author: JUSTICE SHEEHY JUSTICE WEBER JUSTICE SHEEHY,

text:
    GLASGOW EDUCATION ASSOCIATION, affiliated with the Montana Education Association, Plaintiff and Appellant, v. BOARD OF TRUSTEES, VALLEY COUNTY, SCHOOL DISTRICTS 1 AND 1A, Defendant and Respondent.
    No. 89-460.
    Submitted Jan. 9, 1990.
    Decided May 8, 1990.
    791 P.2d 1367.

      Emilie Loring argued, Hilley and Loring, Missoula, for plaintiff and appellant.
    Catherine M. Swift argued, Montana School Boards Ass’n, Helena, for defendant and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

At all times herein relations between School District No. 1 & 1A of Valley County, as employer, and Glasgow Education Association (Association), for the District employees, were governed by a written negotiated agreement. The agreement included a provision for arbitration of grievances, with the decision of the arbitrator to be binding and final. On receipt of an adverse decision from an arbitrator, the School District informed the Association that the District would not comply with the arbitrator’s award. The Association brought a complaint in the District Court, Seventeenth Judicial District, Valley County, against the District for breach of contract, and to enforce the arbitration award. The School District filed its answer in the District Court, denying the breach of contract, and affirmatively defending that the award of the arbitrator sought to be enforced was illegal because the arbitrator had exceeded his authority in making the award. The School District also counterclaimed for an order vacating the arbitrator’s award. There being no disputed facts, the District Court, on motions from both parties for summary judgment, entered its judgment vacating the arbitrator’s award. The Association appealed the judgment to this Court. We reverse and order that the award of the arbitrator be reinstated.

The basis of our holding is that under the agreement between the parties providing for final and binding arbitration, the arbitrator’s award draws its essence from the agreement, that is, from the parties’ intentions. We further determine that the “makewhole” remedy of the arbitrator is correct under the agreement.

The agreement provided, as a fringe benefit, District payment of a percentage of the employees’ health insurance premiums. The provision follows:

“ARTICLE 10. FRINGE BENEFITS

“10.1. The Board of School Trustees agrees to provide payment of 90 percent of the premiums for HEALTH insurance as detailed in the group insurance policy held by School District No. 1 for the 1986-88 school year. This payment shall include premiums for the full-time teacher and his or her dependents. Board, contribution for the 1986-88 school year shall be:

“90% if the next years increase is between 0-10.9%

“88% if the next .years increase is between 11-20.9%

“87% if the next years increase is between 21-29.9%

“85% if the next years increase is greater than 29.9%”

At the time of the grievance, the contract required the employer to pay 85% of the health insurance premiums. In fact, the employer paid 100% of the premiums for three groups of employees, (1) those whose premiums were completely paid by the employer prior to 1969; (2) those performing some administrative functions; and, (3) those employees married to other employees of the School Districts. The arbitrator pinned his decision to the last group.

In August, 1987, a grievance was filed by Helen Hetrich, a teacher who was not married to another employee of the District and who requested that 100 % of her insurance premiums be paid. Her grievance was extended to include all members of the bargaining unit for whom the District had not paid 100% of the insurance premiums. In 1987, when the grievance was filed, 16 teachers out of a total of 70-some had received 100% of premium payments.

When the School District denied the grievance, an arbitrator was called in in accordance with the agreement between the parties. First off, in his written order, the arbitrator agreed with the association that the contract provision for insurance premiums clearly and unambiguously applied to.all of the employees of the District contained in the bargaining unit. The arbitrator found that the contract provision prohibited the School District’s practice of paying 100% of the health insurance costs for some unit members.

The Association argue before the arbitrator that the appropriate remedy for the breach was that all unit members for whom the employer paid less than 100% of the health insurance premiums should be reimbursed for the amount they were required to pay for the term of the contract plus interest. On the other hand, the employer argued that the appropriate remedy was that the employer cease making the 100% payments to the favored unit members and that the employer be required to make all payments to all unit members in accordance with the contract.

The arbitrator declined to require such payments by the District, as urged by the Association, based purely on the breach of contract. The arbitrator denied relief on that ground, saying:

“While the Employer improperly paid more than it should have for health insurance for some employees, it indisputedly paid the proper amount for the class of unit members for which the Association seeks the additional compensation. The class seeking additional relief received all that it was entitled under the contract. To grant members of the class additional relief would be inconsistent with the contract, their legitimate expectation under the contract and constitute a windfall. The fact that some employees received benefits in excess of what they were entitled under the contract does not justify a remedy that would require that all employees receive benefits in excess of what they were entitled under the contract (citing authority).”

Arbitrator’s decision and award at page 13.

The arbitrator, however, found a different situation to exist with respect to couples who were married and who worked for the District, and who receive contribution of 100% of their insurance premiums. The arbitrator found that the contract between the parties prohibited discrimination based on marital status. He determined that position from the following provisions in the agreement:

“6.1. The Board shall select employees as needed on the basis of merit, training and experience. No discrimination against any applicant or employee because of race, creed, color, national origin, sex or age shall exist. The Board shall take all necessary actions to comply with the letter and the spirit of state and federal laws prohibiting discrimination in employment. Every announcement or listing of a position shall include the statement that the District is an Equal Opportunity Employer. (Emphasis in contract.)

The arbitrator determined that the foregoing Article 6.1 incorporated the prohibition of discrimination through marital status found in Montana state law, § 49-2-203(1)(a), MCA, into the collective bargaining agreement.

The arbitrator held that the payment of 100% of the insurance premiums to married couples who all worked for the District was discrimination based on marital status. He said:

“Here, the contract prohibits discrimination based on marital status. The Employer’s policy grants greater benefits to married employees, both of whom work for the District. The policy constitutes unlawful marital status discrimination because non-married employees may not obtain these benefits because of their marital status, despite the fact that not all married persons receive the benefit.” Arbitrator’s decision and award at pages 16, 17.

Discrimination based on the identity and occupation of one’s spouse is unlawful marital Status discrimination under state law. Thompson v. School District (Mont. 1981), 627 P.2d 1229; Hulett v. Bozeman School District No. 7 (1986), 228 Mont. 71, 740 P.2d 1132. The School District does not actively dispute on appeal that the payments made by the School District on behalf of married couples working for the District constituted marital status discrimination in this case.

The School District argues most strongly, however, that the arbitrator’s award in this case violates the contract because the grieved employees will receive more than provided in Art. 10.1 of the agreement, and because the School District contends that the arbitrator went beyond his authority under the agreement to grant the award.

We have noted above that the arbitrator had determined that the violations of the contract with respect to those employees who have been receiving 100% of the insurance premiums do not require a remedy that the disfavored employees be brought up to the level of the favored employees. The arbitrator took this position because the contract established the level of entitlement at the amounts paid for the disfavored employees. He found that a different remedy was necessary where the contract specifically incorporated the state and federal law of discrimination. He held that the incorporation of the language “board shall take all necessary actions to comply with the letter and spirit of state and federal laws prohibiting discrimination in employment” not only incorporated the state and federal protections against discrimination but also the remedies provided to address such violations. In stating the purpose of the grievance procedure, the agreement provided:

“23.2. The purpose of this procedure is to secure, at the lowest possible level, equitable solutions to the problems which may from time to time arise affecting the welfare or terms and conditions of employment of teachers

The arbitrator determined that the proper remedy for discriminating against an employee or class of employees is to bring the disfavored employee or class to that level of the favored employee or class. He, therefore, made an award ordering the School District to pay the unit employees who did not receive a 100% employer health insurance contribution the difference between the 100% and the amount actually paid, plus interest at the rate of 10% for the term of the contract, at those amounts necessary to bring the employees to the level of the favored employees.

The School District contends that the arbitrator, in making the award, modified, changed, or rewrote the contract, and, in incorporating the “make whole” remedy in the contract, went outside the bounds of the contractual provisions. The School District contends that the case of Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) is authority that an arbitrator may not invoke public laws to fashion a remedy that conflicts with the agreement between the parties, or which is based upon the arbitrator’s view of the requirements of legislation, rather than on the interpretation of the collective bargaining agreement. The arbitrator, the School District contends, has only authority to resolve questions of contractual rights even though the contractual rights may be duplicative of substantive rights secured by a statute. Barrentine v. Arkansas-Best Freight System (1981), 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641.

This and other cases cited by the School District are not quite on point here. In the cases relied on by the School District, the employees had lost before the arbitrator, and when they later moved to enforce their statutory rights, the employers argued, unsuccessfully, that the arbitration award precluded subsequent judicial relief. The situation here is different. The agreement itself is not in conflict with general law, and the employer’s practice of paying 100% of the premiums based on marital status violated both the contract between the parties and state law. The actions of the School District violated particularly this provision of the agreement,

“24.5. The provisions of this agreement shall be applied without regard to race, creed, religion, national origin, age, sex or marital status.”

