author: JUSTICE BARZ

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICKIE LEE CLELAND, Defendant and Appellant.
    No. 89-617.
    Submitted on briefs Nov. 1, 1990.
    Decided Dec. 31, 1990.
    246 Mont. 165.
    803 P.2d 1093.

      Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., John Paulson, Asst. Atty. Gen., Mike McGrath, County Atty., Lisa Leckie, Deputy County Atty., Helena, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Cleland appeals a jury decision of the District Court of the First Judicial District, Lewis and Clark County, finding him guilty of two felonies, theft and intimidation. We affirm.

Cleland presents two issues:

1. Was Cleland’s conviction of intimidation invalid because the State failed to show the constitutionally required elements of §45-5-203(l)(c), MCA?

2. Should Cleland’s conviction be reversed because he was not represented by competent counsel?

I

Late in the evening of June 25, 1989, an imported French saxophone belonging to Joe Thompson, a teacher and part-time musician, was stolen from the Eagles building in Helena, Montana. The saxophone case and accessories, including microphones, were also taken. Thompson valued the saxophone, a rare model no longer manufactured, at $10,000 to $12,000. A local newspaper reported the theft, and Thompson placed an advertisement offering a reward and listing his telephone number.

On June 28,1989, Thompson received a telephone call from a man who said that he had found the saxophone. Thompson offered the caller $250 for its return, but the caller wanted $1,500. Thompson told the man that he thought that he might be able to raise $500, and the caller promised to phone the following evening, requesting Thompson not to notify police.

However, Thompson reported the call to police who arranged for a trap, enabling the telephone company to quickly trace any incoming calls, to be placed on Thompson’s phone. The police officers also arranged for calls to be tape-recorded. On the evening of June 29 Thompson received a second call. The caller threatened to destroy the saxophone if Thompson did not pay $500 or if the police became involved. He instructed Thompson to meet him near Vigilante Stadium and Helena Middle School.

While the call was in progress, the telephone company traced it to a pay phone on the corner of Montana Avenue and Prospect Avenue in Helena. An officer drove to the location and observed a man in red shorts and a white T-shirt using the telephone. The officer then drove to the stadium to monitor the electronic transmitter Thompson was given to wear during the exchange. At the stadium Cleland, dressed in red shorts and a white T-shirt, approached Thompson’s truck from some bushes carrying the saxophone case and wearing a sock on his hand. Cleland climbed into Thompson’s truck, gave Thompson the saxophone case containing the saxophone, and took the money. As Cleland was counting the money, the officer came up to the truck and placed Cleland under arrest.

Subsequently, on two separate occasions, a police officer went to the apartment where Cleland had been living and obtained consent from a woman who was just moving into the apartment to search the premises. The officer recovered some of the missing microphones and a piece of Thompson’s saxophone wrapped in a sock matching the one Cleland had on his hand when he was arrested. At trial Cleland’s counsel objected to the searches on the ground that the officer had not ascertained whether the woman who agreed to the search had authority to consent since she was just moving into the apartment.

Witnesses placed Cleland at the Eagles during the evening of June 25. One witness testified that Cleland left after the band quit playing and that he later saw Cleland at his mother’s house nearby with a large object in his hands.

The jury delivered a guilty verdict from which Cleland appeals.

II

Was Cleland’s conviction of intimidation invalid because the State failed to show the constitutionally required elements of § 45-5-203(l)(c), MCA?

Cleland contends that his conviction is invalid because the State failed to establish the constitutional requirement of circumstances which reasonably tended to produce a fear that his threat would be carried out. Cleland was convicted of intimidation, a felony, pursuant to § 45-5-203(l)(c), MCA.

An earlier version of this statute was declared unconstitutional by the Ninth Circuit Court of Appeals in Wurtz v. Risley (9th Cir. 1983), 719 F.2d 1438, on the ground that the statute was overbroad and impermissibly impinged upon First Amendment expression. The Court of Appeals found that the statute regulated pure speech, rather than conduct, and stated:

“It is true that threats have traditionally been punishable without violation of the first amendment, but implicit in the nature of such punishable threats is a reasonable tendency to produce in the victim a fear that the threat will be carried out. (Citations omitted.) Section 203(1)(c) is not so limited. It is possible by judicial construction to read an element of instilling fear into the term ‘threat,’ id., but the Supreme Court of Montana has imposed no such narrowing construction upon section 203(l)(c). ‘[A] statute ... which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind.’ ”

Wurtz, 719 F.2d at 1441 (quoting Watts v. United States (1969), 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed. 2d 664, 667 (per curiam)). The Wurtz Court also questioned the type of criminal conduct threatened, which at that time was “any criminal offense,” declaring that it should not be a felony to threaten minor infractions.

In 1985 the Montana Legislature amended the statute to conform to the requirements of Wurtz by adding the phrase, “under circumstances which reasonably tend to produce a fear that it will be carried out” and by changing “commit any criminal offense” of the former version to: “commit any felony.” The current statute under which Cleland was convicted reads:

“A person commits the offense of intimidation when, with the purpose to cause another to perform or to omit the performance of any act, he communicates to another, under circumstances which reasonably tend to produce a fear that it will be carried out, a threat to perform without lawful authority any of the following acts:
“(c) commit any felony.”

Section 45-5-203(l)(c), MCA.

Since the federal court’s decision in Wurtz, we have examined this same statutory provision, § 45-5-203(1)(c), MCA, and other portions of the intimidation statute. See State v. Hembd (1989), 235 Mont. 361, 767 P.2d 864; State v. Lance (1986), 222 Mont. 92, 721 P.2d 1258; State v. Ferrel (1984), 208 Mont. 456, 679 P.2d 246. In Ferrel, we reversed a conviction of intimidation pursuant to § 45-5-203(l)(c), MCA, on the ground that the defendant’s verbal threat that she would keep proceeds of a check belonging to her employer until he had paid her the value of a garden that she had planted did not reasonably tend to produce fear in the victim that the threat would be carried out. Based on the Court of Appeals decision in Wurtz, the defendant was not guilty of conduct which could be constitutionally punished. Ferrel, 208 Mont. at 461-62, 679 P.2d at 227-28.

In Lance we found constitutional subsection (b) of § 45-5-203(1), MCA, which prohibits threats to subject persons to physical confinement or restraint. The defendant had written letters to various public officials and others threatening to take a hostage for the purpose of focusing public attention on his divorce settlement. Using a test enunciated in recent United States Supreme Court decisions that “ ‘a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications,’ ” rather than the test applied in Wurtz, we found no First Amendment violation. Lance, 222 Mont. at 100-102, 721 P.2d at 1264-65 (citing New York v. Ferber (1982), 458 U.S. 747, 771, 102 S.Ct. 3348, 3362, 73 L.Ed.2d 1113, 1132). The United States Supreme Court has recently reaffirmed its reliance on the “real and substantial” test for First Amendment overbreadth issues in Osborne v. Ohio (1990), _U.S. _, 110 S.Ct. 1691, 1697, 109 L.Ed. 2d 98, 111. InLance we held that, as applied to the defendant, the statute was constitutional even though the threats constituted pure speech without any requirement of an overt act. Lance, 222 Mont. at 101-104, 621 P.2d at 1265-67.

In the case under consideration, we find that circumstances reasonably tended to produce a fear that Cleland’s threats would be carried out. At trial the jury heard the taped conversation between Thompson and Cleland and had a typed transcript of the conversation to follow as they listened to the tape. Cleland states on the tape:

“And there better be no kind of cops, no f__ detectives, no unmarked cars, nobody else f_come around ‘cuz if you do that hey you might as well forget the whole f_thing man I’m gonna smash it up so nobody knows what happened to it and where it’s gone, do you hear me?”

Cleland later repeats his threat:

“I said two thousand last night and I agreed with you for five hundred dollars, now you’re f_putting me off and you ask me a bunch of questions. I don’t know if you’re getting me set up or not. Hey m_you get me set up right now you know what... you lost every f_thing ’cuz I don’t have it with me I’m making a run.”

At another point Cleland said:

“Like I say I’ll show you the part I’ve taken out of there you ain’t gonna see me m_. I don’t want you looking at me and I don’t want you saying asking me who I am. If you try to f_swing on me and f_me up m_, hey you’re gonna lose it hear me?”

During the course of the conversation, Cleland makes several other similar threats. Cleland also reveals on the tape that he understood the value of the saxophone to Thompson, which he had read about in the newspaper.

Cleland threatened Thompson with felony criminal mischief which consists of purposely or knowingly damaging or destroying without consent property of another exceeding $300 in value. Section 45-6-101, MCA. As we stated in Lance, “ ‘[w]hat is a threat must be distinguished from what is constitutionally protected speech.’ ” Lance, 222 Mont. at 104, 721 P.2d at 1266 (quoting Watts, 394 U.S. at 707, 89 S.Ct. at 1401, 22 L.Ed.2d at 667). Threats made in jest or political hyperbole are not punishable under the statute. “[Cjaustic, abusive, and robust speech is fully protected until it rises to the level of threats which cause harm to society.” Lance, 222 Mont. at 105, 721 P.2d at 1267. The question of whether an intention to commit a felony is present must be decided on the basis of an objective standard, and “whether a statement constitutes a true threat is to be determined by the trier of fact.” Lance, 222 Mont. at 104, 721 P.2d at 1267 (citing United States v. Kelner (2d Cir. 1976), 534 F.2d 1020 and United States v. Merrill (9th Cir. 1984), 746 F.2d 458).

The language on the tape made it clear what Cleland intended. We find that the circumstances under which Cleland voiced his threats to Thompson — his demand for more money, his possession of the saxophone which made his threats to destroy or otherwise dispose of the instrument plausible, and his forceful manner — reasonably tended to produce a fear that the threats would be carried out. We hold that Cleland’s conviction pursuant to § 45-5-203(l)(c), MCA, does not violate constitutional principles of free speech.

