author: MR. JUSTICE SHEEHY

text:
    In the MATTER OF THE ADJUDICATION of the Existing Rights to the Use of all the Water, Both Surface and Underground, Within the SAGE CREEK DRAINAGE AREA, Including all Tributaries of the Sage Creek in Liberty and Hill Counties, Montana. In the MATTER OF THE ADJUDICATION of the Existing Rights to the Use of all the Water, Both Surface and Underground Within the BOULDER RIVER DRAINAGE AREA Including all Tributaries of the Boulder River, Tributary of the Yellowstone River, in Sweet Grass and Park Counties, Montana.
    No. 87-528, 88-92.
    Submitted Sept. 13, 1988.
    Decided Oct. 11, 1988.
    763 P.2d 644.

      Moore, Rice, O’Connell & Refling, David Moon argued, J. David Penwell argued, Bozeman, for appellant.
    Lilly, Andriolo & Schraudner, Leanne Schraudner argued, Matthew W. Williams, Bozeman, Edward Borer, Keith Tokerud argued, Great Falls, Kenneth P. Pitt, Asst. U.S. Atty., Missoula, Eileen Shore, Dept. Fish, Wildlife & Parks, Helena, Linda Hickman, Water Master, Bozeman, John R. Hill, Jr., argued, U.S. Dept, of Justice, Denver, Colo., for respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

We determine in these cases consolidated for appeal that there is no right of appeal granted to a water right claimant under the state water rights adjudication process [Sections 85-2-201, -243, MCA], except from a final decree entered under Section 85-2-234, MCA; that the Montana Rules of Civil Procedure are included in the rules that govern the practice of the Water Courts [Rule 1.11(2), Water Claims Examination Rules]; that Rule 54(b) of the Montana Rules of Civil Procedure provides for and allows a water right claimant to seek and procure from the Water Court an express direction for the entry of a final judgment as to his water right claim, upon the express determination of the Water Court that there is no just reason for delay; and that such action of the Water Court under Rule 54(b) would be and constitute a final judgment within the meaning of Section 85-2-235, MCA, providing for appeals from the Water Court.

In each of the above captioned cases, we were presented with the common issue of the appealability from an interlocutory order of the Water Court. Since we have not before spoken on this precise issue, we consolidated the captioned cases for disposal as to that issue, reserving decision if need be on the remaining issues on each cause. Oral argument was granted and heard on the common issue of appealability and now, having fully considered the matter, we determine that in each case the appeal must be dismissed, subject to further proceedings in the Water Court as hereafter discussed.

NO. 87-528 (SAGE CREEK)

Rambo Grain and Cattle Company, the Lazy DX Ranch, and Terry and Mary Stevenson separately appeal from an order of the Water Court, dated October 18, 1987, modifying an earlier temporary preliminary decree entered in the Sage Creek Drainage adjudication, holding that the doctrine of collateral estoppel bars these appellants from claiming any water rights different from those found in an earlier District Court judgment outside the Water Court.

Sage Creek Colony has also appealed, and Burkhartsmeyer Land Company has cross-appealed, though these parties appear to be content with the October 18, 1987 order of the Water Court.

In 1974, Burkhartsmeyer, Rambo, Stevenson (now Lazy DX Ranch) and Black Butte Ranch (not a party to the appeal) filed a complaint in the District Court, Twelfth Judicial District, Hill County, under Section 85-2-406(2), MCA, against Sage Creek Colony. The plaintiffs in that case claimed that Sage Creek Colony was interfering with their water rights in Sage Creek. All of the parties relied on notices of appropriation to establish their respective water rights. The Hon. W. W. Lessley, sitting in 1982 as a district judge in that case, made findings of fact and conclusions of law. The court determined that Sage Creek Colony had the earliest priority dates established in 1890 and 1891. Rambo and Burkhartsmeyer were accorded one early right each, with a priority date of 1898. Other water rights claimed by Rambo, Burkhartsmeyer and Stevenson were denied by the District Court because the alleged current places and uses of the waters failed to match the land described in the prior notices.

No appeal by any party was taken from the District Court judgment entered under Section 85-2-406(2), MCA. Later, in the Water Court proceedings adjudicating the Sage Creek Drainage area, a preliminary decree was issued on December 29, 1983 by the Water Court. The preliminary decree was ordered changed by the Water Court on August 27, 1984, to a “temporary preliminary decree.” Objections to the temporary preliminary decree were filed by Burkhartsmeyer, Rambo, Sage Creek Colony, and other parties. Burkhartsmeyer objected that the water rights accorded the parties by the 1982 decree in the District Court action had not been included in the temporary preliminary decree of the Water Court. After hearing, the water master prepared a report and Judge Lessley, by order, adopted the report on October 18, 1987, which conformed the parties’ rights to water in Sage Creek pursuant to the 1982 District Court decree. The Water Court held that collateral estoppel applied to these parties as between themselves because of the 1982 decree in the District Court action, and that the rights of the parties as between themselves had there been finally adjudicated.

Sage Creek appealed from the Water Court order; Rambo followed suit, as did the Stevensons. Burkhartsmeyer also filed a notice of appeal.

Rambo and Stevenson both contend that appeal in this case should lie. Sage Creek and Burkhartsmeyer each contend that an appeal does not lie.

Sage Creek argues that the Water Court order of October 18, 1987 is clearly interlocutory and settles a very narrow issue, whether collateral estoppel bars these parties from further litigating their water rights in the Water Court. It contends that the only appeal permitted in Water Court proceedings is from a final decree entered under Section 85-2-234, MCA, for which the right of appeal is granted in Section 85-2-235, MCA.

Burkhartsmeyer likewise contends that an appeal does not lie from an interlocutory order. It cites Bostwick v. Department of Highways (1980), 188 Mont. 313, 613 P.2d 997, and distinguishes our earlier decisions in State ex rel. Greely v. Water Court (Mont. 1984), [214 Mont. 143,] 691 P.2d 833, 41 St.Rep. 2373; and Esther McDonald v. State of Montana (Mont. 1986), [220 Mont. 519,] 722 P.2d 598, 43 St.Rep. 1397. Burkhartsmeyer further contends that Section 85-2-235, MCA, is not ambiguous and that no appeal lies in Water Court proceedings except from a final decree.

On the other hand, Rambo argues that an appeal should lie in this case because as to these parties, the decision of the Water Court applying collateral estoppel is a “final decree” of their water rights, since they cannot litigate any further. Rambo also argues that a literal reading of Section 85-2-235, MCA, makes no sense now and will cause backlogs in the Supreme Court when final decrees are finally entered in the various basins of Montana.

Stevensons and the Lazy DX Ranch also argue that their rights are now definitely resolved by the Water Court, that the objection deadlines for water rights in the temporary preliminary decree for Sage Creek is now over and hence there can be no subsequent attack on these particular uses. Stevensons then argue that unless an appeal is now allowed, the result would be waste, duplication of effort, and overall uncertainty which cannot be the legislative intent under Section 85-2-234, MCA.

NO. 88-092 (BOULDER RIVER DRAINAGE)

In the Boulder River Drainage adjudication, Don C. Cowles appeals from an order of the Water Court, dated January 13, 1988 by the Hon. W. W. Lessley, Chief Water Judge, holding that water rights claimed by Cowles for certain mining rights “. . . have been abandoned and such shall be removed from the temporary preliminary decree of existing water rights in the Boulder River, tributary of the Yellowstone River Basin.”

United States of America, as appellee, has moved to dismiss the appeal of Cowles to this Court for lack of jurisdiction. The United States contends that a temporary preliminary decree is but a preliminary step to the final adjudication of water rights in the Boulder River Basin. Water Court Rule No. 1.11(7) provides that any decree of the Water Court which is not a final decree under Section 85-2-234, MCA, shall be considered a temporary preliminary decree or interlocutory decree. The United States contends that a party may not appeal from an interlocutory or non-final order. Blevins v. Kramer (1978), 179 Mont. 193, 587 P.2d 28. It argues that absent an express determination by the Water Court of no just reason for delay or an express direction for the entry of a final judgment, this Court lacks jurisdiction to entertain an appeal. Knoepke v. Southwestern Railway Company (1979), 182 Mont. 74, 595 P.2d 376. The federal government relies particularly upon Roy v. Neibauer (1980), 188 Mont. 81, 610 P.2d 1185 for its contentions that a temporary preliminary decree is not a final judgment appealable under the Montana Rules of Appellate Civil Procedure; that when premature appeals are brought in this Court, it is the duty of the parties to bring the lack of jurisdiction to the attention of the Court, and that if the appeal is now allowed, it might again face the same issue when a final decree is entered in the Boulder River basin.

DISCUSSION

A right of appeal exists only by statute or rule, and without a supporting statute or rule, there can be no appeal. State ex rel. Adamson v. District Court, Fourth Judicial District, Lake County (1955), 128 Mont. 538, 279 P.2d 691; McClurg v. Flathead County Commissioners (1978), 179 Mont. 518, 587 P.2d 415. The right of appeal is purely statutory. Sheridan County Electric Coop v. Anhalt (1953), 127 Mont. 71, 257 P.2d 889.

The statutory provision for the entry of a final decree in water right claims adjudication is found in Section 85-2-234, MCA. The only right of appeal expressed in the statutes pertaining to Water Court adjudications is found in Section 85-2-235, MCA. We offer that statute for examination:

“A person whose existing rights and priorities are determined in the final decree may appeal the determination only if:
“(1) he requested a hearing and appeared and entered objections to the preliminary decree; or
“(2) his rights as determined in the preliminary decree were altered as the result of a hearing requested by another person.”

