author: MR. JUSTICE GULBRANDSON

text:
    In re the Matter of R.A.D. and J.D., Youths in Need of Care.
    No. 86-353.
    Submitted on Briefs Sept. 10, 1987.
    Decided March 18, 1988.
    753 P.2d 862.

      Matteucci & Falcon, Daniel L. Falcon, Patrick F. Flaherty, Great Falls, for appellant.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty., Barbara Bell, Deputy Co. Atty., E. June Lord, Great Falls, for children.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

These appeals arise from a termination of parental rights of E.D. (mother) and R.D. (father) by the District Court of the Eighth Judicial District, Cascade County, and awarding to the Department of Social and Rehabilitation Services permanent custody of the youths, R.A.D. and J.D., with the authority to consent to adoption. Defendants-appellants, natural parents of the youths, each appeal the rulings.

We affirm in part and reverse and remand in part.

The issues we are presented with on this appeal are as follows:

1. Did the District Court abuse its discretion in denying the father’s motion to dismiss for reasons of delay and prejudice?

2. Whether the District Court erred in allowing R.A.D. and J.D. to testify as competent witnesses?

3. Whether the District Court abused its discretion in terminating the father’s parental rights?

4. Did the District Court err in denying the mother’s motion to continue because she could not attend a hearing as she was committed at Warm Springs State Mental Hospital?

A previous history of the mother and father should initially be noted. The two were married in 1978. The mother developed mental problems and was committed numerous times. On November 21, 1983, the father filed a petition for dissolution of marriage. His counsel at the time was Michael Smartt. From 1978 through 1983, the father was largely responsible for raising the children, R.A.D. and J.D., until they were placed in the custody of the Montana Department of Social and Rehabilitation Services (SRS).

On February 1, 1984, the deputy county attorney of Cascade County filed, on behalf of SRS, a petition for temporary investigative authority and protective services and temporary custody of R.A.D. and J.D. The petition alleged that the youths were abused and neglected or in danger of being abused and neglected pursuant to Section 41-3-101 and 41-3-102, MCA. An attached affidavit stated that SRS received a referral, sometime in January, that the father had sexually abused his two sons, R.A.D. and J.D. On January 27, 1984, R.A.D. and J.D. told an SRS caseworker, Irene Johnson, that their father had sexual contact with them. The District Court ordered temporary investigative authority and temporary custody of R.A.D. and J.D. to SRS because there was probable cause that the youths were youths in need of care and in immediate or apparent danger of harm. Following a show cause hearing, the court made a specific conclusion of law in an order dated March 12, 1984, that the youths were abused and neglected within the meaning of the statutes. The father was directed to receive a psychological evaluation.

Both children were seen by Dr. Tom Krajacich to whom they related similar stories as they told Johnson. The father was seen by Dr. William Taylor on May 11, 1984, but Taylor did not conduct specific testing to evaluate a sexual abuser because he felt the father did not fit the personality profile of a sexual abuser. At a December 18, 1984 hearing both Krajacich and Johnson stated they believed the children were telling the truth as to the sexual contacts. On December 26, 1984, the District Court issued an order that in the best interests of the youths, the father should be reevaluated by Dr. Phillip Russell of Billings and that “ [t]he parties . . . agreed to abide by the recommendations of Dr. Russell.”

Dr. Russell’s evaluation occurred July 16, 1985. His most crucial conclusions are as follows:

“1. [The father] is, at least capable of perpetuating the alleged acts. 2. [T]he examiner had the impression that [the father] did not give a candid or honest account of his actual sexual experiences. 3. The statements from the victims in this case were given to competent and experienced professionals and appear to be bonafide reports of sexual abuse and have been substantiated by other behavioral indicators ... It is the examiner’s opinion that the sexual abuse reported by [R.A.D. and J.D.] did, in fact, occur and was perpetuated by their father. 4. Due to [the father’s] denial of the sexual abuse, he is, by definition untreatable for his sexual deviancy . . . and 5. [J.D. and R.A.D.] should not be returned to the custody of their father.”

A petition for permanent custody was filed by Cascade Deputy County Attorney Barbara Bell, counsel for SRS, on August 26, 1985. From this petition, the court ordered that a hearing be held October 11, 1985. The State was granted a continuance to November 22, 1985 because Dr. Russell was unavailable. The mother, because she was residing at Warm Springs State Hospital at this time and wanted an opportunity to be present and testify, motioned the court for a continuance. In regard to this motion, the District Court stated:

“[P]arties stipulate that the hearing set for 11/22/85 9:00 a.m. will go as scheduled, in regard to [the father] only. A hearing as to [the mother] will be held at a later date, due to [the mother] being at Warm Springs State Hospital.”

On November 22, 1985, a hearing was held in regard to the permanent custody of the youths limited to their father. Dr. Russell, Dr. Krajacich, Irene Johnson, Helen (Meg) Timblin, foster mother, and R.A.D. and J.D. testified for the State. Pam Tanner, a prior employee of SRS and foster parent who knew the father on a personal basis, testified for the father.

The District Court ordered that another hearing would be held January 6, 1986. After three continuances were granted the mother because her attorney was unavailable due to conflicting criminal trials, the date of the second hearing was set for April 16, 1986. The mother’s attorney made a motion for another continuance on April 14, 1986 because the mother was not able to attend the hearing due to her mental condition according to her treating psychiatrist, Dr. Myron Meinhardt. At the April 16, 1986 hearing, the father’s attorney made a motion to dismiss the case due to denial of due process. Both motions were denied. At the two-day hearing, the father testified in his own behalf, and a number of witnesses supported his testimony. The State called Dr. Meinhardt and the children’s grandmother, Elanor.

On June 5, 1986, the District Court entered its findings of fact, conclusions of law and order permanently terminating parental rights of and giving permanent custody to SRS with the right to consent to adoption. It is from this ruling that these appeals arise.

We have recognized that family integrity is a constitutionally protected interest. Matter of J.L.B. (1979), 182 Mont. 100, 594 P.2d 1127. In J.L.B., we cited the language of the United States Supreme Court case of Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-1213, 31 L.Ed.2d 551, 558-559:

“The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential’, [citation omitted] ‘basic civil rights of man’ [citation omitted] and ‘[r]ights far more precious . . . than property rights’, [citation omitted]. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ [Citation omitted.] The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, [Citation omitted.], the Equal Protection Clause of the Fourteenth Amendment [Citation omitted.], and the Ninth Amendment. [Citation omitted.]”

J.B.L., 182 Mont. at 109, 594 P.2d at 1132.

However, the right to maintaining the family unit is not absolute. Absent a clear showing of abuse of discretion by the District Court, we will not reverse.

“[T]his Court is mindful that the primary duty of deciding the proper custody of children is the task of the district court. As a result, all reasonable presumptions as to the correctness of the determination by the district court will be made. Foss v. Leifer, 170 Mont. 97, 550 P.2d 1309, 33 St.Rep. 528 (1976). Due to this presumption of correctness, the district court’s findings will not be disturbed unless there is a mistake of law or a finding of fact not supported by credible evidence that would amount to a clear abuse of discretion.”

Matter of C.A.R. (Mont. 1984), 693 P.2d 1214, 1218, 41 St.Rep. 2395, 2398-2399.

The father contends the District Court abused its discretion when it denied (by implication of the order issued June 5, 1986) his motion to dismiss for reasons of delay and prejudice. Granted, a number of motions to continue were allowed in this case, but Section 25-4-503, MCA, states that the District Court “[m]ay, in its discretion, postpone a trial or proceeding upon other grounds than the absence of evidence under such conditions as the court may direct.” (Emphasis added.) The District Court had the discretion to grant or deny any continuance for justified reasons under the law in Montana.

The father claims that the continuances substantially prejudiced him because the District Court had bifurcated the trial on November 22, 1985 and the hearing was continued as to him only. We find this to be incorrect according to the record. On Monday, November 18, 1985 the following testimony occurred:

“Mr. Falcon (Counsel for the father): [I] believe we can stipulate, if the parties will, that the hearing on Friday will be in regards to the State versus [the father’s] activities, and will reserve until later all the issues dealing with [the mother].
“Ms. Macek (Counsel for the mother): Your Honor, I would have no problem with that. The only motion to continue wanted was as far as [the mother] was concerned.
“Ms. Bell (Counsel for the State): Your Honor, I believe Mr. Falcon has correctly stated the agreement we have reached.”

The record indicates the District Court noted the issue of the mother’s rights were to be determined at a later date. The trial was therefore not “bifurcated” as the father argues. The court merely allowed testimony in regards to the father and reserved consideration of the mother’s interest until a later date, ultimately April, 1986.

The father contends that the court failed to hear and determine within twenty days whether R.A.D. and J.D. were abused, neglected or dependent. He argues that Section 41-3-401(2), MCA, required:

“Upon receipt of a- petition, the court shall set a date for an adjudicatory hearing on the petition. Such petitions shall be given preference by the court in setting hearing dates and must be hearing of the petition. (Emphasis added by appellant.)

This amendment was effective October 1, 1985 but the petition was filed February 1, 1984 when Section 41-3-401(2) provided only that “[t]he court shall set a date for an adjudicatory hearing on the petition.” The State argues that the father’s motion to dismiss was made at the hearing to consider termination of the parental rights governed by Section 41-3-607(1), MCA. This section requires consideration of termination of parental rights only after the petition for permanent custody is filed and has a 180-day limitation.

“The termination of a parent-child legal relationship shall be considered only after the filing of a petition pursuant to 41-3-401 alleging the factual grounds for termination. Termination of a parent-child legal relationship shall be considered at a dispositional hearing held pursuant to 41-3-406, following or together with an adjudicatory hearing held pursuant to 41-3-404, within 180 days after the filing of the petition. [Emphasis added.]

Section 41-3-607(1), MCA.

