author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TODD CAMPBELL, Defendant and Appellant.
    No. 95-427.
    Submitted on Briefs July 11, 1996.
    Decided September 12, 1996.
    53 St.Rep. 879.
    278 Mont. 236.
    924 P.2d 1304.

      For Appellant: Vicki Knudsen, Attorney at Law, Roundup.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Ass’t Attorney General, Helena; Thomas P. Meissner, Fergus County Attorney, Lewistown.
   JUSTICE GRAY

delivered the Opinion of the Court.

Todd Campbell (Campbell) appeals from the judgment and sentence entered by the Tenth Judicial District Court, Fergus County, on jury verdicts finding him guilty of two counts of sexual intercourse without consent and one count of sexual assault. We affirm.

We address the following issues on appeal:

1. Did the District Court err in denying Campbell’s motion to suppress his confession?
2. Was Campbell’s confession supported by independent corroborating evidence?
3. Did the District Court abuse its discretion in denying Campbell’s motion for a directed verdict of acquittal?
4. Was Campbell denied effective assistance of counsel?
5. Did the District Court err regarding either its order for a psychological examination or a determination that Campbell was indigent?

In late 1992, the Montana Department of Family Services (DFS), now the Department of Public Health and Human Services, received several complaints of parental neglect regarding L.D., A.D. and M.M., ages six, four and two, respectively. It removed the three girls from their mother’s home and placed them in foster care on January 28, 1993. While in foster care, the children displayed behavior and made statements indicating that they may have been sexually abused.

Jim Simonich (Simonich), a DFS social worker, reported the suspected abuse to the Lewistown Police Department (LPD) in February of 1993. Simonich also made arrangements for the girls to be examined by Dr. Nancy Maynard, a Great Falls pediatrician who specializes in conducting physical examinations in suspected child sexual abuse cases. Dr. Maynard examined the children on March 11,1993, and found physical evidence that L.D. and A.D. had been sexually abused. Her examination of M.M. did not reveal any conclusive physical evidence of sexual abuse.

Officer David Sanders of the LPD began investigating Simonich’s report that the children may have been sexually abused. During his investigation, Officer Sanders spoke with the children’s maternal grandmother, who mentioned that Campbell had babysat the children on various occasions. She indicated that she felt uncomfortable when Campbell was around the children and that she suspected that Campbell may have had sexual contacts with the girls.

Officer Sanders telephoned Campbell on April 25,1993, and made arrangements for an in-person interview; he did not tell Campbell what the interview would be about. When Campbell arrived at the police station for the interview two days later, Officer Sanders took him into an interview room and proceeded with an interview which lasted approximately one and one-half hours. During the interview, Campbell made oral admissions and also wrote a statement confessing to sexual offenses against each of the three girls. He recanted his confession later that day.

The State of Montana (State) subsequently charged Campbell with two counts of sexual intercourse without consent, involving L.D. and A.D., and one count of sexual assault, involving M.M. Campbell moved to suppress his written confession and the oral admissions made to Officer Sanders. After an evidentiary hearing, the District Court denied the motion to suppress.

A jury trial was held in June of 1994, and the jury found Campbell guilty of all three charges. The District Court sentenced him to ten years in prison, with eight years suspended, on. each charge, and ordered that the sentences run concurrently. Campbell appeals and is represented by new counsel on appeal.

1. Did the District Court err in denying Campbell’s motion to suppress his confession?

Campbell moved to suppress both the written confession and the oral admissions (collectively, the confession) made to Officer Sanders during the interview on the basis that they were involuntary. He argued that he did not understand the meaning or consequences of his confession because of his low mental capabilities and also that the officer used improper tactics during the interview.

The District Court denied Campbell’s motion to suppress. It found that Officer Sanders’ testimony regarding what happened during the interview was more credible than Campbell’s and determined, on that basis, that no improper police tactics were used during the interview. The court also found that, although Campbell did have a low intelligence quotient (I.Q.), his confession was made voluntarily. The District Court noted that Campbell had no problems hearing and responding to questions when he testified and that his responses were coherent. The court also found that Campbell exhibited the ability to recall past events and that his vocabulary was “greater than he was willing to admit.”

When a defendant moves to suppress a confession on the basis that it was involuntarily given, the prosecution must prove by a preponderance of the evidence that the confession was voluntary. Section 46-13-301, MCA. This Court reviews a district court’s findings of fact on a motion to suppress to determine whether those findings are clearly erroneous. State v. Loh (1996), 275 Mont. 460, 474-75, 914 P.2d 592, 601. “A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if this Court has a definite or firm conviction that the district court committed a mistake.” Loh, 914 P.2d at 601 (citation omitted). It is within the province of the trial court to determine the credibility of witnesses and the weight to be given their testimony during a hearing on a motion to suppress and we do not review those determinations. State v. Gould (1985), 216 Mont. 455, 466, 704 P.2d 20, 27-28 (quoting State v. Grimestad (1979), 183 Mont. 29, 37, 598 P.2d 198, 203).

The voluntariness of a confession is a question of fact which must take into account the totality of the circumstances under which the confession was made. Loh, 914 P.2d at 601. The totality of the circumstances includes, but is not limited to, the defendant’s age and level of education; the interrogation technique used by the police; whether the defendant was advised of his or her Miranda rights; the defendant’s prior experience with the criminal justice system; the defendant’s background and experience; and the defendant’s demeanor, coherence, articulateness, and capacity to make full use of his or her faculties. Loh, 914 P.2d at 601-602.

In the instant case, both Officer Sanders’ testimony and other evidence regarding the totality of the circumstances in which Campbell’s confession was made support the District Court’s finding that the confession was voluntary and, therefore, that the State had met its burden under § 46-13-301, MCA. Campbell was 22 years old when interviewed by Officer Sanders; he had completed the tenth grade with the help of special education classes and subsequently received his GED. Campbell’s full-scale I.Q. is 81, which is less than what is considered the normal range, but is not so low as to constitute mental retardation.

Campbell arrived at the LPD with his mother at approximately 6:00 in the evening and was taken to an interview room by Officer Sanders. Officer Sanders told Campbell that he was not under arrest, that he could leave at any time and that he did not have to answer any questions. The officer then began to read a Miranda rights form but was interrupted by other business. He asked Campbell to remain in the interview room until he returned, at which time he resumed reading the Miranda rights form. Officer Sanders testified — and the rights form indicated — that Campbell signed the statement of rights form in the space indicating that he understood his rights; Campbell also signed the form in the space which indicated that he had read the statement of rights, understood what his rights were, and was voluntarily waiving his right to a lawyer and his right to remain silent. Both signatures were witnessed by Officer Sanders. According to the officer, Campbell also verbally stated that he understood the statement of rights.

At that point, Officer Sanders began to question Campbell regarding whether he knew the three girls and their mother. Campbell responded that he did know them and that he had babysat the girls. Officer Sanders then told Campbell that an investigation was under way regarding incidents of sexual abuse against the girls and that the investigation indicated that Campbell might be involved. Campbell initially denied having any sexual contact with the girls but, as the interview progressed, he admitted that he had sexual intercourse with the two older girls and sexual contact with the youngest one. During the interview, Campbell described various incidents that occurred with each of the girls and how the girls reacted.

After Campbell made these disclosures, Officer Sanders asked him if he would make a written statement outlining what he had said during the interview. Officer Sanders brought out a form and explained to Campbell that it was a voluntary statement form. The officer testified that he read the form, including another statement of rights, to Campbell and explained that he did not have to make a statement. Campbell then filled in his name and the date, time, and location of the interview, and wrote out a statement confessing to sexually abusing the girls.

