author: MR. JUSTICE HUNT

text:
    GLENN EDWARD STANGLER, Claimant and Appellant, v. ANDERSON MEYERS DRILLING COMPANY, Employer, and Home Insurance Company, Defendant and Respondent.
    No. 87-198.
    Submitted on Briefs Sept. 17, 1987.
    Decided Nov. 24, 1987.
    746 P.2d 99.

      Herndon, Harper & Munro, James G. Edmiston, Billings, for claimant and appellant.
    Marra, Wenz, Johnson & Hopkins, David E. Bauer, Great Falls, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Glenn Edward Stangler appeals the judgment of the Workers’ Compensation Court, which found that Stangler suffered a new injury while working out of state and that Home Insurance Company was not responsible for payment of Workers’ Compensation benefits.

We affirm the order of the Workers’ Compensation Court.

Claimant raises three issues for our review:

1. Whether defendant as the first insurer in a successive injury case should escape liability where the alleged second injury occurred in North Dakota; the second employer and insurer are not present before the Workers’ Compensation Court; and, the North Dakota Bureau of Workers’ Compensation has denied a claim for the alleged second injury.

2. Whether the evidence was sufficient to support the Workers’ Compensation Court’s conclusion that the claimant had reached maximum healing after his industrial injury of January 24, 1982.

3. Whether the Workers’ Compensation Court erred by failing to hold that the Home Insurance Company waived its defenses by agreeing to pay benefits on a non-acceptance basis pursuant to Section 39-71-608, MCA.

On January 24, 1982, while working in the course and scope of his employment, Stangler injured his lower back. At that time, Stangler was employed as an assistant driller for Meyers Drilling Co. in Helena, Montana. Stangler worked for two more days following his injury but then, upon the advice of John Harlan, M.D., a general practitioner in Helena, returned to his home in Grenora, North Dakota. After 21 days off work, Stangler returned to work in Montana for approximately one week. Pain in his back caused him to seek further medical advice from his family doctor in Williston, North Dakota. Stangler again attempted to return to work but due to pain was forced to terminate his job with Meyers Drilling on February 22, 1982.

Stangler’s family doctor referred him to Dr. Mattheis, a neurosurgeon in Bismark, North Dakota. Dr. Mattheis examined Stangler on April 7, 1982, diagnosing his injury as an acute lumbar strain, with the possibility of a herniated mid-line disc. On April 27, 1982, Dr. Mattheis ordered a CT scan for Stangler. The CT scan indicated a “bony spur lateral posterior margin of L4 which may be deforming the nerve root at this level with disc space minimally bulging at the L4-5 level with herniated disc at the L5-S1 level anterior and in the mid-line.” Dr. Mattheis recommended a surgical procedure for Stangler. Dr. Mattheis later testified by deposition that upon review of the CT scan report he did not know'what prompted him to recommend surgery as he saw nothing indicating any serious abnormalities.

After seeing Dr. Mattheis, Stangler saw Dr. Roger Kennedy, another neurosurgeon, for a second opinion concerning the necessity of surgery. Dr. Kennedy examined Stangler on May 20, 1982, for approximately one-half hour. Based on that examination, Dr. Kennedy did not advise surgery for Stangler. In fact, when requested to clarify Stangler’s condition, Dr. Kennedy stated that he could find no structural pathology and assigned a 0% whole body permanent physical impairment rating. He later clarified this rating by saying that an impairment rating does not account for pain. Any pain Stangler was experiencing would limit him according to his individual tolerance for pain and the job he has expected to perform. Based on Dr. Kennedy’s report, defendant terminated Stangler’s temporary total disability benefits of $241.00 per week on September 27, 1982.

Stangler testified that at this point he believed that he was medically released to return to work. Also, he had to go back to work to pay bills and provide for his family. Stangler testified that although in constant pain, he returned to very strenuous work on the oil rigs in North Dakota. He had to lift 50-80 pound bags of chemicals on a frequent basis. Stangler worked for three different drilling companies between the fall of 1982 and June 1, 1984, when his legs gave out while lifting a 50 pound sack. He experienced severe back pain and reported the injury to his employer. The report of this injury was never documented in the foreman’s logbook, however. At the time of this injury, Stangler was employed by Grace Bomac Drilling. Following the second injury, he did not miss any work, but states that the pain was constant.

