text:
    ROLF A. JACOBSEN, et al., Plaintiffs and Appellants, v. STATE OF MONTANA, Defendant and Respondent.
    No. 88-216.
    Submitted on Briefs Dec. 29, 1988.
    Decided Feb. 9, 1989.
    769 P.2d 694.

      Daniel W. Hileman, Murray, Kaufman, Vidal & Gordon, P.C., Kalispell, for plaintiffs and appellants.
    Dana L. Christensen, Murphy, Robinson, Heckathorn & Phillips, P.C., Kalispell, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal concerns alleged negligence by the State of Montana in combating a forest fire. Plaintiff Rolf A. Jacobsen, together with several other homeowners and an insurance company that sustained losses as a result of the fire in question (Plaintiffs), appeal from the judgment of the District Court of the Nineteenth Judicial District, Lincoln County, entered upon a jury verdict in favor of the State. We affirm.

Plaintiffs frame three issues for review:

1. Whether the District Court erred by allowing Defendant’s Exhibits “L” and “N” into evidence over Plaintiffs’ objections.

2. Whether there was substantial credible evidence to support the jury verdict.

3. Whether the District Court’s giving of Defendant’s Proposed Jury Instructions 18 and 21, and refusal to give Plaintiff’s Offered Instruction No. 6 was in error.

In August of 1984, the Houghton Creek area near Libby was the site of two forest fires relevant to this dispute. The initial fire was discovered on August 15, and burned approximately 87 acres. State fire-fighting personnel had contained and largely extinguished the first fire by August 20, and then began a schedule of daily patrols at the site of the burn. During these patrols, crews extinguished any fires or “smokes” they discovered within “two chains” (132 feet) of the outside perimeter of the burn.

August was a hot and dry month, and on the 27th a “red flag” warning was posted due to windy conditions. In the early afternoon, the Libby-area dispatcher for fire fighters received reports from Houghton Creek residents that air was becoming smoky and dusty. The dispatcher radioed two crews and directed them to interrupt their regular patrol schedules and proceed directly to the Houghton Creek burn. They were joined by a third, Inter-Unit crew that had been dispatched from Kalispell because of the red flag condition in the Libby area.

The first crew on the scene surveyed the burn area, where the crew boss later testified he observed smoke and winds of approximately 30 m.p.h. When the other crews arrived, the first crew boss told them he felt he could handle the situation and released them to other duties. Upon the departure of the two crews, the first crew boss returned to a vantage point on a ridge near the burn, where he saw fire burning rapidly in his direction. He radioed for help, and the other two crews returned. Members of the other crews testified to experiencing winds of 50 m.p.h. or more upon their return. At that point, the fire fighters were unable to control the blaze. It grew rapidly, joined with another fire that had started some distance away, and eventually burned over 12,000 acres.

Eleven actions were filed against the State for losses suffered due to the fire. All of the suits sounded in negligence, and were consolidated for trial on the issue of liability. At the close of trial, the jury returned its verdict in favor of the State. Judgment was entered thereon, and Plaintiffs appealed.

I. The Exhibits.

Plaintiffs assign error to the District Court’s rulings on two pieces of evidence offered by the State. They first argue that both exhibits were irrelevant under Rule 401, M.R.Evid. Plaintiffs further allege that if the exhibits were relevant, their probative value was outweighed by their prejudicial effect, and they should have been excluded under Rule 403, M.R.Evid. The determination of the admissibility of evidence is within the wide discretion of the trial court, and we will not disturb the court’s ruling absent a showing of abuse of discretion. State v. J.C.E. (Mont. 1988), [235 Mont. 264,] 767 P.2d 309, 45 St.Rep. 2373; Preston v. McDonnell (1983), 203 Mont. 64, 659 P.2d 276.

Plaintiffs first address Defendant’s Exhibit “N,” a map of the State of Montana. The map had been prepared by Steve Jorgensen of the Department of State Lands, who testified as the State’s witness when the map was introduced. Jorgensen used red and orange spots to represent fires occurring within the state between August 15, 1984 (the date of the first Houghton Creek fire), and August 27, 1984 (the date of the second fire). According to the State, the map was offered to counter Plaintiffs’ contention that the State had not prioritized its resources properly, and to show the weather conditions existing during the time in question. It is the State’s contention that the unexpectedly strong winds of August 27, and not any negligence by the State, caused the fire to “blow up.”

Plaintiffs objected on the ground of relevance, but the court admitted the exhibit. After Jorgensen’s testimony about the number of fires on the map, Plaintiffs moved for a mistrial. They argued that the exhibit had inflamed the passions of the jury, making it impossible for them to receive a fair trial.

On appeal, Plaintiffs reassert both of these arguments. They note the definition of relevance in Rule 401, “having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable . . . .” According to Plaintiffs, the map made no facts relative to the issue of the State’s negligence more or less probable. The map did not show the manpower and equipment available to the State, nor was the time frame sufficiently narrow to apply to the weather pattern in effect on the 27th. Plaintiffs assert prejudice in that the map sought to divert attention from the fire at issue and the State’s performance in fighting it by graphically presenting the large scale of the fire situation statewide. We disagree.

The State refers to the testimony by Plaintiffs’ expert witness regarding prioritization of fire-fighting resources. This witness voiced several criticisms of the fire-fighting methods employed in the Libby area, including the small size of the crews used and the overall lack of manpower on the Houghton Creek fire. On cross-examination, the State brought out the expert’s lack of knowledge concerning other fires burning in northwest Montana that required attention. Some representation of the number of fires burning in the area was therefore relevant to the prioritization issue.

The weather was also an issue. Both sides discussed the dry conditions present during the summer of 1984, and the State raised a defense alleging that the unexpectedly strong winds of the 27th were an intervening cause of the flare-up. The map was relevant to each of these questions by showing the large number of fires resulting from the dry, windy weather occurring throughout the time period at issue.

Plaintiffs argue with merit that the map showed a much larger area than was required by the scope of these issues. However, the information offered did make facts concerning the number of fires requiring State attention and the severity of the fire season more probable. The information about the severity of the fire season was also relevant to Plaintiffs’ contention that greater care should have been exercised by the State given the dry conditions.

In support of their claim of prejudice, Plaintiffs cite cases from this Court requiring the exclusion of evidence when its probative value is outweighed by its prejudicial effect, including Kuiper v. Goodyear Tire and Rubber Co. (1983), 207 Mont. 37, 673 P.2d 1208 (evidence in products liability case concerning defendant company’s political contributions to persons connected with the Watergate scandal); and Welnel v. Hall (1985), 215 Mont. 78, 694 P.2d 1346 (largely speculative testimony in motorcycle-auto collision case that characterized the plaintiff as a stereotypical “biker”) .

In Kuiper, we found a “total absence” of evidence connecting the defendant’s political contributions to the injury caused by its product. The plaintiffs constant reference to the defendant’s connection with the scandal — including a 74-page opening statement — had turned the trial into a “political circus.” In Welnel, the witness at issue was to testify about seeing a black Harley-Davidson motorcycle ridden by a bushy-haired man wearing a black leather jacket traveling at a high rate of speed. The witness could not identify the plaintiff as the rider, there was evidence showing that the plaintiff had very short hair and was not wearing a jacket on the day of the collision, and the time frame of this observation in reference to the collision was indefinite.

Here, the map was a single exhibit giving a graphic representation of the severe forest fire season cited by both parties in their arguments. Plaintiffs do not dispute its accuracy. As we said above, the scope of the exhibit was broader than necessary. It cannot be said, however, that it was so lacking in probity to be solely for the purpose of drawing the jury’s attention from the main issues. Nor can it be said that the map was so inaccurate or indefinite that its possible prejudice outweighed its probative value. We therefore find no abuse of discretion by the District Court in admitting the map.

Exhibit “L,” an enlarged photograph of the Houghton Creek burn area taken by Department of State Lands employee Erik Kurtz on August 24, was likewise properly admitted. Plaintiffs contend that the photo, which shows no smoke in the burn area, lacked probative value because it conflicted with Kurtz’s own radio log and the testimony of Plaintiffs’ expert. A piece of evidence that conflicts with other evidence is not devoid of probity. The conflict affects only the weight it is to be accorded, which is within the exclusive province of the jury. 30 Am. Jur. 2d, Evidence §§ 1080, 1082; Wheeler v. City of Bozeman (Mont. 1988), [232 Mont. 434,] 757 P.2d 345, 347, 45 St.Rep. 1173, 1176.

Plaintiffs assert that the photo was prejudicial because the condition of the fire on August 24 had no bearing on the alleged negligence that took place on August 27. Plaintiffs themselves, however, presented evidence of the condition of the burn during the time between the first and second Houghton Creek fires. Testimony by several of Plaintiffs’ witnesses concerned the patrols conducted by Department of State Lands employees and whether those patrols dealt adequately with smoking or burning stumps during that period. The photograph showed a lack of smoke on one particular day during that period.

As with the map, the photo was not so lacking in probity or so inaccurate that it was prejudicial. While plaintiffs’ expert noted the possibility that a photo taken from another angle may have shown smoke, he did not question the accuracy of Kurtz’s photo. We find no abuse of discretion in the District Court’s decision to admit the photo.