In his reply brief, appellant admits that the 180-day limitation is applicable. The petition for permanent custody was filed in this case on August 26, 1985. It is at this point that the 180-day limitation becomes effective. Nonetheless, a hearing was held by November 22, 1985, well within the 180-day time limitation.

The father argues the statute amendments are procedural and can be applied to cases pending at that time and therefore the 20-day limitation and 180-day limitation should apply. He contends that Section 1-2-109, MCA, which requires that “[n]o law ... is retroactive unless expressly so declared” is not applicable in this case because of the “procedural” nature of the statute’s time limitation. State ex rel. Johnson v. District Court of Fourth Judicial District (1966), 148 Mont. 22, 417 P.2d 109, 112. In Boehm v. Alanon Club (Mont. 1986), [222 Mont. 373,] 722 P.2d 1160, 1162, 43 St.Rep. 1341, 1344, this Court stated:

“The guiding principle in this area is Section 1-2-109, MCA, which states: ‘No law contained in any of the statutes of Montana is retroactive unless expressly so declared.’ However, it has been held that where a statute is procedural, rather than substantive, Section 1-2-109 has no application, and the statute will be applied to a cause of action arising before its enactment.”

The State complied with the 180-day limitation. As to the 20-day limitation, if we agree with the father that this law should be retroactive, we must still affirm the court because the 1987 Legislature again amended Section 41-3-401(2) so that no 20-day limitation is required. Under the facts of this case, we find that the District Court did not abuse its discretion in denying the motion to dismiss.

The father claims that the District Court abused its discretion in allowing the testimony of R.A.D., who was five years old at the time of the alleged sexual abuse and six years old at the time of the hearing, and J.D., who was three years old at the time of the alleged sexual abuse and five years old at the hearing. Whether a child is competent to testify is a matter left largely to the discretion of the trial court. State v. Howie (Mont. 1987), [228 Mont. 487,] 744 P.2d 156, 159, 44 St.Rep. 1711, 1716; State v. Rogers (Mont. 1984), [213 Mont. 302,] 692 P.2d 2, 5, 41 St.Rep. 2131, 2135, quoting State v. Campbell (1978), 176 Mont. 525, 529, 579 P.2d 1231, 1233. Rule 601 M.R.Evid. provides the general rule of competency as follows: “[Ejvery person is competent to be a witness except as otherwise provided in these rules.” For disqualification, Rule 601, M.R.Evid., states that a person is disqualified if he is not able to express himself to the judge or jury or is unable to understand the “duty of a witness to tell the truth.”

The father contends that J.D. was incompetent to testify because he admitted that he would say anything if asked or told to say it; he was unable to tell the difference between a boy and girl doll; he supplied inconsistent testimony in regards to “good touch, bad touch;” and he admitted that telling the truth was bad. As to R.A.D., the father contends he was incompetent because: he was unable to say how many brothers or sisters he had; he admitted on the stand he did not know what “good touch, bad touch” was; and he was inconsistent in regards to the number of times the incident occurred.

From a reading of the record, it is clear that R.A.D. was referring to his foster brothers and sisters who were the children of his foster mother, Helen (Meg) Timblin. The District Court determined the competency of the children by asking questions in regards to the children’s understanding of the need for them to tell the truth. The Court then allowed the attorneys to voir dire the youths and finally, the youths were allowed to testify as to the actual sexual contact.

The judge found both children competent to testify. We find that despite the father’s claims of inconsistencies, the children did know the difference between a truth and a lie and understood that they needed to be truthful on the stand. In State v. Phelps (Mont. 1985), [215 Mont. 217,] 696 P.2d 447, 42 St.Rep. 305, the five-year-old victim stated that he believed he was testifying not in the court room but in the police station and that the judge was a karate expert. We found that the youth could tell the difference between the truth and a lie and that was the gravamen ascertainment by the court to determine competency. In State v. D.B.S. (Mont. 1985), [216 Mont. 234,] 700 P.2d 630, 42 St. Rep. 770, we allowed a four-year-old incest victim to testify despite the fact that she was inconsistent as to when the alleged incident occurred.

“We should recognize that children, particularly four-year-olds are not governed by the clock and calendar . . . [and] are generally at a loss to apply times or dates to significant events in their lives.” D.B.S, supra, 700 P.2d at 634.

We note here that three and five-year-olds are also sometimes going to be inconsistent as to particular incidents or conversations of “good touch, bad touch,” and even as to how many brothers and sisters they have as the father’s counsel has argued. However, in this case, the testimony was sufficiently consistent as to the actual act by the father that the court properly allowed these children to testify. Dr. Krajacich and Irene Johnson testified that the youths made statements very close to what they testified to in court in the prior two-year period of time. It is this consistency, rather than the minor inconsistencies stated by the father, that is important.

After the youths were determined competent, they both testified that their father had sexually molested them, R.A.D. stated that his father touched him in his “private spot.” He also stated that his father engaged in oral contact on this private spot and demonstrated the activity on anatomically correct dolls.

J.D. testified as to “good touch, bad touch” and adequately differentiated between the two by distinguishing a hug by his mother as a “good touch” and a hit by a State’s attorney as a “bad touch.” He then stated that his father had engaged in bad touch when “[h]e sucked our peepee.”

From our review of the record, we conclude that the children were indeed competent to testify and that the testimony describing the incidents of sexual contact go directly to the father’s next claim, that the District Court erred in terminating the father’s parental rights.

This final argument raised by the father is divided into two parts. First, he argues that he did not receive notice that the November 22, 1985 and April, 1986 hearings were going to be combined adjudicatory and dispositional hearings and that, again, the hearing on the Section 41-3-401, MCA, petition was not held within the mandatory 20-day period. Secondly, the father argues that “on the merits” the District Court erred in terminating his parental rights.

We have addressed the contention in regards to the 20-day limitation in Section 41-3-401(2) above and therefore will not reiterate our position. The father contends that the continuances granted deprived him of due process and the protection of Sections 41-3-401 and 41-3-607, MCA and that the court improperly terminated his parental rights without a dispositional hearing pursuant to Section 41-3-607, MCA. We have thoroughly scrutinized the record in this case and note that numerous continuances were granted. However, from this analysis, we determine that no denial of due process occurred. It is clear that the hearings of November 22, 1985 and April 16 and 18, 1986 were combined adjudicatory and dispositional hearings. As to the claim that notice was not sufficient, Section 41-3-607, MCA, expressly allows this combination and does not require specific notice to the parties. In this instance, there was insufficient delay to constitute reversible error.

The father contends that at the conclusion of the April, 1986 hearing, the District Court said “that [the father] was to be put back with his children after treatment.” The court’s statement in the record was:

“[I]’m going to review the reports again, and what I’m thinking of right now is ordering [the father] to receive some kind of treatment with the idea of, upon a successful completion of that treatment, to gradually reintroduce him to his family.”

This statement does not show the District Court was going to reunite the family. It only shows reunification was a consideration the court would contemplate. The court took the matter under advisement and although the final order was not issued until June 5, 1986, it was properly considered.

The law is clear that in termination hearings, the findings of the court are presumed to be correct and will not be reversed absent a clear abuse of discretion. Matter of Declaring V.B., T.B., D.B. and B.B. Youths in Need of Care (Mont. 1987), [229 Mont. 133,] 744 P.2d 1248, 44 St.Rep. 1838; Matter of C.P. (Mont. 1986), [221 Mont. 180,] 717 P.2d 1093, 1095, 43 St.Rep. 728, 730; Matter of C.L.A. (Mont. 1984), [211 Mont. 393,] 685 P.2d 931, 41 St.Rep. 1444. For termination to occur the court is required to follow the criteria set forth in Section 41-3-609, MCA. Matter of Declaring V.B., T.B., D.B. and B.B., Youths in Need of care, supra; Matter of C.A.R., supra.

In this case, the District Court made the following findings of fact: 1. Dr. Krajacich, after over two years of evaluation, stated the youths had related to him that their father had sexually abused them; that the youths’ stories over this period of time were consistent; and that the youths could not have been coached. 2. The youths made statements in open court to the effect that the father had sexually abused them. 3. The father continued to deny that he sexually abused R.A.D. and J.D. even though Dr. Russell, who evaluated the father, concluded that he was untruthful, repressed favorable information, and did indeed sexually abuse the youths. 4. The father was unwilling or unable to receive treatment as a sex offender and no party informed the court of any sex offender therapist or treatment program that would be willing to work with him. 5. Because the father had not received any treatment, although he stated he would be willing to receive treatment while contending that he did not need the treatment, the conditions that caused him to be unfit were unlikely to change within the foreseeable future. 6. That continuation of the parent-child relationship would result in continued abuse and neglect and the youth’s best interests would be served only if SRS supervised allowed contact.

Section 41-3-609(1), MCA, states:

“The court may order a termination of the parent-child legal relationship upon a finding that the circumstances contained in Subsection (l)(a), (1)(b) or (1)(c), as follows, exists: [(l)(a) and (l)(b) do not apply in this case]
“(c) the child is an adjudicated youth in need of care and both of the following exist:
“(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
“(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.
“(2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse and neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care.”

The specific findings of the court followed subsections (1) (c) (i) and (c)(ii) and (2) of Section 41-3-609, MCA. Despite these findings, the father argues that “[t]here was no substantial credible evidence supporting the District Court’s order, when properly scrutinized.” Upon scrutiny of the record, we find that the father did not attempt to enter into treatment or have the court approve an appropriate treatment program. He sought out no treatment for two and one-half years. He was evaluated by psychiatrists at court order only. Both Dr. Russell and Dr. Krajacich testified as to the difficulty in getting the father enrolled in treatment. Attempts were made by him to have the SRS pay for his psychological evaluations but similar requests for treatment are not present.