An interlocutory order is normally not appealable unless there is a specific provision making it so. State ex rel. Kesterson v. Dis trict Court, Fourth Judicial, Missoula County (1980), 189 Mont. 20, 614 P.2d 1050; Schultz v. Adams (1973), 161 Mont. 463, 401 P.2d 530.

Under the Water Court rules, which we have promulgated, we have defined “final decree,” “temporary preliminary decree,” and “preliminary decree.”

“ ‘Final Decree’ means the final Water Court determination of existing water rights within a basin or subbasin, as described in Section 85-2-234, MCA.”

(Rule 1.111(23), Montana Water Right Claims Examinations Rules.)

“ ‘Temporary Preliminary Decree’ means a water court prior to the issuance of the preliminary as necessary for the orderly administration of existing water rights pursuant to Section 85-2-231, MCA.”

(Rule 1.111(51), Rules, supra.)

“ ‘Preliminary Decree’ means the preliminary water court determination of existing water rights within a basin or subbasin or described in section 85-2-231, MCA, which precedes the final decree.”

(Rule 1.111(43), Rules, supra.)

The Rules contemplate that the Water Court, by an order, can designate a temporary preliminary decree to assume the effect of a preliminary decree:

“The Water Court may order that any temporary preliminary decree or other interlocutory decree heretofore or hereafter entered in any action pending before the Water Court, as amended by the inclusion of a determination of Indian or Federal Reserved water rights, shall be and constitute a preliminary decree in accordance with Section 85-2-231, MCA, and the procedures related to preliminary decrees set forth in Sections 85-2-231, 85-2-232, 85-2-233, 85-2-234, shall thereafter occur with respect to such preliminary decree.”

(Rule 1.11(7), Rules, supra.)

The parties contending here for a right of appeal point to State ex rel. Greely v. Water Court and Esther McDonald v. State of Montana, supra., wherein, because of exigent circumstances, we accepted jurisdiction of cases involving the Water Court before entry of a final decree. In those cases, however, we had problems of statewide impact and our jurisdiction was founded upon our power of supervisory control of the Water Courts. Moreover, those decisions affected many adjudications and not the narrowly defined issues that are presented in the cases before us now.

We recognize, too, the difficulties faced by the proposed appellants in these consolidated cases. In Cowles’ case, a final determination as to his water rights for his mining claims is essential to him. In the Sage Creek drainage case, if appeal is not allowed now, objections to the collateral estoppel doctrine are postponed until a final decree is entered on Sage Creek. In water adjudication matters, final decrees may yet be a long way off.

However, we have no jurisdiction to entertain these appeals, and if we accepted them, we would open the door to appeals from every interlocutory order made by the Water Courts in the thousands of adjudications being made there.

We are helped to a final disposition of these proposed appeals by our decision in Hill v. Merrimac Cattle Company, Inc. (1984), 211 Mont. 479, 687 P.2d 59, 65. In that case, an original action was brought in the District Court, Tenth Judicial District, Judith Basin County by Merrimac against Hill, alleging trespass and seeking injunctive relief and damages for Hill’s actions. Hill had already filed an action in Water Court to determine the priorities of the rights of the parties to the streams in question. The Water Court determined their respective water rights first, while the trespass and damage claims were reserved in the separate District Court action until the final determination of the water rights litigation. In that case, Merrimac argued on appeal from the Water Court adjudication between the parties that we had no jurisdiction because there was no final decree under Section 85-2-235, MCA. We retained jurisdiction, however, and decided the appeal, because the Water Court had entered a Rule 54(b) certification, because the dispute involved only two parties who had to know their water allowances, and because the remaining issues pending in the District Court could not be decided until the Water Court issues had been determined, which affected the parties’ right to a speedy trial.

The Montana Rules of Civil Procedure are a part of the rules governing the practice in the Water Courts:

“Application of other rules; admissibility of DNRC Data. Except as where specifically provided for in these rules, the Montana Rules of Civil Procedure (M.R.Civ.P.), the Montana Rules of Evidence (M.R.Evid.) and the Supreme Court of Montana, Uniform Court Rules for Local District Courts govern the practice of the water courts.”

Rule 1.11(2), Water Claims Examination Rules.

Under the rules therefore, a water right claimant who is a litigant before the Water Court has the right to move in the Water Court for a Rule 54(b) certificate when the litigant is adversely affected by an interlocutory order or a temporary preliminary decree of the Water Court. Rule 54(b), M.R.Civ.P., provides:

“Judgment upon multiple claims or involving multiple parties. When multiple claims for relief or multiple parties are involved in an action, the court may direct the entry of a final judgment as to one or more but fewer than all the claims or parties only upon the express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or form of decision, however designated, which adjudicates less than all the claims or rights of liabilities of all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and rights and liabilities of all the parties.”

From the provisions of Rule 54(b), we can see that its purpose is to retain jurisdiction in the District Court and in this case, the Water Court, with power to revise the judgment at any time before the entry of final judgment adjudicating all of the claims therein involved. In those cases where the court determines that there is no just reason for delay and that its determination is in effect and fact final, the court may permit an appeal by granting a Rule 54(b) certificate.

In discussing the use and purpose of Rule 54(b) in its federal version, the United States Supreme Court said in Sears, Roebuck and Company v. Mackey (1956), 351 U.S. 427, 435, 76 S.Ct. 895, 100 L.Ed 1297:

“In this form, it does not relax the finality required of each decision, as an individual claim, to render it appealable, but it does provide a practical means of permitting an appeal to be taken from one or more final decisions on individual claims, in multiple claims actions, without waiting for final decisions to be rendered on all the claims in the case. The amended rule does not apply to a single claim action nor to multiple claims actions in which all of the claims have been finally decided. It is limited expressly to multiple claims actions in which ‘one or more but less than all’ of the multiple claims have been finally decided or are therefore otherwise ready for appeal. (Emphasis in original.)”

351 U.S. at 435, 76 S.Ct. at 899, 100 L.Ed at 1306.

In the federal system, as in Montana’s, an appeal is permitted from a district court to the United States Court of Appeals only from a final order or judgment. 28 U.S.C. Section 1291. In Sears, Roebuck and Company, supra, the Supreme Court decided that under a Rule 54(b) certificate a preliminary order became a final judgment within the meaning of Section 1291. That Court stated:

“. . . The District Court cannot in the exercise of its discretion treat as ‘final’ that which is not final within the meaning of Section 1291. But the District Court may by the exercise of its discretion of the interest of sound judicial administration, release for appeal final decisions upon one or more, but less than all claims of mulitple claims actions. The timing of such a release is, with good reason, vested by the rule primarily in the discretion of the District Court as the one most likely to be familiar with the case and with any justifiable reasons for delay. With equally good reason, any abuse of that discretion remains reviewable by the court of appeals.
“Rule 54(b), in its amended form, is a comparable exercise of the rulemaking authority of this Court. It does not supersede any statute controlling appellate jurisdiction. It scrupulously recognizes the statutory requirement of a ‘final decision’ under Section 1291 as a basic requirement for an appeal to the court of appeals. It merely administers that requirement in a practical manner in multiple claims actions and does so by rule instead of by judicial decision. By its negative effect it operates to restrict in a valid manner the number of appeals in multiple claims actions.
“We reach a like conclusion as to the validity of the amended rule where the District Court acts affirmatively and thus assists in properly timing the release of final decisions in multiple claims actions. The amended rule adapts the single judicial unit theory so that it better meets the needs of judicial administration. Just as Rule 54(b) in its original form resulted in the release of some decisions in claims in multiple claims actions before they would otherwise be released, so amended Rule 54(b) now makes possible the release of more of such decisions subject to judicial supervision. The amended rule preserves historic federal policy against piecemeal appeals in many cases more effectively than did the original rule. (Emphasis in original.)”

351 U.S. at 437-438, 76 S.Ct. 900-901, 100 L.Ed. 1307.

The objectives of Rule 54(b] which were approved by the United States Supreme Court in Sears, Roebuck, are the same objectives of Rule 54(b) of the Montana Rules and are similarly approved by us. In Water Court adjudications, therefore, in proper cases, the Water Court may exercise its jurisdiction to determine to release for appeal certain of its interlocutory orders or decrees by issuing a Rule 54(b) certificate.

We must regard the provisions of Section 85-2-235, MCA, providing only for appeals from a final decree as an expression of state policy against piecemeal appeals. It follows that Rule 54(b) orders should not be entered routinely or as a courtesy or accommodation to counsel. Panichella v. Pennsylvania Railroad Company (3d Cir. 1958), 252 F.2d 452, 455. On the other hand, the “harsh case” test is neither workable nor entirely reliable as a benchmark for appellate review as noted by the Supreme Court in Curtiss-Wright Corporation v. General Electric Company (1980), 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1. As that Court stated, “because the number of possible situations is large, we are reluctant either to fix or sanction narrow guidelines for the [water] courts to follow.” 446 U.S. at 10-11, 100 S.Ct. at 1466.

In the status of the present cases before this Court, where no Rule 54(b) certificates were sought or granted, we hold that we have no jurisdiction to hear these appeals. We therefore dismiss each of these appeals and remand the causes to the Water Court, but without prejudice to the respective parties seeking Rule 54(b) certificates, a matter we leave to the reasonable discretion of the Water Courts.