II. Substantial Credible Evidence.

Plaintiffs next contend that the jury’s verdict was not supported by substantial credible evidence. The standard for review of a jury verdict is whether there is substantial credible evidence to support it. Weinberg v. Farmers State Bank of Worden (Mont. 1988), [231 Mont. 10,] 752 P.2d 719, 45 St.Rep. 391. However, this Court does not lightly overturn the verdict of a finder of fact, especially a jury. Palmer by Diacon v. Farmers Insurance Exchange (Mont. 1988), [233 Mont. 515,] 761 P.2d 401, 45 St.Rep. 1694. The test of substantial credible evidence allows for reversal only if there is an absence of probative facts to support the verdict. Kleinsasser v. Superior Derrick Service, Inc. (Mont. 1985), [218 Mont. 371,] 708 P.2d 568, 42 St.Rep. 1662.

The State took the position at trial that the intervening forces of nature — specifically the sudden, strong winds — were the cause of the second Houghton Creek fire and Plaintiffs resulting losses. The State also contended that its agents and employees acted reasonably in all aspects of fighting and containing the fire. The record contains the testimony of ten witnesses called by the State to present its case in chief. This testimony was supported by a total of 14 exhibits, including those discussed above.

While Plaintiffs have challenged the State’s evidence and shown where some of it conflicts, these questions, as stated above, go only to the weight to be accorded the evidence. Plaintiffs have not shown an absence of probative facts to support the State’s position. We decline to hold that the jury’s verdict was not supported by substantial credible evidence.

III. The Jury Instructions.

Plaintiffs assign error to the District Court for giving three of the jury instructions proposed by the State. They contend that the instructions were mere commentary upon the evidence, and were contradictory and confusing. The disputed instructions read as follows:

“At the center of negligence is the concept of the reasonable person. What would a reasonable and prudent person, confronted by like circumstances and exercising reasonable care have done? In other words, negligence involves acting other than as a reasonable person would do in the circumstances. The reasonable person has been observed to be the epitome of ordinariness, never reckless or absent minded, yet neither endowed with exceptional courage, foresight, or skill.

[Defendant’s Proposed Instruction No. 18]

“Negligence is not proved merely because someone later demonstrates that there would have been a better way. Reasonable care does not require prescience nor is it measured with the benefit of hindsight.

[Defendant’s Instruction No. 21]

“An intervening cause will relieve a Defendant of liability for negligent acts where the cause is one which the Defendant could not reasonably anticipate under the circumstances.”

[Defendant’s Proposed Instruction No. 26]

This Court has held that a party assigning error to the giving of a jury instruction will not prevail unless some prejudice is shown. Wilhelm v. City of Great Falls (Mont. 1987), [225 Mont. 251,] 732 P.2d 1315, 44 St.Rep. 211; Farmers Union Grain Terminal Ass’n v. Montana Power Co. (1985), 216 Mont. 289, 700 P.2d 994. Where the instructions given state the law applicable to the case when read as a whole, a party cannot claim reversible error as to the giving of certain instructions. Goodnough v. State (1982), 199 Mont. 9, 647 P.2d 364. We have also held that refusal to instruct a jury on an important part of a party’s theory of the case is reversible error. Smith v. Rorvik (Mont. 1988), [231 Mont. 85,] 751 P.2d 1053, 45 St.Rep. 451.

The instructions listed above correctly state principles of negligence law. When read together, they are not contradictory, nor do they appear confusing. Instructions 18 and 21 deal with the standard of care required of the State in dealing with the Houghton Creek fire. Plaintiffs charged the State with failing to exercise reasonable care, and presented evidence of the events leading up to the second Houghton Creek fire to show this. The State countered this allegation by arguing that its employees acted reasonably under the circumstances. Instructions 18 and 21 were not prejudicial to Plaintiffs.

Instruction No. 26 deals with the principle of intervening causes. Again, this is a correct statement of negligence law. It fits logically with the other instructions on negligence proposed by both sides for that reason. The State’s main defense, as discussed above, was that the unusually strong winds that occurred on August 27 were the unforeseeable, intervening cause of the second Houghton Creek fire. Instruction 26 was not prejudicial to Plaintiffs.

Plaintiffs next contend that the District Court erred in refusing to give their Proposed Jury Instruction No. 6:

“A legal doctrine called ‘res ipsa loquitur’ is involved in this case. The meaning of the term is, ‘it speaks for itself.’ Under this doctrine, even though negligence has not been proven by other evidence, you may infer negligence from the circumstances surrounding an event if you find from a preponderance of the evidence that (1) the event is of a kind which ordinarily does not occur in the absence of negligence; (2) other causes, including the conduct of the plaintiff and other persons, have been sufficiently eliminated by the evidence.”

Plaintiffs fail, however, to present an argument to support their assertion that failure to give this instruction was error. By the definition given in the instruction, the doctrine does not appear to apply in this case. It is entirely possible, as the jury apparently believed, for a forest fire to occur or for an existing fire to break through a fire line in the absence of negligence. The State presented substantial evidence on that very question.

The decision of the District Court is affirmed.

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

MR. CHIEF JUSTICE TURNAGE did not participate.


source: Caselaw Access Project

author: MR. JUSTICE WEBER

license: Public Domain

text:
    RAND LYAL SLOAN, Defendant and Appellant, v. STATE OF MONTANA, Plaintiff and Respondent.
    No. 88-275.
    Submitted on Briefs Dec. 16, 1988.
    Decided Feb. 9, 1989.
    768 P.2d 1365.

      Thomas A. Dooling, Dooling Law Office, P.C., Dillon, for defendant and appellant.
    Marc Racicot, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Thomas R. Scott, Beaverhead County Atty., Calvin Erb, Deputy County Atty., Dillon, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the opinion of the Court.

Mr. Sloan was convicted by a jury of aggravated assault in the District Court for the Fifth Judicial District, Beaverhead County. He was sentenced to 15 years. Mr. Sloan appeals. We affirm.

The issues are:

1. Did the District Court err in granting the State’s motion in limine which requested that defense counsel be restrained from inquiring into the criminal history of the State’s witness?

2. Did the District Court err in other evidentiary rulings?

During the late afternoon of June 7, 1987, Les Ernst, a 63 year old sheepherder, and Glenn Hone entered the Lobby Bar in Dillon, Montana, to discuss a horse owned by Mr. Hone which Mr. Ernst was interested in purchasing. Mr. Hone was on parole from a homicide conviction. While they were standing near the bar the defendant approached them. Mr. Hone testified that the defendant asked him to buy him a drink. When Mr. Hone refused, the defendant asked Mr. Ernst if he would buy him a drink. Mr. Ernst also refused, whereupon the defendant told Mr. Ernst to lend him some money and he would buy his own drinks. When Mr. Ernst again refused, the defendant hit him, knocking him to the floor unconscious. Mr. Hone testified that the defendant hit Mr. Ernst again in the face, and then “put the boots to him,” or kicked and stomped on him. Another witness, Rod Fortier, testified that he saw the defendant hit Mr. Ernst four or five times with his fist as Mr. Ernst lay on the floor unconscious. Mr. Ernst sustained serious injuries, including two fractures of his jaw, a nasal fracture, facial contusions, and four broken ribs.

I

Did the District Court err in granting the State’s motion in limine which restrained defense counsel from inquiring into the criminal history of the State’s witness?

Prior to trial the State made a motion in limine to prevent defense counsel from inquiring into Glenn Hone’s criminal history for purposes of impeachment. On the morning of trial and later in a written offer of proof, defense counsel informed the court that testimony from either Mr. Hone or the defendant would reveal that Mr. Hone told defendant that “he, Hone, would personally see to it that [defendant] served time in prison, because a year at the pen had done him, Hone, a lot of good.” Counsel for defendant argued that this statement showed bias or motive to fabricate testimony, and was admissible for this purpose, although linked to the evidence of his felony conviction. The court, however, granted the State’s motion, reserving the right to consider the matter at a later time.

Mr. Sloan argues that the credibility of a witness can be impeached by showing motivation to fabricate under Rule 607(a), M.R.Evid., which states, “The credibility of a witness may be attacked by any party, including the party calling him.” Rule 607, M.R.Evid., is intended to preserve traditional methods of impeachment, which include impeachment by showing bias or motive to fabricate.

Montana statutorily prohibits inquiry into prior criminal history for impeachment purposes through Rule 609, M.R.Evid., which states:

“For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is not admissible.”

The rationale behind this rule as explained by the Commission Comments is that impeachment by evidence of conviction of a crime has low probative value in relation to credibility. The Commission Comments further state, “The Commission does not accept as valid the theory that a person’s willingness to break the law can automatically be translated into willingness to give false testimony.” This role also avoids the highly prejudicial effect on a jury that is inherent in this type of evidence. There is a strong probability that a juror, hearing that the witness is a convicted felon, will immediately discredit that witness’ testimony. The trial may even be turned into a “trial of the witness.”

Evidence of a witness’ prior criminal history for impeachment purposes is normally irrelevant to any issue at trial. It has low probative value in determining whether a witness is telling the truth. It is highly prejudicial. Therefore, Montana has statutorily declared it to be inadmissible. This exclusionary rule has been upheld by this Court. State v. Short (Mont. 1985), 217 Mont. 62, 702 P.2d 979, 42 St.Rep. 1026; State v. Rose (1980), 187 Mont. 74, 608 P.2d 1074.

Mr. Sloan argues that his right to impeach by showing bias should override the prohibition against evidence of criminal history when, as in this case, the two rules conflict. Alternatively, defendant argues that the court’s granting of the motion in limine was overly restrictive in that defense counsel should have been allowed to elicit testimony regarding the portion of the statement which did not mention Mr. Hone’s criminal history. Since the record does not establish that defense counsel ever offered to restrict testimony on this statement to the admissible portion, we will not consider this argument.

