author: Justice William E. Hunt, Sr., JUSTICE NELSON CHIEF JUSTICE TURNAGE,

text:
    UNITED STATES OF AMERICA, Plaintiff and Respondent, v. ROBERT ALLAN BROOKS, Defendant and Appellant.
    No. 94-220.
    Submitted October 4, 1994.
    Decided February 24, 1995.
    52 St.Rep. 113.
    270 Mont. 136.
    890 P.2d 759.

      For Appellant: Edmund F. Sheehy, Jr. (argued), Cannon & Sheehy, Helena.
    For Respondent: Sherry Scheel Matteucci, United States Attorney, Robert J. Brooks (argued), Assistant United States Attorney, Butte.
    For Amicus Curiae: Lois Adams and David L. Ohler, Legal Counsel, Department of Corrections & Human Services, Helena.
   Justice William E. Hunt, Sr.,

delivered the Opinion of the Court.

Defendant Robert Allan Brooks argues in the Missoula Division of the United States District Court, District of Montana, that he was not deprived of his civil and constitutional rights to possess a firearm while under the supervision of the Montana Department of Corrections Probation and Parole Division. The Federal Court certified the question to this Court for consideration and decision. We hold that under the facts of this case, defendant was not deprived of his civil and constitutional rights.

On May 9, 1994, the Federal Court filed an order in this Court certifying for consideration and decision the following question:

Whether a criminal defendant was deprived of his civil and constitutional rights to possess a firearm while he was on probation under the following circumstances:
a. the Montana sentencing court in his felony judgment of conviction did not impose a condition of probation that the defendant could not possess a firearm, but rather ordered him to comply with all terms and conditions established by the Probation and Parole Division of the Department of Corrections; and
b. at the time of the sentencing, the Department of Institutions of the State of Montana had in effect an administrative rule establishing conditions of probation that included a condition denying probationers the right to own, possess, or control a firearm.

By order filed May 17,1994, this Court accepted jurisdiction of the certified question and stated that “[t]his Court will decide the certified question on the basis of the facts forwarded by the said [Federal] District Court....” Those facts are as follows:

On January 6, 1989, the Lake County District Court adjudged Brooks guilty of the offense of theft. Brooks received a five-year suspended sentence. The District Court did not impose a condition of probation that Brooks could not possess a firearm. However, as a condition of probation, the District Court placed Brooks under the jurisdiction of the Probation and Parole Division of the Department of Corrections (Probation Division) and ordered that he comply with all terms and conditions established by the Probation Division.

Brooks signed a standard Probation Division form containing the conditions of his probation and parole. The form provides in pertinent part:

8. WEAPONS: You shall not own, possess or be in control of any firearm or deadly weapon as defined by state statute. The Federal Gun Control Act of 1968, prohibits any person who is under indictment or has been convicted of a felony to possess or carry a firearm while engaged in any act or sporting activity such as hunting.

Brooks was subsequently indicted in Federal Court on different charges. Count I of the indictment alleged that Brooks was a felon in possession of a firearm, in violation of federal law. Prior to trial, Brooks moved to dismiss Count I on the ground that, as a matter of law, he had not been “convicted of a crime punishable for a term exceeding one year,” as that term is defined by federal law. The Federal Court entered an order reserving ruling on the issue pending further proof by the government. At trial, the Federal Court found that the government put forth sufficient proof, and Brooks’ motion to dismiss was denied. The jury returned guilty verdicts on both counts of the federal indictment. Brooks has filed a motion for a new trial, again arguing that he does not fit within the federal definition. The Federal Court has not rendered sentence and judgment pending this Court’s resolution of the certified question.

At the time Brooks was convicted in state district court, the Department of Corrections had in effect, pursuant to 10.7.1101(8), ARM, a standard condition forbidding probationers from possessing firearms. The Federal Court heard testimony at trial that the Probation Division was required to apply the standard condition to every probationer. Since the Probation Division was required by administrative rule to impose the “no firearm” condition in every case, the Federal Court “assumed that the sentencing judge was aware of the regulation.and thus, as a prerequisite to imposing the condition to abide by the conditions of the Probation Division, determined that Defendant’s right to possess a firearm should be suspended.”

Our function in construing and applying statutes is to effect legislative intent. State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201, 204; State ex rel. Roberts v. Public Service Com’n of State of Montana (1990), 242 Mont. 242, 246, 790 P.2d 489, 492. In determining that intent, we look first to the plain meaning of the words used in the statute. Stansbury v. Lin (1993), 257 Mont. 245, 249, 848 P.2d 509, 511; Roberts, 790 P.2d at 492. If the Legislature’s intent can be determined from the plain meaning of the statute’s words, we will look no further. Neuhausen, 833 P.2d at 204. It is only when the intent cannot be determined from the language of the statute that we will examine the legislative history. Roberts, 790 P.2d at 492.

The plain language of § 46-18-801(1) and (2), MCA, specifically vests in the sentencing judge the power to deprive a convicted offender of civil or constitutional rights:

(1) Conviction of any offense shall not deprive the offender of any civil or constitutional rights except as they shall be specifically enumerated by the sentencing judge as necessary conditions of the sentence directed toward the objectives of rehabilitation and the protection of society.
(2) No person shall suffer any civil or constitutional disability not specifically included by the sentencing judge in his order of sentence.

(Emphasis added.) The plain language of these subsections also requires any such deprivation to be “specifically enumerated” and “specifically included” in the sentencing order.

Whether the Probation Division is required by administrative rule to impose the “no firearm” condition in every case, or whether the state district court was aware of the standard Probation Division conditions, does not change the clear mandate of § 46-18-801, MCA. The statute explicitly requires the sentencing judge to specifically enumerate and specifically include any civil or constitutional deprivation in the sentencing order. Imposing a condition of sentence which assigns a convicted offender to the supervision of the Probation Division does not meet the statutory requirements.

Because the language of § 46-18-801(1) and (2), MCA, is clear on its face, we do not look beyond that language to interpret the statute. Neuhausen, 833 P.2d at 204.

In answer to the certified question, we hold that, because the sentencing court did not specifically enumerate and specifically include in the sentencing order that Brooks was prohibited from possessing a firearm, the Probation Division of the Montana Department of Corrections and Human Services could not and did not deprive him of that right as a condition of probation.

JUSTICE TRIEWEILER and THOMAS C. HONZEL, District Judge, sitting for Justice John C. Harrison concur.

JUSTICE NELSON

specially concurring:

I concur that the defendant was not deprived of his civil or constitutional right to carry a firearm by the inclusion of that prohibition in his probation agreement or by Department of Corrections rule 20.7.1101(5), ARM. Section 46-18-801(1) and (2), MCA, is clear on that point; the power to deprive an offender of a civil or constitutional right or to impose a civil or constitutional disability as a condition of sentence is reserved to the district court and requires specific enumeration by the sentencing judge.

However, in light of that conclusion and in fairness to probation officers who must continue to supervise probationers and parolees, many of whom are under supervision for violent crimes or for offenses committed with weapons, I believe that it is necessary that we also point out that it does not follow from our opinion that probationers and parolees may now begin carrying weapons contrary to the provisions of their probation agreements.

The exercise of the civil and constitutional right to bear arms found in the Second Amendment of the United States Constitution and at Article II, Section 12 of the Montana Constitution, like any civil liberty or constitutional right, may be waived or restricted with the agreement and consent of the person to whom the right inures. As a sentencing condition the court, here, required the defendant to report to the probation department, to sign rules and conditions of probation and to set up a reporting schedule with the probation officer. The defendant did that, and he signed a probation agreement pursuant to which he agreed and consented to certain restrictions on his civil liberties and constitutional rights during the term of the agreement, including, among others, a restriction on his right to possess weapons. The defendant agreed and consented to those restrictions in order to gain the benefit of probation rather than remain incarcerated.

The weapons (and other) restrictions imposed under the defendant’s probation agreement remain valid and fully enforceable because the defendant agreed, for a certain period of time, to certain limitations on his exercise of constitutional rights and civil liberties of which he had not been deprived. This interpretation is consistent with dicta in the recent case of U. S. v. Wryn (9th Cir. 1991), 952 F.2d 1122. In that case the defendant was convicted in federal court of conspiracy to distribute and possession with intent to distribute LSD, based in part, on his state probation officer’s discovery of that drug in his house during a warrantless search. On appeal, the Ninth Circuit noted that the Montana Department of Institutions administrative rule and the defendant’s probation agreement specifically required court approval for the probation officer’s warrantless search of the probationer’s residence without his consent. The court held that since there had not been court approval for the warrantless search, the search was invalid. In so holding, however, the court observed that,

had the warrantless search of the probationer Wryn’s home been authorized by either Montana state law or by Wryn’s probation agreement we would consider the search “reasonable” under the fourth amendment.

Wryn, 952 F.2d at 1124. (Emphasis added.)