Officer Sanders testified that he did not threaten Campbell during the interview or otherwise try to intimidate Campbell into confessing, and that he made no promises to Campbell regarding leniency from either the prosecution or the court if Campbell confessed. The officer stated that Campbell appeared to understand his rights, was able to converse coherently and never indicated that he wished to stop the interview or leave the room. Officer Sanders stated that the LPD had a policy of not taping interviews by audio or video means because it usually makes the interviewee nervous and less likely to talk openly.

Campbell’s version of the interview differed markedly. He testified that Officer Sanders was threatening during the interview, yelled at him repeatedly, and promised to make it easy for him with the county attorney if he confessed. Campbell also testified that Officer Sanders told him what to write in the confession and even told him how to spell some of the words. Although he agreed that he signed the Miranda rights form, Campbell maintained that Officer Sanders did not finish reading the statement of rights to him after the interruption and that he did not understand his rights or realize that he could terminate the interview. He also asserted that he did not have his glasses with him at the interview and could not read the statement of rights and voluntary statement forms; on cross-examination, however, he testified that he had been without his glasses for approximately two years prior to the interview and could drive his car without his glasses.

Campbell contends that we must view Officer Sanders’ testimony with suspicion and that his own testimony was sufficient to preclude the State from meeting its statutory burden of establishing that his confession was voluntary by a preponderance of the evidence. We disagree.

As discussed above, the District Court accepted Officer Sanders’ testimony regarding the interview. Credibility determinations regarding witnesses who testify on a motion to suppress a confession are solely within the province of the trial court. Gould, 704 P.2d at 27-28. Moreover, the preponderance of the evidence standard required by § 46-13-301, MCA, is for the trial court — not this Court — to determine. In making that determination, the trial court assesses credibility and weighs contradictory evidence; we do not review such matters. Gould, 704 P.2d at 28. Campbell also urges that, even if his version of the interview were discounted entirely, it is “doubtful” that he understood his Miranda rights and the ramifications of signing the rights form. The extent of Campbell’s understanding goes directly to whether his confession was voluntary and voluntariness is the central question of fact to be determined by the trial court under the totality of the circumstances test. See Loh, 914 P.2d at 601. Here, the District Court weighed the evidence, assessed the credibility of Campbell and Officer Sanders and found that the confession was voluntary.

We conclude that substantial evidence regarding the totality of the circumstances surrounding Campbell’s confession supports the District Court’s finding that Campbell’s confession was voluntary, and that finding is not otherwise clearly erroneous. We hold, therefore, that the District Court did not err in denying Campbell’s motion to suppress his confession.

2. Was Campbell’s confession supported by independent corroborating evidence?

Campbell argues that his extrajudicial confession was not supported by independent corroborating evidence and, therefore, that his conviction of the offenses of sexual intercourse without consent and sexual assault cannot stand; the only authority to which he cites is Montana Criminal Jury Instruction 1-018. Neither the instruction nor the applicable statute supports his position.

In pertinent part, the District Court instructed the jury as follows regarding admissions and confessions:

A confession, as applied in criminal law, is a statement by a person made after the offense was committed that he committed or participated in the commission of a crime. An admission is a statement made by the accused, direct or implied, of facts pertinent to the issue and tending in connection with proof of other facts to prove his guilt. A conviction cannot be based on an admission or confession alone.

(Emphasis added.) The instruction was patterned on Montana Criminal Jury Instruction 1-018.

Campbell contends that, absent his confession, there was “absolutely no evidence to connect [him] to the commission of those offenses other than the fact that he babysat L.D., A.D. andM.M., at the request of their mother....” He apparently argues in this regard that the State did not present “proof of other facts” regarding the offenses of sexual intercourse without consent against L.D. and A.D. and sexual assault against M.M. as required by the instruction.

Other statements in Campbell’s briefs, as well as evidence of record, belie his contention in this regard. Campbell admits that evidence indicates that the offenses with which he was charged were committed. Further, he admits that, having babysat the children, he had the opportunity to commit the offenses. Thus, the record contains “proof of other facts” which, with his admissions and confession, tend to prove his guilt. The language of the instruction requires no more and Campbell cites to no authority suggesting otherwise.

Moreover, the law relating to independent corroborating evidence is contained in § 46-16-215, MCA. Section 46-16-215, MCA, provides that “[bjefore an extrajudicial confession of the defendant to the crime charged may be admitted into evidence, the prosecution shall introduce independent evidence tending to establish the commission of the crime charged.” The plain language of the statute requires only that the prosecution present independent evidence tending to establish that the crime was committed, not that the defendant committed it. Such independent evidence was presented here.

Dr. Maynard’s videotaped deposition regarding her physical examination of the three girls was admitted into evidence at Campbell’s trial. Dr. Maynard testified that, upon examining L.D. and A.D., she found that each had scar tissue on the hymen which would only have resulted from direct penetration into the vaginal area; in her opinion, such direct penetration was highly unlikely to have occurred accidentally. Dr. Maynard also stated that the condition of the scar tissue indicated that there had been multiple penetrations. Regarding her examination of M.M., Dr. Maynard was unable to state conclusively whether M.M. had been sexually abused, but she did testify that there were no physical findings of any penetration of the vagina.

Marla North, a therapist specializing in the treatment of sexual abuse victims and offenders who had conducted an assessment of L.D., A.D. and M.M. at DFS’ request, also testified for the State. Ms. North testified that all three girls exhibited behaviors consistent with having been sexually abused. In addition, both L.D. and M.M. told Ms. North that they had been abused. In Ms. North’s opinion, all three girls had been sexually abused. Evidence also established, as a matter of law, that the girls were incapable of consenting to the sexual intercourse and sexual assault because of their ages and, therefore, the “without consent” element of the crimes was proven. See §§ 45-5-503, 45-5-501, and 45-5-502, MCA.

The above-referenced evidence is entirely independent of Campbell’s confession and meets the requirement of § 46-16-215, MCA, that such independent evidence tend to establish the commission of the offenses of sexual intercourse without consent against L.D. and A.D., and of sexual assault against M.M. We conclude that sufficient independent corroborating evidence supported Campbell’s confession in this case.

3. Did the District Court abuse its discretion in denying Campbell’s motion for a directed verdict of acquittal?

Campbell moved for dismissal of the charges or a directed verdict of acquittal under § 46-16-403, MCA. He contended that no evidence connected him to the commission of the offenses except for his confession, that the State failed to provide corroborating evidence for that confession and, therefore, that there was insufficient evidence to go to the jury. The District Court denied Campbell’s motion. On appeal, Campbell argues that the court should have granted the motion because, although sufficient evidence established that the offenses had been committed, no evidence other than the confession proved beyond a reasonable doubt that he committed them.

This argument is, in large part, a repackaging of Campbell’s contention in Issue 2 that his confession was not sufficiently corroborated. We rejected that contention above, concluding that the State presented sufficient independent evidence to corroborate Campbell’s confession to the offenses charged.

A trial court should grant a motion for directed verdict of acquittal only when there is no evidence whatsoever to support a guilty verdict. State v. Moore (1994), 268 Mont. 20, 64, 885 P.2d 457, 484 (citation omitted). Whether to direct a verdict of acquittal is within the trial court’s discretion and we will not disturb that court’s decision absent an abuse of discretion. Moore, 885 P.2d at 484.

Here, Campbell’s confession, together with the independent evidence that the offenses were committed and that Campbell had the opportunity to commit them, provides sufficient evidence to support a guilty verdict on the charges of sexual intercourse without consent against L.D. and A.D. and sexual assault against M.M. We conclude, therefore, that the District Court did not abuse its discretion in denying Campbell’s motion for a directed verdict of acquittal.