The statement as offered, both orally by defense counsel and later in the offer of proof, would necessarily have revealed Mr. Hone’s prior criminal history. We consider only whether it was error to prohibit the entire statement. We hold that it was not.

In the present case Mr. Hone’s statement that he would personally see to it that the defendant served time in prison could be interpreted to show bias or motive to fabricate. Defendant contends that the exclusion of this testimony deprived him of a fair trial by denying him the right to confront a witness as guaranteed by the Sixth Amendment of the United States Constitution. Defendant refers this Court to Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed. 347. In Short, this Court previously considered the right to cross-examination in light of the holding in Davis. In Short we held that limiting the extent of cross-examination on charges against a witness which were pending in another state did not violate defendant’s right to confrontation of witnesses. We stated:

“A witness’s credibility may be attacked through cross-examination to reveal possible biases, prejudices, or ulterior motives if they relate directly to issues or personalities in the case at hand. Davis, 415 U.S. at 315, 94 S.Ct. at 1109, Camitsch, 626 P.2d at 1254-1256. However, the extent of cross-examination on whether a witness has been accused of another or prior crime is within the trial court’s discretion. State v. Carns (1959), 136 Mont. 126, 136, 345 P.2d 735, 741; State v. Howard (1904), 30 Mont. 518, 77 P. 50; see also, Alford v. United States (1931), 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624. The extent of cross-examination for these purposes is restricted, because of the limited probative value in relation to credibility.”

702 P.2d at 982.

Montana also considered the Davis rationale in State v. Camitsch (Mont. 1981), 626 P.2d 1250, 38 St.Rep. 563. However, in Camitsch the defendant did not seek to elicit testimony at trial which would reveal prior criminal history. Camitsch is therefore dissimilar to the present case. Additionally, in Rose, this court found error in the fact that defense counsel did not object to evidence of a witness’s prior criminal history. Rose, 608 P.2d at 1081.

In the present case, the trial court was faced with a statutory mandate prohibiting the statement purportedly made by Mr. Hone. Mr. Sloan’s asserted denial of the right of confrontation is based upon his own uncorroborated allegation that Mr. Hone made this statement. We hold that the court was well within its exercise of discretion in granting the State’s motion in limine restraining Mr. Sloan from eliciting testimony which would reveal Mr. Hone’s prior criminal history.

Mr. Sloan also asserts that the trial judge literally endorsed Mr. Hone’s testimony as Mr. Hone left the witness stand. This assertion is based on the following excerpt from the transcript:

“THE COURT: All right. Anything further from this witness at all?

“MR. ERB: No. We don’t have anything.

“THE COURT: All right. Thank you very much. You’re excused.

“THE WITNESS: Thanks. All I can do is say what I seen and that’s it.

“THE COURT: You did good. You did good.

“THE WITNESS: And thank you very much.

“THE COURT: Thank you, and you’re permanently excused.” Mr. Sloan contends that the judge’s comment, “You did good. You did good,” encouraged the jury to regard Mr. Hone’s testimony as “gospel.” We note that a court should refrain from comments on witness credibility. Rule 614 M.R.Evid., State v. Bier (1979), 181 Mont. 27, 34, 591 P.2d 1115, 1119. However, taken in context the court’s statement was not a comment on the witness’ credibility. We hold that Mr. Sloan was not denied a fair trial by this comment.

II

Did the District Court err in other evidentiary rulings?

Mr. Sloan contends that the District Court erred by not granting him a continuance in order that Police Chief Pat Clark could be subpoenaed and called as a witness. According to Mr. Sloan’s offer of proof, Chief Clark’s report to the Crime Compensation unit of the Workers’ Compensation Division indicated that the victim was initially receptive to the fight. The District Court did not err in denying this request. Mr. Sloan’s motion to compel the service of subpoena on Chief Clark was not timely made. A request for a continuance is within the discretion of the trial judge, taking into consideration the diligence of the movant, § 46-13-202(3), MCA; State v. Walker (Mont. 1987), [225 Mont. 415,] 733 P.2d 352, 44 St.Rep. 363. Additionally, Mr. Sloan was not prejudiced by the denial of the continuance. Police reports are inadmissible hearsay. Rules 802 and 803(8), M.R.Evid.; Camitsch, 626 P.2d at 1257. Chief Clark was not present during the assault; therefore his own testimony about the report would be inadmissible hearsay. We hold that the District Court did not err in refusing the continuance.

Mr. Sloan next contends that it was error for the court to grant the second part of the State’s motion in limine, which restrained him from calling Gloria Sutherland as a witness. Mr. Sloan’s offer of proof stated that if allowed, Ms. Sutherland would have testified that she overheard a conversation in which the victim asked Mr. Sloan for money in return for dropping the charges, and also that the victim admitted that as far as he knew Mr. Sloan hit him only once.

The Sixth Amendment guarantees a criminal defendant the right to testimony of witnesses in his favor. State v. Higley (Mont. 1980), [190 Mont. 412,] 621 P.2d 1043, 1050, 37 St.Rep. 1942, 1948, citing Washington v. Texas (1967), 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed. 1019, 1023. However, it does not guarantee him the right to any and all witnesses, regardless of their competency or knowledge. Higley, 621 P.2d at 1050. Ms. Sutherland had no personal knowledge of the assault. Her testimony would have been of a collateral matter of limited probative value. Furthermore, any testimony regarding the victim’s statement that as far as he knew, Mr. Sloan hit him only once, would be repetitious since it would be consistent with the victim’s own testimony at trial. We hold that there was no error in excluding this testimony.

Mr. Sloan next contends that the trial court should have allowed Ralph Merry to testify that after the assault Mr. Ernst attempted on more than ten occasions to solicit Mr. Merry’s aid in getting money from Mr. Sloan, even offering to give Mr. Merry a “cut” of the money. Defendant contends that this testimony might serve to “impugn Ernst’s motivations.” This testimony is not relevant to the assault incident. It has limited probative value regarding Mr. Ernst’s credibility. It was within the discretion of the District Court to limit Mr. Merry’s testimony.

Finally, Mr. Sloan contends that Loren Rafn’s testimony was improperly limited. Mr. Sloan made no offer of proof concerning this testimony, nor is there any indication in the record that his testimony was improperly limited. We affirm the District Court’s rulings on this testimony.

The judgment and sentence are affirmed.

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


author: MR. JUSTICE HARRISON

text:
    GLORIA RIGHTNOUR, Claimant and Respondent, v. KARE-MOR, INCORPORATED, Employer and Appellant, and Intermountain Insurance Company, Defendant and Appellant.
    No. 88-396.
    Submitted on Briefs Dec. 16, 1988.
    Decided Feb. 9, 1989.
    768 P.2d 871.

      Larry W. Jones, Garlington, Lohn & Robinson, Missoula, for appellant.
    R. Lewis Brown, Jr., Butte, David L. Holland, Butte, for claimant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This case was originally before this Court in Rightnour v. Kare-Mor, Inc. (Mont. 1987), [225 Mont. 187] 732 P.2d 829, 44 St.Rep. 141, where we concluded that claimant Gloria Rightnour was entitled to medical benefits which were reserved from the settlement agreement. Upon Rightnour’s petition, the Workers’ Compensation Court then reopened the final settlement and awarded claimant permanent total disability benefits. This appeal arises from that order and judgment. We affirm.

The facts of this case are well set forth in Rightnour, supra, but simply stated, the facts are these: Rightnour suffered a compensable injury to her lower back while employed by the defendant employer in January, 1982. Appellant accepted liability, and after Rightnour reached a state of maximum healing, a settlement agreement between the parties was reached. In March, 1984, Rightnour tripped and fell while caring for. children in her home and re-injured her lower back. New to the facts of this appeal, however, is the appellant’s revelation that Rightnour was self-employed when the 1984 injury occurred.

Appellant raises two issues for our review:

1. Was the Workers’ Compensation Court correct in concluding that good cause existed to reopen the final settlement?

2. Was the Workers’ Compensation Court correct in concluding that, based on this Court’s prior decision, Rightnour was entitled to disability benefits?

The parties agree that a final settlement may be reopened by the Workers’ Compensation Court within four years from the date the settlement was accepted by that court, if there was either a mutual mistake of a material fact, a change in disability, or good cause shown. Section 39-71-204, MCA, (1983) provides in part:

“(1) Except as provided in subsection (2), the division shall have continuing jurisdiction over all its orders, decisions, and awards and may, at any time, upon notice, and after opportunity to hr heard is given to the parties in interest, rescind, alter, or amend any such order, decision, or award made by it upon good cause appearing therefor.

“(2) The division or the workers’ compensation judge shall not have power to rescind, alter, or amend any final settlement or award of compensation more than 4 years after the same has been approved by the division. Rescinding, altering, or amending a final settlement within the 4-year period shall be by agreement between the claimant and the insurer. If the claimant and the insurer cannot agree, the dispute shall be considered a dispute for which the workers’ compensation judge has jurisdiction to make a determination

Section 39-71-2909, MCA, (1983) provides:

“The judge may, upon the petition of a claimant or an insurer that the disability of the claimant has changed, review, diminish, or increase, in accordance with the law on benefits as set forth in chapter 71 of this title, and benefits previously awarded by the judge or benefits received by a claimant through settlement agreements. However, the judge may not change any final settlement or award of compensation more than 4 years after the settlement has been approved by the division or any order approving a full and final compromise settlement of compensation.”

