author: MR. JUSTICE SHEEHY MR. JUSTICE WEBER,

text:
    WILLIAM HAMMER and Karla J. Hammer, Petitioners, v. THE JUSTICE COURT OF LEWIS AND CLARK COUNTY, State of Montana, Bernard McCarthy, et al., Respondents.
    No. 85-208.
    Submitted April 8, 1986.
    Decided June 10, 1986.
    720 P.2d 281.
    Daniel J. Shea argued, Helena, for petitioners.
    Mike Greely, Atty. Gen., Clay Smith argued, Asst. Atty. Gen., Bernard McCarthy, Judge, Justice Court, Nick Jacques, Helena, for respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

This is a petition in original jurisdiction for a declaratory judgment that Section 3-15-203(2), MCA and Rule 14.F, M.J.R.Civ.P. which require prepayment of jury fees in justice courts are unconstitutional.

This case arises out of a suit brought in Justice Court of Lewis and Clark County by 5-D’s Collections against William and Karla Hammer for $1,155.67 for medical services rendered by St. Peter’s Community Hospital. The Hammers requested a jury trial. They were notified that under Section 3-15-203, MCA and Rule 14.F, M.J.R.Civ.P., they must deposit a one-day jury fee of $144.00 with the court five days prior to trial. The notice stated that failure to pay the jury fee would mean no jury would be called.

The Hammers petitioned this Court in original jurisdiction seeking a declaratory judgment pursuant to Sections 27-8-101-313, MCA that the jury fee laws are unconstitutional, because they deprive petitioners of their right to trial by jury under Art. II, Section 26, 1972 Mont. Const. Art. VII, Section 2, 1972 Mont. Const, provides we may “issue, hear, and determine writs of habeas corpus and such other writs as may be provided by law.” In Grossman v. State (Mont. 1984), [209 Mont. 427,] 682 P.2d 1319, 1322, 41 St.Rep. 804, 805, we stated that this Court has the authority to accept original jurisdiction where the issues are of statewide impact and where the purpose of the declaratory judgment proceeding will serve the office of a writ. In Montana Power Company v. Public Service Commission (Mont. 1984), [214 Mont. 82,] 692 P.2d 432, 41 St.Rep. 1601, we assumed original jurisdiction because delay could result in irreparable harm and assumption of jurisdiction would promote judicial economy. In this case we have a justiciable controversy which has statewide impact, in that the jury fee laws apply to all justice courts. Delay could result in abridging vital constitutional rights of litigants. The purpose of this declaratory judgment serves the office of a writ, and it would promote judicial economy to accept jurisdiction rather than forcing piecemeal litigation as to the constitutionality of the statute. We therefore accept jurisdiction.

The jury fee laws are set out in Section 3-15-203, MCA, which states:

“(1) A jury panel member, in both civil and criminal actions, shall receive a fee of $12 per day for attendance before a court not of record and a mileage allowance, as provided in 2-18-503, for traveling each way between his residence and the court. A jury panel member selected for a case shall receive an additional $13 per day while serving.

“(2) In civil actions, the jurors’ fees must be paid by the party demanding the jury and taxed as costs against the losing party.”

This statute is implemented by Rule 14.F, M.J.R.Civ.P.:

“(1) The party demanding a jury trial shall pay jurors’ fees as set out in Section 3-15-203, MCA, and such fee shall be taxed as costs against the losing party as determined by the court.

“(2) Deposit, each additional trial day. At or before the end of each day of jury trial, the justice shall require the parties to deposit an amount sufficient to pay juror’s fees for the next trial day. Failure to make the deposit for the next day’s juror’s fees shall constitute a waiver of the continuance of a jury trial and the trial shall continue before the court as a nonjury trial.

“(3) Taxed as costs. The deposits for juror’s fees required under (1) and (2) of this rule shall be taxed as costs against the losing party.”

Petitioners argue that these statutes violate Art. II, Section 26, 1972 Mont. Const.: “The right of trial by jury is secured to all and shall remain inviolate . . . .”

Respondent argues that the jury fee laws are constitutional for three reasons. First, he argues prior Montana case law has held the constitution guarantees the right to jury trial in the class of cases in which the right was enjoyed when the constitution was adopted. In Re C.L.A. (Mont. 1984), [211 Mont. 393,] 685 P.2d 931, 41 St.Rep. 1444. In Re C.L.A. held the right to jury trial does not exist in civil proceedings to terminate parental rights because our state constitution guarantees the right to jury trial only in cases in which the right was enjoyed when the constitution was adopted. However, this case is not dispositive because the right to jury trial in justice court existed when the 1889 Constitution was adopted and was not changed by the 1972 Constitution. Art. Ill, Section 23, 1889 Mont. Const., Section 1080 General Laws of Montana (1887); Art. II, Section 26, 1972 Mont. Const.; Section 25-31-804, MCA. The issue here is not whether or not the right to jury trial exists in civil cases in justice courts, the issue is the interpretation of the language, “and shall remain inviolate.”

Second, respondent cites cases from several other jurisdictions which have upheld jury fees against a right to jury trial challenge and argues that jury fees are a permissible procedural restraint on jury trials.

This Court, on several prior occasions, has been called on to interpret the right to jury trial in Montana. In Linder v. Smith (Mont. 1981), 629 P.2d 1187, 38 St.Rep. 912, we held mandatory submission of claims to the medical malpractice panel did not unconstitutionally interfere with the right to jury trial. We stated that changes which affect the form but not the substance of the right may pass constitutional muster. In North Central Services v. Hafdahl (Mont. 1981), 625 P.2d 56, 38 St.Rep. 372, we held the small claims procedure in Justice Court unconstitutionally deprived litigants of the right to trial by jury. The small claims procedure made no provision for a jury trial in justice court and prohibited trial de novo on appeal. We held it was unconstitutional to deny the right to jury trial totally, but that the right to jury trial remains inviolate if there is provided an appeal to the district court.

Neither of those cases is directly on point. The issue here is whether the laws requiring prepayment of jury fees for civil cases in justice courts conflict with the constitutional guarantee that the right to jury trial shall remain inviolate. As we decide this issue we are cognizant of the importance of the right to trial by jury.

The right to trial by jury is guaranteed by the Federal Constitution in Art. Ill, Section 2. Fear that jury trial may be abolished was one of the principal sources of objection to the Federal Constitution and an important reason for the adoption of the Bill of Rights. Schick v. United States (1904), 195 U.S. 65, 78, 24 S.Ct. 826, 831, 49 L.Ed. 99, 105-6. The Sixth Amendment reaffirmed the right to jury trial in criminal cases and the Seventh Amendment insured jury trial in civil cases. In the 1972 Montana Constitution the right is guaranteed in three places: Art. II, Section 7, Art. II, Section 24 and Art. II, Section 26.

We are also aware of the increasing importance of justice courts in the judicial system. In fact, many citizens of this state will have their only contact with the judicial system in justice court. The justice courts have jurisdiction over misdemeanors punishable by a fine of up to $500 or imprisonment for up to six months or both and concurrent jurisdiction for misdemeanors punishable in excess of those figures. Section 3-10-303, MCA. The justice courts also have jurisdiction in civil matters for damages claimed up to $3,500. Section 3-10-301, MCA.

We hold that the plain meaning of the constitution controls and that the legislative enactment of Section 3-15-203, MCA, restricts the inviolate right to jury trials in justice court. We so hold for two reasons. First, the plain language of the constitution mandates it. Any other construction renders the language of the constitution meaningless. Second, the jury fees paid by the party demanding a jury trial are taxed as costs against the losing party. Section 25-31-1004, MCA. This suggests that the statute which requires prepayment of jury fees is not a true mechanism for recovery of costs but rather a device to discourage the exercise of the right to jury trial. As Justice Black stated in the case which declared the right to trial by jury a fundamental right:

“Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience.”

Reid v. Covert (1957), 354 U.S. 1, 10, 77 S.Ct. 1222, 1227, 1 L.Ed.2d 1148, 1160.

The right to jury trial is not inviolate if it is accorded only to those who can afford to pay for it. Jury trials should not be available in Montana on a pay-as-you-go basis. The idea that justice can be bought is analogous to the sin of simony which was the practice of buying the souls of friends and relatives out of purgatory and into heaven which inspired this verse:

“As soon as the coin in the coffer rings,

The soul from purgatory springs.”

We accept this petition for original jurisdiction and declare Section 3-15-203(2), MCA and Rule 14.F, M.J.R.Civ.P. unconstitutional.

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

MR. JUSTICE WEBER,

dissenting:

The majority holds that the plain meaning of the Montana Constitution controls and that the legislative enactment of Section 3-15-203, MCA, (which provides for justice court jury fees) restricts the inviolate right to jury trials in justice court. The majority then concludes that the provisions of that code section together with Rule 14.F, M.J.R.Civ.P., are unconstitutional. I disagree with the holding and conclusion.

The majority refers to North Central Services, Inc. v. Hafdahl (Mont. 1981), 625 P.2d 57, 38 St.Rep. 372, and concludes that the case is not directly in point. In contrast, I believe North Central Services is directly in point and mandates a conclusion contrary to the majority opinion.

As above pointed out, the majority opinion concludes that the code section on jury fees in justice court “restricts the inviolate right to jury trials in justice court.” That directly contradicts the position taken in North Central Services. In that case we stated the question as whether or not a jury trial is required in small claims court. The majority in that opinion concluded:

“We hold that the constitutional right to trial by jury is satisfied if it is granted at the District Court level, though denied at the small claims level.”

North Central Services, 625 P.2d at 58. While it is true that in North Central Services we held that a code section was unconstitutional, we did so on the basis that it effectively denied the right to trial by jury at both the small claims court and district court level, and concluded that was unconstitutional. The circumstances are different with regard to justice courts.

