author: MR. JUSTICE SHEEHY MR. JUSTICE WEBER

text:
    STATE OF MONTANA, ex rel. Montanans for the Preservation of Citizens’ Rights, the Montana State AFL-CIO; the WOMEN’S LAW CAUCUS; TYNDALL COX; GARY HENRICKS and PAM McCLAIN, individually and as next friend of her minor daughter, FELICIA McCLAIN, Plaintiffs & Relators, v. JIM WALTERMIRE, Secretary of State of the State of Montana; ANDREA BENNETT, State Auditor of the State of Montana; ED ARGENBRIGHT, Superintendent of Public Instruction of the State of Montana; and MIKE GREELY, Attorney General of the State of Montana as the BOARD OF STATE CANVASSERS of the State of Montana, and the STATE OF MONTANA, Defendants & Respondents, and MONTANA LIABILITY COALITION, Real Party in Interest.
    No. 86-400.
    738 P.2d 1255, 1268.
   OPINION AND ORDER ON RECONSIDERATION

MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Attorney General Mike Greely has filed a petition for rehearing following the issuance of our original opinion on May 22, 1987. The real party in interest, Montana Liability Coalition, has filed a petition for reconsideration, which we regard as a petition for rehearing. Jim Waltermire, Secretary of State, has filed a petition for clarification. Such a petition is not provided for in our rules, but we will regard it as a petition for rehearing. In any case, each petition is by the Court DENIED.

The petition of the Attorney General contends that the case of Durfee v. Harper (1899), 22 Mont. 354, 56 P. 585 was overruled by the 1972 Constitutional Convention; that publication of the “full text” of the proposed Initiative Amendment of the Constitution is not required by the State Constitution; that voiding the Initiative Amendment CI-30 is too harsh; and that the Court should fashion a relief such as requiring another election within 75 days under Section 13-35-107, MCA, or certifying the issue for submission to the electorate at the next general election in 1988.

The petition of the real party in interest, Montana Liability Coalition, contends that our decision overturns the Initiative Amendment on a “slight procedural irregularity”; that our decision has the incidental effect of voiding all amendments to the Constitution (by initiative or referendum) since 1977; that the proceedings in the 1972 Constitutional Convention express the intent that full text publication of initiative amendments is not required; and that substantial compliance with statutory directions for publication and proposed initiative amendments is enough.

The Secretary of State’s petition asks us to determine whether we should mandate a new election on the Initiative under Section 13-35-107, MCA; and whether our decision now requires that any future constitutional amendment, by referendum or by initiative be printed in full on the ballot, as distinguished from the voter information pamphlet.

The relators have filed a response, answering in one instrument the contention of each of the petitioners for rehearing. In their response, Relators contend that none of the petitions meet the requirements of Rule 34, M.R.App.Civ.P.; that it is inarguable that the language of the Initiative Amendment to Art. II, Section 16, 1972 Mont. Constitution, filed by the Secretary of State after the election is not the same language submitted to the electors for their vote on November 4, 1986; that this Court pointed out in its original majority opinion that no other amendment to the Constitution was affected by the decision herein; that the constitutional provision requiring printing the full text of a proposed initiative amendment in the media does not require publishing the full text of the proposed amendment on the face of the certified ballots; that the doctrine of strict compliance expressed in Durfee continues to be the law in this state; and that asking for a further election under Section 13-27-501, MCA, or certifying a ballot for the general election of 1988 is asking for an advisory opinion on issues never raised, briefed or argued.

A petition for rehearing, to be sufficient, must, under Rule 34, M.R.App.Civ.P., be presented upon the following grounds and none other: that some fact material to the decision or some question decisive of the case submitted to counsel, was overlooked by this Court, or that the decision is in conflict with an expressed statute or controlling decision to which the attention of this Court was not directed. On their faces, the petitions do not meet that criteria. The majority opinion expressly sets out that it adopts the doctrines espoused in Durfee and like cases regarding constitutional amendments; that the true text of the proposed initiative amendment should be found in the Voter Information Pamphlet promulgated by the Secretary of State before the election; that publication by the Secretary of State of the full text of the proposed amendment is required under Art. XIV, Section 9 of our Constitution; and that publication of the Attorney General’s summary of the amendment (Section 13-27-312, MCA) expressed in 100 words or less did not in this instance meet the requirements for publication in the media. Yet, out of a decent respect for the concerns of the petitioners, which we take to be honestly expressed, we will discuss those few issues not glaringly found in the majority opinion itself.

Before we start, we assert one unassailable fact: Apart from the several thousand persons who may have seen the full text of the proposed amendment when they signed the initiative petitions and those few dozens of people who were intimately involved in these proceedings, the great majority of voters never saw the full text of the amendment CI-30 which the Secretary of State eventually certified had been adopted by their vote. What they did see in the Voter Information Pamphlet, their only source of information, was a text which completely reversed what the petitions for initiative amendment proposed. There is far more here than a slight “procedural irregularity” or a mere “cumbersome detail.” The text in the Voter Information Pamphlet was as different from the text certified by the Secretary of State as yes from no, white from black or good from bad.

We turn first to the contention that the 1972 Constitutional Convention “overruled” Durfee v. Harper, supra.

The statement relied on by the Coalition regarding Durfee is found in the Constitutional Convention Proceedings regarding what is now Article XIV, Section 8, Amendment by Legislative Referendum. The Convention’s Committee on Constitutional Revision had proposed two methods of amendment by the legislature, one by referendum, and one by the legislature itself. Eventually, the Convention eliminated amendment by the legislature itself. In the discussion respecting amendments by referenda, the Committee Report stated:

“. . . The first procedure ... is analogous to the method of amending the Constitution in the present Constitution’s, Article XIX, Section 9. The proposed section, however, does not go into the cumbersome procedural detail contained in the present Constitution. This cumbersome detail has been a burden to often-popular Constitutional change. In one instance the Supreme Court of Montana voided a proposed constitutional amendment for the slight procedural irregularity of failure to follow the Constitutional directive in Article XIX, Section 9 and enter the proposed amendment in full in the journals of both houses [Durfee v. Harper, 22 Mont. 354 (1899)].”

1972 Montana Constitutional Convention, Vol. 1, at 361, 362.

The same committee report also contained the original proposal for amendment by initiative, the constitutional section with which we are concerned in this case. When speaking of the original proposal that 15% of the voters must sign such a petition for initiative amendment, the report said:

“. . . the proposed article creates a new power for the people of Montana, the right to initiate Constitutional amendments. The committee feels that this is an inherent right in a body politic whose Constitution is to be the embodiment of the will of the people. The committee’s proposal sets up the exact machinery for expressing this will through establishment of the petition requirements and the administration process. The 15 per cent petition requirement and the geographical requirement are high, but the committee feels that it is not unreasonable to demand strict standards when dealing with something as fundamental and important as Constitutional change. Although the standard is high, the committee does not feel it is so high that pressing popular and needed Constitutional reforms could not be initiated by the people. The standard, the committee feels, will operate to check erratic whimsy.”

1972 Montana Constitutional Convention, Vol. 1, at 363.

The initiative amendment proposal eventually was considered by the Convention sitting as a committee of the whole. It was in Committee of the Whole that the discussion occurred regarding whether the publication by the Secretary of State of proposed amendments by initiative should be solely in newspapers, or whether electronic media could be used. No definitive agreement was reached by the Convention on this question, but what is surprising is the report of the Committee of the Whole which was adopted by the Convention in the full committee report. Action of the Committee of the Whole on the initiative proposal was reported and adopted by the full Convention in this fashion:

“. . . that Section 11 [the initiative proposal] be amended by striking the following: ‘in such event the secretary of state shall cause the amendment or amendments to be published in full in at least one newspaper in each county in which a newspaper is published, twice each month for the two months previous to the next general election for members to the legislative assembly;’ that Section 11 be adopted as amended; ...”

1972 Montana Constitutional Convention, Vol. III, at 534.

The whole article with respect to constitutional revision was then referred by the convention to the Committee on Style and Drafting. When the proposal for amendment by initiative emerged from the Committee on Style and Drafting, the provision for publication by the Secretary of State, exactly as it now appears, had been reinserted. (1972 Montana Constitutional Convention, Vol. II, at 852, Report No. 2., February 26, 1972.) Thereafter the provisions sailed through Committee of the Whole (Vol. IV, at 1194) and through final vote (Vol. VI, at 1918-1919) in the same form.

The record of the Constitutional Convention proceedings therefore supports our statement in the majority opinion that “nowhere do the constitutional framers discuss publishing less than the full amendment.” Indeed, the minority agreed, saying “that the official transcript of Montana’s 1972 Constitutional Convention does not answer the question of intent conclusively; there is no statement of the collective view of the delegates.” The foregoing recitation respecting the proceedings in the Constitutional Convention is burdensome but is made necessary by petitioner’s contentions that somehow the convention had “overruled” Durfee. The Convention proceedings simply do not support that contention.

Next we turn to the contention of the relators that the majority opinion, by requiring publication of the full text of initiative proposals to amend the Constitution, have incidentally voided all amendments to the Constitutions since 1977, including a) the drinking age of adults (1978); b) optional local government review (1978); c) confidentiality of judicial documents in the Judicial Standards Commission (1950); d) a poll of the legislators to overthrow a gubernatorial veto (1982); e) discipline of judges for breach of canons of judicial ethics (1984); f) congressional redistricting (1984); and g) elimination of the study of the Salary Commission (1986).

This contention has caught the fancy of some observers and a few editorial writers who see all around us bogey-men threatening the structure of state government.

A short answer to this contention would be that an action to void an election must be commenced within 1 year of the date of the election in question (Section 13-35-107, MCA). A short answer will not suffice for what needs to be explained here.

In our majority opinion, we stated that we had examined the history of other constitutional amendments that have occurred since 1972 and that our decision in this case had no effect on such constitutional amendments.