On September 17, 1984, Stangler saw Dr. Frank Ise, an orthopedic surgeon. A CT scan was performed on Stangler which did not show anything which was “clinically significant.” Dr. Ise fitted Stangler with a lumbosacral support on October 3, 1984. Dr. Ise saw Stangler again on November 3, 1984, December 31, 1984, and January 16, 1985. According to Stangler, continued pain made his condition dangerous to himself and fellow employees. At Stangler’s request, Dr. Ise recommended that Stangler quit work for Grace Bomac. On July 31, 1985, a myelogram was performed on Stangler. That test was also found to be within normal limits.

Stangler contacted Home Insurance Co. (Home) in March, 1985. On March 21, 1985, Home agreed to pay temporary total disability benefits on a non-acceptance basis effective February 27, 1985, the date Stangler quit working for Grace Bomac. Home requested that Stangler file a claim with North Dakota’s Compensation Bureau with the understanding that such a filing would not amount to an admission by Stangler of North Dakota’s jurisdiction of his claim in Montana.

Stangler’s North Dakota claim was denied by the North Dakota’s Workmens’ Compensation Bureau on the grounds that Stangler did not prove that an injury actually occurred on June 1, 1984, while employed by Grace Bomac Drilling and that any injury causing disability was more likely than not related to the first injury on January 24, 1982 in Montana.

A hearing was then held before the Montana Workers’ Compensation Court to determine Stangler’s benefits. The court held that a preponderance of the evidence supported the conclusion that claimant had reached maximum healing after the January 24, 1982, injury. The North Dakota injury of June 1, 1984, was deemed a “successive” injury, and all benefits to Stangler were denied.

As claimant’s second issue of whether Stangler had reached maximum healing is deemed most critical to this appeal, we will address it first in this opinion.

In Belton v. Carlson Transport (1983), 202 Mont. 384, 658 P.2d 405, this Court adopted the idea of “maximum healing” and “successive injuries” in order to more fairly assess which employer is responsible for an employee’s on-the-job injury. Maximum healing means that following a compensable injury a claimant has reached a point constituting the end of a healing period. It does not mean the person is free of symptoms such as pain or objective signs. Belton, 658 P.2d at 408.

The rule in Belton controls a situation where an employee has been injured more than once and different employers’ insurance carriers are at risk for the separate injuries. If the first injury has not reached maximum healing, the insurer at risk at the time of the first injury will be responsible for the second injury as well. If the claimant is medically stable or has reached maximum healing, the insurer at risk at the time of the second injury is responsible for Workers’ Compensation benefits.

The record before us includes deposition testimony of Glenn Stangler, Doctors Ise, Mattheis, Kennedy. The Montana Workers’ Compensation Court found that the doctors’ testimony showed that Stangler had reached maximum healing, or a medically stable condition following the January 24, 1982 injury.

The standard of review for this Court when reviewing factual findings from the Workers’ Compensation Court is whether substantial credible evidence supports the findings of the Workers’ Compensation Court. Tenderholt v. Travel Lodge International (Mont. 1985), [218 Mont. 523,] 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1794-95. Absent a showing of a lack of substantial credible evidence, this Court will not upset the decision of the Workers’ Compensation Court. Dunn v. Champion International (Mont. 1986), [222 Mont. 142,] 720 P.2d 1186, 1189, 43 St.Rep. 1124, 1128. Where crucial testimony is taken by deposition, the court will examine findings more closely, as it is in as good a position as the lower court to assess such evidence. Jones v. St. Regis Paper Co. (1981), 196 Mont. 138, 144, 639 P.2d 1140, 1144.

Reviewed in that light, the record before us on appeal supports the finding that Stangler had reached a stabilized medical condition after his January 24, 1982, back injury.

The testimony of the doctors who saw Stangler indicates that he was still experiencing periodic, sometimes severe pain. None of the doctors found any objectively identifiable injury upon extensive testing conducted on Stangler’s back. Neither the physicians nor the Workers’ Compensation Court refuted Stangler’s credibility nor his testimony that he was experiencing pain. However, pain does not negate a finding that an injury has reached maximum healing. Belton, 658 P.2d at 408-409.