Dismissed. No costs to any party. Let remittitur issue forthwith.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, McDONOUGH, GULBRANDSON and HUNT and MR. CHIEF JUSTICE HASWELL, retired, sitting for MR. JUSTICE WEBER concur.


source: Caselaw Access Project

author: MR. JUSTICE McDONOUGH

license: Public Domain

text:
    JOHN A. STARK and Nadine A. Stark, husband and wife, Plaintiffs and Respondents, v. MAYNARD BORNER and Opal Borner, husband and wife, Defendants and Appellants.
    No. 88-231.
    Submitted on Briefs Aug. 26, 1988.
    Decided Oct. 12, 1988.
    762 P.2d 857.

      Richard J. Carstensen, Billings, for defendants and appellants.
    Rodd A. Hamman, Calton, Hamman, Calton & Wolfe, Billings, for plaintiffs and respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Defendants Maynard and Opal Borner (Borners) appeal from the order of the District Court of the Tenth Judicial District, Fergus County. The District Court, after considering the case on remand from this Court, determined that its original findings were correct and granted summary judgment in favor of plaintiffs John and Nadine Stark (Starks). We affirm, but remand to the District Court for an evidentiary hearing on attorney’s fees.

The Borners frame three issues on appeal:

1. Whether this Court’s directions on remand were followed by the District Court.

2. Whether the Starks’ acquisition of good title after the summary judgment hearing could be considered by the District Court.

3. Whether the award of attorney’s fees was proper.

This suit is based on a contract for deed. The Starks entered into the contract to buy a ranch from a couple who are not parties to this suit. The Starks later entered into a second contract to sell the ranch to the Borners.

The contract between the Starks and the Borners provided payments from the Borners would be made to an escrow agent, who would apply the money toward the Starks’ payments under the first contract for deed. The remainder would be paid to the Starks. The Starks’ obligation under the first contract would be paid before the Borners completely paid their obligation under their contract with the Starks. Once the Borners’ obligation was paid, the Starks would then convey title to the ranch.

The second contract also provided if the Borners failed to make a scheduled payment, they would receive a notice giving them 60 days to cure their default. If the default remained uncured after 60 days, the contract provided the Starks could then send a notice of acceleration. The acceleration notice would give the Borners 60 days to pay the entire amount due on the contract or the contract could be terminated. The contract further provided if either party were forced to undertake legal action to enforce contract terms, the party at fault would be responsible for paying any reasonable attorney’s fees incurred by the prevailing party.

Three years into the contract, the Borners missed a scheduled payment. They failed to cure their default and failed to respond to the Starks’ notice of acceleration. The Starks sued, electing termination of the contract and forfeiture of all amounts paid by the Borners toward the purchase, and seeking an injunction directing the Borners to surrender possession of the land in question pending the outcome of the suit. We addressed certain other issues in this case in Stark v. Borner (Mont. 1987), [226 Mont. 356,] 735 P.2d 314, 44 St.Rep. 717, in which the Borners appealed from the District Court’s order granting the preliminary injunction.

In our prior opinion, we remanded this case to the District Court for consideration of one particular issue. Under the rule most recently enunciated in Sharbono v. Darden (Mont. 1986), [220 Mont. 320,] 715 P.2d 433, 43 St.Rep. 400, a seller of real estate cannot enforce a forfeiture provision in a contract for deed if unable to convey good title at that time. Both parties agree when the Borners defaulted, the Starks still owed money on the land in question under the first contract for deed.

The District Court held a hearing at which it considered the preliminary injunction on remand from this Court, and heard argument on the Starks’ motion for summary judgment. The court held Sharbono did not apply to the facts of this case and granted summary judgment in favor of the Starks. This appeal followed.

I.

The Borners’ first argument on appeal is that the District Court failed to follow the direction of this Court on remand. According to the Borners, we required the court to find that Sharbono applied to this case, and the injunction was therefore improper. We disagree.

Our direction to the court on remand did not require a particular result:

“This Court is concerned, however, about the lack of any findings regarding the sellers’ ability to convey title after they accelerated payment.
“Therefore, this Court sustains the District Court’s issuance of the preliminary injunction pending the District Court’s determination on remand as to whether its findings were proper in light of the above cited cases.”

Stark, 735 P.2d at 318 (emphasis supplied). Our opinion directed the court to make its own determination as to the propriety of its ruling in light of Sharbono. The court’s order of January 29, 1988 did that. The court held, that Sharbono and its predecessors did not apply to this case.

In Sharbono, the buyers had performed the contract except the final balloon payment. They refused to make the final payment because the seller had not satisfied a previous mortgage on the property, and therefore could not perform her part of the contract. The buyers had contracted to receive good title upon making the balloon payment. The seller had breached, and full performance by the buyers would not have gained what they had bargained for. We held the buyers’ non-payment was therefore excused.

In this case, it was the Borners — the buyers — who breached, and caused the Starks’ alleged inability to convey good title. The contract specifically provided payments from the Borners would go first to satisfy the Starks’ existing liability on the property. Continued performance by the Borners thus would have gained what they bargained for: clear title to the land. We recently held that termination and forfeiture in this situation is proper. Burgess v. Shiplet (Mont. 1988), [230 Mont. 387,] 750 P.2d 460, 45 St.Rep. 293. The District Court followed the direction from this Court on remand, and we affirm on this issue.

II.

The Borners next assert the District Court, in ruling on the Starks’ motion for summary judgment, improperly considered facts that occurred after hearing was had on the motion. The hearing was held on August 11,1987, and the court’s order was issued in January of 1988. In October of 1987, the Stark’s arranged to pay off the balance due on the land, and obtained clear title. The Borners argue because the Starks could not have prevailed on the motion without having the ability to convey clear title, the court must have considered the October, 1987, transaction in arriving at its ruling.

This argument fails for the same reasons given above. The Borners’ position is that the Starks could not seek termination and foreclosure unless they could convey good title pursuant to the rule in Sharbono. Sharbono, however, does not apply.

When reviewing a summary judgment order, we apply the same standard as the trial court. If the moving party shows there is no genuine issue as to facts that are material in light of the substantive principles entitling that party to judgment as a matter of law, we will affirm the ruling. Frigon v. Morrison-Maierle, Inc. (Mont. 1988), [233 Mont. 113,] 760 P.2d 57, 45 St.Rep. 1344, and cases cited therein. The Borners admit they have breached the contract. There is no issue of material fact regarding the Stark’s entitlement to the remedies provided for in the contract. We affirm the District Court’s ruling on this issue.

III.

The Borners’ final argument on appeal is that the District Court was incorrect in awarding attorney’s fees to the Starks. The Borners cite our decision in Crncevich v. Georgetown Recreation Corp. (1975), 168 Mont. 113, 541 P.2d 56, for the proposition that attorney’s fees cannot be awarded absent proof.

After the court granted summary judgment in favor of the Starks, counsel for the Starks filed an Affidavit of Attorney’s Fees with the court and served it on counsel for the Borners. The Borners did not object or otherwise respond to the affidavit, and the court awarded the fees requested as part of its final judgment. While the contract provided for the award of reasonable attorney’s fees, we have held it improper to award attorney’s fees solely on the affidavit of counsel without holding an evidentiary hearing on the matter. Keller v. Llewellyn (1977), 175 Mont. 164, 573 P.2d 166.

We affirm the decision of the District Court, set aside its award of attorney’s fees, and remand the case with instructions to hold an evidentiary hearing on attorney’s fees.

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


author: MR. JUSTICE HARRISON MR. JUSTICE SHEEHY,

text:
    GEORGE HARPER, Sue Fifield, Hugh Standley, Jo Lindberg, Marcia Schreder, Francis Maroncelli, Constitutional Defense Campaign against C-18, Montana Low-Income Coalition, et al., Plaintiffs and Appellants, v. MIKE GREELY, Attorney General, State of Montana, Defendant and Cross-Appellant, and Verner Bertelsen, Secretary of State, State of Montana, Defendant and Respondent.
    No. 88-444.
    Submitted on Briefs. Sept. 9, 1988.
    Decided Oct. 12, 1988.
    763 P.2d 650.

      Steven Bunch and Michael Sinclair, Montana Legal Services, Helena, James Goetz, Bozeman, Robert Wood, Andree LaRose, Montana Advocacy Program, Helena, for plaintiffs and appellants.
    Mike Greely, Atty. Gen., Joe R. Roberts and Kimberly Kradolfer, Asst. Attys. Gen., for defendant and respondent.
    Gregory J. Petesch and Valencia Lane, Legislative Council, Dennis Lopach, Montana Legal Defense Fund, Helena, for amicus curiae.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

The appellants brought this action in the District Court, Lewis and Clark County, requesting that House Bill 637 (Ch. 343, 1987 Mont. Laws) be declared unconstitutional, unlawful, void and to enjoin the Secretary of State from placing the constitutional amendment proposed by the Bill on the November, 1988 ballot. The appellants further requested that the Secretary of State be enjoined from publishing the proposed amendment to the voter information pamphlet to be mailed to the Montana voters before the election.

Specifically, the appellants contest the sufficiency of the statement of purpose (title of HB 637) and the statements of implication to the “for” and “against” statements found in HB 637.

It is agreed that there are no factual issues in dispute and the matter is to be treated as a request for a declaratory judgment. The District Court dismissed the appellants’ complaint on the grounds that there is no trace of authority for pre-election nullification of legislative referendum and absolutely no express authority for that court to review a legislatively proposed statement of implication. This appeal is then from that order dismissing the complaint. We agree with the District Court and its finding that there is no statutory authority for judicial pre-election nullification of a legislative referendum in this case.