In the instant case, while the sentencing court did not deprive the defendant of his civil and constitutional right to bear arms under § 46-18-801(1) and (2), MCA, the probation agreement which he signed restricted his exercise of that right, and that restriction, accordingly, remains valid and fully enforceable under the terms of the agreement.

JUSTICE GRAY concurs in the foregoing special concurrence.

CHIEF JUSTICE TURNAGE,

dissenting:

I respectfully dissent.

This Court’s interpretation of § 46-18-801, MCA, and its application to the District Court’s judgment of the felony conviction of Robert Allen Brooks, Lake County Cause No. DC-88-72, dated January 6, 1989, is wrong.

The District Court did impose a condition of probation that Brooks could not possess a firearm. The District Court judgment in relevant part stated:

1. That the Defendant be placed under the jurisdiction of the Adult Probation and Parole Division of the State of Montana Department of Institutions and that he comply with all of the terms and conditions established by said Division.
10. That the Defendant shall report to the Probation Department immediately after the release from the Court for the purpose of signing rules and conditions of probation, and to set up a reporting schedule with a Probation Officer. [Emphasis added.]

Brooks on January 12, 1989, in the presence of his probation and parole officer, signed a document entitled, “Conditions of Probation and Parole,” which in relevant part provided:

8. WEAPONS'. You shall not own, possess or be in control of any firearm or deadly weapon as defined by state statute. The Federal Gun Control Act of 1968, prohibits any person who is Tinder indictment or has been convicted of a felony to possess or carry a firearm while engaged in any act of sporting activity such as hunting.

AGREEMENT BY PROBATIONER/PAROLEE

... I understand that this Probation/Parole is granted to and accepted by me, subject to the conditions, limitations, restrictions stated herein, and with the knowledge that the Board of Pardons, Sentencing Court, or the Department of Institutions have the power, at anytime, in case ofviolation of the conditions, limitations and restrictions of Probation or Parole to cause my detention and/or return to prison. I have read, or have had read to me, the foregoing conditions of my probation I parole. I fully understand them and I agree to abide by and strictly follow them, and fully understand the penalties involved should I in any manner violate the foregoing conditions, limitations and restrictions. [Emphasis added.]

The majority of this Court correctly states that this Court’s function in construing and applying statutes is to effect legislative intent but from that point they go astray.

The legislature will be amazed at what we conclude to be its intent in this case. By what I submit to be a hypertechnical interpretation of § 46-18-801, MCA, arrived at without fully discussing or considering the relevant parts of the District Court judgment and the agreement by probationer/parolee Brooks and with no case law citation from any other jurisdiction that provides persuasive precedent, the majority has reached a wrong conclusion.

The Supreme Court of Arizona reached a logical and persuasive conclusion in a probation case by allowing incorporation by reference of conditions of probation. State of Arizona v. Stotts (Ariz. 1985), 695 P.2d 1110. Appellant Stotts was convicted of felony aggravated assault. In his sentencing order, the trial judge set out three conditions for probation:

“(1) That he be returned through the Washington State Parole hold to enter Washington Correctional Center;
“(2) That he be accepted at the Western State Hospital for evaluation and inpatient treatment, and
“(3) That he follow all the conditions required by the [Arizona] Probation Department.”

Stotts, 695 P.2d at 1116. The Arizona Supreme Court went on to conclude that Stotts was bound by conditions of probation which were imposed on him after sentencing, stating:

Appellant received no written copy of any conditions of probation at the time of his sentence. In November of 1978, however, the State of Washington applied for an Interstate Compact with Arizona. In this application for Interstate Compact that he signed, appellant agreed to make his home at Western State and to return to Arizona when duly instructed by proper authorities. Appellant also agreed to comply with the conditions of probation as fixed by both Arizona and Washington. Subsequently, in April of 1979, appellant signed and apparently received a copy of an Interstate Compact with Conditions of Probation. He signed and apparently received more conditions in July of 1981. His probation was revoked because of a violation of one of these subsequent written conditions.
Though we emphasize that all probationers should receive written conditions at the time probation is imposed, we do not find the failure to do so in this case invalidated the probation revocation. A combination of four factors justifies this conclusion: first, though appellant’s original “unwritten probation” was, upon imposition, unenforceable by revocation, it was valid; second, the subsequent furnishing with appellant of written conditions and his signing of those conditions cured the probation’s unenforceability; third, the subsequent written conditions were not more burdensome than the unwritten conditions; and, fourth, there were no due process violations in basing revocation upon the subsequent written conditions.

Stotts, 695 P.2d at 1116.

Clearly, in the present case, the District Court’s judgment properly incorporated by reference paragraph 8 of the Conditions of Probation and Parole, a condition lawfully adopted under the Montana Administrative Procedures Act.

The majority’s unduly restrictive interpretation and application of § 46-18-801, MCA, renders it in direct opposition to other code sections relating to probation and parole. The legislature has specifically granted the Department of Corrections and Human Services the authority to adopt rules which govern parolees, probationers, and inmates on supervised release. Section 46-23-218, MCA, states:

Authority of board to adopt rules. The board may adopt any other rules it considers proper or necessary with respect to the eligibility of prisoners for parole, the conduct of parole hearings, and conditions to be imposed upon parolees. [Emphasis added.]

Inmates on supervised release are likewise subject to conditions which are not set out verbatim by the sentencing judge. See § 46-23-405, MCA (authorizing the Department of Corrections and Human Services to establish rules governing inmates on supervised release programs). Like conditions of probation, conditions placed on parolees and individuals on supervised release programs are ultimately the result of that individual’s criminal conviction.

Under the majority’s interpretation of § 46-18-801, MCA, such conditions cannot be delegated to the Department of Corrections and Human Services, but rather must be set by the sentencing judge. Such an interpretation defeats the purpose of those statutes which authorize the Department of Corrections and Human Services to set conditions.

The majority correctly points out that we must construe statutes to effect the legislature’s intent. In light of the fact that the legislature empowered the Department of Corrections and Human Services to establish reasonable conditions of parole, probation, and supervised release, the legislature certainly did not intend § 46-18-801, MCA, to nullify this power.

By incorporating by reference the conditions of probation, the sentencing judge properly restricted Brooks’s right to possess a firearm. Such an interpretation is consistent with § 46-18-801, MCA, and does not frustrate those statutory provisions which empower the Department of Corrections and Human Services to set reasonable conditions of probation, parole and supervised release.

The majority holding that the district courts of Montana are prohibited from incorporating by reference reasonable and rational probation and parole rules lawfully adopted to the Montana Administrative Procedures Act, when those conditions are agreed to and signed by the probationer/parolee, will work irreparable harm to the management of an overburdened probation system. Judicial proceedings will follow this opinion challenging what most certainly are many district court judgments of felony convictions and provisions relating to parolees.

I would answer the certified question by stating that Brooks was lawfully denied the right to possess a firearm during the period of his probation for a felony conviction.

JUSTICE WEBER joins in the dissent of Chief Justice Tumage.


source: Caselaw Access Project

author: JUSTICE NELSON JUSTICE WEBER JUSTICE NELSON

license: Public Domain

text:
    STATE OF MONTANA, EX REL., BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Relator, -v-THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY, and HONORABLE JOHN M. MCCARVEL Respondents.
    No. 94-100.
    Submitted October 25, 1994.
    Decided March 2, 1995.
    52 St.Rep. 118.
    270 Mont. 146.
    891 P.2d 493.

      For Relator: Kurt W. Kroschel (argued), Dennis Nettiksimmons, Kroschel & Yerger, Billings.
    For Plaintiff: C. Marshall Friedman, St. Louis, Missouri, Lynn D. Baker, Newton McCoy (argued), Hartelius, Ferguson & Baker, Great Falls (Iddings).
    For Third-Party Defendants: Don M. Hayes, Herndon, Hartman, Sweeney & Halverson, Billings (DuPont de Nemours & Co.); L.D. Nybo, Nybo, Conklin & LeVeque, Great Falls (SSI/Mobley Co.).
    For Amici: Randy Cox, Boone, Karlberg & Haddon, Missoula, Sue Ann Love, Great Falls (Montana Defense Trial Lawyers); Patricia O’Brien Cotter, Cotter & Cotter, Great Falls; Lawrence Anderson, Great Falls (Montana Trial Lawyers Association); Robert M. Knight, Helena S. Maclay, Knight, Maclay & Masar, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

This case comes before us on Relator Burlington Northern’s (BN) application for a writ of supervisory control. BN requests that we order the District Court to dismiss, without prejudice, Plaintiff Anthony Iddings’ (Plaintiff) Federal Employer’s Liability Act (FELA or the Act) complaint seeking monetary damages for an injury occurring in the course and scope of his employment with BN. BN contends that dismissal is appropriate under the doctrine of forum non conveniens. We hold that dismissal on those grounds is not warranted and, accordingly, decline to issue the requested writ.