Stangler’s Montana benefits from his first injury were terminated September 27, 1982, based on a report from Dr. Kennedy who gave Stangler a 0 percent whole body impairment rating. At that time, Stangler returned to work in the oil fields, which by all accounts is very strenuous labor. He continued to work for various drilling companies until February 27, 1985. This is a period of almost two and a half years. Even accepting the fact that Stangler was experiencing pain, if his back was not medically stable during this time it is inconceivable that he would be able to keep lifting 50 and 80 pound sacks of chemicals on a “frequent” basis. Stangler’s physicians testimony as well as his own testimony concerning the nature and duration of his work supports the finding of the Workers’ Compensation Court that Stangler had reached maximum healing before working in North Dakota from 1982-1984.

Regardless of our holding concerning claimant’s level of healing, Stangler requests this Court to adopt a corollary rule to the Belton rule of successive injuries. Claimant would like us to follow the rationale of the Oregon Court of Appeals in Miville v. SAIF (1985), 76 Or.App. 603, 710 P.2d 159, as precedent for this new rule. However, Miville is factually distinguishable from the instant case. In Miville, claimant injured himself in Oregon. Later he suffered an on-the-job injury while working in Indiana where he filed a Workers’ Compensation claim. The Oregon Court of Appeals held that if the claimant’s injury in Oregon “materially contributed” to claimant’s present condition, even though the injury in Indiana also independently contributed to the same condition, and Indiana denied claimant benefits, then Oregon must provide benefits for claimant’s compensable injury.

This rule, although a well-intentioned way to help claimants who otherwise would not receive benefits, is not applicable to Stangler’s situation, nor to the case law in Montana.

The deposition testimony of Dr. Ise supports the holding of the North Dakota Workmens’ Compensation Bureau that Stangler did not adequately show that he was reinjured while working for Grace Bomac Drilling in North Dakota. Dr. Ise testified that there was no way to determine whether Stangler’s back pain in 1984 was related to the January 24,1982, injury. He also stated that he recommended no treatment for Stangler and that his back will probably never be “perfect.” Stangler missed no work because of the alleged second injury. The incident was not recorded on Bomac’s foreman’s logbook. Stangler asserts that if there was no second injury, Home has to be liable for the condition of Stangler’s back in 1984. We find no merit in this argument. Home terminated benefits for Stangler’s January, 1982, injury in September, 1982, when it was determined that Stangler had reached maximum healing. We affirm that finding. The condition of Stangler’s back in North Dakota in June, 1984, is not relevant in light of that holding.

In addition to the recorded evidence, Montana case law presents problems for Stangler’s mandatory benefits argument. Oregon’s “material contributory cause,” (See Grable v. Weyerhaeuser Co. (1981), 291 Or. 387, 631 P.2d 768) is inconsistent with Montana’s “maximum healing” rule adopted in Belton. This Court has refused to allocate benefits based on a first injury, however casual, to a subsequent condition. See e.g. Newman v. Kamp (1962), 140 Mont. 487, 374 P.2d 100. We now uphold the Belton rule that once a claimant has reached maximum healing or a medically stable condition the insurer at risk at the time of the original injury is no longer responsible for any subsequent injuries or conditions.

Claimant’s third issue alleges that Home waived all defenses regarding the reopening of Stangler’s claim in 1984 pursuant to Section 39-71-608, MCA, when it accepted liability for the January 24, 1982, industrial accident. Section 39-71-608, MCA, states:

“An insurer may, after written notice to the claimant and the division, make payment of compensation benefits within 30 days of receipt of a claim for compensation without such payments being construed as an admission of liability or a waiver of any right of defense.”

It is true that Home accepted liability for Stangler’s claim relating to the January 24, 1982, injury. In September, 1982, those benefits were properly terminated. In June, 1984, Stangler allegedly reinjured his back while working in North Dakota. He continued working until February 27, 1985. In response to his demand to have his benefits reinstated, Home began paying weekly benefits to Stangler on a nonacceptance basis from February 27, 1985. A March 21, 1985, letter to Stangler from Home concerning his demand for reinstated benefits stated:

“. . . It is our position that Mr. Stangler had reached a medically stable condition prior to October of 1984 when to the best of our knowledge he aggravated his preexisting condition while employed as a derrick hand for Bomac in Williston, North Dakota.”