It was not necessary for the arbitrator, in making his award in this case, to resort to statutory law outside of the contract to fashion a remedy. The contract itself contained anti-discriminatory provisions requiring the Board to comply with state and federal laws prohibiting discrimination. The “make whole” remedy adopted by the arbitrator is a proper remedy in discrimination cases. Albermarle Paper Co. v. Moody (1975), 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280. The grievance procedure itself recommended “equitable solutions to grievances arising between the parties.” The “letter and the spirit” of state and federal laws prohibiting discrimination includes a remedy which brings the disfavored employees or class to the level of the favored employees or class. We hold that the arbitrator was working within the contractual provisions of the contract between the parties, whose intention in agreeing to final and binding arbitration within the contractual agreements was negotiated and bargained for, and that the award made by the arbitrator in this case drew its essence from the contractual provisions, that is, from-the intention of the parties. See, United Steelworkers v. Enterprise Wheel and Car Corporation (1960), 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424, 1428. When an arbitrator whose decision is final and binding acts within his contractual authority and not unlawfully, courts are without power to set aside his decision.

As a second issue on appeal, the School District contends that the award of the arbitrator, which was retroactive to the beginning of the contract term was improper because of the provisions of § 23.4 that the teacher should initiate the first level of proceedings within 20 school days of the alleged occurrence of the grievance. The School District contends that this provision limits any award to adjustment for no more than 20 days prior to the bringing of the grievance.

This second issue was brought to the arbitrator during arbitration on the employer’s petition for clarification and reconsideration, and the arbitrator stated:

“The Employer also argues that the contract provision setting a 20 day period for filing grievances established the maximum time period that it is liable for a contract violation remedial relief. This conelusion is not supported by the contract or the other evidence. The 20 day period has a function similar to a statute of limitations; grievances filed beyond that period are not timely and the employer need not process them. The 20 day period does not speak to limiting the appropriate remedial relief of a meritorious and timely grievance.”

Arbitrator’s decision on employers petition on page 4.

The arbitrator was correct again in interpreting the contract. No provision limits the remedy for grievances as contended for by the School District. The award by the arbitrator was proper.

Accordingly, we reverse the judgment granted by the District Court, and since the facts are undisputed, reinstate the award ordered by the arbitrator in his decision of October 20, 1988.

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

JUSTICE WEBER

specially concurring:

I concur in the result reached in majority opinion which concludes that the arbitrator’s award was appropriate because of the contract provision which required that the Board shall take all necessary actions to comply with the letter and the spirit of state and federal laws prohibiting discrimination. My concern is our inability to address the resulting contradiction.

The analysis by the arbitrator demonstrates my position. With his background experience in labor law, the arbitrator concluded that he could not require payments to the teachers under the terms of the contract. He stated:

“The class seeking additional relief received all that it was entitled under the contract. To grant members of the class additional relief would be inconsistent with the contract, their legitimate expectation under the contract and constitute a windfall. The fact that some employees received benefits in excess of what they were entitled under the contract does not justify a remedy that would require that all employees receive benefits in excess of what they were entitled under the contract.”

Under the specific limitations of the contract, the arbitrator concluded that he could not order benefits for the employees in excess of that to which they were entitled under the contract. Then he effectively disregarded the contract limitations by applying the federal Civil Rights Act. I am not able to explain our ability to enforce a general provision while disregarding express contractual limitations.

The result of our opinion is that it gives clear notice to employers to avoid any reference to discrimination laws in employee contracts. That is not a worthwhile objective.

My second concern is that our interpretation with regard to the Civil Rights Act may result in the elimination of the finality of arbitration as to the employee but not the employer. The contract here provides “[t]he decision of the arbitrator will be submitted to the Board and the Association and will be final and binding upon the parties.” The aim is that the arbitrator’s decision should be final and binding upon both parties. Unfortunately, that result might not occur if the arbitrator’s decision had been favorable in this case to the employer Board.

Employees asserting violations of the Civil Rights Act are able to bring suit through an administrative agency or district court without regard to their rights under the collective bargaining agreement. This could result in the employee’s ability to proceed in the court system even though the employee had lost to arbitration. See Meltzer, B. “Labor Arbitration and Overlapping and Conflicting Remedies for Employment Discrimination,” 39 U. Chicago L. Rev. 30 (1971); Alexander v. Gardner-Denver Co. (1974), 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147.

The result is that the contract has been further emasculated by rendering the arbitration provision ineffective. This reaffirms the previous conclusion that employers somehow must eliminate any reference to discrimination laws in labor agreements. I am disturbed by the effect of our opinion.

JUSTICE BARZ concurs in the foregoing special concurrence.

JUSTICE SHEEHY,

concurring specially:

The special concurrence of two Justices suggests that employers “must eliminate any reference to discrimination laws in labor agreements.” I must point out that an employee who is the victim of illegal discrimination has a right to sue independent of the employment contract. In the cited case of Alexander v. Gardner-Denver Co. (1974), 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147, the United States Supreme Court held that civil rights cannot be prospectively waived by contract, and indeed form no part of the collective-bargaining process. When an employee sues, the Supreme Court held, for a Ti-tie VII violation, even after losing at arbitration, he is asserting a right given to the employee by statute independent of the arbitration process, the employee being the only possible victim of discriminatory employment practices.

Thus, eliminating any reference in labor agreements to anti-discrimination laws will not change the right of employees to enforce such laws regardless of the collective-bargaining agreement.


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RUSSELL HEIT, Petitioner/Defendant and Appellant.
    No. 89-272.
    Submitted on Briefs April 12, 1990.
    Decided May 10, 1990.
    791 P.2d 1379.

      R. Allen Beck, Billings, for petitioner/defendant and appellant.
    Marc Racicot, Atty. Gen., Harold Hanser, County Atty., Curtis L. Bevolden, Deputy County Atty., for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The defendant Russell T. Heit appeals the judgment of the Thirteenth Judicial District Court, Yellowstone County, convicting him of deliberate homicide and robbery, sentencing him to one hundred and fifty years in the Montana State Prison, and denying him parole eligibility. We affirm the judgment, sentence, and order. Heit raises the following issues on this appeal:

(1) Did the District Court err in refusing an instruction on mitigated deliberate homicide as a lesser included offense of deliberate homicide?

(2) Did the trial court err in admitting evidence of the defendant’s statements to a psychologist in sentencing, where this evidence was the .apparent basis for the trial court’s declaration that the defendant was ineligible for parole?

(3) Did the trial court fail to include a statement of reasons in declaring the defendant ineligible for parole as required by § 46-18-202(2), MCA.

On the afternoon of September 28, 1988 the body of bartender Gary Loos was found lying in a pool of blood behind the bar of the Acton Bar. Loos had been killed by a gunshot wound to the neck. A cash tray from the bar’s cash register was found near the body.

Sheriff’s deputies investigated the scene and among the items recovered were an unspent .22 caliber cartridge in front of the bar, a spent .22 shell on the back bar, two beer cans in front of the building and one on the bar, all with the defendant’s fingerprints, a pack of Merit cigarettes, and a Merit cigarette butt in an ashtray in the center of the bar. The deputies also interviewed several people who had seen a man matching Heit’s description in the bar sometime between 1:00 p.m. and 2:00 p.m. They also described a motorcycle resembling the defendant’s. That evening Doug Brandon, an acquaintance of Heit’s, telephoned the Billings Police Department and informed them that Heit was involved in the Acton Bar homicide.

Heit was arrested the following day in Bridger Montana. After being read his Miranda rights, a deputy testified that Heit told him “I shot him, what the fuck does it matter . . . does it make any difference?” The officer testified. that further questioning yielded the same response: “I shot the fucker. What fucking difference does it make? I shot him. What fucking difference does it make to his wife.” According to the officers, Heit fully described the robbery while being transported, appearing arrogant but not intoxicated. According to Doug Brandon, on the day of the murder Heit told him about the shooting: “the guy said something to him that made him mad and he shot him.”

At trial, the jury found Heit guilty of deliberate homicide and robbery. At the evidentiary hearing on sentencing the State requested the death penalty based on the theory that Heit had been lying in wait. At the hearing, the State called a court-appointed psychologist from Warm Springs State Hospital who testified regarding Heit’s psychological and psychiatric evaluation and the report filed pursuant to the evaluation. The psychiatric examination of Heit indicated “poor judgment, irresponsibility, aggressiveness, and impulsivity [sic]” as personality traits. The report also found that Heit was competent to stand trial, but also apparently suffered from an anti-social personality disorder and alcohol dependence:

“[h]e has a history of using physical aggression to vent his anger, despite some of his friends’ current pronouncements that he is really a passive person. He admits to punching walls when he is angry, to ‘slapping around’ his ex-wife and to severe verbal arguments with his most recent ex-wife. He has, on numerous occasions, reportedly boasted of killing someone.”

At the sentencing the court found insufficient the facts offered by the State in support of its theory of lying in wait as an aggravating circumstance and denied its request for the death penalty. The court, in its conclusions of law, specifically found that the defendant showed no remorse and denied any remembrance of the crime, although Heit, in a letter to the Court, described himself as a nonviolent person.

Heit was sentenced to consecutive terms of 100, 40, and 10 years confinement. The court also concluded that Heit would be ineligible for parole pursuant to § 46-18-202, MCA. Heit now appeals.

I.