4. Was Campbell denied effective assistance of counsel?

Campbell argues that he did not receive the effective assistance of trial counsel guaranteed by the Sixth Amendment to the United States Constitution. A defendant seeking to reverse a judgment on the basis of ineffective assistance of counsel bears a heavy burden. State v. Baker (1995), 272 Mont. 273, 282, 901 P.2d 54,59, cert, denied, _ U.S. _, 116 S.Ct. 940, 133 L.Ed.2d 865 (1996).

We apply the two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, in evaluating a claim of ineffective assistance of counsel. Baker, 901 P.2d at 59. The first Strickland prong requires a defendant to establish that counsel’s performance was deficient pursuant to the “reasonably effective assistance” test; if counsel acted within the range of competence demanded of attorneys in criminal cases, counsel’s performance was not deficient. Baker, 901 P.2d at 59. Moreover, judicial scrutiny of counsel’s actions must be highly deferential and counsel’s performance is strongly presumed to fall within the wide range of reasonable professional assistance. Kills on Top v. State (1995), 273 Mont. 32, 49, 901 P.2d 1368, 1379 (citing Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065).

The second Strickland prong requires a defendant to establish that the deficientperformanceprejudicedhim and deprivedhim of afair trial. Baker, 901 P.2d at 59. Prejudice is evaluated by whether a reasonable probability exists that, but for the deficient performance, the outcome of the trial would have been different. Baker, 901 P.2d at 59. A defendant must establish both deficient performance and prejudice to prevail on a claim of ineffective assistance of counsel, and this Court will not second-guess trial tactics and strategy. Baker, 901 P.2d at 59.

Campbell contends that trial counsel’s performance was deficient in failing to conduct an independent investigation regarding the offenses; in failing to obtain a psychological evaluation to establish that Campbell was unfit to stand trial; and in failing to object to having Marla North, who had evaluated the victims of the offenses, conduct his presentence sexual offender evaluation. He asserts that these deficiencies in counsel’s performance prejudiced him and deprived him of a fair trial. We address Campbell’s contentions in turn.

a. Independent Investigation

We observe that nothing of record before us relates to whether counsel independently investigated the offenses with which Campbell was charged and, if so, the extent of any such investigation. “[A]llegations of ineffective assistance of counsel which are based on facts which cannot be documented from the record in the underlying case must be raised by petition for post-conviction relief.” State v. Bromgard (1995), 273 Mont. 20, 23, 901 P.2d 611, 613 (citing State v. Courchene (1992), 256 Mont. 381, 847 P.2d 271). Thus, Campbell’s claim that his counsel did not conduct an independent investigation cannot be raised on direct appeal and is not properly before us.

b. Psychological Evaluation

Campbell’s argument regarding his counsel’s failure to obtain a psychological evaluation appears to be a composite of two different contentions, neither of which is clearly developed or supported by authority. He argues first that counsel failed to assert his lack of mental capacity to formulate the requisite “knowingly or purposely” mental state element of the offenses.

The record is clear that neither lack of mental capacity nor mental disease or defect was asserted in response, or as a defense, to the crimes with which Campbell was charged. The record is equally clear, however, that counsel made an affirmative decision not to argue that Campbell did not have the requisite mental state or mental capacity to commit the offenses; indeed, counsel told the jury that Campbell’s low I.Q. did not mean that he was not capable of committing the crimes charged. Counsel’s strategy in this case is reflected in his additional statement to the jury that the testimony would show that Campbell’s low I.Q. made him “susceptible to influence by Officer Sanders to present a false statement.” In other words, faced with the admission of Campbell’s confession, counsel sought to persuade the jury that the confession was false and resulted from Campbell’s inability to withstand Officer Sanders’ influence.

As discussed above, we do not second-guess counsel's trial tactics and strategy. See Baker, 901 P.2d at 59. We conclude, therefore, that Campbell has not established that counsel’s performance was deficient in this regard.

Campbell also argues that his counsel’s failure to obtain a psychological evaluation to determine his competence and fitness to stand trial constituted deficient performance. The record reflects that Campbell’s counsel moved for an examination of Campbell’s mental condition pursuant to § 46-14-202, MCA, and requested that Yellowstone Psychological Services be appointed to perform the examination by virtue of its expertise regarding alleged sex offenders. By Minute Entry, the District Court ordered both a § 46-14-202, MCA, examination and a sex offender evaluation. The court’s subsequent written order varied somewhat from the Minute Entry order. In its written order, the court appointed Yellowstone Psychological Services to perform the sex offender evaluation at the expense of Campbell’s family, as agreed, and observed that “[s]hould it be deemed necessary that further evaluation regarding the defendant’s competency is required, such shall be ordered.”

At the end of the later hearing on Campbell’s motion to suppress, the court inquired about whether the evaluation was to be conducted. Counsel responded that Campbell’s mother, who had retained — and was paying — him, could not afford the evaluation. Counsel also stated his uncertainty regarding whether he could establish that Campbell was indigent so as to have the evaluation performed without charge to Campbell under § 46-14-202(4), MCA. The record is silent regarding the psychological evaluation thereafter.

As set forth above, a strong presumption exists that counsel’s conduct falls within a wide range of reasonable professional assistance and the burden is on the defendant to show that counsel’s performance was deficient. See Kills on Top, 901 P.2d at 1379; Baker, 901 P.2d at 59. While it is arguable that counsel should have moved for a determination of Campbell’s indigency in order to obtain a psychological evaluation at state or county expense, it also is possible that counsel merely decided that such an evaluation was not likely to be helpful to Campbell. Such a decision, if made or considered, may have been buttressed by the District Court’s determinations in denying Campbell’s motion to suppress that, notwithstanding his low I.Q., Campbell made the confession voluntarily and did not have difficulty in testifying on that motion.

We need not speculate, however, on whether counsel’s failure to obtain a psychological evaluation of Campbell was a strategic or tactical decision rather than an act outside the wide range of reasonable professional assistance. Assuming arguendo that this failure constituted deficient performance, Campbell still must establish that the deficiency prejudiced him and deprived him of a fair trial. See Baker, 901 P.2d at 59. In other words, does a reasonable probability exist that, had the psychological evaluation been obtained, the outcome of Campbell’s trial would have been different? See Baker, 901 P.2d at 59.

In this regard, Campbell points only to the following testimony by his mother at the suppression hearing:

Q: In terms of raising your son, wasn’t it true that he had a certain diagnosis placed on him about this time of schizophrenia?
A: Yes.
Q: Do you recall that?
A: I can’t even remember the word. It’s so vague.

This testimony is sketchy at best; it provides neither a clear time frame for the question nor a clear answer that a diagnosis of schizophrenia actually was made. Furthermore, Campbell cites to no authority under which any and all diagnoses of schizophrenia result in a lack of mental capacity or a mental disease or defect as those terms are used in the law.

In addition, we observe that Campbell’s counsel made a motion on Campbell’s behalf regarding diminished capacity at the sentencing hearing. Marla North, who had performed Campbell’s presentence sex offender evaluation, filed a report and testified. Apparently based on counsel’s motion and Ms. North’s evidence, the District Court determined, for sentencing purposes, that Campbell’s mental capacity was significantly impaired at the time he committed the offenses; it did so in the context of deciding not to apply the mandatory minimum sentence ordinarily required upon conviction for the offense of sexual intercourse without consent against a victim ‘less than 16 years old [when] the offender is 3 or more years older than the victim ....’’See § 45-5-503(3)(a), MCA. Pursuant to § 46-18-222(2), MCA, mandatory minimum sentences do not apply if

the defendant’s mental capacity, at the time of the commission of the offense for which the defendant is to be sentenced, was significantly impaired, although not so impaired as to constitute a defense to the prosecution.