Section 39-71-608 does not require a 30-day notice of nonacceptance of a claim demanding reinstatement of benefits at the time the original compensable injury is claimed. Home provided benefits on a nonacceptance basis while Stangler pursued his claim in North Dakota and then in Montana. There was no waiver of defenses or acceptance of liability for benefits by Home at any time during those proceedings.

The judgment of the Workers’ Compensation Court is affirmed on all issues.

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


source: Caselaw Access Project

author: MR. CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    JOHN J. VOGELE, JR., Plaintiff and Respondent, v. The ESTATE OF ELSIE MAY SCHOCK, and Marylyn Fay Vogele and Carla Ray Vogele Personally and in their capacity as Personal Representatives of the Estate Elsie May Schock, Defendants and Appellants.
    No. 87-285.
    Submitted on Briefs Sept. 3, 1987.
    Decided Nov. 24, 1987.
    745 P.2d 1138.

      Ira Eakin, Billings, Russell L. Culver, Baker, for defendants and appellants.
    Richard L. Burns, Glendive, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant Estate appeals the summary judgment of the District Court of the Seventh Judicial District, Dawson County, in favor of plaintiff John Vogele. We affirm.

The Estate presents two issues for our review:

1. Did the District Court err in finding that the ownership interest created by the certificates of deposit was a joint tenancy?

2. Did the District Court abuse its discretion in granting Vogele’s motion for summary judgment?

On December 22, 1982, the First National Bank and Trust of Wibaux, Montana, issued two certificates of deposit (C.D.s) to Elsie May Schock and her children, John J. Vogele, Jr., Carla Ray Vogele, and Marylyn Fay Vogele. One C.D. had a cash value of $32,050 and the other $22,853. The C.D.s matured in June of 1985. Each C.D. states on its face:

“If more than one depositor is named above, this certificate and the deposit evidenced hereby shall belong to said depositors as joint tenants with right of survivorship, but the bank may deem and treat either or any of said depositors or the survivors or survivor as the absolute owner ...” [Emphasis added.]

By April of 1983, “hard feelings” had developed between Vogele and his mother. On November 30, 1984, Elsie May Schock executed her Last Will and Testament. The third clause of her Will states:

“At his request, I have made full and final settlement with my son, JOHN JIM VOGELE, JR., and have paid him what would normally be his inheritance, and I, therefore, specifically exclude him from any share of my estate that may be remaining at the time of my death.”

Elsie Schock died on April 27, 1985. In June of 1985, the C.D.s were cashed by the personal representatives of Elsie’s estate, Marylyn Vogele and Carla Vogele. The proceeds, less interest, were deposited in new C.D.s in the name of the Estate. The interest was deposited into the Estate’s regular account.

John filed a complaint and later moved for summary judgment. John contended that he was entitled to one-third of the proceeds of the certificates of deposit as a joint tenant with Marylyn Vogele and Carla Vogele. John argued that the joint tenancy was created at the time of the written instrument, and Elsie’s will did not raise the issue of ownership of the C.D.s during her lifetime. John concluded that the disinheritance clause would not apply to the C.D. proceeds because joint tenancy property was not part of Elsie’s probate estate.

On March 13, 19B7, the District Court granted John’s motion for summary judgment. On May 5, 1987, the court awarded John $20,983.70 plus court costs of $67.40.

Issue 1. Joint Tenancy

On appeal, the Estate contends that John was merely entitled to one-fourth of the proceeds because he was a tenant-in-common. The Estate claims that the joint tenancy language on the C.D.s was only inserted for the benefit of the Bank and does not determine John’s status as a joint tenant.

In analyzing this issue, we look to Casagrande v. Donahue (1978), 178 Mont. 479, 585 P.2d 1286, where a decedent had established joint savings accounts with a friend. The executrix of decedent’s estate tried to include the hank accounts in the estate and thereby defeat the survivor’s right to the accounts. The District Court granted summary judgment in favor of the surviving joint tenant. This Court affirmed, holding that the joint savings accounts became individual property of the surviving joint tenant upon decedent’s death. Casagrande, 178 Mont. at 484, 585 P.2d at 1289.

The plain language of Elsie’s C.D.s creates a joint tenancy among Elsie, John and his two sisters. The C.D.s specifically state that they belong to the survivors by right of survivorship. We find that the establishment of the joint accounts by Elsie created a right of survivorship in the C.D.s for the benefit of the joint tenants named thereon.