Ill

Should Cleland’s conviction be reversed because he was not represented by competent counsel?

Cleland claims that he was deprived of his Sixth Amendment right to counsel because his appointed lawyer did not adequately defend him. Specifically, he alleges the following: (1) his counsel did not raise the is sue of the constitutionality of the intimidation statute as applied to him; (2) his counsel failed to file a pre-trial motion to suppress the evidence obtained in the searches of the apartment; and (3) Cleland was requested to sign a letter prepared by counsel “trying to force his client to accept a plea bargain and to basically exonerate counsel for Cleland with regard to his representation.”

In evaluating whether defendant received competent assistance of counsel, we apply the two-part test enunciated in the seminal case of Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674:

“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; see State v. Johnstone (Mont. 1990), 244 Mont. 450, 798 P.2d 978, 987, 47 St.Rep. 1715, 1726; State v. Albrecht (Mont. 1990), 242 Mont. 403, 791 P.2d 760, 764, 47 St.Rep. 805-806. As is evident, the burden is heavy on one who seeks to reverse a judgment on the basis of ineffective assistance of counsel. State v. LaValley (1983), 203 Mont. 393, 398, 661 P.2d 869, 872. “[T]he proper standard for attorney performance is that of reasonably effective assistance.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Reasonably effective assistance does not mean that the defendant is guaranteed an acquittal. The defendant must show that the errors allegedly committed stem from neglect or ignorance, rather than informed professional judgment. State v. Robbins (1985), 218 Mont. 107, 113, 708 P.2d 227, 231. Moreover, “any alleged error by defense counsel must be shown to prejudice the defendant before reversal will be warranted.” State v. Hurlbert (1988), 232 Mont. 115, 120, 756 P.2d 1110, 1113. With these guidelines in mind, we examine Cleland’s allegations.

First, Cleland claims that his appointed attorney failed to challenge, on constitutional grounds, sufficiency of the evidence in regard to the charge of intimidation. As addressed above, we find no merit to Cleland’s constitutional claim. His appointed lawyer’s failure to bring it to the attention of the trial court did not prejudice Cleland nor deprive him of a fair trial.

Secondly, Cleland alleges that his appointed counsel failed to file a pre-trial motion to suppress the evidence obtained from the apartments. Cleland correctly asserts that a motion to suppress evidence “shall be made before the trial unless for good cause shown the court shall otherwise direct.” Section 46-13-301, MCA. While Cleland’s appointed counsel did not file a written motion, he raised the issue orally prior to trial, and the court gave permission to bring a motion at trial when the State moved to offer the items seized during the search into evidence. During the trial, Cleland’s appointed counsel objected to the admission of the seized items into evidence on the ground that the person who consented to the searches had no authority to grant permission. The court overruled the objection after hearing the officer’s testimony that he had ascertained the consenting person’s occupancy of the apartment before he obtained written consent.

While we agree that Cleland’s appointed attorney should have filed a pre-trial motion to suppress the evidence within the time limits required by § 46-13-301, MCA, we do not find that the result of the trial would have been changed. Cleland asserts that if the issue had been properly raised before trial, it is “conceivable” that the District Court would have suppressed the evidence, and “Cleland could have legitimately argued that he had found the saxophone,” rather than have stolen it. Thus, Cleland could have raised a reasonable doubt of whether he was guilty of theft.

Whether a party other than the defendant may consent to a warrantless search has been addressed previously in State v. Sorenson (1979), 180 Mont. 269, 590 P.2d 136. In holding that the mother of the defendant, who was caring for houseplants and animals of a vacationing neighbor, had no authority to allow a warrantless search of the neighbor’s residence, we relied upon United States v. Matlock (1973), 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242. In Matlock, the United States Supreme Court recognized the rule that the prosecution “may show that permission to search was obtained from a third party who possessed common authority over ... the premises or effects sought to be inspected.” Matlock, 415 U.S. at 171, 94 S.Ct. at 993, 39 L.Ed. 2d at 250. The Supreme Court further noted that common authority is not premised on property law:

“[Authority to consent] rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”

Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993, 39 L.Ed. 2d at 250. The Supreme Court has recently extended the Matlock holding by ruling that a warrantless search is valid when based upon the consent of a third party whom the police, at the time of entry, reasonably, though erroneously, believed to have authority to consent. Illinois v. Rodriguez (1990), _U.S. _, 110 S.Ct. 2793, 111 L.Ed. 2d 148.

The likelihood is small that the District Court would have suppressed the evidence obtained in the searches if a pre-trial suppression hearing had been held. Cleland’s suppositions that obtaining a pre-trial suppression hearing would change the outcome of the trial are groundless.

Finally, Cleland claims that a letter his appointed counsel asked him to sign was an effort to force him to accept a plea bargain and to exonerate him from liability for his representation of Cleland, in violation of Rule 1.8(h) of the Rules of Professional Conduct, which provides in part:

“A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement
Cleland further contends that his refusal to sign the letter prompted his counsel to provide an inadequate defense. The State responds that the letter is not part of the record and should not be considered on appeal. “Allegations of ineffective assistance of counsel must be grounded on facts which appear in or are easily deduced from the record and which go beyond mere conclusory allegations.” State v. Tome (1987), 228 Mont. 398, 403, 742 P.2d 479, 482. Cleland claims that matters relating to the Rules of Professional Conduct come within the scope of the Supreme Court’s original jurisdiction “since it pertains to the conduct of an attorney and this Court always governs the conduct of attorneys within the State of Montana.”

While the Supreme Court has exclusive authority over the admission of attorneys to the bar and regulation of attorneys within Montana, Kradolfer v. Smith (Mont. 1990), [246 Mont. 201,] [805] P.2d [1266], 47 St.Rep. 1861, 1863; Harlen v. City of Helena (1984), 208 Mont. 45, 49-50, 676 P.2d 191, 193, this action is not a disciplinary proceeding in which violation of the Rules of Professional Conduct is at issue. Cleland’s allegation that his refusal to sign the letter led to neglect by his appointed counsel is without foundation in the record.

Viewed in their entirety, Cleland’s allegations of inadequate representation by his appointed counsel do not reach constitutional magnitude. Cleland’s appointed counsel had not “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” We hold that Cleland was not deprived of a fair trial due to ineffective assistance of counsel.

Affirmed.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


source: Caselaw Access Project

license: Public Domain

text:
    ART WEAVER, on his own behalf and on behalf of Weaver-Maxwell, Inc., a Montana corporation, Plaintiff and Appellant, v. LAW FIRM OF GRAYBILL, OSTREM, WARNER & CROTTY, and Leo Graybill, Jr. Gregory H. Warner and Turner Graybill, Defendant, Cross-Appellant and Respondents.
    No. 90-196.
    Submitted on briefs Sept. 27, 1990.
    Decided Dec. 31, 1990.
    246 Mont. 175.
    803 P.2d 1089.

      Art Weaver, Kalispell, pro se.
    Robert J. Emmons, Emmons & Sullivan, Great Falls, for defendant, cross-appellant and respondents.
   JUSTICE BARZ

delivered the Opinion of the Court.

Art Weaver, appearing pro se, appeals from the summary judgment granted to defendants, his former attorneys, in the District Court for the Eighth Judicial District, Cascade County. We affirm.

Weaver’s brief does not set forth a statement of the issues he wishes to raise on appeal. However, his position can be summarized as a view that issues of material fact preclude summary judgment on each of the eight counts of his complaint.

Weaver, bis wife, and another couple, the Maxwells, were the stockholders of Weaver-Maxwell, Inc., which operated a farm equipment store in Great Falls, Montana, and Weaver-Maxwell Havre, Inc., which operated a farm equipment store in Havre, Montana. In August 1980, the defendants agreed to represent both corporations and the individual stockholders in potential litigation against Northwestern Bank of Great Falls and International Harvester (IH). The parties agreed that defendants would be paid 30% of the recovery if the cases were tried.

In October 1980, Northwestern Bank sued Weaver-Maxwell, Inc., and its stockholders, who filed counterclaims. Weaver-Maxwell, Inc., was awarded a judgment of $2,659,671 after a March 1985 jury trial. This Court reversed that judgment and ordered a new trial. Northwestern Nat. Bank v. Weaver-Maxwell (1987), 224 Mont. 33, 729 P.2d 1258. The parties eventually settled the case in January 1988, with Northwestern Bank paying $1,000,000 to the counterclaimants and $300,000 to defendants, their attorneys.

In April 1982, Weaver-Maxwell, Inc., sued IH in Federal District Court. IH filed an interpleader and third party action joining Weaver-Maxwell Havre, Inc., and its stockholders. In January 1985, a federal district court jury awarded Weaver-Maxwell Havre, Inc., a $1,000,000judgment against IH and awarded IH a $40,000 judgment against Weaver-Maxwell, Inc. Both sides gave notice of appeal. In June 1985, the parties settled the case when IH paid $720,000. Of that amount, $40,000 went to Art Weaver for payment of costs; 30% of the balance, or $204,000, was paid to defendants; and the remaining $476,000 was divided equally among the four shareholders.

Art Weaver filed this lawsuit in January 1988. His amended complaint contains eight counts which may be summarized as follows:

Count I - a claim that defendants overcharged fees.

Count II - a claim for interest on the settlement with Northwestern Bank due to defendants’ delay in filing the action.

Count III - a claim for compensation for the loss of a Burger King franchise in Bozeman.

Count IV - a claim for compensation for two motor homes repossessed by Northwestern Bank.

Count V - a claim based on the failure to file a timely antitrust claim in the IH action.

Count VI - a claim for prejudgment interest for the IH case.

Count VII - a claim that defendants’ malpractice resulted in lower settlements in both cases.

Count VIII - a claim for the proceeds of the “Stroh contract.”

After discovery, the defendants moved for summary judgment. Finding that there is no genuine issue of material fact and that there was no legal malpractice, the District Court granted summary judgment to the defendant attorneys.