Dr. Krajacich testified that it was “a good prognosis that maybe these boys could get back together with their family” but concluded that he believed the youths were sexually abused. Dr. Russell concluded that the father had sexually abused the youths. Irene Johnson agreed with the conclusion. The District Court’s finding of sexual abuse was not clearly erroneous and therefore is upheld.

Termination can occur if a child is “abused and neglected” defined as:

“[a] child whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent or other person responsible for his welfare.” (Emphasis added.) Section 41-3-102(2), MCA. Harm includes acts when a parent “commits or allows to be committed a sexual abuse against the child . . .” Section 41-3-102(3)(b), MCA. Matter of C.A.R., supra, 693 P.2d at 1220. The District Court therefore was presented with clear and convincing evidence that the statutory criteria of Section 41-3-609, MCA was met and had substantial evidence that shows it did not abuse its discretion in terminating the father’s rights on the merits.

The sole issue raised on appeal by counsel for the mother concerns the District Court’s failure to grant a continuance for the April, 1986 hearings. Counsel for the mother argues that the District Court had bifurcated the trial as to the mother and the father at the November 22, 1985 hearing and that the trial court attorney for the mother was surprised to learn on April 16, 1986 that she would be required to proceed and represent the mother. It is clear from the record, as previously discussed, that the court did not bifurcate the trial on November 22, 1985. The April 16, 1986, hearing was indeed the hearing “at a later date” to determine the mother’s rights.

The District Court granted the mother’s counsel three continuances after the November 22, 1985 hearing and prior to the April 16, 1986 hearing. The law in this state is clear that a denial of a motion for continuance is within the sole discretion of the trial judge, In Re Marriage of Robbins (Mont. 1985), [219 Mont. 130,] 711 P.2d 1347, 42 St.Rep. 1897; Bolich v. Bolich (1982), 199 Mont. 45, 647 P.2d 844. Section 25-4-503, MCA states that the District Court may postpone a trial or hearing in its discretion.

There was testimony from the mother’s psychiatrist that she was not responding well to treatment at Warm Springs and her court-ordered commitment could possibly be extended. There was no set date when she would definitely be released. Her counsel also could not assure the District Court when, if at all, the mother would be able to attend.

Courts have held that a continuance may be warranted if a party is mentally incapacitated. Alvis v. Kimbrough (5th Cir. 1972), 455 F.2d 922; Thanos v. Mitchell (1959), 152 A.2d 833. Other courts have held it is not an abuse of discretion for the court to deny a motion for continuance where the petitioner claimed mental illness and there was evidence that it was uncertain as to when he would ever be able to testify. See, Chambers v. Anderson County Dept. of Social Services (S.C. 1984), 311 S.E.2d 746; Williford v. Williford (Ga. 1973), 198 S.E.2d 181. Testimony showed it was uncertain as to whether the mother would ever be able to testify and litigation was entering its second year at the time of the April 16, 1986 hearing.

We find no reversible error under the arguments presented by appellate counsel. We do, however, remand this case. It is expressly stated in Rule 17(c), M.R.Civ.P.:

“[T]he court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person, or in any case where the court deems it expedient a guardian ad litem may be appointed to represent an infant or incompetent person, even though the infant or incompetent person may have a general guardian and may have appeared by him.” (Emphasis added.)

From the record we can find no procedure by which the mother had a guardian ad litem named to represent her interests. Further, we can find no appropriate waiver of her rights to appear before the court on this matter pursuant to Section 53-21-119(2), MCA which states:

“(2) The right of the respondent to be physically present at a hearing may also be waived by his attorney and the friend of respondent with the concurrence of the professional person and the judge upon a finding supported by facts that:
“(a) the presence of the respondent at the hearing would be likely to seriously adversely affect his mental condition; and
“(b) an alternative location for the hearing in surroundings familiar to the respondent would not prevent such adverse effects on his mental condition.”

This section causes us concern because the act in which it is found seems to deal largely with proceedings to determine involuntary capacity. Nonetheless, a reading of the express purpose of the act, Section 53-21-101, MCA, shows the need for protection of the incompetent person’s rights:

“The purpose of this part is to: . . . (4) assure that due process of law is accorded any person coming under the provision of this part.”

The District Court has an affirmative duty to assure that the rights of a party, who is alleged to be incompetent, are protected. Rule 17(c), M.R.Civ.P. requires appointment of a guardian ad litem for an incompetent person whose rights might be abrogated by a lack of proper representation. State ex rel. Perman v. District Court (Mont. 1984), [213 Mont. 130,] 690 P.2d 419, 41 St.Rep. 2002.

The parties agree that, at the time of entry of the order appealed from, the mother was under an order of commitment and was confined at the Montana State Hospital. It is unclear from the record whether, at the time of the hearing, the mother was adjudicated incompetent. Having had no guardian ad litem appointed for her, and in light of our discussion on the need to consider the constitutionally protected interest in maintaining family integrity, the District Court should have made a determination whether E.D.’s parental rights were adequately protected. The fact that the mother was represented at the hearing by appointed counsel does not meet the requirements of Rule 17(c), M.R.Civ.P., if, in fact, the mother was incompetent.

The termination of the father’s parental rights is affirmed. As to the mother’s parental rights, this case is remanded to the District Court for determination as to whether, under the unique facts of the case, the rights of E.D. have been properly protected and whether a guardian ad litem is necessary to properly represent E.D. prior to the termination of her parental rights.

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


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    DALLAS O. BROWN, Claimant and Appellant, v. DONALD AMENT, d/b/a A&R Transport, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 87-244.
    Submitted on Briefs Feb. 4, 1988.
    Decided March 18, 1988.
    752 P.2d 171.

      Whalen & Whalen, Michael J. Whalen, Billings, for claimant and appellant.
    Crowley, Haughey, Hanson, Toole & Dietrich, William J. Mattix, Billings, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Workers’ Compensation Court, before the Honorable Timothy Reardon. Judgment was rendered May 28, 1987 and it was determined that defendant, the State Compensation Insurance Fund, was not liable for the claimant’s injury beyond the liability previously accepted and the benefits previously paid. We affirm.

On July 31, 1978, the claimant, Dallas O. Brown, suffered an accidental injury while at work. While unloading bricks from a truck, Brown accidentally fell backwards and injured his back. Both parties agree this injury was an accidental injury arising out of and in the course of employment. Brown’s employer at that time was Donald Ament, d/b/a A & R Transport. The employer carried workers’ compensation insurance through the State Compensation Insurance Fund at the time of the injury. Liability was accepted for the injury to Brown’s back and temporary-total disability benefits were paid starting August 1, 1978 and ending October 27, 1978.

In January of 1986, claimant Brown was diagnosed as having a herniated disk which required surgery. Brown contends there is a causal connection between his back injury sustained on July 31, 1978 and the back problems sustained in 1986, and therefore the State Compensation Insurance Fund is responsible for paying certain Workers’ Compensation benefits. The relevant events occurring between these two events are somewhat involved and difficult to trace. This will be addressed in more detail under the first issue discussed in this opinion.

The insurer denied liability and Brown filed a Workers’ Compensation petition to resolve the dispute. The Workers’ Compensation Court granted a motion by defendant to bifurcate and trial proceeded as to the issues of liability and claimant’s entitlement to temporary total disability. All other issues were dismissed without prejudice to the parties. Trial was held September 16, 1986 and the Workers’ Compensation Court entered findings of fact, conclusions of law, and a judgment on May 28, 1987 concluding that “defendant is not liable for claimant’s back condition beyond the liability accepted and the benefits paid in 1978.”

Appellant raises six issues for our consideration on appeal:

1. Did the Workers’ Compensation Court correctly conclude that claimant did not provide sufficient proof to establish a causal link between his 1978 injury and his back condition experienced in 1986?

2. Did the Workers’ Compensation Court commit error in refusing to admit certain exhibits into evidence?

3. Did the Workers’ Compensation Court commit error in denying an award of attorney’s fees and costs to claimant?

4. Is the claimant entitled to temporary-total disability benefits for the three years that he was not working by reason of his physical condition between July 31, 1978 and the time of trial, and also into the future?

5. Is the claimant entitled to be reimbursed, or have paid, the medical expenses incurred by him for treatment of his back injury between July 31, 1978 and the current date, where they have not already been paid by the defendant?

6. Is the claimant entitled to receive a 20% penalty for unreasonable delay or refusal to pay by the defendant?

Our determination of issues one and two will make it unnecessary to determine the remaining issues.

1. Causal Connection.

Claimant contends that the back injury diagnosed in 1986 actually began with his injury on July 31, 1978; and that he has experienced one continuous injury with periodic manifestations. Brown states his back problems resulted in the loss of a significant amount of employment from October 1978 to 1986, and that he worked only sporadically for at least seven different employers during that time. Brown contends he lost a total of approximately three years employment due to his back condition. Counsel for Brown states that further workers’ compensation claims were not entered because Brown was told he was not eligible for further benefits.

Claimant’s precise employment history between October 1978 and 1986 is somewhat difficult to trace and claimant appears to have had mixed reasons for leaving each of his jobs during this time period. Following his accident, Brown first worked on an intermittent basis for P & S Trucking, hauling hay and other various loads. In the spring of 1979, Brown worked a short period for Hi-Ball Trucking and left either because he was terminated or due to a difference of opinion with a dispatcher. Brown then worked for K & S Trucking for approximately six months. He stated he worked exclusively as a driver and was working approximately 70 hours a week. His employment was terminated at K & S Trucking when the business closed. Brown then worked loading trucks for the Coca Cola Company from July 1980 to December 1980. He loaded trucks approximately 38 hours a week and was apparently terminated due to a disagreement with a night manager. Brown then commenced work driving a truck with E.R. Young in January 1981. The job involved little loading or unloading and Brown stated he hired help if he encountered a problem. The employment with E.R. Young lasted approximately one year, and ended when the company sold its trucks. Brown also drove a truck for Robert Ganson for a short period and left over a pay dispute. Finally, claimant worked for H & H Lumber from December 1982 to September 1985. Brown states he left H & H Lumber because he had difficulty performing his job due to his back.