The Estate further contends that Elsie intended to eliminate John from the proceeds of the C.D.s, as shown by the disinheritance clause and several affidavits. The Estate attempts to support its position with Anderson v. Baker (1982), 196 Mont. 494, 641 P.2d 1035, where the donor depositor of joint bank accounts sought the return of her funds prior to her death. We held:

“[W]here, as here, a depositor during his or her lifetime raises the issue of ownership of funds in a joint tenancy account, the statements on the signature card are not conclusive and additional evidence may be examined to ascertain the true intent of the parties.” (Emphasis added.)

Anderson, 196 Mont. at 500, 641 P.2d at 1038.

We distinguish Anderson from the present case. Anderson dealt with a living depositor making a written demand and filing a lawsuit to recover her C.D.s from another joint tenant. In the instant case, Elsie made no such attempts. The disinheritance clause in Elsie’s will is not an affirmative act taken “during her lifetime” because a will does not take effect until the death of the testator and is therefore revocable. Something more substantial than a disinheritance clause must occur to bring the C.D.s within the Anderson exception. Furthermore, the disinheritance clause refers only to the probate estate. Joint tenancy property is not part of a probate estate. As we held in Casagrande, 178 Mont. at 484, 585 P.2d at 1289, the joint tenant’s right of survivorship, “which is the essential characteristic of any joint tenancy, cannot be defeated by the executrix of decedent’s estate, in an attempt to satisfy general devises in the Will.”

The Estate also presented several third-party affidavits, which stated that Elsie did not want John to share in any of her property. However, we need not address the probative value of the affidavits because Elsie never took any positive action in conformance with the affidavits. At any time before her death, Elsie could have asked the Bank to reissue the C.D.s without John’s name and thereby terminate John’s interest. Section 32-1-442, MCA. She did not. Elsie’s conduct controls, not the third-party affidavits. Her lack of action never rose to a level of conduct manifesting an intention to eliminate the joint tenancy.

Finally, the Estate claims that Elsie did not sign the C.D.s and therefore did not intend to create a joint tenancy. Estate’s claim fails. The C.D.s were not accompanied by signature cards. The C.D. forms had neither the requirement nor the designated space for a signature. Elsie knowingly established the C.D.s with the rights of the joint tenants clearly set forth in the deposit agreement.

In conclusion, we note that a joint tenancy account is a vehicle for the nonprobate disposition of estate assets. The method is quick, convenient, and inexpensive. Elsie’s ownership interest as a joint tenant ceased upon her death, and the joint property immediately passed to the surviving joint tenants. Section 70-1-307, MCA. Absent any affirmative attempts by Elsie to divest or revoke Vogele’s interest during Elsie’s lifetime, we find that the language of the C.D.s conclusively establishes Elsie’s intention to create a joint tenancy with right of survivorship. We hold that the District Court correctly awarded judgment to John Vogele, Jr.

Issue 2. Summary Judgment

The Estate contends that Elsie’s true intent remains in issue and, therefore, summary judgment was inappropriate.

On review, we will uphold the summary judgment if there is no genuine issue of material fact and the evidence shows the moving party is entitled to judgment as a matter of law. Sevalstad v. Glaus (Mont. 1987), [227 Mont. 117,] 737 P.2d 1147, 1148, 44 St.Rep. 930, 932.

As the party moving for summary judgment, John had the burden of establishing the absence of any genuine issue of material fact. He met this burden. John did not challenge any of the Estate’s facts. He stated in his Respondent’s Brief: “The facts of this case are accurately set forth in Appellant’s Brief on Appeal.” Accordingly, we find no factual dispute.

When the movant has met this initial burden, the party opposing the motion must supply evidence supporting the existence of a genuine issue of fact. Fleming v. Fleming Farms, Inc. (Mont. 1986), [221 Mont. 237,] 717 P.2d 1103, 1106, 43 St.Rep. 776, 779. Rule 56(c), M.R.Civ.P. We find that the evidence produced by the Estate is insufficient to show a factual dispute.

We affirm the District Court’s summary judgment.

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


author: MR. JUSTICE SHEEHY MR. JUSTICE HUNT,

text:
    STATE OF MONTANA, ex rel. JAMES CARKULIS, Relator, v. DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT of the State of Montana, In and For the COUNTY OF YELLOWSTONE, Honorable G. Todd Baugh, Presiding, Respondent.
    No. 87-164.
    Submitted Sept. 2. 1987.
    Decided Nov. 25, 1987.
    Rehearing Denied Jan. 5, 1987.
    746 P.2d 604.