Did issues of material fact preclude summary judgment on each of the eight counts in the complaint?

Rule 56(c), M.R.Civ.R, provides that summary judgment is proper when the pleadings, depositions, answers to interrogatories, admissions, and any affidavits on file show that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Our standard of review is whether the trial court was correct. Steer; Inc. v. Department of Revenue (Mont. 1990) [245 Mont. 470,] [47 St.Rep. 2199], 803 P.2d 601, 603.

Initially, we will discuss the limits placed upon Weaver’s claims by his pro se status. While, as Weaver contends, shareholders and directors of a corporation have the right to “take action” on the corporation’s behalf under § 35-1-930, MCA, that does not entitle those persons to practice law on behalf of the corporation. A corporation is a separate legal entity and cannot appear on its own behalf through an agent other than an attorney. Annotation, Propriety and Effect of Corporation’s Appearance Pro Se, Through Agent Who Is Not Attorney, 19 A.L.R.3d 1073 (1968). Therefore, Weaver cannot represent Weaver-Maxwell, Inc., or Weaver-Maxwell Havre, Inc. Weaver cannot appear on behalf of his wife or the Maxwells, either, without being guilty of contempt of court. Section 37-61-210, MCA. Therefore, the only claims which we consider, and the only damages which could be awarded, are those of and to Weaver individually. We will discuss each count of the complaint separately.

Count I. The attorney fees on the Northwestern Bank case were $300,000 on a $1,300,000 settlement. Prior to the settlement, Weaver had informed defendants that he would accept no less than $1,000,000 in settlement and that they should negotiate for their fee, which would have to come out of the settlement amount above $1,000,000. That demand was met. The actual attorney fees were also less than the originally agreed upon fee of 30%.

Weaver further claims that he was overbilled for out-of-pocket expenses. Under the original fee agreement, out-of-pocket expenses were to be billed in addition to the 30% fee agreed upon. That arrangement was carried out. The amount of out-of-pocket expenses was large and was apparently larger than originally anticipated. However, after examining the record, we conclude that no grounds have been shown to support the claim of excessive fees.

Count II. The exhibits attached to both parties’ briefs indicate that an inability on the part of Weaver and defendants to agree upon defendants’ fees was largely responsible for delays in the Northwestern Bank case between 1980 and 1983. That in itself is not a basis for charging defendants with willful delay under § 37-61-407, MCA. Weaver’s claim that defendants purposefully delayed action in the Northwestern Bank matter because they wished to wait for Turner Graybill to finish law school and join the firm is completely without support in the record.

Count III. In the Northwestern Bank trial, defendants offered a special verdict question addressed to the loss of the Burger King franchise. It was rejected. However, the issue was before the jury because Instruction No. 30A specifically allowed for an award of damages for the loss of the franchise. We conclude that the claim for the loss of the franchise was dealt with as part of that trial and eventual settlement and that the present claim is therefore without merit.

Count IV. The defendants’ alleged wrongful failure to obtain lien releases from Northwestern Bank on two of Weaver’s motor homes occurred in 1981. Weaver knew of this failure at that time. A three-year statute of limitations applies. Yet Weaver did not file his complaint against defendants until 1988, well beyond the time allowed under the statute. We conclude that the District Court was correct in ruling that this claim is barred by the statute of limitations.

Counts V and VI. These two counts relate to the IH case. Weaver, individually, was not a plaintiff in the IH case. He, individually, cannot claim any damages from any mishandling of that case by defendants. Therefore we will not consider the claims raised in Counts V and VI.

Count VII. To succeed, Weaver’s claim of malpractice must be supported not only by a showing of malpractice by defendants, but by a showing that “but for” their negligence, he would have recovered additional amounts from Northwestern Bank. Kinniburgh v. Garrity (Mont. 1990), [244 Mont. 350,] 798 P.2d 102, 105, 47 St.Rep. 1655, 1659. Weaver has utterly failed to do that. After consideration of the claims presented above, there is nothing to support Weaver’s claim that a higher negotiated settlement should have been obtained on the Northwestern Bank case. Certainly on its face and after the reversal of the jury verdict by this Court, the court-approved settlement appears favorable to Weaver. We hold that the court was correct in entering summary judgment for defendants on this count.

Count VIII. Disposition of the proceeds of the Stroh contract was included in the settlement agreement with Northwestern Bank. Although the specifics of the settlement were sealed and are not in the record before this Court, correspondence between Weaver and the defendants shows that they specifically discussed releasing the proceeds of the Stroh contract during settlement and that Weaver agreed to the settlement. The settlement included the proceeds of the Stroh contract. The present claim is without merit because Weaver has already been compensated, in the settlement, for the Stroh contract proceeds.

Weaver claims that defendants wrongfully failed to release to him a transcript of the Northwestern Bank trial which he had requested as part of discovery. He submitted to the District Court a “Request to order defendants to produce responses” which, although difficult to decipher, asked that the court order defendants to produce these transcripts. However, as defendants’ counsel points out, the copy of the transcript in defendants’ possession was prepared at the expense of Northwestern Bank for the appeal to this Court. It was not Weaver’s. Weaver could have obtained a copy of the transcript through the court reporter. Where the discovery sought is obtainable through some other source that is more convenient, less burdensome, or less expensive, a court may limit the frequency or extent of discovery. Rule 26(b)(1), M.R.Civ.P. We hold that there is no reversible error in the court’s failure to grant Weaver’s discovery request.

In his briefs before this Court, Weaver makes various other claims which were not set forth in his complaint or before the District Court. This Court will not consider issues or theories of the case first raised on appeal. Clemans v. Martin (1986), 221 Mont. 483, 485, 719 P.2d 787, 789.

In conclusion, our examination of the record and transcript shows that Weaver’s claimed issues of fact do not have merit as a basis for appeal because none of them involve material issues of fact. We hold that the District Court was correct in granting summary judgment for defendants.

Affirmed.

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


author: JUSTICE SHEEHY

text:
    BARBARA J. MARTIN, Plaintiff and Appellant, v. SPECIAL RESOURCE MANAGEMENT, INC., ENTECH, INC., and THE MONTANA POWER COMPANY, Defendants and Respondents.
    No. 90-396.
    Submitted Nov. 11, 1990.
    Decided Dec. 31, 1990.
    246 Mont. 181.
    803 P.2d 1086.
    Stephen C. Pohl, Charles P. Bowen, Bozeman, for plaintiff and appellant.
    Patrick T. Fleming and Robert T. O’Leary, The Montana Power Co., Butte, for defendants and respondents.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Barbara J. Martin appeals the decision of the District Court, Second Judicial District, Silver Bow County, granting partial summary judgment to Special Resource Management, Inc., Entech, Inc. and the Montana Power Company. We reverse the District Court.

The sole issue for review is whether the District Court erred in dismissing Martin’s claim for breach of the implied covenant of good faith and fair dealing, ruling her claim exempted under the Montana Wrongful Discharge From Employment Act.

Martin was hired by the Montana Power Company, as a clerk/typist in 1976. In May, 1986, she applied for and received a job as a secretary with Special Resource Management, Inc., a wholly-owned subsidiary of Entech, Inc., which is in turn owned by MPC.

On June 16, 1987, SRM’s new president, Jim Murphy, informed Martin by letter that her position was to be terminated as of July 17,1987, due to a general reduction in force. After receiving notice, Martin became aware that her position had not been eliminated, but was to be filled by Murphy’s personal secretary from his former job with Western Energy Company, a subsidiary of Entech, Inc., with a reshuffling of remaining SRM employees to assume other responsibilities.

Martin instituted suit on June 28,1988, alleging: Count I, wrongful discharge; Count II, breach of the implied covenant of good faith and fair dealing; and Count III, negligence. SRM thereafter moved for partial summary judgment on Counts II and III, which the court granted. The court ruled that the newly-enacted Wrongful Discharge From Employment Act, which became effective July 1, 1987, preempted Counts II and III, as Martin’s claim had not fully accrued until the date of her termination, July 17, 1987. From that decision Martin appeals.

It should be noted that Martin does not contest the dismissal of Count III in light of this Court’s decision in Heltborg v. Modern Machinery (1990), [244 Mont. 23,] 795 P.2d 954, which holds no duty exists in employers to use reasonable care in decisions to discharge based upon a theory of negligence.

Martin takes issue with the District Court’s finding that a claim for wrongful discharge “cannot arise -until such time as the employer-employee relationship has ceased to exist. ” By that finding, the court concluded that Martin had no cause of action upon notice of termination on June 16, 1987. The court found that Martin’s cause accrued on July 17, her termination date, and was therefore subject to the newly-enacted Montana Wrongful Discharge From Employment Act (§ 39-2-901, et seq., MCA (effective July 1, 1987), which exempts claims under a breach of implied covenant of good faith and fair dealing theory.

The issue for review thus becomes: At what point did an actionable cause for termination arise in this case — upon notice of the termination or when the termination became effective?

Montana case law is slim, as the issue has been addressed peripherally at best. Martin asserts the recent case of Kitchen Krafters v. Eastside Bank (1990), [242] Mont. [155], 789 P.2d 567, is determinative of the issue. Martin cites the premise that “it has long been recognized that the statute of limitations runs from the time of breach and not from the time of injur/’ as controlling. Martin states that a cause of action likewise begins at time of breach, and that the breach in the instant case occurred upon receipt of the notice of termination. Martin argues that all decisions made leading to her discharge occurred prior to notification on June 16, 1987, and that it was that decision that constituted the wrongful conduct of SRM.

SRM, et al. counter that two recent Montana cases, Finstad v. Montana Power Co. (1990), 241 Mont. 10, 785 P.2d 1372, and Frigon v. Morrison-Maierle (1988), 233 Mont. 113, 760 P.2d 57, are controlling in this case. However, a review of those cases reveals only that breach of the covenant of good faith and fair dealing is applicable only where an employee termination exists. In both Finstad and Frigon, this Court determined that no actionable cause existed for such a breach as the employees had voluntarily resigned. No express or constructive discharge was found in either case. The issue of when an action accrues was never touched upon.