The provisions of Section 13-27-311, MCA, which purport to permit the Secretary of State to publish a “summary of the amendment as provided by the Attorney General” in advance of the election on an initiative amendment proposal came into the statute by way of the amendment in 1979 (Ch. 571, Laws of Montana (1979)). Before that time, Section 13-27-311 required that the text of any proposed constitutional amendment, whether by initiative or by referendum, be published by the Secretary of State in at least one newspaper of general circulation in each county, twice each month for two months previous to the election. Therefore, if any constitutional amendment adopted prior to the effective date of Ch. 571, Laws of Montana (1979), had not been properly published, the defect would not arise from the majority opinion but rather from the failure of the Secretary of State to follow the law with respect to those amendments.

Since 1979, the only amendment to the Constitution proposed by means of an initiative which is affected by our decision is the one before us in this case. Another initiative proposal to amend the State Constitution also failed to muster a majority vote in 1986.

Our decision has no effect on amendments to the Constitution that may have been adopted through referendum from the legislature since 1979. As we pointed out in the majority opinion, there is no constitutional provision for publication by the Secretary of State or any other officer relating to amendments by legislative referendum. Article XIV, Section 8, 1972 Mont. Const. The majority opinion here can have no affect on such amendments. All of the amendments which the relators say are threatened by our opinion were legislatively-inspired and do not have their source in initiative. There is, therefore, no substance to the contention that we have incidentally voided other constitutional amendments.

But, the Secretary of State and the relators contend, our majority decision means not only that the full text of an initiative proposal for constitutional amendment must be published, but it also means that the full text of the initiative proposal must be stated on the face of the certified ballot given to each voter. Such a contention is an extrapolation of logic stretched to the fullest extent. Nowhere in the majority Opinion is there any indication that printing the full text of an initiative proposal on the face of the ballot is required nor was such a contention raised in any pleading or brief before the Court until the petition for rehearing. The majority Opinion has confined itself to the provisions of Article XIV, Section 9, that “the secretary of state shall cause the amendment to be published as provided by law, twice each month for two months previous to the next regular statewide election.” By no means can consideration of that language be stretched to determine what should be on the face of the ballot. In point of fact, however, the majority opinion has given tacit approval to publishing the full text of the initiative proposal in the voter information pamphlet instead of the ballot, provided that the full text is there correctly stated.

Finally, we come to the contentions presented for the first time to us in the petitions for rehearing, that we should order a new election under Section 13-35-107, MCA, or as the Attorney General suggests, certify the issue for the 1988 general election ballot.

There is a grave problem as to whether Section 13-35-107, MCA, could apply to this type of case, especially. where the officials through whom the errors occurred seem reluctant to admit any fault. In any event, Section 13-35-107 is discretionary and the majority can see no equity in requiring the state to incur the costs of a special statewide election within 75 days of our majority opinion. It is virtually certain that it would be impossible in that time to provide for the necessary publications in newspapers or other media and the other election requirements that would have to be followed. The suggestion defeats itself. As for certifying the issue over for the 1988 ballot, we find no statutory authority for that step and it would stretch our inherent power to an unwarranted extent. Each of those suggestions is therefore refused.

For the foregoing reasons, the petitions for rehearing, reconsideration, and clarification are each DENIED.

MR. JUSTICES HARRISON and HUNT and HON. JOSEPH B. GARY, District Judge, sitting for former JUSTICE MORRISON concur.

MR. JUSTICE WEBER

dissents from the opinion and order on reconsideration.

The majority contends that an unassailable fact is that the great majority of voters never saw the correct text of the amendment Cl-30 as finally certified. The error in the voter information pamphlet was that the words “this full” were printed this full, instead of tins fuH. I emphasize that the pamphlet itself did not explain what is meant by underlining as compared to interlineation. While I agree that underlining commonly is used to designate material being added and interlineation to designate material being deleted, I suggest that the record does not demonstrate that this is knowledge which can be presumed to be held by all of the voters. The pamphlet itself contained the extensive printed arguments by the opponents to the measure which clearly set forth their opposition to the elimination of the words “this full” from the constitutional provision. I question that anyone who actually read the pamphlet would have been misled as to the positions of the opponents and the supporters of the amendment. The majority does not consider the publication by the Secretary of State which described the error in the voter pamphlets and was contained in a news release published throughout Montana. In addition, the majority does not consider the wide discussion of the Initiative in the printed media, the radio and the television, as well as the debate which was reported in the media. I conclude that the pamphlet gave the accurate information necessary for each voter to conclude whether to vote for or against the amendment. Nothing more was required. I conclude that there is no real basis for the declaration of unconstitutionality because of the pamphlet printing error.

The majority states that the record of the Constitutional Convention supports its statement that “nowhere do the constitutional framers discuss publishing less than the full amendment.” It is true that the record of discussions by the delegates does not answer the question of this intention. However, I believe that the sections of the Constitution speak for themselves. Following is the full text of Article XIV, Section 8 and Section 9:

“Section 8. Amendment by legislative referendum. Amendments to this constitution may be proposed by any member of the legislature. If adopted by an affirmative roll call vote of two-thirds of all the members thereof, whether one or more bodies, the proposed amendment shall be submitted to the qualified electors at the next general election. If approved by a majority of the electors voting thereon, the amendment shall become a part of this constitution on the first day of July after certification of the election returns unless the amendment provides otherwise.
“Section 9. Amendment by initiative. (1) The people may also propose constitutional amendments by initiative. Petitions including the full text of the proposed amendment shall be signed by at least ten percent of the qualified electors of the state. That number shall include at least ten percent of the qualified electors in each of two-fifths of the legislative districts.
(2) The petitions shall be filed with the secretary of state. If the petitions are found to have been signed by the required number of electors, the secretary of state shall cause the amendment to be published as provided by law twice each months (sic) for two months (sic) previous to the next regular state-wide election.
(3) At that election, the proposed amendment shall be submitted to the qualified electors for approval or rejection. If approved by a majority voting thereon, it shall become a part of the constitution effective the first day of July following its approval, unless the amendment provides otherwise. (Emphasis supplied.)”

The case held to be controlling by the majority, State ex rel. Woods v. Tooker (1894), 15 Mont. 8, 37 P. 840, pointed out that the 1889 Constitution required publication in full for three months, and publication in Tooker was made for only two weeks. In view of that constitutional requirement it was reasonable for the Court to reach the decision it did in Tooker. In contrast, Section 9(2) provides that the secretary of state shall cause the amendment to be published as provided by law. It is significant that the present Constitution does not include the words “in full” which were present in the 1889 Constitution and that in addition, the constitutional provision now requires publication as provided by law. Section 9(1) provides that the people may propose constitutional amendments by initiative and then states that petitions including the full text of the proposed amendment shall be signed by the electors. This demonstrates the ability of the delegates in the Constitutional Convention to clearly describe when full text is to be used. Those words are omitted from both paragraphs (2) and (3) of Section 9 as well as from Section 8. It is not necessary to read any Constitutional Convention proceedings to determine intent. The intent seems quite clear from Section 9(2) itself. There is no requirement for publication “in full” in our present Constitution.

I conclude that the Montana Liability Coalition (Coalition) has presented a strong argument with regard to the effect of the majority opinion. In substance, the Coalition questions whether the definition of “the amendment” as meaning “the full text of the amendment” for Section 9(2) of our Constitution can also be applied to Section 8. In Section 8 the provision for submitting to the electorate an amendment proposed by the legislature itself is that “the proposed amendment” shall be submitted to the electors. In a similar manner, Section 9(3) provides that so far as submitting the initiative to vote is concerned, “the proposed amendment” shall be submitted to the electors. In analyzing Section 9(2) of the Constitution, the majority concludes that the words “the amendment” mean that the full text of the amendment must be published. The majority fails to explain why the full text should be published while adjacent paragraphs should be construed to require only a summary. The Coalition argues that the same logic as used by the majority can be applied to Section 8, raising a question as to referendums because in no instance was the proposed amendment submitted in full to the electors. Instead only a summary was used on the ballot. Similarly, under Section 9(3), the proposed amendments were not submitted in full to the qualified electors but were submitted in summary form only. I conclude that the Coalition has raised a significant question which follows from the majority interpretation of our Constitution. The purpose of publication and printing on the ballot is to provide adequate information to Montana voters. That purpose is not fulfilled by the fact that members of the legislature have considered the matter. I conclude that it can be argued that the conclusion of the majority could be applied to both Section 8 and Section 9(3) of the Constitution, requiring invalidation of referendum and initiative measures where the proposed amendment was not set forth in full in the ballot.

The majority has stated that Section 13-35-107, MCA, sets forth a one-year statute of limitations on actions to void an election ballot. I am not certain that the provision could be applied to a constitutional challenge.

For the foregoing reasons I would grant the petitions for rehearing and reconsideration.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE GULBRANDSON concur in the foregoing dissent.

      . On October 29, 1986, an affidavit of the Bozeman Chronicle revealed that the Secretary of State had failed to cause any publication of the proposed amendment, either of the Attorney General’s summary or the full text, in Gallatin County. That county had 28,357 voters of whom 18,582 voted. Votes for CI-30 were 9,735, against 8,046 in Gallatin County. This disputable result was certified to the Secretary of State by the county election officials. In spite of his record of nonfeasance on CI-30, the Secretary of State has persisted in the media in denouncing the decision of the majority as the work of “liberals” and “political” members of the court, and has accepted no responsibility for the fiasco.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    MICHAEL N. SEVALSTAD, Plaintiff, v. JOHN GLAUS, Defendant, Third-Party Plaintiff and Appellant, v. LESTER NEIFERT, Third Part Defendant and Respondent.
    No. 86-288.
    Submitted on Briefs Dec. 11, 1986.
    Decided May 26, 1987.
    Rehearing Denied June 26, 1987.
    737 P.2d 1147.