Nothing in this additional evidence of record regarding Campbell’s mental capacity supports his conclusory allegation that the absence of a psychological evaluation prejudiced him and prevented him from having a fair trial. See Baker, 901 P.2d at 59. Nor does anything of record establish a reasonable probability that a psychological evaluation would have produced a different result in this case. See Baker, 901 P.2d at 59. Therefore, we conclude that Campbell has not established prejudice with regard to his counsel’s failure to obtain a psychological evaluation.

c. Presentence Sex Offender Evaluation

Campbell’s final allegation of ineffective assistance of counsel ■ relates to counsel’s failure to object to Ms. North, who had evaluated the victims of the offenses and testified for the State at trial, performing the presentence sex offender evaluation.

As a general rule, defense counsel’s use of objections lies within his or her discretion; in the context of an ineffective assistance claim, a “failure to object must, in addition to being error, also prejudice the defendant.” State v. Hurlbert (1988), 232 Mont. 115, 120, 756 P.2d 1110, 1113 (citations omitted).

The record reflects that the District Court ordered Campbell’s counsel to make the arrangements for the presentence sex offender evaluation and that counsel chose to have Ms. North perform the evaluation. We need not speculate regarding whether counsel’s affirmative choice could have constituted deficient performance under the first Strickland prong, because it is clear that Campbell has not established the prejudice prong of the Strickland test.

Campbell alleges that “it seems reasonable to assume that [Ms. North’s] objectivity in conducting the evaluation of the defendant might well have been compromised.” At best, this allegation — which is premised on both an assumption and a “might have” — can be characterized as conclusory, and conclusory allegations are insufficient to meet a defendant’s burden in establishing ineffective assistance of counsel. See Hurlbert, 756 P.2d at 1113. Moreover, as discussed above, the District Court apparently relied on Ms. North’s confidential report and testimony at the sentencing hearing in excepting Campbell from the mandatory minimum sentences which ordinarily would have attached upon his conviction of sexual intercourse without consent against L.D. and A.D. Thus, we conclude that Campbell has not established that having Ms. North perform the presentence sex offender evaluation prejudiced him.

In summary, we decline to address Campbell’s claim of ineffective assistance based on his counsel's failure to independently investigate the offenses with which he was charged. With regard to Campbell’s ineffective assistance allegations relating to mental state and mental capacity, and counsel's failure to object to Ms. North performing the presentence sex offender evaluation, we conclude that Campbell has not met his burden under the Strickland test. As to these latter claims, therefore, we hold that Campbell was not denied effective assistance of counsel.

5. Did the District Cotut err regarding either its order for a psychological examination or a determination that Campbell was indigent?

Campbell advances several abbreviated, and largely unsupported, arguments asserting error by the District Court, rather than by counsel, relating to the ordered psychological examination and his alleged indigency. We address each in turn.

We observe, first, that the issue statement under which the arguments referenced immediately above are set forth states that the trial corut erred in failing to order psychological evaluations prior to trial. This “issue statement” is not developed and, in any event, mischaracterizes the record. As discussed above in issue 4b, the District Corut did, by Minute Entry, order both a § 46-14-202, MCA, examination and a sex offender evaluation; its subsequent written order was specifically for the sex offender evaluation, but indicated that a § 46-14-202, MCA, examination would be ordered if required. Moreover, Campbell concedes that the court ordered the requested evaluation.

Next, Campbell argues that, in light of the District Court’s order for an evaluation of his mental competency, the court erred in failing to ensure that its order was carried out. He relies on §§ 46-14-202(1) and (4), MCA, and State v. Bartlett (1995), 271 Mont. 429, 898 P.2d 98.

Section 46-14-202(1), MCA, provides that, if a defendant or defense counsel files a written motion requesting an examination or if the issue of a defendant’s fitness to proceed is raised by the court, the prosecution or defense counsel, the district court “shall appoint” a qualified professional to examine and report on the defendant’s mental condition. The language of the statute is mandatory on its face and we have so held. See Bartlett, 898 P.2d at 100. We reversed the trial court’s denial of a § 46-14-202, MCA, motion for examination in Bartlett, observing that the statute, which originally had vested a measure of discretion in the trial court regarding the grant or denial of such a motion, is now compulsory. Bartlett, 898 P.2d at 100.

In the present case, Campbell’s counsel filed a written motion for an examination pursuant to § 46-14-202, MCA, and the District Court granted the motion, as required by the statute and Bartlett. In arguing that the court erred “in failing to follow up on its own order,” Campbell seeks to place an affirmative duty on the trial court to “enforce” the order granting defense counsel’s motion. Nothing in § 46-14-202(1), MCA, or Bartlett imposes such an obligation.

Campbell argues separately that the District Court was required, sua sponte, to determine that Campbell was indigent for purposes of obtaining the examination without cost to Campbell or his family. He relies on the portion of § 46-14-202(4), MCA, which provides that

[i]f the defendant is indigent..., the cost of the examination must be paid by the county or the state, or both, according to procedures established under 3-5-902(1).

Nothing in § 46-14-202(4), MCA, requires, or even suggests, that a district court must sua sponte raise and determine the question of a defendant’s indigency upon a motion for examination thereunder. Nor does Campbell cite to any authority imposing such a requirement.

Moreover, in the present case, no showing was made that Campbell was indigent for purposes of obtaining the examination at county or state expense under § 46-14-202(4), MCA. No determination of indigency had been requested or made for purposes of court-appointed counsel under § 46-8-111, MCA, and, indeed, the motion for examination pursuant to § 46-14-202(1), MCA, specifically was premised on payment by Campbell or his mother. We cannot ascribe error to a district court for failing to take an action neither requested by the party nor required by the law.

We conclude that the District Court did not err in failing to enforce its order for a psychological examination. We further conclude that the court did not err in failing to determine, sua sponte, that Campbell was indigent for purposes of that examination.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, LEAPHART and ERDMANN concur.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE JUSTICE NELSON

license: Public Domain

text:
    STATE OF MONTANA, ON THE RELATION OF FLOYD LEE LOVINS, Petitioner and Appellant, v. TOOLE COUNTY, MONTANA, and ALLAN J. UNDERDAL, DENIS FREELAND, and ALAN RYAN, Toole County Commissioners, Respondents and Respondents.
    No. 96-359.
    Submitted on Briefs July 30, 1996.
    Decided September 12, 1996.
    53 St.Rep. 887.
    278 Mont. 253.
    924 P.2d 693.

      For Appellant: William Conklin, Conklin, Nybo, Leveque & Murphy, P.C., Great Falls.
    For Respondents: Ward Shanahan and Ronald F. Waterman, Gough, Shanahan, Johnson & Waterman, Helena; Merle Raph, County Attorney, Shelby.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Floyd Lee Lovins appeals an order of the Ninth Judicial District Court, Toole County, granting summary judgment to Toole County and the Toole County Commissioners and imposing Rule 11, M.R.Civ.R, sanctions upon Lovins. By order dated July 30,1996, this Court affirmed the District Court’s judgment but reversed the imposition of sanctions, stating that a full opinion would follow.

We restate the issues as:

1. Whether summary judgment must be reversed because supporting affidavits filed with the court were not served upon the opposing party.

2. Whether the District Court erred in granting summary judgment.

3. Whether the court’s sanction was an abuse of discretion.

Floyd Lee Lovins, acting pro se, filed this action in the District Court in April 1996. He asked the court to stay proceedings by which the Toole County Commissioners proposed to borrow $1,700,000 through the Montana Health Facility Authority to construct an addition to Toole County Hospital and Nursing Home. The proposed addition would house administrative facilities and an outpatient and physicians’ clinic. Lovins claimed that Toole County could not borrow the money without first submitting the question to a vote of county electors as required under § 7-7-2402, MCA.

The defendants moved for summary judgment on the basis of res judicata or collateral estoppel. They asked the court to take judicial notice of a previous action, Lovins v. Toole County, Ninth Judicial District Court Cause No. DV-95-009. Lovins had filed that case a year before to prevent a proposed lease arrangement under which a private nonprofit corporation would take over operation of the hospital. In that action, the court granted Lovins a writ of prohibition in August 1995.