In addition to the above work history, the Workers’ Compensation Court entered a thorough statement in its findings of fact regarding claimant’s medical history between July 31, 1978 and his injury in 1986. Claimant initially sought chiropractic treatment from Dr. Gary V. Dols on August 2, 1978. Dr. Dols treated claimant a number of times and eventually referred him to Dr. John R. Dorr, an orthopedic surgeon. Dr. Dorr treated claimant on several occasions and prescribed a specially molded seat and a corset to assist claimant in his work. Claimant last visited Dr. Dorr on October 23, 1978 and Dr. Dorr believed it was unlikely claimant would have any permanent physical impairment. Claimant saw Dr. Dols on October 17, 1978 and Dr. Dols noted claimant was doing “fair.” After experiencing a strain while stacking hay, claimant again visited Dr. Dols on December 1, 1978.

The claimant did not seek any medical attention for his back from December 1, 1978 to June 18, 1982, at which time he again consulted Dr. Dols. Claimant consulted Dr. Dols four times in June 1982 and four times again in September 1982. Claimant saw Dr. Dols again in June 1983, and the doctor noted claimant was doing rather well. Claimant had a physical exam on January 17, 1984 and the examination report noted a “tender over lumbasac [sic] joint.” Dr. Dols was again visited on February 16, 1984 for claimant’s back problems. Claimant experienced back pain while assisting in moving a stuck truck and saw Dr. Dols again on September 24 and October 15, 1984. There is no claim that claimant sought any medical attention again until January 1986.

On January 18, 1986, Dr. Dols noted that claimant’s condition was “far more severe than it had been in the past.” Apparently, claimant strained his back while unloading a truck and shoveling snow. Claimant was eventually referred to Dr. Maurice C. Smith, a neurosurgeon. Dr. Smith diagnosed a herniated disc and performed surgery on claimant January 30, 1986. Following the surgery, Dr. Smith stated claimant could not return to work as a truck driver.

In attempting to determine whether claimant’s surgery in January 1986 was the result of the injury on July 31, 1978, the Workers’ Compensation Court considered deposition testimony by the treating physicians. Dr. Dorr, who treated claimant in September and October of 1978, stated he believed it was unlikely that claimant suffered permanent physical impairment at that time. At his deposition on September 3, 1986, Dr. Dorr stated he had not specifically identified a disc problem in claimant during the treatment. Dr. Dols, the treating chiropractor, was deposed and refused to state that the back problem in 1986 was a direct result of the injury sustained in 1978. Dr. Smith, claimant’s surgeon, stated in his deposition that it was “virtually impossible for [him] to state with a degree of medical certainty that the herniated disc that [he] operated on was a direct result of an injury occurring in 1978.”

In Rightnour v. Kare-Mor, Inc. (Mont. 1987), [225 Mont. 187,] 732 P.2d 829, 830-831, 44 St.Rep. 141, 143, we stated:

“The essential element to be proved by a claimant is a direct relationship between the claimant’s employment and the injury. Schwartzkopf v. Industrial Accident Board (1967), 149 Mont. 488, 493, 428 P.2d 468, 470. That is, a subsequent injury is compensable if it is the direct and natural result of a compensable primary injury, and not the result of an independent intervening cause attributable to the claimant’s own intentional conduct. See Breen v. Industrial Accident Board (1968), 150 Mont. 463, 436 P.2d 701. When a subsequent injury is compensable, the claimant is entitled to receive those benefits which are payable because of medical treatment necessitated by the original injury pursuant to Section 39-71-407, MCA, and Section 39-71-704, MCA, including any medical benefits reserved.”

In Rightnour, the claimant’s subsequent injury was found compensable because the medical evidence demonstrated, with a reasonable degree of medical certainty, that her subsequent injury was the direct and natural result of her previous injury. The claimant’s previous injury was compensable under workers’ compensation.

Claimant Brown has the burden of proving a causal connection by a preponderance of the evidence. Evidence demonstrating only a medical possibility “does not mandate the conclusion that the claimant has met his burden of proof under the Act.” Currey v. 10 Minute Lube (Mont. 1987), [226 Mont. 445,] 736 P.2d 113, 116, 44 St.Rep. 790, 793 (citing, Wheeler v. Carlson Transport (Mont. 1985), [217 Mont. 254,] 704 P.2d 49, 53-54, 42 St.Rep. 1177, 1183). However, evidence demonstrating a medical possibility is acceptable evidence and may be used by the Workers’ Compensation Court to support its decision if supported by other independent evidence. Currey, 736 P.2d at 116, 44 St.Rep. at 793.

Both parties have devoted a significant amount of argument as to the standard of our review in regards to medical testimony submitted by deposition. In Currey we stated:

“This Court will not substitute its judgment for that of the Workers’ Compensation Court concerning the credibility of witnesses nor the weight to be given their testimony except where critical medical evidence is entered by deposition. In cases where depositions are the evidence, ‘this court, although sitting in review, is in as good a position as the Workers’ Compensation Court to judge the weight to be given such record testimony, as distinguished from oral testimony, where the trial court actually observes the character and demeanor of the witness on the stand.’ Shupert v. Anaconda Aluminum Company (Mont. 1985), [215 Mont. 182,] 696 P.2d 436, 439, 42 St.Rep. 277, 281-282 citing Hert v. J.J. Newberry Co. (1978), 178 Mont. 355, 360, 584 P.2d 656, 659.”

Currey, 736 P.2d at 115, 44 St.Rep. at 792. This rule remains unchanged.

Following a careful review of the medical testimony submitted by deposition plus the remaining evidence submitted, we find that the Workers’ Compensation Court correctly concluded that there was insufficient evidence to establish a causal link between claimant’s two injuries. The medical evidence is inconclusive and, at best, establishes only a possibility of a causal link. As noted by the Workers’ Compensation Court, this is a difficult case to chart and “too much time has passed without explanation and without a tracing of the injury through that time.” Following December 1, 1978, claimant did not seek any medical attention for his back for approximately three and one-half years. The evidence presented fails to sufficiently demonstrate that treatment rendered after that period was a direct result of the injury received in 1978; and the decision of the Workers’ Compensation Court is affirmed.

2. Evidence.

Claimant contends the Workers’ Compensation Judge improperly denied the admission of five exhibits into evidence. Exhibits 1 and 2 consist of correspondence between claimant’s attorney and a claims examiner for the insurer. Exhibit 3 is a letter from Dr. Smith’s medical secretary to the Workers’ Compensation Division notifying the Division of claimant’s injury. Exhibit 4 is a “memorandum to file” by Julie McGee noting that claimant requested “that the medical [file] on his July 78 accident be re-opened.” Finally, exhibit 10 was denied admission and consisted of a letter from claims examiner Smith to claimant’s attorney, accompanied with a “File Routing/ Tracking Form” indicating that the Division might have to assume responsibility for the latter injury. Claimant asserts all of these exhibits should have been admitted and relies on statutes governing the Rules of Evidence, including statutes regarding hearsay and its exceptions and limitations.

According to the statutory law in effect at the time of the hearing, the Workers’ Compensation Court was not bound by the rules of evidence. Section 39-71-2903, MCA (1985). Although it has no effect on this case, we note this statute has been amended so as to apply the rules of evidence to proceedings in the Workers’ Compensation Court. Section 39-71-2903, MCA (1987). Claimant’s arguments based on statutes contained within the rules of evidence do not control in this case.

We have stated that it is within the discretion of the Workers’ Compensation Judge to accept or reject “hearsay” testimony. Tocco v. City of Great Falls (Mont. 1986), [220 Mont. 221,] 714 P.2d 160, 166, 43 St.Rep. 310, 318 (citing, Krause v. Sears Roebuck (1982), 197 Mont. 102, 641 P.2d 458). Even if the exhibits had been admitted, claimant would not have sufficiently established a causal connection as discussed in part one of this opinion. We find no abuse of discretion by the Workers’ Compensation Court.

For the foregoing reasons, we affirm the decision of the Workers’ Compensation Court.

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


text:
    IOWA MUTUAL INSURANCE COMPANY, Plaintiff, v. JEFFREY DAVIS and Curtis Beck, Defendants.
    No. 87-317.
    Submitted Jan. 7, 1988.
    Decided March 18, 1988.
    752 P.2d 166.
    James E. Aiken and Steven T. Potts argued, Jardine, Stephenson, Blewett and Weaver, P.C., Great Falls, for plaintiff.
    Gary M. Zadick argued, Ugrin, Alexander, Zadick and Slovak, Great Falls, Erik B. Thueson argued, Helena, for defendants.
    William Conklin, Conklin, Nybo and LeVeque, P.C., Great Falls, for amicus curiae State Farm.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Iowa Mutual instituted a declaratory judgment action in United States District Court, Great Falls Division, to determine whether it is under any obligation to indemnify or defend Jeffrey Davis (Davis) in a personal injury suit brought by Curtis Beck (Beck). Beck brought suit against Davis in the District Court of the Eighth Judicial District, Cascade County. The United States District Court certified the following question of law for review by this Court pursuant to Rule 44, M.R.App.P.:

“Do the provisions of Title 61, Chapter 6, Part 3, Montana Code Annotated, ‘Mandatory Liability Protection,’ prohibit exclusion of a named driver or drivers from coverage under a motor vehicle liability policy?”

We answer the certified question in the affirmative.

The following facts are garnered from the parties’ briefs. Beck was a passenger in an automobile driven by Davis and was injured when the vehicle left the road and crashed. The automobile was owned at the time by Jeffrey Davis’ parents, Donald and Betty Davis. The younger Davis was operating the automobile with his parents’ permission.