The hearing examiner found Rightnour had presented sufficient medical evidence that her disability has increased since the settlement was entered. Dr. Murphy concluded that Rightnofir’s impairment rating increased from 20% to 35%; Rightnour has been restricted to a five to eight pound weight restriction on repetitious lifting; and a rehabilitation consultant concluded that Rightnour is no longer able to engage in any occupation in her normal labor market. We find sufficient evidence existed to enable the Workers’ Compensation Court to reopen the settlement agreement.

Appellant next contends the Workers’ Compensation Judge erroneously concluded that, because the insurer was liable for Rightnour’s medical benefits, it logically follows that the insurer is also liable for her disability benefits. As stated in Rightnour, the Workers’ Compensation Court concluded:

“[T]he claimant has proven to a reasonable degree of medical certainty that the original compensable injury of January 19, 1982 and the two subsequent surgeries weakened her back, and combined with the fall in her home in March, 1984, resulted in a third surgery being required. Such surgery and other medical bills related to that fall are the natural consequence of the original injury.”

Rightnour, 732 P.2d at 831. We agree the Workers’ Compensation Court has not reached an erroneous conclusion.

Appellant argues that, under the facts as it now knows them, i.e. , that Rightnour was self-employed when the 1984 injury occurred, it is not liable for the disability benefits. In other words, now that it has conducted proper discovery, appellant wants to relitigate or contest the same liability issue. However, it is of no benefit to the appellant that it failed to take Rightnour’s deposition and therefore did not learn that she was self-employed. As stated in 46 Am.Jur.2d, Judgments, § 443:

“Clearly, the enforcement of the rule of res judicata may not be avoided by the discovery of new evidence bearing on a fact or issue involved in the original action, as distinguished from a subsequent fact or event which creates a new legal situation, even though the newly discovered evidence might have been sufficient to justify a new trial in the first case . . .”

Furthermore, 46 Am.Jur.2d, Judgments, § 474, reads in part:

“[T]he operation of a judgment as res judicata is not affected by a showing that the unsuccessful party might have prevailed if he had been sufficiently diligent. Hence, the application of the rule does not depend upon whether the case was as comprehensively or persuasively presented at the first trial as at the second. In accord with these principles, a litigant may not avoid the effect of the doctrine, as to an issue presented for determination in the prior action, by failing to offer proof of it.”

Appellant failed to bring this evidence before the court during the initial litigation and is now bound by that determination. Also of interest is the appellant’s actual or constructive knowledge that Rightnour was self-employed. Rightnour wrote to the insurer prior to the execution of the settlement agreement and informed them she was going to open a “Children’s Day Care Home” to earn a living. Appellant was, or should have been, well aware that Rightnour was self-employed and the failure to raise this defense does not prevent the application of res judicata to the initial judgment.

Finally, appellant’s suggestion that it is excused from adequately developing this defense because the law has changed is also unpersuasive. Whatever the appellant’s interpretation may be of our decision in Guild v. Bigfork Convalescent Center (Mont. 1987), [229 Mont. 466,] 747 P.2d 217, 44 St.Rep. 2139, its understanding of the law as it stood at the time of the initial litigation included the defense of injury during other employment. Belton v. Carlson Trans port (1983), 202 Mont. 384, 658 P.2d 405. There is no excuse for failing to raise Rightnour’s other employment as a defense.

The judgment of the Workers’ Compensation Court is affirmed.

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


text:
    ROBERT HICKS, Claimant and Appellant, v. GLACIER PARK, INCORPORATED, Employer, and CNA Insurance Company, Defendant and Respondent.
    No. 88-491.
    Submitted on Briefs Jan. 12, 1989.
    Decided Feb. 13, 1989.
    768 P.2d 346.
    John H. Bothe, Bothe & Lauridsen, P.C., Columbia Falls, for claimant and appellant.
    Todd A. Hammer, Warden, Christiansen, Johnson & Berg, P.C., Kalispell, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Claimant Robert Hicks appeals the judgment of the Workers’ Compensation Court which denied his claim for compensation benefits. Claimant was injured in a car accident which the Workers’ Compensation Court concluded did not arise out of and in the course of his employment. We affirm.

Briefly, the facts are as follows:

Claimant was a seasonal worker in Glacier National Park employed by the respondent as a bellhop at the Many Glacier Hotel. While on duty on the evening of July 20, 1987, a guest of the hotel asked the claimant to drive his vehicle from an upper parking lot to the entrance of the hotel. Claimant agreed to this, but found the car had a weak battery. Claimant push-started the car and drove it from the parking lot to the hotel entrance. Claimant, who considered himself something of a mechanic, told the guest about the problem and informed him the car would have to be driven in order to charge the battery. Claimant also informed him the car would have to be moved because it was in a fire lane. The guest asked claimant to take care of the problem and claimant agreed.

Claimant, with the assistance of the desk clerk, Luther Johnson, push-started the car. With Johnson as passenger, claimant drove the car through the parking lot at a high rate of speed, failed to stop at a stop sign, then continued to drive down the park road at an increasingly high rate of speed.

Park enforcement ranger Dona Taylor saw claimant run the stop sign and exceed the posted speed limit. Taylor pursued the car, and used her emergency lights to stop the claimant. Johnson testified that when he told claimant a ranger was behind them, claimant refused to stop, but instead he “put the pedal to the metal.” Officer Taylor could not catch up to the car, even traveling to speeds of 75 miles per hour. On the twisting mountain road, claimant eventually lost control of the car, and caused the vehicle to leave the road and strike a tree. The accident site was approximately two and one-half miles from the hotel. Officer Taylor calculated claimant’s speed to be 97 miles per hour when the accident happened. Claimant suffered injuries to his head, knee and foot.

The Workers’ Compensation Court ruled claimant’s injuries did not arise out of and in the course of his employment. The court also found that, even if claimant had been acting within the scope of his employment when he initially drove the vehicle, he deviated from the scope of his employment when he decided to evade the law enforcement officer. Claimant now argues the court erred because it denied compensation for injuries sustained while performing acts in an unauthorized manner, as distinguished from the performance of unauthorized acts. Claimant argues the performance of his duties in a negligent or unlawful manner does not constitute a deviation from the course of his employment.

While we agree with this general statement of the law, we disagree with its applicability to this factual situation and with claimant’s analysis of the Workers’ Compensation Court’s judgment. The court concluded claimant’s injuries did not arise out of and in the course of his employment. The court addressed the issue of compensability further by assuming the act of driving a guest’s car to charge the battery was within the course of claimant’s employment. The analysis was academic and does not afford a basis for appeal.

In Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 83, 88, 580 P.2d 450, 453, we stated the following rule:

“ ‘It is a generally recognized principle that when an employee departs from the area where his job requires him to be, to pursue an objective in nowise essential to or incidental to any service he is paid to perform, the continuity of the employment is severed, and remains severed until he now returns to the point of deviation from the path of duty, to where in the performance of his duty he is required to be.’ (Emphasis original.)”

In Steffes we noted that in determining whether to apply the deviation rule, consideration is given to (1) the character of the employee’s deviation, whether pronounced or inconsequential; (2) the materiality and purpose of the deviation; (3) the reasonableness of the employee’s behavior in light of all the circumstances; (4) whether the deviation caused or contributed to the injuries suffered; and (5) the time and space in which the deviation occurred. Steffes, 580 P.2d at 454, citing Blair, Reference Guide to Workmen’s Compensation Law, § 9.25.

Claimant’s suggestion that he was benefiting his employer by driving the guest’s car down a winding mountain road and evading a law officer at speeds reaching 90 miles per hour strains credulity. According to hotel’s operations manual, which claimant denied receiving, a bellhop’s responsibilities included: meeting with tour guides; transporting luggage to guests’ rooms; escorting guests to assigned rooms; and delivering ice, rollaways, and extra towels to guests’ rooms. Of importance to this appeal is the following provision:

“PARKING CARS FOR GUESTS:

“Guest is to park their (sic) own vehicle, advise of proper area.”

Nothing in the operations manual authorized the claimant to drive the guest’s car. Additionally, claimant admitted he did not have permission from a supervisor to drive the guest’s car. Claimant argues, however, that his job was to satisfy the guests, and he was doing this when he took the car to “charge the battery.” Claimant supports his argument by pointing to the following language in the operations manual:

“8. BELLMEN SHOULD BE OUT FRONT, ANTICIPATING THE NEXT CHECK-IN AND GIVING SERVICE TO GUESTS. DO NOT SIT AROUND BELL STAND. THERE IS ALWAYS SOMETHING TO DO, KEEP BUSY. (Emphasis original.)” and the employee handbook:

“As a park concessioner, Glacier Park Inc.’s primary responsibility is to provide quality service to all who come to visit the wilderness mountain area located in spectacular Glacier National Park, Montana.”

Essentially, claimant argues his job was to do anything to serve the guests. We reject this interpretation of claimant’s scope of employment. Claimant was employed as a bellhop. He was not employed as a valet parking lot attendant, a mechanic, a delivery person or a race car driver. Claimant worked for a hotel, which was not in the automotive or delivery service.

