author: JUSTICE McDONOUGH JUSTICE SHEEHY,

text:
    JULIE DeCELLES, Plaintiff and Appellant, v. STATE OF MONTANA, acting Through the DEPARTMENT OF HIGHWAYS; and Ray Elden Eder, an individual, Defendants and Respondents.
    No. 89-311.
    Submitted April 6, 1990.
    Decided July 11, 1990.
    795 P.2d 419.

      Ronald F. Waterman argued, Gough, Shanahan, Johnson & Waterman, Helena, Ron L. Lee, Flagstaff, Ariz., for plaintiff and appellant.
    John H. Maynard, Dept, of Admin., Helena; Sherman V. Lohn & Steven S. Carey argued, Garlington, Lohn & Robinson, Missoula, for defendants and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The plaintiff Julie DeCelles appeals the order of Montana First Judicial District Court, Lewis and Clark County, denying her motion for new trial on the grounds that no prejudice resulted from the Court instructing the jury regarding the effects of joint and several liability. We affirm.

Appellant raises a sole issue on appeal: Did the District Court err in instructing the jury, over the objection of the plaintiff, regarding the consequences of joint and several liability as the law was applied to the facts of this case?

On November 17, 1984, Julie DeCelles was involved in an automobile accident on a stretch of U.S. Highway 87 between Roundup and Billings, Montana. At the time she was riding as a passenger in a 1965 El Camino owned by Rosita Kelley that also carried Rosita and Julie’s brother and sister, Ray and Rosella Eder.

The evidence also indicated that Julie, Ray, and Rosita began drinking the morning of the day before the accident in Harlem, Montana, and continued drinking throughout the day. Later, they decided to drive to Havre to pick up sister Rosella. After arriving in Havre they went to a bar, played pool and continued to drink.

In Havre, the group then decided to travel south to Billings, via Roundup, Montana on U.S. Highway 87. In the early morning hours the El Camino crossed the center line and collided with a northbound vehicle. The accident rendered Julie DeCelles permanently blind, without her sense of smell, and with only a minimal sense of taste. Although it was disputed, physical evidence of his injuries indicated that Ray Eder was driving the vehicle at the time of the accident.

On December 22, 1986, the plaintiff filed suit against Ray Eder as driver of the vehicle and the State of Montana for alleged negligence in maintaining the highway at the accident site. Defendant Eder failed to answer and the District Court subsequently entered his default on April 5, 1988.

During trial the plaintiff presented the testimony of expert Jack Talbott, a mechanical engineer, who stated that the highway at the accident site was deteriorated and contained undulations or ripples in its surface that could have contributed to the accident. The plaintiff also presented evidence that the State of Montana knew of the road’s condition for several years and failed to repair it. This was contested by the State.

Over the plaintiff’s objection, the District Court instructed the jury regarding the consequences of their verdict under the law of joint and several liability. Returning a verdict in accordance with comparative negligence law, the jury then apportioned fault among the parties finding the plaintiff 35 % negligent, defendant Eder 65 % negligent, and the State 0% negligent. The plaintiff moved for a new trial on the grounds that the instruction was an error of law which led to jury misconduct in arriving at a verdict. The District Court denied the motion. Plaintiff now appeals raising the aforementioned issue.

The plaintiff argues that because there was ample evidence in the record to support the negligence of the State, the jury clearly disregarded this evidence and concluded that application of joint and several liability would be unfair to the State. Thus, plaintiff contends that the giving of Instruction No. 35 on joint and several liability prejudiced her case and constitutes reversible error. The instruction provided:

“Under the legal concept of joint and several liability if you find
“(a) that defendant State of Montana was negligent,
“(b) that negligence was a legal cause of Plaintiff’s injuries, and
“(c) Plaintiff was 50% or less comparatively negligent, then defendant State of Montana may be responsible for paying the entire amount of Plaintiff’s damages after reduction for plaintiff’s comparative negligence.”

See also § 27-1-703, MCA. The plaintiff argues that it was prejudicial error to give this instruction in this case because (1) it inappropriately injected information about the nonexistence of Ray Eder’s insurance into jury deliberations and allowed defense counsel to allude to such nonexistence during closing argument; (2) it allowed the jury in effect to decide the justification for applying the joint and several rule which is properly a legislative function; and (3) it inappropriately allowed the jury to consider the post-judgment effect its finding regarding liability would have on each defendant.

We reject these arguments. The underlying thread running through these contentions is skepticism of the informed jury’s ability to fairly perform its function in the decision-making process without yielding to passion or prejudice. The modem trend and better view among comparative negligence jurisdictions that have considered the issues is to permit the jury to know the effect of its percentage findings. See, generally Ainsworth & Miller, removing the blindfold: General verdicts and letting the jury know the effects of its answers, 29 S.Tex.L.Rev. 233, 237-238 (1987); Talenfeld, instructing the jury as to the effect of joint and several liability: Time for the court to address the issue on the merits, 20 Ariz.St.L J. 925, 933 (1988). In Martel v. Montana Power Company (1988), 231 Mont. 96, 105, 752 P.2d 140, 146, we expressly held that such skepticism of a jury’s ability to properly render its verdict in conformity with the law is unfounded:

“We think Montana juries can and should be trusted with the information about the consequences of their verdict. Other jurisdictions have considered this question and have come to differing conclusions. An excellent review of the holdings in those jurisdictions is set forth in the Idaho case of Seppi v. Betty (1978), 991 Idaho 186, 579 P.2d 683. After a lengthy discussion, the Idaho Supreme Court concluded that it is naive to believe that jurors do not speculate about the effect of their answers. To end speculation, the Idaho court said jurors should be informed of the effect of their answers. Seppi, 579 P. 2d at 691. The Idaho court tempered its position by giving the trial court the discretion not to inform the jury in those cases where the issues are so complex or uncertain that the jury would only be confused. Seppi, 579 P.2d at 692.
“We adopt the reasoning of the Idaho Supreme Court and hold that under the circumstances of this case, the jury should have been informed of the effect of its verdict.”

Both Martel and Seppi dealt with the question of informing the jury about the effect of modified comparative negligence law on the jury’s verdict. The Idaho Supreme Court applied the principle of informing juries adopted in Seppi and later adopted by us in Martel to the same issue of joint and several liability presented in this case in Luna v. Shockey Sheet Metal & Welding Co. (1987), 113 Idaho 193, 743 P.2d 61, 64:

“Similarly, the doctrine of joint and several liability, under which a defendant assessed a mere 1% negligence may be required to pay 100 % of plaintiff’s damages if, for some reason, the joint tort feasor is unreachable through the judicial process, ‘poses a trap for the uninformed jury.’ An informed jury will be much more likely to carefully examine the facts prior to reaching a verdict holding a defendant even 1 % at fault, no matter how cosmetically appealing a partial allocation of fault might be.”

In Luna the Idaho court followed the reasoning of Kaeo v. Davis (1986), 68 Haw. 447, 719 P.2d 387, which addressed the same issue of joint and several liability. The Hawaii Supreme Court, relying on the Idaho Court’s holding in Seppi, determined that it was more desirable for the courts to explain the operation of the law to the jury than to perpetuate a system which encourages mistaken speculation by uninformed jurors. Luna, 743 P.2d at 64-65; Kaeo, 719 P.2d at 395-396. The holding in Kaeo was also based in part on the language of Rule 49(a), Haw.R.Civ.P., which is identical to language in the Montana rule, that “the court shall give to the jury such explanation and instruction concerning the matter ... submitted as may be necessary to enable the jury to make its findings upon each issue. ’ ’ Rule 49(a), M.R.Civ.P. Following our reasoning in Martel, we therefore now adopt the reasoning of this line of cases and conclude that a jury should be instructed about the consequences of its verdict with respect to joint and several liability.

The State of Wyoming has also followed the reasoning in Seppi and applied the principle of informing the jury about the consequences of its verdict to the concept of joint and several liability. See E. G. Coryell v. Town of Pinedale (Wyo.1987), 745 P.2d 883. Moreover, the Wyoming court has addressed the issue of whether it is proper for counsel to argue the effect of joint and several liability to the jury. See Seaton v. Wyoming Highway Commission (Wyo. 1989), 784 P.2d 197. In Seaton as in the present case, the plaintiff was an injured passenger alleging negligence on the part of the driver and the Highway Department. The Wyoming Court held that unless counsel misstates the law regarding joint and several liability, counsel may properly comment on any instruction pertinent thereto given by the court, Seaton, 784 P.2d at 207, Harom v. Town of Afton (Wyo.1987), 745 P.2d 889, 893.