We look, therefore, to cases from other jurisdictions to resolve the issue.

In an Illinois decision, Aetna Life and Casualty Co. v. Sal E. Lobianco & Son Co., Inc. (1976), 43 Ill. App.3d 765, 2 Ill. Dec. 454, 357 N.E.2d 621, cited in Kitchen Krafters supra, the court stated:

“A plaintiff’s cause of action in tort ordinarily accrues at the time his interest is invaded — where the defendant’s alleged breach of duty causes the plaintiff to suffer pain the invasion of his interest is manifest as soon as it occurs and he has a ripe cause of action then — and the mere fact the extent of his damage is not immediately manifest does not postpone the accrual of the action. (Citing cases.)

Thus, the rule was early established in Illinois that where the negligent act results in personal injury, the action accrues on the day of the injury. (Citing case.)

“However, a different rule evolved for actions in tort which arose from contractual obligations. In torts arising from contract the statute of limitations has been held to begin to run at the time of the breach of duty constituting the tort and not when damages ensue.”

2 Ill. Dec. at 456, 357 N.E. 2d at 623

In Johnston v. Farmers Alliance Mutual Insurance Co. (1976), 218 Kan. 543, 545 P.2d 312, the Court stated:

“According to plaintiffs deposition he was called into Mr. Skupa’s office on March 3, 1972, and terminated. Although plaintiff drew his pay by check until May 31, 1972, he did not work for and was not associated with Alliance after March 3, and was in fact employed by another company on May 26, 1972. By his own testimony plaintiff knew he was being terminated by Alliance on March 3, 1972. He further admitted that all of the alleged acts of Mr. Skupa occurred prior to that date. Obviously, substantial damages for mental suffering and damage to reputation were caused and began to accrue upon plaintiff’s receipt of notice that he was being terminated. Any punitive or exemplary damages would have accrued upon notice of termination and would have been recoverable during this extended leave of absence. The acts causing plaintiff’s injury occurred on or before March 3,1972, and any cause of action plaintiff had against Alliance or Skupa could have been brought after that date.
“Concerning the accrual of a cause of action, we held in Yeager v. National Cooperative Refinery Ass’n. 205 Kan. 504, 470 P.2d 797:
“ ‘In general, a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises, the true test being at what point in time the plaintiff could first have filed and prosecuted his action to a successful conclusion.’
“Although some damages to the plaintiff may not have accrued under the accounting principles until installments of salary had ceased, plaintiff sustained substantial injury upon receipt of official notice of termination on March 3, 1972, and his cause of action accrued on that date.”

545 P.2d at 316-317.

Although Johnston’s factual scenario is not “nearly identical” with the instant case as Martin urges, it carries persuasive weight. So, too, do the federal cases cited by Martin, although they are primarily based upon employment discrimination claims barred by statutes of limitation. In Delaware State College v. Ricks (1980), 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431, the United States Supreme Court stated that “the only alleged discrimination occurred — and the filing limitations periods therefore commenced — at the time the tenure decision was made and communicated to Ricks. That is so even though one of the effects of the denial of tenure — the eventual loss of a teaching position — did not occur until later.” 449 U.S. at 258. The court added that the proper focus, for statute of limitations purposes, was when the act occurred, not when the final consequences came about. The court reaffirmed the Ricks decision in Chardon v. Fernandez (1981), 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d. 6, where it held:

“We think Ricks is indistinguishable. When Ricks was denied tenure, he was given a one-year ‘terminal’ contract. Thus, in each case, the operative decision was made — and notice given — in advance of a designated date on which employment terminated.” 454 U.S. at 8, 102 S.Ct. at 29.

We will not list the multitude of similar cases advanced by Martin. It is sufficient to say their holdings are similar to Ricks and Chardon.

We concur with Martin that her cause of action accrued upon notice of her termination. All the elements needed for a claim of breach of the implied covenant of good faith and fair dealing, if present at all, were present then. It is from the decision to terminate itself which Martin seeks redress. Her cause is analogous to being pushed from a precipice — the assailant cannot contend he is not culpable until the victim impacts with the ground. It was the decision and the act thereupon which caused the end result, and it is at that point where legal redress may first be sought. We find that Martin’s claim for breach of the implied covenant of good faith and fair dealing accrued upon her receiving notice of termination. Accordingly, we reverse and remand the cause to the District Court.

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


text:
    RICHARD L. SHARON, Plaintiff, Respondent and Appellant, v. ARCHIE D. HAYDEN, Dan C. Hill, Glenn W. Hayden, Jerry Meine and Richard Meine, Defendants and Appellants.
    No. 90-405.
    Submitted Nov. 11, 1990.
    Decided Dec. 31, 1990.
    246 Mont. 186.
    803 P.2d 1083.

      J. Blane Anderson, Jr., Dillon, Montana, James H. Goetz, Goetz, Madden & Dunn, Bozeman, for defendants and appellants.
    Max A. Hansen, Dillon, for plaintiff, respondent and appellant.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Defendants Archie D. Hayden, Glenn W. Hayden, and Dan C. Hill appeal from an order of the Fifth Judicial District Court, Beaverhead County, denying attorney fees. We reverse.

The single issue on this appeal is whether the defendants are entitled to attorney fees under § 70-17-112(5), MCA.

The plaintiff Richard L. Sharon brought this action in District Court to enjoin the defendants, owners of a ditch easement through his property from allegedly unreasonably increasing the burden on his servient tenement by their use of their easement and for damages for their unreasonable use of the ditch easement. Specifically, Sharon complained the defendants unreasonably burdened his land by using heavy equipment to clear the irrigation ditch, constructing a roadway along the ditch and constructing gates at locations along Sharon’s fence line to allow access to the roadway.

Furthermore, in his complaint Sharon stated “Plaintiff is bringing this action to determine the extent of Defendants’ secondary easement pertaining to the primary ditch easement. Pursuant to § 70-17-112, MCA, Plaintiff is entitled to reasonable attorney’s fees incurred in this matter.”

The defendants answered by seeking court adjudication of their secondary easement rights under § 70-17-112, MCA. The defendants also requested reasonable attorney fees under § 70-17-112(5), MCA.

The District Court found for the easement holders (defendants) on all issues, refused Sharon’s request for a permanent injunction, and denied Sharon any damages.

The District Court’s final judgment ordered the following:

“1. Plaintiff Sharon’s temporary restraining order of June 4, 1989, is dissolved, and Plaintiff’s prayer for a permanent injunction is denied.
“2. The Plaintiff Sharon’s claim for damages against Defendants Archie D. Hayden and Dan C. Hill is denied in full.
“3. Defendants Archie D. Hayden, Dan C. Hill, Glenn W. Hayden, Jerry Meine and Richard Meine, in their positions as owners of the ditch, and their heirs and assigns as to the easement, are decreed to have a secondary easement along the east bank of their irrigation ditch as it flows through Plaintiff Sharon’s property, for reasonable use for access to and maintenance of their ditch, including inspection and regulation of water flow, and specifically including its use as a roadway.
“4. Plaintiff, his heirs and assigns as owners of the servient tenement are permanently enjoined from interfering with this use of the secondary easement along the east bank of the ditch by the present owners of the ditch easement and their heirs and assigns.
“5. Each party shall bear their own costs and attorneys fees.”

From this order, Sharon appealed and defendants cross-appealed for attorney fees and costs. Subsequently, plaintiff dismissed his appeal.

Section 70-17-112, MCA, states:

“70-17-112. Interference with canal or ditch easements prohibited.
“(1) A person with a canal or ditch easement has a secondary easement to enter, inspect, repair, and maintain a canal or ditch.
“(2) No person may encroach upon or otherwise impair any easement for a canal or ditch used for irrigation or any other lawful domestic or commercial purpose, including carrying return water.
“(3) The provisions of subsection (2) do not apply if the holder of the canal or ditch easement consents in writing to the encroachment or impairment.
“(4) Each canal or ditch easement obtained by prescription or conveyance is included within the scope of this section. Nothing in this section establishes a secondary easement where none existed prior to April 14, 1981. This section does not affect contracts or agreements concluded prior to April 14, 1981.
“(5) If a legal action is brought to enforce the provisions of this section, the prevailing party is entitled to costs and reasonable attorney’s fees.”

In the present case, the easement holders have prevailed completely. The issue was the extent of their easement to maintain their ditch across Sharon’s property. The defendants sought to drive along the east ditch bank for cleaning and maintenance of the ditch. Sharon insisted that there was no such travel right along the east bank, and attempted to impede access to and maintenance of the irrigation ditch. The defendants contend that Sharon’s actions impaired and encroached upon their easement rights, and therefore violated § 70-17-112(2), MCA. The District Court found for the defendants, and held they had a right to use the east bank of the ditch as a secondary easement. Thus, the easement holders are the “prevailing party” under § 70-17-112, MCA, and therefore are entitled to costs and reasonable attorney fees.

Sharon argues his conduct did not impair or encroach upon the defendants’ easement. In support of his argument, Sharon relies upon the District Court’s conclusion No. 9, which states, “The obtaining of an injunction by Plaintiff did not materially injure Defendants, therefore, each party will pay their own attorney fees and costs.” We disagree and find the evidence in this case supports a conclusion that Sharon impaired and encroached upon the defendants’ easement. Sharon had done so by his statements and threats of opposition to use of the east bank of the ditch, and by his attempts to force the defendants to acquire access through private land and through Sharon’s own yard. The easement holders were forced into District Court to re-establish their secondary easement rights. Meanwhile, the defendants had access to their irrigation headgate only by walking for almost a year, and could not use the east bank access to their irrigation ditch.