Section 3-5-303, MCA, provides that the district court has appellate jurisdiction in cases arising in justice courts. Section 25-33-301, MCA, provides that all appeals from justice courts must be tried anew in the district court. That section further provides that when the action is tried anew on appeal, the trial must be conducted in all respects as other trials in the district court. Applying the rationale of North Central Services, because the statutes clearly grant a right of trial by jury in the trial anew at the district court level, we must conclude that the constitutional right to a trial by jury has been satisfied with regard to claims made in justice court.

In accord with North Central Services, I would therefore hold in the present case that the constitutional right to trial by jury at the justice level is satisfied because it is granted at the district court level. There has been no denial of a constitutional right to trial by jury.

The majority opinion emphasizes that the right to trial by jury is one of our vital barriers to governmental arbitrariness which are embedded in our Constitution. I agree with that theory as a general principle. However, I question that it applies to the present facts.

I believe it important to consider another provision of our Montana Constitution, Art VII, Section 4(2). That section states in part as follows with regard to the jurisdiction of district courts:

“(2) The district court shall hear appeals from inferior courts as trials anew unless otherwise provided by law . . .” If the right to a factual determination by a jury were constitutionally necessary at the justice court level, as suggested by the majority, then that factual determination by a jury should be binding in subsequent determinations. However, in our Constitution, the people of Montana have chosen to allow a trial anew at the district court level, thereby eliminating the significance of a jury determination at the justice court level. If the jury determination were fundamentally important as suggested in the majority opinion, those findings of fact would not be disturbed. Contrast these provisions to the treatment of jury fact determinations by the district court, which must be accepted by appellate courts. Appellate courts are not allowed to make independent factual determinations.

We are required to balance constitutional provisions. Because a right of trial anew is granted after an appeal of a justice court judgment, we may properly conclude that North Central Services was correct when it held that the constitutional right to trial by jury is satisfied where it is granted at the district court level.

MR. JUSTICE GULBRANDSON joins in the foregoing dissent of MR. JUSTICE WEBER.


source: Caselaw Access Project

author: MR. JUSTICE HARRISON delivered the Opinion of the Court. MR. JUSTICE MORRISON,

license: Public Domain

text:
    BRUCE W. PHILLIPS, et al., Plaintiffs and Appellants, v. LAKE COUNTY, Defendant and Respondent.
    No. 85-461.
    Submitted April 1, 1986.
    Decided June 10, 1986.
    721 P.2d 326.

      Christian, McCurdy & Wold, Douglas J. Wold argued, Poison, Manley & Smith, Brian J. Smith, co-counsel, Poison, for plaintiffs and appellants.
    French, Mercer, Grainey & Duckworth, Edward K. Duckworth argued, Poison, for defendant and respondent.
    Michael G. Alterowitz, Carbon Co. Atty., Red Lodge, Wm. Neis Swandal, Park Co. Atty., Livingston, Richard Simonton, Dawson Co. Atty., Glendive, for amicus curiae.
   MR. JUSTICE HARRISON delivered the Opinion of the Court.

Appellants are deputy sheriffs (“Deputies”) of Lake County, Montana. Each Deputy separately filed a complaint stating, among other things, a wage claim against respondent Lake County (“Lake County”) seeking payment for overtime hours worked. Their individual claims were consolidated by the Lake County District Court. The Deputies seek $1,389,021.60 in overtime, penalties, interest and attorney’s fees from Lake County. An agreed statement of facts was submitted and both the Deputies and Lake County filed motions for partial summary judgment on the issues of: (1) whether deputy sheriffs are entitled to compensation for overtime hours worked in excess of 40 hours per week or 2,080 hours per year, (2) whether a “year of service” for calculating longevity benefits should be based on a calendar year or 2,080 hours, and (3) whether the Deputies are entitled to the statutory penalties, interest, costs and attorney’s fees. The Honorable C.B. McNeil, District Judge, denied the Deputies’ motion for partial summary judgment and granted summary judgment in favor of Lake County. The Deputies filed a Motion for Reconsideration. A hearing was held and the summary judgment in favor of Lake County was affirmed. The Deputies appeal from the order denying their motion for partial summary judgment and granting summary judgment to Lake County. We affirm the judgment of the District Court.

The facts relevant to the disposition of this appeal are basically undisputed by the parties.

Each of the appellant Deputies was a duly appointed and acting deputy sheriff of Lake County, Montana. The respondent is the Lake County Board of Commissioners. At all times relevant to this appeal it was the policy of the Lake County Sheriff’s Department to schedule its road Deputies, including the complaining Deputies, to work in excess of 2,080 hours per year (40 hours X 52 weeks = 2,080). Their routine work schedule was to work six days each week and often more than eight hours per day. Each Deputy has at all times been paid a monthly salary. Since October 1, 1981, the Deputies were paid longevity pay at the rate of 1% for each calendar year of employment beginning on their employment anniversary date following October 1, 1981. Lake County never established, by resolution, that any undersheriff or deputy sheriff who worked in excess of his regularly scheduled work period would be compensated for his overtime. Part-time employees of the Lake County Sheriff’s Department, who were not deputy sheriffs, were paid overtime.

As of July 1, 1984, Lake County by resolution began paying each deputy sheriff the additional sum of $300 per month as compensation for overtime. On April 15, 1985, the United States Supreme Court conclusively decided the case of Garcia v. San Antonio Metropolitan Transit Authority (1985), _ U.S. _, 105 S.Ct. 1005, 83 L.Ed.2d 1016, which made overtime compensation for the Deputies mandatory. In June 1985, Lake County paid all Deputies overtime retroactive to April 15, 1985, pursuant to the requirements of Garcia and the federal Fair Labor Standards Act. The County subtracted from the retroactive overtime payments the amount of $300 per month for the months of April and May, 1985. Since June 1, 1985, the Lake County deputy sheriffs were no longer working 6 days per week.

The Deputies present the following issues for review by this Court:

(1) Whether the Deputies are entitled to overtime compensation after October 1, 1981?

(2) Whether the Deputies are entitled to have longevity benefits calculated at the rate of 1% for every 2,080 hours worked rather than 1% for each calendar year?

(3) Whether the Deputies are entitled to overtime benefits at the rate of time-and-a-half over 40 hours per week beginning April 15 1985?

(4) Whether the Deputies are entitled to compensation for “on call” time?

(5) Whether the Deputies are entitled to penalties, interest, attorney’s fees and costs?

The fundamental issue to be decided in this case is whether the Deputies are entitled to compensation for overtime hours worked in excess of 40 hours per week or 2,080 hours per year from October 1, 1981, to April 15, 1985. At the outset this Court recognizes the potential importance the answer to this issue has for the State of Montana. For this reason we compliment counsel for both parties on presenting exhaustive and scholarly arguments on this important and complex question. We also note that after thoroughly analyzing this issue, we can find little fault with Judge McNeil’s reasoning found in his orders granting and affirming summary judgment for Lake County. Therefore, we basically adopt the rationale set forth in Judge McNeil’s decisions and offer the following opinion as a supplement and explanation to the same.

I.

Whether the Deputies are entitled to overtime compensation after October 1, 1981?

The heart of this first issue centers around this Court’s decision in City of Billings v. Smith (1971), 158 Mont. 197, 490 P.2d 221. This case was decided immediately after the 1971 Montana Legislature adopted the Minimum Wage and Overtime Compensation Act (“MWOCA”) which is codified in Section 39-3-401, et seq., MCA. In City of Billings this Court was basically asked to decide whether (1) the MWOCA itself was constitutional; and (2) whether policemen, firemen and deputy sheriffs were covered by the MWOCA. The Court found that the MWOCA was constitutional, and that policemen, firemen and deputy sheriffs were not covered by the Act. The Court held that policemen and firemen were both “professional employees” and thus exempt from the MWOCA under the professional employee exclusion. However, the Court did not find that deputy sheriffs were also “professional employees.” Instead, the Court went in a totally different direction to exempt the deputy sheriffs from the MWOCA. The Court found that deputy sheriffs were exempt from the MWOCA by virtue of “particularized and special” statutory treatment within Montana’s code. The particularized and special treatment which exempted the deputy sheriffs from the MWOCA was a statute which set their total compensation at 90% of the sheriff’s salary (Section 25-604, R.C.M., 1947). The Court reasoned in City of Billings that when a general statute (MWOCA) and a specific statute (Section 25-604, R.C.M., 1947) are inconsistent, the latter is paramount to the former. Thus, under this analysis, the deputy sheriffs were not entitled to overtime compensation under the MWOCA. As the Court explained in City of Billings:

“As to deputy sheriffs, an examination reveals particularized and special treatment by the legislature sufficient to remove them from the Minimum Wage Act.

“Where one statute deals with a subject in general and comprehensive terms, and another deals with a part of the same subject in a more minute and definite way, the latter will prevail over the former to the extent of any necessary repugnancy between them. (Citations omitted).

“The provisions of Section 25-604, R.C.M. 1947, and the provisions of the Minimum Wage Act of 1971 are in conflict. In such case the special act will prevail over the general provisions of the Minimum Wage Act.”

City of Billings, 490 P.2d at 228, 229, 230.

The Deputies point out this statutory conflict between the MWOCA and Section 25-604, R.C.M., 1947, existed until 1981 when the legislature enacted House Bill 558 as Chapter 603 of the 1981 Session Laws (encoded in Title 7, Chapter 4, Part 25, MCA). The Deputies essentially argue that Chapter 603 of the 1981 Session Laws struck down the “90% limitation” of Section 25-604, R.C.M., 1947. In doing so, the Deputies argue, Chapter 603 struck down the only obstacle in allowing them to receive overtime compensation under the MWOCA. The Deputies argue that since the reason for the rule denying them overtime compensation ceased to exist effective October 1, 1981, overtime compensation should be allowed from that date forward.