Here, counsel for the Highway Department made the following argument in closing:

“Please do not put one percent for just any reason that may cross your mind.
“The judge read to you Instruction No. 35. A finding of one percent under Montana law, joint and several liability is a complete defeat for the State of Montana. A finding of one percent under instruction No. 35 would allow the entire amount severally to be collected from the State of Montana.
“Please do not put one percent or anything of that nature.
“Zero is what we’re after and zero is what we must have.
“Now the plaintiffs haven’t asked you to find a percentage of negligence against the state but to be sure that you find it to be small because that would be realistic from their point of view.
“But the temptation is in many of these situations when somebody has worked so hard and are such fine attorneys, as these two gentlemen are, is to award them something for their effort.
“Don’t do that.
“We can’t make these decisions based on the sympathy or on the concerns for other people’s efforts. We must base them on the facts.
“And that is why when you get that jury verdict form when you go through it we’re going to ask you to fill in zero percent against the State. Because if you find that we’re one percent or five percent negligent, we could be responsible for the entire award.”

We reject the plaintiff’s contention that this argument improperly injected the issue of the existence of defendant Eder’s liability insurance into the case. We note that the word insurance never appears in the record. We follow the rule that absent a misstatement of the law, counsel may properly comment during his closing argument on any instruction given by the court. Seaton, 784 P.2d at 207; Harmon, 745 P.2d at 893.

Finally, while we find no prejudicial error in Instruction No. 35 as given by the District Court, in applicable cases we recommend that the jury be instructed on the effect of joint and several liability on its verdict in the following manner:

“Under the doctrine of joint and several liability, if the defendants are found to have proximately caused in any degree the injuries to the plaintiff, each such defendant is liable to the plaintiff for all of the plaintiffs damages for which all of such defendants are responsible, irrespective of the varying degrees of fault between the defendants in causing the injuries. The reason for this doctrine is that although the defendants may have been at fault in differing degrees in causing the injuries, the resulting harm to the plaintiff is not divisible. It is possible therefore that a single defendant may be called on to pay for the plaintiff’s damages for which all of such defendants are responsible, in amounts in excess of that defendant’s proportionate fault for the injuries, or for all of such damages. You may not speculate whether, or how, or from what resources, any such defendant or defendants might pay a possible judgment against them. Your duty is to fix the fault, if any, of each defendant based solely on the evidence before you and the instructions of the court. ’ ’

We believe that this instruction better effectuates the policy of fully informing the jury regarding the consequences of its verdict.

The order of the District Court denying the plaintiff’s motion for new trial is AFFIRMED.

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

JUSTICE SHEEHY,

dissenting:

I dissent. Instruction no. 35 (set out in full in the majority opinion) is a faulty instruction that should have never been given. It is incomplete, allows for speculation by the jurors, allowed counsel for the State to argue improperly thereon, and it abrogated the joint and several rule of liability.

The statute in effect at the time of this case (it has since been amended) allowing joint and several liability provided:

“(1) Whenever the comparative negligence of the parties in any action is an issue and recovery is allowed against more than one party, each party is jointly and severably liable for the amount awarded to the claimant but has the right of contribution from any other party against whom recovery is allowed. Contribution shall be proportional to the negligence of the parties against whom recovery is allowed.”

Section 27-1-703(1), MCA (1978).

When the foregoing statute is compared to the instruction given by the District Court, it is apparent that the instruction was defectively incomplete. First, the instruction singled out the effect of a judgment as to one of the defendants, State of Montana, although there were two defendants in this action. A proper instruction would have told the jury that each party is jointly and severally liable, and that there is a right of contribution in favor of one party who pays more than his proper share of the judgment. One might argue in this case that such a full instruction would allow the jury to speculate as to whether the State of Montana could recover any contribution from Eder, but that is no more speculative than the instruction given, which allowed the jury to speculate that Eder could not pay any part of the judgment. The majority recognize these defects, because their suggested instruction does not single out one defendant over another.

The given instruction allowed the jury to speculate as to matters outside the evidence in this case, notably whether after a judgment was rendered, the defendant State of Montana would have to pay the whole judgment because Eder himself was not responsible for any amount. Attorneys for the State strove to get that implication across to the jury.

It may be a salutary thing that juries be informed as to the effect of their verdicts; in any event, they should be fully informed and the information given should be neutral as to the parties involved.

Based on the given instructions, the attorneys for the State engaged in an improper and dishonorable closing argument. By the argument, the jury’s attention was drawn away from the issues in the case, essentially here as to whether the State of Montana was negligent in the construction and maintenance of the highway so as to be a proximate cause of plaintiffs injuries. The jury was left instead to speculate on the fairness or equity of the joint and several liability rule. I am amazed that the majority tolerate that kind of argument. The instruction permitted the State’s attorneys to appeal to the prejudices or sympathies of the jury, either prejudice against Eder, or sympathy for the State even if it had been negligent in causing injuries to the plaintiff. It is a cardinal principle of trial law that the trier of fact must confine his or its decision to the evidence in the record. Whether or not either defendant could pay the judgment was outside the record. Whether the State of Montana could recover contribution from Eder was outside the record. Such matters had no place in the jury’s consideration of the facts in this case, yet those matters are exactly what the argument of the State attorneys invited.

Because of the faulty instruction and the improper argument based upon it, I would reverse and remand for a new trial.

JUSTICE HUNT, concurs in the foregoing dissent of JUSTICE SHEEHY.


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT L. LYNN, Defendant and Appellant.
    No. 89-399.
    Submitted on Briefs May 24, 1990.
    Decided July 12, 1990.
    795 P.2d 429.

      James E. Handley, Poison, for defendant and appellant.
    Marc Racicot, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Robert Slomski, Sanders County Atty., Thompson Falls, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from the judgment of the District Court of the Twentieth Judicial District, Sanders County, finding defendant Robert Lynn guilty of the offenses of shooting from a public highway and hunting a game animal during the closed season. We affirm.

The issues are:

1. Whether the District Court erred by denying defendant’s motion to exclude from evidence a .22 caliber rifle and ammunition seized from defendant’s vehicle;

2. Whether the District Court erred by denying defendant’s motion for directed verdict as to Count I (shooting from a public highway) by rejecting defendant’s contention that no proof had been adduced concerning the legal right-of-way within which he is alleged to have shot;

3. Whether the District Court erred by denying defendant’s motion for directed verdict as to Count I and Count II (hunting a game animal during closed season) by rejecting defendant’s contention that no evidence had been adduced from which the jury could determine whether the alleged illegal acts had been done knowingly or purposely.

In the late afternoon of March 13,1988, Violet Hodges (Hodges) was working around her home, located about seven miles east of Thompson Falls on Highway 200. She heard a volley of gun shots from what she thought was a small caliber rifle. She looked in the direction from which the noise came and saw a tan Jeep Wagoneer pulled off to the side of Highway 200. Hodges also noticed a herd of bighorn sheep running up a hillside, away from the Wagoneer and toward the cliffs above her property.

Hodges, concerned by the shots because hunting season was closed, got in her car to investigate. As she drove down her driveway, Hodges encountered the defendant, Robert Lynn, in the tan Wagoneer. When questioned what he was doing on her property, Lynn told Hodges that he was looking for aluminum cans. After Hodges told Lynn there were no cans on her property, she essentially asked him to leave, which he did. After Lynn left, Hodges surreptitiously followed him as he drove into Thompson Falls. Upon her arrival in town, she reported the shooting to Undersheriff Bill Alexander.

While Hodges was relating her story to the undersheriff, her neighbor telephoned the sheriff’s office and reported that a sheep had died from a gunshot wound on her property. The neighbor, like Hodges, reported that shortly before she found the sheep, she heard gunshots from a small caliber rifle. Hodges then described Lynn’s vehicle to the undersheriff. She stated that it was a tan Jeep Wagoneer with scrap cardboard in the back, rolled rugs on top and Alaska plates.

The undersheriff then contacted Bruce Sterling, a wildlife technician and part time game warden for the Montana Department of Fish, Wildlife and Parks. He requested Sterling’s assistance and proceeded to look for Lynn’s vehicle which Alexander said was parked in town.

The officers located Lynn’s vehicle and subsequently pulled him over for having expired plates and being a suspect in the shooting of the bighorn sheep. When questioned, Lynn denied any knowledge of the shooting. The undersheriff then asked Lynn if he had any weapons. Lynn produced a .38 caliber revolver and a crossbow. Upon examining the handgun, the undersheriff noticed a .22 caliber rifle which was in plain view, although it was wedged between some pieces of cardboard. Lynn allowed him to inspect the rifle.

Lynn was arrested for two traffic violations which are not part of this appeal, and he was allowed to drive his car to the police station “to save him a tow bill and so it could be secured over there.” In the meantime, the game warden went to the site of the shooting. There he found five .22 caliber shell casings. The ram was field dressed and a bullet hole .223 inches in diameter was discovered in the ram’s neck.

After Lynn was booked and incarcerated, he asked Undersheriff Alexander to get his reading glasses from his car. The undersheriff agreed and while he was in Lynn’s vehicle he reinspected the .22 rifle and seized the weapon. Eventually Lynn was charged with the two game violations now on appeal.

Initially Lynn was tried injustice court. Following his conviction, he appealed for a trial de novo in District Court. Shortly before trial, Lynn moved to suppress from evidence the .22 caliber rifle and to dismiss the game violations. Both motions were denied. Trial commenced on May 25, 1989, and following the close of the State’s case-in-chief, Lynn moved for a directed verdict. This motion was denied. Following closing arguments, the jury returned a unanimous verdict of guilty on both counts. Sentence was imposed on June 27, 1989 and this appeal followed.