Next, Sharon relying on District Court conclusion No. 2, argues he did encroach upon the defendants’ easement. In conclusion No. 2 the court stated, “Defendants, as secondary easement holders, have a right to further burden the servient tenement beyond the specific terms of their easement, in order to obtain the benefits of the easement itself.” Sharon contends that his blocking off the east side bank did not encroach upon the defendants’ easement. Since the District Court first recognized the right to “further burden” Sharon’s property in its order, Sharon claims he cannot be guilty of impairing or encroaching upon an access right which was not even recognized until the District Court decided the defendants could “further burden” Sharon’s property.

The District Court’s use of the phrase “further burden” did not extend the defendants’ secondary easement beyond its present existence, but allowed the defendants to take full advantage of their preexisting rights in relation to their use of the ditch easement.

In Laden v. Atkeson (1941), 112 Mont. 302, 306, 116 P.2d 881, 883, we explained that a ditch owner’s secondary easement grants the easement holder the right to reasonably use the banks of an irrigation ditch:

“The right to enter upon the servient tenement for the purpose of repairing or renewing an artificial structure constituting an easement, is called a ‘secondary easement,’ a mere incident of the easement that passes by express or implied grant or is acquired by prescription ... To illustrate: ‘A person having an easement in a ditch running through the land of another may go upon the servient land and use so much thereof on either side of the ditch as may be required to make all necessary repairs and to clean out the ditch at all reasonable times.’ ” (Citations omitted.)

Here, the defendants did not acquire a new right when the District Court allowed them the use of the east bank. The District Court simply allowed the defendants to take advantage of their preexisting rights to clean and maintain their irrigation ditch by traveling along both banks.

The District Court affirmed the defendants’ rights to a reasonable secondary easement, namely “to enter, inspect, repair and maintain a canal or ditch.” Section 70-17-112(1), MCA. In obtaining this ruling, defendants enforced subsection (1) of the statute, which guarantees them a secondary easement, and subsection (2), which prevents a party from encroaching or impairing an easement for a canal or ditch.

Accordingly, since defendants successfully enforced both of these provisions of § 70-17-112, MCA, they are entitled, as the prevailing party, to costs and reasonable attorney fees. Section 70-17-112(5), MCA. Defendants’ costs and reasonable attorney fees include those fees incurred in this appeal.

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


author: CHIEF JUSTICE TURNAGE: s/ J.A. Turnage, Chief Justice s/ John Conway Harrison, Justice s/ Diane G. Barz, Justice s/ John C. Sheehy, Justice s/ William E. Hunt, Sr., Justice s/ Fred J. Weber, Justice

text:
    In the Matter of THOMAS R. HALVORSON, Attorney at Law.
    No. 89-128.
    Sept. 11, 1990.
    246 Mont. 191.
    806 P.2d 1.
   PROCEEDINGS IN PUBLIC CENSURE

CHIEF JUSTICE TURNAGE:

This is the time and date set for the public censure by the Supreme Court of the State of Montana of Thomas R. Halvorson, a member of the State Bar of Montana. If the counsel for Mr. Halvorson is present, would he identify himself for the record?

Mr. Halvorson, would you stand up and identify yourself for the purpose of the record here?

Are you one and the same person as the Thomas R. Halvorson who is the subject of disciplinary action in this Court under our Cause No. 89-128?

Mr. Halvorson, if you will come to the well of the Court in front of the rostrum, and face the Court, the delivering Justice will now proceed with your public censure.

DELIVERING JUSTICE: Mr. Halvorson, this public censure is being delivered today in accordance with the Order of June 12, 1990, issued out of this Court and served upon you. These proceedings are founded on a complaint charging you with violations of the Rules of Professional Conduct which apply and have applied to attorneys licensed to practice in the State of Montana.

The allegations against you in this matter, Mr. Halvorson, are the most unusual of the various proceedings of attorney discipline this Court has ever witnessed. The Commission noted that your behavior was far more insidious than the common complaints they usually hear. This opinion of the Commission resulted from three days of testimony and its Findings and Conclusions relating to this case were signed by all of the members who witnessed the three days of hearings. The Commission’s Findings and Conclusions regarding you, Mr. Halvorson, portray a picture of a man who has been systematically attempting to undermine the system of justice by attacking all of the participants in that system.

Due to the complexity of the multiple charges against you, the Commission made a general summary in its report to this Court which we feel covers the charges against you. While we are aware that you have received copies of the Findings of Fact and Conclusions of Law and the Recommendation of the Commission, we will include in this censure today a summary of those charges as appeared on page 16 of the Commission’s Findings, Conclusions and Recommendations.

The Commission noted:

“Of the charges set out in the formal complaint, the Commission has found the following violations of the Rules of Professional Conduct proven by clear and convincing evidence:
“1. Under Count Three, paragraph 5, two instances of making extrajudicial statements which had a substantial likelihood of materially prejudicing an adjudicative proceeding, in violation of Rule 3.6.
“2. Under Count Three, paragraph 6, two instances of conduct prejudicial to the administration of justice, in violation of Rule 8.4(d).
“3. Under Count Three, paragraph 7, one instance of conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Ride 8.4(c).
“4. Under Count Three, paragraph 8, three instances of conduct prejudicial to the administration of justice, in violation of Rule 8.4(d).
“5. Under Count Six, one instance of conduct that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, and conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(b) and (d).”

Following the three-day hearing the Commission recommended that you be disciplined. We adopt its recommendations, noting that in the period of many years in which this Court has been called upon to hear charges against various attorneys in the State of Montana, never have we read a transcript that disturbed members of the Court more than the transcript submitted in your case. I think one member of the Commission, Mr. Arnold Huppert from Livingston, after hearing all of this testimony said it best when he noted on page 614 of the transcript:

“I think I’m perhaps spoiled because in Livingston most of the attorneys get along, but after three days of listening to this, I find myself just wondering how you and the other lawyers could even — it must be the most unpleasant experience in the world knowing that some of the lawyers out there are, their days are consumed with unpleasant things they can do to you, and if you believe them, that’s the way you spend your time, too.”

Clearly, your conduct constitutes grounds for discipline. As a member of the Bar of this State, you have a responsibility to the people of the State and to the courts to respect and conduct your practice in accordance with the Rules of Professional Conduct. In these instances you have failed to discharge this responsibility. We trust that this public censure will eliminate the possibility of such conduct in the future.

Thomas R. Halvorson, we herewith impose upon you the censure of this Court. The Supreme Court of the State of Montana unanimously concludes and orders as follows:

1. You are hereby suspended from the practice of law as an attorney and counselor in the State of Montana, including all tribunals and other bodies of this State, commencing today, September 11, 1990, and continuing through December 10, 1990.

2. You were given notice by the June 12, 1990, order of this Court to prepare your practice and your clients for your suspension from practice, pursuant to Rule 21, Supreme Court of the State of Montana Rules for Lawyer Disciplinary Enforcement.

3. You are ordered to pay $10,000 of the costs of your proceedings before the Commission on Practice. You may elect to pay either in full or in five equal annual installments. You will be furnished with a copy of the Commission’s statement of these Costs.

4. When you have completed the period of suspension from practice on December 10,1990, you shall file with this Court proof of payment of at least $2,000 of the costs of the proceedings against you. You shall also file both with this Court and with the Secretary of the Commission on Practice an affidavit stating that you have fully complied with all of the requirements of the suspension order. This Court will then issue its Order authorizing you to again practice as an attorney and counselor in the State of Montana.

5. Pursuant to Rule 14, Supreme Court of the State of Montana Rules for Lawyer Disciplinary Enforcement, copies of this Proceeding in Public Censure and Order shall be delivered to you, Mr. Halvorson; to your counsel; to William J. O’Conner, II, as special prosecutor; to the Chairman of the Commission on Practice, Rockwood Brown; to George Bousliman, Executive Director of the State Bar of Montana; and to the Clerks of the District Courts of the State of Montana; to the Clerk of the Federal District Court for the District of Montana; and to the Clerk of the Circuit Court of Appeals of the Ninth Circuit.

Mr. Chief Justice, that completes the public censure as ordered by the Court.

CHIEF JUSTICE: Very well. The Clerk of this Court is hereby directed to place a copy of this public censure in the record of this proceeding in this Court.

DATED this 11th day of September, 1990.

s/ J.A. Turnage, Chief Justice

s/ John Conway Harrison, Justice

s/ Diane G. Barz, Justice

s/ John C. Sheehy, Justice

s/ William E. Hunt, Sr., Justice

s/ Fred J. Weber, Justice


author: JUSTICE McDONOUGH

text:
    In the MATTER OF G.P., Respondent and Appellant.
    No. 90-197.
    Submitted on Briefs Aug. 16, 1990.
    Decided Sept. 27, 1990.
    246 Mont. 195.
    806 P.2d 3.

      Terry L. Seiffert, Billings, for appellant.
    Dale Mrkich, Deputy Yellowstone County Atty., Billings, Marc Racicot, Atty. Gen., Patti Powell, Asst. Atty. Gen., Helena, for respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the court.

The respondent G. P. appeals the order of the Montana Thirteenth Judicial District, Yellowstone County, committing him to the Montana State Hospital for a period of 90 days on the grounds that he is seriously mentally ill according to § 53-21-102(15), MCA. We affirm.

G. P. raises a sole issue on appeal: Did the District Court err in committing him as being seriously mentally ill under § 53-21-102(15) rather than mentally ill under § 53-21-102(8) MCA?

The parents of G. R, age 37, filed a request for G. P.’s commitment with the Yellowstone County Attorney’s office on February 7, 1990. The request described various conduct of G. P. that his parents believed indicated the need for commitment; G. P. slept most of the time; ate very little; tore at his clothing; stood outside and stared into space; doubled up as if in pain; tore up his own apartment on one occasion; had not come to his parents house to pick up his sole source of income, his SSI check; and he refused to take his medication prescribed for him during prior hospitalizations. G. P.’s parents alleged that G. P. was unable to take care of himself because G. P. was seriously mentally ill. A notation was made on the request for commitment by a worker of the Billings Mental Health Center, stating that since his recent hospitalization G. P. failed to follow any of the recommendations of those assigned to his case and that this led the worker to believe that G. P.’s illness had become worse.