ISSUES

Four general issues are raised by the parties and are discussed by the parties and by amici. We restate these issues as follows:

I. Did the District Court err in failing to dismiss this case on the grounds of forum non conveniens because of the substantial increase in imported FELA cases in Montana?

II. Has the Montana Supreme Court applied the doctrine of forum non conveniens in non-FELA cases, and if so, must the doctrine now be applied in FELA cases?

III. Is it appropriate to apply the doctrine of forum non conveniens to the instant case?

IV. What is the effect of the Privileges and Immunities Clause on this litigation?

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff’s claim arose out of an incident in May of 1989, in Wyoming when he was allegedly injured in the course and scope of his employment with BN by being exposed to herbicides from spraying operations at the rail yard. Plaintiff is neither a citizen nor a resident of Montana.

Plaintiff filed his FELA complaint under 45 U.S.C. § 51, et. seq., in the Eighth Judicial District Court, Cascade County, Montana, on April 27, 1992. On May 26, 1992, BN filed a motion to, alternatively, dismiss the complaint on the basis of the doctrine of forum non conveniens, or to change the place of trial.

By stipulation, BN’s motion was stayed until the U.S. Supreme Court decided Burlington Northern v. Ford (1992), 504 U.S. 648, 112 S.Ct. 2184, 119 L.Ed.2d 432, which related to the railroad’s motion for a change of place of trial based on equal protection grounds. The parties, nevertheless, agreed that discovery in the instant case would proceed. In May 1993, BN brought a third party complaint against E.I. DuPont de Nemours & Company, Inc. (DuPont) and SSI/Mobley Company, Inc. (SSI), contending negligence in the spraying operation which allegedly injured Plaintiff. In the course of their defense, DuPont and SSI joined BN’s motion to dismiss Plaintiff’s complaint for forum non conveniens and, subsequently, also filed their own motion to dismiss BN’s third party complaint and amended third party complaint on the same grounds. BN’s motion to dismiss Plaintiff’s complaint for forum non conveniens was heard on January 26, 1994, and on February 15,1994, the District Court entered its written order denying the motion. On March 7, 1994, BN filed a notice of application for writ of supervisory control. We accepted original jurisdiction, ordered briefs and, on October 25, 1994, heard oral argument. The Montana Trial Lawyers Association, Montana Defense Trial Lawyers and Robert M. Knight and Helena S. Maclay filed briefs, amicus curiae.

DISCUSSION

I.

Did the District Court err in failing to dismiss this case on the grounds of forum non conveniens because of the substantial increase in imported FELA cases in Montana?

BN contends that the District Court erred by not exercising its discretion to grant its motion to dismiss, because of what it claims is evidence of a substantial increase in the filing of out-of-state FELA cases in Montana, especially in Cascade County. As authority, BN cites, among others, our decision in Haug v. Burlington Northern R. Co. (1989), 236 Mont. 368, 770 P.2d 517, for the proposition that:

[t]he common law doctrine oí forum non conveniens allows a court to “resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” Under the doctrine, a court may decline to exercise its jurisdiction when it believes that the action may be more appropriately and justly tried elsewhere.

Haug, 770 P.2d at 521, citing Gulf Oil Corp v. Gilbert (1947), 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed 1055, 1062. Moreover, BN argues that, “a court is free to decide the availability of the principle of forum non conveniens in FELA suits according to its own local law,” providing that the local law is not applied in a discriminatory fashion, citing Missouri v. Mayfield (1950), 340 U.S. 1, 5, 71 S.Ct. 1, 8, 95 L.Ed. 3.

Plaintiff, on the other hand, maintains that filings of non-resident FELA cases in the State of Montana since 1988, have neither overburdened the court system in this state nor “clogged” the dockets of Cascade County so as to call for the implementation of forum non conveniens. Additionally, Plaintiff maintains that BN’s statistics are deceptive, and that many of the cases listed as filed since 1988, are cases wherein the “plaintiffs are actually residents of the State of Montana,... or have substantial contacts with the State of Montana, in that they were treated by physicians located within the state.”

The issue of trial courts’ refusal to apply the doctrine of forum non conveniens in FELA cases filed in Montana has been considered by this Court on a fairly regular basis over the last three and one-half decades — largely because our prior cases have indicated a willingness to reexamine this issue if there was a substantial increase in such filings. Because there was no evidentiary hearing before or findings by the District Court on BN’s data, we take no position on the validity or interpretation of the numbers and statistics offered by the Railroad. Notwithstanding, we conclude that the numbers, whether accurate or inaccurate, are not dispositive of this Issue and that the time has come to clarify, once and for all, the law to be applied henceforth in Montana with regard to the application of the doctrine of forum non conveniens in FELA cases filed in this State.

To put our decision in context, a review of our prior case law is necessary. We first substantively considered this issue in Bracy v. Great Northern Railway Company (1959), 136 Mont. 65,343 P.2d 848. There, the plaintiff, injured in Washington, filed his FELA case in district court in Silver Bow County, Montana. Defendant’s appeal included a claim that the district court erred in failing to dismiss plaintiff’s complaint on forum non conveniens grounds because the accident occurred in Washington and all the witnesses resided there. Defendant requested that we “settle the question as to whether the doctrine has application in this state.” Bracy, 343 P.2d at 850. Expressing doubt as to whether the doctrine had any application in Montana, we declined to resolve this “academic question,” and simply observed that whether the doctrine applies in a given case rests in the discretion of the trial court and that on the basis of the affidavits and counter-affidavits filed, the trial court did not abuse its discretion in denying defendant’s motion to dismiss on forum non conveniens grounds. Bracy, 343 P.2d at 850.

A few years later, this issue again surfaced in State ex rel. Great Northern Railway v. District Court (1961), 139 Mont. 453, 365 P.2d 512. That case, factually akin to Bracy, was also filed in Silver Bow County and came before this Court as an original proceeding from the trial court’s denial of the railroad’s motion to dismiss the injured employee’s FELA action on forum non conveniens grounds. Great Northern, 365 P.2d at 512. As additional support for its position, the Railroad argued that the district court’s failure to dismiss non-resident FELA cases “has resulted in an increasing number of cases being filed in Silver Bow County, constituting a hardship upon both the Railroad Company and the [county] taxpayers ...” Great Northern, 365 P.2d at 513. Without analyzing plaintiff’s contentions which, among others, included FELA choice of venue and state public policy/“open court” arguments, we acknowledged our ability to accept or reject the forum non conveniens doctrine and noted its purpose in requiring litigants to avail themselves of the trial forum in their residence. Great Northern, 365 P.2d at 513. Having those considerations in mind, but declining to “establish the rule,” we concluded that the numbers of cases filed in Silver Bow County did not indicate a trend of importing non-resident FELA litigation. However, the numbers argument having been raised, we warned that we would reexamine this issue if there were substantial increases in filings of those type of cases. Great Northern, 365 P.2d at 514.

LaBella v. Burlington Northern, Inc. (1979), 182 Mont. 202, 595 P.2d 1184, followed eighteen years later. That case involved an appeal from a Lewis and Clark Comity district court order dismissing on forum non conveniens grounds, the FELA complaint of a non-resident worker injured in the state of Washington. While the district judge concluded that, under Bracy and Great Northern, it was within his discretion to dismiss plaintiff’s complaint because of forum non conveniens, we framed and resolved the issue on appeal much more narrowly. “The issue on appeal is whether a District Court of this state may dismiss a FELA action because it deems itself an inconvenient forum. We hold that it may not.” LaBella, 595 P.2d at 1185.

Facing squarely for the first time the relation of forum non conveniens to FELA actions, we discussed at length the remedial purposes of the Act along with its legislative history and interpretive precedent under federal case law requiring liberal construction of the Act in favor of the injured worker. LaBella, 595 P.2d at 1186-87. We also acknowledged federal authority to the effect that “Notwithstanding the strong policy favoring plaintiffs’ forum selection” under the Act, such actions were transferable under 28 U.S.C. § 1404(a), and that a state court could dismiss a FELA case on forum non conveniens grounds “[according to its own notions of procedural policy,” citing Ex parte Collett (1949), 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed 1207, 10 ALR 2d 921, and Mayfield. LaBella, 595 P.2d at 1187.

While recognizing our ability to adopt the doctrine of forum non conveniens in non-resident FELA cases, we, nevertheless, unequivocally declined to do so. We first pointed out that this state’s public policy, dictated by Article II, Section 16, of our Constitution, requires that our courts “shall be open to every person, and speedy remedy afforded for every injury to person, property or character.” We noted that constitutional right was unrestricted by reference to citizenship or residence and that any such qualification could not pass muster under the Privileges and Immunities Clause of Article IV, Section 2 of the United States Constitution. LaBella, 595 P.2d at 1187. We then cited § 49-1-204, MCA, which mandates equality of rights and duties for United States citizens who are not citizens of Montana; and we found “highly persuasive” the policy favoring the injured railroad worker’s choice of forum.