      Crowley, Haughey, Hanson, Toole & Dietrich, Donald L. Harris, Billings, for defendant, third-party plaintiff and appellant.
    Jardine, Stephenson, Blewett & Weaver, William D. Jacobsen, Great Falls, for third-party defendant and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

John Glaus appeals an order from the Ninth Judicial District, Toole County, granting respondent Lester Neifert’s motion for summary judgment. We affirm.

Two issues are presented for our review:

1. Did the District Court err when it granted Neifert’s motion for summary judgment?

2. Does State ex rel. Deere Co. v. District Court (Mont. 1986), [224 Mont. 384,] 730 P.2d 396, 43 St.Rep. 2270, require that summary judgment be affirmed?

Michael N. Sevalstad was injured on October 7, 1983, when his 1978 Chevrolet Suburban, in which he was a passenger, was involved in an automobile roll-over on Interstate 15, approximately ten miles south of Shelby, Montana. Sevalstad was riding with John Simonich and the appellant and driver, John Glaus. The three men were traveling to Sunburst, Montana, from Butte, in anticipation of goose hunting on October 8, 1983. Glaus stated, during deposition, that he had consumed at least eight beers preceding the incident. Glaus also stated Sevalstad fell asleep approximately one hour before the accident. Additionally, Glaus testified that Sevalstad’s vehicle was heavily loaded, its headlights were shining upward, rather than illuminating the highway. At the time of the accident, Glaus was driving between sixty and sixty-five miles per hour.

On October 7, 1983, respondent Neifert was also traveling north on InterstateT5. Neifert testified that at approximately 11:00 p.m., he hit a “rather large deer” which ran in front of his vehicle. Neifert was approximately two miles south of the Marias River or nine miles from Shelby when, “. . . a deer just flat out [ran] right in front of me, and I hit the deer, and I hit him on the driver’s side corner and he flew back somewhere, and I just went on and stopped and got out, and I went back to look for the deer and didn’t find him.” Neifert stated he was driving fifty-five miles per hour at the time of the accident.

After striking the deer, Neifert stopped, turned on his flashing lights, and searched the area behind his truck for approximately ten minutes. Although he found a piece of his truck’s grill, Neifert did not find a deer on the Interstate. Neifert returned to his pickup and observed that his radiator was leaking badly. While he assessed the damaged vehicle, Neifert noticed a vehicle approaching from the south. Respondent stated the vehicle moved into the left lane and passed the accident scene. Although Neifert testified he watched the highway illuminated by the oncoming vehicle’s lights, he did not observe an obstruction on the interstate. Neifert proceeded to Shelby to repair his vehicle and to contact the Montana Highway Patrol.

A patrolman was dispatched from Conrad to investigate Neifert’s accident. While en route on Interstate 15, the patrolman found appellant Glaus’s overturned vehicle approximately ten miles south of Shelby. Glaus testified that as he drove toward the Marias River he came upon a deer carcass lying near the centerline of the northbound lane. Glaus stated he did not see the carcass until it was “twenty to thirty feet away.” Glaus then turned sharply to the right, back to the left, and finally back to the right. The vehicle overturned in the right ditch and Sevalstad was seriously injured. Sevalstad claims Glaus’s negligence caused his injuries.

Following the October 7, 1983, accident, Glaus was charged with driving while under the influence. Glaus pleaded guilty to careless driving in violation of Section 61-8-302, MCA.

Sevalstad brought a complaint for negligence against Glaus and Neifert on January 3, 1985. Glaus subsequently filed a cross-claim for contribution against Neifert. On October 21, 1985, Sevalstad dismissed with prejudice his complaint against Neifert. Neifert then moved for summary judgment with respect to Glaus’s cross-claim. The District Court granted Neifert’s motion for summary judgment.

Following a jury trial in February 1986, the jury found that Glaus acted negligently and was the proximate cause of Sevalstad’s injuries. Sevalstad was awarded damages of $325,000. Glaus now appeals the District Court’s order granting summary judgment to respondent Neifert.

Two issues are presented for our review.

Issue 1

Did the District Court err when it granted respondent Neifert’s motion for summary judgment?

The standard that an appellate court applies in reviewing a grant or denial of a motion for summary judgment is the same as that utilized by the District Court. Kronen v. Richter (Mont. 1984), [211 Mont. 208,] 683 P.2d 1315, 1317, 41 St.Rep. 1312. The standard of review is whether the District Court properly held there is no genuine issue of material fact'and therefore the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.

The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact which applicable principles of law entitle him to judgment as a matter of law. Rennick v. Hoover (1980), 186 Mont. 167, 606 P.2d 1079, 1080-1081. The moving party must make a showing that excludes any real doubt as to the existence of any genuine issue of material fact. Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613, 615.

In the case at bar, respondent Neifert, by deposition, testified he was the sole witness to the deer-automobile accident. Neifert stated the deer darted in front of his vehicle, at night on Interstate 15, and the two collided. Neifert stopped and searched the roadway behind his vehicle. After finding a piece from his vehicle grill, Neifert then walked another fifty feet past the point of impact searching for the deer carcass.

Neifert retreated to his vehicle and attempted to “flag down” or stop a passing motorist. Neifert testified the oncoming automobile headlights did not reveal a deer carcass on the interstate. Further, Neifert testified the oncoming vehicle traveled safely past the accident scene.

Neifert, upon realizing that his radiator was leaking badly, left the accident scene and proceeded to Shelby. Neifert then contacted the highway patrol and advised the patrol of his accident.

Respondent Neifert, the movant, made a showing that there is no genuine issue of material fact. Neifert was the sole witness to the accident. Circumstantial evidence supports Neifert’s testimony. Appellant Glaus does not question Neifert’s version of the facts. However, Glaus contends that Neifert should have searched more vigorously. Glaus also contends Neifert should have searched with different means, with his vehicle lights or his dog, to locate the deer carcass. Secondly, appellant Glaus contends Neifert’s foot search was cursory and that he should have remained at the accident scene, notwithstanding his vehicle’s leaking radiator.

Once the moving party has established that no genuine issue of material fact exists, the burden shifts to the opposing party to raise an issue of fact. Krone v. McCann (1982), 196 Mont. 260, 638 P.2d 397, 399. “The opposing party’s facts must be material and of a substantial nature, not fanciful, frivolous, gauzy or merely suspicious.” Westlake v. Osborne (Mont. 1986), [220 Mont. 91,] 713 P.2d 548, 550, 43 St.Rep. 200, citing Silloway v. Jorgenson (1965), 146 Mont. 307, 310, 406 P.2d 167. Implications based on appellant’s allegations are not enough to sustain a motion for summary judgment. Cheyenne Western Bank v. Young (1978), 179 Mont. 492, 587 P.2d 401, 404.

We hold that appellant Glaus failed to raise a genuine issue of material fact. Secondly, we hold the District Court properly found that respondent Neifert did not breach a legal duty owed to appellant Glaus. “[Actionable negligence arises only from the breach of a legal duty. [Citing cases.] Therefore, in order for there to be a genuine issue of a material fact in a negligence case, there must be a duty imposed upon the defendant and allegations, if proven, that would support a finding of a breach of the duty.” Rennick v. Hoover (1980), 186 Mont. 167, 606 P.2d 1079, 1081. Respondent Neifert did not breach a legal duty owed to appellant Glaus.

Issue 2

Does State ex rel. Deere Co. v. District Court (Mont. 1986), [224 Mont. 384,] 730 P.2d 396, 43 St.Rep. 2270, require that summary judgment be affirmed?

Sevalstad originally filed his complaint against appellant Glaus and respondent Neifert. Subsequently, Glaus brought a cross-claim against Neifert for contribution. Sevalstad then dismissed, with prejudice, his complaint against Neifert. In doing so, Sevalstad relinquished his right to recover from Neifert. Rule 41(a), M.R.Civ.P.

Respondent Neifert contends that Deere is controlling and requires that summary judgment be affirmed. Neifert contends that when Sevalstad dismissed, with prejudice, his complaint against Neifert, Glaus’s cross-claim against Neifert became moot.

Prior to Deere, we held that where concurrent tortfeasors are affirmatively negligent, there was no right of contribution or indemnity from one to the other for damages recovered by a plaintiff, except as may be allowed in comparative negligence cases under Section 27-1-703, MCA. See Consolidated Freightways Corp. v. Osier (1979), 185 Mont. 439, 605 P.2d 1076; Panasuck v. Seaton (D. Mont. 1968), 277 F.Supp. 979.

In Deere we held that “a joint tortfeasor who settles with the claimant before judgment on the claim is entered in a district court is not subject to claims for contribution or indemnity from the non-settling joint tortfeasors against whom judgment may be rendered.” Deere, 730 P.2d 396, 402, 43 St.Rep. 2270, 2277. Deere is controlling, notwithstanding Section 27-1-703, MCA, which gives a joint tortfeasor the right to bring in other tortfeasors in order to insure contribution.

Accordingly, Glaus has no right of contribution against Neifert, since Neifert was dismissed with prejudice from the action brought by Sevalstad.

Affirmed.

MR. JUSTICES HARRISON, WEBER, SHEEHY, GULBRANDSON and HUNT concur.


author: MR. JUSTICE WEBER MR. JUSTICE SHEEHY,

text:
    AARON STANSBERRY, Petitioner/Respondent and Cross-Appellant, v. ED ARGENBRIGHT, Superintendent of Public Instruction and Trustees of Roosevelt County High School District #5A, Respondents/Appellants and Cross-Respondents.
    No. 86-533.
    Submitted on Briefs Feb. 26, 1987.
    Decided May 26, 1987.
    738 P.2d 478.

      Charles E. Erdmann, Erdmann & Wright, Helena, for respondents/ appellants and cross-respondents.
    Emilie Loring, Hilley & Loring, Great Falls, for petitioner/respondent and cross-appellant.
   MR. JUSTICE WEBER

The District Court of the First Judicial District, Lewis and Clark County, reversed the actions of the Roosevelt County Board of School Trustees (School Trustees), the County Superintendent of Schools (County Superintendent), and the State Superintendent of Public Instruction (State Superintendent), and directed that Mr. Stansberry be offered a contract as a tenured teacher. School Trustees appealed and Mr. Stansberry cross-appealed. We reverse.