Iowa Mutual insured the Davis’ 1964 Oldsmobile involved in the accident. On several occasions during the 1970s, Donald and Betty Davis requested that Jeffrey Davis be specifically excluded from insurance coverage during times that Jeffrey resided away from home. Mr. and Mrs. Davis excluded Jeffrey and their other children on these occasions ostensibly to reduce their insurance premiums. On February 1, 1980, the last of these exclusions, Iowa Mutual endorsement form 1607(a), was executed by Mr. Davis. Iowa Mutual’s endorsement form 1607(a) provided the following:

“It is agreed that all insurance and coverage under this policy shall be null and void with respect to any claims arising out of the operation, use, or occupancy of the automobile described in this policy, or out of the operation, use or occupancy of any other automobile to which the terms of this policy otherwise extends, by the following named person(s):
“Jeffrey L. Davis (D.O.B. 12-03-59) & Alan Davis (D.O.B. 8-25-57) Sons of Insured.
“Provided, however, this endorsement shall not be effective if the automobile is operated by the named insured or the described automobile is operated by any person other than Jeffrey or Alan and such operation of the described automobile is by and under the express permission of the named insured.”

The Davis’ never requested that Jeffrey again be added to their auto insurance policy.

Subsequent insurance policies issued to cover the 1964 Oldsmobile included a “declaration” section which incorporated the 1980 form 1607 (a) endorsement by reference. The 1980 endorsement was in effect in this manner at the time of the accident in which Beck was injured. Iowa Mutual contends that Jeffrey Davis is excluded from his parents’ insurance coverage and that it is under no obligation to indemnify or defend Jeffrey Davis in the Montana District Court action.

The parties cross-motioned for summary judgment in the U.S. District Court. On February 2, 1987, the U.S. District Court, the Honorable Judge Paul G. Hatfield presiding, issued a memorandum and order in favor of defendants Davis and Beck. Iowa Mutual then moved to vacate the U.S. District Court order and requested that the question be certified to this Court. The U.S. District Court vacated its February 2, 1987, order and certified the aforementioned question of law to this Court. This Court ordered simultaneous briefs from plaintiff Iowa Mutual and defendants Davis and Beck. State Farm Mutual Automobile Insurance Company filed an amicus brief in support of Iowa Mutual’s position.

We note that each party attempts to rephrase the certified question to present other issues. Certain parties have also presented affidavits for the first time to this Court. The additional issues and facts are outside the scope of the certified question and will not, therefore, be addressed in this opinion. For future reference, arguments to this Court regarding questions of law certified under Rule 44, M.R.App.P., must be confined to the four corners of the question and facts as defined by the certifying court.

Iowa Mutual first contends that neither the express terms of Section 61-6-301, MCA, nor the statute’s legislative history prohibit exclusion of named persons in a motor vehicle liability insurance policy. Section 61-6-301(1) and (2), MCA, provide as follows:

“(1) Every owner of a motor vehicle which is registered and operated in Montana by the owner or with his permission shall continuously provide insurance against loss resulting from liability imposed by law for bodily injury or death or damage to property suffered by any person caused by maintenance or use of a motor vehicle, as defined in 61-1-102, in an amount not less than that required by 61-6-103, or a certificate of self-insurance issued in accordance with 61-6-143.
“(2) A motor vehicle owner who prefers to post an indemnity bond with the department in lieu of obtaining a policy of liability insurance may do so. The bond shall guarantee that any loss resulting from liability imposed by law for bodily injury, death, or damage to property suffered by any person caused by accident and arising out of the operation, maintenance, and use of the motor vehicle sought to be registered shall be paid within 30 days after final judgment is entered establishing such liability. The indemnity bond shall guarantee payment in the amount provided for insurance under subsection (1).”

Iowa Mutual argues that the above statute does not dictate the terms of a particular insurance policy, but merely requires motor vehicle owners to insure their vehicles. According to Iowa Mutual, named driver exclusions are valid because the mandatory liability protection laws do not expressly prohibit such exclusions.

This Court rejected a similar argument in Bill Atkin Volkswagen, Inc. v. McClafferty (Mont. 1984), [213 Mont. 99,] 689 P.2d 1237, 41 St.Rep. 1981. In Bill Atkin, McClafferty was involved in an automobile accident while he drove a “loaner” vehicle owned by an automobile dealership. The dealership sued McClafferty for damages to the “loaner” vehicle. The dealership’s insurance carrier refused to defend McClafferty so McClafferty sued the insurance carrier as a third-party defendant. The district court ruled in McClafferty’s favor and the dealership and its insurance carrier appealed.

The first issue on appeal in Bill Atkin was whether “Section 61-6-301(1), MCA, require[s] that an automobile dealer maintain a liability policy extending coverage to a customer using a ‘loaner’ vehicle with the dealer’s permission?” Bill Atkin, 689 P.2d at 1238-1239 (additions ours). The appellant insurance company argued that Mc-Clafferty was excluded from coverage under the dealership’s insurance because Section 61-6-301, MCA, did not specifically require that coverage be extended under the circumstances. Bill Atkin, 689 P.2d at 1239. We disagreed with the appellant’s argument and reasoned that there were no exceptions, other than those listed in Section 61-6-303, MCA, to the statutory requirement that “every owner of a motor vehicle registered and operated in Montana by the owner or with his permission [is] to provide insurance for liability caused by maintenance or use of the motor vehicle.” Bill Atkin, at 1239, 1240 (citing Section 61-6-301(1), MCA). Similarly, the absence of a specific statutory prohibition on named driver exclusions in this case does not support Iowa Mutual’s position.

Iowa Mutual and State Farm cite Rooney v. Agricultural Ins. Co. (1970), 156 Mont. 118, 476 P.2d 783, for the proposition that this Court has ruled that named driver exclusions are valid. Rooney, however, was decided more than eight years before the enactment of Montana’s mandatory liability protection laws and is not persuasive.

To determine the validity of the named driver exclusion in this case, we must first consider the requirements of the mandatory liability insurance statutes and then compare those requirements with the terms of the insurance policy. Bain v. Gleason (Mont. 1986), [223 Mont. 442,] 726 P.2d 1153, 1155, 43 St.Rep. 1897, 1900. In Bain we recognized that “it is the public policy of [the State of Montana] . . . that every owner of a motor vehicle [licensed and] operated in Montana must procure a policy of insurance which continuously provides coverage up to the limits set forth in [Section 61-6-103, MCA].” Bain, 726 P.2d at 1156 (emphasis added; additions ours); see also, Transamerica Ins. Co. v. Royle (1983), 202 Mont. 173, 656 P.2d 820 (“household exclusions” in automobile policies are invalid because they conflict with the mandatory liability insurance requirements of Section 61-6-301(1), MCA). Insurance policy provisions which countermand or diminish the statutory requirements “nevertheless will be considered to provide the statutory requirements.” Bain, at 1156. We will not depart from the public policy embodied in Montana’s mandatory insurance protection laws.

Michigan’s legislature has seen fit to allow named driver exclusions in insurance policies written in that state so long as the insured authorizes such an exclusion and the policy contains conspicuous notice of the exclusion. Mich. Comp. Laws Section 500.3009(2) (1987). Prior to the enactment of Mich. Comp. Laws, Section 500.3009(2), the courts of Michigan construed that state’s motor vehicle responsibility laws to invalidate named driver exclusions. Allstate Insurance Co. v. Motor State Ins. Co. (Mich. Ct. App. 1971), 190 N.W.2d 352. The Michigan legislature enacted Section 500.3009(2) in 1971 as a response to Allstate, supra. Detroit Auto Inter-Ins. Exch. v. Commissioner of Ins. (Mich. Ct.App. 1979), 272 N.W.2d 689, 691; see generally, J. Braden, Statutory Coverage of Exclusions From and Limitations on Automobile Liability Coverage, 61 Mich.B.J. 554 (1982).

Amicus curiae, State Farm Mutual Automobile Insurance Company, asserts that policyholders and insurers cannot be denied the freedom to contract for named driver exclusions in order to control the cost of liability insurance. We disagree. It is clear that the mandatory liability insurance law seeks to protect members of the general public who are innocent victims of automobile accidents. Dullenty v. Rocky Mountain Fire & Cas. Co. (Idaho 1986), 721 P.2d 198, 202.

Montana’s mandatory liability insurance laws were patterned after Idaho’s compulsory liability insurance laws. Hearings on H.B. 708 Before the House Committee on Highways and Transportation, 1979 Legis. Sess., February 15, 1979, page 2 (statement of Rep. Paul Pistoria); compare Section 61-6-301, MCA, with Idaho Code Section 49-233 (1987). The Idaho Supreme Court stated the following in Dullenty with regard to that state’s automobile insurance laws:

“We deem the legislative intent in the field of automobile insurance to be relatively clear. It is the public policy of this state that any owner or operator of a motor vehicle, within certain self-insured exceptions, purchase automobile liability insurance . . . While obviously such a scheme contemplates insurance against risk of such monetary loss on the part of the owner or operator of the insured vehicle, it carries out a further public policy of providing some protection to the general public who may be injured as a result of the operation of the named motor vehicle ...”

Dullenty, 721 P.2d at 202. As with Idaho’s statute, Section 61-6-301, MCA, was enacted for the benefit of the public and not for the benefit of the insured.

It is axiomatic that laws established for the benefit of the public cannot be contravened by private contract. Section 1-3-204, MCA. Iowa Mutual and Mr. Davis contracted to exclude Jeffrey Davis from insurance coverage. Although not expressly prohibited, such a named driver exclusion is contrary to the express public policy of Section 61-6-301(1), MCA, and is, therefore, invalid. Section 28-2-701(2), MCA.