From that analysis we were compelled “to hold the doctrine of forum non conveniens inapplicable to FELA suits filed in Montana District Courts ."LaBella, 595 P.2d at 1187. Moreover, we pointed out that we had not been confronted with the application of forum non conveniens in non-FELA cases and that our decision neither denied nor recognized the existence of the doctrine “in cases where there is no strong policy favoring plaintiffs’ forum selection.” LaBella, 595 P.2d at 1187. Having said all that, we, inexplicably, again mentioned our warning from Great Northern concerning reexamination of this issue in the event of a substantial increase in this type of litigation. LaBella, 595 P.2d at 1187.

In the same year we handed down our decision in LaBella, 1979, we decided one other case involving the forum non conveniensfFELA. issue. In Bevacqua v. Burlington Northern, Inc. (1979), 183 Mont. 237, 598 P.2d 1124, a non-resident FELA case filed and subsequently dismissed in Cascade County on forum non conveniens grounds, we reversed the district court citing LaBella and Montana’s “open door” (open court) policy. Bevacqua, 598 P.2d at 1125.

Similarly, eight years later in State ex rel. Burlington Northern v. Dist. Ct., Eighth Jud. Dist. (1987), 229 Mont. 325, 746 P.2d 1077, another non-resident FELA case filed in Cascade County, the relator again raised the issue of county taxpayer funding and judicial resources being utilized in cases where the plaintiff’s injury occurred in another state and where counsel and the fact witness had no connection with Montana. Burlington Northern, 746 P.2d at 1078-79. Referencing our decisions, in Bracy, Great Northern, LaBella and Bevacqua, and acknowledging that filing out-of-state FELA cases in Montana may constitute forum shopping, Burlington Northern, 746 P.2d at 1080, we, nevertheless, rejected BN’s statistics as failing to demonstrate a “substantial increase” in FELA cases “so as to show an intolerable burden on this state in maintaining its ‘open door’ policy and meeting the obvious intention of the federal statute [supporting the FELA plaintiff’s ability to choose his forum].” Burlington Northern, 746 P.2d at 1080.

Finally, our most recent consideration of this issue was in two consolidated cases filed in Cascade County. Haug v. Burlington Northern and Lay v. Burlington Northern (1989), 236 Mont. 368, 770 P.2d 517 (the consolidated cases being cited as Haug). While both FELA cases, Haug and Lay were factually somewhat different than the previously discussed cases as those all involved the plaintiff being injured out-of-state. In Haug, both plaintiffs were injured in Montana — Hang in Park County and Lay in Lewis and Clark County. Haug, 770 P.2d at 518. In arguing that Montana’s venue statutes required that the two cases be transferred to the respective comities where the injuries occurred, BN maintained that Cascade County, having no connection with either lawsuit, was not a proper place for trial. Haug, 770 P.2d at 518.

We disagreed. First, overruling McAlear v. Kasak (1987), 225 Mont. 113, 731 P.2d 908, we determined that §§ 25-2-115, 25-2-118(2), 25-2-122 and 25-2-201, MCA (1985), permitted plaintiff the choice of filing his tort claim against the non-resident defendant, BN, in either the county where the tort was committed or in any county of this state. Haug, 770 P.2d at 519. Next, treating the issue as one of first impression, we held that our statutory interpretation was also applicable to FELA cases. Haug, 770 P.2d at 520. In so holding, we again acknowledged that venue in FELA cases is properly left to the practice of the forum, but, notwithstanding, we focused on the policy arguments expressed in LaBella and Montana’s “open door” policy in reaching our conclusion. Haug, 770 P.2d at 520.

We then addressed the issue of whether the trial court is empowered to change the place of trial of FELA actions in light of the doctrine of forum non conveniens and the Montana venue statutes. Haug, 770 P.2d at 521. By way of dicta, we first observed that the doctrine had been “codified” in § 25-2-201(2) and (3), MCA. Haug, 770 P.2d at 521. Noting that our previous discussions of forum non conveniens in FELA cases had not made reference to our statutory scheme or to the “codification of that doctrine,” we again however, focused on the rationale and policies of our prior cases — i.e., Montana’s “open court” or “open door” policy, the policy favoring the FELA plaintiff’s choice of forum, the policy of liberally interpreting the Act to effect its remedial purposes — and the failure to demonstrate any substantial increase in imported FELA litigation. Haug, 770 P.2d at 521. Determining that our “foregoing case analysis under the doctrine of forum non conveniens applies equally to the provisions allowing a court to change the place of trial in § 25-2-201, MCA,” we then held that “in FELA cases neither the doctrine of forum non conveniens, nor the right to change the place of trial contained in § 25-2-201, MCA, is available.” Haug, 770 P.2d at 522.

From a close reading of our cases starting with Bracy and concluding with Haug, several clearly identifiable rules and rationale emerge as regards claims of improper or inconvenient venue in FELA actions filed in Montana:

First, we have acknowledged that under federal case law, venue in FELA actions filed in state court is left to the practice of the forum state and that a state is not compelled to entertain FELA cases brought in its courts, but can reject, as it may accept, the doctrine of forum non conveniens for all causes of action begun in its courts, providing that it does so on a nondiscriminatory basis. See, Great Northern, LaBella, Burlington Northern and Haug.

Second, we have neither accepted nor rejected the application of forum non conveniens in non-FELA cases and we have neither denied nor recognized the existence of that doctrine in cases where there is no strong policy favoring plaintiff’s forum selection. See, Bracy, LaBella, Burlington Northern and Haug. In that regard BN argues that we have accepted the doctrine of forum non conveniens in non-FELA cases, citing Application of Bertelson (1980), 189 Mont. 524, 617 P.2d 121 (child custody action); Columbia Falls Alum. v. Hindin I Owne/Engelke (1986), 224 Mont. 202, 728 P.2d 1342 (contract action); and Simmons v. State (1983), 206 Mont. 264, 670 P.2d 1372 (negligence action). We disagree. None of these cases dealt with the application of forum non conveniens, but instead, dealt with the issue of the propriety of jurisdiction. Montana has yet to apply the common law doctrine of forum non conveniens in any non-FELA case, and, obviously, this case does not resolve that issue one way or the other.

Third, we have uniformly refused to allow application of the common law doctrine of forum non conveniens in FELA cases, whether the injury occurred in Montana or in some other state and regardless of the residence or citizenship of the plaintiff. See, Bracy, Great Northern, LaBella, Bevacqua, Burlington Northern, and Haug.

Fourth, while we have seemingly left the door open to reexamine the application of forum non conveniens to non-resident FELA cases filed in Montana in the event of substantial increases in filings of those types of cases, (See, Great Northern, LaBella, Bevacqua, Burlington Northern and Haug), we have, at the same time, uniformly rejected application of the doctrine to such cases because:

1. under federal case law FELA is to be given a liberal construction in favor of injured railroad employees so that it may accomplish its humanitarian and remedial purposes; See, LaBella, Bevacqua, and Haug;

2. we have found “highly persuasive” the policy favoring the injured worker’s choice of forum, (See, LaBella, Burlington Northern and Haug), even if that choice of forum involves forum shopping, Burlington Northern, 746 P.2d at 1080. (Moreover, while not discussing the application of the doctrine of forum non conveniens to FELA cases, but consistent with that prior case law, we recently reemphasized our commitment to “the strong national policy favoring a plaintiff’s selection of forum in actions brought under the Federal Employer’s Liability Act.” Ford v. Burlington Northern R. Co. (1991), 250 Mont. 188, 197, 819 P.2d 169, 175 affirmed 504 U.S. 648, 112 S.Ct. 2184, 119 L.Ed.2d 432);

3. Montana maintains an “open court” or “open door” policy, in that our Constitution requires that our courts shall be open to every person, unrestricted by residence or citizenship, and a speedy remedy shall be afforded for every injury to person, property or character. (See, LaBella, Bevacqua, Burlington Northern, and Haug); and

4. section 49-1-204, MCA, mandates that United States citizens who are not Montana citizens are, nevertheless, entitled to the same rights and duties as citizens of this State. (See, LaBella).

Fifth, even under Montana’s venue statutes, we have rejected the application of the doctrine of forum non conveniens in FELA cases. Haug, 770 P.2d at 522. In that regard, while dicta in Haug states that the doctrine of forum non conveniens was “codified” in § 25-2-201, MCA, Haug, 770 P.2d at 521, we do not reaffirm here that such statement is necessarily correct. Suffice it to say, that while § 25-2-201(2) and (3), MCA, clearly authorize a district court to change the place of trial from one Montana county to another Montana county— an interpretation consistent with the actual facts before this Court in Haug and Lay — we do not construe that statute as providing authority for a trial court to dismiss altogether a case filed in Montana on the premise that, theoretically, it can more conveniently be tried in some other state or jurisdiction outside of the Montana court system.