Lake County, on the other hand, argues that when the legislature struck down Section 25-604, R.C.M., 1947, by enacting Chapter 603 of the 1981 Session Laws, the Deputies were still excluded from the MWOCA by this Court’s holding in City of Billings. In other words, Lake County argues that the Deputies’ compensation continued to be controlled by specific legislation thus exempting them from the overtime provisions of the MWOCA. We agree.

Lake County correctly points out that Chapter 603 of the 1981 Session Laws constitutes a specific statute governing all forms of compensation to which deputy sheriffs are entitled. The particular provisions of Chapter 603 merely redefined the forms of compensation which were governed by the “90% limit” and Section 25-604, R.C.M., 1947. The City of Billings case holds that such a specific statute, in and of itself, removes deputy sheriffs from coverage under the MWOCA. City of Billings, 490 P.2d at 229.

The resourceful argument of the Deputies cannot change the essential fact that Chapter 603 of the 1981 Session Laws remains to this date a “specific [provision] relating to [a] specific [office], “ and thus controls the issue of compensation. City of Billings, 490 P.2d at 229. The City of Billings decision applies with equal vigor and force to Chapter 603 as it did to Section 25-604, R.C.M. 1947. That is, the MWOCA deals with the subject of overtime in a “general” way, while Chapter 603 addresses the central topic of deputy sheriffs’ compensation, including overtime, in a more “minute” and definite way. City of Billings, 490 P.2d at 229. The specific, therefore, must prevail over the general. Consequently, the MWOCA still does not apply to the Deputies.

It is also apparent to this Court that the legislature intended the same result by enacting Section 7 of Chapter 603. Section 7 has been codified as Section 7-4-2507, MCA. This section holds that if there is a conflict between sections 2 through 5 of Chapter 603 and any other law (which parenthetically must include the MWOCA), that sections 2 through 5 govern with respect to deputy sheriffs. Section 7 of Chapter 603 provides:

“7-4-2507. Deputy sheriff and undersheriff provisions construction. If there is a conflict between 7-4-2508 through 7-4-2510 and any other law, 7-4-2508 through 7-4-2510 govern with respect to undersheriffs and deputy sheriffs.”

After determining the MWOCA does not apply to the Deputies, the critical question now becomes whether Chapter 603 of the 1981 Session Laws allows the Deputies to be compensated for their overtime. After carefully analyzing the arguments of the parties, we agree with the District Court and Lake County that the legislative history of the 1981 Session clearly shows that the payment of overtime for the Deputies and rate thereof is optional at the discretion of the Lake County Commissioners.

Chapter 603 of the 1981 Session Laws (encoded in Title 7, Chapter 4, Part 25, MCA) provides in section 3 that a sheriffs department may establish a work period other than the 40 hour workweek established by the MWOCA for determining when an employee may be paid overtime. Section 4 of Chapter 603 provides that the county commissioners may, by resolution, establish that a deputy sheriff who works in excess of his regularly scheduled work period will be compensated for the hours worked in excess of the work period at a rate to be determined by the commissioners. Sections 3 and 4 of Chapter 603 have been codified as Section 7-4-2509(1) and (2) respectively:

“7-4-2509. Sheriff’s department — work period in lieu of workweek — overtime compensation. (l)(a) A sheriffs department may establish a work period other than the workweek provided in 39-3-405 or 7-32-2111 for determining when an employee may be paid overtime.

(b) The aggregate of all work periods in a year, when expressed in hours, may not exceed 2,080 hours.

(2) The board of county commissioners may by resolution establish that any undersheriff or deputy sheriff who works in excess of his regularly scheduled work period will be compensated for the hours worked in excess of the work period at a rate to be determined by that board of county commissioners.” (Emphasis added.)

The District Court correctly points out in its order affirming summary judgment that by use of the permissive word may the legislature made it perfectly clear that payment of overtime for deputy sheriffs and the rate thereof is optional at the sole discretion of the county commissioners. The legislative history of House Bill 558 (enacted as Chapter 603) and Senate Bill 375 supports the same conclusion.

As originally introduced, House Bill 558 was to provide that restrictions imposed upon the compensation of deputy sheriffs does not apply to payment for hours worked overtime. Senate Bill 375, as originally introduced, provided that a sheriffs department may establish a work period other than a 40 hour workweek for determining when an employee must be paid overtime and further provided that any deputy sheriff who works in excess of his work period must be compensated at a rate not less than IV2 times his hourly rate. Senate Bill 375 specifically provided:

“NEW SECTION. Section 3. Option to establish workperiod in lieu of workweek. (1) A sheriff’s department may establish a workperiod other than the workweek provided in 39-3-405 for determining when an employee must be paid overtime.

“(2) The aggregate of all workperiods in a year, when expressed in hours, may not exceed 2,080 hours.

“NEW SECTION. Section 4. Compensation for hours worked overtime. Any undersheriff or deputy sheriff who works in excess of his regularly scheduled workperiod must be compensated for the hours worked in excess of the workperiod at a rate of not less than IV2 times the hourly rate at which he is employed.” (Emphasis added.)

As reported out of the Committee on State Administration on Second Reading, the caption of House Bill 558 had been amended to read: “An Act to Revise the Compensation Provisions Relating to Deputy Sheriffs and Undersheriffs” and contained the mandatory provisions incorporated from Senate Bill 375 set forth above.

As passed in its final form, Section 3 (Section 7-4-2509(1)(a)) was amended by changing the phrase “when an employee must be paid overtime” to “when an employee may be paid overtime.” Furthermore, Section 4 (Section 7-4-2509(2)) was amended by deleting the provision that a deputy sheriff must be compensated for overtime at a rate of IV2 times his hourly rate and substituting the provision as set forth above that the commissioners may, by resolution, provide for overtime and the rate thereof.

We conclude, as does the District Court, that by the permissive language in the law passed by the 1981 legislature and by the legislative history set forth above, that payment of overtime for deputy sheriffs and the rate thereof is optional at the discretion of the county commissioners. As the District Court succinctly stated:

“It is painfully clear that the legislature considered the issue head-on, fully considered mandating the payment of overtime hours for deputy sheriffs at the same rate as the Minimum Wage Act and decided to make such overtime payment and the rate thereof optional at the discretion of the county commissioners .... It would be an insult to the legislature to question their intent in amending the legislation from the mandatory “must” as introduced, to the permissive, discretionary “may” as passed by that body.”

As applied to the instant case, the Lake County Commissioners exercised their discretion beginning October 1,1981, by their failure to adopt a resolution providing for the payment of overtime compensation to the Deputies under Section 7-4-2509(2), MCA. This means the Deputies received no pay for hours worked in excess of a 40 hour workweek. As the District Court points out, this result may seem unfair, but it was not unlawful.

As pointed out in the facts section of this opinion, the Lake County Commissioners have now adopted a resolution providing for the payment of overtime compensation to the Deputies retroactive to April 15,1985. This new resolution was based on the United State Supreme Court decision of Garcia v. San Antonio Metropolitan Transit Authority (1985), _ U.S. _, 105 S.Ct. 1005, 83 L.Ed.2d 1016, which basically held that the minimum wage and overtime compensation provisions of the Fair Labor Standard Act (“FLSA”) are now to be enforced against states and their political subdivisions. Therefore, overtime compensation for the Deputies is now mandatory.

II.

Whether the Deputies are entitled to have longevity benefits calculated at the rate of 1% for every 2,080 hours worked rather than 1% for each calendar year?

As part of the 1981 Legislature’s program to redefine the forms of compensation for deputy sheriffs, Section 5 of Chapter 603 (codified as Section 7-4-2510, MCA) was enacted providing as follows:

“7-4-2510. Sheriff’s department — longevity payments. Beginning on the date of his first anniversary of employment with the department and adjusted annually, a deputy sheriff or undersheriff is entitled to receive a longevity payment amounting to 1% of the minimum base annual salary for each year of service with the department. This payment shall be made in equal monthly installments.”

The Deputies correctly point out that the language of this statute is simple. Beginning on October 1, 1981, a deputy sheriff is entitled to additional compensation of 1% of the minimum base salary “for each year of service with the department.” The Deputies argue that the term “year of service” means 2,080 hours as specifically defined by the Attorney General. See, 39 Op. Att’y Gen. 78 (1982). Lake County, on the other hand, argues the term “year of service” means 365 days or a calendar year.

We hold the term “year of service” as used in Section 7-4-2510, MCA, should be given its ordinary meaning — 365 days or a calendar year. We agree with Lake County and the District Court that had the legislature intended that the term “year of service” to mean 2,080 hours they would have explicitly said that in the statute. Therefore, the Deputies are entitled to longevity payments for each calendar year of service with the department.

III.

Whether the Deputies are entitled to overtime benefits at the rate of time-and-a-half over 40 hours per week beginning April 15, 1985?

As noted above, the District Court found that the United States Supreme Court case of Garcia mandated overtime compensation for the Deputies effective April 15, 1985. The net effect of the Garcia decision was to apply the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. Section 201 et seq. to the Deputies. Section 207(k) of the FLSA provides basically that the overtime threshold for the Deputies is the lessor of 216 hours per 28 day work period or the average number of hours determined in a study done by the Secretary of Labor. The results of the study done by the Secretary of Labor provided the lesser figure of 171 hours per 28 day work period (approximately 43 hours per 7 day work period). It is this 171 hour threshold that is currently being applied to the Deputies by Lake County and which was found to be appropriate by the District Court.