I

Lynn argues that Undersheriff Alexander’s seizure of the .22 caliber rifle was unlawful and therefore it should not have been admitted into evidence. In advancing this argument, he maintains the plain view exception, which was the primary argument advanced by the State, does not apply to his case because the rifle does not bear any relationship to the traffic offenses, which were the only crimes he was charged with at the time of the gun’s seizure. He argues that plain view searches and seizures are only proper if the items seized bear some relationship to the offense charged.

We disagree with this argument as it is applied to the facts now before us. When Undersheriff Alexander stopped Lynn, he had two reasons. First and foremost was the fact that Lynn was suspected of illegally shooting a bighorn sheep, and second he noticed that Lynn was driving with expired plates. Alexander’s suspicions relative to the game violation originated from reports of two citizens. From these two reports, he knew that small caliber rifle shots had been fired from Highway 200 near a herd of bighorn sheep. A vehicle matching Lynn’s was seen at that location during the time the shots were fired. Additionally, it was reported that Lynn was found on private property, driving towards the area where the sheep were, before the shooting occurred. Alexander also knew that a sheep had been found dying in this same general area.

This information was sufficient to raise suspicions of Lynn’s involvement in the shooting. However, this suspicion was further bolstered by Alexander’s observation of the .22 caliber rifle in Lynn’s possession. At this point in time, it cannot be denied that Alexander did have probable cause to seize the rifle. Facts, including eye witness observations and circumstantial evidence, combined to link Lynn to the crime. When a police officer has knowledge of facts, which justify a reasonable belief that he has lawful grounds for prosecuting the suspect for the matter complained of, and surrounding circumstances support this belief, probable cause has been found to exist. See State ex rel. Wong You v. District Court (1938), 106 Mont. 347, 78 P.2d 353. Here there was sufficient evidence linking Lynn to the unlawful shooting and consequently Alexander would have been justified in seizing the rifle when he stopped Lynn’s vehicle.

Undersheriff Alexander did not seize the rifle at that time, however. The rifle was seized approximately an hour and a half later when Alexander went to the vehicle, at Lynn’s request, to retrieve Lynn’s glasses. We are therefore faced with the question of whether this delay rendered the seizure unreasonable.

We hold that the seizure of the rifle was not unreasonable. As stated earlier, at the time of Lynn’s arrest, probable cause existed to justify seizure of the rifle. The fact that a time period of one and a half hours elapsed between the time of arrest and seizure of the rifle at the police station does not overcome the original justification for the seizure. As has been stated on several occasions “... searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” See United States v. Edwards (1974), 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771. This rule has been followed in Montana. See State v. Romero (1986), 224 Mont. 431, 730 P.2d 1157. Accordingly, we hold that the District Court did not err in refusing to exclude the rifle from evidence.

n

Lynn next argues that the District Court erred by denying his motion to dismiss the charge alleging that he violated § 87-3-101(2), MCA, which prohibits shooting a game animal from a public highway or its shoulder. He maintains that no evidence was presented concerning the legal boundaries of the highway and that there was no evidence presented which established from where the shots were fired. He therefore argues that the State failed to prove an essential element of the offense and that, as a result, a directed verdict should have been granted.

We disagree. A directed verdict is appropriate only where there is no evidence upon which the jury could base its verdict. State v. Goltz (1982), 197 Mont. 361, 642 P.2d 1079. In the case on review, circumstantial evidence tended to prove that the shots were fired from the shoulder of Highway 200. These facts were: 1) Lynn’s vehicle was parked on the shoulder of the highway when the shots were fired, and 2) spent shell casings, which were of the same brand found in Lynn’s rifle, were found on the shoulder where his vehicle was parked during the shooting. Additionally, photographs were introduced which depicted the shoulder of the highway where Lynn parked his vehicle and the area where the shell casings were found.

Circumstantial evidence may be used to prove elements of an offense, State v. Cox (1987), 226 Mont. 111, 733 P.2d 1307. In the case now before us, the lower court obviously found that the circumstantial evidence was sufficient to support a jury verdict of guilty. The trial court did not abuse its discretion in this regard and, therefore, we will not disturb its ruling on appeal. State v. Goltz (1982), 197 Mont. 361, 642 P.2d 1079.

m

Finally, Lynn argues that the lower court erred in refusing to grant a directed verdict as to both of the game violations. In short he contends that the State failed to prove that he knowingly or purposely shot from a public highway in violation of § 87-3-101(2), MCA, and that he knowingly or purposely shot a game animal out of season in violation of § 87-3-104, MCA. In support of this contention, Lynn argues that the State failed to prove that he was aware that road hunting was prohibited in Montana and aware that the season on bighorn sheep was closed. He further maintains that it was not proven that he knowingly or purposely pulled the trigger of the rifle with an intent to kill the ram.

Neither of these contentions have merit. The first contention can be dismissed by reference to the maxim - Ignorance of the law is no excuse.“ State ex rel. Rowe v. District Court (1911), 44 Mont. 318, 119 P. 1103. The State had no burden to prove Lynn had knowledge that road hunting is illegal or that he was aware that sheep hunting was closed in March 1988.

The second thrust of Lynn’s argument is similarly without merit. Criminal intent can be proven through circumstantial evidence. State v. Gladue (1984), 209 Mont. 235, 679 P.2d 1256. There was sufficient evidence upon which the jury could infer that Robert Lynn purposely or knowingly pulled the trigger to kill the ram. This evidence included eyewitness testimony of Violet Hodges, the shell casings found on the ground where Lynn’s truck had been parked, and the .22 caliber bullet hole found in the ram’s neck.

The lower court’s judgment is affirmed.

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


author: JUSTICE BARZ JUSTICE SHEEHY,

text:
    ERNEST ROEBER and the State Institutional Employees for Equal Hours, Plaintiffs and Respondents, v. STATE OF MONTANA, DEPARTMENT OF INSTITUTIONS and the Montana Developmental Center, Defendants and Appellants.
    No. 89-446.
    Submitted on Briefs March 29, 1990.
    Decided July 12, 1990.
    Rehearing Denied Aug. 23, 1990.
    795 P.2d 424.

      Nick A. Rotering, Dept, of Institutions, Helena, for defendants and appellants.
    Leonard J. Haxby, Butte, for plaintiffs and respondents.
   JUSTICE BARZ

delivered the Opinion of the Court.

The State of Montana, Department of Institutions and Montana Developmental Center appeal from the judgment of the District Court for the Fifth Judicial District, Jefferson County, granting respondents’ petition for declaratory judgment. We reverse and remand.

Respondents are employees of the Montana Developmental Center in Boulder. The Developmental Center is operated by the Department of Institutions. There are both union and non-union employees at the Developmental Center. Union employees are subject to a collective bargaining agreement from which respondents, as non-union employees, are exempt. Respondents were hired from within the Center, by bid, and from outside the Center, by application. Each of the respondents received a personnel manual and other literature describing the general terms of employment.

Prior to June, 1987, all Center personnel who worked an eight hour shift were paid for their half-hour lunch break. In June, management notified both union and non-union employees they would be required to work an eight hour day with an unpaid half-hour lunch break effective June 8, 1987. The grievance filed by the employees was successful and management restored their paid half-hour lunch break in accordance with the collective bargaining agreement.

Respondents filed a non-union grievance asserting management wrongfully terminated their paid half-horn: lunch breaks and increased their working hours. Management denied this grievance. A three member grievance committee held:

“It would seem that additional information, policies and regulations which may have significant bearing on this matter were not made available to the committee.
“It cannot be determined whether there is or is not, in fact, a contractural [sic] relationship as a result of said document; i.e., job announcement ...”

The committee referred the grievance to the Director of Institutions. The Director found as follows:

“It is the decision of the Director to accept the holdings of the committee which indicated that the grievants failed to sustain the burden of proof and essentially affirms management’s position.
“The Director accepts and upholds the decision of the committee which essentially supports management’s position in this grievance. ’ ’

Respondents then filed a petition for judicial review asserting their right to retroactive pay and reinstatement of the paid half-hour lunch break. Before the District Court ruled on the matter, respondents filed a motion for declaratory judgment seeking relief identical to that prayed for in the petition for judicial review. The parties then stipulated to allow respondents to file an amended petition. Respondents filed an amended petition for judicial review and motion for declaratory judgment. Contained within count I were the claims originally asserted in their petition for judicial review and within count II those set forth in the original motion for declaratory judgment. The District Court, on stipulation of counsel, converted the hearing on respondents’ amended petition to a pretrial hearing on the matter. In its findings of fact and conclusions of law filed following oral argument, the District Court found that:

“By oral stipulation of counsel, the petition for judicial review was converted to a declaratory judgment action pursuant to § 27 8-101, MCA, et seq.
“[I]t [had] jurisdiction to determine the legal rights of the parties under the broad provisions of the Uniform Declaratory Judgments Act embraced by the cited statutes, and that counsel for both parties agree[d] that the judicial review of the administrative decision [was] moot.”