In summary, while fully recognizing our ability to accept or to rej ect the nondiscriminatory application of the doctrine of forum non conveniens to non-FELA cases and to FELA cases, whether denominated as resident or non-resident, in light of the clear and unambiguous rationale of our prior case law discussed at length above, and notwithstanding our statements of apparent willingness to reexamine our refusal to apply the doctrine of forum non conveniens to FELA cases based on the numbers of out-of-state filings in Montana, we conclude that our paramount constitutional and statutory mandates and the policy reasons which we have repeatedly cited for denying application of the doctrine in FELA cases must, once and for all, take precedence over lesser concerns of alleged overcrowding of local court dockets.

The clear requirements of Article II, Section 16 of Montana’s Constitution and of § 49-1-204, MCA, and the important policy reasons supporting a liberal construction of the Act in favor of the injured worker and the FELA plaintiff’s choice of forum simply cannot be denigrated to a secondary position because of the impact — whether theoretical or real — of the filing of these types of cases on the dockets of local Montana courts. When balanced against the mandates of our Constitution, our statute and the policies underpinning the Act which are adopted and expressed in our own cases spanning three and one-half decades, applying forum non conveniens to FELA actions because of docket overcrowding is simply non sequitur. That we opened such a door in the first place and then allowed it to remain open for so long, speaks not so much to the merits of the argument, as it does to our simple failure to concede its obvious infirmity.

We again hold, as we clearly did in LaBella, that a district court in this state may not dismiss a FELA action because it deems itself to be an inconvenient forum. We again hold, as we clearly did in Haug, that a district court in this State is not empowered to change the place of trial of a FELA action based on the doctrine of forum non conveniens, whether the common law variety or, arguendo, as codified in § 25-2-201, MCA. Moreover, in light of the mandates of Article II, Section 16 of our Constitution, § 49-1-204, MCA, and the policies underpinning the Act which are adopted and expressed in our own cases spanning more than thirty years, we will not, henceforth, reexamine this issue on the basis of the numbers of out-of-state FELA cases filed in Montana’s district courts.

In light of our discussion above and our holding on Issue I., we conclude that it is unnecessary to further address Issues II., III., and IV.

Accordingly, we decline to issue a writ of supervisory control ordering the Eighth Judicial District Court to dismiss Plaintiff’s complaint on the basis of forum non conveniens, and BN’s application for such a writ is DENIED.

JUSTICES GRAY, HUNT, TRIEWEILER and DISTRICT JUDGE KELLER, sitting in place of Justice John C. Harrison, concur.

JUSTICE WEBER

dissents as follows:

I respectfully dissent from the majority opinion. I am particularly concerned with the breadth of the opinion and its elimination of the ability of district courts to dismiss a FELA action on a forum non conveniens theory.

The majority relies on LaBella. While LaBella did state that the district court in that case could not dismiss a FELA action because it deems itself an inconvenient forum, it did not make this determination binding under all future conditions. The majority has done that with its choice of wording:"... we conclude that the numbers, whether accurate or inaccurate, are not dispositive of this Issue and that the time has come to clarify, once and for all, the law to be applied henceforth ...” I do not agree with such a pronouncement.

In considering LaBella, we should look at the analysis in that case. In LaBella this Court went back to the 1907 message by President Theodore Roosevelt and discussed the 1910 Senate Committee report which sets forth an analysis that the LaBella Court suggested was still applicable. While the discussion of these historical messages was correct, I suggest the reason for the application of the principles is no longer present in Montana. President Roosevelt was greatly concerned about the safety of railway workers and the railroads’ lack of concern for the welfare and safety of its employees. Subsequent to that time, FELA was passed and affords significant protection to railroad workers. The conditions in Montana are no longer similar to those of eighty years ago. I therefore suggest that the rationale is actually outdated when considering railroads and their employees today.

While not discussing the change, LaBella points out that the federal court systems are no longer bound by the requirements of FELA in this context. That is because 28 U.S.C. 1404(a) was enacted in 1948 and provides:

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

As a result, the open court policy along the entire lines of the railroad as provided in FELA is no longer applied by the federal government. Had this case been filed in federal court in Montana, the Federal District Court had the discretion under § 1404(a) to transfer the case to Wyoming on the basis set forth in the statute, which is essentially a forum non conveniens theory.

While FELA has not been repealed by the Congress, 28 U.S.C. 1404(a) effectively neutralizes its provisions in this respect as to federal courts.

The majority mentions our Haug case. Haug held that in the event of a substantial increase of filings, the door was left open to reexamine the application of forum non conveniens to future non-resident FELA cases. The opinion here makes the determination for all future courts that an increase in the number of non-resident FELA cases is irrelevant and will never be considered. I question that we should attempt to make such a determination. It is the district courts which are in the position of considering the effect of the filing of non-resident FELA cases. In the event there are sufficient filings to impair the functioning of any of such courts, we should not presume to eliminate their capacity to apply the doctrine of forum non conveniens. Unfortunately the opinion completely dismisses the idea that the number of non-resident FELA cases could significantly impair the functioning of Montana courts. I do not conclude that our Montana Constitution requires that we maintain a court system which shall be at all times sufficient to allow the trial in this State of FELA cases from throughout the United States where there is no connection to the State of Montana other than the fact that the railroad runs through this State. I dissent from the majority opinion.

CHIEF JUSTICE TURNAGE concurs in the foregoing dissent.

JUSTICE NELSON

specially concurs as follows:

In view of certain statements made by the dissent, I feel compelled to make a response.

First, while the dissent seems to believe that, at some point in the future, the “numbers of cases” argument might become relevant, that ignores the fact that this argument was interjected into our case law as nothing more than an afterthought in the Great Northern case. We paid mere lip service to the argument in that case and have given nothing more than the most cursory lip service to the argument in every case in which it has been raised ever since. As our opinion points out, in every case dealing with the FELAI forum non conveniens issue, we have rejected application of the doctrine and, instead, have grounded our decision in the humanitarian and remedial policies of the Act, in the policy favoring the claimant’s choice of forum, on the open court provisions of Montana’s Constitution and on § 49-1-204, MCA. Those being the substantive grounds for our past decisions, it begs the question, “What if some future litigant does show that there is actually a ‘numbers’ problem?” Will that change the humanitarian and remedial policies underpinning the Act, the policy favoring the claimant’s choice of forum, the provisions of our Constitution or § 49-1-204, MCA? I submit that, absent some substantial change in federal law, in our State Constitution and in Montana’s statutory law, none of which are within the reach of this Court, the reasons why we have rejected application of the forum non conveniens doctrine in FELA cases for the last thirty years will be the same in the future, numbers or no numbers. Given the rationale for our past decisions and the current state of the law, the “numbers” argument is, in fact, irrelevant.

Second, that federal courts may transfer FELA cases between different federal courts in different states under the doctrine of forum non conveniens or under federal statutory law is not the issue. Montana has not adopted the common law doctrine of forum non conveniens in any case, FELA or non-FELA, and, the dicta in Haug notwithstanding, Montana does not have a forum non conveniens statute akin to 28 U.S.C. § 1404(a). While the dissent maintains that FELA has been effectively “neutralized” by Congress’ adoption of 28 U.S.C. § 1404(a) (a conclusion that, I suspect, may come as a shock to courts, litigants and practitioners), it is not clear why, how or under what authority this Court should apply federal statutory law applicable to federal cases in our State court proceedings. I am at a loss to understand why the federal forum non conveniens statute is even relevant to our inquiry here.

Third, and finally, I disagree with the dissent’s basic premise. Our opinion is not broad at all. We simply follow thirty years of clear and unequivocal precedent established in our own case law in stating, in effect, that we are taking a theory that was dead on arrival to begin with off of life support. If the dissent wants to keep reexamining this issue every few years, then I submit that it is obligated to explain why the policies underpinning the Act and our prior cases have suddenly, after three decades, changed, and while Article II, Section 16, of our Constitution and § 49-1-204, MCA, really do not mean what we have repeatedly said they do. There is no legal basis to reexamine this issue. There was no legal basis for the numbers argument in the first place (as we have implicitly acknowledged for thirty years), and, unless the law and Constitution are changed, there will be no basis for that argument in the future. Breathing into a corpse periodically simply will not bring it to life.

JUSTICES GRAY and TRIEWEILER join in the foregoing special concurrence.


author: JUSTICE NELSON

text:
    BRIDGER CANYON PROPERTY OWNERS’ ASSOCIATION, INC., a Nonprofit Corporation, Plaintiff and Appellant, -v-THE PLANNING AND ZONING COMMISSION FOR THE BRIDGER CANYON ZONING DISTRICT and 360 RANCH CORPORATION, a Nevada corporation; and BRIDGER BOWL, INC., Defendants and Respondents.
    No. 94-206.
    Submitted on Briefs January 19, 1995.
    Rehearing Denied March 30, 1995.
    Decided March 2, 1995.
    52 St.Rep. 125.
    270 Mont. 160.
    890 P.2d 1268.