The following day the County Attorney initiated a petition for commitment. At this time G. P. was not being detained. On the date G. P. was to make his initial appearance he allegedly refused to enter the courtroom. The court found probable cause to detain G. P. for his own safety and ordered G. P. to be detained and evaluated by a certified mental health professional.

On February 14, 1990 G. P. was evaluated by Roshadi Azzam, a psychiatrist at Deaconess Hospital. Dr. Azzam testified at the commitment hearing the following day. Largely based on Dr. Azzam’s findings, which were incorporated into the findings of the court, the District Court concluded that G. P. “is beyond a reasonable doubt seriously mentally ill as defined in Section 53-21-102 MCA” and ordered that G. P. be committed to the Montana State Hospital at Warm Springs for a period of treatment and evaluation not to exceed three months, unless extended as provided for by § 53-21-128, MCA (1983). The court’s order allowed for treatment by injection of medication if deemed necessary by the attending physician. G. P. now appeals the commitment order.

The standard of proof for a commitment hearing is set forth in § 53-21-126(2), MCA:

“The standard of proof in any hearing held pursuant to this section is proof beyond a reasonable doubt with respect to any physical facts or evidence and clear and convincing evidence as to all other matters, except that mental disorders shall be evidenced to a reasonable medical certainty. Imminent threat of self-inflicted injury or injury to others shall be evidenced by overt acts, sufficiently recent in time as to be material and relevant as to the respondent’s present condition.”

Thus, the above standard of proof required in involuntary commitment proceedings is bifurcated: (1) with respect to physical facts or evidence, there must be proof beyond a reasonable doubt; and (2) as to all other matters, including the existence of a mental disorder, there must be clear and convincing evidence. Section 53-21-126(2), MCA; In the Matter of R.T. (1983), 204 Mont. 493, 495, 665 P.2d 789, 790; citing In the Matter of N.B. (1980), 190 Mont. 319, 323-324, 620 P.2d 1228, 1231, construing Section 53-21-126(2), MCA, in fight of the constitutional requirements of Addington v. Texas (1979), 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323. Under this bifurcated standard, proof of mental disorders to a reasonable degree of medical certainty is sufficient if, considered with all the other evidence in the case, the trier of fact is led to the conclusion that the mental disorder exists by clear and convincing proof. N.B., 620 P.2d at 1231.

G. P. contends that the State failed to meet its burden of clear and convincing proof that he is seriously mentally ill. The definition of “seriously mentally ill” is found at § 53-21-102(15), MCA:

“ ‘Seriously mentally ill’ means suffering from a mental disorder which has resulted in self-inflicted injury or injury to others or the imminent threat thereof or which has deprived the person afflicted of the ability to protect his life or health. For this purpose, injury means physical injury ... .” (Emphasis added.)

As quoted earlier, the statutes also require that “[ijmminent threat of self-inflicted injury or injury to others shall be evidenced by overt acts, sufficiently recent in time as to be material and relevant as to the respondent’s present condition.” Section 53-21-126(2), MCA.

G. P. contends that the District Court erred in finding him “seriously mentally ill” under this definition because of a lack of evidence of overt acts. G.P. alleges that in Dr. Azzam’s report, the doctor incorrectly restated what he had heard from an emergency room physician, that “[ajpparently, Mr. ... [G. P] was in a court hearing when he became uncontrollably violent and threatening to the members of the court and therefore he was restrained ...” G. P. points out that this statement is false because he never appeared in court. G.P. then argues that because this is the only evidence of an overt act, the court erred in finding him “seriously mentally ill;” and at the very most the court could have found him to be “mentally ill” as provided in § 53- 21-102(8), MCA.

We disagree. Evidence of overt acts is only necessary to prove serious mental illness based on “self-inflicted injury or injury to others or the imminent threat thereof.” Sections 53-21-102(15) and 53-21-126(2), MCA. However, it is not necessary to present evidence of overt acts to prove serious mental illness based on a respondent “suffering from a mental disorder ... which has deprived the person afflicted of the ability to protect his life or health.” Section 53-21-102(15), MCA; Matter of C. M. (1981), 195 Mont. 171, 173-174, 635 P.2d 273, 274-275.

Here, there is clear and convincing evidence that G. P.’s illness deprives him of the ability to protect his own life and health. Dr. Azzam diagnosed G. P. as a severe chronic paranoid schizophrenic who without medication develops auditory hallucinations that direct him to do things he cannot control, thus posing a danger to himself and others. Dr. Azzam concluded that long term treatment in the state hospital with medication was appropriate. G. P. flatly refuses to take his medication, insisting, “I don’t need any medication.” His roommate also testified that G. P. refuses to take and denies that he needs medication. The testimony of his parents indicates that prior to the hearing he refused to take his medication, slept most of the day, ate very little, and often stood outside his trailer staring vacantly at nothing. He continually failed to pick up his social security check, which was his sole source of income. We recognize that “[i]t is one thing to commit an individual who cannot function sufficiently to supply basic survival needs, and another to commit an individual who merely ‘chooses to live under conditions that most of society would conclude to be substandard .... R.T., 665 P.2d at 791. But here the evidence indicates that G. P.’s illness was interrupting his cognitive processes, was causing delusional thinking, and was thereby interfering in a severe way with his functioning. C.M., 635 P.2d at 274-275. Under these circumstances, the evidence is clear and convincing that G.P.’s mental disorder renders him unable to protect his own life or health. See C.M., supra. The order of the District Court is affirmed.

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


text:
    In re the MARRIAGE OF LITA F. BRONZYNSKI, Petitioner and Respondent, and ROBERT ALAN HAGAN, Respondent and Appellant.
    No. 90-001.
    Submitted on Briefs Aug. 23, 1990.
    Decided Oct. 2, 1990.
    246 Mont. 200.
    806 P.2d 8.
    Morgan Modine, Missoula, for respondent and appellant.

      Robert L. Deschamps, III, County Atty., Barbara C. Harris, Deputy County Atty., Missoula, for petitioner and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

This appeal stems from an action to collect back child support. Lita Bronzynski (Lita) filed a URESA action in Missoula County District Court to collect child support due from her ex-husband, Robert Alan Hagan (Robert). After a hearing on the matter, the District Court concluded that petitioner Bronzynski was entitled to judgment and ordered respondent Hagan to pay back child support in the amount of $16,775 but did not find Hagan in contempt of court. Hagan appeals the lower court’s judgment. We affirm.

One issue is presented for review:

Did the District Court properly enter judgment in favor of Lita Bronzynski for child support?

Lita and Robert were married in 1972. Two sons were born of the marriage. In December 1981, the Missoula County District Court granted Lita and Robert a divorce. Lita married Leroy Bronzynski (Leroy) in April 1982. Shortly after her re-marriage, Lita moved to Nebraska with Leroy and her two sons from her marriage to Robert. Lita informed Robert and his parents that she and the boys would be moving to O’Neill, Nebraska but she did not know the exact address in O’Neill. Once Lita got a permanent address in O’Neill she notified the Montana court. Robert’s parents also knew of her address in O’Neill and sent presents to their grandsons and visited the family in O’Neill. Her present address and phone number have remained the same since late 1982. Robert and his new wife, Carolyn, also testified they sent the boys Christmas gifts in 1986 and 1987 which were included in packages Robert’s mother mailed to Nebraska.

According to their dissolution decree, Robert was to have paid $ 125 per month per child in support payments. Lita was awarded custody of the children, with visitation by Robert specifically set out if mutual agreement could not be reached. Robert consistently made payments until Lita and the boys moved to Nebraska. After April 28, 1982, Robert made only one $50 payment in July 1983.

Robert made few attempts to contact his sons. Through his attorney he did write to Lita stating he was upset about having to pay child support but not being able to see his children due to the move to Nebraska. The letter suggested summer visitation different from that set out in the dissolution order and requested Lita to pay one-half the transportation costs. The letter then stated that if Lita did not agree to the proposed terms of the visitation she should retain an attorney because Robert intended to file an action to modify the decree. Robert never followed up on the visitation nor did he call or visit the children after they left Montana.

Lita attempted at various times to enforce the decree and collect the child support due and owing. In June 1982, pursuant to Nebraska’s Uniform Reciprocal Enforcement of Support Act (URESA), Lita filed a complaint and affidavit regarding nonpayment of support by Robert. The documents were certified by a Nebraska judge and sent to Missoula District Court. Lita also maintained contact with the Missoula County Attorney’s office, making phone calls and personal contact. During a June 1984 conversation with a Missoula deputy county attorney about Robert being unemployed and the county therefore being unable to collect child support, there was discussion regarding Leroy adopting the boys.

In August 1988, Leroy Bronzynski petitioned to adopt the boys. When Robert was notified of Leroy’s pending adoption of the two boys, Robert did call the Bronzynskis’ lawyer and stated that he objected to the adoption, but Robert did nothing in writing. The adoption of the boys was completed in October 1988.

On June 15,1989, the Missoula County Attorney’s Office, on behalf of Lita Bronzynski, filed a Petition for Order to Show Cause alleging Robert Hagan’s failure to pay child support. A hearing was held on August 21, 1989. When questioned about his understanding regarding support and visitation, Robert testified there was no verbal agreement between Lita and him. Robert stated he did not pay child support because of an understanding they had based on “instinct” arising out of the marriage. But Robert did admit knowing that his support obligation was independent of his visitation rights and stated that he wanted to exercise visitation.

At the conclusion of the hearing the court ruled in favor of Lita. Having viewed the case in light of State ex rel. Blakeslee v. Horton (1986), 222 Mont. 351, 722 P.2d 1148, the court concluded that the facts in the present case were different from those in Blakeslee in that there was no agreement of any kind between Lita and Robert that she would not seek support if he would not exercise visitation. Therefore, the comb found, the mandates of Blakeslee did not apply to the situation and Robert was not relieved of his obligation to pay child support under the equitable exception carried out in Blakeslee. The District Court ordered Robert to pay $16,775, the amount of back child support due prior to the time Leroy adopted the children.