Heit’s first contention on appeal is that the District Court erred in refusing to instruct the jury on mitigated deliberate homicide as a lesser included offense of deliberate homicide. We disagree. Heit was charged alternatively with deliberate homicide under § 45-5-102(1)(a) or (b), MCA. The statute defining the lesser offense of mitigated deliberate homicide is set forth at § 45-5-103, MCA, and provides;

45-5-103. Mitigated Deliberate Homicide. - (1) A person commits the offense of mitigated deliberate homicide when he purposely or knowingly causes the death of another human being but does so under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a reasonable person in the actor’s situation.

“(2) It is an affirmative defense that the defendant acted under the influence of extreme mental or emotional stress for which there was reasonable explanation or excuse, the reasonableness of which shall be determined from the viewpoint of a reasonable person in the actor’s situation. This defense constitutes a mitigating circumstance reducing deliberate homicide to mitigated deliberate homicide and must be proved by the defendant by a preponderance of the evidence.

“(3) Mitigated deliberate homicide is not an included offense of deliberate homicide as defined in § 45-5-102(1)(b).

Under Subsection (3) of the above-quoted statute, a charge under subsection (b) of the deliberate homicide statute, commonly referred to as the felony murder rule, is clearly exempt from any requirement that the jury be instructed on mitigated deliberate homicide as a lesser included offense.

Because Heit was charged alternatively, he also maintains that he deserved the instruction under subsection (a) of the deliberate homicide statute. Generally, “a defendant is entitled to instructions on lessor [sic] included offenses if any evidence exists in the record which would permit the jury to rationally find him guilty of a lessor [sic] offense and acquit him of a greater. State v. Thornton (1985), 218 Mont. 317, 320, 708 P.2d 273, 276, quoting State v. Ostwald (1979), 180 Mont. 530, 538, 591 P.2d 646, 651. Under this rule, in order to find Heit guilty of a lesser offense, Heit had to present some evidence supporting the elements of mitigated deliberate homicide as set forth in § 45-5-103, MCA. Thus, Heit was required to offer some evidence demonstrating that he acted under “extreme mental or emotional stress for which there is reasonable explanation or excuse.” Thornton, 708 P.2d at 276, § 45-5-103, MCA. The defendant contends that the evidence received at trial demonstrated that there was a struggle over the gun, and that Mr. Heit was agitated and completely intoxicated, and that this evidence was sufficient to warrant instructing the jury on the lesser included offense.

This contention lacks merit. While this evidence indicates that Mr. Heit may have been upset at the time the crime was committed, it does not support a finding of “extreme mental or emotional stress for which there is reasonable explanation or excuse.” Section 45-5-103(1), MCA. Nor were there any allegations made that there was a reasonable explanation or excuse for Heit’s alleged stress other than testimony indicating that the bartender may have said something that made Heit angry. On the other hand, the evidence clearly establishes that the defendant purposely or knowingly caused the death of another human being. Section 45-5-102(1)(a). Having presented no credible evidence of mitigation and furthermore having espoused the theory in closing argument that he did not kill the deceased, Heit was not entitled to an instruction on mitigated deliberate homicide as a lesser included offense. See State v. Baugh (1977), 174 Mont. 456, 460, 571 P.2d 779, 781, State v. McDonald (1915), 51 Mont. 1, 16, 149 P. 279, 285.

II.

Heit’s next contention is that the District Court erred in admitting the statements of a court-appointed psychologist in sentencing, where this evidence was the apparent basis for the trial court’s declaration that Heit was ineligible for parole. This contention also lacks merit. At the August 15th sentencing hearing conducted after an earlier evidentiary sentencing hearing, the trial court identified the bases of the sentence imposed:

So the court, after considering the evidence at the hearing, which consisted really of the opinion of Officer Jensen and then the reasons why he made that opinion, and the psychologist from Warm Springs, who I am not certain helped in the matter for either side — as I point out both of you use the same testimony, the same report, and arrive at a totally different . . . thing; but I believe the law requires me to find beyond a reasonable doubt that there were aggravating circumstances. The only aggravating circumstance set forth was lying in wait or ambush..I can’t make that finding.”

This record indicates that the psychologist’s testimony and report were not the bases for the trial court’s declaration that Heit was ineligible for parole. Nor was this evidence the “apparent” basis for this determination as alleged in the issue as framed by Heit. We will discuss these bases for denial of parole in the next section of this opinion. Therefore, we need not determine if the admission of the psychologist’s testimony and report at sentencing constituted error; any such error would be deemed harmless as the evidence was not utilized by the trial court in sentencing. Rule 103, M.R.Evid.; Section 46-20-701, MCA; State v. Miller (1988), 231 Mont. 497, 519, 757 P.2d 1275, 1289; State v. Warnick (1985), 216 Mont. 102, 105, 699 P.2d 1049, 1051.

III.

Finally, Heit contends that the trial court erred because it failed to include a statement of reasons in declaring him ineligible for parole as required by § 46-18-202(2), MCA. The statute provides:

“46-18-202. Additional restrictions on sentence ....

“(2) Whenever the district court imposes a sentence of imprisonment in the state prison for a term exceeding 1 year, the court may also impose the restriction that the defendant be ineligible for parole and participation in the supervised release program while serving his term. If such a restriction is to be imposed, the court shall state the reasons for it in writing. If the court finds that the restriction is necessary for the protection of society, it shall impose the restriction as part of the sentence and the judgment shall contain a statement of the reasons for the restriction.”

Section 46-18-202(2), MCA. In its Judgment, Sentence, and Order, the trial court stated:

“4. This Court specifically finds and hereby determines the Defendant is a dangerous offender for the purpose of his eventual parole eligibility. The Court expressly declares the Defendant possesses [sic] a serious and substantial threat to the welfare and safety of other persons and is determined to be ineligible for parole or participation in the supervised release program or its future equivalent while serving the several terms herein imposed.”

Heit maintains that paragraph 4 of the judgment is merely a reiteration of the statutory language and a conclusory statement clearly lacking the written reasoning required by the statute. He contends that the sentencing document must give some factual basis for distinguishing him from others convicted of deliberate homicide who are not denied parole, stating such factual basis as the reason for the denial. While technically there is some merit in this contention, an examination of the sentencing document as a whole does reveal some minimal reasons for imposing the parole restriction. In its Conclusions of Law, the trial court made the following statements:

“7. The Defendant continues to show no remorse and continues to deny any remembrance of the crime and states that because he and others believe him not to be a violent person nor a thief that he believes that he did not commit the crime.

“8. This court must impose sentences based upon the nature of and the seriousness of the offenses committed by the Defendant, the circumstances under which they were committed, and the presence of aggravating circumstances and the absence of substantial mitigating circumstances or any prospect of rehabilitation.

“9. The sentence which the court imposes must also be determined by the obvious and vital importance of preventing the commission of additional offenses by the Defendant and the essential and overriding need to protect society from his violent and unlawful tendencies,” (Emphasis added.)

In its Findings of Fact, the court very thoroughly laid out the events constituting the perpetration of the crime, clearly demonstrating the pointless and brutal nature of the act. While the trial court failed to articulate that the brutality of this crime distinguishes this defendant from others convicted of deliberate homicide, it did state that the defendant possessed violent tendencies, felt no remorse, and the sentence was imposed because of the obvious importance of protecting society from this Defendant. While the factual basis for this conclusion was not precisely specified as the rationale for parole denial, the heinous nature of this particular crime as evidenced by the facts specifically found by the trial court make the rationale for the denial obvious.

AFFIRMED.

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


author: JUSTICE SHEEHY

text:
    In re the MARRIAGE OF NANCY JEAN SMITH, Petitioner and Appellant, and STANLEY NORMAN SMITH, Respondent and Respondent.
    No. 89-579.
    Submitted March 16, 1990.
    Decided May 10, 1990.
    791 P.2d 1373.

      Noel K. Larrivee, Larrivee Law Offices, Missoula, for petitioner and appellant.
    Douglas A. Buxbaum & Mark W. Mattioli, Poore, Roth & Robinson, Butte, for respondent and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Nancy Jean Smith, now Nancy Jean Ferguson (Ferguson), appeals the findings of fact, conclusions of law and order of the Third Judicial District, Powell County, determining modification of child support. We affirm.

Ferguson raises the following issues on appeal:

1. Whether the District Court improperly excluded certain portions of Smith’s income in applying the Montana Child Support Guidelines.

2. Whether the District Court failed to consider the standard of living the parties’ child would have enjoyed had the marriage not been dissolved.

3. Whether the District Court failed to determine one of the requested items of relief pertaining to annual costs of living increases in Ferguson’s motion for modification.

4. Whether Ferguson should be awarded her attorney fees and cost incurred in bringing her motion for modification of child support.

5. Whether the request for modification of child support should have been made retroactive to the date of filing the original motion for modification of child support.

Ferguson and Stanley Norman Smith (Smith) ■ were married at Deer Lodge, Montana, on July 6, 1974. The couple had one child, Jennifer, born September 19, 1980. The parties were divorced in December of 1985. The divorce decree provided that Smith should pay Ferguson $400 per month for the care and support of the minor child, Jennifer. The decree also provided for a cost-of-living adjustment, increasing the child support by a specified sum periodically. As the District Court noted in its findings, Smith has duly paid his child support obligation from the time of the dissolution of the marriage up to the present.