The appellants and the Attorney General stipulated, and this Court ordered on August 22,1988, that the record on appeal shall be the current District Court file supplemented by the Attorney General’s revised explanatory statement and any information from the Secretary of State pertaining to county requests for abbreviated ballots, ballot printing deadlines or other information related to preparation of the ballots.

Among the numerous parties involved in this case, those submitting briefs include the Montana Legal Services Association, Montana Advocacy Program, the Attorney General of the State of Montana, the Montana Legislative Council and the Montana Legal Defense Fund.

Over the fifteen years since adoption of Montana’s 1972 Constitution, no provision in that Constitution has received more attention than Article XII, which relates to the economic assistance and social rehabilitative services to those in need. A number of cases are indicative of the interest and the problems that have arisen because of this provision. Those cases include: Butte Community Union v. Lewis (Mont. 1987), [229 Mont. 212,] 745 P.2d 1128, 44 St.Rep. 1911; State ex rel. Boese v. Waltermire (Mont. 1986), [224 Mont. 230,] 730 P.2d 375, 43 St.Rep. 2156; State ex rel. Harper v. Waltermire (Mont. 1984), [213 Mont. 425,] 691 P.2d 826, 41 St.Rep. 2212; State ex rel. Mont. Citizens for the Preservation of Citizens’ Rights v. Waltermire (Mont. 1987 [86]), [224 Mont. 273,] 729 P.2d 1283, 43 St.Rep. 2192; State ex rel. Mont. Citizens for the Preservation of Citizens’ Rights v. Waltermire (Mont. 1987), [227 Mont. 85,] 738 P.2d 1255, 44 St.Rep. 913; and State ex rel. Montanans for the Preservation of Citizens’ Rights v. Waltermire (Mont. 1988), [231 Mont. 406,] 757 P.2d 746, 45 St.Rep. 719.

This philosophy of caring for the needy is not new to Montana, Article X, Section 5 of our original Constitution of 1889, State Institutions and Public Buildings, was directed to this very problem. Article X, Section 5, Mont. Const (1889) read:

“The several counties of the state shall provide as may be prescribed by law for those inhabitants, who, by reason of age, infirmity or misfortune, may have claims upon the sympathy and aid of society.”

That section and the numerous cases interpreting it served this state for over eighty years through depressed times, including the Great Depression of the 1930s. It was not until Montana’s 1972 Constitutional Convention met that a new philosophy of caring for those in need evolved in this state. The new article, Article XII, Section 3, again is directed at institutions and assistance. Section 3(3) states the philosophy of the 1972 Constitution:

“(3) The legislature shall provide such economic assistance and social and rehabilitative services as may be necessary for those inhabitants who, by reasons of age, infirmities, or misfortune may have need for the aid of society.”

From this subsection comes the understandings and misunderstandings of the people of this state as to whether this section guarantees a constitutional right to public assistance for the citizens of this state. In Butte Community Union v. Lewis (Mont. 1986), [219 Mont. 426,] 712 P.2d 1309, 1312, 43 St.Rep. 65, 68, Mr. Justice Morrison writing for the majority noted:

“There is no constitutional right to welfare within the Montana Constitution’s Declaration of Rights. Further, the right to welfare is not a right upon which constitutionally guaranteed rights depend. In fact, welfare is more properly characterized as a benefit. Since welfare is not a fundamental right, strict scrutiny does not apply and the State need show something less than a compelling state interest in order to limit that right.”

It should be noted that in this opinion Mr. Justice Sheehy, while specially concurring, stated:

“I do not wish to be bound by the statement in the majority opinion that fundamental rights under the Montana Constitution must be found within the Declaration of Rights, Article II. The Article holds itself open to unenumerated rights which may not be denied to the people.”

Butte Community Union, 712 P.2d at 1314, 43 St.Rep. at 72.

In a later case, Butte Community Union v. Lewis (Mont. 1987), [229 Mont. 212,] 745 P.2d 1128, 44 St.Rep. 1911, authored by Mr. Justice Sheehy, we affirmed the district court’s finding unconstitutional a law passed by the Legislature, noting:

“The legislature, in determining where sacrifices, are necessary, should regard ‘welfare benefits grounded in the constitution itself are deserving of great protection.’ Butte Community Union v. Lewis, 712 P.2d at 1314. The State may legitimately limit its expenditures for public assistance, public education or any other program even-handedly applied. It may not limit its expenditures by the expedient of eliminating classes of eligible individuals from public assistance without regard to their constitutionally grounded right to society’s aid when needed, through misfortune, for the basic necessities of life. We do not hereby declare that inhabitants have a constitutional right to public assistance. We do declare that the legislature, in performing its duty under Article XII, Section 3(3), must not act arbitrarily between classes of entitled persons.”

Butte Community Union, 745 P.2d at 1133.

It is clear from this background it was the inability of the Legislature to write an act which would pass constitutional muster which led to its attempts to control the expenditures and the operations of the welfare programs.

In 1987, the 50th Legislature of the State of Montana adopted a proposed amendment to the Constitution, House Bill 637 (Ch. 343, 1987 Mont. Laws). This legislation refers to the voters of Montana a proposed amendment to Article XII, Section 3, Mont. Const. This House Bill was enacted under the provisions of Article XIV, Section 8, Mont. Const., which provides that a proposed constitutional amendment may be proposed by any member of the Legislature and that if it is adopted by an affirmative roll call vote of two-thirds of all members thereof, whether one or both bodies, the proposed amendment “shall be submitted to the qualified electors at the next general election.” This bill passed by a vote of 70 to 30 in the House and 33 to 17 in the Senate, thereby exceeding the supermajority requirement by three votes. Thereafter, House Bill 637 was designated Constitutional Referendum No. 18 [C-18] by the Secretary of State’s Office, and is scheduled to be placed on the general election ballot for presentation to the Montana voters on November 8, 1988. As previously noted, we are asked to remove this referendum.

The appellants present the issue regarding the ballot title and statements of implication (the “for” and “against” statements) which will appear on the ballot, alleging they are untrue, misleading and unconstitutional. Section 13-27-501(3), MCA, provides that the ballot title for the legislative referendum proposing to amend the Constitution is to be the title of the legislative proposal itself. The title which will appear on the ballot reads as follows:

“AN ACT TO SUBMIT TO THE QUALIFIED ELECTORS OF MONTANA AN AMENDMENT TO ARTICLE XII, SECTION 3, OF THE MONTANA CONSTITUTION TO ALLOW THE LEGISLATURE GREATER DISCRETION IN PROVIDING ECONOMIC ASSISTANCE AND SOCIAL AND REHABILITATIVE SERVICES TO THOSE IN NEED; AND PROVIDING AN EFFECTIVE DATE.”

The statements of implication from HB 637, reads as follows:

EH FOR allowing the legislature greater discretion to determine the eligibility, duration, and level of economic assistance and social services to those in need.
□ AGAINST allowing the legislature greater discretion to determine the eligibility, duration, and level of economic assistance and social services to those in need.

It is important to note that this proposed amendment to the Constitution followed the provisions of Article XIV, Section 8. Section 8 provides:

“Amendment by legislative referendum. Amendments to this constitution may be proposed by any member of the legislature. If adopted by an affirmative roll call vote of two-thirds of all the members thereof, whether one or more bodies, the proposed amendment shall be submitted to the qualified electors at the next general election. If approved by a majority of the electors voting thereon, the amendment shall become a part of this constitution on the first day of July after certification of the election returns unless the amendment provides otherwise.”

Section 9 provides for amendment by initiative:

“(1) The people may also propose constitutional amendments by initiative. Petitions including the full text of the proposed amendment shall be signed by at least ten percent of the qualified electors of the state. That number shall include at least ten percent of the qualified electors in each of two-fifths of the legislative districts. (2) The petitions shall be filed with the secretary of state. If the petitions are found to have been signed by the required number of electors, the secretary of state shall cause the amendment to be published as provided by law twice each month for two months previous to the next regular state-wide election. (3) At that election, the proposed amendment shall be submitted to the qualified electors for approval or rejection. If approved by the majority voting thereon, it shall become a part of the constitution effective the first day of July following its approval, unless the amendment provides otherwise.”

The principal issue in this litigation concerns the ballot title and the statements of implication (“for” and “against”) which appear on the ballot. Section 13-27-501(3), MCA, provides that the ballot title for the initiative referendum proposing to amend the Constitution is the title of the legislation itself. The title herein to be voted upon is the same title as the legislative act, exactly as used in HB 637 when introduced into the legislative process. We note throughout the legislative history of this Bill there were committee hearings, debates, and discussions concerning the merits of the proposed constitutional change, and there were no amendments, or even proposed amendments to the title. It emerged from the legislative process in exactly the same fashion it was entered. The words of the statement of implication were provided for in that legislation and have previously been noted. Throughout the committee hearings, debates and discussions in the legislative process concerning the merits of the constitutional change, neither the plaintiffs’ testimony at the hearings nor any member of the Legislature offered any amendments concerning the title or ballot language throughout the legislative history of HB 637.

The appellants strenuously argue that the statutory standard which applies to both the initiative and referendum begun by petition, should equally apply to constitutional referenda originating from the Legislature. They argue that Section 13-27-312(4), MCA, controls. That section states:

“The statement of purpose and the statements of implication must express the true and impartial explanation of the proposed ballot issue in plain, easily understood language and may not be arguments or written so as to create prejudice for or against the measure.”