      For Appellant: Stephen C. Pohl, Bozeman.
    For Respondent: Joseph W. Sabol, Bozeman, Montana (360 Ranch); Mark D. Refling, Moore, O’Connell & Refling, Bozeman (Bridger Bowl); Michael Salvagni, Gallatin County Attorney, Bozeman.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from an Eighteenth Judicial District Court, Gallatin County, denial of a petition for writ of certiorari. We affirm in part and reverse in part.

We redefine the issues on appeal:

1. Did the District Court err in denying the writ of certiorari?

2. Did the Commission err in its conditional approval of 360 Ranch’s Planned Unit Development, specifically, its approval of single family housing in the Bridger Bowl Base Area?

FACTUAL AND PROCEDURAL BACKGROUND

Public hearings were held in Bozeman, Montana, in December, 1992 and January and February of 1993 to review the application of 360 Ranch for a Planned Unit Development (PUD) in Bridger Canyon and particularly, Bridger Bowl. The 360 Ranch proposed a “651 acre planned unit development, six zone changes and numerous conditional use permits.” The PUD application included “339 units for attached overnight accommodations ... and 151 units for detached recreational housing.” The Zoning Ordinance defines “recreational housing” as “ ‘Housing located in the Bridger Bowl Base Area which does not have restriction on length of stay, and includes attached and detached single family units,’ and ‘single family dwelling’ as ‘[a] detached building designed for, or occupied exclusively by, one family. ...’ ” At the conclusion of the hearings, the Planning and Zoning Commission (Commission) conditionally approved the 360 Ranch’s application, and Findings of Fact and an Order to that effect were issued on February 10, 1993.

On March 12,1993, the Bridger Canyon Property Owners Association (BCPOA) filed a complaint for declaratory judgment contending that the 1989, 1990 and 1991 amendments to the Zoning Ordinance were void as a matter of law and that the Commission lacked authority and jurisdiction to approve the PUD because of a conflict between the Bridger Canyon Zoning Ordinance (Zoning Ordinance) and the General Plan and Development Guide of Bridger Canyon (General Plan). The complaint requested relief in the form of a writ of certiorari:

...directing the Commission to certify to the Court at a specified time and place a transcript of the record and proceedings as outlined above so that this Court may review the record and proceedings as required by law...and...the Court take testimony on all issues for the purpose of reviewing the decision of the Commission in accordance with Plaintiff’s right to appeal the Commission’s decision to district court.

Moreover, the appellant requested that the Court enter a declaratory judgment that the Zoning Ordinance failed to substantially comply with the General Plan, that the Commission lacked authority and jurisdiction to approve single family residences in the Bridger Canyon Base Area and that the 1989,1990 and 1991 amendments to the Zoning Ordinance authorizing single family residences in the Base Area and expanding the Base Area by 360 acres were void as a matter of law as was the Commission’s February 10, 1993 Order authorizing single family housing in the Bridger Bowl Base Area. On April 5,1993, the respondents filed a motion to dismiss asserting that the action was not timely filed, all necessary persons were not made a party to the action and the complaint failed to state a claim upon which relief could be granted.

The appellant filed an amended complaint on April 30, 1993. On June 7, 1993, it sought leave to amend the Amended Complaint for Declaratory Judgment. The respondents brought a renewed motion to dismiss on June 11, 1993. On September 16, 1993, the District Court entered an order concerning the issue of the amended complaint and the respondents’ motion to dismiss. The court determined that the amended complaint sought a writ of certiorari on the question of whether the Commission had exceeded its jurisdiction; a declaration that the Zoning Ordinance failed to substantially comply with the General Plan; and an order voiding the amendments expanding the base area by 360 acres and authorizing single family residences.

The court concluded that the appellant was beyond the statute of limitations for challenging amendments to the Zoning Ordinance but that it could challenge the Commission’s 1993 decision to issue the conditional use permit by means of a writ of certiorari because the appellant filed his complaint within 30 days. The court denied the respondents’ motion to dismiss “as to a judicial review of the conditional use permit decision.”

On November 10, 1993, BCPOA filed an amended complaint and petition for a writ of certiorari contending that the Commission exceeded its jurisdiction in approving the PUD and seeking an order reversing that part of the Commission’s order authorizing single family housing in the Bridger Bowl Base Area. BCPOA contends that the Zoning Ordinance does allow single family housing development while the General Plan does not allow such housing, and therefore, the two planning documents are in conflict.

In its final amended complaint and petition for writ of certiorari, the appellant in essence, was requesting two forms of relief — a writ of certiorari (Requests for relief nos. 1 and 2) and appellate review of the Commission’s Findings of Fact and Order (Request for relief no. 3). The court denied the petition for writ of certification on the merits, concluding that the Board was acting within its jurisdiction because the Zoning Ordinance complied with the General Plan. The court did not address Request No. 3, the appeal of the Commission’s February 10, 1993 order under § 76-2-110, MCA.

Moreover, respondents defended on the merits of the Commission acting within its jurisdiction — all parties, in fact, acquiesced in the assumption that a writ of certiorari was the appropriate basis upon which to proceed.

Because of the procedural posture in which this case was placed and argued before and disposed of by the District Court, it is necessary that we first review the decision of the District Court to deny the writ of certiorari and then address the appeal of the Commission’s conditional approval of the PUD.

At the outset, we note that the record reflects that the Bridger Canyon Zoning District and the Bridger Canyon Zoning Commission were created by resolution of the Gallatin County Board of Commissioners in July, 1971. That same year, the General Plan and the Zoning Ordinance were adopted. Both planning documents have been amended over the years. Moreover, in 1985, another document was adopted, entitled the “Bridger Bowl Base Area Plan,” (Base Area Plan), that plan being amended in 1989. Other pertinent facts will be provided in the body of the opinion.

DISCUSSION Writ of Certiorari

Section 27-25-102(2), MCA (1993), sets forth the criteria under which a writ of certiorari may be granted. That section provides:

A writ or review may be granted by:

(2) the supreme court or the district court or any judge of those courts, when a lower tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of the tribunal, board, or officer and there is no appeal or, in the judgment of the court, any plain, speedy, and adequate remedy.

The scope of review for a writ of certiorari “cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer.” Section 27-25-303, MCA.

State v. McAllister (1985), 218 Mont. 196, 199, 708 P.2d 239, 241, states that there are three indispensable requisites to the grant of a writ of certiorari, including:

1. excess of jurisdiction, i.e. that an inferior tribunal or board has
exceeded its jurisdiction;
2. absence of the right to appeal from the act, order or judgment
assailed as done or made without jurisdiction; and
3. lack of a plain, speedy and adequate remedy other than certiorari. (Citation omitted.)

Despite that McAllister incorrectly joins the statutory requirement for the complete absence of appeal with the statute’s grant of discretion to the court to determine that, alternatively, there is no plain, speedy and adequate remedy (insertion of the word “and” instead of “or” between paragraphs 2 and 3 mentioned above), our prior interpretations of the statute remain clear. In order for a writ of certiorari to issue, it is necessary for the petitioner to show (1) that the lower tribunal has acted in excess of its jurisdiction and (2) that the petitioner either has no appeal or, in the judgment of the court, any plain, speedy and adequate remedy. Both tests must be satisfied, and if either or both elements are not established, then the court is without jurisdiction to issue the writ. See City of Helena v. Buck (1991), 247 Mont. 313, 315, 806 P.2d 27, 29.

We conclude, after a careful review of the applicable statutory and case law that a writ of certiorari is not the appropriate remedy in the instant case. Here, the second prong of the statute — remedy of appeal — could not be satisfied as a matter of law.

The District Court addressed the first prong of the test, i.e. whether the tribunal, board or officer exceeded its jurisdiction, and found that the Commission acted within its jurisdiction and therefore, denied the writ of certiorari. McAllister, 708 P.2d at 241.

At no point, however, did the District Court address, nor did the respondents argue, that a writ of certiorari was an inappropriate remedy because the appellant already had a remedy of appeal. Absence of the right to appeal or a plain, speedy and adequate remedy is the second prong of the test for the grant of a writ of certiorari. McAllister, 708 P.2d at 241. Although we disagree with the District Court in its conclusion that the Commission did not exceed its jurisdiction, we determine that the appellant had an adequate remedy of appeal under § 76-2-110, MCA, and therefore, the appellant cannot satisfy the second prong of the test for obtaining a writ of certiorari.

As stated above, in order to grant a writ of certiorari, both prongs of the test must be satisfied. Here, because the second prong of the test was not satisfied, we must affirm the District Court’s denial of the writ of certiorari, although we affirm because we conclude that the appellant failed to satisfy the second prong of the test. We do not affirm the court’s conclusion on the first prong.

Parenthetically, we wish to make clear that whenever a plaintiff or petitioner has any remedy of appeal or, in the court’s judgment, any plain, speedy or adequate remedy, a writ of certiorari is not appropriate. Here, the appellant has a remedy of appeal under § 76-2-110, MCA, and therefore, appellant should not have petitioned for a writ of certiorari. The appellant should only have exercised its right to appeal under the appropriate statute, in this case, § 76-2-110, MCA.