In addition to child support, Ferguson received alimony, $80,000 in equity in the family home in Deer Lodge, interest in a condominium, and a contract from Smith requiring him to make escrow payments in the amount of $4,025 per year from 1985 through 1990, increasing to the sum of $9,209 per year for five years following December of 1990. Ferguson remains in possession of these assets, with the exception of the alimony, which payments have now ended.

On November 13, 1987, Ferguson petitioned the District Court to modify the previous decree asserting that she had suffered a substantial and continuing change in circumstances that caused the previous order to be unconscionable. Later, Ferguson filed an amended motion for modification, requesting the court to increase the child support to reflect increases in the cost of living; that the court make modification retroactive from the date of filing the original motion, November 13, 1987; and, that Ferguson be awarded her costs and attorney fees in bringing the motion.

At the time of the December 1985 dissolution, Ferguson had a college degree with previous college teaching experience and a real estate broker’s license. She is currently employed as a financial planner, Despite her current employment, Ferguson’s income over the last two years was $5,000 in 1987, and $1,919.60 in 1988. Although Ferguson’s earnings have been dismal, she testified that she eventually expects to earn about $17,000 per year at her current job.

Although Ferguson was aware of her obligations at the time of the dissolution and she fully consented to the property division, she testified that she did not appreciate how much it would cost to raise Jennifer. Ferguson testified that her expenses had substantially increased since 1985. She testified that she spent approximately $120,000 over the last three years supporting herself and Jennifer. She estimated her pre-tax expenses for raising Jennifer at $18,000 per year.

Smith is currently practicing medicine in Alaska. Smith’s gross income at the time of the dissolution was approximately $60,000 per year. Since the divorce, Smith has moved to Alaska and his present gross income is approximately $11,110.30 per month. The District Court found that Smith’s income available for support is $5,342 per month. The District Court arrived at this figure by deducting the following expenses from Smith’s gross income of $11,110.30 per month.

Office meals $ 85.00
Income Taxes ■ 2,667.00
FICA 281.63
Dues/Publications 97.21
Continuing Medical Education 153.50
Business Travel (except business travel 102.50 associated with the divorce proceedings themselves)
Blue Cross Medical Insurance Premium 202.00
Auto Expense 428.45
Professional Attorney Fees 96.00
Professional Accounting Fees 259.08
Century Apartment Contribution for Custodial Parent 166.69
Business Losses: Cobblestone Apartments 718.26
Nancy Jean Smith Escrow Payment 335.00
Medical Expenses prorated one-half 22.85
TOTAL $ 5,615.67
(figures in original court file)

At the hearing, Ferguson offered Ms. Carol Mitchell, an experienced divorce attorney, as an expert witness-concerning the application of the Child Support Guidelines, While cross-examined by Smith’s counsel, Ms. Mitchell testified that the above listed deductions were legitimate deductions from Smith’s monthly income as a means of applying the Child Support Guidelines. The District Court also deducted Smith’s disability insurance premium.

The District Court utilized the Child Support Guidelines, and determined Smith’s child support obligation as follows:

Undisputed Deductions From Income $ 5,615.67
Disability Insurance Premium 152.36
TOTAL DEDUCTIONS $ 5,768.03
Monthly Income $ 11,110.33
Less Deductions 5,768.03
Income for Support 5,342.30
X .136
Respondent’s Child Support Obligation $ 726.55

Furthermore, the District Court declined to apply the increase in child support back to the original motion. The District Court explained that “the motion was filed nearly two years ago and has been mutually continued by the parties for most of that time.” The court further found that “Respondent has always paid the support that was ordered by the court and it would place a substantial unfair burden on the Respondent to pay retroactive child support at this time.” The District Court also denied Ferguson’s request for costs and attorney fees.

In reviewing orders of the District Court we presume the judgment of the District Court is correct. In Re the Marriage of Reynolds (1983), 203 Mont. 97, 102, 660 P.2d 90, 93. We will reverse the District Court only when there is a clear abuse of discretion.

This Court has adopted the Uniform District Court Rule on Child Support Guidelines (1987), 227 Mont. 1, 44 St.Rep. 828 (Guidelines). The Guidelines are a suggested procedure for the determination of child support. Although the Guidelines are not expressly binding, when used by the District Court, all findings are reviewable. As previously stated, absent a clear showing of abuse of discretion, the District Court’s findings will be upheld. In the Marriage of Gray (Mont. 1990), [242 Mont. 69,] 788 P.2d 909, 911, 47 St.Rep. 552, 554; In Re the Marriage of Mitchell (1987), 229 Mont. 242, 245, 746 P.2d 598, 600; In Re the Marriage of Ensign (1987), 227 Mont. 357, 361, 739 P.2d 479, 482; In Re the Marriage of Ryan (1986), 222 Mont. 188, 191, 720 P.2d 691, 693. We find the District Court did not abuse its discretion.

I

Whether the District Court improperly excluded certain portions of Smith’s income in applying the Montana Child Support Guidelines.

The District Court properly found Smith’s total monthly income to be $11,110.33 per month. The District Court then listed in its findings of fact the monthly expenses noted above which Smith claims are legitimate deductions under the Guidelines from his monthly income. The District Court found that “. . . these items are not substantially in dispute between the parties as legitimate deductions from income to calculate child support under the guidelines.” However, Ferguson disagrees with the District Court, and argues the finding is clearly erroneous. To determine whether the District Court abused its discretion, we naturally look to the Guidelines for guidance. Part 5 of the Guidelines expressly provides the following:

“The implementation of the policy of keeping primary focus on the needs of the child(ren) requires that from each obligor parent’s income only a minimum of exclusions be allowed. Therefore, from gross income only the following are subtracted as deductions: federal and state income taxes; FICA; union dues, retirement contribution,; uniforms, etc., which are required as a condition of employment and are not reimbursed by the employer; legitimate business expenses; and health insurance if the benefits are maintained for the obligor parent’s dependents, including the child(ren) of the action at hand.”

Ferguson is not disputing the deductions for income taxes and FICA contribution, as those are expressly included within part 5 of the Guidelines. However, she contends the District Court’s deductions for dues and publications; auto expenses; attorney fees; accounting fees; and deductions for business investments, are not listed as allowable deductions under the Guidelines. Ferguson is correct, the Guidelines do not specifically set forth the deduction adopted by the District Court. However, the Guidelines do permit deductions for “legitimate business expenses.” We find Smith’s deductions fall under the category of “legitimate business deductions.” Thus, we find the lower court properly exercised its discretion in finding Smith’s expenses as proper deductions. This is supported by the testimony of Ferguson’s own expert witness, Ms. Mitchell. Ms. Mitchell testified that the expenses adopted by the District Court were legitimate deductions from Smith’s monthly income under the Guidelines. Ferguson offered no testimony contrary to the testimony of her own expert. The District Court cannot be faulted for accepting the only testimony offered on the deductions. It has long been the rule of this Court that on appeal we will not put a District Court in error for a ruling or procedure in which the appellant acquiesced, participated, or to which appellant made no objection. In Re the Marriage of Green (1978), 176 Mont. 532, 536, 579 P.2d 1235, 1237; Dieruf v. Gollaher (1971), 156 Mont. 440, 447, 481 P.2d 322, 326; Johnson v. Green (1969), 153 Mont. 251, 255, 456 P.2d 290, 293; Harris v. Lloyd (1891), 11 Mont. 390, 28 P. 736. Thus, the District Court’s decision was far from arbitrary; rather, the court’s decision was clearly within the bounds of reason given the evidence presented.

The only additional deduction by the court, and not concurred in by Ms. Mitchell, was a $152.36 per month deduction for Smith’s disability insurance premium. The District Court explained the following reason for Smith purchasing the disability insurance, “The investment in a disability insurance policy is maintained by the respondent in order to enable him to meet his obligations, including the obligation to Jennifer, in the event of his disability.” While disability insurance premiums are not specified as a deduction under the Guidelines, we adopt the District Court’s finding and rationale for including Smith’s disability insurance premium as a deduction:

“The Court concludes that the Respondent, . . ., should be encouraged, as a matter of public policy, to carry disability insurance. To refuse such a deduction would constitute an impediment to the provision of such coverage and would run counter to the overall policy of law in terms of child support. Consequently, the Court concludes that the disability insurance premium is a legitimate expense deduction under the Guidelines, and is at least partially for the benefit of the minor child.

II

Whether the District Court failed to consider the standard of living the parties’ minor child would have enjoyed had the marriage not been dissolved.

In determining child support § 40-4-204(2)(c), MCA, expressly directs the District Court to consider the “standard of living the child would have enjoyed had the marriage not been dissolved.” In Re the Marriage of Grenfell (1979), 182 Mont. 229, 232, 596 P.2d 205, 207. Ferguson argues the District Court, in its findings of fact and conclusions of law, failed to consider the “standard of living of the child” in determining the amount of the child support modification and, just as in In Re the Marriage of Anderson (1988), 230 Mont. 89, 93, 748 P.2d 469, 471, such lack of findings should serve as a grounds for reversal. The record reveals the District Court heard extensive testimony and received numerous exhibits concerning the income of the parties, the expenses of Jennifer, and the standard of living of all the parties before and after the dissolution. Contrary to Ferguson’s assertions, the District Court did consider “the standard of living of the child” when the court increased Smith’s child support payments from $400 per month to $726.55 per month. We find no abuse of discretion by the District Court in determining the child support award.