We are called upon to answer the question of what standard is to be applied to this legislative referendum. Because we find that the legislative referendum is a product of the Legislature and is passed in the form of a bill, its title should be examined according to the same standard applied to other legislation. If it results in greater deference being given to the ballot language which derives from the legislation rather than the petition, then that is appropriate due to the differences between the two sources. This distinction has been noted by this Court in State ex rel. Montana Citizens for the Preservation of Citizens’ Rights v. Waltermire (Mont. 1987), [227 Mont. 85,] 738 P.2d 1255, 1263, 44 St.Rep. 913, 923-924, where Mr. Justice Sheehy, writing for the majority, noted:

“There is evident wisdom in what the constitutional framers provided with respect to publication where initiatives are concerned. In the other two cases, that of convention and of legislative referenda, the proposed amendments are carefully worked over by contending parties whose governmental business at the time is to construct either a constitution or propose amendments to it. In the case of an initiative by the people, not enough adverse input occurs to justify the conclusion that a careful study has been made of the proposed amendment prior to its submission.”

Article V, Section 11(3) of the Montana Constitution states in pertinent part: “Each bill . . . shall contain only one subject, clearly expressed in its title.” In State ex rel. Wenzel v. Murray (1978), 178 Mont. 441, 585 P.2d 633, the opponents to a ballot initiative argued that the ballot title and statements of implication were unfair. They urged this Court to require that the language of the title and statements of implication clearly express the subject of the proposal. In determining what the title should reflect, this Court held it would not look beyond the terms of the initiative itself: “We therefore examine the title of the Initiative based upon the provisions of the Initiative itself.” Wenzel, 585 P.2d at 637. This Court further stated that we would use the rules of construction delineated in two previous Montana cases to determine whether ballot language would meet the constitutional standard provided for in Article V, Section 11 Mont. Const.

One of the cases relied on in Wenzel is State v. McKinney (1904), 29 Mont. 375, 74 P. 1095, which set forth five principles for the construction of the titles by Montana courts:

“First. The purposes of this constitutional provision are to prevent the legislature from the enactment of laws surreptitiously; to prevent ‘logrolling’ legislation; to give to the people general notice of the character of proposed legislation, so they may not be misled; to give all interested an opportunity to appear before committees of the legislature and be heard upon the advisability of the proposed legislation; to advise members of the legislature of the character of the proposed legislation, and give each an opportunity to intelligently watch the course of the proposed Bill; to guard against fraud in legislation, and against false and deceptive titles. These purposes have been so plainly announced by this court in numerous opinions that a statement of the rule and a citation of cases would seem sufficient. (Citations omitted.)
“Second. While all the provisions of the constitution are ‘mandatory and prohibitory’ (Article III, Section 29), yet the courts, bearing in mind that the legislature is a co-ordinate [sic] branch of the government and that its action, if fair, should be sustained, have given this section of the constitution a liberal construction, so as to not interfere with or impede proper legislative functions. (Citations omitted.)
“Third. The legislature is the judge, to a great extent, at least, of the title which it will prefix to a Bill; and the court has no right to hold a title void because, in its opinion, a better one might have been used. (Citations omitted.)
“Fourth. The title is generally sufficient if the body of the Act treats only, directly or indirectly, of the subjects mentioned in the title, and of other subjects germane thereto, or of matters in furtherance of or necessary to accomplish the general objects of the Bill, as mentioned in the title. Details need not be mentioned. The title need not contain a complete list of all matters covered by the Act. (Citations omitted.)
“Fifth. If the court, after an application of all these principles, is still in doubt as to the constitutionality of the Bill, it should sustain the Act. (Citations omitted.)”

McKinney, 29 Mont. at 380-382, 74 P. at 1096. Numerous cases have clearly followed the rationale of Wenzel.

In applying the constitutional requirement of “clearly expressing the subject” in the title, and employing the rules of construction developed under case law, the ballot title in question here is legally sufficient. With the background of the legislative hearings and a vote by two-thirds of the members of the Legislature, we conclude that they understood the issue and voted accordingly. Specific reference is made in the title to Article XII, Section 3, Mont. Const., and that the subject matter involves the provision of economic assistance and social and rehabilitative services to those in need. The explanation of the effect of the proposal is left to the Attorney General’s explanatory statement which is given each voter the time of the election.

Two years ago, on three separate occasions, we refused to intervene in the initiative process prior to submission of the initiatives to the voters of Montana. Recognizing that these cases involved the initiative rather than the referendum process, they are yet applicable to the present case and should be considered.

Article II, Section 1 and 2, Mont. Const. (1972), read:

“Section 1. Popular sovereignty. All political power is vested in and derived from the people. All government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.
“Section 2. Self-government. The people have the exclusive right of governing themselves as a free, sovereign, and independent state. They may alter or abolish the constitution and form of government whenever they deem it necessary.”

The initiative and referendum process enable the people to peacefully accomplish the goals of these two sections of our constitution by allowing important issues to be placed before the people for a popular vote. To deny the right to vote would thwart these provisions.

As we have noted, there are important distinctions between the constitutional amendments proposed through the initiative process (by the people) and constitutional amendments proposed through the referendum process (by the legislature). Our reasoning in refusing to intervene in the initiative process prior to the vote of the people is applicable in this case. In fact, such reasoning has greater weight in relation to the referendum because of the safeguards already built into the referendum process. While the appellants cite precedent in which this Court granted pre-election review and enjoined an election, we distinguish these cases. In State ex rel. Steen v. Murray (1964), 144 Mont. 61, 394 P.2d 761, the challenged initiative was unconstitutional on its face. In State ex rel. Harper v. Waltermire (Mont. 1984), [213 Mont. 425,] 691 P.2d 826, 41 St.Rep. 2212, the challenge to the initiative went to the text of the initiative rather than to its title.

In State ex rel. Boese v. Waltermire (Mont. 1986), [224 Mont. 230,] 730 P.2d 375, 43 St.Rep. 2156, this Court was asked to declare the Milk Decontrol Initiative, 1-104, void and invalid and to enjoin the Secretary of State from allowing it to appear on the November ballot. The petitioner challenged the initiative on the grounds that the title was defective in several ways. We refused to exercise jurisdiction to grant pre-election judicial review because we found the petitioner had failed to comply with the statutory procedures for challenging the titles of initiatives. As this Court stated in Boese, 730 P.2d at 378, 43 St.Rep. at 2160:

“We conclude that to effectively protect and preserve the right which Montanans have reserved to themselves to change the laws of this State through the initiative process, pre-election judicial review should not be routinely conducted. We hold that the petitioner has failed to demonstrate any reason to allow him to sidestep the procedural requirements of Section 13-27-316(2), MCA.”

Here, the appellants have not alleged that HB 637 is unconstitutional on its face. Appellants have not challenged the text of the referendum, only the title. As in Boese, we decline to intervene in a referendum process prior to a vote by the people on this constitutionally passed legislative referendum.

We held in State ex rel. Montana Citizens for the Preservation of Citizens’ Rights v. Waltermire (Mont. 1986), [224 Mont. 273,] 729 P.2d 1283, 1285, that:

“The right retained by the people of Montana to change our Constitution by initiative is unique. The people do not have such a right under the federal Constitution nor under many state constitutions. In Montana this right of constitutional change by initiative was first inserted in the 1972 Constitution. As we stated in our opinion in State ex rel. Mont. School Board Ass’n v. Waltermire [(Mont. 1986), [224 Mont. 296,] 729 P.2d 1297, 43 St.Rep. 2198], we should decline to interfere with this right of constitutional change by initiative unless it appears to be absolutely essential.”

The District Court recognized both the inability and the inappropriateness of the removal of this legislative referendum from the ballot and said in its opinion and order:

“The next question is as to the remedy. Two remedial actions would seem to be available: nullification, as prayed for by the plaintiffs, or judicial amendment, a fallback position of defendants. A combination of proper judicial restraint and deference to the legislature would commend neither. More importantly, there is a dearth of statutory authority for either action.
“There is not a trace of statutory authority for pre-election nullification of a legislative referendum. The reason is obvious. A referendum is not a single act, it is a process. That process is not complete until the electorate has spoken ...”

We further note that there is a strong presumption in favor of the constitutionality of legislative enactments. T & W Chevrolet v. Darvial (1982), 196 Mont. 287, 641 P.2d 1368, where we noted the party attacking a legislative enactment has a heavy burden of proving a violation of fundamental law. If a doubt exists, it is to be resolved in favor of the legislation. Reeves v. Ille Elec. Co. (1976), 170 Mont. 104, 551 P.2d 647; In re estate of Kujath (1976), 169 Mont. 128, 545 P.2d 662; Bd. of Regents v. Judge (1975), 168 Mont. 433, 543 P.2d 1323.

In conclusion, we find that the ballot language and the abbreviated form complained of by the appellants is not legally deficient. While the language may not be the best conceivable statement, it does not appear purposely misleading, and does identify the measure on the ballot so that a Montana voter, drawing on both official and unofficial sources of information and education, will exercise his or her political judgment.

The District Court’s order that appellants’ complaint be dismissed is affirmed.

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

MR. JUSTICE SHEEHY,

dissenting:

I dissent and would take jurisdiction to remove this shabby referendum from the ballot.