In the present case, the District Court ruled that res judicata barred the action and that Lovins was estopped from proceeding further on this issue because he had unsuccessfully made the same legal arguments in the 1995 case. The court also ruled that § 7-6-2512(2), MCA, allows Toole County to agree to levy the tax and pledge it to payment of bonds issued under § 7-34-2411, MCA; and that § 7-6-2512(2), MCA, specifically provides that pledge of these taxes to secure bond payment cannot be used to cause the bonds to be considered indebtedness of the county for any purpose.

The court further found that Lovins had unreasonably and vexatiously multiplied the proceedings. As a sanction pursuant to Rule 11, M.R.Civ.P., and to discourage abusive litigation tactics, the court prohibited Lovins from commencing or filing any further litigation in Toole County for the next four years as a pro se litigant without first obtaining permission from a district judge.

Lovins appealed to this Court. The defendants asked, without objection by Lovins, that this appeal be considered on an expedited basis. They pointed out that the normal appellate review schedule would delay the Court’s decision beyond this year’s deadline for funding requests through the Montana Health Facility Authority. On July 30,1996, the Court issued an order affirming the District Court’s grant of summary judgment but reversing the imposition of Rule 11 sanctions and remanding “for further proceedings pursuant to our opinion in the case.”

ISSUE 1

Must summary judgment be reversed because supporting affidavits filed with the court were not served upon the opposing party?

Rule 56, M.R.Civ.R, allows a party to file affidavits in support of a motion for summary judgment. While the Rule does not specifi,-cally so state, logic and fairness dictate that affidavits so filed shall also be served on the opposing party. We take this opportunity to note for the Bench and Bar that not only is service of affidavits in support or opposition to motions for summary judgment or other substantive motions logical and fair, but also that failure to serve such affidavits may in some circumstances raise an issue of due process.

In this case, the defendants filed the affidavits of Gary Zadick and Allan Underdal in support of their motion for summary judgment, but they did not serve copies of those affidavits upon Lovins prior to the hearing on their motion. The record shows, however, that Lovins failed to preserve his objections to the court’s alleged reliance upon the affidavits of Zadick and Underdal. Lovins raised the matter of failure to timely serve the Zadick and Underdal affidavits only in his own affidavit which was filed with his initial brief on appeal. We will not hold a district court in error for an omission which it was not given an opportunity to correct.

Moreover, a third affidavit, of Toole County Commissioner Denis Freeland, was filed with the summary judgment motion, so that the information contained in the two challenged affidavits was already before the court in another form. In his affidavit, Freeland attested to the matters discussed in the District Court’s summary judgment order. The court’s summary judgment order stated that “an affidavit” had been submitted in connection with the motion for summary judgment.

In its summary judgment order, the District Court also discussed the Resolution by which Toole County proposed the 1996 bond issue. A copy of that Resolution was attached to the Underdal affidavit. The court’s order stated that the bond issue as revealed in that Resolution was essentially the same as the issue involved in the 1995 action. However, the court also stated that there would not be an issue of material fact even if the bond issues were different.

Even assuming that the District Court considered the two challenged affidavits and that this issue was preserved, we conclude that no error has been demonstrated. We hold that, under the circumstances here presented, failure to serve the two supporting affidavits is not grounds for reversal.

ISSUE 2

Did the District Court err in granting summary judgment?

Our standard of review of a summary judgment is the same as that used by a district court — whether, pursuant to Rule 56(c), M.R.Civ.P., material issues of fact exist and whether the moving party is entitled to judgment as a matter of law. Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154, 156.

The District Court determined that res judicata barred Lovins from challenging the legality of the proposed bond on the ground that § 7-7-2402, MCA, requires the approval of the electors of the county. The court’s ruling was based on its taking judicial notice of Lovins’ 1995 action.

Section 7-7-2402, MCA, provides:

Election required to borrow money — exceptions. (1) Except as provided in subsection (3), the board of county commissioners may not borrow money for any of the purposes mentioned in this title or for any single purpose in an amount exceeding $500,000 without:
(a) first having submitted the question of a loan to a vote of the electors of the county; and
(b) the approval of a majority of the electors of the county.
(2) If a majority of the votes cast are in favor of the loan, then the board may make the loan, issuing bonds or otherwise as may seem best for the interests of the county.
(3) It is not necessary to submit to the electors the question of borrowing money:
(a) to refund outstanding bonds; or
(b) for the purpose of enabling any county to liquidate its indebtedness to another county incident to the creation of a new county or the change of any county boundary lines.

Lovins points out that this statute was not mentioned in his petition for relief in his 1995 lawsuit. However, as part of its decision in the 1995 action, the District Court stated that Toole County’s acquisition of over $500,000 in debt for bond repayment for construction of the clinic “would require a vote of the Toole County electorate to approve the indebtedness.”

The defendants moved to alter or amend that judgment by removing the above language from the court’s decision, in light of the then-recently enacted Ch. 520, L. 1995. That legislation, which was proposed as HB 421, amended Montana laws relating to construction of county hospitals and limitations upon bonded indebtedness of counties for such purposes. The issue was briefed by both parties.

In its order granting the motion to amend, the court gave thorough written consideration to the effect of HB 421. It stated:

When read with the inclusion of physician office buildings as part of “health care facilities” which can be funded by bonds, the amendment to Section 7-6-2512 makes it clear that the vote of the electorate is not required for approval of certain bonds to construct “health care facilities.” See HB 421, Section 4, amending Montana Code Annotated, Section 7-34-2201.

The above language clearly demonstrates that the issue was considered by the court in the 1995 case.

Lovins argues that the decision on this issue in the 1995 case was, nevertheless, mere dictum. He points out that if an issue’s consideration is not essential to the question involved in the action, then a ruling on the issue is obiter dictum which cannot be a basis for a finding of res judicata or collateral estoppel.

If issues are determined but the judgment is not dependent upon the determinations, relitigation of those issues in a subsequent action between the parties is not precluded. Such determinations have the characteristics of dicta [.]

Restatement (Second) of Judgments, § 27, cmt. h (1982).

A court’s decision on an issue which is before it and which was fully argued by counsel and deliberately considered by the court is not dictum. Bottomly v. Ford (1945), 117 Mont. 160, 167, 157 P.2d 108, 112. Here, although the election requirement issue was briefed and decided in the 1995 case, the issue was not before the court under the pleadings, nor was consideration of it necessary to resolve the case. The dispositive holding in the 1995 case was that Toole County was prohibited from entering into a proposed lease of Toole County Hospital and Nursing Home to a private nonprofit corporation. Because resolution of the election requirement issue was not necessary to resolution of the 1995 case, the court’s consideration thereof, however well-reasoned, is dictum.

Our analysis does not end there, however. We will affirm a judgment which was correct, even if it was granted for the wrong reason. Higham v. City of Red Lodge (1991), 247 Mont. 400, 402, 807 P.2d 195, 196. We therefore proceed to consider whether Toole County was required to put its hospital bonding proposal to a vote of the people.