Ill

Whether the District Court failed to determine one of the requested items of relief pertaining to annual cost of living increases in Ferguson’s Motion for Modification.

On January 25, 1989, Ferguson filed an Amended Motion for Modification of Child Support, requesting among other things, that “ (the amount of) child support be increased annually to reflect the increase in the cost of living, by the amount of $50.00 per month each year, commencing twelve (12) months after the date of modification.” A review of the District Court’s findings of fact and conclusions of law reveal the court failed to make any findings or conclusions as to Ferguson’s cost of living request. This oversight, according to Ferguson, is an abuse of the lower court’s discretion.

The record discloses the District Court did not, in fact, ignore Ferguson’s request. Ferguson submitted extensive findings of fact and conclusions in which her request for a cost of living increase was clearly before the court and denied. It is clear from the District Court’s findings and conclusion that the court sifted through the proposed findings of both parties and rejected various findings and conclusions. The court’s denial of the cost of living increase would not, within the meaning of this Court’s test of abuse of discretion, result in any substantial injustice to Ferguson who will receive $726.55 per month in child support.

Finally, the Court’s denial of a cost of living increase is supported by Ferguson’s potential earning capacity, her substantial equity in the Deer Lodge home, and the $9,209 she will receive in each of the next five years. Thus, the District Court acted properly in not awarding a cost of living increase to Ferguson.

IV

Whether Ferguson should be awarded her attorney fees and costs incurred in bringing her motion for modification of child support.

The awarding of attorney fees are governed by § 40-4-110, MCA, which states:

“The Court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment . . .” (Emphasis added.)

This Court has stated that the awarding of attorney fees is clearly permissive under this statute. In Re the Marriage of Gallinger (1986), 221 Mont. 463, 471, 719 P.2d 777, 782-83; In Re the Marriage of Obergfell (1985), 218 Mont. 83, 88, 708 P.2d 561, 564. The appropriate standard for reviewing a district court decision not to award attorney fees under § 40-4-110, MCA, is whether the Court abused its discretion in refusing to award such fees. Anderson, 748 P.2d at 472; In Re the Marriage of J.J.C. (1987), 227 Mont. 264, 270, 739 P.2d 465, 469; In Re the Marriage of Nalivka (1986), 222 Mont.84, 91, 720 P.2d 683, 688; Gallinger, 719 P.2d at 782-83. Ferguson argues that the District Court abused its discretion because the court failed to state reasons for the denial. In the past, this lack of specifics would have constituted remandable error. However, this Court, in Gallinger, 719 P.2d at 782-83, specifically overruled that requirement, adopting instead the “abuse of discretion” standard for reviewing the District Court’s award of attorney fees.

In this case, the record indicates the District Court was cognizant of the financial resources and financial burdens of both parties as required by § 40-4-110, MCA, and, although Ferguson was not in as strong a financial position as Smith, the record indicates she still has sufficient financial resources to be responsible for her own attorney fees. Thus, we find no abuse of discretion by the District Court in ordering the parties to pay their own attorney fees and costs.

V

Whether the request for modification of child support should have been made retroactive to the date of filing the original motion for modification of child support.

Ferguson complains that the District Court erred by failing to make the child support retroactive to the date of the original motion for modification. A review of the record reveals this matter was properly brought before the District Court for modification on November 13, 1987. The request for modification was continued for hearing for more than 15 months. After 14 months had elapsed, Ferguson filed an amended motion for modification requesting, among other things, that the modification be made retroactive from the date of filing of the original motion. Ferguson argues that Smith is responsible for this delay, and therefore the District Court should have ordered him to pay retroactive child support. We disagree with Ferguson, and instead adopt the District Court’s findings. After reviewing the record, the District Court properly concluded that “the case had been continued on mutual agreement of the parties for over two years.” Furthermore, the court correctly noted that “Respondent has always paid the support that was ordered by the court and it would place a substantial unfair burden on the Respondent to pay retroactive child support at this time.” We see no abuse of discretion in the District Court’s denial of Ferguson’s request for retroactive child support.

Accordingly, we affirm the District Court.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


author: JUSTICE BARZ CHIEF JUSTICE TURNAGE,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MARK E. BROWN, Defendant and Appellant.
    No. 89-450.
    Submitted on Briefs Feb. 1, 1990.
    Decided May 15, 1990.
    791 P.2d 1384.

      Vincent J. Kozakiewicz, Kozakiewicz Law Office, Dillon, for defendant and appellant.
    Marc Racicot, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Thomas R. Scott, Beaverhead County Atty., Dillon, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Mark E. Brown, defendant, was charged by information with felony assault, driving while under the influence, and driving while license suspended or revoked in violation of §§ 45-5-202(2)(c), 61-8-401(1)(a) and 61-5-212(1), MCA, respectively. A jury found defendant guilty on all counts on March 17, 1989. Defendant appeals the decision by the District Court of the Fifth Judicial District, Beaverhead County, allowing the introduction of evidence of other crimes, wrongs or acts. We reverse the District Court and remand for a new trial.

On October 21, 1988, the defendant was released from the Beaverhead County Jail at approximately 9:00 a.m. Defendant proceeded to the Dillon Hotel and Bar, the Lobby Bar, and a local area inhabited by transient individuals known as the “cabbage patch.” At the cabbage patch, defendant made arrangements to purchase a blue 1963 Mercury Comet. Defendant’s driver’s license was suspended or revoked at that time.

At approximately 1:00 p.m. on the same day, Terry Ersland was stopped at a downtown intersection when she noticed defendant honking his car horn behind her. Ersland was accompanied by two friends. All three individuals testified at the trial that defendant repeatedly honked his horn and then either “rammed” or “bumped” their vehicle several times from behind. Defendant then veered around them and proceeded at a high rate of speed down a city street. During this time, defendant, in his own words, “was a little bit more than intoxicated.” Ersland and her friends then proceeded directly to the police station to report the incident.

While Ersland and her friends were at the police station relating the incident, defendant arrived at the police station to pick up his belongings. Ersland and her friends then identified defendant as the driver of the blue car that ran into them at the downtown intersection. Officer Arthur Cranford of the Dillon City Police informed defendant that they had a report of an accident in which he had been the driver. Defendant denied any involvement and later testified at trial that a man named “Ed” drove him to the county jail. When Officer Cranford informed defendant he was under arrest, defendant became belligerent and resisted booking. Defendant’s resistance escalated with defendant striking Officer Cranford in the face and attempting to choke the officer. Only after Officer Cranford drew his revolver was defendant controlled.

On November 4, 1988, defendant was charged by information with the offenses of felony assault in violation of § 45-5-202(2)(c), MCA, driving while under the influence, a misdemeanor, in violation of § 61-8-401(1)(a), MCA, and driving while license suspended or revoked, a misdemeanor, in violation of § 61-5-212(1), MCA. A jury trial was held March 16 and 17, 1989. Prior to the trial, on February 24, 1989, the State filed a notice of intent to introduce evidence of other crimes, wrongs or acts. In particular, the State cited the following acts committed by defendant for the purpose of proving motive, intent, preparation, plan, knowledge or common scheme or plan.

“August 12, 1988:
“Theft, a misdemeanor
“Driving while under the influence, a misdemeanor
“Leaving the scene of an accident, a misdemeanor
“Operating a vehicle without liability insurance, a misdemeanor
“Resisting arrest, a misdemeanor
“September 5, 1988:
“Disorderly conduct, a misdemeanor
“Resisting arrest, a misdemeanor
“Assault, a misdemeanor
“September 6, 1988:
“Assault, a misdemeanor
“October 11, 1988:
“Disorderly conduct, a misdemeanor”

In the omnibus hearing on pretrial matters, the District Court ruled that it would allow the introduction of evidence of other crimes, acts or wrongs and therefore denied defendant’s objection to the introduction of the above-cited acts. During the State’s case-in-chief, the evidence of prior crimes was introduced by.the State and objected to by defendant. The jury returned a guilty verdict on all counts.

The sole issue raised on appeal is whether the District Court erred in allowing the introduction of evidence of other crimes, wrongs or acts.

Rule 404(b), M.R.Evid., codifies the law regarding the admission of other crimes, wrongs or acts. This rule provides that:

“Character evidence not admissible to prove conduct, exceptions; other crimes; character in issue.

“(b) Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

In this case, the State argues that the other crimes evidence was offered for the purpose of proving defendant’s motive and intent with respect to his conduct at issue in the proceedings. After applying the four part test that this Court first recognized in State v. Just (1979), 184 Mont. 262, 602 P.2d 957, we hold that the District Court erred in allowing the introduction of acts committed by defendant between August 11, 1988 and October 12, 1988.