The Deputies argue the proper threshold for commencement of overtime in the state of Montana is 160 hours under the MWOCA (40 hours per 7 day work period), not 171 hours. It must be observed, the Deputies stress, that the holding of the Garcia case was simply that the FLSA applied to governmental employees, including deputy sheriffs. It is also true, the Deputies concede, that the maximum number of hours that can be worked under the requirements of Section 207(k) of the FSLA is 171 hours per 28 days. However, the Deputies point out, the FLSA also includes Section 218(a) which provides as follows:

“Section 218. Relation to other laws.

(a) No provision of this Act or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this Act or a maximum workweek lower than the maximum workweek established under this Act ...”

The Deputies argue the purpose of Section 218 is to provide the employee with a benefit of the lower maximum work week established either by federal law (171 hours) or state law (160 hours). Since the MWOCA establishes a maximum workweek lower than the maximum workweek established under the FLSA, the Deputies argue there is no excuse for noncompliance with the MWOCA.

The argument set forth by the Deputies may be theoretically sound, but it is fundamentally flawed for one very important reason — the MWOCA does not apply to the Deputies. As explained under Issue I, the MWOCA does not apply to the Deputies because of “particularized and special” statutory treatment by the legislature. Therefore, because the MWOCA does not apply to the Deputies, federal law (FSLA) is the only law left to establish the payment of overtime for the Deputies. Consequently, the Deputies are entitled to compensation for overtime (retroactive to April 15, 1985) pursuant to the requirements of Garcia and the FLSA, and Lake County to date has been properly compensating the Deputies based on this standard.

IV.

Whether the Deputies are entitled to compensation for “on-call” time?

As a condition of their employment, the Deputies argue they are required to be “on-call” at various times by Lake County. The Deputies now argue they are entitled to be compensated by Lake County for this “on-call” time. The term “on-call” as used in this case means time which is after regularly scheduled work hours for the Deputies, or a day off when the Deputies are out of uniform. The Deputies claim the “on-call” policy of Lake County severely restricts their off-duty time because they are required to either remain at home or in a patrol car in anticipation of being summoned back to work. The current policy of Lake County is not to compensate the Deputies for “on-call” time.

We agree with the District Court that payment, if any, and the rate to be paid, if any, for “on-call” time was entirely discretionary with Lake County prior to the effective date of the Garcia case, April 15,1985. The Deputies claim for “on-call” time prior to Garcia is simply another overtime claim which was addressed by this Court under Issue I. Since the Lake County Commissioners did not exercise their discretion and pass a resolution providing for the compensation of “on-call” time, the Deputies are not entitled, as a matter of law, to any such compensation.

With regard to compensation for “on-call” time since April 15, 1985, we adopt the argument set forth by Lake County that “on-call” time for the Deputies is not compensable as work time. Lake County has provided this Court with a practical test to gauge just what constitutes “work.” The United States Supreme Court, as Lake County explains, has laid down a three-part standard to define work or employment:

“[W]e cannot assume that Congress [in the Fair Labor Standards Act] here was referring to work or employment other than as those words are commonly used — as meaning [1] physical or mental exertion (whether burdensome or not) [2] controlled or required by the employer and [3] pursued necessarily and primarily for the benefit of the employer and his business.”

Tennessee Coal, Iron and Railroad Co. v. Muscoda Local No. 123 (1944), 321 U.S. 590, 598, 64 S.Ct. 698, 703, 88 L.Ed 949, 956.

Tennessee Coal was a case decided by the Supreme Court under the FLSA. The high Court, in announcing this test, was interpreting Section 3(g) of the FLSA which reads “ ‘employ’ includes to suffer or to permit work.” 29 U.S.C. Section 203(g). As Lake County points out, this is exactly the same definition of “employ” that the Montana Legislature has adopted in Section 39-3-201(2), MCA, (“ ‘employ’ means permit or suffer to work”).

We therefore adopt the Supreme Court's well-reasoned definition of work or employment as used in interpreting Montana’s identical statutory language.

Further, as Lake County points out, the tenor of federal law in this circuit supports the conclusion that “on-call” time is to be distinguished from work time. The Ninth Circuit Court of Appeals states:

“The Act [FLSA] does not require payment of wages to an employee merely because he is away from home. Nor does the Act undertake to regulate or restrict reasonable and bona fide agreements whereby an employee agrees to be available if needed. ‘Working’ is not synonymous with availability for work.”

Fox v. Summit King Mines (9th Cir.1944), 143 F.2d 926, 932.

We agree with Lake County that the Deputies claim trader this issue does not stand up under the Tennessee Coal test. On-call time for the Deputies requires no physical or mental exertion. At best, the Deputies may claim they are making themselves available for work. The mere availability for work does not automatically translate into compensable “work” time under any common understanding of that term. Furthermore, Lake County, pursuant to Garcia and the FLSA, is currently paying the Deputies overtime compensation. And, as noted by Lake County, in those occasional emergency situations where a Deputy is called back for extra duty, he will be fully compensated for any overtime actually worked.

We hold that the Deputies’ “on-call” time since October 15, 1985, is not compensable as work time, and therefore should not be entered into any calculation for overtime compensation.

V.

Whether the Deputies are entitled to penalties, interest, attorney’s fees and costs?

As a result of this litigation, the Deputies point out, the District Court ruled they were entitled to overtime compensation retroactive to April 15, 1985, pursuant to the Garcia decision. The Deputies argue the effect of the District Court’s order is a finding in their favor that Lake County failed to pay its employees as required by law. That finding, the Deputies argue, entitles them to a mandatory penalty (Section 39-3-206, MCA), interest (Section 27-1-211, MCA), attorney’s fees and costs (Section 39-3-214, MCA) under state law.

The Deputies contend that although they specifically raised their demands for penalties, interest, attorney’s fees and costs to the District Court, the court ruled these damages were not applicable. The Deputies argue this was error since the court ruled in their favor as to part of their claim for overtime compensation. Therefore, the Deputies request that this Court order Lake County to pay a penalty, interest, attorney’s fees and costs on the post-Garcia overtime which the District Court found to be due and unpaid.

We hold that the Deputies’ claim for the above mentioned damages must fail. Although the District Court ruled that the Deputies were entitled to overtime compensation from April 15, 1985, forward, this finding does not entitle the Deputies to damages under state law. As the Deputies readily admit, their award of overtime compensation was based on the United States Supreme Court’s decisión in Garcia. In relying on the Garcia decision, the Deputies are not contending that their post-April 15, 1985, overtime was awarded under color of state law. Rather, the District Court’s award must be traced directly to the Deputies federal claims under Garcia and the FLSA. Therefore, because the Deputies did not receive their overtime compensation award under state law, a state law award of a penalty, interest, attorney’s fees and costs is entirely inappropriate. Consequently, the Deputies’ claim for these damages under Montana law must fail.

The Deputies in their briefs and during oral argument failed to assert that Lake County might also be liable for damages under federal law because of their post- Garcia overtime entitlement. This Court must assume that because the Deputies failed to discuss any possible damages against Lake County under federal law, they are conceding that Lake County is not liable for any penalties, interest, attorney’s fees or costs under the FLSA. After reviewing the applicable law in this area, we agree with the Deputies’ tacit conclusion.

The judgment of the District Court is affirmed.

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

MR. JUSTICE MORRISON,

dissenting:

I respectfully dissent from the majority opinion and would hold that the deputies are entitled to the overtime provisions of Section 39-3-405, MCA, which provides that no employer shall employ any employees for workweek longer than 40 hours unless that employer pays one and one-half times the hourly wage rate.

The majority opinion assumes that the Lake County Sheriff established a work period in compliance with the provisions of Section 7-4-2509, MCA. Judge McNeil apparently made the same assumption. The record conclusively shows that no such election was made.

Section 7-4-2509(1), MCA, states:

“Sheriff’s department — work period in lieu of workweek — overtime compensation. (l)(a) A sheriff’s department may establish a work period other than the workweek provided in 39-3-405 or 7-32-2111 for determining when an employee may be paid overtime.

“(b) The aggregate of all work periods in a year, when expressed in hours, may not exceed 2080 hours.” (Emphasis supplied.)

Deputy sheriffs work irregular hours. Some weeks they may work more than 40 hours per week because of working special events. Some weeks they might work less. Counties did not want to be subject to paying time and a half under the minimum wage law, Section 39-3-405, MCA, where deputies work more than 40 hours in one week but less than 40 hours in another week. This situation led to the enactment of Section 7-4-2509, MCA. If a county wished, it could elect to escape the provisions of Section 7-4-2509, MCA, by establishing set work periods where the total hours in a year would not exceed 2,080, which is 40 hours per week times 52 weeks.

Lake County did not ever establish work periods pursuant to Section 7-4-2509, MCA. Therefore, under the clear terms of the statute, Section 39-3-405, MCA, applies.

The majority opinion mistakenly states that the heart of this issue “centers around the Court’s decision in City of Billings v. Smith (1971), 158 Mont. 197, 490 P.2d 221.” The Billings case has no application because in 1981 the legislature enacted Section 7-4-2509, MCA.

The majority opinion correctly points out that the specific controls over the general. Section 7-4-2509, MCA, is the specific statute which controls the disposition of this case. Under that statute, Lake County failed to establish a work period and, by virtue of the statute, is subject to the payment of overtime wages pursuant to the mandate of Section 39-3-405.

This case should be reversed and remanded for proceedings in accordance with the views expressed in this dissent.


author: MR. JUSTICE SHEEHY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LELAND F. DOCKEN, Defendant and Appellant.
    No. 85-264.
    Submitted on Briefs April 17, 1986.
    Decided June 12, 1986.
    Rehearing Denied July 15, 1986.
    720 P.2d 679.