We have held that where some reasonably immediate service to the employer can be discerned, the claim should be sustained; where there is no reasonably immediate service, the claim should be denied. Steffes, 580 P.2d at 453, citing Guarascio v. Industrial Accident Board (1962), 140 Mont. 497, 501, 374 P.2d 84, 86. The Workers’ Compensation Court concluded that while it is “arguable that charging a car battery for a hotel guest might benefit the employer in some sense,” it is clear to this Court claimant had deviated from the course of his employment. The accident happened nearly two and one-half miles from where claimant was supposed to be stationed. Claimant was driving a guest’s car at dangerous speeds on a twisting mountain road in the dark of night, and was attempting to evade a law enforcement officer. Additionally, the injuries were the direct result of claimant’s deviation from the course of his employment. As the Workers’ Compensation Judge noted, “[t]he direct cause of claimant’s injuries was his reckless abandonment of common sense . . .” The employer received no reasonably immediate service or benefit from the claimant’s conduct and the claim for compensation was properly denied.

The judgment of the Workers’ Compensation Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES, GULBRANDSON, HUNT and McDONOUGH concur.


author: MR. JUSTICE HUNT

text:
    In the MATTER of KEITH WAYNE WOOD, a Youth under the age of Eighteen.
    No. 88-313.
    Submitted Nov. 15, 1988.
    Decided Feb. 14, 1989.
    768 P.2d 1370.

      Stephen J. Nardi, Sherlock & Nardi, Kalispell, for appellant.
    Marc Racicot, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Ted 0. Lympus, Flathead County Atty., Kalispell, for respondent.
    Robert B. Allison, Kalispell, Guardian Ad Litem.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Pursuant to § 41-5-206(3), MCA, the youth court of the Eleventh Judicial District, Flathead County, ordered the case of Keith Wayne Wood, a youth, transferred to District Court. The youth appeals the transfer, arguing that § 41-5-206(3), MCA, is unconstitutional, We affirm the District Court.

The following issues were raised on appeal.

1. Is § 41-5-206(3), MCA, unconstitutional because it:

(a) denies a youth’s right to due process?

(b) denies a youth’s right to equal protection?

(c) violates the separation of powers doctrine of the Montana Constitution?

Keith Wayne Wood, a youth, was arrested on March 30, 1988 for two counts of deliberate homicide. He was brought before the youth court on March 31, 1988 for the purpose of appointing him a counsel and determining whether he should be detained. On April 4, 1988, the county attorney for Flathead County filed a motion pursuant to § 41-5-206(3), MCA, in the youth court to transfer the case to the District Court. Wood appeared before the youth court on May 6, 1988, at which time he conceded he was 16 years old at the time of the wrongful acts alleged in the petition and, if true, the acts alleged would constitute two counts of deliberate homicide under § 45-5-102, MCA.

On May 10, 1988, the youth court, by written order, granted the county attorney’s motion and transferred jurisdiction over the matter of Keith Wayne Wood to the District Court of the Eleventh Judicial District, Flathead County. In its findings of fact, the youth court found that at the time of the alleged wrongful acts Wood was 16 years of age, the acts, if true, would constitute deliberate homicide as defined in § 45-5-102, MCA, and probable cause existed to conclude that Wood committed the alleged acts.

In granting the order, the youth court relied on § 41-5-206(3), MCA, which states that

“The court shall grant the motion to transfer if the youth was 16 years old or older at the time of the conduct alleged to be unlawful and the unlawful act would constitute deliberate homicide as defined in 45-5-102, mitigated deliberate homicide as defined in 45-5-103, or the attempt, as defined in 45-4-103, of either deliberate or mitigated deliberate homicide if the act had been committed by an adult.”

The youth court found this statute rationally based upon the age of the offenders and the seriousness of the offenses. The youth court thus found that the statute does not create an unreasonable age classification and therefore does not violate a youth’s right to due process nor to equal protection. The youth court also found that the statute does not violate the constitutional guarantee of the separation of legislative and judicial powers, but rather found that redefining the Youth Court Act is a valid exercise of legislative authority. Wood appeals the transfer to District Court, presenting three constitutional issues for review.

The first issue raised on appeal is whether § 41-5-206(3), MCA, denies a youth’s constitutional right to due process.

One of the purposes of the Montana Youth Court Act, §§ 41-5-101 through 41-5-809, MCA (1987), is to substitute rehabilitation in lieu of punishment for youths who have violated the law. Section 41-5-102(2), MCA. To further this purpose, the youth court is granted exclusive original jurisdiction of youths who have violated any law other than a traffic or fish and game law prior to having reached 18 years of age. Section 41-5-203(1), MCA. The Act, however, also provides for a youth’s transfer to district court upon a motion of the county attorney in certain instances. Section 41-5-206, MCA.

Wood argues that § 41-5-206(3), MCA, is unconstitutional because the provision denies a youth, aged 16 years or older and who has allegedly committed or attempted to commit deliberate or mitigated deliberate homicide, the right to a hearing whereby a youth court considers mitigating factors in its determination of whether to transfer the youth to district court. In particular, Wood argues that § 41-5-206(1), MCA, grants these youths a hearing to determine whether to transfer them to district court, but that § 41-5-206(3), MCA, dictates the outcome of the hearing by mandating the youth court to grant the county attorney’s motion to transfer these youths.

In asserting this argument, Wood relies upon a United States Supreme Court decision, Kent v. United States (1966), 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84. In Kent, a 16 year old youth from the District of Columbia was charged with housebreaking, robbery, and rape. Before transferring a youth aged 16 years or older from youth court to district court, the District of Columbia statute required a “full investigation.” The youth court transferred jurisdiction of the youth to district court without a hearing or any investigation. Kent, 383 U.S. at 543-48, 86 S.Ct. at 1048-51, 16 L.Ed.2d at 87-90. The Supreme Court stated that the statute “assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a ‘full investigation.’” Kent, 383 U.S. at 553, 86 S.Ct. at 1053, 16 L.Ed.2d at 93. The Court therefore held that procedural due process is required by the Fourteenth Amendment when transferring a youth from youth court to district court. Kent, 383 U.S. at 557-63, 86 S.Ct. at 1055-58, 16 L.Ed.2d at 95-98.

The United States Supreme Court in Breed v. Jones (1975), 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, however, recognized that it has

“never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court. We require only that, whatever the relevant criteria, and whatever the evidence demanded, a State determine whether it wants to treat a juvenile within the juvenile-court system before entering upon a proceeding that may result in an adjudication that he has violated a criminal law and in a substantial deprivation of liberty, rather than subject him to the expense, delay, strain, and embarrassment of two such proceedings. Breed, 421 U.S. at 537-38, 95 S.Ct. at 1790, 44 L.Ed.2d at 360.”

Subsequent United States’ Court of Appeals decisions have held that a state’s treatment of youths outside of the criminal system is not an inherent right and may be redefined or restricted by state legislation, so long as no arbitrary or discriminatory classification is involved. Woodard v. Wainwright (5th Cir. 1977), 556 F.2d 781, 785, cert. denied, 434 U.S. 1088, 98 S.Ct. 1285, 55 L.Ed.2d 794 (1978); see also United States v. Quinones (1st Cir. 1975), 516 F.2d 1309, 1311, cert. denied, 423 U.S. 852, 96 S.Ct. 97, 46 L.Ed.2d 76; Cox v. United States (4th Cir. 1973), 473 F.2d 334, 336, cert. denied, 414 U.S. 869, 94 S.Ct. 183, 38 L.Ed.2d 116.

Wood recognizes that a youth’s treatment outside of the criminal system may be redefined or restricted by the state legislature, but asserts that under § 41-5-206(1), MCA, the legislature granted all youths a hearing before being transferred to district court and that § 41-5-206(3), MCA, dictates the outcome of that hearing for youths aged 16 years or older and who have committed or attempted to commit deliberate or mitigated deliberate homicide. We disagree with Wood’s basic assertion. Section 41-5-206(l)(a)(i), MCA, provides that youths, aged 12 years or older and who have committed sexual intercourse without consent or who have committed or attempted to commit deliberate homicide or mitigated deliberate homicide, may be transferred, after a hearing, to district court by motion of the county attorney. Section 41-5-206(3), MCA, however, provides that youths aged 16 years or older who have allegedly committed or attempted to commit one of these offenses — deliberate homicide or mitigated deliberate homicide — must be transferred to district court upon a motion by the county attorney.

This Court first recognizes that § 41-5-206, MCA, is presumed constitutional and that the party attacking the statute, Wood, has a significant burden in proving its invalidity. T & W Chevrolet v. Darvial (1982), 196 Mont. 287, 292, 641 P.2d 1368, 1370. We hold that Wood failed to meet this burden. When interpreting statutes, this Court must adhere to the legislators’ intent. State v. Hubbard (1982), 200 Mont. 106, 110-11, 649 P.2d 1331, 1333. Prior to 1987, § 41-5-206, MCA, required a hearing for all youths before transferring them to district court. The legislature amended the statute in 1987 by enacting § 41-5-206(3), MCA. This provision provides for automatic transfer of youths aged 16 years or older and who have allegedly committed or attempted to commit deliberate or mitigated deliberate homicide. The presumption exists that, by adopting an amendment to a statute, the legislature intended to make some change in existing law. Foster v. Kovich (1983), 207 Mont. 139, 144-45, 673 P.2d 1239, 1243. This Court must also, if possible, give effect to all of the provisions. Darby Spar, Ltd. v. Dept. of Revenue (1985), 217 Mont. 376, 705 P.2d 111, 113, 42 St.Rep. 1262, 1264-65. We therefore hold that § 41-5-206(3), MCA, which applies to youths aged 16 years or older, has the effect of limiting § 41-5-206(1), MCA, to youths aged 12 years or older but under the age of 16 years when the alleged offense is deliberate or mitigated deliberate homicide or the attempt of either. Section 41-5-206(3), MCA, therefore does not dictate the outcome of a hearing, since the youths who fall under this provision are not granted an initial hearing. Any other interpretation of the entire statute would render the legislature’s enactment of subsection 3 of the statute meaningless.