The issues are:

1. Did the District Court err in reversing the decisions of the School Trustees, the County Superintendent, and the State Superintendent and directing that Mr. Stansberry be offered a contract?

2. Did the District Court err by not directing the School Trustees to pay Mr. Stansberry back pay and retroactive fringe benefits?

Mr. Stansberry was a tenured teacher who taught in the Wolf Point High School District for seven years prior to this controversy. In 1981 Mr. Stansberry requested sabbatical leave for the 1982-83 school year pursuant to the Professional Policies Agreement between the School District and the Wolf Point Education Association. The agreement provides in pertinent part:

“5575.8 Sabbatical Leave
“a. Sabbatical leave shall be available to a teacher after seven (7) years of service. A teacher receiving sabbatical leave shall be awarded 50% of their annual base salary they would have received had he or she remained at his or her teaching position. Such salary will be paid upon completion of the granted sabbatical leave and upon beginning to teach in the system in the school year following his/her absence.
“b. Leave may be granted by the Board of Trustees upon application approval by a joint review panel representing the WPEA and the school system to engage in full-time study, travel, research, work experience or other professionally advantageous activity ....
“c. Teachers on sabbajtical leave receive normal salary increments, tenure rights, and fringe benefits while on leave and must return to their former position ot similar position.”

In part Mr. Stansberry’s application letter stated:

“I would like to mak'e formal application for a Sabbatical Leave during the 1982-83 school year.
“If this application is accepted, I intend to pursue either an MA or MFA degree in English, concentrating in Creative Writing.”

In a December 1981 School Board meeting, Mr. Stansberry’s application was approved. The School Board minutes provided:

“The Board next took under consideration the written request from Mr. Aaron Stansberry for Sabbatical Leave during the 1982-83 school year. He stated that his intent is to persue [sic] either a MA or MFA in English, concentrating in Creative Writing. A letter accompanied this request which was signed by Mrs. Penny Nelson, Mr. William Gilman, High School Principal, and Mr. Michael Thompson, High School English Instructor recommending that Mr. Stansberry’s Sabbatical Leave request be approved. A motion was made by Listerud and seconded by Hansen that the Board approve granting a request that Mr. Stansberry have Sabbatical Leave during the 1982-83 school year. A vote was taken and the motion carried.”

In April 1982, Mr. Stansberry was informed by the University of Montana English Department that he had not been accepted to the graduate program. The above facts are all undisputed. The parties dispute what occurred at a May 18, 1982, meeting between Mr. Stansberry and District Superintendent Robert Kinna.

Mr. Stansberry testified that he met with Mr. Kinna, informed him that his application for graduate school had been denied, and asked him what he should do. Mr. Stansberry further testified that Mr. Kinna responded by saying that it was fine to “continue with my sabbatical leave” and that “the purpose of the sabbatical leave was for a teacher to recharge his or her batteries.” Mr. Kinna testified that he did not make the above statements and that he was not informed by Mr. Stansberry that he had not been accepted to the graduate program. Mr. Kinna stated they had talked about sabbatical leave fringe benefits and salary.

In August 1982, Mr. Stansberry wrote Mr. Kinna and stated: “. . . I didn’t attend the university this summer; therefore, I won’t be advancing an additional step on the pay scale.” The purpose of this letter was to confirm the School District’s records on Mr. Stansberry’s current level of teacher education. The letter would not have placed the School District on notice that Mr. Stansberry would not be attending graduate school because the letter was only to inform the District which salary level to use in computing Mr. Stansberry’s salary during his sabbatical year. Had Mr. Stansberry completed the summer school course he would have been entitled to a small pay increase.

In February 1983, Mr. Kinna wrote Mr. Stansberry and requested documentation that he had pursued the intent of his sabbatical leave. On March 11, 1983, Mr. Stansberry wrote to Mr. Kinna and stated:

“I have instructed the Registrar at the University of Montana to send you a transcript of my work last quarter. Originally I moved to Helena to attend several classes at Carroll College, but my pocketbook couldn’t afford $98 per credit, so I have been working at a variety of jobs. However, I do plan to take several more classes before returning to Wolf Point. As I remember a person on a sabbatical leave can do three things: 1) return to school; 2) travel; and 3) work at a job related to his teaching field.
“Well, I have returned to school. Also I’ve traveled: Mexico, Texas, Colorado, Utah and Western Montana. Currently I’m working as a tutor in English, Social Studies and Math. I also work at outside sales and public relations.
“I hope this outline of my leave is satisfactory.”

The previous quarters’ work Mr. Stansberry referred to was a six-credit, graduate non-degree course which could not be applied to his MA or MFA. The School Trustees, the County Superintendent, and the State Superintendent all maintain that this was the first indication they had that Mr. Stansberry had not attended graduate school during his leave. In a letter dated March 15, 1983, Mr. Kinna informed Mr. Stansberry that:

“At a regular March 14, 1983, School Board meeting, the Trustees voted unanimously to terminate your teaching services for the 1983-84 school year.
“After reviewing the reason for granting your sabbatical leave and comparing it to your letter of March 11, 1983, no other decision could be reached.”

In a follow up letter regarding the reasons for the termination of his teaching services, Mr. Kinna stated that “[t]he stated reason for the sabbatical leave was in no way honored by Mr. Stansberry.”

Mr. Stansberry appealed the School Trustees’ decision to the County Superintendent of Schools, who affirmed the School Board. He then appealed to the State Superintendent of Public Instruction, who also affirmed the School Trustees. He then appealed the matter to the District Court which first remanded for additional fact gathering and then reversed the School Trustees, the County Superintendent, and the State Superintendent, and directed them to offer Mr. Stansberry a contract as a tenured teacher. The School Trustees appealed that decision to this Court. Mr. Stansberry cross-appealed requesting back pay and fringe benefits which the District Court did not award him.

I

Did the District Court err in reversing the decisions of the School Trustees, the County Superintendent, and the State Superintendent and directing that Mr. Stansberry be offered a contract?

A recent Montana case provides us with precedent which gives us guidance on this issue. In Yanzick v. School District No. 23, Lake County Montana (1982), 196 Mont. 375, 641 P.2d 431, a tenured school teacher’s contract was not renewed because he had allegedly demonstrated a lack of fitness by: (1) cohabitating with a female teacher; (2) using human fetuses in the classroom when discussing abortion; and (3) making statements to his classroom regarding his living arrangements with the teacher and the subject of abortion. The opinion pointed out that the record must show good cause for the termination of a teacher’s tenure and that in addition the conduct of the teacher, including a characterization that it is immoral, must be such as to directly affect the performance by the teacher of his duties as a teacher.

The Yanzick court’s reversal of the District Court upheld the non-renewal of the teacher’s contract. The Court held that the District Court and the Supreme Court may reverse the previous decision only if substantial rights of the teacher were prejudiced because the administrative findings and conclusions were:

“. . . clearly erroneous in view of the reliable, probative and substantive evidence on the whole record.”

Yanzick, 644 P.2d at 439 (citing Sections 2-4-704 and 711, MCA.)

In comparing the powers of the school district to terminate a teacher and the rights of a tenured teacher, the Yanzick court stated:

“While it is true that the trustees of a school district do have the power and duty to both employ a teacher and terminate a teacher under the appropriate circumstances, the rights of the teachers must also be kept constantly in mind. The tenure of a teacher is clearly both a valuable and a substantial right which cannot be taken away except for good cause. (Emphasis added.)”

Yanzick, 644 P.2d at 440. Therefore, the question before the County Superintendent, the State Superintendent, and the District Court was whether the school trustees had “good cause” not to renew Mr. Stansberry’s contract keeping in mind that Mr. Stansberry’s tenure was a substantial and valuable right which could only be taken away for good cause.

The District Court found that “the administrative findings and conclusions of both the County Superintendent and of the State Superintendent ‘were clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.’ ” Thus, there are two questions that this Court must answer in addressing this issue. First, did the District Court err-in finding that the County Superintendent’s findings were clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record? Second, did the District Court err in reversing the decisions of the County Superintendent and the State Superintendent based on an error of law?

It is well established that the District Court may not substitute its judgment for that of the County Superintendent as to the weight of the evidence on questions of fact. Yanzick, 644 P.2d at 438. In this case the District Court remanded to the County Superintendent for additional findings of fact on two questions — whether the May 18, 1982, meeting between Mr. Stansberry and Mr. Kinna put the School District on notice that Mr. Stansberry had not been accepted to graduate school and whether the August 18, 1982, letter placed the School District on notice that Mr. Stansberry was not planning to attend graduate school. After remand to the County Superintendent, both of these issues were specifically found in favor of the School District. These determinations were then apparently reversed by the District Court.

The primary factual controversy in this case concerns what was said during the May 18th meeting between Mr. Stansberry and Mr. Kinna. The County Superintendent found that Mr. Stansberry had failed to inform Mr. Kinna at the May 18th meeting that he had not been accepted to graduate school. In making that determination, the County Superintendent had the opportunity to listen to and observe the demeanor, conduct, and testimony of the witnesses. Testimony was given on both sides of the controversy and the County Superintendent found for the School District. We conclude that the District Court erred in substituting its judgment for that of the County Superintendent. As was stated in another administrative case:

“If there is substantial credible evidence on the record, the findings are not ‘clearly erroneous’... If the record contains support for the factual determinations made by the agency, the courts may not weigh the evidence. They are bound by the findings of the agency.” City of Billings v. Billings Firefighters (1982), 200 Mont. 421, 431, 651 P.2d 627, 632.