I begin by agreeing with the District Court judge that this referendum is flagrantly deceitful. Its true intent, to deprive this Court of our constitutional basis for rebuffing the legislature’s discriminatory acts, is trickily masked in self-effacing language: “. . . to allow the legislature greater discretion in providing economic assistance and social and rehabilitative services to those is need.” (Emphasis added.) The legislature does not intend to “provide;” it intends to “eliminate.” .

Greater discretion? The legislature now has absolute discretion to determine the eligibility, duration and levels, of aid to the needy. The only limitation upon its discretion is its constitutional duty to avoid invidious discrimination between members of the same needy classes. Butte Community Union v. Lewis (Mont. 1987), [229 Mont. 212,] 745 P.2d 1128, 44 St.Rep. 1911. The legislature, unwilling to assume the burden of acting constitutionally, wants the voters to remove the constitution.

Under the present constitution, the aged, the infirm, the unlucky, who without fault need the aid of society, must be given economic assistance by the legislature. Article XII, Section 3(3), 1972 Mont. Const. The legislature wants to get rid of that “must” but it does not want to tell the voters directly. Instead, the legislature proposes a referendum with its true intent couched in vague and illusory wording.

For the purposes of history, I set out here the form of the constitutional amendment as it will he submitted to the electors. The Attorney General’s Explanatory Statement will not appear on at least 67 percent of the state ballots. The county clerks of enough counties have requested permission to omit the Attorney General’s Explanatory Statement because of lack of space on the ballot or machines. The constitutional amendment, therefore, will be presented to a great majority of the voters as follows:

“CONSTITUTIONAL AMENDMENT NO. 18
AN AMENDMENT TO THE CONSTITUTION PROPOSED BY THE LEGISLATURE
AN ACT TO SUBMIT TO THE QUALIFIED ELECTORS OF MONTANA AN AMENDMENT TO ARTICLE XII, SECTION 3, OF THE MONTANA CONSTITUTION TO ALLOW THE LEGISLATURE GREATER DISCRETION IN PROVIDING ECONOMIC ASSISTANCE AND SOCIAL AND REHABILITATION SERVICES TO THOSE IN NEED; AND PROVIDING AN EFFECTIVE DATE.
□ FOR allowing the legislature greater discretion to determine the eligibility, duration, and level of economic assistance and social services to those in need.
t — 1 AGAINST allowing the legislature greater discretion to determine the eligibility, duration, and level of economic assistance and social services to those in need.

Where in the ballot are the aged informed that their present group right to state aid, if needy, is stripped away by the ballot issue, and their lot cast to the whim of the legislators? They are not informed.

Where in the ballot are the sick, the crippled, the infirm told that their present group right to state aid, if needy, will be gone with the wind? They are not told.

Where in the ballot does it state that a Montanan’s present group right to state aid in case of faultless poverty will be lost? It is not stated.

In the face of such deceit, this Court should condemn the referendum, and take it off the ballot for at least these reasons:

(1) By hiding its true purpose, the referendum prevents the free exercise by Montana voters of their right of suffrage. (Article II, Section 13, 1972 Mont. Const.)

(2) By hiding its true purpose, the referendum prevents the public right of opportunity to participate in the operation of state agencies. (Article II, Section 8, 1972 Mont. Const.)

(3) By hiding its true purpose, the referendum deprives the public of its right to examine public documents. (Article II, Section 9, 1972 Mont. Const.)

(4) By hiding its true purpose, the referendum deprives the public of its right to pursue life’s basic necessities. (Article II, Section 3, 1972 Mont. Const.)

(5) By hiding its true purpose, the referendum deprives the needy aged, infirm and misfortunate persons of due process of law. (Article II, Section 17, 1972 Mont. Const.)

Because of the foregoing failings, the voters will not be given an opportunity to exercise their franchise in a knowing, conscientious manner. In Burgan and Walker v. State Highway Commission (1943), 114 Mont. 459, 137 P.2d 663, this Court enjoined a referendum before the election because of’its evident constitutional deficiencies. That situation exists here. Our judicial duty is to enjoin or prevent the submission of this mendacity to the people.

MR. JUSTICE HUNT joins in the foregoing dissent of MR. JUSTICE SHEEHY.


author: MR. JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MARK DeMERS, Defendant and Appellant.
    No. 87-335.
    Submitted Sept. 1, 1988.
    Decided Oct. 13, 1988.
    762 P.2d 860.

      Larry D. Mansch, Public Defender’s Office, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Robert L. Deschamps, III, Missoula County Atty., Ed McLean, Deputy County Atty., Missoula, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mr. DeMers was convicted by jury of deliberate homicide in the District Court for the Fourth Judicial District, Missoula County. He was sentenced to a term of fifty years, plus ten years for use of a dangerous weapon, to be served consecutively. Mr. DeMers appeals. We affirm.

The issues are:

1. Did the District Court err in refusing to allow juror testimony at the hearing for a new trial?

2. Did the District Court err in denying defendant’s motion for a new trial based on the prosecutor’s failure to disclose exculpatory information?

3. Did the District Court err in instructing the jury on justifiable use of force?

4. Did the District Court err in denying defendant’s motion for mistrial?

On the evening of July 26, 1986, Mark DeMers parked his semi-truck in the parking lot of the OK Corral, which is a bar in Missoula, Montana. After several hours of drinking, Mr. DeMers left the bar. He found a small car parked directly in front of his truck, making it impossible for him to leave. Mr. DeMers returned to the bar and requested an announcement be made over the loudspeaker system to have the car moved. The testimony of the defendant established that several of these announcements were made before the owner of the car, Ruby Peterson, emerged from the bar with her boyfriend at around closing hour.

As Ms. Peterson and her boyfriend John Polinsky approached the vehicle, they were confronted by Mr. DeMers. Words were exchanged between the two men, although the testimony conflicts as to what was said. Following the exchange, Mr. DeMers shot Mr. Polinsky with a .44 magnum pistol, then got into his truck and drove away.

The jury found the defendant guilty of deliberate homicide. The defense moved for a new trial and requested that jurors be allowed to testify at that hearing. It also moved for a new trial based on newly discovered evidence. The defendant appeals the denial of these motions, the denial of a motion for a mistrial, and the propriety of jury instructions given by the District Court.

I

Did the District Court err in refusing to allow juror testimony at the hearing for a new trial?

In his motion for a new trial, the defendant requested that jurors be allowed to testify based on five juror affidavits received by defense counsel. Four of the affidavits stated that those jurors were confused with the statutory definition of “knowingly.” One of the affidavits stated that the juror became fatigued during deliberations and felt pressured to find Mr. DeMers guilty of deliberate homicide in order to expedite jury deliberations. In his brief, defense counsel stated that juror testimony was also requested to show that one juror influenced the rest with his expertise, that some of the jurors conducted an improper experiment, and that some jurors wanted to request that the trial judge reread certain testimony, but were precluded from making this request. No affidavits were filed which establish facts relating to those three issues.

The statutory law governing the admissibility of juror testimony to impeach the verdict is found in Rule 606(b), M.R.Evid.:

“Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent or dissent from the verdict or indictment or concerning his mental processes in connection therewith. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
“However, as an exception to this subdivision, a juror may testify and an affidavit or evidence of any kind be received as to any matter or statement concerning only the following questions, whether occurring during the course of the jury’s deliberations or not: (1) whether extraneous prejudicial information was improperly brought to the jury’s attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance.”

We will address each subject requested by the defense for juror testimony in relation to this statute.

Juror confusion over the statutory definition of deliberate homicide does not qualify as an exception to Rule 606(b). State v. Sigler (1984), 210 Mont. 248, 257, 688 P.2d 749, 753. The substance of this testimony is precisely what Rule 606(b) seeks to prohibit.

Likewise, even if some jurors became fatigued, that is not an outside influence or extraneous prejudicial information. A juror’s physical, mental, and emotional condition is inherent in the verdict, and the effect of such a condition on a juror’s vote is within the prohibition of Rule 606(b). State v. Maxwell (1982), 198 Mont. 498, 507, 647 P.2d 348, 353. A juror’s request for repeated testimony is also part of the mental processes inherent in the verdict and is disallowed as a statement made during jury deliberations.

The defendant asserts in his brief that one of the jurors, when interviewed, informed counsel that he possessed expertise regarding the study of bones. This expertise, along with an experiment performed by some of the jurors, was allegedly used to speculate on the possible angles of bullet deflection by the ribs and to rebut the testimony of defendant’s expert at trial. Jurors are expected to bring to the courtroom their own knowledge and experience to aid in the resolution of a case. A juror’s possession of knowledge about the human body is neither extraneous information, outside influence, nor agreement to verdict by chance. For the juror to have considered the credibility of defendant’s expert witness within the parameters of his own experience and background is insufficient to qualify as an exception to Rule 606(b).

The defendant contends that an experiment performed by the jury in conjunction with the expert juror’s comments was improper and constitutes jury misconduct. Assuming that the experiment took place, we find nothing objectionable in its performance given the factual discrepancies of this case. There was considerable dispute at trial as to the position of and the distance between the two men when Mr. DeMers shot Mr. Polinsky. Based on his examination of the wound and chemical residues on the shirts of the victim and the defendant, the defendant’s expert witness testified that the physical evidence was not consistent with Mr. DeMers walking up to the victim as he opened the car door and pulling the trigger. We conclude there is no prejudice to the defendant when one juror donned Mr. DeMers’ shirt to see how the garment might fit depending on the position of Mr. DeMers’ body. We find no extraneous prejudicial information or outside influence in performing this kind of experiment.