Although the issue presented for our review is one of first impression in Montana, other jurisdictions have been confronted with similar issues. A case on point is Fields v. Western Preferred Cas. Co. (La. 1983), 437 So.2d 344. Fields appealed a lower court ruling that the person responsible for causing an auto accident was excluded from the vehicle owner’s (Munholland) insurance coverage. The issue presented to the Louisiana Second Circuit Court of Appeals was:

“whether the statutory omnibus coverage of [Louisiana’s mandatory liability insurance laws] applies to negate or override the effect of the endorsement which says that no liability coverage shall be afforded while Munholland’s insured vehicles are being driven by a particular employee.”

Fields, 437 So.2d at 345. The Fields issue is remarkably similar to the certified question in this case.

The Louisiana court noted that the purpose of the compulsory liability insurance laws was to protect persons injured by the operation of motor vehicles and not to protect owners and operators of those vehicles. 437 So.2d at 346. Much like Montana’s laws, Louisiana requires every registered motor vehicle to be covered by liability insurance, a liability bond, or a certification of self-insurance. La.Rev.Stat.Ann. Sections 32:861, 32:900 (1987). The Fields court applied these statutory provisions to hold that Louisiana’s mandatory liability insurance laws require minimal coverage and “override or supersede a policy provision or endorsement excluding a named driver.” Fields, 437 So.2d at 346-347. We find the reasoning in Fields to be persuasive in this case.

Iowa Mutual next asserts that the legislature could not have intended to prohibit motor vehicle liability insurers from excluding named drivers from coverage because Section 61-6-143, MCA, allows self-insurers to only pay judgments against themselves. General principles of respondeat superior lead us to the conclusion that Iowa Mutual’s argument in this regard is without merit.

Both Iowa Mutual and State Farm contend that invalidation of named driver exclusions will thwart public policy. The insurance companies argue that some families will not be able to afford insurance if they are not able to exclude family members with poor driving records. The insurance companies go on to foretell that, because Montana families will continue to drive out of necessity, our ruling today will result in more uninsured vehicles on the state’s highways.

We are convinced that the opposite is true. Our ruling today will eliminate yet another avenue through which the compensation of innocent automobile accident victims can be sidestepped. Our ruling does not, however, prohibit an insurer from entering into agreements with their insureds to limit coverage to the statutory minimum amounts as set forth in Section 61-6-103, MCA. Other states have reached similar conclusions.

The Supreme Court of Utah invalidated a named driver exclusionary endorsement only to the extent that the endorsement excluded statutorily required minimum liability coverage in Allstate Ins. Co. v. U.S. Fidelity & Guaranty (Utah 1980), 619 P.2d 329. The Utah court held that the exclusion was enforceable as to any insurance coverage above minimum limits and noted the following:

“Our decision does not, however, read the named driver exclusionary endorsement out of the contract entirely. Rather, contracting parties are free to limit coverage in excess of the minimum required limits, and the exclusion found in the contract is valid in relation to any coverage exceeding the minimum amounts. Thus, a balance is struck between the necessity of securing minimum automobile liability coverage and the availability of lower premiums because of the exclusion of high insurance risks. This effectuates the express twofold purpose of the Utah No-Fault Insurance Act which is to require the payment of certain prescribed benefits in respect to motor vehicle accidents while stabilizing the rising costs of automobile accidents insurance.”

Allstate, 619 P.2d at 333. The Oklahoma Supreme Court reached a similar conclusion in Young v. Mid-Continent Cas. Co. (Okla. 1987), 743 P.2d 1084. In holding that an exclusion was invalid, the Young court noted that the intent of Oklahoma’s compulsory liability insurance statutes was not so broad as to “eliminate all possible bargaining regarding liability exclusions ...” but that the intent did “require a minimum of protection to any party who is not a party to the contract.” Young, 743 P.2d at 1088.

The enforcement of minimum statutory coverage is mandated by statute in Montana and is a minor burden on insureds when compared to increased protection of the general traveling public. Iowa Mutual’s attempt to exclude Jeffrey Davis from coverage is contrary to the mandatory liability coverage requirements of Section 61-6-301, MCA, and is repugnant to this state’s interest in protecting innocent victims of automobile accidents. The United States District Court is instructed that the provisions of Title 61, Chapter 6, Part 3, MCA, prohibit the exclusion of named drivers from statutory minimum coverage under a motor vehicle liability policy.

Question answered in the affirmative.

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


text:
    BUTLER R. EITEL, Plaintiff and Respondent, v. JOHN R. RYAN, SR., Defendant and Appellant.
    No. 87-319.
    Submitted on Briefs Feb. 4, 1988.
    Decided March 18, 1988.
    751 P.2d 682.
    Howard C. Greenwood, Hamilton, for defendant and appellant.

      Paul C. Meismer; Garlington, Lohn & Robinson, Missoula, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

John R. Ryan, Sr., appeals from the order of the Ravalli County District Court granting Butler R. Eitel’s motion for summary judgment. We affirm.

Butler Eitel (Eitel) and his wife, Priscilla Eitel, reside in South Dakota and own approximately forty acres of agricultural property in Ravalli County, Montana. In a letter dated May 11, 1984, Eitel offered to lease the forty acres to John Ryan (Ryan) for $3,500 per year. Ryan accepted the lease terms in a May 23, 1984, letter to Eitel. Eitel did not receive any lease payments from Ryan from April, 1984, to May, 1986. On June 17, 1986, Eitel filed suit in Ravalli County for rescission of the lease, possession of the property and damages.

On July 14, 1986, Ryan, appearing pro se, answered Eitel’s complaint. Thereafter, Eitel’s attorney scheduled the taking of Ryan’s deposition for October 28, 1986, and sent notice of the deposition to Ryan on October 21,1986. The deposition was reset for November 3, 1986, to accommodate Ryan’s schedule.

On October 24, 1986, Eitel’s attorney filed a motion for summary judgment and notice of hearing along with an amended notice of deposition and subpoena. These documents were served upon Ryan by the Ravalli County Sheriff’s Office on October 31, 1986. On November 3, 1986, the morning Ryan’s deposition was scheduled to be taken, Ryan telephoned Eitel’s attorney and requested another resetting of the deposition. Eitel’s attorney refused to reschedule and told Ryan that the deposition was needed to prepare for the summary judgment hearing on November 5, 1986. Ryan arrived early for the deposition and informed the court reporter that her services would not be needed because the deposition had been canceled. Both the court reporter and Ryan then left. Eitel’s attorney traveled from Missoula to Hamilton for the deposition only to find no one else in attendance.

Two days later, Ryan failed to appear at the November 5, 1986, summary judgment hearing. At that hearing, a local attorney, Patricia Brolin-Ribi, moved for a continuance on Ryan’s behalf, but admitted to the District Court that she did not represent Ryan. Apparently Ryan had contacted Brolin-Ribi about representing him, but she had declined. Brolin-Ribi’s motion for continuance was denied. On November 10, 1986, the District Court granted Eitel’s motion for summary judgment and awarded Eitel possession of the property. The District Court also awarded Eitel $7,159.70 in past due lease payments which reflects a credit to Ryan for $1,298.83 in repair costs made during the lease period.

On November 20, 1986, Ryan moved for a stay of execution and retrial on the grounds that the documents served upon him did not contain any reference to the November 5th summary judgment hearing and because, as a pro se litigant, he should be excused from compliance with court rules. Ryan next requested that Judge Douglas G. Harkin withdraw from the case on the grounds that Ryan’s previous, associations with the Judge would not allow Judge Harkin to “give [Ryan] a fair trial.” Judge Harkin treated Ryan’s request as a motion to disqualify for cause pursuant to Section 3-1-802, MCA (1985), and requested that this Court appoint another district judge to hold a disqualification hearing.

We appointed the Honorable Frank M. Davis to hear Ryan’s motion to disqualify Judge Harkin for cause. Judge Davis held a disqualification hearing on February 9, 1987, found no evidence of bias or prejudice, and stated that “Ryan’s belief to the contrary is unsubstantiated and without merit.” Ryan’s affidavit of disqualification for cause was dismissed and Judge Harkin was revested with jurisdiction.

On March 23, 1987, the District Court conducted a hearing to ascertain whether Ryan had in fact been given adequate notice of the November 5, 1986, summary judgment hearing. Ryan, appearing pro se, called and questioned Eitel’s attorney and the sheriff’s deputies who performed the service of process. From the evidence presented at this hearing, the District Court found that Ryan had been served with notice of the November 5th hearing and that Ryan had actual knowledge of the hearing from his telephone conversation with Eitel’s attorney on November 3, 1986. The District Court accordingly denied Ryan’s November 26, 1986, motion for stay of execution and retrial. This appeal followed.

Ryan presents the following five issues for our review:

1. Does personal service of a motion for partial summary judgment and the notice of hearing upon a party by a sheriff’s deputy at 2:15 p.m., Friday, October 31, 1986, setting a hearing on the motion the following Wednesday, November 5, 1986, meet the requirements of Rule 56(c), M.R.Civ.P., which requires that a motion for summary judgment shall be served at least ten days before the time fixed for hearing?

2. Can a summary judgment granted by default for failure of the other party to appear stand if service of the motion for summary judgment did not comply with the requirements of Rules 56(c) and 6(d), M.R.Civ.P.?

3. Is the finding of the District Court that no material issue of fact existed when it granted plaintiffs motion for summary judgment supported by the evidence?

4. Did the District Court decide issues of material fact in making its finding that no material issue of fact existed when it granted the plaintiffs motion for summary judgment?

5. Was the service of an amended notice of deposition with a subpoena duces tecum served at 2:15 p.m., Friday, October 31, 1986, setting the time of taking the deposition at 10:00 a.m. the following Monday, November 3, 1986, “reasonable notice” as required under Rule 30(b), M.R.Civ.P.?