      Gregory A. Jackson, Helena, for defendant and appellant.
    Mike Greely, Atty. Gen., Barbara Claassen, Asst. Atty. Gen., Helena, John P. Connor, Co. Atty., Boulder, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Leland Docken appeals from a guilty plea on a charge of deliberate homicide and sentence by the District Court of the Fifth Judicial District, Jefferson County, to 100 years in the Montana State Prison. We affirm.

Docken raises two issues on appeal. Was he denied effective assistance of counsel? Was his guilty plea entered intelligently and voluntarily?

The victim, Terrance McGlynn was an associate professor at the Butte School of Mines, and the defendant’s father-in-law. He was last seen on April 14, 1984 in Butte in the company of the defendant. When he failed to return home, an investigation into his disappearance began. On April 21, 1984, Docken was arrested by Butte-Silver Bow authorities, and given his Miranda warning. Within minutes he gave a 110-page transcribed statement which indicated he argued with the victim who had advised his daughter to divorce Docken. A struggle ensued and Docken shot and killed McGlynn. Docken led authorities to the grave site where the body of the victim was found. Autopsy reports indicated the victim died as a result of a single .22 caliber gunshot wound to the chest. The evidence indicated that the gun used was borrowed by defendant from his brother-in-law two days prior to the shooting. It was fully loaded when borrowed and when returned one day after the shooting, there had been one shot fired. The bullet that killed the victim was forensically shown to have come from that gun. The pick and shovel used to dig the grave were in Docken’s possession prior to the incident. Witnesses placed Docken at or near the scene of the grave, on the day of the incident. Two days after the killing, Docken went to Billings and made purchases on the victim’s credit card. Docken at all times denied recollection of the events up to and including the statement.

Docken was arraigned on June 4, 1984. He entered a plea of not guilty. His court-appointed lawyer filed notices of intent to rely on the defenses of mental disease or defect and justifiable use of force. He also requested psychological evaluation and treatment. The court granted the request for psychological evaluation and counseling. On July 27, 1984, the defendant’s counsel filed a notice of withdrawal of defenses of mental disease and justifiable use of force.

On August 3, 1984, the defendant signed two documents entitled “Memorandum to File” which outline the facts related to the charge of deliberate homicide and the circumstances of the appellant’s decision to plead guilty. One memorandum states, “[t]he purpose of this memorandum is to demonstrate that I made my decision independently and on my own, although after consultation with both the prosecuting attorney and my attorneys.” The memoranda were prepared by his attorneys to ensure that the appellant understood the charges, the nature of the plea bargain, and the consequences of pleading guilty, including the possible sentence.

The defendant signed an “Acknowledgment of Waiver of Rights by Plea of Guilty” on August 6, 1984. Thereafter, he pled guilty before the District Court to the charge of deliberate homicide. He was sentenced, following a hearing, to 100 years imprisonment as a dangerous offender.

The defendant did not file a motion to withdraw his guilty plea. On October 23, 1984, he filed a pro se motion for a new trial. The motion claimed, inter alia, that he was denied effective assistance of counsel. On November 13, 1984, he filed a notice of appeal from the judgment and sentence.

The District Court denied the defendant’s motion for a new trial and set a hearing on the defendant’s other post-conviction requests. At the hearing, the court released the court-appointed attorneys from representation of the defendant. Docken stated that his guilty plea was not voluntarily entered, claiming that he “didn’t understand it exactly at the time.” Thereafter, the District Court appointed the current counsel to represent him “for purposes of his appeal and/or petition to withdraw his plea of guilty.”'

The first issue on appeal is whether Docken was denied effective assistance of counsel. Recently this Court stated that “[p]ersons accused of a crime are entitled to the effective assistance of counsel acting within the range of competence demanded of attorneys in criminal cases.” State v. Rose (1980), 187 Mont. 74, 86, 608 P.2d 1074, 1081. The standards for effective assistance of counsel were set out by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by Montana in State v. Boyer (Mont. 1985), [208 Mont. 258,] 695 P.2d 829, 831, 42 St.Rep. 247, 250:

“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose results are reliable.”

To show prejudice:

“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of a proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” State v. Robbins (Mont. 1985), [218 Mont. 107,] 708 P.2d 227, 232, 42 St. Rep. 1440, 1444.

The United States Supreme Court recently held the same standards apply when the claim of ineffective assistance of counsel is made with regard to a guilty plea. Hill v. Lockhart (1985),-U.S __, 106 S.Ct. 366, 88 L.Ed.2d 203.

Docken contends he was denied effective assistance of counsel because his attorneys did not move to suppress his confession. He contends the confession was not freely, voluntarily, and intelligently given because Docken repeatedly asserted he could not recall the statement and that his chronic alcohol and drug abuse had altered his memory. However, there is no evidence in the record that he was under the influence of alcohol or drugs when he made the statement. As to his claim that he did not remember the statement, he reiterated the sequence of events to the court before entering a plea and signed a memorandum restating the facts. Under the circumstances, Docken has not shown that counsel’s decision not to file a motion to suppress was error. Thus he does not meet the first tier of the ineffective assistance of counsel standard.

Docken next contends counsels’ withdrawal of the affirmative defenses of justifiable use of force and mental disease or defect deprived him of a defense. He contends that with all his defenses removed he had no hope of prevailing at trial and had to plead guilty. He claims the failure of his counsel to pursue these defenses constitutes ineffective assistance.

The record shows that the defense of justifiable use of force was unsupported by the facts. The defense of mental disease or defect was withdrawn after Docken was evaluated by doctors at Warm Springs State Hospital. They stated he did not have a mental disease or defect and that he could have acted with the requisite mental state.

In view of this evidence, Docken cannot meet the first tier of the ineffective assistance of counsel test by showing his counsel erred by withdrawing these defenses. In fact, the record reflects a diligent effort made by counsel in spite of the overwhelming evidence of their client’s guilt.

Next Docken contends that he did not enter his guilty plea with full understanding of the consequences, and that he should have been informed of his right to appeal a jury conviction.

The standards for entry of a guilty plea were set in State v. Lewis (1978), 177 Mont. 474, 582 P.2d 346.

In Lewis, we stated:

“We hold that when in the sentencing procedure, the District Court carefully, as here, examines the defendant, finds him to be competent, and determines from him that his plea of guilty is voluntary, he understands the charge and his possible punishment, he is not acting under the influence of drugs or alcohol, he admits his counsel is competent and he has been well advised, and he declares in open court the facts upon which his guilt is based, then a plea of guilty accepted by the District Court on the basis of that examination will be upheld; and a motion later made by the defendant, as here, to gainsay in effect what the defendant earlier represented to the District Court, apparently to receive a lighter sentence, can not be given any degree of credence.”

177 Mont. at 485, 582 P.2d at 352.

The record shows that the guilty plea accepted by the District Court explained the charge, the minimum and maximum punishment, his rights as a defendant and at trial, what rights he waived by pleading guilty, the consequences of a guilty plea, that the county attorney agreed not to seek the death penalty, but could recommend any sentence, and set out the factual basis for the guilty plea. It also states he is competent, not under the influence of alcohol or drugs and has been well advised. In addition, three days prior to the entry of the guilty plea in open court, Docken signed two memoranda to file. One memorandum describes the events leading up to the murder and the murder of his father-in-law. It discusses the conferences Docken had with his attorneys during which the possibility of a guilty plea was discussed. It states that after pondering this decision in many conferences, Docken instructed his attorneys to make arrangements for the entry of his plea. The memorandum states that his attorneys repeatedly advised that the decision to plead guilty was entirely in his control, and that decision was made independently.

The other memorandum discusses the possible sentence for deliberate homicide and that the county attorney agreed to not recommend the death penalty in exchange for a guilty plea, but reserved the right to recommend any sentence, including imprisonment for 100 years. It states that his attorneys made no recommendation for or against a guilty plea, but that after consideration he decided to plead guilty to avoid the trauma of trial for his parents, children, family, and wife. Given the evidence in the record that the defendant gave his guilty plea intelligently and voluntarily, we hold the District Court did not err in refusing to set aside his guilty plea. We affirm the conviction and sentence of the defendant.

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


author: MR. JUSTICE HUNT MR. JUSTICE SHEEHY,

text:
    KYLE W. YEAROUT, Claimant and Appellant, v. RAINBOW PAINTING, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 85-418.
    Submitted on Briefs March 6, 1986.
    Decided June 12, 1986.
    719 P.2d 1258.

      Law Offices of John C. Hoyt, Kurt M. Jackson, Great Falls, for claimant and appellant.
    Allen B. Chronister, Asst. Atty. Gen., Helena, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Kyle Yearout appeals the order of the Workers’ Compensation Court denying his claim for attorney’s fees. We affirm.

The sole issue on appeal is whether the Workers’ Compensation Court erred by refusing to assess attorney’s fees and costs against the State Compensation Insurance Fund pursuant to Section 39-71-611, MCA?

In 1984, Yearout was employed by Rainbow Painting, a Great Falls based company. At the time of his injury, he was working at a radar base north of Havre. Yearout and his foremen drove from Great Falls on Monday and Thursday mornings; Monday, Tuesday and Thursday evenings they stayed at on-site housing. The foreman was reimbursed by the company for his gasoline expense, and his pickup generally had work tools in it and was used at the site.

On November 21, 1984, Yearout and his foreman had worked an early eight hour shift in order to get back to Great Falls for the Thanksgiving holiday weekend. About 33 miles north of Havre, the pickup slid out of control on the ice and rolled several times. Yearout was severely injured. Yearout filed a report of the accident with Rainbow, but continued to work until his doctor told him to quit on December 21, 1984. On December 27, 1984, he filed a claim with the State Fund.

A State Fund claims examiner investigated the claim and denied it, finding that Yearout was off duty at the time of the accident. At that time, no information was given the examiner that Rainbow supplied the fuel for the foreman’s pickup. The claim was denied January 28, 1985. Yearout hired an attorney on February 4, 1985.