Wood was transferred from youth court to district court under § 41-5-206(3), MCA. No procedural irregularities were alleged, nor were any evident in the record. Section 41-5-206(3), MCA, therefore meets the minimum federal requirements and does not violate Wood’s right to due process under the Fourteenth Amendment.

The next issue raised on appeal is whether § 41-5-206(3), MCA, denies a youth’s right to equal protection.

In asserting his equal protection argument, Wood only refers to the Equal Protection Clause of the United States Constitution. U.S. Const. amend. 14, § 1. As previously stated, youths aged 16 years or older and who have committed or attempted to commit deliberate or mitigated deliberate homicide are not granted a hearing prior to transfer to district court as a result of § 41-5-206(3), MCA. Since a state’s treatment of youths outside of the criminal system is not an inherent right and may be redefined or restricted by state legislation, see Woodard, 556 F.2d at 785, this Court needs to determine next whether such a classification is constitutional under the Equal Protection Clause of the Fourteenth Amendment.

The United States Supreme Court recognizes three levels of scrutiny when determining whether a system of classification found within a state statute is constitutional. The strict scrutiny analysis, requiring the most exacting scrutiny, is applied when the classification is based on an inherently suspect class — race, national origin or alienage — or when the classification infringes on a fundamental right. See, e.g., Loving v. Virginia (1967), 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (race); Graham v. Richardson (1971), 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (alienage); Oyama v. California (1948), 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (national origin); Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (fundamental right to travel interstate); Dunn v. Blumstein (1972), 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (fundamental right to vote). When applying the strict scrutiny test, the government has the burden of proving that the statute is justified by a compelling state interest, narrowly tailored, and no other avenues less burdensome are available in which to accomplish the objective. Dunn, 405 U.S. at 342-43, 92 S.Ct. at 1003, 31 L.Ed.2d at 284-85.

The intermediate level of scrutiny employed by the United States Supreme Court generally applies when classifications are based on gender or illegitimacy. See, e.g., Clark v. Jeter (1988), ___ U.S. ___, 108 S.Ct. 1910, 100 L.Ed.2d 465 (illegitimacy); Mississippi University for Women v. Hogan (1982), 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (gender). To withstand intermediate scrutiny, the party seeking to uphold the statutory classification must show that the classification is substantially related to an important governmental objective. Hogan, 458 U.S. at 724, 73 S.Ct. at 3336, 73 L.Ed.2d at 1098.

All other classifications scrutinized under the United States Constitution are subject to the minimal rational basis standard of review. Under this standard, classifications are presumed constitutional and the party challenging the statute bears the burden of proving beyond a reasonable doubt that the classification is not rationally related to a legitimate state objective. Minnesota v. Clover Leaf Creamer Co. (1981), 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659, 668-69, reh. denied, 450 U.S. 1027, 101 S.Ct. 1735, 68 L.Ed.2d 222. The United States Supreme Court applies this standard of review when classifications are based on economics or social welfare. Dandridge v. Williams (1970), 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, 501-02.

Wood argues that § 41-5-206(3), MCA, deprives him, and all such youths similarly situated, to equal protection by infringing on his “ ‘fundamental right’ of due process of law.” In asserting this argument, Wood argues that the strict scrutiny analysis is applicable and that the state therefore has the burden of showing that classifying youths who have violated the law on the basis of age and seriousness of the offense is justified by a compelling state interest. Wood recognizes the protection of the community as the state’s interest in this matter, and then argues that classifying youths on the basis of their age and seriousness of the offense is neither rationally related to a legitimate state interest nor justified by a compelling state interest.

We disagree with Wood’s basic assertion that procedural due process, as mandated by the Fourteenth Amendment, is also a fundamental right. No support exists for this assertion. On the contrary, the United States Supreme Court has limited its recognition of fundamental rights, requiring a strict scrutiny analysis, to interstate travel, voting, privacy, and the rights guaranteed by the First Amendment, which includes the freedom of speech, press, religion, association and belief, and the right to assemble peaceably and to petition the government for redress of grievances. See, e.g., Shapiro, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (interstate travel); Dunn, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (voting); Stanley v. Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (privacy); Widmar v. Vincent (1981), 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (speech); Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (press); Wisconsin v. Yoder (1972), 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (religion); Shelton v. Tucker (1960), 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (association and belief); and Hague v. C.I.O. (1939), 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (assemble peaceably and petition government for redress of grievances).

The classification found in § 41-5-206(3), MCA, is based on both age and gravity of the offense. The United States Supreme Court has held that age is not a suspect class requiring a strict scrutiny analysis. Massachusetts Board of Retirement v. Murgia (1976), 427 U.S. 307, 313-15, 96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520, 524-26. The classification is also not based on gender or illegitimacy, and therefore not subject to an intermediate level of scrutiny.

In light of the above, we hold that the proper standard of review in this case is whether the classification found in § 41-5-206, MCA, is rationally related to a legitimate state interest. Wood therefore has the burden of showing that the age and seriousness of the offense are not rationally related to a legitimate state interest. Metropolitan Casualty Ins. Co. v. Brownell (1935), 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070, 1072-73. We hold that Wood has failed to meet this burden. The legislative history of House Bill 470, the legislative vehicle of § 41-5-206(3), MCA, reveals that the legislature recognized the increase in the number of homicides committed by today’s teenagers and expressed that the passage of House Bill 470 would aid in dealing effectively with these youths. Minutes of Montana House Judiciary Committee, at 8-9 (February 17, 1987).

Wood bases his argument on the Equal Protection Clause of the United States Constitution, U.S. Const. amend. 14, § 1, and in light of the federal cases noted above, we hold that § 41-5-206, MCA, does not violate this clause. Wood, however, does not refer to the Montana Constitution. Nonetheless, this Court reserves “the power to examine constitutional issues that involve broad public concerns to avoid future litigation on a point of law.” In the Matter of N.B. (Mont. 1980), [190 Mont. 319,] 620 P.2d 1228, 1231, 37 St.Rep. 2031, 2033. We choose to exercise this power to determine whether § 41-5-206, MCA, violates the Equal Protection Clause of the Montana Constitution.

In examining whether a statute is constitutional under our state Equal Protection Clause, Mont. Const. art. II, § 4, this Court also recognizes a three tier analysis. This Court, however, has chosen not to follow the exact standards as set forth in the United States Supreme Court’s decisions. Pfost v. State (Mont. 1985), [219 Mont. 206,] 713 P.2d 495, 500-01, 42 St.Rep. 1957, 1963-64; Butte Community Union v. Lewis (Mont. 1986), [219 Mont. 426,] 712 P.2d 1309, 1313, 43 St.Rep. 65, 70. When a fundamental right, as enumerated by the Montana Constitution, is being deprived, or when a suspect classification exists, this Court will apply the strict scrutiny analysis. Pfost, 713 P.2d at 501, 42 St.Rep. at 1964.

The middle tier analysis, first developed in Butte Community Union, is applicable when a benefit, not found within the Declaration of Rights, is nonetheless lodged within the Montana Constitution. In Butte Community Union, we held that no fundamental right to welfare exists, but noted that Article XII, § 3(3), directed the legislature to provide necessary assistance to the misfortunate. We therefore held that in determining whether a classification found within a welfare statute is constitutional, the state must demonstrate that 1) the classification is reasonable and 2) the state’s interest in the classification is more important than the people’s interest in obtaining welfare benefits. Butte Community Union, 712 P.2d at 1312-14, 43 St.Rep. at 68-71. In other circumstances, this Court applies the rational basis analysis. See Cottrill v. Cottrill Sodding Service (Mont. 1987), [229 Mont. 40,] 744 P.2d 895, 897, 44 St.Rep. 1762, 1764; Godfrey v. Montana State Fish and Game Comm’n. (Mont. 1981), [___ Mont. ___,] 631 P.2d 1265, 1267-68, 38 St.Rep. 661, 663-65.

The Montana Constitution provides that “the rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.” Mont. Const. art. II, § 15. The Equal Protection Clause of the Montana Constitution provides that “[n]o person shall be denied the equal protection of the laws . . . .” Mont. Const. Art. II, § 4. No provision exists in the Montana Constitution that provides a youth with a fundamental right to be treated specially, nor are any benefits lodged within the Montana Constitution that would provide a youth with an interest whose statutory abridgment requires something more than a rational relationship to a legitimate government objective. We therefore hold that the rational basis analysis is applicable in this case to determine whether the statute is constitutional under the Montana Constitution. As we noted above, we hold that the statute is rationally related to a legitimate state interest.