Substantial credible evidence supports the factual determinations made by the County Superintendent. Therefore, the District Court was bound by the County Superintendent’s findings. We conclude that the findings of the County Superintendent and State Superintendent were not clearly erroneous in view of the reliable, probative and substantial evidence and therefore reverse the District Court in its conclusion that such administrative findings were clearly erroneous.

The County Superintendent found that the August 18, 1982, letter from Mr. Stansberry to Mr. Kinna did not place the School District on notice that Mr. Stansberry was not planning to attend graduate school. The District Court did not specifically reverse this holding, but indicated the letter may have been notice to the School District that Mr. Stansberry was not planning on attending graduate school. Once again, we affirm the County Superintendent’s decision that the letter was not such notice. Substantial credible evidence in the record supports that determination.

The second question is whether the District Court erred in reversing the decisions of the County Superintendent and the State Superintendent based on an error of law. Section 2-4-704(2), MCA, provides in pertinent part:

“The Court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“(d) affected by other error of law.”

The District Court concluded that the County and State Superintendents erroneously referred to Section 20-4-207, MCA, instead of the proper statute, Section 20-4-204, MCA, and that Mr. Stansberry’s conduct did not constitute “good cause” for termination of his job. The District Court was correct in concluding that the County and State Superintendents erroneously referred to Section 20-4-207, MCA. Section 20-4-207, MCA, only applies to the dismissal of a teacher before the expiration of his or her contract. That statute is inapplicable to Mr. Stansberry’s case because his contract was simply not renewed, as opposed to a dismissal during the contract term. Yanzick held:

“We hold that Section 20-4-207, MCA, which sets forth the grounds upon which the trustees may dismiss a teacher before the expiration of his employment contract is not applicable to the termination of the services of a tenure teacher under the provisions of Section 20-4-203 and 20-4-204, MCA.”

Yanzick, 641 P.2d at 441.

In his first order, the County Superintendent concluded:

“5. Petitioner was properly given reasons for his termination and was granted a hearing pursuant to Section 20-4-204, MCA.
“6. Good cause existed for the termination of Petitioner and the Wolf Point Board of Trustees acted properly within their discretion.
ORDER
“On the basis of the foregoing Findings of Fact and Conclusion of Law the Hearing Officer finds that good cause existed for the termination of Petitioner.”

The State Superintendent’s first order stated that “[t]here was good and just cause for his termination.” Up to this point, the County and State Superintendents correctly applied the law. However, the State and County Superintendents then confused the issue and erred by referring to Section 20-4-207, MCA, the violation of “adopted policies”, and Mr. Stansberry’s purported dismissal before the expiration of his employment contract. For instance, the State Superintendent stated in his second order:

“14. That Petitioner did violate Wolf Point School Board’s policy on sabbatical leave when he did not pursue his sabbatical as outlined in his letter of October 18, 1981 and when he did not notify the school board of his change in plans and goals for his sabbatical leave.
“15. That Petitioner was properly dismissed before expiration of his employment contract for violation of the adopted policies of the school board.
“18. There is sufficient evidence in the record to support a finding that there was a violation of adopted board policy and that such violation is cause for dismissal under contract pursuant to Section 20-4-207, MCA, and within the prerogatives of the Board of Trustees of Roosevelt County High School District No. 45A.”

Although these references were made in error, we conclude this does not constitute reversible error. Mr. Stansberry’s substantial rights were not prejudiced as a result of the erroneous references. Mr. Stansberry was put on notice of the reasons for nonrenewal from the day he was informed his contract was not being renewed. The procedure followed by both the Board of Trustees and the County Superintendent followed the provision of Section 20-4-204, MCA. In addition, in the original orders, both the County Superintendent and the State Superintendent correctly referred to Section 20-4-204, MCA, and the good cause standard. We conclude that the erroneous reference to Section 20-4-207, MCA, in the subsequent orders did not prejudice Mr. Stansberry and does not constitute reversible error.

We will next turn to the “good cause” standard and its application to Mr. Stansberry’s contract nonrenewal. In Yanzick, the good cause standard was premised on whether the teacher’s conduct directly affected his duties as a teacher. Yanzick, 641 P.2d at 441. No contention is made in the present case that the conduct of Mr. Stansberry directly affected his duties as a teacher. The question is of course not related to his conduct in the classroom as was true in Yanzick. Nonetheless, based on Yanzick we conclude that good cause must be shown in order to terminate Mr. Stansberry’s contract because he was a tenured teacher.

We conclude that the breach of an agreement between a teacher and the School Trustees may constitute good cause for non-renewal of the teacher’s contract. The statutes do not give any specific guidance on what constitutes good cause under these circumstances. Each case therefore must be considered on its own facts to determine whether or not good cause has been established.

We conclude that the findings of fact establish an agreement between Mr. Stansberry and the School Trustees under which Mr. Stansberry would study toward an MA or MFA and improve his teaching qualifications in return for the sabbatical leave. Under the Professional Policies Agreement Mr. Stansberry was to be awarded 50 percent of his annual base salary which was to be paid upon completion of the granted sabbatical leave and upon beginning to teach in the system in the school year following his absence. The findings of fact establish there was no modification of that agreement.

The Professional Policies Agreement establishes that a sabbatical leave may be granted by the School Trustees upon application approval by the Teachers’ Association and the school system to “engage in full time study, travel, research, work experience or other professionally advantageous activity.” Here Mr. Stansberry was found to have applied by a letter in which he stated that if accepted he intended to pursue either an MA or an MFA in English, concentrating in creative writing. The correct application procedure was followed in this case.

Clearly an agreement under which Mr. Stansberry, an English teacher, would gain credits towards an MA or an MFA would be a professionally advantageous activity so far as the School Trustees are concerned. Clearly a significant or substantial benefit would result from compliance with the agreement. The failure of Mr. Stansberry to comply with that agreement therefore eliminated a substantial benefit to the School Trustees. Based upon the wording of the Professional Policies Agreement, we may properly conclude the benefit to the School Trustees was the primary reason for the approval of the sabbatical leave. In doing so, we note that this is the first teacher in the Wolf Point system to have been granted such a sabbatical leave. The breach of the agreement by Mr. Stansberry deprived the school district of an essential part of the bargain which it had made in the agreement. We conclude that the breach of an agreement which resulted in such a deprivation of benefit to the school district constituted good cause for nonrenewal of his contract.

We agree with the findings of fact and conclusions of law made by the County Superintendent in his original order:

“FINDINGS OF FACT
“3. Petitioner applied for Sabbatical Leave on October 18, 1981 to ‘pursue either a MA or MFA degree in English, concentrating in Creative Writing’. Source: Joint Exhibit 1.
“4. The school board voted to grant Petitioner’s leave based on the representation that he would pursue a graduate degree. Source: Bar-tel testimony; Respondent’s Exhibit 3.
CONCLUSIONS OF LAW
“2. Petitioner violated his agreement with the School Board when he failed to pursue the full course of study that was the basis for this leave.
“3. Petitioner violated Wolf Point School Board Policy when he failed to pursue the full course of study that was the basis for his leave.
“4. By failing to attend graduate school and pursue either a MA or MFA in English Petitioner violated his professional responsibilities as a teacher.
“5. Petitioner was properly given reasons for his termination and was granted a hearing pursuant to Section 20-4-204, MCA.
“6. Good cause existed for the termination of Petitioner and the Wolf Point Board of Trustees acted properly within their discretion.”

Based upon these facts, we affirm the conclusion reached by the County Superintendent that good cause existed for refusal to renew Mr. Stansberry’s contract. Accordingly, we reverse the District Court.

II

Did the District Court err by not directing the School Board to pay Mr. Stansberry back pay and retroactive fringe benefits?

We need not address this issue since we have reversed the District Court in effect reinstating the County Superintendent’s decision that Mr. Stansberry should not be offered a contract as a tenured teacher.

We reverse the District Court, and affirm the decision of the State Superintendent that Mr. Stansberry’s nonrenewal was based on good cause.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON and GULBRANDSON concur.

MR. JUSTICE SHEEHY,

dissenting:

I dissent from the wrongful refusal to renew the teaching contract of this tenure teacher.

Under our statutes teachers are accorded a good many powers and responsibilities, and some substantial rights. Foremost among the rights, and perhaps the most cherished, is the right of tenure. First granted, as far as my research goes, in 1913 (Section 801, Chapter 76, Laws of 1913), for nearly 75 years it is a right that has been continuously reenacted, fiercely guarded by the teachers, and protected by this Court:

“A teacher’s tenure is a substantial, valuable and beneficial right which cannot be taken away except for good cause. State ex rel. Saxtorph v. District Court (1954), 128 Mont. 352, 275 P.2d 209.”

Though the original enactment provided tenure to a teacher upon the second annual teaching contract, Section 20-4-203, MCA, its effect at the time that the matters related to this action took place was that whenever a teacher “has been elected by the offer and acceptance of a contract for the fourth consecutive year of employment by a district” the teacher became a “tenure teacher” (not “tenured teacher”; legislators and perhaps educators feel no compunction in using a noun for an adjective.)

Under the statutes prevailing and applicable here, Section 20-4-204, MCA, provided that if the trustees of a school district resolved not to reelect a teacher for a coming teaching year, the district had to notify the teacher of the termination in writing before April 1 of the last contract year. The statute did not state reasons upon which such lack of reelection might be based. However this Court inserted the requirement of “good cause” in Saxtorph, supra and we reaffirmed that position in Yanzick v. School District No. 23, Lake County, Montana (1982), 196 Mont. 375, 641 P.2d 431.

The majority have cited Yanzick at several points, but they have neglected a critical part of that decision in Yanzick, where we said:

“In view of our reversal of the District Court, it is necessary that we review the record in some detail. We have already indicated that the record must show good cause for the termination of the teacher’s tenure. In addition, the conduct of the teacher, including a characterization that it is immoral, must be such as to directly affect the performance by the teacher of his duties of a teacher. (Emphasis supplied.)”