The title of Ch. 520, L. 1995, describes the act, in part, as “clarifying that certain bonds may be issued without an election.” Section 7-34-2411, MCA, was amended as part of Ch. 520. As amended, the statute provides:

County health care facility bonds authorized. (1) Notwithstanding any limitation imposed by law upon the bonded indebtedness of a county, a county acquiring, erecting, furnishing, equipping, expanding, improving, or maintaining a health care facility under 7-8-2102 or 7-34-2201 or a boarding home under 7-34-2301 may borrow money and issue its bonds for a health care facility or a boarding home, including refunding bonds, in the form and upon the terms as it may determine, payable out of any revenue of the facility or boarding home, respectively, including revenue derived from:
(a) fees and payments for health care or boarding home services;
(b) taxes levied under 7-6-2512 or 7-34-2417 for a health care facility;
(c) grants or contributions from the federal government; or
(d) any other sources.
(2) For the security of the bonds, the county may by resolution make and enter into any covenant, agreement, or indenture and exercise any additional powers authorized to be made, entered into, or exercised by a comity, including those authorized in 7-6-2512 and this part. The sums required to pay principal and interest and to create and maintain a reserve for the bonds may be made payable from any and all revenue of the health care facility or boarding home prior to the payment of current costs of operation and maintenance of the facilities.

Section 7-34-2411, MCA (emphasis supplied). Subsection (2) was added to § 7-6-2512, MCA, as part of the same legislation:

If a county issues bonds under 7-34-2411 to finance or refinance the costs of a health care facility, the board of county commissioners may covenant to levy the tax authorized by this section during the term of the bonds, to the extent necessary, and to apply the collections of the tax to the costs of erecting, furnishing, equipping, expanding, improving, maintaining, and operating the health care facility or facilities of the county or the payment of principal of or interest on the bonds. The pledge of the taxes to the payment of the bonds may not cause the bonds to be considered indebtedness of the county for the purpose of any statutory limitation or restriction. The pledge may be made by the board only upon authorization of a majority of the electors of the county voting on the pledge at a general or special election as provided in 7-34-2414.

Section 7-6-2512(2), MCA (emphasis supplied).

Section 7-34-2414, MCA, was also amended as part of Ch. 520, to provide in relevant part:

Election required on question of issuance of bonds. (1) A county may not issue bonds to which all or a portion of the taxes levied under 7-6-2512 are pledged or to which the general tax authorized under 7-34-2418 is pledged until the question of approval of the issuance of the bonds has been submitted to the registered electors of the county at a general election or a special election called for that purpose by the governing body of the county and the majority of the electors voting on the question have voted in favor of issuing the bonds.

Section 7-34-2414(1), MCA (emphasis supplied).

The proposal involved here, as described in the notice of public hearing attached to Lovins’ complaint, the Toole County Commissioners’ Resolution to issue the bonds, and the sample bond attached thereto, was solely for a revenue bond issue. Payment of principal and interest to the bondholders is to be derived solely from revenues of the Toole County Hospital and Nursing Home, and not from Toole County taxes. This was not a proposal for general obligation bonds, for which an election would have been required under the portion of § 7-34-2414, MCA, underlined above.

Lovins points out that these statutes must be harmonized with preexisting statutes on this subject. He contends that such harmonization necessarily results in a conclusion that while the 1995 amendments abolish limitations on bonded indebtedness for county hospitals, they do not repeal the requirement that borrowing for such purposes is subject to a vote pursuant to § 7-7-2402, MCA.

We disagree. To accept Lovins’ argument would render portions of the 1995 amendments meaningless. In part, the amended statutes provide that indebtedness for repayment of health care facility bonds is not to be considered indebtedness of the county “for the pin-pose of any statutory limitation or restriction.” Section 7-6-2512(2), MCA. Certainly the § 7-7-2402, MCA, election requirement is a “statutory limitation or restriction.” As amended, § 7-34-2414, MCA, requires an election on such a bond issue only when “all or a portion of the taxes levied under 7-6-2512 are pledged or to which the general tax authorized under 7-34-2418 is pledged.” Therefore, we conclude that indebtedness for repayment of the health care facility bonds herein proposed is not to be considered indebtedness of the county for purposes of the § 7-7-2402, MCA, election requirement. Contrary to the assertions in Justice Nelson’s dissent, the present action does bring directly into issue the effect of the statutory amendments enacted as part of Ch. 520. Ch. 520 carves out an exception to the requirements set forth at § 7-7-2402, MCA, the statute relied upon by Lovins.

Any lingering ambiguity in statutory intent is erased by an examination of the legislative history of Ch. 520. In summarizing the purpose of HB 421 to the Senate Local Government Committee, its sponsor, Rep. Ewer, stated:

HB 421 would clarify that districts can borrow using the revenue bond route not subject to a vote of the people and general obligation bonds could be authorized which require a vote of the people.

Minutes of Senate Local Government Committee, Comments of Rep. Ewer, March 21, 1995, at p. 2.

We conclude that under the foregoing statutes, a vote of the electorate is not required before Toole County issues bonds for the proposed addition to the Toole County Hospital and Nursing Home. We therefore hold that the District Court did not err in granting summary judgment for the defendants.

ISSUE 3

Was the court’s sanction an abuse of discretion?

The District Court found that Lovins unreasonably and vexatiously multiplied the proceedings in his two actions concerning the hospital. The court stated that it could by “no stretch of the imagination” find that there existed a good faith argument or reasonable facts on which to base this litigation. As a sanction under Rule 11, M.R.Civ.R, the court prohibited Lovins for the next four years from commencing or filing any further litigation in Toole County as a pro se litigant without first submitting the pleadings to and obtaining permission to file from a district judge.

Rule 11, M.R.Civ.R, provides, in relevant part:

The signature of an attorney or party [on a pleading, motion, or other paper filed] constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

In applying Rule 11, this Court has stated:

Although Montana’s Rule 11 does not state that a trial court must give notice to show cause and hold a hearing before imposing Rule 11 sanctions, we hold that a trial court should do so in order to provide the party with due process. The party should be afforded sufficient time in which to prepare its case against imposition of sanctions. In addition, a trial court should specify in its judgment or order upon which pleading(s), motion(s), or other paper(s) it bases imposition of Rule 11 sanctions.

Lindey’s, Inc. v. Goodover (1994), 264 Mont. 489, 497, 872 P.2d 767, 772.

No hearing was held on the question of sanctions in this case. Lindey’s clearly requires a hearing before Rule 11 sanctions may be imposed. Because of the court’s failure to hold such a hearing, the sanction herein imposed cannot stand and is therefore reversed.

We affirm the judgment of the District Court with the exception of the imposition of sanctions.

JUSTICES HUNT, ERDMANN, LEAPHART and TRIEWEILER concur.

JUSTICE NELSON

dissenting.

In our rush to decide this case on an expedited basis we may well have made bad law on an issue of first impression. I did not join this Court’s July 30,1996 order for the reasons hereinafter set forth, and I now dissent from our decision.

At the outset, and while not the primary focus of my dissent, I find little comfort in our decision on Issue 1. Rule 5, M.R.Civ.P, clearly requires that copies of motions and supporting documents be served on the adverse party or, if represented, on his attorney. Whether Lovins, a pro se litigant in the trial court, preserved his objection or not, counsel’s failure to serve him with the affidavits supporting a motion for summary judgment that was about to be heard by the court, cannot be simply rationalized away as easily as we do, especially where, according to Lovins’ affidavit, he was sitting in the hallway outside the courtroom and the clerk’s office when the affidavits were filed May 22,1996. While acknowledging that the affidavits of Allan J. Underdal and Gary M. Zadick were not served on Lovins, we excuse that breach of Rule 5, M.R.Civ.P., on the basis that the affidavit of Denis Freeland was filed with the County’s motion for summary judgment on May 6, 1996, and therefore, presumably, was served on Lovins. Even assuming, arguendo, that Freeland’s affidavit was served on Lovins, Freeland’s affidavit addresses different matters than either Underdal’s or Zadick’s affidavits. Further, the 1996 bond resolution which figured into the County’s summary judgment argument was only attached to Underdal’s affidavit and was not otherwise a part of the record. The court’s reference to the 1996 bond resolution during oral argument did not cure counsel’s failure to comply with the clear mandate of Rule 5, M.R.Civ.R See e.g., Kenner v. Moran (1994), 263 Mont. 368, 376, 868 P.2d 620, 625, wherein we set aside the grant of summary judgment where the movant did not give the opposing pro se litigant the ten-day notice required under Rule 56(a), M.R.Civ.P.