At the outset we must note that Ryan’s first, second, and fifth issues were not raised at the District Court and are raised for the first time on this appeal. This Court recognizes that untimely objections regarding the notice requirements of Rule 56(c), M.R.Civ.P., serve to waive any defect. Llera v. Wisner (1976), 171 Mont. 254, 266-267, 557 P.2d 805, 812-813. We also recognize that issues raised for the first time on appeal are untimely and will not be addressed by this Court. Scofield v. Estate of Wood (Mont. 1984), [211 Mont. 59,] 683 P.2d 1300, 1302, 41 St.Rep. 1212, 1215. Accordingly, Ryan’s issues one, two, and five will not be addressed.

Ryan’s third and fourth issues are dispositive of this appeal. Summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. “The party moving for summary judgment has the burden of establishing the absence of any genuine issue of material fact and the party opposing the motion must come forward with evidence supporting the existence of a genuine fact issue.” Pretty on Top v. City of Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 60. We will review the pleadings, affidavits, answers to interrogatories and admissions on file to determine whether summary judgment is proper. Westmont Tractor Co. v. Continental I, Inc. (Mont. 1986), [224 Mont. 516,] 731 P.2d 327, 328, 43 St.Rep. 2380, 2381.

Ryan makes reference to his answer to the complaint in this action to argue that he has raised sufficient genuine issues of material fact. However, Ryan, as the party opposing summary judgment, may not depend “upon the mere allegations of his pleadings,” and he had “an affirmative duty to respond by affidavits or sworn testimony with specific facts that show there is a genuine issue of material fact for trial.” Drug Fair Northwest v. Hooper Ent., Inc. (Mont. 1987), [226 Mont. 31,] 733 P.2d 1285, 1287, 44 St.Rep. 435, 437. In addition, the conclusory and speculative statements contained in Ryan’s answer are insufficient to raise a material issue of fact. B.M. by Berger v. State (Mont. 1985), [215 Mont. 175,] 698 P.2d 399, 401, 42 St.Rep. 272, 274-275.

Ryan contends that the letters attached to his answer to Eitel’s complaint establish that there was no lease or that the lease terms periodically changed between 1984 and 1986. We have reviewed the entire record, including the letters in question, and find nothing to raise a genuine material issue of fact with which to justify reversal of this case. The District Court correctly concluded that a valid lease agreement had been entered, into between Ryan and Eitel. Ryan admittedly never made any lease payments in the two-and-one-half years he occupied and used Eitel’s property.

In addition to the pleadings in the matter, Eitel’s motion for summary judgment was supported by his own affidavit and an affidavit from Priscilla Eitel. These affidavits established that a lease had been entered into by the parties, that Ryan was to pay Eitel $3,500 per year in lease payments, and that Eitel never received any payments from Ryan. Ryan now claims that these two affidavits were improperly filed, untimely, and that the District Court should not have considered them in its determinations. This is the first time Ryan has objected to the use of these affidavits. We reiterate that issues raised for the first time on appeal are untimely and will not be addressed by this Court. Scofield, 683 P.2d at 1302. It is entirely too late for Ryan to complain about the District Court’s consideration of these affidavits. Schy v. Susquehanna Corp. (7th Cir. 1970), 419 F.2d 1112, 1116, cert. denied, (1970), 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55.

Ryan’s final argument is that the District Court decided issues of fact in granting summary judgment. While it is improper for the District Court to resolve disputed issues of material fact, our review of the record leads us to the conclusion that the District Court did not make such a mistake. We hold that the District Court correctly granted Eitel’s motion for summary judgment.

Affirmed.

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


author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICE SHEEHY,

text:
    In the Matter of K.M.H., a Youth.
    No. 87-332.
    Submitted on Briefs Dec. 22, 1987.
    Decided March 18, 1988.
    752 P.2d 162.

      Bradley B. Parrish, Lewistown, for appellant.
    Mike Greely, Atty. Gen., Helena, Patricia J. Schaeffer, Asst. Atty. Gen., Craig R. Buehler, Fergus Co. Atty., Lewistown, Jon Oldenburg, Deputy Fergus Co. Atty., for respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

K. M. H., a youth, appeals an order of the Tenth Judicial District Youth Court, Fergus County, waiving jurisdiction and transferring K.M.H. from Youth Court to District Court. The Youth Court’s order was based on a December 4, 1986, petition alleging that K.M.H. is a delinquent youth and alleging that K.M.H. committed deliberate homicide and attempted deliberate homicide.

We affirm.

The sole issue on appeal is whether the Youth Court abused its discretion when it transferred K.M.H. to District Court pursuant to Section 41-5-206, MCA (1985)?

After careful review of the record, we hold the Youth Court did not abuse its discretion when it transferred K.M.H. to District Court. However, in order to protect appellant’s right to a fair trial, we decline to detail the evidence produced at the transfer hearing. Additionally, we decline to name witnesses testifying at the May 11, 1987, transfer hearing.

At the May 11, 1987, transfer hearing, two of the State’s witnesses, S.F. and John Moffatt made the following allegations. On the morning of December 4, 1986, K.M.H. brought a .41 magnum revolver to Fergus County High School. At approximately 1:17 p.m. on the same day, K.M.H. shot and killed a substitute French teacher, Henrietta Smith. Moments later, K.M.H. shot and seriously injured assistant principal John Moffatt. As Moffat lay wounded on the floor, K.M.H. fired again and missed.

On December 4, 1986, a petition was filed alleging that K.M.H. is a delinquent youth and alleging that he committed deliberate homicide and attempted deliberate homicide. Subsequent to filing the petition, appellant was sent to Rivendell, formerly the Montana Youth Treatment Center, for a psychiatric evaluation. He was then enrolled in Pine Hills School for Boys.

On December 8, 1986, respondent moved to transfer the matter ■from Youth Court to District Court pursuant to Section 41-5-206, MCA (1985). Section 41-5-206, MCA (1985), provides in pertinent part:

“(1) After a petition has been filed alleging delinquency, the court may, upon motion of the county attorney, before hearing the petition on its merits, transfer the matter of prosecution to the district court if:
“(a)(i) the youth charged was 12 years of age or more at the time of the conduct alleged to be unlawful and the unlawful act would constitute sexual intercourse without consent as defined in 45-5-503, deliberate homicide as defined in 45-5-102, or 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 . . . [and]
“(d) the court finds upon the hearing of all relevant evidence that there are reasonable grounds to believe that:
“(i) the youth committed the delinquent act alleged;
“(ii) the seriousness of the offense and the protection of the community require treatment of the youth beyond that afforded by juvenile facilities; and
“(iii) the alleged offense was committed in an aggressive, violent, or premeditated manner.
“(2) In transferring the matter of prosecution to the district court, the court may also consider the following factors:
“(a) the sophistication and maturity of the youth, determined by consideration of his home, environmental situation, and emotional attitude and pattern of living;
“(b) the record and previous history of the youth, including previous contacts with the youth court, law enforcement agencies, youth courts in other jurisdictions, prior periods of probation, and prior commitments to juvenile institutions. However, lack of a prior juvenile history with youth courts will not of itself be grounds for denying the transfer.
“(c) the severity of the offense;
“(d) the prospects for adequate protection of the'public and the likelihood of reasonable rehabilitation of the youth by the use of procedures, services, and facilities currently available to the youth court. [Emphasis added.]”

Appellant K.M.H. contends the District Court abused its discretion when it found: (1) reasonable grounds to believe that the seriousness of the offense and the protection of the community require treatment of the youth beyond that afforded by juvenile facilities; and (2) reasonable grounds to believe the alleged offenses were committed in an aggressive, violent or premeditated manner.

Our standard when reviewing juvenile transfer proceedings is to determine whether the Youth Court abused its discretion by failing to consider all statutory criteria and whether substantial credible evidence supports the Youth Court’s finding that juvenile facilities are inadequate in light of the “seriousness of the offense and the need to protect the community.” Matter of B.D.C. (Mont. 1984), [211 Mont. 216,] 687 P.2d 655, 658, 41 St.Rep. 1318. The youth may not be transferred simply because he has committed a serious offense. In re Stevenson (1975), 167 Mont. 220, 538 P.2d 5, 9.

A review of the record supports the findings, conclusions and order of the Youth Court. At the May 11, 1987, transfer hearing, the testimony of K.D. and M.R. corroborated the assertions of S.F. that appellant knocked on the French classroom door and shot Henrietta Smith. This testimony, coupled with John Moffatt’s testimony, constitutes reasonable grounds to believe that K.M.H. committed the crimes. The crimes, attempted deliberate homicide and deliberate homicide, are serious offenses. Matter of N.C.F. (Mont. 1982), 197 Mont. 390, 643 P.2d 236, 238.

Dr. H.S.N., medical director at Rivendell, testified that appellant suffers from schizotypal personality with a mild dysthymic disorder. He recommended that appellant live in a structured environment and receive treatment for several years. Additionally, Dr. H.S.N. stated that if appellant were faced with another stressful situation, another explosive reaction might occur.

A.D., superintendent of Pine Hills School for Boys, testified that Pine Hills is not an appropriate place to treat a “psychologically impaired youth who committed a homicide.” D.D.R., administrator of the Division of Corrections, Department of Institutions, testified by deposition that if appellant was not transferred to District Court, the Department of Institutions would lose all jurisdiction to treat and supervise him when he reaches age 21. M.F.O., chief probation officer for the Tenth Judicial District, testified that he felt appellant should be transferred to the adult system to allow adequate supervision for a significant number of years.

The Youth Court, in its findings and conclusions, indicated that appellant could not be properly supervised and treated if he remained under jurisdiction of the Youth Court:

“In summary, the most critical factor herein is the prospect for adequate protection of the public and the likelehood [sic] of reasonable rehabilitations of [K.M.H.] by use of procedures, services, and facilities currently available to the Youth Court. This Court cannot conclude with reasonable certainty that [K.M.H.] will not require supervision and possible further treatment after he reaches the age of 21 years. The Youth Court loses all jurisdiction and control of the youth at age 21. On the other hand, if the youth is transferred into the adult criminal Court there will be more options available for treatment (possible psychiatric treatment at Warm Springs State Hospital) and supervision (as Swan River Forest Camp, a Half-Way House, or Montana State Prison, or on probation or parole for a longer period of time). [Emphasis added.]”