The four substantive factors that the State must demonstrate in order to introduce evidence of other crimes or wrongful acts are that the other crimes or wrongful acts are (1) similar in nature; (2) not remote in time; (3) tend to establish a common scheme, plan or system; and (4) that the probative value of the other crimes or wrongful acts is not substantially outweighed by their prejudice to defendant. State v. Keefe (1988), 232 Mont. 258, 266, 759 P.2d 128, 133; Just, 184 Mont. at 269, 602 P.2d at 961. Applying the facts of the present case to these four factors, we find that the State failed to prove the third and fourth factors.

We agree with the State that under these set of facts, the acts committed by defendant between August 11, 1988 and October 12, 1988 are not remote in time, however, we also determine that the acts do not establish a common scheme, plan or system. While the acts committed between August 11, 1988 and October 12, 1988 may be similar in nature in some respects to defendant’s conduct on October 21, 1988, this does not necessarily prove that the acts tend toward establishing a common scheme, plan or system.

In particular, the State introduced evidence of incidents that occurred on August 12, 1988 and September 5 and 6, 1988. On these days, the State introduced evidence that defendant was intoxicated and verbally and physically abusive when police officers attempted to restrain him or arrest him. The State argues that this evidence was admitted to show that defendant “intended to inflict harm upon Officer Cranford, e.g., the assault on the officer was neither a mistake nor accidental.” The introduced evidence in this case pertaining to the incidents on August 12 and September 5 and 6, 1988 do not constitute a common scheme, plan or system. On the contrary, the record demonstrates that defendant’s acts lacked any common scheme or plan and were instead spontaneous acts dictated by his character and the situation at hand. In ¿ddition, the cited acts’ probative value does not outweigh the prejudice that flows to defendant under these circumstances.

In light of the facts of this case, we hold that the District Court erred in allowing under Rule 404(b), M.R.Evid., evidence of acts committed by defendant between August 11, 1988 and October 12, 1988. The crimes committed between these dates go towards defendant’s character or trait of his character and therefore are not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion. Rule 404(a), M.R.Evid.

Reversed and remanded for a new trial.

JUSTICES HUNT, WEBER, and McDONOUGH concur.

CHIEF JUSTICE TURNAGE,

dissenting.

I respectfully dissent.

The sole issue on appeal is whether there is error in the introduction of evidence of other crimes, wrongs or acts.

The majority finds error in a failure to satisfy the third requirement of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, in that the acts at issue do not tend toward establishing a common scheme, plan or system.

I believe the record sufficiently satisfies this requirement of Just, the evidence tends to establish a common system or scheme of the defendant. Under Rule 404(b) the evidence does establish the defendant’s opportunity, motive and intent. Further, the language of Rule 404(b), M.R.Evid., provides a basis for sustaining the introduction of the evidence at issue. The rule provides that such evidence may be admissible for other purposes, such as proof of motive, op portunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

It first should be noted that the evidence relating to the incident of October 11, 1988, was introduced by the defendant on direct examination and not by the prosecution. This incident did not involve a violent act on the part of the defendant.

The other three incidents, August 12, 1988, September 5, 1988, and September 6, 1988, as well as the crime for which the defendant was convicted and now appeals, all involved opportunity, intent, motive or scheme of the defendant to violently attack an arresting officer upon being placed under arrest.

THE INCIDENT OF AUGUST 12, 1988

At trial, Officer Pallas testified in substance: A citizen called the police department in Dillon and reported that someone had driven a vehicle into a telephone pole. In response, Officer Pallas found the defendant intoxicated in the automobile that defendant had driven into a telephone pole. The car was severely damaged. Defendant was trying to get the car to run so he could proceed on his way. The defendant’s face had hit the steering wheel or the windshield and he was bloodied. The officer, being concerned about defendant’s physical condition, called for an ambulance. Then the fun began. The defendant, obviously intoxicated, fought with both the officer and the ambulance crew. When the defendant was advised that he was under arrest, he said, “I ain’t going nowhere with you, you -— pigs.” The defendant kicked the officer in the chest and fought with the ambulance crew and the officer until they finally transported him to the hospital for examination.

THE INCIDENT OF SEPTEMBER 5 AND 6, 1988

Officer Reeder, Beaverhead County sheriff’s department, testified to the following.

At approximately 11:00 p.m. on September 5, 1988, a call came to the sheriff’s office from the manager of Kentucky Fried Chicken who reported that a man was sleeping in her vehicle.

When Officer Reeder arrived he found the defendant either asleep or passed out in the manager’s vehicle. The officer had difficulty in arousing the defendant. When he did arouse him and identified himself as a sheriff’s officer, the defendant told him to “go get __” The sheriff’s deputy had to struggle with the defendant to get him out of the vehicle. When he did get him out and advised him he was under arrest, the defendant struck the officer in the testicles. After more struggling, the defendant was finally subdued. He fought all the way to the jail. At the jail it took four officers to place him in a padded cell where he would presumably not injure himself.

The transcript is full of interesting statements about defendant’s profanity and his spitting in the faces of officers.

I believe the record clearly indicates that the evidence of defendant’s other prior crimes, wrongs or acts tends to prove the defendant did have opportunity, intent, motive, or common scheme when he was arrested, when he was full of strong drink, to fight and resist the arresting officers right to the jail or hospital.

I believe Rule 404(b), M.R.Evid. and the Just standards have been met. In this case the defendant was convicted of assaulting a law enforcement officer. The evidence introduced by the prosecution in three of the above incidents clearly established that the defendant used the opportunity of arrest to assault the law enforcement officer or officers involved. The evidence of defendant’s conduct was probative and did establish opportunity, intent, motive or common scheme.

It would be a different matter if the evidence was introduced to only prove that in defendant’s character there abides dislike of law enforcement officers. Such is not the facts in this case where such dislike escalates into violent assault.

I would affirm.


author: JUSTICE WEBER JUSTICE HARRISON,

text:
    CAROLYN BIRGENHEIER, Petitioner and Respondent, v. TRUSTEES, YELLOWSTONE COUNTY SCHOOL DISTRICT, NO. 2, and Ed Argenbright, Superintendent of Public Instruction, Respondents and Appellants.
    No. 89-552.
    Submitted on Briefs March 16, 1990.
    Decided May 15, 1990.
    791 P.2d 1388.

      Laurence R. Martin and Sol Lovas, Billings, Beda Lovitt, Chief Legal Counsel, Office of Public Instruction, Helena, for respondents and appellants.
    Emilie Loring, Missoula, for petitioner and respondent.
    Catherine Swift, Montana School Boards Ass’n, Helena, for amicus curiae.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff, a nontenure teacher, filed this action requesting reinstatement, after her temporary, one-year contract was not renewed. The District Court of the First Judicial District, Lewis and Clark County, ruled that the School District’s notice of non-renewal did not properly comply with § 20-4-206, MCA, and remanded the matter to the School District for the District to provide plaintiff with a statement of reasons for her termination. The School District appeals. We affirm.

We restate the issues for consideration as follows:

1. Did the School District follow adequate procedure in terminating the nontenure teacher?

2. Even though plaintiff had been terminated, was she entitled to a further statement of reasons under § 20-4-206, MCA?

On August 22, 1985, plaintiff, Carolyn Birgenheier, signed an “Acknowledgment of Temporary Appointment” with School District No. 2, Yellowstone County, Montana (School District), which stated:

“This will acknowledge my understanding that my appointment by the Billings Public Schools is temporary, and that I cannot presume reappointment. The term of this temporary appointment is from August 26, 1985 until June 7, 1986.”

On September 10, 1985, she signed a one-year “Teacher’s Contract” with the School District as an elementary music teacher. That contract stated in pertinent part:

“1. That the teacher is hereby employed to teach, as and where assigned, in the schools of District for and during the school year beginning on or about 08/26/85 and terminating on or about 06/7/ 86.”

In April 1986, plaintiff received a letter from Billings Public Schools which stated:

“Thank you for your service to Billings Public Schools during this school term. As you are aware, you were hired under a one-year contract for the 1985-86 school year. Please be notified that your contract will have reached its term by the end of the current school year, and will not be renewed by the Board of Trustees.

“As we advertise to fill the position you now hold, we hope that you will feel free to make application for it. Thank you again for your year of service. We hope you have enjoyed your time with us.”

The “Master Agreement”, the contract between the teachers and the School District, provided as follows with regard to nontenure teacher termination:

“Section 7 Non-Tenure Teacher Severance Policy:

“Subd. 1. Every non-tenured teacher shall be entitled to the following rights if his/her contract is not being renewed.

“(a) The teacher shall be notified by the Superintendent, in writing, that his or her contract will not be renewed pursuant to Montana statutes.

“(b) The notice shall state the specific reasons for non-renewal.

“(c) The teacher may appeal his/her non-renewal to the Board of Trustees or a committee thereof, by May 1. The Board, or its committee, shall reach a decision within twenty (20) dáys of the submittal of the appeal.”