There is no record of an oral stipulation between the parties aside from the District Court’s finding.

The lower court ordered appellants to reinstate the paid lunch half-hour and to reimburse respondents for their unpaid lunch breaks since June of 1987. Appellants argue the District Court substituted its judgment for that of the administrative decision maker by inferring facts not clearly in the record. We note the paucity of findings upon which the District Court could rely on review. Lower courts may remand petitions for judicial review for further proceedings pursuant to § 2-4-704, MCA.

The dispositive issue on appeal concerns the standard of review applied by the District Court in reversing the decision of the Director of Institutions. The lower court’s findings of fact, as set forth above, conform to the spirit of the Uniform Declaratory Judgments Act codified at § 27-8-101 et seq., MCA. Section 27-8-102, MCA, makes evident the purpose and nature of the Act:

“This chapter is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered.”

District courts have significantly less latitude upon judicial review of administrative decisions in contested cases pursuant to the Montana Administrative Procedure Act (MAPA), Title 2, Section 4, MCA. Section 2-4-704, MCA, provides:

“The review shall be conducted by the court without a jury and shall be confined to the record.
“The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:
“(a) the administrative findings, inferences, conclusions, or decisions are:
“(i) in violation of constitutional or statutory provisions;
“(ii) in excess of the statutory authority of the agency;
“(in) made upon unlawful procedure;
“(iv) affected by other error of law;
“(v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
“(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
“(b) findings of fact, upon issues essential to the decision, were not made although requested.”

Appellants contend the judicial review of the administrative decision was not moot and therefore review of that decision pursuant to MAPA was proper. District courts may not overturn agency decisions unless substantial, credible evidence supporting a finding of fact is lacking. Hammerquist v. Employment Sec. Div. of the Montana Dep’t. of Labor and Indus. (1988), 230 Mont. 347, 349, 749 P.2d 535, 536. District courts have greater discretion in reviewing conclusions of law because of an enhanced ability to interpret and apply the law to the facts. City of Billings v. Billings Firefighters Local No. 521 (1982), 200 Mont. 421, 430, 651 P.2d 627, 632. Administrative conclusions of law must be upheld by district courts unless they constitute an abuse of discretion. City of Billings, 651 P.2d at 632.

Clearly, the District Court in the instant case possessed broader remedial powers by proceeding under the Uniform Declaratory Judgments Act than had it subjected the agency decision to judicial review pursuant to MAPA.

We hold the District Court improperly proceeded under the Uniform Declaratory Judgments Act in this case.

“The purpose of declaratory relief is to liquidate uncertainties and controversies which might result in future litigation and to adjudicate rights of parties who have not otherwise been given an opportunity to have those rights determined. However, it is not the true purpose of the declaratory judgment to provide a substitute for other regular actions.

‘ ‘Other jurisdictions have denied the remedy of declaratory judgment where appeal by statute or otherwise from the actions of administrative bodies exists.” (Citations omitted.)

Matter of Dewar (1976), 169 Mont. 437, 444, 548 P.2d 149, 153-54.

Pursuant to § 2-4-506, MCA, plaintiffs may bring a declaratory action to challenge the validity of a rule. However, § 2-4-102(10), MCA, sets forth the rules subject to that section:

“ ‘Rule’ means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures, or practice requirements of an agency. The term includes the amendment or repeal of a prior rule but does not include:
“(a) statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public;
“(e) rules implementing the state personnel classification plan, the state wage and salary plan, or the statewide budgeting and accounting system;

The internal personnel policy at issue in the instant case is conspicuously and specifically excluded from the purview of this section. In this case, where respondents had a remedy of appeal from the administrative decision, declaratory relief was improperly granted. We reverse and remand for judicial review pursuant to MAPA.

The effect of the District Court’s ruling would be to encumber the Department of Institutions and the Montana Developmental Center, with a sempiternal [adj.: everlasting; perpetual; eternal, Wesbter’s New World Dictionary 1295 (2nd College ed. 1986)] personnel policy unique to this facility. We note the policy change brought the affected employees into conformance with the State classification plan codified at §§ 2-18-201, et seq., MCA. Although the union employees are now paid for their lunch breaks that policy is subject to change during the periodic renegotiation of their collective bargaining agreement. We will not affirm a holding which has the effect of prohibiting any change in this policy.

Reversed and remanded.

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

JUSTICE SHEEHY,

dissenting:

The approach of the majority in this case to the Montana Administrative Procedure Act (MAPA) is purblind in every sense of the word [purblind: partly blind; lacking in vision, insight or understanding. Webster’s New Collegiate Dictionary (1981)].

The majority see well enough to find a single remedy by appeal from an administrative decision under § 2-4-704, MCA. They fail to see that an equally valid remedy is provided in MAPA for declaratory judgments under § 2-4-506, MCA.

That section provides:

“2-4-506. Declaratory judgments on validity or application of rules. (1) A rule may be declared invalid or inapplicable in an action for declaratory judgment if it is found that the rule or its threatened application interferes with or impairs or threatens to interfere with or impair the legal rights or privileges of the plaintiff.
“(2) A rule may also be declared invalid in such action on the grounds that the rule was adopted with an arbitrary or capricious disregard for the purpose of the authorizing statute as evidenced by documented legislative intent.
“(3) A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question ...” (Emphasis supplied.)

Thus, under MAPA, a district court has not only review authority but is given declaratory authority to determine a legal question as to the validity or applicability of the rules of state government agencies. The district court has the power to declare the rule invalid, or that its application, as in this case, is invalid.

There are really no fact issues in this case. There is not any dispute from the State or its agency managers that, prior to June 1, 1987, the non-union employees here worked an 8-hour shift which included a half-hour lunch period. On or about June 8, 1987, the State by letter unilaterally directed that these non-union employees would lose the paid lunch period and that an additional half-hour work period would be added to their schedules.

The only issues that remain are legal issues, since the facts are not in dispute. The employees maintain that they have an implied contract for the paid lunch period. The position of the State from the record and from its brief is that § 39-4-107, MCA, and the policies of the State contained in its management memos and employee handbook are the rules which govern the issue. It was most appropriate for the District Court to regard the matter as one for declaratory judgment and to act under the jurisdiction specifically given to it by MAPA under § 2-4-506, MCA, above.

Not only did the District Court properly proceed to consider the legal issue here under its power of declaratory judgment provided in the Act, but the State recognized this power, and stipulated in writing for the court’s consideration of the legal issue under its declaratory jurisdiction:

‘ ‘Come now the parties hereto and hereby stipulate and agree that the petitioners [employees] shall be allowed to file an amended petition in order to incorporate petition for further relief and authorizing the court to issue an order allowing the filing of said amended petition. ’ ’

Let us review the procedure that occurred in this case. On September 16, 1987, Ernest F. Roeber filed a grievance on behalf of himself and all similarly situated non-union employees of the Montana Development Center at Boulder. His grievance was that he and his fellow non-union employees had an express or implied contract with the State under which the work-day comprised an eight-hour shift which included a paid half-hour lunch period. Under the grievance procedures established by the Department, a three-member committee was convened which heard the grievance. After hearing, the grievance committee rendered the following decision:

“Held: It would seem that additional information, policies and regulations which may have significant bearing on this matter were not made available to the committee.
“Held: It cannot be determined whether there is or is not, in fact, a contractual relationship as a result of said document; i.e., job announcement, (see exhibit 6a, 6b and 6c).
“Recommendation: In the future, non-union job vacancy announcements should contain a statement which clearly indicates that the terms and conditions of hiring and employment are governed by volume III of the Montana Operations Manual.”

Thereafter, on January 26, 1988, the director of the Department of Institutions entered a written decision, in part:

“It is the decision of the Director to accept the holdings of the committee which indicated that the grievants failed to sustain the burden of proof and essentially affirms management’s position.
“Considering the recommendation made by the committee, it is well taken, but must be taken under advisement. To require stipulation of this nature would put a higher degree of responsibility on non-union job positions at the Montana Developmental Center then presently is required in job posting relative to other agencies in state government and the Department of Institutions.
“CONCLUSION: The Director accepts and upholds the decision of the committee which essentially supports management’s position in this grievance.”

Thereafter, Roeber filed his petition for judicial review in the District Court. While the matter was there pending, Roeber, through his counsel, filed a motion for a declaratory judgment from the District Court determining that the non-union employees had an express or implied contract with the State, which was impaired by the action of the Department. The District Court, by letter to all counsel, called attention to the motion and requested of counsel whether a judicial review proceedings could be converted into a declaratory judgment action. The parties met and 'orally stipulated that this should be done, and eventually the written stipulation above set forth was executed by counsel for Roeber and the State.