We hold that substantial credible evidence supports the Youth Court’s finding that K.M.H. be transferred to District Court in light of the seriousness of the offenses and the need to protect the community.

Appellant also contends that substantial credible evidence does not support the Youth Court’s finding the alleged offenses were committed in an aggressive, violent or premeditated manner. We do not agree.

The assertions of S.F. support the Youth Court’s finding that appellant allegedly planned the shooting several days prior to the commission of the crimes. Appellant’s alleged conduct constitutes aggressive, violent and premeditated execution of the deliberate homicide and aggressive and violent execution of the attempted deliberate homicide. Section 41-5-206, MCA (1985).

We hold the Youth Court did not abuse its discretion when it transferred the above-mentioned cause from Youth Court to District Court.

Affirmed.

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

MR. JUSTICE SHEEHY,

dissenting:

I dissent, not so much from the logic of the majority (though the logic is faulty), as from the negligent unconcern of the legislature in failing to make adequate provision for youths like K.M.H.

While I respect the seal of the Youth Court on the facts of this case to protect K.M.H.’s fair trial rights, recitation of the following facts will not damage KM.H.’s case, certainly not as much as the recitation of facts in the majority opinion. The Youth Court found that K.M.H. is seriously mentally ill and as such is a danger to other persons and to himself and that he is in need of intensive psychiatric care for an extended period of time; K.M.H. committed the acts when he was 14, is now 15, and the Youth Court would lose jurisdiction of him at age 21; the Youth Court was not satisfied that intensive psychiatric treatment during the period of six years for which the Youth Court had remaining jurisdiction was sufficient for K.M.H.’s rehabilitation; and then the Youth Court determined from the evidence that reasonable grounds existed that K.M.H. had committed the delinquent (criminal) acts with which he is charged.

In the adult court, K.M.H. as a defendant, if he is found not guilty for the reason that due to a mental disease or defect he could not have a particular state of mind that is an essential element of the offense charged, must be then committed to the custody of the superintendent of the Montana State Hospital to be placed in an appropriate institution for custody, care and treatment. Section 46-14-301(2), MCA. The truth is the people operating the Montana State Hospital do not want high risk placements, and so K.M.H. will shortly be placed in the Montana State Prison or the Swan River Camp under some guise of further treatment. He is not eligible to go to Rivendell in Billings because it does not have security.

The elements of the crime of deliberate homicide in Montana are a voluntary act, (Section 45-2-202, MCA), coupled with either purpose or knowledge (Section 45-5-102, MCA). There is a lapse in logic, therefore, for the Youth Court and the majority of this Court to determine that K.M.H. must be transferred to the adult court for criminal prosecution because he is seriously mentally ill, when in the adult court, because he is seriously mentally ill, he may not be convicted of committing a crime. The majority and the Youth Court have been forced to this illogical position because the legislature has failed to make provision for the proper treatment of crazed youths even though the state constitution requires that laws for the punishment of crimes shall be founded on the principles of prevention and reformation. Article II, Section 28, 1972 Mont. Const.

The consequences are terrible for this 15 year old boy. Without overlooking his killing of one person and his assault with a deadly weapon upon another, we may note that historically no civilized governmental entity holds a person responsible for criminal conduct resulting from a lack of substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. American Law Institute, Model Penal Code, Section 4.01(1) (1962). Yet Montana, in 1979, removed that defense from our criminal statutes, and placed it in the power of psychiatrists to opine to the jury whether the defendant had the particular state of mind which is an element of the offense charged. Section 46-14-213, MCA. (See my dissent in State v. Korell (Mont. 1984), [213 Mont. 316,] 690 P.2d 992, 1005, 41 St.Rep. 2141, 2156.) The likelihood is that this 15 year old boy will be sentenced to a long prison term in the adult court, and that facially, treatment for his mental condition will be ordered, but very little received. In the meantime, he will be subjected to the company of male prisoners, half again, twice and three times his age. In the adult court it is even possible for him to receive a death sentence. In light of his immature age, his recognized mental illness, the bleak prospect of adequate treatment for him and his long years of prison life, it is almost not too callous to ask, “Oh death, where is thy sting?”

In this election year, every legislative candidate and gubernatorial candidate should be asked this important question, “What do you intend to provide for the treatment of youths out of control by reasons of mental illness?”

        FOOTNOTES

      1. In 1987 the legislature in Subsection (l)(d) substituted “is probable cause” for “are reasonable grounds” and deleted Subsections (2)(c) and (2)(d).


author: MR. CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KENT LAVERN KEIL, Defendant and Appellant.
    No. 87-393.
    Submitted Feb. 4, 1988.
    Decided March 17, 1988.
    751 P.2d 680.
    Larry Jent, Bozeman, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Betsy Brandborg, Asst. Atty. Gen., Douglas Anderson, Pondera County Atty., Conrad, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant Keil appeals a jury conviction for reckless driving in attempting to elude a peace officer. On June 8, 1987, Keil was fined $300 and sentenced to thirty days in the Pondera County jail, with all thirty days suspended. We affirm.

Keil presents two issues for our review:

1. Does the offense of reckless driving as defined in Section 61-8-301(l)(b), MCA, require the use of a siren by a pursuing highway patrolman?

2. Did the District Court abuse its discretion in denying Keil’s motion for acquittal?

On the night of May 8, 1986, highway patrolman Sam Harris was driving north toward Conrad, Montana. Officer Harris noticed the headlights of a southbound car approaching him at high speed. The patrolman’s radar detector clocked the approaching car at 96 miles per hour.

As the car passed him, Officer Harris immediately turned on his flashing lights and began his pursuit. The patrolman saw the car’s brake lights momentarily illuminate, then go off as the car stretched its lead. One-quarter mile after pursuit began, Officer Harris noticed beer cans, a cardboard beer carton and fresh “spew tíiarks” on the highway. The debris had not been there prior to the car’s passage.

During the chase, Officer Harris radioed the local sheriff and learned that the car was registered to Dale and Sherry Keil of Ledger, Montana. The sheriff contacted the Keils, who stated that the car was probably being driven by their son, Kent Keil.

Pursuit speeds reached 110 miles per hour. Officer Harris testified that the Keil car “had more engine that I had.” Eventually, Officer Harris lost sight of the car in the town of Brady. He abandoned the chase.

Officer Harris returned to the area of the pursuit and retrieved several Rainier beer cans from the highway. Officer Harris drove to Conrad. He then proceeded toward Brady by an alternate route. He again met the Keil car which was now traveling slowly toward Conrad. The car’s engine was very low on oil and knocking. Officer Harris turned on his flashing lights and the car stopped immediately. The driver was Kent Keil.

Officer Harris cited Keil for speeding and reckless driving by attempting to elude a peace officer. Keil pleaded guilty to night speeding. However, he pleaded not guilty to reckless driving. Keil was subsequently convicted by a jury in justice court. He appealed to the District Court, where a jury trial de novo again found him guilty.

Issue 1. Use of a siren.

Keil was convicted of violating Section 61-8-301(l)(b), MCA, which states:

“A person commits the offense of reckless driving if he . . . operates any vehicle in willful or wanton disregard for the safety of persons or property while fleeing or attempting to flee from or elude a peace officer who is lawfully in pursuit and whose vehicle is at the time in compliance with the requirements of 61-9-402. [Emphasis added.]”

Section 61-9-402, MCA, states: “(1) A police vehicle shall be equipped with a siren capable of giving an audible signal and may, but need not, be equipped with alternately flashing or rotating red or blue lights as specified herein.” (Emphasis added.)

Keil contends that the word “equipped” mandates the “use” of a siren. Keil asserts that he is not guilty because Officer Harris did not use his siren, which Keil argues is an essential element of the offense.

Keil’s argument is without merit. Section 61-9-402 simply requires that the police car be equipped with a siren. The mere presence of the siren on the car does not mandate its use. Such use is optional. As Officer Harris testified: “The siren, for the most part, works to alert pedestrians or somebody who is out of a vehicle. If you get more than 100 feet behind the car traveling at a very high rate of speed, you cannot hear the siren at all.”

By the plain language of the statute, we hold that the use of a siren is not an essential element of an offense under Section 61-8-301(l)(b).

Issue 2. Denial of motion for acquittal.

After the State had presented its case, Keil moved for a judgment of acquittal, which the court denied. Keil contends that the motion should have been granted because Officer Harris did not use his siren. Keil further asserts that he never saw the flashing lights.

KeiPs motion was without merit. Such a motion may only be granted where there is no evidence upon which the trier of fact could base a verdict of guilty. Section 46-16-403, MCA; State v. Matson (Mont. 1987), [227 Mont. 36,] 736 P.2d 971, 974, 44 St.Rep. 874, 877.

In the instant case, Officer Harris testified that his pursuit lights are high-intensity strobes which flash red, white and blue. The State also presented a police officer from Conrad who saw Officer Harris’s flashing lights from two miles away.

Furthermore, the State presented two passengers who were in Keil’s car during the pursuit. One passenger admitted tossing a Rainier box out of Keil’s car in the area of the pursuit. Both passengers testified that Keil was speeding. This evidence, combined with the flicker of Keil’s brake lights when Officer Harris turned on his flashing lights, was sufficient to convince the jury of Keil’s guilt.

Based on the State’s presentation of evidence, we hold that the District Court properly denied the motion.

Affirmed.

MR. JUSTICES SHEEHY, WEBER, HUNT and McDONOUGH concur.