196 Mont. 392; 641 P.2d 441.

Nothing in the record before us, the same record that was before the County Superintendent, the State Superintendent, and the District Court, indicates that the ability of Stansberry to teach was affected in the slightest degree by the brouhaha arising out of the sabbatical leave. District Judge Henry Loble determined that we had set out in Yanzick a true test for the non-reelection of a tenure teacher for cause, and ruled accordingly.

More than that, District Judge Loble made a fact finding in this case which is clearly correct, and as such is binding on us. (Rule 52(a), M.R.Civ.P.) The District Court sat in review of proceedings before the County Superintendent and then the State Superintendent of Education. As such he was bound by the standards of review in Section 2-4-704. He obviously determined that he should reverse the decision of the State Superintendent and of the County Superintendent because their administrative findings and conclusions were clearly erroneous in view of the reliable, probative substantial evidence on the whole record, and arbitrary and capricious.

The District Court determined that the County Superintendent and the State Superintendent had proceeded in terminating Stansberry as a tenure teacher under the wrong statute. They had utilized the provisions of Section 20-4-207, MCA, which applies only to the termination of a tenure teacher during the contract year, and not the statute applying to the reelection of a teacher for the coming year. Incorrectly relying on 20-4-207, the administrators had determined that Stansberry’s contract should not be renewed for “violation of the adopted policies” of the school district. There was no such adopted policy.

Another factual dispute involved whether Stansberry had informed Superintendent Kinna on May 18, 1982 that his application for graduate study at the University of Montana had been rejected. Stansberry wanted to know from Kinna if he was to “stick around, for the following year or just what I should do.” Stansberry said that Kinna’s response was “fine, to continue with his sabbatical leave and that the purpose of a sabbatical leave was for a teacher to recharge his or her batteries.” In examining the record, the District Court found that the Superintendent was uncertain as to what was said at the May 18 meeting, that the Superintendent could not recall making the statements attributed to him by the petitioner and that Kinna did not deny that he had made the statements, although if he had he probably would recall it.

The District Court felt that this point was important to be resolved by a more specific finding and remanded the cause to the County Superintendent for a further determination as to what was actually said at the meeting of May 18. The County Superintendent convened another hearing on this point and then, two years later, Superintendent Kinna’s memory became crystal clear. He denied the statements.

On August 18, 1982, Stansberry wrote Superintendent Kinna to give him his current address in Missoula and to advise him “I didn’t attend the University this summer; therefore I won’t be advancing an additional step on the pay scale.” Stansberry also said, “It has been a good summer. Besides attending my 20th year high school reunion, I recently returned from a trip to Mexico.”

Kinna and the school district and now this Court determined that this letter did not sufficiently advise them that Stansberry was not pursuing a Master’s or other degree on his sabbatical. It is difficult to see what other conclusions could be drawn from the letter.

The findings of the District Court should be agreed to by this Court. On the whole record, the District Court was correct:

“Stansberry, apparently believing he had the permission of Superintendent Kinna after he had been advised that he wasn’t accepted to graduate school, went ahead with his sabbatical leave and did accomplish some of the requirements of sabbatical leave as set forth in the Professional Policies Agreement of the Board and the Union which represents the teachers. He engaged in study as a student at the University of Montana; he read some worthwhile books; he traveled; he worked; he took a six-credit course at the University of Montana; and he engaged in other professionally advantageous activity, such as being a tutor to junior high school students. The conduct for which he was terminated did not rise to the seriousness of “good cause” which must be shown before he could he refused employment as a tenured teacher. It should be kept in mind that he has not only lost his job, but that his professional career is placed in serious jeopardy.

In determining that the County Superintendent and the State Superintendent were clearly erroneous in view of the whole record, the District Court found:
. . The County Superintendent and the State Superintendent proceeded under the wrong statute after remand. Both before and after remand they made a finding concerning a violation of “adopted policies” which was properly considered only under a statute that has no relation to the present proceeding. The conduct of Petitioner Stansberry did not rise to the level of “good cause” for which the School Board might lawfully terminate his status as a tenured teacher. The School Board in this instance had never granted a sabbatical leave before. Except as might be stated in the Professional Policies Agreement, there was no “adopted policy” of the Trustees as concerns sabbatical leave . . . .”

Thus we have in this case a situation where the County Superintendent and the State Superintendent found that Stansberry had breached the adopted policies of the board, policies which did not exist. The majority here have resorted to a different ground, a “breach of an agreement between the teacher and a school trustee” where no such agreement existed. The only agreement existing between this teacher and the school district is that formed by his union, agreed to by the District, which provides that in sabbatical leave, a teacher may return to school, travel, or work at a job relating to his teaching field.

The principle of tenure for teachers deserves a higher interpretation of good cause than is advanced here. I would affirm the District Court. Because of the majority opinion. I do not discuss the cross-appeal of the teacher.

MR. JUSTICE HUNT concurs in the foregoing dissent.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. EMIL TILLY, Defendant and Appellant.
    No. 86-542.
    Submitted on Briefs March 12, 1987.
    Decided May 26, 1987.
    737 P.2d 484.

      Theodore P. Cowan, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, John Paulson, Asst. Atty. Gen., Helena, Robert Deschamps, III, Co. Atty., Courthouse, Missoula, Karen Townsend & Betty Wing, Deputy Co. Attys., Missoula, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Emil Tilly appeals his conviction for sexual intercourse without consent from the Fourth Judicial District, Missoula County.

We affirm.

Two issues are presented for our review:

1. Did the District Court err when it denied defendant Tilly’s motion to dismiss for lack of speedy trial?

2. Did the District Court abuse its discretion when it denied defendant Tilly’s motion to depose the prosecution’s main witness?

Defendant and appellant Tilly was charged by information on November 23, 1985, with sexual intercourse without consent in violation of Section 45-5-503(3)(a), MCA. The information and supporting affidavit accused defendant of engaging in sexual relations with his daughter, C.T., a minor.

Following a week-long jury trial in September 1986, Tilly was found guilty of sexual intercourse without consent. Tilly was sentenced to thirty years in the Montana State Prison with ten years suspended.

At trial the defendant’s children, Charles, C.T., and P.T. testified that defendant had intermittently engaged in sexual relations with C.T. for approximately eight years. C.T. testified that defendant’s sexual advances continued until C.T. was removed from defendant’s custody on February 22, 1985. The victim’s brothers, P.T. and Charles Tilly, testified that on a number of occasions, they witnessed the defendant and C.T. engaged in sexual acts. P.T. and Charles also testified that defendant and C.T. regularly slept together from February 1980 to February 22, 1985.

While awaiting trial, defendant was incarcerated with bond set at $10,000. During his pretrial incarceration, defendant wrote twelve “love letters” to his daughter. In defendant’s love letters, defendant requested C. T. to marry him and not to “hurt him” with testimony.

Defendant’s love letters were in violation of court orders dated December 12, 1985, and February 28, 1986, ordering defendant to cease all contact with his daughter. After repeatedly violating these orders, defendant was charged with tampering with a witness, in violation of Section 45-7-206(l)(a), MCA. This charge was eventually dismissed by motion of the State following defendant’s sexual intercourse without consent conviction.

Issue I

Did the District Court abuse its discretion when it denied defendant’s motion to dismiss for lack of a speedy trial?

The right to a speedy trial is guaranteed by both the United States Constitution and the Montana Constitution. U.S. Const., Amend. VI; 1972 Mont. Const., Art. II, Sec. 24. In Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the United States Supreme Court adopted a four-factor balancing test in which conduct of both the prosecution and the defendant are weighed in order to determine whether there has been a denial of defendant’s right to speedy trial. The four factors to be considered are: (1) length of the delay; (2) reason for the delay; (3) defendant’s assertion of the right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. See, State v. Palmer (Mont. 1986), [223 Mont. 25,] 723 P.2d 956, 958, 43 St.Rep. 1503, 1505, citing State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-164.

In the case at hand, 312 days elapsed between defendant’s arrest on October 28, 1985, and the commencement of defendant’s trial on September 5, 1986. A 312-day delay triggers a speedy trial inquiry. State v. Palmer, 723 P.2d at 958, 43 St.Rep. at 1505; State v. Chavez (Mont. 1984), [213 Mont. 434,] 691 P.2d 1365, 1370, 41 St.Rep. 2219, 2222. The delay gives rise to a presumption that defendant has been deprived of his right to speedy trial. Palmer, 723 P.2d at 958, 43 St.Rep. at 1505. Further, the delay shifts the burden to the State: (1) to give a reasonable excuse for the delay, or (2) to show that defendant was not prejudiced by the delay. State v. Ackley (1982), 201 Mont. 252, 256, 653 P.2d 851, 853. If both excuse and prejudice exist, these factors must be balanced. Ackley, 201 Mont. at 256, 653 P.2d at 853.

In the case at bar, C.T., a material witness, was temporarily unavailable to testify due to emotional instability. During defendant’s pretrial incarceration, C.T. was undergoing psychiatric therapy at the Montana Youth Treatment Center in Billings. Her illness was due in large part to defendant’s unlawful acts. We hold the State produced a reasonable excuse for delay due to the absence of a material witness. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.

The second Barker factor is reason for delay. [I]t must be determined what percentage of the delay is chargeable to the defendant and this much time must accordingly be deducted from the total delay.” State v. Freeman (1979), 183 Mont. 334, 339, 599 P.2d 368, 371. Defendant Tilly is responsible for much of the delay. Prior to arraignment, defendant requested a substitution of judge. Defendant has this right of substitution. In the balancing test, the exercise of this right will not necessarily be heavily weighed against the defendant. Defendant’s arraignment was then moved from November 18, 1985, to December 12, 1985 (24-day delay). On December 13, 1985, defendant waived his right to speedy trial and requested a continuance over the current jury term. The defendant was informed the next available jury term was April 1, 1986 (108-day delay). On February 19, 1986, defendant requested that a public defender be appointed. On March 3, 1986, defendant’s newly-appointed counsel requested a psychiatric evaluation to determine whether defendant was suffering from mental disease or defect. On that date, defendant again waived his right to speedy trial. On March 13, 1986, defendant requested and was granted an extension of thirty days to file motions and memoranda in preparation for the March 1986 omnibus hearing (12-day delay).