Secondly, in view of my position on Issue 2, I would, likewise, vacate the District Court’s Rule 11, M.R.Civ.P., sanctions imposed against Lovins. There was no basis for sanctions. As we have concluded, Lovins’ second suit was not barred by res judicata or collateral estoppel. Moreover, on the merits, I believe that the District Court erred in granting summary judgment to the County. The fact that sanctions were imposed without a hearing serves further to emphasize the trial court’s error.

With that said, and with regard to the majority’s discussion of the bond issue, I submit that the trial court and, now, this Court have ruled on an issue that was never properly joined in the underlying litigation. Lovins’ 1996 suit against Toole County was to prevent the County from borrowing $1.7 million from the Montana Health Facility Authority (MHFA) pursuant to a notice published on April 25, 1996, wherein the MHFA stated its intention to issue $5.220 million in bonds under Title 90, Chapter 7, parts 1, 2 and 3, MCA, with the proceeds to fund, among other things, the loan to Toole County. Lovins contended that the County was prohibited by § 7-7-2402, MCA, from borrowing the $1.7 million without a vote of the electors. That is plainly all his suit was about.

In that respect, § 7-7-2402, MCA, is clear that, with two exceptions not at issue here, the board of county commissioners may not borrow money for any of the purposes mentioned in Title 7 of the Montana Code (which by definition includes the construction, furnishing, operation and maintenance of health care facilities, § 7-8-2102 and 7-34-2201, MCA, and boarding homes, § 7-34-2301, MCA) or for any single purpose in an amount exceeding $500,000 without first obtaining a favorable vote of the majority of electors of the county. If the electors approve the loan, then the county can make the loan, “issuing bonds or otherwise....”

The District Court order granting summary judgment and our decision, however, focus not on § 7-7-2402, MCA, but on § 7-34-2411, MCA, and conclude that the provisions of that latter section along with §§ 7-6-2512(2) and 7-34-2414, MCA, obviate the necessity for any vote on the issuance of bonds by the County for the proposed addition to the Toole County Hospital.

The problem with this approach is that over the course of two different lawsuits the issue of the applicability and proper interpretation of §§ 7-34-2411, MCA, et. seq., regarding Toole County’s financing of its proposed hospital addition was never properly joined in Lovins’ litigation. Rather, in both Lovins’ 1995 and 1996 suits, the interpretations of §§ 7-34-2411, MCA, et. seq., which we uphold here, were inserted gratuitously, as dicta, by the district courts.

In his 1995 suit, Lovins sued to stop the County from unlawfully leasing the hospital facility, and he won on that issue. Lovins never sued to stop the County from issuing revenue bonds. Properly, we have concluded that the trial court’s subsequent opinion interpreting the HB 421 amendments was dictum.

Lovins’ 1996 suit was filed to stop the County from borrowing $1.7 million which MHFA was going to loan to Toole County from the proceeds of the bonds it (MHFA) was going to issue. Lovins simply contended that § 7-7-2402, MCA, prohibited that loan without a vote. The proposal described in the notice attached to Lovins’ 1996 complaint did not address Toole County issuing revenue bonds under §§ 7-34-2411, et. seq. Rather, that notice involved MHFA issuing bonds under authority of a completely different Title and Chapter of the Montana Code and its then loaning $1.7 million to Toole County. How Toole County was going to secure or pay for that loan was not the issue raised in Lovins’ 1996 suit.

Moreover, the County’s primary defense of the 1996 suit was that Lovins’ action was barred by the res judicata and collateral estoppel effect of the District Court’s 1995 opinion — the same opinion which we have now concluded was dictum. In line with that defense the District Court granted summary judgment on the basis of res judicata and collateral estoppel. The court could have and should have simply stopped at that point. However, committing the same mistake as did the trial court in the 1995 suit, the District Court similarly went farther and gratuitously added a one paragraph ruling on the applicability of the HB 421 amendments. If the trial court’s opinion on the HB 421 amendments was dictum in the 1995 suit, then on the same rationale, the District Court’s ruling on that same issue in the 1996 suit should be dictum as well. In neither the 1995 nor the 1996 suit was the court’s ruling on the HB 421 amendments essential to dispose of Lovins’ complaints.

We have now brought this error full circle. We have issued a substantive opinion on a legal question that was addressed as nothing more than dicta in two different district court decisions. As a consequence, I suggest that our decision is of little precedential value. The courts have saved Toole County’s hospital addition and have allowed the Comity to borrow the $1.7 million from MHFA. However, the courts have accomplished that at the expense of what may very well be the flawed interpretation of statutes not at issue and, perhaps, the loss of the right of the electors of Toole County — who, if experience is any teacher, may likely have to pick up the tab at some point in time — to vote on this important issue. So much for “expedited” decisions. I can only hope that before bond counsel in some future offering relies on our decision here, this whole issue will be thoroughly reexamined and, if necessary, re-litigated.

As to the merits of our decision on Issue 2, Lovins, who on appeal is represented by counsel, has advanced well-reasoned, legitimate arguments that are not analyzed in our opinion. Lovins contends that the 1995 amendments to §§ 7-6-2512(2), 7-34-2411, and 7-34-2414, MCA, contained in HB 421 do not address county election requirements for borrowing. Rather, Lovins maintains that language in those sections underscored in the majority opinion refers to the limitations on the amount of bonded indebtedness to which a county may obligate itself under § 7-7-2203, MCA, and similarly worded statutes but does not purport to exempt such bonds from the limitation on county indebtedness set forth in § 7-7-2101, MCA. Moreover, Lovins argues that the amendments do not make any reference to the requirement of § 7-7-2402, MCA, referred to above.

Lovins concludes that reading together the various statutes, including § 7-6-2512(2), MCA, demonstrates two different election requirements for county projects. If a health care facility bond issue is to be supported or financed by general tax support, then § 7-6-2512(2), MCA, requires an election regardless of the size of the bond obligation. On the other hand, any loan to a county exceeding $500,000 for a single purpose requires a vote of the electors pursuant to § 7-7-2402, MCA, whether or not bonds are issued to finance the project. Neither election scheme is dependent upon or related to the other. Lovins maintains there is nothing in HB 421 that indicates that the general requirement for election approval of county loans exceeding $500,000 was contemplated in that Act.

Given the cursory manner in which we have treated this complicated issue, I do not know who is correct. I am not, however, persuaded by anything that I have read in the briefs or in our decision that Lovins may not well be right. That aside, and more importantly, we err in attempting to interpret, as a matter of first impression, statutory language where the statutes involved were never properly at issue in the trial court. I am all the more concerned with that error because the precedential effect of our decision will sanction local governments to incur literally millions of dollars of debt, without a vote, where, arguably, there is a statutory requirement for an election.

I dissent.

JUSTICE GRAY joins in the foregoing dissent.

      . The County’s counsel on appeal is not the same counsel that represented the County-before the trial court.

      . All statutory references are to the 1995 version of the Montana Code Annotated.


author: JUSTICE ERDMANN

text:
    SAMUEL J. GRENZ, Plaintiff and Appellant, v. FIRE AND CASUALTY OF CONNECTICUT, Defendant and Respondent.
    No. 95-471.
    Submitted on Briefs July 25, 1996.
    Rehearing Denied October 10, 1996.
    Decided September 17, 1996.
    53 St.Rep. 898.
    278 Mont. 268.
    924 P.2d 264.