Plaintiff gave her notice of non-renewal appeal to the Board of Trustees pursuant to the Master Agreement. The School District affirmed the decision not to renew without a further statement of reasons. Plaintiff then appealed to • the County Superintendent. The Findings of Fact of the County Superintendent established that the notice of non-renewal of nontenure teacher was timely; that plaintiff’s appeals to the School Board and County Superintendent were timely; that plaintiff was non-renewed “for the reason: ‘expiration of temporary one-year contract’ ”; and that plaintiff signed a standard teaching contract and an Acknowledgment of Temporary Contract prior to the 1985-86 school term. The pertinent conclusion of law by the County Superintendent was that the School District was bound to provide nontenured teachers with some indication of the reason or basis for the decision to terminate. While not denominated either a finding of fact or conclusion of law, the key conclusion on the part of the County Superintendent was that “this Hearing Officer does agree with the Petitioner [plaintiff] that this particular one-year contract stipulation is an attempt to evade the ‘specific reason’ test of the Bridger case.” Bridger Educ. Ass’n v. Board of Trustees (1984), 209 Mont. 31, 678 P.2d 659. The County Superintendent then ordered that the decision of the Board of Trustees was overturned and that the plaintiff was reinstated with full salary and benefits for the 1986-1987 year.

The School District appealed that decision to the State Superintendent of Public Instruction (State Superintendent). The State Superintendent reversed the County Superintendent, holding that this was “not a termination situation as covered by Bridger, but rather, a contractual issue resolved in accordance with the terms of the agreement.” He pointed out that plaintiff was notified and acknowledged that she accepted a temporary position which would terminate at the end of the next school year and that such acknowledgment was made in addition to the regular teaching contract. In addition he pointed out that at the end of the temporary appointment she was notified that she was given the opportunity to reapply for the position and was encouraged to do so. He further concluded there was nothing in the record to support the County Superintendent’s conclusion that the School District was using temporary appointments to evade the requirement of a statement of reasons.

Plaintiff requested judicial review of the State Superintendent’s decision, contending that the State Superintendent erred in concluding that Bridger did not apply; that the State Superintendent erred in ignoring the requirements of § 20-4-206, MCA, that termi- ' nated nontenure teachers be given the reasons for termination; and that because all teachers are on one-year contracts, the expiration of such a contract is not a “reason” for termination.

The District Court concluded as follows:

“[e]ven though the school district may be immune from suit under Section 2-9-111, MCA, it still must comply with the requirements of Section 20-4-206(3), MCA, and the Bridger decision. Under Bridger, a school district must provide a nontenured teacher with a statement of reasons which states what undesirable qualities merit a refusal to enter into a further contract. Since the school district did not provide such a statement, it is the opinion of the Court that under Bridger the matter must be remanded to the school district for a statement which complies with that decision.”

The District Court ordered a remand to the School District for a statement of reasons. The District Court did not address the issue of the reinstatement of the plaintiff. From that decision, the School District appeals.

I

Did the School District follow adequate procedure in terminating the nontenure teacher?

It is important that we consider the specific provisions which apply to the termination of a nontenure teacher. Section 20-4-206, MCA, as set forth in 1989, has not been changed since the 1975 amendment, and in pertinent part states:

“(1) The trustees shall provide written notice by May 1 to all non-tenure teachers who have been re-elected. Any nontenure teacher who does not receive notice of re-election or termination shall be automatically re-elected for the ensuing school fiscal year.

“(3) When the trustees notify a nontenure teacher of termination, the teacher may within 10 days after receipt of such notice make written request of the trustees for a statement in writing of the reasons for termination of employment. Within 10 days after receipt of the request, the trustees shall furnish such statement to the teacher.”

After a consideration of the argument by counsel, including the references to Bridger, we conclude that it is necessary for us to restate our interpretation of § 20-4-206, MCA, as it applies to non-tenure teachers. Under that statute, the School Board was required to give written notice to the plaintiff nontenure teacher by May 1. Had such notice not been given, the nontenure teacher would have been automatically re-elected for the following school year. Here the School District timely gave the required notice. As a result of the giving of that notice, the plaintiff was terminated for the ensuing school fiscal year. Under the statute, a statement of reasons was not required in order to effectively terminate the plaintiff. We emphasize that under the statute, the notice of termination is sufficient even in the absence of any statement of reasons. Under the provisions of § 20-4-206, MCA, we hold that the School Board properly gave written notice by May 1 to the plaintiff of her termination, and that such notice was effective to terminate the contract relationship between the plaintiff and the School District so that she would not be automatically reelected for the following year.

II

Even though plaintiff had been terminated, was she entitled to a further statement of reasons under § 20-4-206, MCA?

As mentioned, the School District advised the plaintiff that the reason for her non-renewal was that her temporary one-year contract had expired. The School District maintains that is a sufficient statement under the statute.

Plaintiff ■ contends that all teachers are on one-year contracts so that the expiration of á one-year contract is not a “reason” for termination. Her argument essentially is grounded in our Bridger decision. She believes that decision requires a more enlarged statement of reasons.

It is apparent that Bridger has caused interpretive problems for the parties. In Bridger, the key statement was:

“The non-tenured: teacher is entitled to a notice which states what undesirable qualities merit a refusal to enter into a further contract.” • '

That statement was not required for the holding in Bridger. In addition, it is somewhat inaccurate. It suggests that in the absence of undesirable qualities which merit a refusal to enter into a further contract, a nontenure teacher may not be terminated. That is not a requirement of § 20-4-206, MCA. That section only requires a statement in writing of the reasons for termination upon request of the nontenure teacher. We therefore overrule the statement in Bridger that a nontenure teacher is entitled to notice which states what undesirable qualities merit a refusal to enter into a further contract. If there are undesirable qualities on the part of the teacher, it would be reasonable for a school district to inform the teacher of those undesirable qualities; but there is no statutory standard that the rjeasons must be somehow sufficient to merit a refusal to enter into a ésntract. We conclude and hold that under § 20-4-206, MCA, upon written request, a teacher is entitled to a statement in writing of the reasons for termination of employment. As we have mentioned, § 20-4-206, MCA, does not contain any specific requirements with regard to the extent or nature of the statement of reasons. In a similar manner, the Master Agreement does not contain any such specific requirements. We conclude that under the statute the trustees are obligated to furnish a statement stating the “reasons for termination” in reasonable detail.

We note that § 20-4-206(4), MCA, provides that when the financial condition of the school district requires a reduction in the number of teachers and the reason for the termination is the reduction in the number of teachers employed, the provisions of this section do not apply. This case does not involve such a reduction in force.

We recognize that the School District may have hesitated to give details of its reasons in order to eliminate an argument under Bridger that the reasons were not sufficient to justify the non-renewal of the teacher. We trust that concern has been eliminated by this opinion. While we have concluded that a teacher is entitled to a statement setting forth reasons for termination of employment in reasonable detail, we emphasize that the inadequacy of such a statement will not in any way affect the termination, assuming that timely notice of termination was given.

We conclude that under the facts of this case, it is reasonable to require the School District to give a further explanation of the reasons for termination in view of the request by the teacher. We therefore remand to the District Court, and ultimately to the School District, for the furnishing to the plaintiff of a statement in writing of the reasons for the termination of her employment in reasonable detail, in addition to the previous reason given by the School District, that being expiration of the temporary one-year contract.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, HUNT, McDONOUGH and BARZ concur.

JUSTICE HARRISON,

dissenting.

I dissent. I can find no reason to remand this case to the School District. The plaintiff was hired for a one-year period and was later given the opportunity and was encouraged to reapply for the job.


author: JUSTICE HARRISON JUSTICE SHEEHY,

text:
    PATRICK JAMES BOLAND, Petitioner and Respondent, v. STATE OF MONTANA, Respondent and Appellant.
    No. 89-355.
    Submitted on Briefs Feb. 2, 1990.
    Decided May 2, 1990.
    Rehearing Denied June 20, 1990.
    792 P.2d 1.

      Marc Racicot, Atty. Gen., Peter Funk, Asst. Atty. Gen., Helena, Patrick Paul, Co. Atty., Stephen Hagerman, Deputy, Great Falls, for respondent and appellant.
    Patrick F. Flaherty, Flaherty & Winner, Great Falls, for petitioner and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

The State of Montana appeals from Eighth Judicial District Judge John McCarvel’s judgment which concluded that the officer who arrested Patrick Boland for driving under the influence of alcohol did not have reasonable cause to arrest Boland at the time the officer stopped him. The District Court held that Boland was therefore entitled to immediate restoration of his driver's license and driving privileges. We reverse the lower court’s judgment.

Only one issue is presented: Was the District Court’s ruling that the arresting officer did not have reasonable Cause to stop Boland and arrest him for driving under the influence of alcohol clearly erroneous given the evidence before the court?

At approximately one in the morning of January 26, 1989, police officer Donald Scheele observed a car weaving down Central Avenue in downtown Great Falls, Montana. From a distance of about three car lengths, Officer Scheele followed the vehicle for one and one-half to two blocks. Because he was transporting a prisoner, Officer Scheele radioed for assistance and Officer Steve Lohse, who was patrolling the area, agreed to continue the surveillance. Officer Scheele relayed the vehicle’s description and license plate number to Officer Lohse.