Since we find no juror misconduct on any of the above issues, we need not discuss the final issue of prejudice to the defendant. The District Court was correct in concluding that juror testimony was not allowed during the hearing for a new trial under Rule 606(b).

II

Did the District Court err in denying defendant’s motion for a new trial based on the prosecutor’s failure to disclose exculpatory information?

The defendant moved for a new trial based on the following grounds:

1. The failure of the prosecutor to disclose the fact that the victim was an experienced combat veteran;

2. The failure of the prosecutor to disclose that the victim’s fingerprints were on file with federal agencies.

The District Court found that this evidence constituted newly discovered evidence, and applied the test set forth in State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052, to determine whether a new trial was warranted. In Greeno, this Court set out certain requirements which must be met to merit a new trial:

“1. The evidence must have come to the knowledge of the applicant since the trial;
“2. That it is not through want of diligence that it was not discovered earlier;
“3. That it is so material that it would probably produce a different result upon another trial.”

Greeno, 342 P.2d at 1055.

The District Court found that the last two requirements of that test were not met and therefore a new trial was not warranted. Since the granting or denial of a new trial rests within the sound discretion of the district court, we will not overturn that determination unless an abuse of discretion is shown.

The record discloses that the fact of John Polinsky’s military service was readily available to defense counsel. An obituary which appeared in the local newspaper shortly after the incident not only mentioned the fact of Polinsky’s military background, but also listed survivors from whom the information could have been sought. At the hearing for a new trial, Mr. Polinsky’s girlfriend stated that defense counsel had never asked her about whether she had knowledge of Mr. Polinsky’s military service. We note that Mr. DeMers’ military training was brought out in both pretrial proceedings and during trial. Given the similar age of Mr. Polinsky at the time of his death, we agree with the District Court that it was neither unusual nor surprising that he served , in the military during the Vietnam conflict.

In light of these factors, we find that Mr. Polinsky’s service in the U.S. Army and the availability of his fingerprints therefrom could have been discovered earlier in the proceedings, prior to the State’s case-in-chief. We hold that the District Court correctly concluded that defense counsel did not exercise proper diligence in obtaining this information now claimed to warrant a new trial.

To satisfy the third part of the test as set forth in Greeno, the defendant must show that the newly discovered evidence is so material that it would probably produce a different result upon another trial. The defendant contends that evidence of Mr. Polinsky’s military experience is crucial to show his familiarity with violence. The defendant also wishes to connect a beer bottle found in the parking lot near the crime scene with John Polinsky by use of his fingerprints. Mr. DeMers contends that this evidence is material as it supports his theory of self defense and his claim that Mr. Polinsky was the aggressor.

Defense counsel requested a fingerprint test be performed after it was discovered that Mr. Polinsky’s prints were on file with a federal agency. Those results were negative. Because no connection between the beer bottle and the victim was confirmed, we conclude that this evidence would probably not have resulted in a different outcome at another trial.

We also agree with the District Court that the defendant has failed to demonstrate that evidence of Mr. Polinsky’s military experience would produce a different result upon another trial. The most the evidence would have done was to rebut the testimony of Mr. Polinsky’s girlfriend that he was quiet and nonaggressive. The defendant makes no connection between his theory that the gun somehow discharged accidentally, and Mr. Polinsky’s familiarity with violence. Since the defendant has not met the requirements set forth in Greeno, we affirm the findings and conclusions of the District Court and find no abuse of discretion in denying the defendant’s motion for a new trial.

III

Did the District Court err in instructing the jury on justifiable use of force?

The district court has a duty to instruct the jury on every issue or theory having support in the evidence. In determining whether to give an instruction, the inquiry of the court must only be whether any evidence exists in the record to warrant an instruction. State v. Sotelo (1984), 209 Mont. 86, 89, 679 P.2d 779, 781.

Neither party requested an instruction on justifiable use of force or self defense, but the District Court decided to give one. The defendant claims that the instruction on self defense lacked evidentiary support and only served to confuse the jury. He contends that juror confusion resulted from the conflicting theories of negligent homicide and self defense. At no time did Mr. DeMers claim to have shot Mr. Polinsky intentionally. Lack of intent supports his negligent homicide theory but conflicts with a theory of self defense. Mr. DeMers therefore claims that the instruction was improper and misleading. We do not agree. Based on our analysis of the record we find ample evidence to support the giving of the instruction, even if it conflicted with defendant’s theory of the case.

In order to find justifiable use of force the jury must find that the defendant (1) was not the aggressor, (2) reasonably believed that he was in imminent danger of unlawful harm, and (3) that he used reasonable force necessary to defend himself. The testimony of Mr. De-Mers establishes these elements sufficiently to warrant the giving of a self defense instruction.

Mr. DeMers testified that he first noticed the victim when Mr. Polinsky yelled at him from across the parking lot. The defendant testified that he got in his truck, observed the crowd of people and concluded that it was “not too good of a situation.” When he got out of the truck, he grabbed his pistol and held it behind his leg. He testified that “I didn’t want nobody to see it. I was just trying to be cautious. I was a little bit afraid at this point. And I didn’t know what was going to happen.”

According to the defendant, it appeared that Mr. Polinsky was holding something in both of his hands as he walked up to Mr. De-Mers and told him “I’m going to kick your ass good.” We find that the defendant’s testimony describing Mr. Polinsky’s statements and his actions could reasonably lead a jury to conclude that Mr. De-Mers was not the aggressor.

The defendant then quoted several more threatening statements made by the victim, at which time Mr. DeMers testified he raised his gun and pulled back the hammer out of fear. Mr. DeMers testified that both men, believing that the confrontation was over, turned away from each other. At that point he described what he thought he heard the victim say: “And I couldn’t make out what he said, except for the last — I don’t hear very good — except for the last two words; and the last two words was ‘kill you.’ ” These final words, coupled with Mr. Polinsky’s previous threats and his brazen attitude in the face of a cocked pistol, could suggest to a jury that Mr. DeMers reasonably believed he was in danger of unlawful harm.

We conclude that the defendant’s testimony quoted above is sufficient for the jury to have found that Mr. DeMers could have been acting in self defense when he shot Mr. Polinsky. We hold that the District Court did not err in giving an instruction on justifiable use of force.

IV

Did the District Court err in denying the defendant’s motion for a mistrial?

Prior to trial, the defendant filed a motion in limine requesting in part that the State be precluded from offering evidence of any character trait of the defendant other than credibility. The motion was granted with the understanding that the State might use such evidence for cross-examination or rebuttal, after obtaining the court’s permission outside the presence of the jury.

During cross-examination of Mr. DeMers, the State inquired into his history of alcohol treatment and asked about his temperament when he drank. Defense counsel moved for a mistrial claiming that the State had violated the motion in limine. The District Court denied the motion finding that defense counsel had already opened the door to such character evidence and that Mr. DeMers’ temperament had become an issue in the case. The court further held that evidence of the defendant’s military records of alcoholism and violence nine years prior to this incident was too remote. At the request of defense counsel, the court instructed the jury to disregard all questions and answers on this subject prior to the objection.

From our examination of the record, we conclude that defense counsel first raised the issue of Mr. DeMers’ character, his use of alcohol, and his state of mind on the night in question. It was not a violation of the motion in limine for the State to respond to that evidence on cross-examination.

Furthermore, the District Court is in the better position to judge the prejudicial effect of otherwise relevant evidence on the jury. The District Court found the evidence to be nonprejudicial in two respects. First, it was character evidence of a general nature, and second, defense counsel did not object to the questions until after they had been asked and answered. The District Court’s findings, in addition to the giving of a cautionary instruction, support its conclusion that no prejudicial effect was created by the State’s inquiry. We find no abuse of discretion in the denial of defendant’s motion for a mistrial.

Affirmed.

MR. JUSTICES SHEEHY, GULBRANDSON, HUNT and Mc-DONOUGH concur.


author: MR. JUSTICE GULBRANDSON

text:
    In the MATTER OF DECLARING T.M.M., a Youth in Need of Care.
    No. 88-237.
    Submitted Aug. 26, 1988.
    Decided Oct. 13, 1988.
    762 P.2d 866.

      L. Charles Evans, Libby, for appellant.
    Mike Greely, Atty. Gen., Betsy Brandborg, Asst. Atty. Gen., Helena, Susan Leohn, County Atty., Libby, for respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The father of T.M.M. appeals from an order of the Nineteenth Judicial District, Lincoln County, terminating his parental rights to T.M.M. and granting the Lincoln County Office of Human Services (LCOHS) the authority to assent to adoption. We affirm.

Appellant raises the following issues on appeal:

1. Whether substantial credible evidence exists to support the District Court’s determination that:

a. the father failed to comply with the court authorized treatment plan;

b. the conditions rendering the father unfit were unlikely to change within a reasonable period of time; and

c. the Lincoln County Office of Human Services made reasonable efforts to rehabilitate the father.

2. Whether the court erred by failing to find that continuation of the parent-child legal relationship would likely result in continued abuse or neglect.

3. Whether the District Court erroneously denied the father’s February 1, 1988 motion for a continuance.

4. Whether any manifest bias by the District Court judge deprived the father of his constitutional right to a fair trial.

T.M.M. is the youngest of four children born to R.M. (father) and N.M. (mother). T.M.M. was two and a half years of age when her parents separated in December of 1984; her parents divorced in June of 1985. She lived with her mother until May of 1985, when her mother left her in the custody of her father. Until December 6, 1985, she remained in the care of her father and S.F., a moderately retarded woman unable to provide any parental care, but with whom the father began living in September of 1985. LCOHS placed all four children in protective foster care on December 6, 1985, after complaints of physical abuse by the boys and concerns about the neglect of she did not have her own bed, she frequently wore and slept in the same clothes for days at a time, and she received care primarily from an older brother.