Other jurisdictions faced with the same issue, utilized a rational relationship test and upheld classifications based on age and seriousness of the offense. See People v. J.S. (1984), 103 Ill.2d 395, 83 Ill.Dec. 156, 160-61, 469 N.E.2d 1090, 1094-95; State v. Anderson (1985), 108 Idaho 454, 700 P.2d 76, 80; People v. Drayton (1976), 39 N.Y.2d 580, 582-83, 385 N.Y.S.2d 1, 350 N.E.2d 377, 379-80; People v. Thorpe (Colo. 1982), 641 P.2d 935, 937-40. As already noted, treatment as a juvenile is not an inherent right and the legislature may restrict or qualify that right. We therefore conclude that the classification found in § 41-5-206, MCA, based on age and seriousness of the offense, is rationally related to the legitimate state objective of curbing homicides committed by teenagers and protecting society from these violent offenders under both the United States and Montana Constitutions.

The last issue raised on appeal is whether § 41-5-206, MCA, violates the separation of powers doctrine of the Montana Constitution.

Wood argues that the legislature is attempting to control a judicial function by enacting § 41-5-206(3), MCA. Specifically, Wood argues that the legislature has usurped the judiciary’s power to hear and decide motions brought before it and that this violates the doctrine of separation of powers under the Montana Constitution and must be declared invalid. We disagree.

The legislature’s power to create the youth courts is unquestionable. The Montana Constitution provides that “[t]he judicial power of the state is vested in one supreme court, district courts, justice courts, and such other courts as may be provided by law” (emphasis added). Mont. Const. art. VII, § 1. Under this section, the legislature established the youth courts to provide judicial protection for youths who have violated the law. As previously noted, the legislature also has the inherent power to redefine that protection to achieve a legitimate state objective. The legislature pursued this option in 1987 by revising the legislatively-created transfer of jurisdiction mechanism.

We held above that by the enactment of § 41-5-206(3), MCA, the legislature does not grant youths age 16 years or older who have committed or attempted to commit deliberate or mitigated deliberate homicide, a hearing to consider mitigating factors before transferring the youth to district court. No violation of the separation of power doctrine occurs under the Montana Constitution when the legislature acts to revise the protections afforded youths which were created under its own legislative power. In light of the above we hold that § 41-5-206, MCA, does not violate the separation of powers doctrine of the Montana Constitution.

Affirmed.

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


text:
    The CITY OF MISSOULA, Plaintiff and Respondent, v. CASEY FOREST, Defendant and Appellant.
    No. 88-460.
    Submitted on Briefs Jan. 5, 1989.
    Feb. 14, 1989.
    769 P.2d 699.

      Ian Christopherson, Missoula, for defendant and appellant.
    Marc Racicot, Atty. Gen., Helena, Judy Wang, City Attorney’s Office, Missoula, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Fourth Judicial District Court, Missoula County, Missoula. Defendant/appellant, Casey Forest, was found guilty by the District Court, after a jury trial, of Driving Under the Influence of Alcohol, a misdemeanor, in violation of § 61-8-401, MCA. We affirm.

On July 22, 1987, appellant joined friends in a birthday celebration at Connie’s Lounge. After consuming a few beers, appellant and two members of the group left the bar, intending to drive home. The two friends rode a motorcycle, while appellant drove his Nissan truck. The vehicles proceeded south on Higgins Avenue at a high rate of speed, weaving between cars as they sped down the street. Near the intersection of Sixth and Higgins avenues, the motorcycle veered into the rearside panel of appellant’s pickup, causing the motorcycle to spin and slide. Both riders fell from the motorcycle and were later taken by ambulance to a hospital. Appellant, uninjured in the accident, drove to a nearby parking lot.

Missoula Police Officer Clifford LePiane, investigated the collision. He testified at trial that upon arrival at the scene, he observed the appellant standing next to his truck in the parking lot. Officer LePiane described appellant as having a flushed face, red watery eyes, somewhat slurred speech, and a moderate smell of alcohol on his breath. In addition, appellant exhibited a boisterous and argumentative behavior. Witnesses identified appellant as having been involved in the accident and described the driving as “big time reckless.” Officer LePiane arrested appellant for driving under the influence of alcohol, a violation of § 61-8-401, MCA.

At the Missoula Police Department, appellant was immediately advised of his rights under Montana’ Implied Consent Law. Appellant refused to take the blood-alcohol test requested by Officer LePiane. However, upon completion of the “booking” procedure, appellant withdrew his refusal and consented to the test. Results of the Intoxilizer 5000 test revealed a blood-alcohol content of .137.

The entire procedure, including initial refusal and later consent to administer the test, was recorded on video tape. However, at one point during the procedure, police officers turned off the video camera to allow an independent accident investigator to obtain information from the appellant. Because of the interruption, a blank portion followed by a brief segment of a prior unrelated DUI appeared on the video tape. After the information was obtained, police restarted the video camera, administered Miranda warnings and continued the booking procedures.

On November 13, 1987, prior to trial at the Municipal Court level, respondent filed a separate alternative charge of Driving With a Blood-Alcohol Content over .10, “per se,” a violation of § 61-8-406, MCA. On December 15, 1987, appellant was convicted of the DUI charge. Appellant appealed to the District Court.

Prior to trial in the District Court, appellant filed numerous motions. While most were denied, the District Court Judge granted a motion to suppress the portion of the video tape prior to the administration of Miranda warnings. The lower court ruled that while evidence of appellant’s refusal to take the breathalyzer test was admissible, other statements made prior to receiving the Miranda warnings were protected communications within the Fifth Amendment. The evidence of appellant’s refusal could be introduced by alternative means.

On May 2, 1988, after a jury trial consolidated the two charges, the District Court entered judgment finding appellant guilty on the DUI charge. Appellant appeals to this Court, presenting four issues for our review:

1. Did probable cause exist to arrest appellant for driving under the influence of alcohol?

2. Was it a violation of the United States and Montana Constitutions to admit evidence of appellant’s refusal to take the Intoxilizer 5000 test under Montana’s Implied Consent Law?

3. Was it error to admit the video tape?

4. Upon appeal from the Municipal Court conviction, does the District Court retain jurisdiction and ability to convict on the alternative charges of Driving Under the Influence and Driving with a Blood Alcohol over .10, “per se?”

ISSUE I

Appellant argues Officer LePiane lacked probable cause to arrest on the DUI charge, contending that absent field sobriety tests, no evidence existed to show the requisite impairment of facilities. Section 61-8-401, MCA. However, our review of the record leads to a contrary conclusion.

Probable cause must be based on an assessment of all relevant circumstances, evaluated in light of the knowledge of a trained law enforcement officer. State v. Ellinger (Mont. 1986), [223 Mont. 349,] 725 P.2d 1201, 43 St.Rep. 1778. More than mere suspicion, probable cause requires facts and circumstances sufficient to warrant a reasonable person to believe that a suspect has committed an offense. State v. Lee (Mont. 1988), [232 Mont. 105,] 754 P.2d 512, 45 St.Rep. 903. As our prior holdings demonstrate, probable cause is a concept encompassing a spectrum of varying circumstances.

In the instant case, the record is replete with evidence supporting a DUI offense. The accident was cause by reckless and dangerous conduct, resulting in serious injuries. Officer LePiane observed appellant’s bloodshot eyes and flushed complexion, and smelled a moderate odor of alcohol on appellant’s breath. In addition, based on prior dealing with appellant, Officer LePiane recollected appellant’s behavior as calm and polite, a dramatic change from the argumentative behavior exhibited after the accident.

Certainly, field sobriety tests are a tool which can assure the officer that the person is in fact under the effect of intoxicating beverages. However, the absence of such tests do not fatally flaw the probable cause determination. As discussed above, sufficient evidence existed to establish probable cause for arrest. We find no merit in appellant’s first contention.

ISSUE II

This Court has long adhered to the rule that neither the results of the breathalizer test nor a defendant’s refusal to submit to the breathalizer test are communications protected by the Fifth Amendment. State v. Jackson (1983), 206 Mont. 338, 672 P.2d 255, citing South Dakota v. Neville (1983), 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748; State v. Armfield (1984), 214 Mont. 229, 693 P.2d 1226. Therefore, our discussion of the principle will remain brief.

As a part of the program to deter drinkers from driving, Montana has enacted an Implied Consent Law. The statute declares that any person who operates a motor vehicle within the State shall be deemed to have given his consent to a chemical test to determine the alcohol consent of his blood if arrested by a police officer for driving under the influence of alcohol. Section 61-8-402(1), MCA. The test is not compelled, yet refusal results in attendant penalties, including an immediate seizure of one’s driver’s license, § 61-8-402(3), MCA, and the admissibility of the refusal upon trial for DUI. Section 61-8-404(2), MCA. Appellant contends the statute cannot override Miranda guarantees. As such, appellant argues evidence of his initial refusal, prior to Miranda warnings, must be suppressed. We disagree.

In discussing the origins of the rights protected by Miranda warnings, we stated:

“The Massiah, Escobedo and Miranda decisions link the Fifth Amendment privilege to the Sixth Amendment’s right to counsel. Escobedo and Miranda sought to preserve the privilege against self-incrimination through protection of defendant from the coercive aspects of custodial interrogation . . . Massiah sought similar protections where uncounseled and undisclosed post-indictment non-custodial interrogation elicited incriminating statements . . . All three decisions characterize the right to assistance of counsel as a means of preserving defendant’s privilege against self-incrimination — his absolute right to refuse to testify or communicate. (Citations omitted.)”