In its findings of fact and conclusions of law, the District Court expressed frustration about the grievance procedure at the administrative level. The court stated:

“The hearing at the local grievance level was, as this Court finds, a ‘nondecision. ’ The committee concluded that it had insufficient evidence to make an informed decision. It passed it on by way of an administrative appeal to the Director of the Department of Institutions. “On January 26, 1988, the Department disposed of the matter by a Director’s decision. The Director, despite the ‘nondecision’ character of the local committee’s actions, treated it as one, holding that the plaintiff had failed to sustain their ‘burden of proof and that management had the right to make the change. By upholding management’s ‘decision’ there was thus created two different categories as far as the paid one-half hour lunch period was concerned — one for the union — a different one for non-union.”

The District Court went on to determine that it had jurisdiction to determine the legal rights of the parties under the broad provisions of the Uniform Declaratory Judgments Act, particularly because counsel for both parties had agreed that judicial review of the administrative decision was now moot. Moreover, the District Court found as a fact that there existed an implied contract between management and plaintiffs establishing a paid one-half-hour lunch as one of conditions of their employment. It found a breach by management of the implied contract of employment, so the court held in favor of the employees.

The majority opinion decides the case as though Roeber and his associates had elected a grievance form of remedy and could apply for none other. This flies in the face of § 2-4-506, MCA, which provides that a declaratory judgment may be rendered “whether or not the plaintiff has requested the agency” to pass upon the applicability of the rule in question. This Court should be especially unwilling to be used as a pawn, where the appellant in this case stipulated in writing to the declaratory procedure adopted by the District Court, and then on appeal seeks to evade the results of its stipulation. In this case, the administration had attempted to impose the same non-paid lunch period upon the union employees as upon the non-union employees. However, the collective bargaining agreement and grievance filed by union employees made the administration back up and reinstate for the union employees the paid lunch period. The District Court found that factor important. The district Judge noted in his memorandum:

“There was, of course, no written contract, except that made by the department with the collective bargaining unit. It seems to the Court that by agreeing with the union as it did on July 1, 1987, management went a long way toward acknowledging a long-standing agreement with all of its employees. The evidence was persuasive that this agreement existed. The agreement may have been contrary to the eight hour day statute (§ 39-4-107, MCA); but even that statute has escape clauses in the form of provisions for collective bargaining agreements as well as the mutual agreement between management and employees not covered by union contract.
‘ ‘The court agrees with plaintiff that the long time conduct created an implied contract which could not be unilaterally changed as it was ...”

The truth is the only means for redress for the non-union employees in this case is by means of declaratory judgment. The grievance procedure is not fitted to handle such questions of law as the impairment of contracts and the existence of implied contracts. These are legal questions more properly in the sphere of judicial action. The legislature considered the possibilities and provided a double remedy in cases such as this: one if a grievance procedure would remedy the situation, and the other, whether or not the grievance procedure sufficed, for a judicial remedy by declaratory relief.

One wonders, now that the majority has ordered a further judicial review, what the District Court will find to review. It will not be helped by the “nondecision.”

I dissent and would affirm the judgment of the District Court.

JUSTICE HUNT, concurs with the foregoing dissent of JUSTICE SHEEHY.


author: JUSTICE McDONOUGH HON. LARRY W. MORAN, District Judge, sitting for JUSTICE SHEEHY,

text:
    ROBERT W. KOCH, Jerome Pronovost, Mabel Logan, Plaintiffs and Appellants, v. YELLOWSTONE COUNTY, Metrapark and MetraPark Board, Defendants and respondents.
    No. 89-497.
    Submitted May 23, 1990.
    Decided July 12, 1990.
    795 P.2d 454.

      Jay F. Lansing, Billings for Koch.
    Gary L. Beiswanger, Billings, for Pronovost.
    Terry L. Seiffert, Billings, for Logan.
    Doris M. Poppler, Anne Sheehy, David W. Hoefer, Deputy County Attys., Billings, for defendants and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order of the Thirteenth Judicial District, Yellowstone County granting summary judgment to the defendants Yellowstone County, Metrapark, and Metrapark Board, in a cause of action arising from the alleged wrongful termination by the defendants of the plaintiff/employees. Summary judgment was granted on the grounds that the defendants are immune from suit pursuant to § 2-9-111, MCA. We reverse and remand.

Appellants Koch, Logan, and Pronovost, plaintiffs below, raise the following issues on appeal:

(1) Did the District Court err in determining that Yellowstone County and MetraPark Board are immune from suit pursuant to § 2-9-111, MCA, and therefore were entitled to summary judgment in their favor?

(2) Did the District Court err in determining that no genuine issue of material fact existed thereby rendering the case appropriate for disposition upon the defendants’ motion for summary judgment?

(3) Did the decision of the District Court granting summary judgment to Yellowstone County and MetraPark Board deprive appellants of a constitutional right to equal protection of the law?

In January of 1980 the Yellowstone County Commissioners created by resolution a Joint commission known as the “Yellowstone Exhibition —METRA Commission”, later known as the MetraPark Board. “MetraPark” is the name of the physical complex consisting of the Yellowstone Exhibition (fairgrounds) and the Metra Arena building (civic center), all of which is managed and governed by the MetraPark Board.

On May 21, 1987 the MetraPark Board adopted a recommendation of its executive committee to reorganize its employee structure. The reorganization plan called for the elimination of eight employment positions and the creation of five allegedly new employment positions. On May 22, 1987, the MetraPark Board sent letters to the eight existing employees terminating their positions effective June 30,1988. The positions held by plaintiffs Koch, Logan, and Pronovost— maintenance manager, switchboard operator, and assistant/operations manager, respectively — were among those eliminated.

On May 28, 1987, the MetraPark Board personnel committee proposed to the County Commissioners the creation of the five new positions and the County Commissioners approved the recommendation within a few days. On June 13, 1987, the commissioners approved the eight previous employees’ termination and the hiring of the five new employees. Pronovost was given the opportunity to apply for the new position of “Operations Director” but was not hired. Subsequently, all eight terminated employees filed suit; three of these suits were consolidated into the case at bar.

The District Court denied Yellowstone County’s initial motion for summary judgment based on the immunity provided by § 2-9-111, MCA. This Court then handed down its decision in Peterson v. Great Falls School Destrict No. 1 and A (Mont. 1989), 237 Mont. 376, 773 P.2d 316, 46 St.Rep. 880, [8 Ed.Law 61]. Yellowstone County renewed its prior motion which the court granted based on the immunity provided in § 2-9-111, MCA and Peterson.

I.

The plaintiffs contend that § 2-9-111 should be interpreted as granting immunity to a legislative body only for legislative acts. We disagree. It is well settled in the line of cases decided under the statute that the language of the statute does not distinguish between legislative and administrative acts:

“Our recent decisions in Bieber v. Broadwater Cty. (Mont. 1988), 232 Mont. 487, [759 P.2d 145,] [45 St.Rep. 1218] and Peterson [(1989), 237 Mont. 376, 773 P.2d 316,] [46 St.Rep. 880] clearly disposed of this issue. While the statute is entitled ‘Immunity from suit for legislative acts and omissions, ’ we held in Peterson and Bieber that the plain meaning of the statute’s actual language is much broader in that ‘action by the legislative body need not be legislative in nature to afford immunity.’ Peterson, 773 P.2d at 318. Accordingly, we decline to give credence to the plaintiff’s distinction between administrative and legislative acts ‘because the plain language of the statute makes no such distinction.’ Bieber, 759 P.2d at 147. We will not delve outside the plain meaning of the words used in a statute. W.D. Construction, 707 P.2d at 1113, Barnes v. Koepke (Mont. 1987), 226 Mont. 470, 736 P.2d 132, 134.”

State ex rel. Eccleston v. Third Judicial District Court (Mont. 1989), [240 Mont. 44,] 783 P.2d 363, 367, 46 St.Rep. 1929, 1934 [8 Ed. Law 146g]. Accordingly, in determining whether immunity is afforded to the defendants in this case, we look to the plain meaning of the language of the immunity statute, § 2-9-111, MCA. The statute provides:

“2-9-111. Immunity from suit for legislative acts and omissions. (1) As used in this section:
“(a) the term ‘governmental entity’ includes the state, counties, municipalities, and school districts;
“(b) the term ‘legislative body’ includes the legislature ... and any local governmental entity given legislative powers by statute, including school boards.
“(2) A governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof.
“(3) A member, officer, or agent of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body.
“(4) the immunity provided for in this section does not extend to any tort committed by the use of a motor vehicle, aircraft, or other means of transportation.”

We now examine the nature of the entities named as defendants in this case — Yellowstone County, MetraPark, and MetraPark Board to determine if and to whom statutory immunity applies. Yellowstone County is clearly a governmental entity under subsection (1). According to the plain meaning of subsection (2), the County is immune from suit if the MetraPark Board is a legislative body of the County or an agent thereof.

Subsection (l)(b) of § 2-9-111, MCA defines “legislative body” as “the legislature ... and any local governmental entity given legislative powers by statute, including school boards. Legislative power includes the power to make, alter, or repeal laws or rules for the future, 16 C.J.S. Constitutional Law § 113, pp. 377-378; Springer v. Philippine Islands, (1927), 277 U.S. 189, 201-202, 72 L.Ed. 845, 849, 48 S.Ct. 480, 482; as well as the power to control fiscal matters, such as budgets, appropriations and levy of taxes.