Appeal Under § 76-2-110, MCA.

As pointed out above, the District Court did not address appellant’s appeal of the Board’s decision to conditionally approve the PUD. With respect to the court’s failure in that regard, our review is plenary. Greytak v. RegO Co. (1993), 257 Mont. 147, 150, 848 P.2d 483, 485. Black’s Law Dictionary, Fifth Edition (1979), at 1038, defines “plenary” as “full, entire, complete, absolute, perfect, unqualified.” Although the District Court did not review the BCPOA’s appeal of the Commission’s decision to conditionally approve 360 Ranch’s PUD, this Court has full and complete authority to review the Board’s decision.

Request for relief No. 3 of the appellant’s amended complaint and petition for relief seeks appellate review of the portion of the Commission’s Findings of Fact and Order of February 10, 1993, which authorized single family housing in the Bridger Bowl Base Area. At the time appellant filed its petition for certiorari, the Commission’s decision was final and appealable under § 76-2-110, MCA. The facts alleged and the arguments made to the District Court on the issue of whether the Commission exceeded its jurisdiction in authorizing the PUD are necessarily the same as those which will be reviewed here in order to determine whether the Commission erred in conditionally approving the PUD. Hence, the underlying issues, the substantive law applicable to those issues and the substantive relief requested and denied, were and would have been the same whether the procedural device to place those issues and law before the court was denominated a petition for certiorari or an appeal. In either event, this Court would have jurisdiction to review the decision of the District Court.

The appellant argues that the Commission exceeded its jurisdiction, thereby acting illegally, by approving the 360 Ranch’s PUD application, which “although in compliance with the Bridger Canyon Zoning Ordinance, conflicts with the Bridger Canyon General Plan and Development Guide, and is inconsistent with the official Zoning Map for the district.” For this reason, the appellant contends that the Commission erred in approving the PUD. Moreover:

[t]he Association submits that...a conflict exists between the General Plan and the official zoning map on the one hand, which exclude single family housing in the Bridger Bowl Base Area, and the Zoning Ordinance and Base Area Plan, which make provision for a high density subdivision in the Base Area. Because of this conflict, and in light of the paramount importance accorded by this Court to land use plans in several important zoning decisions, the Association submits that the Zoning Commission exceeded its authority when it approved single family housing in the Bridger Bowl Base Area.

The respondents, on the other hand, assert:

1. That the General Plan and all amendments thereto are documents to offer guidance to the Commission in its decisionmaking process in the Zoning District.
2. That the 1989 updated Bridger Bowl Base Area Plan is incorporated in the 1989 General Plan and is intended to offer guidance to the Commission in its decisionmaking process in the Bridger Bowl Base Area.
3. That the General Plan, as the name implies (General Plan and Development Guide), is exactly that, a general plan for the entire District containing guidance for the development of the entire District except as provided in the Bridger Bowl Base Area by the Base Area Plan.
4. That the Bridger Bowl Base Area Plan is a site specific portion of the General Plan.

The crucial question is — of what importance is the General Plan and what part does it play in the development of the Bridger Canyon Zoning District? The Zoning Ordinance states that “[p]ursuant to Section 76-2-101 et. seq. of the Revised Codes of Montana there is hereby adopted a development pattern. Said development pattern shall consist of the Bridger Canyon General Plan and the Bridger Canyon Zoning Ordinance.” By its very language, the Zoning Ordinance states that the General Plan is an important part of the development pattern, and therefore, it makes sense that the commissioners should be required to comply with the General Plan. Our prior case law supports that conclusion.

Little v. Board of County Com’rs, Etc. (1981), 193 Mont. 334, 631 P.2d 1282, was an appeal by the Flathead County Commissioners, from a district court order enjoining them from proceeding with a resolution of intent to zone Cameron Tract for commercial use when the recommendation of the comprehensive plan (master plan) was to zone the area as residential. In response, to the question of how closely the comprehensive plan must be followed, this Court stated:

The question then becomes one of how closely the governing body must follow the “comprehensive development plan” (master plan) when creating zoning districts and when promulgating zoning regulations. Section 76-1-605, MCA, particularly deals with how an adopted master plan shall be used in making zoning decisions:
“After adoption of the master plan, the city council, the board of county commissioners, or other governing body within the territorial jurisdiction of the board shall be guided by and give consideration to the general policy and pattern of development set out in the master plan in the ... (4) adoption of zoning ordinances or resolutions.” (Emphasis in original.)
This statute unequivocally tells local governing bodies that once a master plan is adopted, it must be used for their guidance in zoning. Further the zoning statutes covering county zoning, Title 76, Ch. 2, sections 76-2-101 through 76-2-112, MCA, undeniably lead to the conclusion that the master plan is of paramount importance. In fact, the unmistakable message of these statutes is that if no comprehensive plan (master plan) has been adopted (section 76-2-201, MCA), and if no jurisdictional area has been created after the adoption of the master plan (section 76-2-202, MCA), the counties are without authority to zone except on an interim basis.
The objective under these statutes is that there be the final adoption of a master plan, and then that the master plan be followed once it has been adopted. The planning and organization statutes (sections 76-1-101 through 76-2-112, MCA) set out a step-by-step basis by which a master plan is to be derived. The term “comprehensive development plan” contained in section 76-2-201, refers back to these organization and planning statutes. As we have already mentioned, without a master plan in effect and without a jurisdictional area carved out after the adoption of the master plan, the counties have no authority to institute permanent zoning classifications.

Little, 631 P.2d at 1291. Moreover,

[t]he vital role given the planning boards by these statutes cannot be undercut by giving the governing body the freedom to ignore the product of these boards — the master plan. We hold that the governmental unit, when zoning, must substantially adhere to the master plan.
To require strict compliance with the master plan would result in a master plan so unworkable that it would have to be constantly changed to comply with the realities. The master plan is, after all, a plan. On the other hand, to require no compliance at all would defeat the whole idea of planning. Why have a plan if the local governmental units are free to ignore it at any time? The statutes are clear enough to send the message that in reaching zoning decisions, the local governmental unit should at least substantially comply with the comprehensive plan (or master plan). This standard is flexible enough so that the master plan would not have to be undergoing constant change. Yet, this standard is sufficiently definite so that those charged with adhering to it will know when there is an acceptable deviation, and when there is an unacceptable deviation from the master plan.
As we have explained, the statutes require a reading that the legislature intended the master plan to have substance. If a master plan must be in existence before the county commissioners can permanently zone, and if the right to adopt emergency interim zoning is limited to two years, it makes little sense to then permit the local governing body to ignore the master plan once it has been created. If the master plan is important enough to be a condition precedent to permanent zoning, it is also important enough to be followed once it is in existence. For these reasons, we hold that only substantial compliance is mandated by the statutes.
We are aware that changes in the master plan may well be dictated by changed circumstances occurring after the adoption of the plan. If this is so, the correct procedure is to amend the master plan rather than to erode the master plan by simply refusing to adhere to its guidelines. If the local governing bodies cannot cooperate to this end, the only alternative is to ask the legislature to change the statutes governing planning and zoning.

Little, 631 P.2d at 1293.

Although Montana Wildlife Federation v. Sager (1980), 190 Mont. 247, 620 P.2d 1189, stated that no comprehensive plan is necessary when county commissioners act under Part 1, Chapter 2, Title 76, MCA, Little, which was decided after Montana Wildlife, states that once a comprehensive or master plan has been developed, it must be followed. Although Little concerns planning and zoning under §§76-2-201 et seq., MCA, the case refers to the statutes at issue here, §§ 76-2-101, et seq., MCA, and the propositions established in Little are applicable to the instant case. The Commission did develop a comprehensive or master plan (the General Plan) and now must comply with that plan.

A more central problem with the planning documents is the fact that they are not only inconsistent with each other, but they are also internally inconsistent. The following language, excerpted from the General Plan, the Zoning Ordinance, the Base Area Plan and the orders amending these documents to enlarge the Base Area of Bridger Canyon, shows an incongruity both within and between the documents. The inconsistencies make it difficult to determine the correct population densities for the various areas within Bridger Canyon.

THE GENERAL PLAN

The General Plan states that:

The Bridger Canyon Zoning Ordinance was officially adopted in October of 1971, and has been amended on a periodic basis. The intent of the ordinance is to regulate and promote orderly development of the area. Agricultural preservation is a primary goal which is to be accomplished by limiting development to one housing unit per 40 acres, and providing for higher density under planned unit developments. The forty (40) acre minimum lot size is based on limiting population so that the capacity of the two (2) lane highway is not exceeded. Prior to the adoption of the Zoning Ordinance, development was concentrated in parcels less than 20 acres. (Emphasis added.)