Discovery was conducted and depositions taken. The matter was scheduled for trial June 11,1985. At the commencement of the hearing, State Fund legal counsel announced that it was conceding liability, that it would pay medical and compensation benefits as well as a 20 percent penalty pursuant to Section 39-71-2907, MCA, for unreasonable delay or refusal to pay benefits. Yearout’s counsel argued that Yearout was also entitled to attorney’s fees pursuant to Section 39-71-611, MCA. The parties briefed the issue. By order dated August 9, 1985, Judge Reardon denied the claim for attorney’s fees finding that the matter had not been adjudicated, and that Cosgrove v. Industrial Indemnity Co. (1976), 170 Mont. 249, 552 P.2d 622, barred recovery in this instance. This appeal followed.

It has long been the rule in Montana that attorney’s fees are not recoverable absent some special agreement between the parties or statutory authorization. Wilson v. Department of Natural Resources and Conservation (1982), 199 Mont. 189, 648 P.2d 766, 39 St.Rep. 1294; Nikles v. Barnes (1969), 153 Mont. 113, 454 P.2d 608. The statutory authorization for attorney’s fees claimed by appellant is found at Section 39-71-611, MCA. That section states:

“In the event an insurer denies liability for a claim for compensation or terminates compensation benefits and the claim is later adjudged compensable by the workers’ compensation judge or on appeal, the insurer shall pay reasonable costs and attorneys’ fees as established by the workers’ compensation judge.”

Yearout argues that he was forced to file a petition for hearing and invoke the power of the Workers’ Compensation judge to award attorney’s fees. State Fund argues that the statute is clear on its face and no attorney’s fees may be awarded until the claim is “adjudged compensable by the Workers’ Compensation judge or on appeal,” and in this case, there was no adjudication as State Fund conceded liability at the commencement of the hearing.

In its order denying Yearout's request for attorney’s fees, the Workers’ Compensation Court declared:

“[T]he claimant herein argues that but for counsel’s efforts, the defendant would not have accepted liability. The record in this proceeding supports that conclusion. It is clear to the Court that but for counsel’s efforts the insurer would not have pursued investigation of this claim. The necessary depositions would not have been taken and the defendant’s denial likely would have been unchanged. Yet, reluctantly the Court must agree with the defendant that there has been no adjudication which would allow this Court to assess an attorney fee against the insurer.”

We agree with the Workers’ Compensation Court.

The rules of statutory construction were discussed by this Court in Montana Contractors’ Association v. Department of Highways (Mont. 1986), [220 Mont. 392.] 715 P.2d 1056, 43 St.Rep. 470. One function of this Court is to construe legislation. The first step in such construction is to look to the language used. If the language of the statute is clear and unambiguous, the statute speaks for itself and there is nothing for the Court to construe.

In this case, the statute authorizing attorney’s fees, Section 39-71-611, MCA, is clear and unambiguous. If an insurer denies liability for a claim for compensation, the insurer is liable for attorney’s fees if the claim is later adjudged compensable by the Workers’ Compensation judge. It is clear from the language of the statute that there must be an adjudication of compensability before an award of attorney’s fees is authorized.

We addressed this issue before in Cosgrove v. Industrial Indemnity Co. (1976), 170 Mont. 249, 552 P.2d 622, wherein we stated:

“Plaintiff argues that under the rule of liberal construction Section 92-616 [presently Section 39-71-611, MCA] should be interpreted as requiring the payment of attorneys’ fees when the insurer has attempted to circumvent the statutory provision by agreeing to pay compensation before there has been an adjudication of compensability ....

“While we must and do agree that the Workmens’ Compensation Act should be construed liberally and in favor of the working man, the language of the statute must first allow some room for construction. It is obvious that Section 92-616 . . . requires that the claim be ‘adjudged compensable, by the division or on appeal’ before the insurer can be required to pay attorney fees. There has been no finding or adjudication of compensability by the Division or by the Worker’s Compensation Court in this case.

“We must rule on the law as it is and not what some may desire it to be.”

Cosgrove, 170 Mont. 254-255, 552 P.2d 622.

Our reasoning in Cosgrove is equally applicable to and dispositive of this case, and Yearout’s attempts to distinguish Cosgrove from the instant case are not persuasive. There was no adjudication of compensability by the Workers’ Compensation Court in this case, hence no award of attorney’s fees is justified under Section 39-71-611, MCA. We agree that there are equitable arguments favoring payment of attorney’s fees by an insurer who denies a claim and then accepts liability after judicial proceedings have begun. However, such arguments must be presented to the Legislature. This Court must follow the law as written, and no award of attorney’s fees is justified by Section 39-71-611, MCA, under the facts of this case.

For the foregoing reasons, we affirm the order of the Workers’ Compensation Court.

MR. JUSTICES HARRISON, WEBER and GULBRANDSON concur.

MR. JUSTICE SHEEHY,

dissenting:

It is merely coincidental that Justice Hunt, who authors the majority opinion, was the Workers’ Compensation Judge whose decision not to award attorneys fees was affirmed in Cosgrove v. Industrial Indemnity Company (1976), 170 Mont. 249, 552 P.2d 622.

For my part I think we construe Section 39-71-611, MCA, too narrowly under the facts of this case. When the claimant, whose benefits had been refused by the State Fund, had to resort to the Workers* Compensation Court for relief, he did so under Section 39-71-2905, MCA. Under that statute, the Workers’ Compensation Judge has exclusive jurisdiction to make determinations concerning disputes for workers’ compensation. When a claim has been unreasonably delayed or refused by the insurer, either prior to or subsequent to the issuance of an order by the Workers’ Compensation Judge, the claimant is entitled to a penalty of 20 percent of the benefits under Section 39-71-2907, MCA.

A pretrial order in this case was entered by the Workers’ Compensation Court, agreed to by the parties on June 11, 1985. Under Section F. entitled “Issues to be Determined by the Court” the three issues listed were: (1) whether claimant was injured within the course and scope of his employment, (2) whether he was entitled to costs and attorneys fees pursuant to Section 39-71-611, MCA, and (3) whether he was entitled to the 20 percent penalty under Section 39-71-2907, MCA.

On the same day however, June 11, 1985, both counsels appeared before the Workers’ Compensation Court and there counsel for the State Fund confessed to the Court that the claim was compensable, and that the claimant was entitled to the 20 percent penalty for unreasonable delay. The question of claimant’s right to attorneys fees was reserved for briefing and the further order of the Court.

Although the Workers’ Compensation Court had exclusive jurisdiction of the claim at that point, it did not enter an order based on the stipulated liability of the State Fund. Since the Court had exclusive jurisdiction of all the issues under Section 39-71-2905, MCA, it should of course had entered an order making binding the stipulated liability. The claimant in this case was entitled to a binding order from the Workers’ Compensation Court, which would have the effect of an adjudication for the purpose of attorneys fees under Section 39-71-611, MCA.

There is an important reason why attorneys fees as well as the penalty should be exacted in this case. Under Section 39-71-2905, MCA, it is provided that “the penalties and assessments allowed against an insurer under Chapter 71 are the exclusive penalties and assessments that can be assessed against an insurer for disputes arising under Chapters 71.” Here there is admission by the State Fund that it acted unreasonably in delaying refusing benefits to the claimant. If its actions were not in good faith, it is not liable for punitive damages. Birkenbuel v. Montana State Comp. Ins. Fund (1984), [212 Mont. 139,] 687 P.2d 700. It is the obvious intention of the legislature that penalties and assessments against the State Fund in particular are the weapons available to the Workers’ Compensation Court to ensure fair dealing with claimants. We should interpret the penalties and assessments to make the legislative intent effective.

I therefore dissent and would award in this case attorneys fees and costs, in addition to the 20 percent penalty. .


author: MR. JUSTICE HUNT

text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. DAN NICHOLS, Defendant and Appellant.
    No. 85-425.
    Submitted March 10, 1986.
    Decided June 12, 1986.
    720 P.2d 1157.

      Ungar Law Office, Steven B. Ungar argued, Bozeman, for defendant and appellant.
    Mike Greely, Atty. Gen., Judy Browning argued, Asst. Atty. Gen., Marc Racicot, Co. Prosecutor, Helena, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Defendant Nichols appeals the sentence imposed by the District Court, Fifth Judicial District, after his conviction on charges of felony kidnapping and misdemeanor assault. The District Court sentenced Nichols to:

1. Ten years at the State Prison for felony kidnapping;

2. Six months at the State Prison for misdemeanor assault;

3. Ten years at the State Prison for use of a firearm while engaged in the commission of felony kidnapping (all sentences to be served consecutively).

The District Court further designated the defendant-appellant a dangerous offender for the purpose of parole eligibility pursuant to Section 46-18-404, MCA. In addition, the District Court strongly recommended, “that the Warden of the Montana State Prison, when and if he determines it to be a proper case therefor, transfer the defendant to the Swan River Forest Youth Camp to serve the sentence herein imposed.”

Appellant presents a number of issues for our review:

1. Whether Section 46-18-404(1) (b), MCA, which empowers a district judge to designate a convicted defendant as a dangerous offender, if he represents a “substantial danger to other persons or society,” violates the Federal or Montana Constitutions because it offends due process of law by:

(a) not requiring that the defendant receive notice that the State will seek the application of dangerous offender designation, and the factual basis of the State’s request for that designation, and

(b) by containing a standard so vague as to allow arbitrary exercise of judicial power.

2. Whether the District Court abused its discretion in imposing sentence:

(a) by designating Nichols a dangerous offender;

(b) by enhancing Nichols’ sentence for kidnapping because a weapon was used in the commission of the crime, because it found the exceptions to the enhancement statute did not apply;

(c) by what Nichols claims amounts to sentencing him for the crime of deliberate homicide, despite his acquittal of that offense; and

(d) by imposing a sentence which is internally inconsistent and against the weight of substantial and credible evidence?