An initial treatment plan, agreed upon and signed by the father, was in effect from December 20, 1985 until February 20, 1986. This treatment plan, establishing minimum goals for the father to meet prior to the return of any of his children, was not successfully completed.

Additionally, an evaluation of T.M.M. conducted by pediatric psychologist Jacelyn Wedell-Monnig on April 17 and 18, 1986, revealed that T.M.M. suffered from Child Maltreatment Syndrome as a result of sexual abuse received at the hands of her father. T.M.M. stated that she often received a sucker after performing sexual acts with her father. Further, T.M.M. displayed inappropriate behavior in a child her age. She displayed an excessive interest in other children’s bodies while fearing exposure of her own; she would stiffen her legs when her foster parents attempted to diaper her for the night. When playing with anatomically correct dolls, she spent an inordinate amount of time handling the male doll and placing the male doll on top of the female doll. She was observed repeatedly placing the male doll, which she called “Daddy doll,” on the floor and then sitting on its penis. Given these clear indications of sexual abuse, Dr. Wedell-Monnig recommended that the father have no further contact with his daughter.

LCOHS filed a petition for temporary legal custody of all four children on May 12, 1986 because of lack of any progress by the father and because of evidence of the sexual abuse of T.M.M. The District Court granted temporary legal custody of all four children to LCOHS on July 18, 1986, following a hearing on June 2, 1986. The father subsequently was denied any visitation rights with T.M.M. The court also approved a new treatment plan for each parent. The treatment plan for the father required him to seek and complete a minimum of twelve counseling sessions with a therapist approved by LCOHS, to make and keep regular appointments with a social worker, to attend parenting classes, and to stop degrading his children’s interest in their learning achievements.

Beverly Miller, a social worker assigned to the case, reported that the father failed to successfully complete this court approved treatment plan. He failed to obtain any counseling after the Lincoln County Mental Health Center (Center) refused him further counseling. Psychologist Dr. Miller stated that the Center denied the father further counseling because the previous nine years of family counseling were unproductive. The father also demonstrated no interest in working with LCOHS to effect any real changes, and he failed to keep in touch with a social worker following his move to Great Falls in the fall of 1987. Additionally, he continued to deny any responsibility for the problems leading to the placement of his children in foster care, instead telling the boys during visitations that their foster care placement was their fault. This denial is consistent with psychological evaluations conducted by Dr. Meyers. Dr. Meyers diagnosed the father as suffering from an intermittent explosive disorder, with other personality disorders, causing the father to deal with problems by repression and denial.

The failure of this court approved treatment plan led LCOHS, on Februáry 23, 1987, to petition the court for temporary legal custody of all the children until age eighteen. A letter written by guardian ad litem Terrie Noser on April 7,1987, stated that an award of custody to LCOHS would be in the best interests of the children. The father opposed the enrollment of T.M.M. in a preschool program despite an evaluation indicating that she had a speech and language deficiency. Her foster parents, however, enrolled her in a preschool program. Her preschool teacher, Sandra Honeychurch, observed a significant growth in T.M.M.’s “motor [skills], reasoning, visual perception and expressive language” as a result of the preschool program and her changed home environment. Consequently, on April 30, 1987, Judge Holter found that the best interests of the children, all adjudicated youths in need of care, necessitated awarding custody to LCOHS until age eighteen.

On December 2, 1987, LCOHS filed a petition for permanent legal custody and termination of parental rights to T.M.M., after having located a couple desiring to adopt her. The court scheduled a hearing on the motion for January 4, 1988. On that date, the father appeared without counsel, requesting the appointment of counsel. The court denied this request, ordered the father to hire an attorney within seven days, and then continued the hearing to January 18, 1988. The father again appeared without counsel on January 18, 1988, so the court appointed a public defender and continued the hearing to February 8, 1988, warning that no further continuances would be granted.

On January 21, 1988, the father moved for a continuance of the hearing until after he could be evaluated by a psychologist with the sexual offender program. Judge Brownlee denied this motion after a hearing on February 1, 1988. The February 8, 1988 termination hearing proceeded as scheduled. The District Court issued its findings on March 3, 1988, granting adoptive custody to LCOHS and terminating the father’s parental rights to T.M.M. The father thereafter filed this appeal.

The first issue raised upon appeal questions the sufficiency of the evidence to support the District Court’s termination decision. We have held on numerous occasions that the State must prove by clear and convincing evidence that all statutory termination criteria have been met before a court may terminate parental rights. E.g., In re R.B., Jr. (Mont. 1985), [217 Mont. 99,] 703 P.2d 846, 42 St.Rep. 1055; In re J.L.B. (1979), 182 Mont. 100, 594 P.2d 1127. The statutory requirements relevant to this case which must be fulfilled prior to termination are found in Section 41-3-609(1)(c) and (2), MCA. These sections state that a court may terminate parental rights after adjudicating the youth in need of care and after finding that:

“(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
“(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time . . . [; and]
“(2) continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care.”

The district court is in the best position to judge whether the State has met its burden of proof and satisfied all statutory criteria. Consequently, we will presume that the District Court correctly decided to terminate parental rights if substantial credible evidence exists in support of its decision. In re V.B. (Mont. 1987), [229 Mont. 133,] 744 P.2d 1248, 1249, 44 St.Rep. 1838, 1840; In re C.A.R. (Mont. 1984), [214 Mont. 174,] 693 P.2d 1214, 1218, 41 St.Rep. 2395, 2398-99.

Neither parent contested Judge Holter’s April 30, 1987 adjudication that all the children, including T.M.M., were youths in need of care. The father similarly does not contest Judge Brownlee’s determination that T.M.M. is a youth in need of care. The father does, however, challenge the court’s finding that the treatment plan was unsuccessful. The court approved treatment plan of July 18, 1986, required the father to seek and complete a minimum of twelve counseling sessions. The evidence clearly indicates that the father did not complete such counseling, though apparently he made a few attempts to obtain counseling. This fact alone amounts to substantial evidence demonstrating that the treatment plan was unsuccessful.

The father also challenges the court’s determination that the conduct or condition that rendered him unfit was unlikely to change within a reasonable time. We find, however, that substantial credible evidence supports this finding as well. Betty Miller stated that the father demonstrated no interest in working with LCOHS. He also continued to deny all responsibility for any problems, instead placing the blame upon his children. A change in conduct or condition within a reasonable time is unlikely given such a basic unwillingness to cooperate and accept responsibility.

In addition, Dr. Meyer stated in a letter written May 7, 1986, that five different therapists in the Center had provided intermittent family counseling over a period of eight years without any noticeable improvements. For this reason, the Center denied the father further counseling. As emphasized by Dr. Meyer:

“Neither parent has adequately cared for their children in the past, and there appears to be very little possibility that this situation will change in the future.”

Lee Toner, a psychiatric social worker, stated that “it is highly unlikely that additional counseling or teaching of parenting skills or relationship skills will bring about any change” in him. This long history of unproductive counseling gives sufficient support to the District Court’s determination that reasonable efforts at rehabilitation were attempted, but unsuccessfully.

The court’s determination that reasonable efforts at rehabilitation were unsuccessful indicates that the court properly considered the factors mandated in Sections 41-3-609(2) (a) through (g), MCA. The court considered other factors which rendered the father unfit in addition to the failed rehabilitation efforts. The court specifically found that the father’s sexual conduct toward his daughter and his failure to obtain counseling prevented him from being fit to provide T.M.M. with adequate parental care. Finding number 5 states:

“The conditions which render . . . [the father] unfit as a parent are unlikely to change within a reasonable period of time as he continues to deny responsibility for the sexual abuse of his daughter . . . and has not successfully entered into counseling for his problems.”

This finding satisfies the statutory requirement that a court make a finding that the parent’s conduct or condition renders him unfit to give a child adequate parental care. We therefore find the second issue raised upon appeal without merit.

The third issue raised upon appeal is whether the District Court erroneously denied the father’s motion for a continuance of the hearing until he could obtain a psychological evaluation under the sexual offender program. A motion to postpone a trial or hearing because of an absence of evidence can only be made “upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to procure it.” Section 25-4-501, MCA. The language of the statute is mandatory. Consequently, this Court has held that no abuse of discretion occurs when a court denies a motion for a continuance, for purposes of obtaining additional evidence, if no such affidavit is filed in support of the motion. In re the Marriage of Concepcion (Mont. 1984), [212 Mont. 191,] 687 P.2d 718, 719, 41 St.Rep. 1675, 1677; State v. Harvey (1979), 184 Mont. 423, 431-32, 603 P.2d 661, 666.

In the instant case, appellant failed to file an affidavit showing the materiality of another evaluation and showing that he used due diligence in procuring a sexual offender psychological evaluation. The District Court thus did not abuse its discretion when it denied appellant’s motion. Further, appellant failed to show good cause to support a postponement pursuant to Section 25-4-503, MCA. The record of numerous previous continuances merely indicates a pattern of unexcused neglect.

Finding no abuse of discretion in the denial of the appellant’s motion for a continuance until further psychological evaluation, we hold that any bias as to the treatability of a sexual offender was harmless. Judge Brownlee’s opinions did not act to deny appellant his constitutional right to a fair trial.

The judgment of the District Court is affirmed.

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