primary election. When he filed his declaration for nomination as a Democratic candidate, that declaration became conclusive evidence that he was a candidate for nomination by his party. Section 13-10-201(4), MCA. He has not been denied access by law to the general election ballot, but by the will of the electors in the party he sought to represent. He made no attempt to file as an independent candidate prior to the filing date and the laws requiring petitions and signatures for nomination as an independent candidate did not prevent him from seeking office. He chose a method of obtaining office that was permitted by law and cannot now complain about the operation of law that would apply to other possible candidates than himself.

The same situation exists with respect to Lorraine A. Schneider. The evidence in the case is that she voted in the primary election, having signed the register of voters at the primary election in Dawson County which certifies that she received primary election ballots. We do not know how she voted but we do know she had an opportunity to vote for the candidate of her choice, Mr. Simonton. Again, no operation of the laws relating to independent candidates prevented her from voting for her candidate as a representative of the party ticket under which he chose to run, and in which she was given the right to choose to vote.

This position of lack of standing of either Simonton or Schneider to raise the constitutional issues in this case is strongly urged upon us by amicus curiae, Montana Association of Counties, which filed with us an amicus brief. Essentially, the Association argues that neither Simonton nor Schneider have been disadvantaged in the sense that he was truly an independent who was prevented from appearing on the ballot by virtue of the filing requirements.

The District Court, recognizing that Simonton had been a partisan candidate for the same office, gave no heed to this factor because, the court said, Montana did not have a “sore loser” statute that would prevent defeated partisan candidates from filing as an independent for the same office. Until the enactment of § 13-10-503, MCA, in 1973, defeated partisan candidates often re-entered the fray as independent candidates at the general election. The adoption by the legislature of § 13-10-503, MCA, effectively stopped this procedure. While the statute might be considered in some respects as a “sore loser” provision, we do not rely on it for that effect. It is far more to the point here that Simonton and Schneider each exercised full candidacy and electoral rights as partisans, and now seek the advantages of law preserved to independents in election matters. When Simonton filed for re-election as a partisan, he did so under the election laws which “burdened” independent candidates for the same office. He cannot now complain of the unconstitutional burdens on others which, if Simonton is correct, kept independent candidates out of the race. It is old but settled law that to raise questions of the unconstitutional discriminatory effect of statutes, the party complaining must belong to the class discriminated against. State v. State Bank of Moore (1931), 90 Mont. 539, 552, 4 P.2d 717, 720. One cannot abide by the provisions of laws which work in one’s favor, and then attack their constitutionality when they work to one’s disfavor. State ex rel. Krutzfeldt v. Thirteenth Judicial District Court (1973), 163 Mont. 164, 515 P.2d 1312.

Schneider’s case presents First Amendment questions that ordinarily this Court would examine and decide, since she is an elector claiming associational and free speech rights. However, her case is tied absolutely to her contention that she has a right to vote for Simonton as an independent in the general election of 1990. Since he has no right to such candidacy, her claims must fall with his.

On the basis therefore that neither Simonton nor Schneider were disadvantaged by the operation of the filing requirements for independent candidates, we decline to decide the constitutional issues otherwise presented.

We hold, therefore, that the Order of the District Court must be reversed and that the name of Richard A. Simonton is not entitled to be placed on the November, 1990, general election ballot as a candidate for County Attorney of Dawson County.

Accordingly, IT IS ORDERED:

1. The Order of August 10, 1990, of the District Court, Seventh Judicial District, Dawson County, in its cause No. DV 90-058 be and same is hereby REVERSED.

2. The Order and directions therein of this Court in this cause dated August 23,1990, be and the same are hereby confirmed. A copy of such Order is attached hereto as Addendum 1.

3. The Petition of the Attorney General in this cause as relator be and the same is hereby GRANTED. This Opinion, together with our Order of August 23,1990 in this cause, shall be and perform the office of a writ of supervisory control issued out of this Court without further order of this Court.

4. The Clerk of this Court is directed to mail copies of this Opinion to counsel of record for the parties, to the District Court of Dawson County and its presiding judge, to the Election Administrator of Dawson County, Montana, and to the Clerk of Court of Dawson County.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, HARRISON, and WEBER and HON. JEFFREY SHERLOCK , District Judge, sitting for JUSTICE McDONOUGH, concur.

HON. LEROY McKINNON, Retired District Judge,

sitting for Justice Hunt, dissenting:

I respectfully dissent from the foregoing majority opinion. In my opinion Mr. Simonton ceased to be the Democratic party candidate following the primary election. Thereafter he sought to become an independent candidate.

It appears to me that the statute in question discriminates against anyone seeking to run for election as an independent candidate, and no compelling interest of the state to justify such discrimination is apparent.

ORDER

Relator, Marc Racicot, Attorney General, filed in this cause a petition for writ of supervisory control seeking review of the order of the District Court of the Seventh Judicial District, Dawson County, in its Cause DV 90-058, dated August 10, 1990, permitting the name of Richard A. Simonton to be placed on the upcoming general election ballot as an independent candidate for Dawson County Attorney.

Upon receipt of the petition, this Court entered an order on August 23, 1990, requesting the respondents and all counsel of record in the said cause to prepare, file and serve written responses to the application for writ of supervisory control together with appropriate memoranda and exhibits. The Court in that order also reserved the question whether oral argument would be necessary.

Responses having been received and briefs of the parties and from amicus curiae, and the Court being advised in the premises,

IT IS HEREBY ORDERED:

1. The Court finds no need for oral argument in this cause.

2. The application for writ of supervisory control is GRANTED.

3. The District Court of the Seventh Judicial District, Dawson County, and the presiding judge, Honorable H. R. Obert, are each hereby ordered to take such steps as may be necessary to reverse its decision of August 10, 1990, to inform the proper election officials, and to remove from the general election ballot of November 1990 the name of Richard A. Simonton as an independent candidate for the office of county attorney.

4. A full opinion respecting this case will issue later.

5. The Clerk of this Court shall give immediate telephonic notice of this order to counsel of record, to the presiding judge of said district court, to the clerk and recorder of Dawson County, Montana, and shall mail copies hereof by ordinary mail forthwith to said persons.

DATED this 5th day of September, 1990.

S/ J.A. TURNAGE, Chief Justice

S/ DIANE G. BARZ, Justice

S/ JOHN C. SHEEHY, Justice

S/ JOHN CONWAY HARRISON, Justice

S/ FRED J. WEBER, JUSTICE

S/ JEFFREY SHERLOCK, DISTRICT JUDGE, sitting in place of JUSTICE McDONOUGH.

HON. LEROY L. McKINNON, Retired District Judge, sitting for JUSTICE HUNT, dissents to the foregoing order.