      For Appellant: Samuel J. Grenz, Pro Se, Stevensville.
    For Respondent: Joe C. Maynard and David M. Wagner, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Samuel J. Grenz appeals from an order of the Workers’ Compensation Court which affirmed the Montana Department of Labor and Industry’s decision that Grenz’s occupational disease claim was barred by the statute of limitations as set forth in § 39-72-403, MCA (1985). We affirm.

The issue on appeal is whether the Workers’ Compensation Court erred in concluding that Grenz’s occupational disease claim, filed in 1992, was barred by the two-year statute of limitations contained in § 39-72-403, MCA (1985).

FACTS

On August 22, 1984, Grenz injured his right elbow while working on a steel railing for his employer, American Stud Company. Within a week of his injury Grenz filed a claim for workers’ compensation benefits and sought treatment from Dr. Ken McFadden. The insurer, Fire & Casualty of Connecticut (F&C), accepted liability for the right elbow injury and paid compensation and medical benefits.

On December 31, 1984, and again on January 29, 1985, Grenz consulted his treating physician, Dr. Ronald A. Miller, concerning his discomfort in both elbows, wrists, hands, and his cervical, thoracic, and lumbar spine. Dr. Miller diagnosed Grenz with degenerative arthritis of his fingers, wrists, and shoulders, and recurrent bursitis and epicondylitis of his elbows. On November 18, 1985, Dr. Miller provided Grenz with a note for his employer which recommended that Grenz refrain from lifting or other physical activity. Grenz did not work after November 18, 1985.

Grenz’s 1984 injury “began a seemingly endless stream of litigation that has resulted in multiple appeals to this Court and innumerable proceedings in the Workers’ Compensation Court.” Grenz v. Fire and Casualty of Connecticut (1993), 260 Mont. 60, 61, 857 P.2d 730, 731 0Grenz III). We need not, however, address each of Grenz’s prior claims for the purposes of this opinion.

In 1991 this Court determined that Grenz’s psychological problems and his degenerative condition were not causally related to his 1984 elbow injury. Grenz v. Fire and Casualty of Connecticut (1991), 250 Mont. 373, 820 P.2d 742 (Grenz I)- Following the final adjudication of his right elbow injury claim in 1991, Grenz then filed two claims with respect to his degenerative arthritis. In 1993 this Court determined that his first claim alleging micro-trauma was time barred. Grenz III, 857 P.2d at 734.

We now address Grenz’s second claim. This claim is an Occupational Disease (OD) claim in which Grenz is seeking benefits for the degenerative arthritis in his hands, wrists, shoulders, elbows, ankles, and knees. He also claims certain psychological and emotional disorders are causally related to his degenerative joint disease. The Department initially took no action regarding this claim as Grenz was actively litigating his micro-trauma claim. On August 20, 1993, three days after this Court issued Grenz III, F&C filed a motion with the Department seeking dismissal of the OD claim as being similarly time barred by the statute of limitations.

An evidentiary hearing was held on September 19-20, 1994. The hearing examiner entered his findings of fact and conclusions of law on December 30, 1994. He found that at least as early as 1985 Grenz knew he was suffering from degenerative arthritis and that he felt the cause of his problems was his employment. The examiner concluded Grenz knew or should have known at least as early as 1988, if not earlier, that his condition possibly met the criteria for an OD claim, and therefore dismissed the claim which was filed in 1992 as being untimely.

Grenz appealed to the Workers’ Compensation Court which affirmed the decision of the hearing examiner. Grenz now appeals that court’s order issued on August 24,1995, affirming the dismissal of his claim as being time barred.

ISSUE

Did the Workers’ Compensation Court err in concluding that Grenz’s occupational disease claim, filed in 1992, was barred by the two-year statute oflimitations contained in § 39-72-403, MCA(1985)?

Grenz appealed the final determination of his Occupational Disease claim by the Department’s hearing examiner to the Workers’ Compensation Court. The Workers’ Compensation Court may overrule the Department of Labor hearing examiner’s determination if that determination was:

(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the rehable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Section 39-72-612(2), MCA (1979). We in turn review the Workers’ Compensation Court’s decision to determine if it properly complied with the requirements of § 39-72-612(2), MCA (1979). In order to review the Workers’ Compensation Court’s decision to determine if it complied with § 39-72-612(2), MCA (1979), this Court must review the whole record to determine whether the findings of fact are clearly erroneous and supported by substantial evidence. The findings of fact in this case were made by the Department of Labor’s hearing examiner. The Workers’ Compensation Court held that the Department’s determination was supported by substantial evidence.

The Montana Occupational Disease Act (MODA) statutes in effect on an employee’s last day of work govern the resolution of an occupational disease claim. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 205, 900 P.2d 314, 316. Grenz’s last day of employment was November 18, 1985. The applicable statute oflimitations for his claim is therefore § 39-72-403, MCA (1985).

This statute, amended as of October 1, 1985, provided:

(1) When a claimant seeks benefits under this chapter, his claims for benefits must be presented in writing to the employer, the employer’s insurer, or the division within 2 years from the date the claimant knew or should have known that his total disability condition resulted from an occupational disease. ...
(2) The division may, upon a reasonable showing by the claimant or a decedent’s beneficiaries that the claimant or the beneficiaries could not have known that the claimant’s condition or the employee’s death was related to an occupational disease, waive the claim time requirement up to an additional 2 years.

Section 39-72-403, MCA (1985).

Grenz maintains that prior to mid-1990, he was not aware that his degenerative arthritis was caused by his occupation and believed it to be attributable to his right elbow injury. The hearing examiner, however, found that Grenz knew or should have known prior to at least 1988 that his total disability was caused by an occupational disease.

The hearing examiner’s finding that Grenz knew or should have known that his disability was caused by an occupational disease is supported by substantial evidence in the record, including Grenz’s own testimony. Grenz testified that he knew in 1985 and 1986 that Dr. Miller felt that the type of work he was doing was aggravating his arthritis. In a brief filed with this Court on November 11,1991, Grenz insisted that there was “absolutely NO evidence” that he saw Dr. Miller because of his elbow injury. Thus, the hearing examiner found that if he did not see Dr. Miller on account of his elbow injury but on account of his more generalized joint complaints it was unreasonable for him to assume that his degenerative arthritis was attributable to his elbow injury. The hearing examiner also noted that Grenz knew that the medical panel which examined him in 1988 had limited its examination to his elbow and lower back and had not considered his other joint complaints.

Our review is limited to assessing whether substantial credible evidence exists to support the hearing examiner’s findings, not whether the evidence supports a contrary finding. McIntyre v. Glen Lake Irrigation Dist. (1991), 249 Mont. 63, 68, 813 P.2d 451, 454. We conclude that there is substantial evidence to support the finding of the Department’s hearing examiner that Grenz knew or should have known prior to 1988 that his total disability was caused by an occupational disease. We further determine that the Workers’ Compensation Court correctly applied the proper standard as set forth in § 39-72-612(2), MCA (1979).

Grenz argues for the first time on appeal that he is entitled to an additional two years in which to present his claim, pursuant to § 39-72-403(2), MCA (1985). Grenz also raises the following issues for the first time on appeal: (1) that the statute of limitations should be tolled as a result of the insurance company’s payments of benefits; (2) F&C is equitably estopped; and (3) the statute of limitations violated his due process and equal protection rights. “We will not address an issue presented for the first time on appeal.” Rasmussen v. Lee (1996), [276 Mont. 84], 916 P.2d 98, 100 (citing Fandrich v. Capital Ford Lincoln Mercury (1995), 272 Mont. 425, 431, 901 P.2d 112, 115-16); Grenz I, 820 P.2d at 746. We therefore will not address these issues raised for the first time on appeal.

We therefore hold that the Workers’ Compensation Court was correct in its conclusion that Grenz’s occupational disease claim filed in 1992 is barred by the statute of limitations as set forth in § 39-72-403, MCA (1985).

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON and LEAPHART concur.