We affirm the District Court.

This appeal arises from an ill-conceived plan of the appellant and his father to secure a woman to augment their lives as self-professed “mountain men.” On July 15, 1985 they put their plan into action. The appellant Dan Nichols and his father, Don Nichols, abducted Kari Swenson as she jogged around a lake in the mountains near Big Sky, Montana. After they tied her wrist to Dan’s they proceeded deeper into the mountains. After traveling for awhile they decided to make camp. Kari, still tied wrist-to-wrist to the defendant, was taken to a tree where a chain was placed around her waist and then around the tree and fastened with a padlock. Kari testified that she had trouble moving. Later they moved Kari to another location nearby that had been prepared as a sleeping area. She was taken there with one end of the chain around her waist. When they got there they chained the other end around a tree and gave her a sleeping bag. She was unable to get all the way into the sleeping bag because of the chain. She testified that she did not sleep that night.

The next morning while the father was out of the camp on an errand, Kari begged the defendant to let her go but he told her, “No, I want to keep you. You’re pretty.” She testified that she was crying and close to hysterics and asked him six or seven times to let her go but he refused.

The next morning Alan Goldstein, a friend of Kari’s who had been looking for her, entered the camp. The appellant raised his pistol and pointed it in Goldstein’s direction. Then he heard sounds behind him of Jim Schwalbe, another searcher, entering the camp. As appellant turned toward the sounds his gun discharged, seriously wounding Kari beneath her right shoulder. While Schwalbe attempted to aid Kari, Goldstein who had withdrawn from the camp, re-entered exclaiming, “You’re surrounded! You might as well give up.” The appellant’s father said they would not give up. He moved from behind a tree, raised his rifle and from twenty feet away fatally shot Alan Goldstein. Schwalbe called Goldstein’s name and ran to him. He then made his escape.

After wounding Kari, Dan Nichols did not further participate in the events until Goldstein lay dead at the scene. Then he and his father quickly prepared to break camp by packing their equipment to leave the area. Kari testified that she was getting cold but despite her pleas to keep the sleeping bag they had given her “they just kind of picked up the end and flopped” her on the ground, took the sleeping bag and left. She did not see them again until the trial.

After they had gone, Kari tried to crawl over to where Goldstein was but only made it as far as the campfire. She tried to start it by adding small sticks and blowing on it but was not successful because of difficulty breathing. She began to get sore and numb. When she tried to move there was a sucking sound from the wound in her chest. She was getting very cold and tried to crawl on her hands and knees to see if she could find something to cover herself with, but was only able to crawl on her stomach a short distance at a time. She did manage to crawl over to a backpack that Jim Schwalbe had dropped. She got into a sleeping bag that she found there. Later she again tried to crawl over to where Goldstein was but could not do so because of her weakening condition. She crawled back into the sleeping bag. She forced herself to stay awake because she feared losing consciousness would lead to her death. She was finally rescued later that day.

Appellant and his father were apprehended December 13, 1984, and charged with deliberate homicide, aggravated kidnapping, assault and intimidation. Separate trials were ordered. Appellant was tried before a jury in the Fifth Judicial District, the Honorable Frank M. Davis, presiding. During the trial, much evidence was produced concerning Donald Nichols’ influence over his son Dan. Both the defense and the prosecution introduced exhaustive lay and expert testimony concerning Dan’s mental state and mental health.

The verdict returned by the jury on May 13, 1985 found appellant guilty of felony kidnapping and misdemeanor assault and not guilty of deliberate homicide. On May 18,1985 the District Court released the appellant on a $35,000 property bond. The court set a sentencing hearing for July 19, 1985. Prior to the hearing the prosecuting attorney sent the defense attorney a letter dated May 24, 1985, which served as notice of the State’s intentions at sentencing.

For sentencing purposes the parties agreed to avoid additional cost by stipulating to use the psychological testimony presented at trial. In addition, they filed sentence recommendations, a presentence investigation report, and other documents. All this material was available to both sides.

During the sentencing the defense presented testimony by Dan Nichols. The State presented the testimony of Kari Swenson. This was followed by closing remarks and pronouncement by the court of the sentence described above.

Issue I: Due Process

A. Notice

Appellant first challenges Section 46-18-404, MCA, as containing two violations of the due process guaranties of both the United States and the Montana Constitution. First, he argues the statute fails to require that the defendant receive notice prior to the sentencing hearing that the State will seek to designate the defendant as a dangerous offender under the statute.

Section 46-18-404, MCA, provides in relevant part:

“(1) The sentencing court shall designate an offender a nondangerous offender for purposes of eligibility for parole under part 2 of chapter 23 if:

“(a) during the 5 years preceding the commission of the offense for which the offender is being sentenced, the offender was neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed; and

“(b) the court has determined, based on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not present a substantial danger to other persons in society ....

“(3) if the court determines that an offender is not eligible to be designated as a nondangerous offender, it shall make that determination a part of the sentence imposed and shall state the determination in the judgment. Whenever the sentence and judgment does not contain such a determination, the offender is considered to have been designated as a nondangerous offender for purposes of eligibility of parole.”

The practical effect of a dangerous offender designation is to deny the defendant parole eligibility until he or she has served one-half of the sentence imposed. Section 46-23-216, MCA. Cavanaugh v. Crist (Mont. 1983), 615 P.2d 890, 892, 37 St.Rep. 1461, 1463. Because of the length of the sentence imposed in this case, 20 years and 6 months, this limitation on parole eligibility also precludes appellant’s transfer to Swan River Youth Camp for ten years, less “good time” credits earned.

Due process requires that a defendant’s liberty interest, and risk of unjust deprivation of that liberty interest, be balanced against the State’s interest in protecting the community. Greenholtz v. Nebraska Penal Inmates (1979), 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668.

It is clear that a convicted defendant’s liberty interest at sentencing does not rise to the level of an accused’s liberty interest at trial. Williams v. New York (1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed.2d 1337. However, “it is also true the rights of the [defendant] must be protected. Due process must be observed in [sentencing] hearings . . .” State v. Harney (Mont. 1972), 499 P.2d 802, 805-806, 160 St.Rep. 55, 62.

Appellant argues that Montana’s statutory structure, under which the sentencing is carried out, indicates the nature and weight of a defendant’s liberty interest in parole. Section 46-18-404(1), MCA, states, “The sentencing court shall designate an offender a nondangerous offender for purposes of eligibility for parole ... if: . . . .” (Emphasis added.) The statute then goes on to list the substantive basis for a nondangerous designation and requires the court to include its determination within the judgment.

Appellant contends this mandatory language, substantive conditions, and accompanying formal procedural requirements are similar to the statutes reviewed by the United States Supreme Court in Greenholtz v. Nebraska Penal Inmates (1979), 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668, and Hewitt v. Helms (1983), 459 U.S. 460, 103 S.Ct. 864, 72 L.Ed.2d 675.

The statute in Greenholtz required that the Board of Parole shall order the release of a prisoner eligible for parole, unless one of four listed substantive provisions applied. In commenting on the nature of the liberty interest the Court noted:

“Respondents emphasize that the structure of the provision together with the use of the word “shall” binds the Board of Parole to release an inmate unless any one of the four specifically designated reasons are found. In their view, the statute creates a presumption that parole release will be granted, and that this in turn creates a legitimate expectation of release absent the requisite finding that one of the justifications for deferral exists.

“We can accept respondents’ view that the expectancy of release provided in this statute is entitled to some measure of constitutional protection. (Citations omitted.)”

442 U.S. at 11-12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 667, 678.

Appellant also cites Hewitt v. Helms, wherein the Court reviewed Pennsylvania statutes to determine the nature of the liberty interest involved in avoiding more restrictive confinement than normal prison confinement:

“[w]e are persuaded that the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.

Hewitt v. Helms (1983), 459 U.S. 460 at 472, 103 S.Ct. 864 at 871, 74 L.Ed.2d 675 at 688.

The State responds that due process requirements at the sentencing stage differ from those at trial and pretrial stages. Williams v. New York (1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed.2d 1337. Traditionally, courts have “very broad judicial discretion” in sentencing because sentencing is less encumbered by procedural formality. Cavanaugh v. Crist (Mont. 1983), 615 P.2d 890, 894, 37 St.Rep. 1461, 1464.

In Cavanaugh, this Court considered a similar notice challenge to Section 46-18-202(2), MCA. That statute allows the sentencing court to completely restrict a defendant’s parole eligibility. This court upheld the statute, remarking,

“The restriction of parole and furlough program eligibility [contained in Section 46-18-202(2)] is ‘a part of the sentence’ by the express terms of the statute and does not involve any proceeding except the ordinary sentencing proceeding. It represents one option, among others, that the legislature has made available to district judges in the course of ordinary sentencing. The full restriction on parole and furlough eligibility permitted by Section 46-18-202(2) has no existence apart from the sentence imposed for the underlying offense.”

Cavanaugh, (Mont. 1983), 615 P.2d at 893, 37 St.Rep. at 1463-64.

The State correctly characterizes the holding of Cavanaugh. However, that holding pertains to the procedure due, not to the nature of the interest implicated. We did not directly address the nature of the interest implicated in Cavanaugh, but we clarify that now. The language of Section 46-18-202, MCA, is discretionary. Therefore it cannot be read to create any more specific liberty interest than that already inherent in a sentencing proceeding.

The language of Section 46-18-404, MCA, is mandatory. This presents a different situation. It can be read to create a liberty interest, in that it limits a sentencing court’s discretion by requiring the court to designate a defendant as a nondangerous offender if the substantive provisions are met. There is no constitutional right to parole. Yet, Section 46-18-404, MCA, when fairly read in conjunction with Section 46-23-216, MCA, indicates a legislatively created interest in being designated a nondangerous offender.