The General Plan also states that:

As set forth in the Zoning Ordinance, maximum permanent housing in the Bridger Canyon planning area is set at one (1) dwelling unit per 20-40 acres, depending on terrain and distance to main roads. One dwelling unit per 20 acres is only allowed through the Planned Unit Development procedures as set forth in the Zoning Ordinance. (Emphasis added.)

Moreover, the General Plan provides that:

Generally, the residential areas outlined in the plan are expected to accommodate one (1) dwelling unit per forty (40) acres or twenty (20) acres with a planned unit development. (Specific information pertaining to residential densities are located in the Zoning Ordinance and the Bridger Bowl Base Area Plan.) The ski area is expected to accommodate 3,000 visitors in overnight accommodations on 400 acres — a density of two (2) dwelling units per acre. Here, multiple clustered housing which does not impair scenic values is essential to accommodate the increasing number of seasonal residents. (Emphasis added.)

Additionally, the General Plan recommends that the Zoning Ordinance should be strictly enforced to ensure land subdivision in conformity with the General Plan. Finally, the General Plan states that “[w] ell-conceived and strongly enforced land use planning is essential."

BASE AKEA PLAN

The Base Area Plan states that it is an extension of the General Plan and provides that:

In 1970 and 1971 the firm of Murray and McCormick, Inc., Sacramento, California, developed a General Plan, Development Guide and Zoning Ordinance for the Bridger Canyon area....
The Murray and McCormick Plan designated the Bridger Bowl Base Area as Recreation and Forestry, with a basic density right of one unit per 40 acres. It also established a Planned Unit Development (P.U.D.) designation for the Base Area of two units per acre for overnight accommodations if the development was in compliance with the standards and intent of the P. U.D. Section of the Bridger Canyon Zoning Ordinance. The rationale for this high density allocation with overnight qualification (the balance of the Bridger Canyon area has an allowable P.U.D. density of only one unit per 20 acres) was to allow for the expansion of the Bridger Bowl Ski Area to its ultimate capacity without exceeding the vehicular capacity of the two-lane Bridger Canyon Road. (Emphasis added.)

The Base Area Plan also states that:

The entire Bridger Canyon Zoning District has been given a basic density right of one unit per forty acres, with a planned development designation of one unit per twenty acres. This P.U.D. density is only allowed when a development meets special conditions. (Emphasis added.)

Additionally:

A major concern of the original planners and the Bridger Canyon residents was that the existing Bridger Canyon Road would not handle the traffic that would be generated by 7,000 to 8,000 day skiers. The construction of an adequate road to handle those numbers was determined to be contradictory to the intent of the General Plan. To resolve this problem, the plan provided for full expansion of the ski area by designating a 400 plus acre area with a P.U.D. density of one unit per half acre. This high density area was included in order to allow enough overnight facilities to maintain a low daily traffic volume on the Bridger Canyon Road. The plan proposes 1,500 car parking lot spaces for 4,500 day visitors and a possible P.U.D. density for 800 units to serve an estimated 3,000 overnight visitors.

Finally, under Development Rights Allocation, the subsection entitled “Housing,” the Base Area Plan states:

The areas shown for housing are the sites of either existing housing or are subdivided for housing. As the underlying zoning for the Base Area is one dwelling unit per forty acres, it is possible that other single family dwelling units may be located there. However, it is more consistent with the goals of this Plan to encourage the development of high density overnight accommodations in the Base Area. (Emphasis added.)

ZONING ORDINANCE

The Zoning Ordinance states that “[p]ursuant to Section 76-2-101 et. seq. of the Revised Codes of Montana there is hereby adopted a development pattern. Said development pattern shall consist of the Bridger Canyon General Plan and the Bridger Canyon Zoning Ordinance.” The Zoning Ordinance also declares that one of the purposes of the zoning ordinance is “to carry out the master or comprehensive plan for the Bridger Canyon Zoning District."

The Zoning Ordinance also provides, under Section 11, entitled “Base Area Recreation and Forestry District,” that permitted uses for Recreation and Forestry District land (zoned B-4) include “[o]ne dwelling unit per forty (40) acres.” However, on page 41 of the Zoning Ordinance, a Development Rights Allocation chart states that 182 recreational housing development rights have been allocated for the area, which is zoned B-4.

The Zoning Ordinance was further amended in 1993, but the amendments were adopted after the Commission conditionally approved 360 Ranch Corporation’s application for the PUD.

COMMISSION’S FINDINGS OF FACT AND ORDER OF DECEMBER 17, 1990

In 1990, the Commission approved the request to expand the Bridger Bowl Base Area to included a 100 acre parcel, zoned Recreation Business (B-3), adjacent to the northern boundary of the Base Area. No action was taken on a second parcel, consisting of260 acres, known as the Hammersmark property, also located adjacent to the Base Area.

COMMISSION’S FINDINGS OF FACT AND ORDER OF JUNE 14,1991

An application to amend the second parcel (260 acres) to the Base Area, was approved on June 14, 1991, and the Base Area expanded to 760 acres. The 260 acre parcel was zoned Base Area Recreation (B-4). Permitted uses for land zoned B-4 include “one dwelling unit per forty (40) acres. ...” Finally, a covenant was placed on the Hammersmark property which limited its development potential to seventy (70) units.

As can readily be seen, the language within the General Plan, the Base Area Plan and the Zoning Ordinance, as well as the amendment orders, are internally incongruous and irreconcilable, as well as incompatible with other planning documents. It is unclear which areas allow for only one dwelling unit per 40 acres, which areas allow only one dwelling unit per 20 acres and which areas allow for the development of one dwelling per each one-half acre. The inconsistent language violates the Zoning Ordinance’s stated purpose to carry out the master or comprehensive plan for the Bridger Canyon Zoning District and the General Plan’s mandate for well-conceived land use planning.

We have previously determined that the General Plan must be followed and the PUD simply does not comply with the General Plan’s language. In order for the development patterns and comprehensive (or master) plans to have meaning, they should be followed and must therefore, be consistent enough to be followed.

However, the incongruous language in the planning documents casts confusion upon the appropriate population densities for the various areas of the Canyon. In short, not only do the Zoning Ordinance and the Base Area Plan conflict with the General Plan, when they should harmonize, but they are internally in conflict. To base a decision of conditional approval of a PUD on planning documents which are inherently unreliable is unsatisfactory.

The statutes under which the Commission operates require the Commission to provide well-conceived, clear, consistent planning documents upon which to base land use planning in the Bridger Canyon Zoning District. The powers and duties of the Commission are set forth in §§ 76-2-101 through 112, MCA. Two sections pertinent to the instant action are § 76-2-103, and § 76-2-104, MCA. Section 76-2-103, MCA, provides that:

(1) In general, the planning and zoning commission shall have such powers as may be appropriate to enable it to fulfill its functions and duties to promote county planning and to carry out the purposes of this part.

Section 76-2-104, MCA, states that:

(1) [flor the purpose of furthering the health, safety, and general welfare of the people of the comity, the county planning and zoning commission hereby is empowered and it shall be its duty to make and adopt a development pattern for the physical and economic development of the planning and zoning district.
(2) Such development pattern, with the accompanying maps, plats, charts, and descriptive matter, shall show the planning and zoning commission’s recommendations for the development of the districts, within some of which it shall be lawful and within others of which it shall be unlawful to erect, construct, alter, or maintain certain buildings or to carry on certain trades, industries, or callings or within which the height and bulk of future buildings and the area of the yards, courts, and other open spaces and the future uses of the land or buildings shall be limited and future building setback lines shall be established.

The Zoning Ordinance and the General Plan are the tools by which the Planning and Zoning Commission “fulfill [s] its functions and duties to promote county planning. ...” Section 76-2-103(1), MCA. Moreover, the Zoning Ordinance and the General Plan comprise the Bridger Canyon Development Pattern, which was developed and adopted “for the physical and economic development of the planning and zoning district.” Section 76-2-104(1), MCA, and Bridger Canyon Zoning Ordinance, § 1.2 at 4. The Commission erred by approving a PUD which does not comply with the development pattern as a whole. At the core, however, is the fact that it makes little sense to base a decision to conditionally accept the application for a PUD on planning documents which are internally inconsistent and do not harmonize with their companion documents.

We conclude that the District Court erred in not addressing the appellant’s appeal, under § 76-2-110, MCA, seeking a reversal of the Commission’s decision to conditionally approve the PUD application of 360 Ranch. We hold that once a General Plan (master or comprehensive plan), which is part of a development pattern, is adopted, the Commission must substantially comply with that planning document. We further conclude that in order to effectively plan for the development of a planning and zoning district, the planning documents which comprise the development pattern must be internally consistent as well as consistent with companion planning documents. Because the merits of the District Court’s decision went to the merits of the appeal of the Zoning Commission’s decision to approve 360 Ranch’s PUD, we reverse the District Court in its conclusion that the Zoning Commission did not exceed its jurisdiction or authority in approving the PUD.

AFFIRMED IN PART AND REVERSED IN PART.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT, TRIEWEILER, LEAPHART and WEBER concur.