It is from this judgment that Robert now appeals.

On review this Court presumes the correctness of a district court judgment and will reverse such judgment only on a finding of clear abuse of discretion. In re Marriage of Jensen (1986), 223 Mont. 434, 438, 727 P.2d 512, 515. A reversal would be appropriate only if the district court “acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.” Jensen at 438, 727 P.2d at 515 (citing In re Marriage of Perry (1985), 217 Mont. 162, 166, 704 P.2d 41, 43).

On appeal Robert contends that the District Court should have exercised its equitable power to relieve him of the obligation to pay child support because the parties to the seven-year-old dissolution decree impliedly and explicitly agreed to alter its terms. Robert argues that the agreement to alter the decree is found in the fact that for the last seven years, in return for forgoing any child support, Lita has denied Robert, as the natural father, any contact with the children. Robert further asserts that only after terminating his parental rights through the adoption of the children by her husband of the last seven years did Lita seek collection of back child support. Robert argues, because the original decree has been altered to reflect the parties’ agreement, the mandates of Blakeslee should apply and Lita is equitably estopped from claiming child support.

Robert makes extensive arguments in an attempt to analogize Blakeslee to the present case. In Blakeslee the parties arrived at a mutual agreement where each stayed away from the other. After fourteen years of the mother not seeking payment of child support and the father not seeking visitation, the mother filed a petition alleging the child support provided for in the dissolution decree was due. The father did not know the whereabouts of the mother or the child and never made a child support payment. The mother never made any inquiry regarding child support payments. While noting that child support payment cannot be modified retroactively (§ 40-4-208, MCA) and that child support and visitation are separate incidents with neither being dependent or conditional on the other (§ 40-5-124, MCA), the court found the mother was equitably estopped from pursuing back child support. To give the mother back child support after fourteen years of acquiescing to the implied alteration of the decree would amount to a windfall for the mother. Such result, this Court held, would be inequitable.

This case differs significantly from Blakeslee. Here, the father had made support payments initially. Here, the father knew where the children were. Here, the father’s attorney wrote a letter requesting visitation and attempted to condition his payment of child support on his visitation of the boys and subsequently made a $50 support payment. Here, the mother started seeking support in 1982 and continued to seek child support. Here, there is no evidence of a mutual arrangement like that in Blakeslee — Lita did not consent, impliedly or explicitly, to an arrangement other than payment of the child support.

The trial court obviously recognized the import of Blakeslee to this situation. District Judge Harkin discussed its relevance at length and concluded Blakeslee does not apply.

We agree with the District Court’s conclusion. Blakeslee does not apply in this case. Contrary to Robert’s assertions that Lita now wants a windfall for herself and only sought child support after the adoption, Lita did seek child support before Leroy adopted the boys. Lita had been in contact with the Missoula County Attorney’s Office since 1982. Lita discussed the possibility of adoption in a 1984 conversation with a Missoula deputy county attorney, but no adoption proceedings were begun until 1988. Robert’s contention that Lita was lying in wait to secure an adoption and then proceed against him for back support are not supported by the facts.

We affirm.

JUSTICES SHEEHY, HARRISON, HUNT and McDONOUGH concur.


author: CHIEF JUSTICE TURNAGE

text:
    SABRINA SIMMONS, Petitioner and Respondent, v. MOUNTAIN BELL and Montana Human Rights Commission, Respondents and Appellants.
    No. 90-105.
    Submitted on Briefs Aug. 23, 1990.
    Decided Oct. 2, 1990.
    246 Mont. 205.
    806 P.2d 6.
    David M. Russoff, Montana Human Rights Com’n, John F. Sullivan, Hughes, Kellner, Sullivan & Alke, Helena, for respondents and appellants.
    J. C. Weingartner, Helena, for petitioner and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Mountain Bell and Montana Human Rights Commission appeal the decision made by the First Judicial District Court, Lewis and Clark County, which held that the 180-day statute of limitations under § 49-2-501, MCA, did not apply to an amended complaint filed by Sabrina Simmons alleging retaliatory employment termination against Mountain Bell. The amended complaint, which was filed after the expiration of the 180-day statute of limitations, asserted that Mountain Bell terminated Simmons’ employment in retaliation for her original filing of an employment discrimination action. The District Court held that Rule 15(c) of the Montana Rules of Civil Procedure applied, and the filing of the amended complaint related back to the time of the filing of the employment discrimination action. We affirm.

The appellants raise the following issue:

Does an amended complaint, asserting retaliatory employment termination and filed after the expiration of the statute of limitations, relate back to the original filing of an employment discrimination claim under Rule 15(c) of the Montana Rules of Civil Procedure?

Sabrina Simmons began her employment with Mountain Bell as an operator in the operator services division in 1977. In October, 1980, Mountain Bell promoted Simmons to service order clerk in the customer services division. On November 14,1980, Simmon sustained a chipped vertebrae as a result of an off-the-job injury, whereby she took a temporary leave from her employment.

When Simmons returned to her employment on December 9,1980, Mountain Bell notified her that she was being “retreated” from customer services back to operator services effective January 4,1981, “because of unsatisfactory work performance resulting from her absenteeism.” On January 21, 1981, Simmons filed a complaint against Mountain Bell with the Montana Human Rights Commission (HRC) alleging that her transfer back to operator services was employment discrimination based on her physical handicap of a chipped vertebrae, pursuant to § 49-2-303, MCA.

On June 10, 1981, Mountain Bell terminated Simmons from her employment for insubordination. On January 19, 1982, Simmons filed an amended complaint with HRC, which alleged that Mountain Bell terminated her employment in retaliation for her original filing of the employment discrimination action.

The charge of employment discrimination was dismissed by HRC on December 7, 1982. Simmons did not pursue further action on this charge. However, an administrative hearing was conducted by HRC on January 24-26,1984, to determine the charge of retaliatory termination. On August 13, 1984, a hearing examiner held that Simmons’ retaliatory termination charge was barred because it was not filed within the 180-day statute of limitations under § 49-2-501, MCA.

Simmons appealed the hearing examiner’s decision to HRC. Following briefing and argument, HRC issued its final decision on August 8, 1986, which affirmed the hearing examiner’s decision. Simmons, on June 18, 1986, filed a petition for judicial review of the HRC decision.

On February 6, 1987, pursuant to a stipulation signed by all parties, the District Court remanded the case to HRC for the taking of additional evidence and for reconsideration. On January 19, 1988, following additional discovery, briefing, and argument, HRC issu 'd a second decision, which concluded that Simmons’ retaliatory termination claim was barred by the 180-day statute of limitations under § 49-2-501, MCA.

Thereafter, Simmons’ petition for judicial review was briefed and argued before the District Court. On November 20,1989, the District Court remanded the case for a second time to HRC with instructions to allow Simmons’ retaliatory termination claim because its filing related back to the original filing of the employment discrimination action under Rule 15(c) of the Montana Rules of Civil Procedure, and therefore the 180-day statute of limitations, under § 49-2-501, MCA, did not apply. From this decision Mountain Bell and HRC appeal.

Does an amended complaint asserting retaliatory employment termination and filed after the expiration of the statute of limitations, relate back to the original filing of an employment discrimination claim under Rule 15(c) of the Montana Rules of Civil Procedure?

Under § 49-2-501, MCA, a complaint alleging employment discrimination must be filed with HRC, “within 180 days after the alleged unlawful discriminatory practice occurred or was discovered.” Here, Simmons filed her employment discrimination action with HRC on January 21,1981, well within 180 days of the time of Mountain Bell’s December 9, 1980, transfer notification to Simmons. Simmons, however, filed her amended complaint alleging retaliatory termination on January 19, 1982, which was not within 180 days of her June 10, 1981, termination. Mountain Bell argued that Simmons, in essence, filed two separate claims: the employment discrimination claim on January 21,1981, and the retaliatory termination claim on January 19, 1982, and the latter claim is barred by the 180-day statute of limitations under § 49-2-501, MCA.

HRC agreed with Mountain Bell and concluded that Simmons’ amended complaint alleging retaliatory termination was barred by the 180-day statute of limitations. The District Court, however, held that HRC abused its discretion in Conclusion 3 of HRC’s findings and conclusions:

“While the agency may have made a procedural error in permitting or making an amendment to the original charge to allege retaliation, the error was harmless and not to the charging party’s disadvantage because the error did not occur until it was too late to file an original charge.”

In an opinion and order dated November 20, 1989, the District Court held that “Conclusion 3 incorrectly infers that amending the original charge to allege retaliation was procedural error,” and that HRC’s findings and conclusions never explained why it was procedural error to permit the amendment. The District Court held that barring the amendment was not harmless and did disadvantage Simmons as she was denied the opportunity to have her retaliatory termination claim heard. Furthermore, the District Court held that Simmons’ amended complaint related back to the original filing of the employment discrimination action under Rule 15(c) of the Montana Rules of Civil Procedure.

We agree with the District Court. Rule 15(c) of the Montana Rules of Civil Procedure provides, in part:

“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading (emphasis added).”

Here, Simmons’ retaliatory termination charge arose out of the same transaction that was set forth in Simmons’ employment discrimination claim. In her amended complaint, Simmons’ alleged that she was terminated by Mountain Bell as a result of filing the employment discrimination action. Thus, the retaliatory termination charge was merely an additional charge to the original employment discrimination action. “[A]n amendment which changes only the legal theory of the action, or adds another claim arising out of the same transaction or occurrence, will relate back.” (citing 3 Moore’s Federal Practice 2d. § 15.15(3), p. 1021). Rozan v. Rosen (1967), 150 Mont. 121, 125, 431 P.2d 870, 872. We therefore hold that Simmons’ amended complaint alleging retaliatory termination and filed after the expiration of the 180-day statute of limitations relates back to her original filing of an employment discrimination action under Rule 15(c) of the Montana Rules of Civil Procedure.