On March 20, 1986, the State moved for a continuance beyond the April jury term due to the mental and physical illness of C. T., a material witness. C.T.’s guardian ad litem concurred with the State’s motion for continuance. Also, on March 20, 1986, defendant moved to dismiss this action for denial of right to speedy trial. The District Court denied defendant’s motion to dismiss. The court ruled that defendant’s trial date would be set when C.T., the victim and material witness, was able to testify.

On May 21, 1986, defendant filed with this Court a petition for writ of habeas corpus and supervisory control. This Court denied defendant’s petition on July 9, 1986 (48-day delay).

The State filed an amended information on August 8, 1986, charging defendant with tampering with a witness in violation of Section 45-7-206, MCA. The District Court severed this charge (Count II) from the sexual intercourse without consent change (Count I), on August 28, 1986.

Trial on Count I commenced on September 5, 1986, and concluded on September 10, 1986. The jury returned a verdict of guilty to the charge of sexual intercourse without consent.

A thorough review of the record reveals that defendant was not denied his right to a speedy trial. Defendant’s numerous delays overlap one another, making an accurate accounting difficult. However, it is clear that defendant caused the following delays:

(1) substitution of judge, arraignment postponed until 12/18/85 ..................24 days
(2) waiver of speedy trial until April jury calendar.............................108 days
(3) 30-day extension to file brief.......................12 days
(4) petition for supervisory control and habeas corpus (petition denied)...................48 days
TOTAL — 192-day delay

The State is not charged with speedy trial delay when a material witness with “valid reason” is not available. Barker v. Wingo, 407 U. S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. We hold a valid reason exists when a material witness is unavailable due to defendant’s unlawful acts. C. T. was unavailable in excess of thirty days. However, only thirty days may be deducted from the State’s delay in order to prevent a “time overlap.” Accordingly, 222 days are deducted from the 312 days defendant spent while awaiting trial. State v. Freeman (1979), 183 Mont. 334, 599 P.2d 368, 371.

The next application of Barker is defendant’s assertion of the right. Defendant waived his right to speedy trial on December 12, 1985, and March 6, 1986. Defendant’s waiver served to extinguish his right to trial until the next (April) jury term. However, defendant made a timely assertion of his right to a speedy trial by raising the issue on April 6, 1986. State v. Harvey (Mont. 1986), [219 Mont. 402,] 713 P.2d 517, 43 St.Rep. 46, 50; State v. Stewart (1975), 168 Mont. 385, 543 P.2d 178.

The final Barker factor is “prejudice to the defendant.” Barker identified three interests of a defendant which may be prejudiced by a delay in coming to trial. The interests are: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety of the accused; and (3) to limit the possibility the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.

Applying these interests to the facts of the instant case, we hold defendant Tilly was not prejudiced by the State’s delay in bringing his cause to trial. First, defendant repeatedly violated the December 12, 1985, and February 28, 1986, orders of the trial court not to contact the victim. Defendant, in essence, showed the court he could not be entrusted to leave the emotionally disturbed sixteen-year-old alone. Therefore, defendant’s pretrial incarceration was an appropriate alternative. Secondly, nothing in the record indicates that defendant was unduly “anxious and concerned.” One may expect a certain amount of anxiety and concern when accused of a crime. State v. Chavez (Mont. 1984), [213 Mont. 434,] 691 P.2d 1365, 41 St.Rep. 2219, 2224. Finally, we find no prejudice in defendant’s presentation of his defense.

Accordingly, we hold defendant was not denied his right to speedy trial.

Issue 2

Did the District Court abuse its discretion when it denied defendant Tilly’s motion to depose the prosecution’s main witness?

Defendant contends Sections 46-15-201 and 46-15-204(l)(c), MCA, stand for the proposition that a deposition of an indisposed material witness is mandatory in order to prevent violation of defendant’s right to a speedy trial.

Section 46-15-201(1), MCA, provides in pertinent part:

“When depositions taken. (1) If it appears that a prospective witness may be unable to attend or prevented from attending a trial . . . and that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice, the court . . . may upon motion and notice to the parties order that his testimony be taken by deposition . .

Section 46-15-201, MCA, is obviously a discretionary statute. State v. Austad (1982), 197 Mont. 70, 641 P.2d 1373, 1386. The trial court found, following the March 20, 1986, hearing, that a material witness, C.T., was not immediately available for deposition or trial. The court granted the State’s motion to continue the trial into the July trial calendar. Defendant, on July 24, 1986, was granted an interview with the victim. Further, defendant at all times, was given complete access to the State’s files. During trial, C.T. was subject to defendant’s cross-examination. Defendant was given every opportunity to prepare an adequate defense. State v. Austad, 197 Mont. at 94, 641 P.2d at 1386.

We hold the trial court did not abuse its discretion when it denied defendant’s motion to depose a material witness.

Affirmed.

MR. JUSTICES HARRISON, WEBÉR, SHEEHY, GULBRANDSON and HUNT concur.


author: MR. JUSTICE SHEEHY

text:
    MICHAEL MARTIN, Petitioner and Appellant, v. BOARD OF LABOR APPEALS, Employment Security Division, Montana State Department of Labor & Industry, and Northern Montana Hospital, Respondents and Respondents.
    No. 87-55.
    Submitted on Briefs April 9, 1987.
    Decided May 26, 1987.
    737 P.2d 488.

      Steven L. Bunch, Montana Legal Services, Helena, for petitioner and appellant.
    Rebecca L. Smith, Dept, of Labor & Industry, Helena, Bruce E. Swenson, Havre, for respondents and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Michael Martin appeals an order of the Twelfth Judicial District, Hill County, dismissing without prejudice his petition for judicial review of a Board of Labor Appeals decision on the grounds that he failed to prosecute the action. We reverse and remand.

Michael Martin was hired as a patient aid at Northern Montana Hospital in May, 1982. Sixteen months later, in August, 1983, he was discharged for failure to complete his work assignments. He applied for unemployment compensation, but his application was denied by the Board of Labor Appeals (Board) in September. The Board affirmed its denial in December, 1983.

Martin filed a petition on January 17, 1984, for judicial review in the Twelfth Judicial District Court in Havre. Northern Montana Hospital answered and the Board filed a motion to dismiss, which was denied. The Board then responded to Martin’s petition for judicial review, at the same time filing a notice stating:

“That pursuant to Section 39-51-2410, MCA, that the Department [of Labor] shall be deemed to be a party in any judicial action involving an appeal of a Board of Labor Appeals administrative decision. That neither the Department nor the Board have any direct interest in this action and, therefore, will not actively participate therein.”

This notice was dated March 6, 1984.

Over two years later, on June 18, 1986, the Department and Board filed an amended notice of participation stating that the March 6, 1984 notice was withdrawn and that the following notice was to be substituted in its place:

“1. The Board and the Department shall continue to be a party in this matter, and compliance with the requirements for filing and service pursuant to Rule 5, M.R.Civ.P. is requested. Accordingly, all notices, pleadings and orders should be transmitted to the Board and the Department.
“2. They do not intend to become actively involved in this matter, but reserve the right to do so if any party raises an issue of importance to the Department or Board.
“3. In the event that the petitioner fails to prosecute this matter within a reasonable period of time as set forth in Rule 41(b), M.R.Civ.P.; or fails to respond as set forth in Uniform District Court Rule No. II, the Board and Department may move for dismissal or summary ruling as appropriate.”

In the period between March, 1984, when the Department and Board filed their first notice, and June, 1986, when the second notice was filed, the administrative record was transcribed and submitted to the District Court and the case was treated by both parties as appropriate for summary judgment. On December 6, 1984, Martin had submitted a motion for summary judgment and motion for judgment on the record along with a brief in support of the petitions. The Hospital responded with its motion and brief on January 18, 1985. Both Martin’s and the Hospital’s briefs were served on counsel for the Board. Though the Board was notified the case had been fully briefed and presented to the court for disposition, it did not respond.

When the case had not been decided by the summer of 1985, Martin’s attorney contacted the Hospital’s attorney and on August 30, 1985, it was stipulated that the case would be submitted on the briefs. The Hospital’s attorney informed Martin’s attorney that it was not the local practice for attorneys to move for oral argument on summary judgment; rather, if the District Court desired oral argument, it was the court’s practice to set oral argument hearing dates.

The case sat submitted, but dormant, until December, 1986. On December 12, 1986, seven months after filing its amended order of participation, the Department of Labor filed a motion to dismiss, supported by an affidavit, for failure to prosecute. No prior notice of this motion was given by the Department to the other parties in the action.

December 12 was a Friday. A copy of the motion was received by Martin’s counsel the following Monday, December 15. On Tuesday, December 16, the District Court ordered Martin’s petition for judicial review dismissed without prejudice, based on the Department’s motion for dismissal for failure to prosecute. The form of the December 16 order had been supplied to the court along with the motion to dismiss.

Martin’s counsel submitted a briefed motion for reconsideration of the dismissal on December 19, which was denied on December 24, 1986. Notice of entry of judgment was filed January 2, 1987.

The sole issue raised on appeal is whether the District Court abused its discretion in granting the motion to dismiss for failure to prosecute.

Rule 41(b), M.R.Civ.P. is controlling. It states “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.”

The parties here do not argue the facts or procedure, but only the diligence with which Martin pursued his case. Martin contends he was under no obligation to advance the case or otherwise request the court to rule on his petition. The District Court was responsible for the delay, he asserts, hence the Department’s and Hospital’s remedy to spur action should have been a petition for a writ of mandate. The Department and Hospital respond that Martin failed to diligently pursue his case and that a motion to dismiss was their most responsible alternative in pushing the case to its conclusion. For their purposes, they explain, a motion to dismiss was a more satisfactory alternative for resolution of the case than a writ of mandate.