However, because the statute lays out the substantive criteria upon which such a designation must be based, no notice other than notice of the sentencing hearing itself is needed to comport with due process. Appellant has cited us to cases wherein courts have held that the defendant must have notice of the charge and the factual basis upon which the charge is based. However, these cases all involve proceedings apart from the sentencing hearing itself. Hewitt v. Helms (1983), 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (administrative confinement of convicted prisoner); New Jersey Parole Board v. Byrne (1983), 93 N.J. 192, 460 A.2d 103 (parole hearing subsequent to incarceration). Because each of these hearings focuses on one matter, notice must be separate in each matter. A sentencing hearing, unlike those discrete proceedings, requires that many determinations be made. The statutes governing sentencing provide am-pie notice of matters which may come up. These, along with notice of the date of hearing, the full disclosure of presentencing information in open court, the ability of the defendant to propound evidence, to confront witnesses, and to participate in the sentencing proceeding provide a full panoply of due process safeguards for the liberty interest implicated. See, State v. Redding (Mont. 1984), [208 Mont. 24,] 675 P.2d 974, 41 St.Rep. 147; Cavanaugh v. Crist (1983), 615 P.2d at 893, 37 St.Rep. at 1463.

B. Vagueness.

In order to apply the dangerous offender designation the District Court must find that the defendant poses a “substantial danger to other persons or society,” Section 46-18-404(l)(b), MCA. Appellant notes that the term “substantial danger” is not defined in Title 46, or anywhere in the criminal code. Appellant contends that “substantial danger is a term of [so] loose and uncertain meaning,” Wilding v. Norton (1958), 156 Cal.App.2d 374, 319 P.2d 440, that a court’s discretion in defining the term is unfettered. Statutes which allow arbitrary or discriminatory application of the law offend due process.

Appellant argues that state courts have split over the definition of “dangerous,” and therefore provide no persuasive authority for a district court to adopt. Furthermore, because Section 46-18-404, MCA, is void of legislative history, the District Court can find no guidance there. In response the State cites a multitude of cases upholding similar statutes despite vagueness challenges.

We note that arguments similar to those made by the appellant were rejected by the Third Circuit Court of Appeals in construing the term “dangerous” in 18 U.S.C. 3575(f), the federal dangerous offender statute. United States v. Davis (3rd Cir. 1983), 710 F.2d 104. Indeed many other Courts of Appeals have upheld this statute. See United States v. Stewart (6th Cir. 1975), 531 F.2d 326, 336-37, cert. denied., 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376, (1976); United States v. Bowdach (5th Cir. 1977), 561 F.2d 1160, 1175; United States v. Neary (7th Cir. 1977), 552 F.2d 1184, 1194, cert. denied, 424 U.S. 864, 98 S.Ct. 197, 54 L.Ed.2d 139 (1977); United States v. Warme (2d Cir. 1978) 572 F.2d 57, 62, cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 658, 439 U.S. 981, 99 S.Ct. 580, 58 L.Ed.2d 658 (1978); United States v. Cox (8th Cir. 1983), 719 F. 2d 285, cert. denied, 464 U.S. 929, 104 S.Ct. 1714, 80 L.Ed.2d 186 (1984).

We hold that Section 46-18-404(l)(b), MCA, is sufficiently clear to guide the district courts in designating dangerous offenders and does not violate defendant’s right to due process.

Issue II: Discretion of the District Court

A. Dangerous Offender Designation.

The appellant contends the District Court abused its discretion in designating him a dangerous offender. In support of this contention, appellant notes that the District Court released Nichols on bail after conviction and prior to sentencing. This, argues appellant, was an implicit finding that he was not dangerous to society. Cf. French v. Crist (Mont. 1974), 163 Mont. 544, 518 P.2d 35. This Court has held that after placing a defendant on probation and suspending the defendant’s sentence, a district court could not then later designate the defendant as a dangerous offender when his probation was revoked. Smith v. State (1980), 187 Mont. 225, 226-227, 606 P.2d 153 at 155. Furthermore, appellant notes that there was no evidence in the record indicating he posed a future threat. Next appellant argues that the court’s finding of fact No. 10 explicitly reveals the court relied on matters precluded from consideration by Section 46-18-404(2)(a), MCA: that is, past juvenile convictions. That finding includes determinations that the defendant had committed burglary and was a drug abuser. Appellant strongly argues that there is no evidence in the record to support those determinations.

Lastly, the appellant contends that the district judge impermissibly designated him a dangerous offender because the judge did not like appellant’s demeanor. Matter of McFadden (1980), 185 Mont. 220, 605 P.2d 599. The findings of fact and conclusions of law which were filed in August, appear to the appellant as a post hoc rationale for the dangerous offender designation and do not comply with the requirement that the court articulate the reasons for the designation at the time of judgment. State v. Stumpf (Mont. 1980), 609 P.2d 298, 299, 187 St.Rep. 225.

This Court notes that the factual basis of finding No. 10 is in the record. The Court may consider persistence in criminal conduct and failure of earlier discipline to deter or reform the defendant. State v. Maldonado (1978), 176 Mont. 322, 330, 578 P.2d 296, 301. The holding in Smith v. State (Mont. 1980), 186 Mont. 52, 606 P.2d 153, does not apply because in that case the defendant had previously been sentenced without being designated as dangerous. Furthermore, Section 46-18-4042(a), MCA, does not prohibit evidence of juvenile offense, except where the defendant was less than 18 at the time the currently charged offense was committed. Nichols was 19 at the time of the kidnapping. Finally, there is no inconsistency between releasing the defendant on bail after conviction and later designating him as a dangerous offender. The judge properly considered matters arising between conviction and sentencing in determining the designation. Therefore we hold the District Court did not abuse its discretion in designating the appellant as a dangerous offender.

B. Enhancement.

Appellant argues that the statutory exceptions to the statute sentencing court to enhance a defendant's sentence when the offense was committed with a dangerous weapon, apply in this case. The statutes in question provide, in relevant part:

“Section 46-18-221, MCA. Additional sentence for offenses committed with a dangerous weapon. (1) A person who has been found guilty of any offense and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, . . . shall, in addition to the punishment provided for the commission of such offense, be sentenced to a term of imprisonment in the state prison of not less than two years or more than ten years, except as provided in 46-18-222. (Emphasis added.)

“Section 46-18-222, MCA. Mandatory minimum sentences and restrictions on deferred imposition and suspended execution of sentence. All mandatory minimum sentences prescribed by the laws of this state and the restrictions on deferred imposition and suspended execution of sentence ... do not apply if:

“(2) the defendant’s mental capacity, at the time of the commission of the offense for which he is to be sentenced, was significantly impaired, although not so impaired as to constitute a defense to the prosecution;

“(3) the defendant, at the time of the commission of the offense for which he is to be sentenced, was acting under unusual and substantial duress, though not such duress as would constitute a defense to the prosecution.”

Appellant contends he meets both of the exceptions laid out in Section 46-18-222(1) and (2), MCA. He argues that the evidence introduced at trial, and stipulated for use at sentencing, conclusively proves that his mental capacity was significantly impaired and that he was acting under unusual and substantial stress. Appellant cites statements by all three mental health experts for support.

However, we find we do not need to reach the question of the sufficiency of the evidence. Section 46-18-222, MCA, does not apply in this case. Judge Davis did not pronounce a minimum sentence. Section 46-18-222, MCA, does not apply in cases where the maximum sentence is imposed. A careful reading of the statute and this Court’s holding in State v. Stroud (Mont. 1984), [210 Mont. 58,] 683 P.2d 459, 469, 41 St.Rep. 919, 931, indicates that the purpose of the statute is to allow a judge who would otherwise have to pronounce the minimum sentence, to sentence a defendant to less than the minimum sentence when the exceptions apply to the facts.

C. Sentencing for Homicide.

Comments made by the sentencing judge, as well as the fact that the absolute maximum sentence in every respect was imposed, causes the appellant to argue that the judge abused his discretion. Despite the jury’s verdict of not guilty of homicide, the judge stated, “The defendant in my judgment is morally if not equally legally responsible for the death of A1 Goldstein and I can’t sentence him for that.” Appellant contends this comment indicated the judge’s complete disagreement with the jury verdict. The appellant argues that the jury’s role as fact finder is the cornerstone of the American justice system and cannot be disregarded. Appellant cites a similar case, Commonwealth v. Sypin (1985), 341 Pa.Super. 506, 491 A.2d 1371 where the sentencing court below had remarked “And [disappeared children’s] problems result from men like you.” The Appeals Court vacated the sentence and remanded because “Appellant was not charged in connection with the disappearance or death of any child.” Sypin, 491 A.2d at 1372.

The State responds, and we agree, that the District Judge acknowledged “and I can’t sentence him for that.” It is therefore obvious from the record that the judge did not base the sentence on the homicide charge. State v. Olsen (Mont. 1980), 614 P.2d 1061, 1064. We hold there was no abuse of discretion in this regard.

D. Consistency with the Evidence.

Appellant contends that the dangerous offender designation effectively puts appellant’s parole eligibility beyond the time which would allow him to serve his sentence at Swan River. Appellant contends all the mental health experts recommended Swan River so he could continue his rehabilitation through counseling. This, insists the appellant, ignores the rehabilitative policy of this State.

We can find no inconsistency. Clearly the District Court recognized the appellant’s need for counseling, but considered that the other factors required the sentence given. The District Court left the determination of when the appellant should be transferred to Swan River in the hands of the Warden of the State Prison. This does not ignore the rehabilitative policy of this State.

The sentence of the District Court is affirmed in all respects.

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