The statutory powers of the separate fair commission and the civic center or building commission constituting the MetraPark Board are found in chapter 8 and 21 of title 7, Montana Code Annotated. Section 7-8-2103, MCA, authorizes the County Commissioners to create a county building commission for

“... the management of such civic center, youth center, park buildings, museums, county parks, recreation centers, hospitals, or any combination of two or more thereof. Such commission shall be composed of the chairman of the board of county commissioners and five lay members to be appointed by the board. In cases where a commission has been appointed, the commission, together with the board, shall have the power to employ a manager.”

Section 7-8-2103, MCA. Sections 7-21-3401 et seq., MCA, authorize the County Commissioners to create county fair commissions and sets forth the terms of office of such commissioners, § 7-21-3402; the necessary qualifications, § 7-21-3403; the organization of the commission, § 7-21-3404; and the compensation of the commissioners, § 7-21-3405. The county fair commission also has specific statutory powers:

“7-21-3406. Powers of county fair commission. By resolution of the board of county commissioners, the county fair commissioners shall have control and operation of the fair and the supervision and management of the fairgrounds ...”

The fair commission also has specific duties:

“7-21-3407. Duties of county fair commission. (1) The commission shall do all things necessary to hold a successful annual county agricultural fair ... including:
“(a) employment of labor;
“(e) everything necessary in conducting the continuing operation of the county fairgrounds and buildings.
“(2) The commission shall have charge of all fairgrounds and fair property.”

These duties and powers are by their nature executive or administrative. The MetraPark Board is a joint commission created by resolution of the County Commissioners combining the powers of the civic center and fair boards. With regard to the powers of the Metra Park Board, plaintiffs cite a September 4, 1987 Attorney General’s Opinion as authority that the Yellowstone County Commissioners had no authority to create a joint commission comprised of the fair board and the civic center board that empowers these individual boards to vote on matters pertaining to the statutory authority vested in the other. See §§ 7-8-2103 and 7-21-3401, MCA, supra. Although we find it unnecessary to specifically address this issue to dispose of this case, it is worth noting that the 1989 Legislature, apparently in response to an Attorney General’s opinion, enacted legislation authorizing a county board of commissioners to create a joint fair and civic center commission, as already existed for ten years in Yellowstone County:

“7-21-3451. Authorization to create a joint fair and civic center commission. (1) The board of county commissioners shall have the power to create a joint fair and civic center commission for the management and operation of the fairgrounds and civic centers within the county.
“(2) The board of county commissioners of a county upon application from the regularly appointed county fair commission and county building commission, may by resolution create a joint fair and civic center commission.
“(3) The joint fair and civic center commission is vested with the full powers granted to the county fair commission and the county building commission.”

See, generally, §§ 7-21-3451 through -3458. The duties of the joint commission are also the same as the combined duties of the county fair commission and the county building commission. Section 7-21-3454.

It is evident from these statutes that the statutory powers of the MetraPark Board are limited to the management and operation of the Metra Civic Center and do not include any authority to make, alter, or appeal laws or rules. Clearly the MetraPark Board is not vested with the legislative power of a school board as in Peterson and Eccleston nor does it have the legislative power of a board of county commissioners as in Bieber and Miller v. Fallon County (Mont. 1989), [240 Mont. 241,] 783 P.2d 419, 46 St.Rep. 2087. The MetraPark Board clearly performs statutory executive functions and is not a legislative body.

The second part of our analysis under subsection (2) of § 2-9-111, MCA, is to determine whether MetraPark Board is an agent of the Board of County Commissioners of Yellowstone County, the per se legislative body of Yellowstone County. While the District Court relied on Peterson in granting summary judgment to the defendants, our recent decision in Eccleston more clearly addresses the relationship between agency and the immunity of § 2-9-111, MCA. In Eccleston we held that a school principal and janitors were agents of the school board within the meaning of § 2-9-111, MCA, providing them immunity from suit for an alleged negligent failure to remove ice and snow from steps at the school gymnasium. In Eccleston, we relied on the Restatement 2nd of Agency. Under the Restatement, the crucial factor in this agency determination is control by the principal:

“Sec. 1. Agency; Principal; Agent.
“(1) Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control.... ” (Emphasis added.)

Restatement 2d of Agency, § 1. In Eccleston we recognized that the school boards are expressly given the right to control principals and janitors, including the right to employ and dismiss them as deemed necessary, by statute. See § 20-3-324, MCA.

In this regard, the case at bar differs from Eccleston. While the Board of County Commissioners has the authority to supervise all county officers in the performance of their duties, relative to assessing, collecting, safekeeping, management or disbursement of the public revenues, the Board does not have the power to perform county officers’ statutory duties for them or direct the manner in which duties are performed. Section 7-4-2110, MCA, Arnold v. Custer County (1928), 83 Mont. 130, 146-47, 269 P. 396, 401; Hicks v. Orange County Board of Supervisors (1977), 138 Cal.Rptr. 101, 109, 69 Cal.App.3d 228, 242; People v. Langdon (1976), 126 Cal.Rptr. 575, 578, 54 Cal.App.3d 384, 390; See generally 20 C.J.S. Counties, § 85, p. 854. Here, there is no specific statutory grant of power to the Board of County Commissioners giving it the right to control the civic center board, the fair board, or the MetraPark Board relative to the employment function. With respect to the employment of personnel, the MetraPark Board has independently derived statutory powers granted by the legislature and thus is not subject to the control of the Board of County Commissioners regarding the exercise of that function under these facts. Therefore, under the Restatement the MetraPark Board is not the agent of the County Commissioners with respect to the employment of plaintiffs here. Accordingly, the MetraPark Board is not immune from suit under § 2-9-111(2), MCA, as an agent of a legislative body. We are not however, detracting from the powers of the Board of County Commissioners to fix the number of employees, the salaries and benefits, or adopt personnel policies, when such is a facet of its statutory authority to adopt a county budget and levy taxes to finance the same.

Furthermore, although it is not an agent of the County Commissioners, the Board and the members of the Board are nevertheless officers of Yellowstone County, just as the County Superintendent of Schools, the County Clerk and Recorder, and other statutorily created executive officers are, and the County is subject to indemnify such officers for their torts while acting as a Board under § 2-9-305, MCA.

The MetraPark Board is neither a legislative body nor an agent thereof, therefore it is not immune from suit under § 2-9-111, MCA. Having concluded that immunity does not extend to the MetraPark Board, we need not address the other issues raised on this appeal as the lower court did not rule upon them.

REVERSED AND REMANDED.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and WEBER concur.

HON. LARRY W. MORAN, District Judge, sitting for JUSTICE SHEEHY,

specially concurring:

Mr. Justice McDonough’s Opinion is an exhaustive and entirely appropriate analysis of the facts and law in the case, and I concur in the result. Even so, the style, content, and length of the Opinion is representative of difficulties encountered in a departure from traditional common law procedure.

Historical development of the common law has proceeded from court recognition of facts and theory, to enunciation of legal principles, thence to establishment of precedent. This progression has been the strength and flexibility of judge made law, and the primary reason for its effectiveness and durability. However, this sequence is not apparent in recent decisions regarding the issue of governmental immunity and the effect of § 2-9-111, MCA. In fact, the exact reverse has occurred. Instead of moving forward to the establishment of precedent, the movement has been to a self-perpetuating case by case pattern of decision.

It is respectfully suggested that a case by case determination of the complex and important issue of governmental immunity and applicability of § 2-9-111, MCA, tends to create confusion and instability. Many fine and intricate distinctions (such as those reflected in Justice McDonough’s Opinion) will, inevitably, become finer, more intricate, and more complex as the struggle to maintain logic intensifies; there will be distinctions within distinctions, and the reasons for decisions will become, essentially, inscrutable; and, precedent will become more elusive.

In the evolution of tort liability, primary emphasis has been directed to the act or conduct producing a cause of action. It is proper in a democracy where the law must be on guard when extending special rights, privileges, or immunities, that liability be based on acts or conduct, not on the nature or character of the actor. Unfortunately, in fixing liability in cases involving governmental immunity and § 2-9-111, MCA, attention has been misdirected to a matter deserving only passing interest — the nature or character of the actor — with act and conduct generally ignored. This, too, seems to be a departure from the tested and proven way of the common law.

How beneficial it would be to see (or to write) an opinion on governmental immunity considering provisions of § 2-9-111, MCA, simply concluding: “the act giving rise to the cause of action is clearly administrative or executive, not legislative. Hence, governmental immunity does not attach” or the reverse, in applicable situations.

JUSTICE HUNT and HONORABLE THOMAS A. OLSON, District Judge, sitting for JUSTICE BARZ, concur in the foregoing specially concurring opinion of HON. LARRY C. MORAN, District Judge.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM KACZMAREK, Defendant and Appellant.
    No. 89-506.
    Submitted on Briefs May 24, 1990.
    Decided July 12, 1990.
    795 P.2d 439.