There is inherent power in a district court, in the exercise of sound discretion, to dismiss an action for failure to prosecute. See Jangula v. United States Rubber Co. (1967), 149 Mont. 241, 425 P.2d 319 and cases cited therein. However, the trial court’s discretion is not without bounds. “[I]t must be borne in mind that courts ‘exist primarily to afford a forum to settle litigable matters between disputing parties.’ ” Brymerski v. City of Great Falls (1981), 195 Mont. 428, 431-432, 636 P.2d 846, 848. Further, the policy favoring the resolution of a case on its merits is more compelling than the underlying policy of Rule 41(b) of preventing unreasonable delays. Brymerski, 195 Mont. at 432, 636 P.2d at 849. Courts recognize the need to balance judicial efficiency against a plaintiff’s right to meaningful access to the judicial system.

Failure to prosecute simply means that a plaintiff has failed to exercise due diligence in bringing his case to conclusion. Shackleton v. Neil (Mont. 1983), [207 Mont. 96,] 672 P.2d 1112, 40 St.Rep. 1920. The mere lapse of time does not justify dismissal if the plaintiff has not been lacking in diligence, since expedition for its own sake is not the goal. Alexander v. Pacific Maritime Assoc. (9th Cir. 1970), 434 F.2d 281.

In the instant case, the District Court’s dismissal of Martin’s action is simply not justified by the circumstances. The petition for judicial review was filed in the District Court in January, 1984. Martin made his motion for summary judgment and motion for judgment on the record in December, 1984. Martin’s motions were fully briefed at that time. The Hospital’s brief in support of its motion to dismiss was filed in January, 1985. The parties were thus asking for a legal decision based upon the record. When the District Court did not act by August 30, 1985, the Hospital and Martin filed a stipulation that the case was fully submitted on the briefs. All that remained was a decision by the District Court. The parties were still waiting for the District Court’s decision ten months later, when the Board filed its amended notice of participation in June, 1986. Seven months later, in December, 1986, the Board filed its motion to dismiss. Four days later the motion was granted, when Martin had but one day’s notice that the motion was filed.

It was as much the responsibility of the Hospital and the Department, as it was Martin’s, to bring to the District Court’s attention the fact that the pending motions had not been ruled upon. Yet the effect of the Department’s motion to dismiss was to cast all of the responsibility upon Martin.

We hold that the District Court abused its discretion by failing to provide Martin with meaningful access to the judicial system. The dismissal was inappropriate. We therefore reverse the District Court’s dismissal and remand for further proceedings.

Reversed and remanded.

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


text:
    HI-LINE RADIO FELLOWSHIP, Plaintiff and Appellant, v. DEPARTMENT OF REVENUE of the State of Montana, Defendant and Respondent.
    No. 86-469.
    Submitted on Briefs Jan. 11, 1987.
    Decided May 27, 1987.
    737 P.2d 886.

      Douglas B. Kelley, Helena, for plaintiff and appellant.
    Larry G. Schuster, Dept, of Revenue, Helena, for defendant and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Hi-Line Radio Fellowship appeals an order of the Twelfth Judicial District Court, Hill County, affirming the State Tax Appeal Board’s denial of tax exemption status for appellant. We remand to the State Tax Appeal Board (STAB) with instructions to rehear this matter for further development of the record, and a determination of whether the property is exempt under the educational or public charity exemptions.

Appellant Hi-Line Radio Fellowship (Hi-Line) is a non-profit corporation which operates a radio broadcasting business in Havre, Montana. Respondent is the Department of Revenue of the State of Montana (DOR). The present dispute concerns whether Hi-Line’s radio broadcasting equipment should be exempt from state taxation.

On January 30, 1984, Hi-Line filed an application with DOR requesting property tax exemption on the basis that Hi-Line’s property and equipment was used for religious purposes. Section 15-6-201(l)(b), MCA. DOR denied Hi-Line’s tax exemption application of April 2, 1984. On February 28, 1985, Hi-Line submitted an additional application for property tax exemption, claiming the property was used for educational purposes. Section 15-6-201(l)(c), MCA. DOR denied the application on March 26, 1985. On April 18, 1985, Hi-Line appealed the DOR decision to STAB.

On August 5, 1985, Hi-Line was notified that the STAB hearing was set for August 27, 1985, in Havre. By letter dated August 20, 1985, counsel for Hi-Line requested a continuance due to conflict on the hearing date. STAB denied the request for continuance, and the hearing was held as scheduled.

On October 31, 1985, STAB entered findings of fact, conclusions of law, and order which denied Hi-Line’s application for tax exemption. STAB concluded the subject property was not used exclusively for educational purposes as required by Section 15-6-201(l)(c), MCA. Hi-Line appealed STAB’s decision to District Court. Section 15-2-303, MCA. Following briefing and oral argument by the parties, the District Court entered its order dated July 16, 1986, affirming STAB’s decision.

Hi-Line filed a motion for reconsideration and a motion for specific findings of fact and conclusions of law. By order dated August 14, 1986, the District Court denied both motions. Hi-Line appeals and raises the following issues:

1) Whether STAB erred in refusing to continue the August 27, 1985, hearing?

2) Whether the District Court erred in failing to make specific findings of fact and conclusions of law?

3) Whether Hi-Line is entitled to a property tax exemption?

Hi-Line contends STAB abused its discretion by refusing Hi-Line’s request for a continuance. STAB sent Hi-Line notice on August 5, 1985, that Hi-Line’s appeal hearing would be held in Havre on August 27, 1985. On August 20, 1985, counsel for Hi-Line requested a continuance due to a scheduling conflict. STAB denied the request.

The hearing was held as scheduled. Hi-Line was not represented by an attorney. Hi-Line asserts it was prejudiced by not having ar attorney present and that STAB offered no reasonable explanation for denying a continuance. STAB contends it gave proper notice. Section 15-2-301(1), MCA. STAB also contends that tax appeal hearings are informal and an attorney is not necessary because the rules of evidence and discovery are not binding.

There is no statutory provision specifically authorizing grants of continuance by STAB. Due to STAB’s appellate powers, however, we find STAB has the inherent authority to grant a continuance upon good cause shown and in furtherance of justice.

A careful review of the record reveals that Hi-Line was woefully unprepared to present its case. As a result, this Court is asked to review STAB’s interpretation of Section 15-6-201, MCA, based on a record that is incomplete and inadequate. Hi-Line requested a continuance fourteen days after it received notice of the August 27, 1985, hearing. STAB presented no evidence, other than its compliance with minimum notice requirements, to support its denial of Hi-Line’s August 20, 1985, motion for continuance. We hold STAB did not act in the “furtherance of justice” when it denied Hi-Line’s good faith motion for a continuance. Accordingly, we will not review this matter without further development of the record. We remand to STAB and order STAB to hold a full hearing.

The second issue is whether the District Court erred in failing to make specific findings of fact and conclusions of law. The District Court order affirming STAB’s order stated the following; “The Court finds the order of denial is sustained by good and sufficient evidence, and concludes the order of denial should be affirmed . . .” Hi-Line filed a motion for specific findings of fact and conclusions of law pursuant to Rule 52(a), M.R.Civ.P. which was denied by the District Court.

Rule 52(a), M.R.Civ.P. reads in part:

“In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon ...”

This issue requires discussion of Sections 15-2-303, 2-4-703 and 2-4-704, MCA.

Judicial review of contested cases decided by State Tax Appeal Board are in part governed by Section 15-2-303, MCA, which provides:

“(4) Notwithstanding the provisions of 2-4-704(1), the court may, for good cause shown, permit additional evidence to be introduced.”

Section 2-4-703, MCA, relating to judicial review of contested cases under the “Montana Administrative Procedure Act,” provides:

“If, before the date set for hearing, application is made to the court for leave to present additional evidence . . . the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court. [Emphasis supplied.]”

Section 2-4-704, MCA, establishes the standard of judicial review of contested MAPA cases:

“(1) The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency not shown in the record, proof thereof may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
“(2) 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 . . .”

In judicial review of contested cases, the court, as authorized by Section 15-2-303(4), MCA,.may, on its own initiative based on the record upon which judicial review is requested or upon motion of a party, find good cause and permit additional evidence to be introduced. If the court grants such permission, the court must then make and file as part of the record findings of fact and conclusions of law. Rule 52(a), M.R.Civ.P.

Judicial review of contested MAPA cases, other than those under Section 15-2-303, which arise under Title 2, Chapter 4, Part 7, of the Montana Administrative Procedure Act, as to receipt of additional evidence, are controlled by Section 2-4-703, MCA. Section 2-4-703 requires application prior to the date set for hearing for leave of court to present additional evidence.

The standard of review that applies to MAPA contested cases, Section 2-4-704(1), MCA, requires that the review shall be confined to the record. When the court has, under Section 2-4-703, MCA, allowed additional evidence to be presented, it will be presented to the agency and not to the court.

However, when additional evidence is presented during review of a STAB decision, such evidence may be introduced before the court. Findings of fact and conclusions of law are then required to be made by the court. Rule 52(a), M.R.Civ.P.

In this case, the District Court did not permit or receive additional evidence. The court’s decision was based upon the STAB record, written and oral arguments. Therefore, Rule 52(a) does not apply in this case and written findings and conclusions by the court are not required.

The final issue is whether STAB properly denied Hi-Line’s request for property tax exemption based on Section 15-6-201, MCA. We are remanding this case for further development of the record due to STAB’s refusal to grant Hi-Line’s motion for a continuance; accordingly, we will not review this issue.

Remanded.

MR. JUSTICES HARRISON, WEBER, GULBRANDSON, SHEEHY and HUNT concur.