Affirmed.

JUSTICES SHEEHY, WEBER, HUNT and McDONOUGH concur.


text:
    In the Matter of the APPLICATION OF KIMBERLY A. KRADOLFER, Applicant, v. ED SMITH, Clerk of the Montana Supreme Court, Respondent.
    No. 90-157.
    Oct. 2, 1990.
    246 Mont. 210.
    805 P.2d 1266.
   ORDER AND OPINION

On March 28, 1990, applicant, Kimberly A. Kradolfer, filed this application for declaratory judgment on original proceedings in this Court requesting that § 37-61-211, MCA, be declared invalid as a violation of the separation of powers clause of the Montana Constitution insofar as it imposes an annual license tax of $25 upon attorneys admitted to practice in the State of Montana. She requests this Court to provide appropriate relief, including enjoining respondent Ed Smith, Clerk of the Montana Supreme Court, from collecting any legislatively imposed license tax. Finally, applicant requests modification of Rule XXV(A)(6), M.Sup.Ct.R., which obligates attorneys in this state to “pay the annual attorney’s license fee as provided by law.” Exercise of original jurisdiction under Rule 17(a), M.R.App.R, is requested.

On March 29, 1990, this Court ordered the Attorney General, on behalf of respondent, Ed Smith, to file a response to the application. The State Bar was also invited to file an amicus curiae brief. The Attorney General responded on May 14, 1990. On May 24,1990, this Court invited amicus curiae briefs from any interested persons or entities. No amicus curiae briefs were received by this Court.

The applicant presently is, and was at the time of the filing of the briefs herein, an attorney admitted to practice in the State of Montana. Respondent does not challenge applicant’s standing to bring this action.

Once standing is established, we must determine whether the action meets the necessary factors for this Court to accept original jurisdiction. This Court has stated that the assumption of original jurisdiction is proper when:

“(1) constitutional issues of major state wide importance are involved; (2) the case involves pure legal questions of statutory and constitutional construction; and (3) urgency and emergency factors exist making the normal appeal process inadequate.” (Citation omitted.)

Butte-Silver Bow Local Gov’t v. State (1989), 235 Mont. 398, 401, 402, 768 P.2d 327, 329, 46 St.Rep. 87, 89.

Although “major state wide importance” of the applicant’s challenge and the urgency of deciding her claim in an original proceeding may be debatable, two factors militate toward the assumption of original jurisdiction. First, no question of fact exists. Applicant concedes the amount, if required by order of this Court, would be reasonable. Second, applicant raises an issue relating to a matter presently subject to related regulation by statute and Supreme Court rule and implicitly questions the rule’s propriety. See, Goetz v. Harrison (1969), 153 Mont. 403, 404, 457 P.2d 911, 912. We therefore accept original jurisdiction.

I.

In 1989, the legislature amended § 37-61-211, MCA, increasing the annual license tax upon attorneys admitted to practice law in this state from $10 to $25. Section 37-61-211, MCA, now reads:

“Annual license tax — municipal tax prohibited.
“(1) Every attorney or counselor at law admitted by the supreme court of the state to practice his profession within the state is required to pay a license tax of $25 a year. The tax is payable to and collected by the clerk of the supreme court on or before April 1 of each year.
“(2) Upon the payment of the tax, the clerk shall issue and deliver a certificate to the person paying the tax, certifying to the payment of the license tax and stating the period covered by the payment.
“(3) A license tax may not be imposed upon attorneys by a municipality or any other subdivision of the state.”

The Clerk of Court is directed under § 37-61-212, MCA, to collect delinquent taxes through judicial proceedings.

Pursuant to § 37-61-214, MCA, attorneys who have not paid the tax are prohibited from practicing law and, if they do practice, are guilty of a misdemeanor punishable by a fine of not less than $25.

Rule XXV(A)(6), M.Sup.Ct.R., recognizes the statutory license tax requirement and also provides a practice-related sanction:

“ATTORNEY’S LICENSE FEE. Each attorney admitted in the State of Montana shall pay the annual attorney’s license fee as provided by law. With the exception of attorneys who assume judicial office, when an attorney discontinues the payment of the annual license fee for three consecutive years, that attorney’s name shall be removed from the list of persons engaged in the practice of law, and shall be restored to active practice only by an order of the Supreme Court of Montana which shall be based upon an application containing the information required by the Clerk of Court. In the exercise of its discretion, the Court may waive these requirements.
“No certificates of admission of good standing at the Bar of the State of Montana shall be given unless the applicant’s name is on the list of persons engaged in the active practice of law.”

The dispositive issue in this proceeding is whether § 37-61-211, MCA, is unconstitutional because it violates the separation of powers clause contained in Art.III, Sec.l of the Montana Constitution.

II.

Applicant contends that § 37-61-211, MCA, constitutes an attempt to condition access to the practice of law upon payment of the $25 fee and therefore impermissibly infringes upon this Court’s constitutional authority to supervise and regulate attorneys and the practice of law Applicant requests this Court to declare § 37-61-211, MCA, invalid and to modify Rule XXV(A)(6), M.Sup.Ct.R., Attorneys and Counselors-At-Law, to reflect that only this Court has the authority to govern the practice of law by setting a license fee.

A fundamental principle of our system of government is the separation of powers of the three branches of government. Each branch is independent and co-equal and is immune from the control of the other two branches of government in the absence of express constitutional authority to the contrary. State ex rel. Morales v. City Comm’n (1977), 174 Mont. 237, 240, 570 P.2d 887, 889. This doctrine is found in the 1972 Montana Constitution, Art. III, Sec. 1, as follows:

“The power of the government of this state is divided into three distinct branches — legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.”

In Harlen v. City of Helena (1984), 208 Mont. 45, 676 P.2d 191, this Court invalidated an attempt by the City of Helena to require attorneys, along with other businesses, to pay an annual license fee for businesses in the city. This Court held the ordinance invalid because it infringed upon the constitutional authority of this Court to supervise and regulate attorneys and the practice of law. This Court stated:

“Mont. Const. Art. VII, Section 2, Cl. 3, states that this Court may ‘make rules governing ... admission to the bar and the conduct of its members.’ We have construed this provision to give this Court ‘exclusive authority to promulgate such rules.’ Matter of Petitions of McCabe & Zeman (1975), 168 Mont. 334, 339, 544 P.2d 825, 827-28. Even before the adoption of article VII, Section 2, clause 3, we had held that the admission and regulation of attorneys in Montana is a matter peculiarly within the inherent power of this Court. Goetz v. Harrison (1969), 153 Mont. 403, 404, 457 P.2d 911, 912. Any attempt by another branch of government to interfere with this constitutional prerogative interferes with the doctrine of separation of powers as codified in Mont. Const. Art. III, Section 1. Cf. Matter of Senate Bill No. 630 (1974), 164 Mont. 366, 369, 523 P.2d 484, 486 (state legislation affecting admission to bar contravenes Supreme Court authority over same subject). As the Supreme Court of Pennsylvania concluded in Sterling v. City of Philadelphia (1954), 378 Pa. 538, 106 A.2d 793:
“ ’[L]awyers are officers of the courts and it is solely from the courts that they derive the authority to practice their profession; the legislative branch of government, whether state or municipal, can neither grant nor revoke such authority, nor prescribe or in any manner interfere with their functions and activities, nor regulate the conduct of their practice. If, therefore, [an] ... ordinance involved any encroachment upon the judiciary it would represent but a vain attempt on the part of municipal authorities to exercise a power which they do not possess.’
378 Pa. 538, 106 A.2d at 796.”

Harlen, 676 P.2d at 193.

It is clear that the legislature cannot restrict or impair the exclusive power of this Court to regulate the practice of law. Section 37-61-211, MCA, in conjunction with the attendant penalty provision contained in § 37-61-214, MCA, has the effect of regulating the practice of law in that an attorney may not practice law in Montana without paying the license tax.

However, the fact that this Court has the exclusive authority to regulate the practice of law does not mean that the legislature cannot, in certain limited circumstances, act in this area. This Court may honor the statutory license tax “as a matter of comity” without surrender of its exclusive authority to regulate the practice of law. Board of Overseers v. Lee (Me. 1980), 422 A.2d 998, 1003; accord, State ex rel. Quelch v. Daugherty (W.Va. 1983), 306 S.E.2d 233, 235 (“[t]he Judicial Branch may honor legislative enactments in aid of judicial power, but it is clearly not bound to do so”); State ex rel. Frieson v. Isner (1981), 168 W.Va. 758, 285 S.E.2d 641, 654 (“[w]here ... the intrusion upon the judicial power is minimal and inoffensive, and is consistent with and intended to be in aid of the aims of the Court with respect to the regulation of the practice of law, such legislation may be upheld as being in aid of the judicial power”).

The license taxes collected pursuant to § 37-61-211, MCA, are deposited into the general fund and reverted to the Supreme Court to operate and process licenses for attorneys. As the applicant concedes, the $25 tax is a reasonable amount to cover the respondent’s cost of processing the information and to maintain the list of attorneys entitled to practice law in the State of Montana. We hold that § 37-61-211, MCA, by virtue of the fact that the $25 license tax is a minimal and inoffensive intrusion upon this Court’s constitutional prerogative, is valid as a legislative enactment in aid of the power of this Court to regulate the practice of law.

Accordingly, we hold in favor of the respondent and against the applicant and enter declaratory judgment in favor of respondent. This opinion shall constitute such a judgment without further action or other documents or instruments being filed.

DATED this 2nd day of October, 1990.

s/ J.A. Tumage, Chief Justice

s/ John Conway Harrison, Justice

s/ Diane G. Barz, Justice

s/ R. C. Me Donough, Justice

s/ William E. Hunt, Sr., Justice

s/ John C. Sheehy, Justice

s/ Fred J. Weber, Justice