      James A. Johnson, Johnson & Hunt, Shelby, for defendant and appellant.
    Marc Racicot, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Rae Kalbfleisch, County Atty., Merle G. Raph, Deputy County Atty., Shelby, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Defendant William Kaczmarek appeals the judgment of the Ninth Judicial District Court, Toole County, convicting him of burglary. We affirm.

Kaczmarek raises the following issues on appeal:

(1) Did the District Court properly refuse to direct a verdict for the defendant on the grounds the accomplice’s testimony that formed the basis of the conviction was not sufficiently corroborated by other witnesses?

(2) Is there sufficient evidence to support the conviction of burglary?

(3) Did the District Court err in denying the defendant’s request for a court order allowing the defense to call the accomplice’s probation officer as a character witness?

(4) Was the defendant substantially prejudiced by the District Court’s comments concerning the sufficiency of the corroborating evidence?

During the early morning hours of March 31, 1988, the residence of Frances Jones in Shelby, Montana was burglarized. Daniel Malloy was arrested, charged and pled guilty to the burglary and implicated William Kaczmarek as his accomplice. Kaczmarek was charged with burglary and was tried and convicted.

At trial, the prosecution presented four witnesses: Malloy, Frances Jones, Officer John Abrahamson, and Amber Brandt. The victim, Frances Jones testified how she found her home the day after the burglary and what items were missing; she was absent when the burglary was committed. She testified that when she came home every light in the house was on and that several of her possessions had been taken.

Malloy testified that he was with Kaczmarek during commission of the crime. He testified that he was unable to enter the home after breaking a front door window and encountering a second door. He then went to the side of the house, broke out a bedroom window, entered through that window, turned on the lights and let Kaczmarek in the front door.

Once inside, Malloy testified that he loaded up some items but that he did not actually see Kaczmarek take anything, although he did see him force open a cedar chest and rummage through the victim’s belongings.

Following his arrest, Malloy stated to Officer Abrahamson that he was willing to name his accomplice but first he wanted to talk with the County Attorney. According to Officer Abrahamson’s notes at a later meeting with the County Attorney “the first thing Dan asked Rae was what kind of sentence he would receive if he would give the name of his accomplice.” Malloy was advised that sentencing was up to the court but nevertheless it would be better if he gave the information voluntarily without trying to make some kind of deal.

Amber Brandt, who lives across the street from the Jones’ residence, also testified. She stated that at the time of the burglary she saw a white Ford Granada pull up to the residence and two men get out of the car, one being a relatively large man and one with a smaller build. She did not see their faces. Later that morning at a farm auction she observed what she believed was the same vehicle and an individual whose build matched the general description of one of the men she had seen at the Jones’ residence the previous night. Later that evening, after hearing about the burglary, she reported her observations to the police. Brandt then picked Kaczmarek’s picture from a photo line-up as the individual she saw driving a white Ford Granada at the auction. While she could not positively identify the defendant or his vehicle as the ones she observed at the crime scene, she testified that it was the similar nature of the car she saw at the auction — Brandt apparently owned one of two white Ford Granadas in Shelby — that triggered her suspicion.

At trial, Kaczmarek moved for a directed verdict on the grounds that the State did not offer sufficient independent testimony to corroborate the testimony of the accomplice Malloy. The court, noting that the issue was close, denied the motion but stated that if a conviction were returned it would reconsider the issue. Kaczmarek alleges that this statement by the District Court influenced him not to take the stand and testify on his own behalf.

Kaczmarek also moved the District Court to allow him to call Malloy’s probation officer as a character witness on rebuttal. The court also refused this motion. Kaczmarek now appeals raising the issues cited above.

I.

As his first issue, Kaczmarek contends that there is insufficient testimony to corroborate the testimony of the accomplice. Section 46-16-213, MCA, requires corroboration of an accomplice’s testimony by “other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” Section 46-16-213, MCA. We have summarized in prior cases the guidelines for testing the sufficiency of corroborating evidence:

“To be sufficient, corroborating evidence must show more than that a crime was in fact committed or the circumstances of its commission. It must raise more than a suspicion of the defendant’s involvement in, or opportunity to commit, the crime charged. But corroborative evidence need not be sufficient, by itself, to support a defendant’s conviction or even to make out a prima facie case against him. Corroborating evidence may be circumstantial and can come from the defendant and his witnesses.”

State v. Kemp (1979), 182 Mont. 383, 387, 597 P.2d 96, 99. (Emphasis added.) [Citations omitted.] Corroborating testimony is viewed in a light most favorable to the State. State v. Conrad (Mont. 1990), [241 Mont. 1,] 785 P.2d 185, 187, 47 St.Rep. 32, 34. The corroborating evidence need only tend to connect the defendant with the crime charged and need not extend to every fact to which the accomplice testifies. Conrad, 785 P.2d at 187, citing State v. Ungaretti (Mont. 1989), [239 Mont. 214,] 779 P.2d 923, 925, 46 St.Rep. 1710, 1713. Thus, corroborating evidence is not insufficient merely because it is circumstantial, disputed, or possibly consistent with innocent conduct; it is the jury’s duty to resolve such factual questions. State v. Cain (1986), 221 Mont. 318, 321, 718 P.2d 654, 656-657.

The case relied on by defendant, State v. Case (1980), 190 Mont. 450, 621 P.2d 1066, is distinguishable from the case at bar. In Case, we noted that corroborative evidence must clearly (1) be independent, (2) point toward the defendant’s guilt, and (3) provide a legally sufficient connection between the defendant and the offense. Case, 621 P.2d at 1070; see also Civil Procedure and Evidence, Montana Supreme Court Survey, 41 Mont.L.Rev. 293, 312 319 (1980). We held there that the State failed to produce any corroborative evidence because all the testimony presented as corroborative failed this test.

Here, albeit circumstantial, the evidence meets this three part test. Kaczmarek admitted to deputy Abrahamson that he and Malloy were driving his white Ford Granada around Shelby the night of the crime. Amber Brandt testified that a white Ford Granada containing two men, one whose build matched the defendant’s, drove up and parked outside the victim’s house. She later saw Kaczmarek driving a white Ford Granada the next day. While there is no direct proof apart from Malloy’s testimony that Kaczmarek accompanied him during the burglary, there is sufficient independent circumstantial evidence consistent with Malloy’s version of the facts to corroborate his testimony and tending to establish Kaczmarek’s guilt.

n.

Related to the issue of sufficient corroboration, Kaczmarek contends that the evidence is insufficient to support the conviction of burglary. We disagree.

The proper standard of review for sufficiency of the evidence in a criminal case is ‘ ‘whether, after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Gommenginger (Mont. 1990), [242 Mont. 265,] 790 P.2d 455, 461, 47 St.Rep. 681, 687; State v. Krum (Mont. 1989), [238 Mont. 359,] 777 P.2d 889, 891, 46 St.Rep. 1334, 1336.

The State was required to prove that Kaczmarek knowingly entered or remained unlawfully in an occupied structure with the purpose to commit an offense therein. Section 45-6-204(1), MCA. Having determined that the accomplice’s testimony was sufficiently corroborated by the testimony of Brandt and the defendant himself, the testimony of Malloy sufficiently establishes the essential elements of burglary in this case. Malloy testified that it was Kaczmarek’s idea to burglarize the Jones’ residence. Kaczmarek entered the house with him and rummaged through the victim’s belongings and broke into a cedar chest. Clearly, a rational jury could have found the defendant guilty of burglary.

III.

Kaczmarek also contends that the District Court erred in refusing to ¿low him to call Jerry Skiba, Malloy’s former probation officer as a rebuttal witness for the purpose of proving Malloy’s character for untruthfulness. He argues that such testimony is admissible pursuant to Rule 608, M.R.Evid.

We need not address whether the testimony is admissible under this rule. Although the trial judge did not state the reasons for his ruling, the prosecution objected to the testimony in part on the ground that no notice was given to the prosecution pursuant to the discovery order and thus Skiba was a surprise witness. The State listed accomplice Malloy as a witness when it filed the information commencing this prosecution. Thus, the defendant had notice from the outset that Malloy was likely to testify against him and therefore had ample time to secure witnesses for the purpose of discrediting Malloy’s testimony.

Furthermore, the District Court granted the State’s motion for discovery filed pursuant to sec. 46-15-323, MCA, on February 1, 1989, and ordered the defendant to disclose to the State the names and addresses of all persons, other than the accused, who were to be called as witnesses by the defense at trial. At the omnibus hearing on March 9, 1989, the defendant agreed to provide the State with a complete list of all defense witnesses with their addresses and statements ten days prior to trial. Kaczmarek failed to comply with these orders with respect to calling Skiba as a witness. Section 46-15-323(4), MCA, also requires a defendant to provide the prosecutor with the names of defense witnesses within 30 days after arraignment or at such later time as the court may for good cause permit. Moreover, the district court may preclude a defendant from calling a witness if he has failed to comply with the disclosure provisions set forth in secs. 46-15-321 through 329, MCA, or any order issued pursuant thereto. Section 46-15-329, MCA; State ex rel. Carkulis v. District Court (1987), 229 Mont. 265, 746 P.2d 604. Imposition of such sanctions is within the sound discretion of the district court and will not be overturned absent a clear abuse of discretion. State v. Waters (1987), 228 Mont. 490, 495, 743 P.2d 617, 621. Here, Kaczmarek did not offer any reason why pretrial disclosure was not made. The District Court did not abuse its discretion in denying Kaczmarek’s motion to call Skiba as a witness.