Armfield, 693 P.2d at 1229. The Fifth Amendment affords no protection against the prosecutor’s use of fingerprints, measurements, handwriting, voice identification or blood tests; all constitute “physical or real” evidence. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. Similarly, appellant’s claim of constitutional prohibition against self-incrimination by the admission of his refusal to submit to the blood-alcohol test is foreclosed by the Neville decision, which defined the refusal as non-testimonial conduct. Further, the statements made prior to Miranda warnings which fell outside the scope of the Implied Consent Law were properly suppressed by the District Court and cured any potential Miranda violations.

ISSUE III

As stated earlier in our opinion, the video tape recording of appellant’s DUI booking was briefly interrupted by an independent accident investigator. Appellant contends the video recording’s interruption and the revealed segment of an unrelated DUI booking constitutes improper editing of the video.

The trial court judge has wide discretion in conducting courtroom procedures, and in determining adequacy of foundation for admission of evidence. State v. Austad (1982), 197 Mont. 70, 641 P.2d 1373. Throughout our review, we remain ever mindful of this standard.

State v. Warwick (1972), 158 Mont. 531, 494 P.2d 627, remains the seminal case regarding the admission of recordings requiring:

“(1) a showing that the recording device was capable of taking testimony,

“(2) a showing that the operator of the device was competent,

“(3) establishment of authenticity and correctness of the recording,

“(4) a showing that changes, additions, or deletions have not been made,

“(5) a showing of the manner of the preservation of the recording,

“(6) identification of the speakers,

“(7) a showing that the testimony elicited was voluntarily made without any kind of inducement.”

Warwick, 494 P.2d at 633, citing 58 A.L.R.2d 1204, Admissibility of Sound Recordings in Evidence, § 2, pp. 1027, 1028. The record reveals testimony elicited to satisfy the foundation requirements.

“Q. Was a video tape taken of Casey Forest’s DUI booking?

“A. Yes, it was . . .

“Q. Is the Missoula City video equipment capable of making a visual and audible record?

“A. Yes, it is.

“Q. Who operated the test?

“A. Officer Gunter.

“Q. Is Officer Gunter capable of operating Missoula’s video equipment?

“A. Yes, he is.

“Q. Officer LePiane, I am handing you what has been marked for identification purposes as Exhibit No.l. Do you recognize it?

“A. Yes, I do . . . this is the audio-video tape of the Casey Forest DUI booking procedure. . .

“Q. How is it identified?

“A. It’s marked with a D-48. And it’s also logged into our records under that number.

“Q. Where has it been stored since July 22, 1987?

“A. In the police evidence vault at City Hall . . .

“Q. Does it fairly and accurately depict the booking procedure conducted with Casey Forest on July 22, 19 [87]?

“A. Yes . . .

“Q. Has it had any section added or has it been changed since July 22, 1987?

“A. No . . .

“Q. What part of the video — what part of the booking procedure had been completed when the video tape is set to begin?

“A. The reading of the implied consent law, my asking Mr. Forest if he wished to take the test, and the refusal.

“Q. Who is represented on the video tape?

“A. Myself and Casey Forest.

“Q. Was Casey Forest notified that he was being video taped?

“A. Yes, he was.”

After the testimony, the District Court admitted the video tape. The only portion unavailable to the jury was that excluded by the judge’s suppression order. Appellant asserts no changes, deletions or additions occurred after he was advised of his Miranda rights. In its discretion, the lower court found the video portion after the interruption sufficiently trustworthy as to be admissible as evidence at trial. We see no reason to hold otherwise.

ISSUE IV

Appellant contends the District Court’s prosecution of both actions, DUI and the “per se” offense was a violation of the United States and Montana Constitutions’ prohibition against double jeopardy. This argument relies on misstatements of fact.

The record reveals the appellant was convicted of the DUI charge at the municipal court level; the. “per se” charge was not adjudicated. On appeal to the District Court, the case was tried anew based on the municipal court file. Section 46-17-311, MCA; State v. Benson (1931), 91 Mont. 109, 5 P.2d 1045. While the same acts may establish the commission of an offense under both DUI and “per se” statutes, a defendant may only be convicted of one offense. Section 61-8-408, MCA. We find no merit in appellant’s contention.

Affirmed.

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


author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. EVERETT HAROLD SIGLER, Defendant and Respondent.
    No. 88-503.
    Submitted on Briefs Jan. 5, 1989.
    Decided Feb. 14, 1989.
    769 P.2d 703.
    Marc Racicot, Atty. Gen., Betsy Brandborg, Asst. Atty. Gen., Helena, Patrick L. Paul, County Atty., and Tammy K. Plubell, Deputy County Atty., Great Falls, for plaintiff and appellant.
    John Keith, Great Falls, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The State of Montana appeals the July 27, 1988 order of the Eighth Judicial Court, Cascade County, denying reconsideration of the court’s June 9, 1988 order denying the State’s petition for revocation of respondent Sigler’s suspended sentence. In light of this Court’s recent decision in State v. Burke (Mont. 1988), [235 Mont. 165,] 766 P.2d 254, 45 St.Rep. 2278, we reverse the order of the District Court and remand fqr further proceedings.

Pursuant to a plea agreement, respondent Sigler was found guilty of felony criminal possession of dangerous drugs and misdemeanor possession of drug paraphernalia. Respondent received a three year deferred sentence subject to six conditions. Respondent failed to comply with any of the six conditions of the deferred sentence and failed three consecutive urine drug tests. The District Court then revoked the three-year deferred sentence and replaced the deferred sentence with a five-year suspended sentence in the Montana State Prison. The suspended sentence was conditioned upon respondent’s meeting four conditions. These conditions included that the respondent not possess or use dangerous drugs and that he “submit a urine sample upon request of his probation officer or any peace officer to assure compliance with the above condition.”

On February 5, 1988, respondent’s probation officer, Michael Redpath, filed a report of violation alleging respondent had failed to appear for a urine sample scheduled for February 4, 1988. The report of violation recommended that the suspended sentence be revoked.

On June 3, 1988, an evidentiary hearing was held and on June 8, 1988, the court issued its order dismissing the petition for revocation of the suspended sentence. The court found that although the respondent was required to submit to urinalysis testing at the request of his probation officer, the probation officer stated he had no specific reason for believing the respondent was using drugs at the time he requested a urine sample from the respondent. The court held that the search requested in this case was based solely upon the probation officer’s “unfettered discretion.” The case of State v. Fogarty (1980), 187 Mont. 393, 610 P.2d 140, requires the probation officer to have some “articulable reasons” for conducting a search of a probationer. Thus, no violation had occurred, except that based upon an improper search of the defendant.

On December 15, 1988, this Court decided the case of State v. Burke (Mont. 1988), [235 Mont. 165,] 766 P.2d 254, 45 St.Rep. 2278. In that decision, this Court specifically overruled the Fogarty decision based upon the United States Supreme Court’s decision in Griffin v. Wisconsin (1987), 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709. The Burke decision replaced the standard of probable cause, applicable when conducting warrantless searches of probationers, with the standard of “reasonable grounds.” This Court and the Griffin Court base the departure from the probable cause standard upon the “special needs” which exist in operating a State’s probation system. Burke, 766 P.2d 254, 45 St.Rep. at 2281.

“Restrictions on a probationer are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s conditional liberty status.

“ ‘These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed . . . Supervision, then, is a “special need” of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large.’

“Griffin, 107 S.Ct. at 3168.

“This special need is equally applicable to the State of Montana. In conjunction with the need for supervision, a degree of flexibility must also be accorded the probation officer. The probation officer acts upon a continued experience with the probationer, with knowledge of the original offense, and with the probationer’s welfare in mind. Because of his expertise, we view the probation officer in a far superior position to determine the degree of supervision necessary in each case.”

Burke, [235 Mont. 165,] 766 P.2d 254, 45 St.Rep. at 2281-2282.

In between the Griffin and Burke decisions, the Ninth Circuit dealt with a similar situation, except that the order imposing probation conditions did not explicitly require drug testing as a probation condition. U.S. v. Duff (9th Cir. 1987), 831 F.2d 176. In that case, relying on Griffin, the court found “the search must be reasonable and must be based upon the probation officer’s reasonable belief that it is necessary to the performance of her duties.” Duff, 831 F.2d at 179. (Emphasis added).

“The urine testing employed here was narrowly tailored to determine whether Duff was using drugs and was less intrusive of Duff’s privacy than other methods of monitoring, such as continuous surveillance or repeated searches of Duffs home and property. The probation officer had a reasonable suspicion that Duff might be using drugs . . . Because Duff had been convicted for drug possession, the probation officer reasonably believed that drug testing was necessary ‘to foster the offender’s reformation and to preserve the public’s safety.’ [U.S. v.] Williams, 787 F.2d [1182] at 1185, [(17th Cir. 1986)].

Duff, 831 F.2d. at 179.

As previously noted, the District Court in this case found the probation officer ordered the urinalysis test based upon his unfettered discretion. Thiá finding was based upon the probation officer’s testimony that he had no specific reason to believe that the respondent was using drugs at the time of the request.

However, the court also found that the probation officer was authorized to require the respondent to submit to urine testing and that the probation officer felt “the rehabilitation process could not begin until he was certain the Defendant was free from drugs . . .” Further, it is undisputed that the respondent had not passed a drug test from the time of his arrest until directed to appear for the February 4, 1988 urinalysis. We find such evidence is sufficient to establish reasonable grounds for requiring the respondent to submit a urine sample for (determining whether or not the respondent is complying with the conditions of the suspended sentence. We hereby reverse the order of the District Court and remand for further proceedings consistent with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, HUNT and McDONOUGH concur.