Officer Lohse then followed the vehicle for several blocks until it pulled into a restaurant parking lot. While Officer Lohse did not see any indication that the vehicle was being driven erratically, he did observe that the driver stumbled as he got out of the car and had difficulty maintaining his balance. When Officer Lohse asked to see the driver’s license he immediately noticed the odor of alcohol on the breath of the driver, Patrick Boland.

Officer Lohse stated that Boland appeared to have been drinking and Boland replied that he had just come from The City Bar. At that point Officer Lohse administered three field sobriety tests. Boland failed two tests and his speech was slurred during the third. At that point Officer Lohse advised Boland he was under arrest for driving under the influence of alcohol. Boland refused to submit to a chemical test.

Following his arrest, Boland’s driver’s license was suspended in accordance with § 61-8-402, MCA, which provides:

“(1) Any person who operates a vehicle upon ways of this state open to the public shall be deemed to have given consent, subject to the provisions of 61-8-401, to a chemical test of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested by a peace officer for driving or in actual physical control of a vehicle while under the influence of alcohol. The test shall be administered at the direction of a peace officer having reasonable grounds to believe the person to have been driving or in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol. The arresting officer may designate which one of the. aforesaid tests shall be administered.

“(3) If a resident driver under arrest refuses upon the request of a peace officer to submit to a chemical test designated by the arresting officer as provided in subsection (1) of this section, none shall be given, but the officer shall, on behalf of the department, immediately seize his driver’s' license. The peace officer shall forward the license to the department, along with a sworn report that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol and that the person had refused to submit to the test upon the request of the peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in subsection (5).

“(4) Upon seizure of a resident driver’s license, the peace officer shall issue, on behalf of the department, a temporary driving permit, which is valid for 72 hours after the time of issuance.

“(5) The following suspension and revocation periods are applicable upon refusal to submit to a chemical test:

“(a) upon a first refusal, a suspension of 90 days with no provision for a restricted probationary license;

“(b) upon a second or subsequent refusal within 5 years of a previous refusal, as determined from the records of the department, a revocation of 1 year with no provision for a restricted probationary license.

“(7) All such suspensions are subject to review as hereinafter provided.”

Boland then filed a petition for a hearing to determine “whether a peace officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon the ways of this state open to the public, while under the influence of alcohol, whether the person was placed under arrest, and whether such person refused to submit to the test” in accordance with § 61-8-403, MCA. The hearing was held before Judge McCarvel on May 9, 1989. At the conclusion of the hearing, the District Court found that Officer Lohse did not “of his own knowledge” have reasonable cause to stop Boland and arrest him for driving under the influence of alcohol. The District Court ordered Boland’s driver’s license be restored to him. It is from this order the State appeals.

A hearing held under § 61-8-403, MCA, is “a civil proceeding separate and distinct from a criminal trial on the charge of operating a motor vehicle while under the influence of alcohol.” Gebhardt v. State (Mont. 1989), [238 Mont. 90,] 775 P.2d 1261, 1265, 46 St.Rep. 1114, 1117 (citing In re Blake (1986), 220 Mont. 27, 31, 712 P.2d 1338, 1341). The purpose of such a hearing is to review whether a petitioner’s license was properly revoked following the petitioner’s refusal to submit to a chemical test, and the judge determines only:

“(1) whether the arresting officer had reasonable grounds to believe the following:

“(a) that the petitioner had been driving or was in actual physical control of a vehicle;

“(b) that the vehicle was on a way of this state open to the public; and

“(c) that the petitioner was under the influence of alcohol;

“(2) whether the individual was placed under arrest; and

“(3) whether the individual refused to submit to a chemical test.”

(Emphasis in original.)

Gebhardt, at 1265, 46 St.Rep. at 1117-18.

The only issue at the May 9 hearing was whether the arresting officer had reasonable grounds to believe that the petitioner was under the influence of alcohol. Petitioner Boland did not contest that he was driving the vehicle on a way of this state open to the public, nor did he contest that he had been placed under arrest and refused to consent to a chemical test.

Regarding what constitutes “reasonable grounds” we have recently clarified the standard:

“ [Reasonable grounds exist if the facts and circumstances within the personal knowledge of the arresting officer would be sufficient to warrant a reasonable person to believe that the motorist is under the influence of alcohol.”

Gebhardt, at 1266, 46 St.Rep. at 1119.

The District Court seems to base its ruling that the arresting officer did not have reasonable grounds to arrest Boland on two points. First, the district judge stated Officer Lohse did not have personal knowledge that Boland was driving under the influence, but relied on the information radioed to him by Officer Scheele. This radio-relayed information, the District Court felt, could not be relied upon by Officer Lohse as facts and circumstances within his personal knowledge sufficient to arrest Boland for DUI. Second, the District Court in its findings of fact, indicated that without the radio-relayed information, nothing that Officer Lohse observed during his surveillance of the Boland vehicle would constitute reasonable grounds to arrest Boland for DUI. We find the District Court’s reasoning in this matter to be flawed.

“Reasonable grounds” are synonymous with “probable cause” in Montana. State v. Davis (1980), 190 Mont. 285, 289, 620 P.2d 1209, 1212.

This Court has often held an arresting officer may rely on information conveyed by a reliable third person or another officer in determining probable cause to arrest.

“[Pjrobable cause is to be evaluated by the courts on the basis of the collective information of the police rather than that of only the officer who performs the act of arresting.”

Davis, at 290, 620 P.2d at 1212 (quoting State v. Shaw (1979), 3 Or.App.346, 473 P.2d 159, 161). See also, State ex rel. Kuhr v. Dist. Ct. (1928), 82 Mont. 515, 268 P. 501; State v. Ellinger (1986), 223 Mont. 349, 725 P.2d 1201; State v. Lee (1988), 232 Mont. 105, 754 P.2d 512.

In addition to the radio-relayed information provided by Officer Scheele, Officer Lohse also observed that Boland stumbled and had trouble maintaining his balance in the restaurant parking lot, that Boland had the odor of alcohol on his breath and admitted having just come from a bar, and that Boland failed two of the three sobriety tests.

We find that the arresting officer did have reasonable grounds to believe that Boland was driving under the influence of alcohol at the time of his arrest.

We reverse the District Court and remand for entry of an order consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES WEBER and Mc-DONOUGH concur.

JUSTICE SHEEHY,

dissenting:

I dissent, and would affirm the District Court.

We are involved here with a civil proceeding. The findings of the District Court should be sustained by us unless they are clearly erroneous. Rule 52, M.R.Civ.P.

The District Court made the following findings of fact:

“3. Officer Lohse followed Patrick Boland from Second Street and Central Avenue to the Hardee’s restaurant on First Avenue North and Park Drive. During the time of surveillance by Officer Lohse, Patrick Boland operated his vehicle in a proper and legal manner.

“4. The unrebutted testimony is that Patrick Boland’s vehicle was legal and that Patrick Boland’s manner of driving was at all times legal and there is no reasonable cause for arresting Patrick Boland.”

The foregoing findings by the District Court Judge are supported by the evidence in the cause. The following colloquy occurred during the trial:

“THE COURT: Before that, though, you had seen nothing yourself that warranted you arresting him?

“THE WITNESS: Concerning his driving?

“THE COURT: Yes.

“THE WITNESS: That’s correct. Other than just Officer Scheele advising me of the fact that he had observed this, and asked me to — I pulled in behind the vehicle, and by the time I got behind it we are into the 200 block, and just like he was turning on to Park Drive, and all of a sudden was into the Hardee’s lot —

“THE COURT: How many blocks did you follow him:

“THE WITNESS: Approximately — it would be three blocks approximately.

“THE COURT: And you didn’t observe anything in those three blocks that could cause you to believe —

“THE WITNESS: That’s correct, I could not say I observed anything with the vehicle.”

The pivotal question here is whether the arresting officer had any reason to make a stop and interrogate the defendant. He had no personal knowledge of any violation of the highway laws. The court gave its reasons for its decision, and they are proper, in the following:-

“THE COURT: He saw him in physical control of the vehicle, and he was driving exactly like he was supposed to do. That’s why we have laws, so we don’t have officers arresting people when they are doing nothing. That’s why we have the right to drive in this country. It is a privilege. And that’s why we don’t want officers stopping people in their cars when they have no reason to stop them.

“Now this officer observed this man driving, he saw nothing wrong with his driving, How would you like it if they stopped you? You might say you are sober and everything, it is just the inconvenience of being stopped. That’s why we don’t want people being stopped.

“This is a free country. We have our liberties. We don’t want police officers stopping somebody when he doesn’t have any cause to stop them.

“He observed this man driving, Officer Lohse said he was weaving, it was a snowy night and so on, and he had been weaving — he may have been tired or something. But when this officer got on his tail and followed him for two and three blocks there, he wasn’t doing anything wrong ...”

The information radioed by Officer Scheele to Officer Lohse did not jibe with the actual observations made by the arresting officer. Officer Lohse did not have reasonable cause to stop Patrick Boland. As the District Court noted, the observation the officer made after the stop can not excuse the improper stop. Yet, it is the observations made by the officer after the stop upon which this Court relies to reverse the District Court. I would affirm.