IV.

Finally, Kaczmarek argues that he was substantially prejudiced by the following comments made by the District Court:

“There are thousands of Granadas made, I suppose, but I guess only two of them in Shelby. There’s no evidence who owns this Granada but apparently the testimony from Malloy is that he drove the car up there. And of course, the testimony is he drove the car to the auction. While it is indeed thin, I’m going to let the matter go to the jury on the matter of corroboration. We’ll see what the jury does with it. If they, if a conviction’s returned, I’ll call for briefs and we’ll ... go over the evidence with a fined tooth comb as to whether the verdict should be set aside or not. But at this stage, I think there’s enough testimony before the jury to get to the jury on the corroboration of the witness. ’ ’ In an affidavit filed with this Court Kaczmarek alleges that these comments constitute a promise by the court to reconsider the sufficiency of the corroborating evidence and led him to choose not to take the stand and testify on his own behalf.

This contention lacks merit. The defendant failed to object to the District Court’s determination of the issue after trial, thus the court’s alleged failure to reconsider the issue cannot be raised as error on appeal. See §§ 46-20-104, 46-20-701, MCA. The District Court was not required to reconsider the issue sua sponte. Defendant’s decision must be regarded as trial strategy rather than a decision somehow influenced by the District Court’s comments.

The defendant suffered no prejudice and there is sufficient evidence to sustain the conviction.

AFFIRMED.

JUSTICES HARRISON, BARZ, SHEEHY and WEBER concur.


text:
    THOMAS TAYLOR, Petitioner and Respondent, v. COLUMBIA FALLS ALUMINUM COMPANY, Employer, and National Union Fire Insurance, Defendant and Appellant.
    No. 89-530.
    Submitted on Briefs May 16, 1990.
    Decided July 12, 1990.
    795 P.2d 433.

      Bradley J. Luck, Garlington, Lohn & Robinson; Missoula, for defendant and appellant.
    John H. Bothe, Bothe & Lauridsen, P.C., Columbia Falls, for petitioner and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Defendant, National Union Fire Insurance Company (Appellant), appeals the judgment of the Workers’ Compensation Court awarding Thomas Taylor 500 weeks of permanent partial disability benefits under § 39-71-703, MCA (1985), at the maximum biweekly compensation rate. We affirm.

The sole issue on appeal is:

Whether the Workers’ Compensation Court erred in awarding permanent partial disability benefits to the claimant under § 39-71-703, MCA (1985).

At the time of trial, claimant Thomas Taylor was 44 years old, married, with four children. Mr. Taylor graduated from high school in Livingston, Montana in 1962, and attended part of one year of college at Montana State University. In 1964, Mr. Taylor enlisted in the Marine Corps, where he served until 1968. Following his enlistment, Mr. Taylor began working for the Columbia Falls Aluminum Company. He has worked at the aluminum plant continuously, except for approximately eight months in 1973, when he worked as a skidder operator and on the green chain at a plywood plant.

On June 23, 1987, Mr. Taylor was driving a hot metal truck at the plant when the truck fell sideways and he was injured. As a result of this accident, Mr. Taylor experienced severe headaches and dizziness. He was placed in a neck collar and transported to the emergency room at a local hospital, treated and released. The examining doctor determined that Mr. Taylor had suffered a neck sprain.

The next day Mr. Taylor went to his family doctor, who after initial treatment, referred him to Dr. John V. Stephens for conduction studies. Eventually, Dr. Stephens diagnosed post cervical thoracic sprain/strain, myofascial pain and muscle contraction headaches. As a result of this diagnosis, Mr. Taylor was permanently restricted to medium work, avoiding repetitive work above shoulder level or arms outstretched, avoiding static positioning of the head or continuous twisting of his head or neck.

When he returned to work, Mr. Taylor was initially assigned to a light duty position. After five weeks at this job assignment he returned to the hot metal truck driving position. After three days the symptoms relating to his injury returned and he went back to see Dr. Stephens. Following examination, Dr. Stephens told Mr. Taylor that he could (1) quit work, (2) try to go back to light duty, or (3) bid out of his present job and get into a less strenuous position. He was successful in bidding into a position as a casting laborer, which is far less strenuous than driving the hot metal truck.

Following this job change, Mr. Taylor has not missed any work as a result of his injury, but the change has limited Mr. Taylor’s advancement opportunities. Other employees in the casting department have more seniority than Mr. Taylor. This is not the case in other departments where, due to his injury, he is no longer able to work. As a result of this factor and the limited number of jobs in the casting department Mr. Taylor is necessarily limited in advancement.

Following the accident, appellant accepted liability and Mr. Taylor was reimbursed for his medical bills and for the time he was out of work. A dispute arose concerning the extent of his permanent partial disability entitlement. Trial was held and the Hearing Examiner issued his Findings of Fact, Conclusions of Law and Proposed Judgment. The Workers’ Compensation Judge issued his order accepting the Hearing Examiner’s recommendations. The judgment awarded Mr. Taylor 500 weeks of permanent partial disability benefits under § 39-71-703, MCA (1985), at the maximum biweekly compensation rate. This appeal followed.

Section 39-71-703(1), MCA, as it read before the 1987 amendments controls the outcome of this case. The injury occurred on June 23, 1987, before the effective date of the amendments. See Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 730 P.2d 380. That section provided:

“39-71-703. Compensation for injuries causing partial disability. (1) Weekly compensation benefits for injury producing partial disability shall be 66 2/3% of the actual diminution in the worker’s earning capacity measured in dollars, subject to a maximum weekly compensation of one-half the state’s average weekly wage.”

The appellant argues that the language of this statute was intended to compensate the injured worker for actual loss of earning capacity, while § 39-71-705 to 708, MCA, was to compensate injured workers for possible future loss to earning capacity. According to their argument, Mr. Taylor can show no real loss in earning capacity and therefore the decision of the Workers’ Compensation Court granting him maximum benefits under § 39-71-703, MCA, is not supported by substantial evidence.

We disagree with this contention. In a recent case, Sedlack v. Bigfork Convalescent Center (1988), 230 Mont. 273, 749 P.2d 1085, we were faced with this same argument. In Sedlack, we fully described the history and policy of cases decided under § 39-71-703, MCA. Therefore, we need not fully address appellants’ argument here. However, it does bear repeating that the correct test for loss of earning capacity is whether the industrial accident caused “a loss of ability to earn in the open labor market,” Sedlack, 749 P.2d at 1088. Given this standard, we need only review the ruling of the Workers’ Compensation Court to determine if it correctly found that Mr. Taylor suffered “an actual loss of earning capacity.”

The lower court found that following his return to work, Mr. Taylor earned essentially the same wage as before his injury. However, it also found that his chances for advancement were curtailed due to job restrictions placed upon him as a result of the accident. The court found that Mr. Taylor lost access to a number of jobs outside of the aluminum plant. It based this conclusion upon the testimony of John Addington, a vocational rehabilitation consultant who was retained by the appellant. According to this testimony, Mr. Taylor suffered a loss of labor market access in Flathead County of 38.5 %. The court further found that if the aluminum plant were to close, Mr. Taylor’s ability to compete for other jobs would be diminished and he would suffer a wage loss.

Using this testimony as a basis, the court found that Mr. Taylor was severely limited in his ability to compete for and perform jobs outside of the aluminum plant in the Kalispell area. Most of the jobs that he could perform do not require training and are lower paying jobs. The only transferable skill position which Mr. Taylor could readily perform was identified as sub-assembler, which at entry level pays near minimum wage.

The lower court determined the average wage in occupations now available to Mr. Taylor outside the plant approximated $4.00 per hour. It then determined that Mr. Taylor suffered a wage capacity loss of $6.87 per hour, which was derived by subtracting his post-injury earning capacity of $4.00/hour from his pre-injury wage of $10.87/ hour. It then determined that Mr. Taylor was entitled to weekly benefits of $149.50, the maximum recoverable under § 39-71-703, MCA (1985).

The benefits awarded in this case and the findings of fact upon which they are based are supported by substantial evidence. Findings of the Workers’ Compensation Court will not be overturned if there is substantial evidence to support them. Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 83, 580 P.2d 450.

Furthermore, the lower court did not err in its conclusions of law. The court found that Mr. Taylor, as a result of his accident, suffered “a loss of ability to earn in the open labor market.” The open labor market necessarily includes jobs found within the Columbia Falls Aluminum Plant, as well as within the Flathead County area. Based upon this finding, the court concluded that Mr. Taylor incurred an actual diminution in his earning capacity. This conclusion is in accordance with the plain language of § 39-71-703, MCA (1985), and with case law promulgated by this Court. The judgment is therefore affirmed.

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