      Allen Beck argued, Jeffrey T. Renz argued, Billings, for relator.
    Mike Greely, Atty. Gen., Judy Browning, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Terry Swift, Deputy Co. Atty., Billings, Mike McGrath, argued, Co. Atty., Helena, for respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

In this case, we determine that the reciprocal pretrial discovery statutory provisions in criminal cases, for the purposes of this case and when applied as herein directed, are amenable to the state and federal constitutions and not barred by the provisions of the state and federal constitutions herein specified.

This is an original proceeding in this Court. Relator James Carkulis stands charged with the commission of a crime in the District Court, Thirteenth Judicial District, County of Yellowstone. The State had moved the District Court for an order requiring reciprocal discovery by the defendant under Section 46-15-323(4), MCA (1985). In an order dated December 20, 1985, the District Court granted the State’s motion for pretrial discovery but made no provision in the order for sanctions in the case of noncompliance.

On January 15, 1986, Carkulis filed in this Court a petition for writ of supervisory control or writ of certiorari (Cause No. 86-026 in this Court) relating to the December 20, 1985 District Court order. We ordered a response, and received an answer and briefs from the Attorney General of the State of Montana; the County Attorney of Yellowstone County; and amici curiae from the Moses Law Firm of Billings, Montana; Ungar Law Firm of Bozeman, Montana; and the Montana County Attorneys Association, through its president Mike McGrath of Helena, Montana. However, on December 11, 1986, after oral argument, we denied the petition for writ of supervisory control without prejudice upon the grounds that the District Court had imposed no sanctions, and might never impose sanctions, and that there was an adequate remedy by appeal.

Thus, the matter returned to the District Court. There, on March 9, 1987, Carkulis moved the District Court to reconsider its order of December 20, 1985. On April 9, 1987, the District Court issued its order denying Carkulis’ motion to reconsider and further ordering that unless the defendant disclosed the materials set out in the December 20, 1985 order by May 1, 1987, he would “be precluded from offering the same at trial.” The time for compliance by the defendant has passed and neither he, his counsel nor agents, have complied with the pretrial discovery order of the District Court. On May 4, 1987, Carkulis, as relator, filed his second petition for writ of supervisory control of writ of certiorari in this Court and thus the issue is before us again.

This time, a sanction has been imposed against the defendant, the most drastic available to the District Court under Section 46-15-329, MCA, that of barring him from offering evidence not disclosed before May 1, 1987.

The first problem is whether this Court should consider the issuance of a writ, either of supervisory control, or of certiorari. Under Section 27-25-102(2), MCA, if a district court, exercising judicial functions, has exceeded its jurisdiction, and if in the judgment of this Court there is no plain, speedy or adequate remedy, certiorari will lie. Section 27-25-102(2), MCA. In like manner, when a cause of action or a right has arisen under conditions making due consideration in the trial court and due appeal to this Court an inadequate remedy, or when supervision of a trial court other than by appeal is deemed necessary and proper, a writ of supervisory control may issue. Rule 17(a), M.R.App.P. A petition seeking original jurisdiction in this Court must make a showing of the inadequacy or unavailability of any other remedy, either in the District Court or by appeal to this Court. Crist v. Boyd, District Court (1976), 172 Mont. 38, 560 P.2d 531; Petition of Waite (1964), 143 Mont. 321, 322, 389 P.2d 407, 408.

In the first proceedings brought by Carkulis in this Court, the Attorney General, in his memorandum in support of his response, agreed we should take jurisdiction of the proceedings, and pointed out a proper reason:

“For example, if the court were to decline to take jurisdiction of this application, relator would presumably comply with the District Court’s disclosure order. Should relator then be convicted and suecessfully appeal his case, it might prove unfair to him should a new trial be ordered, since the State would have the benefit of the very information which relator believes he should not be required to disclose. Once disclosures are made, they cannot be retracted. See Wardius v. Oregon, 412 U.S. 470, 478, [93 S.Ct. 2208, 2213-14, 37 L.Ed.2d 82] (1973).”

Under the record as it is now presented to us in this second application by Carkulis, since he is barred from offering evidence pertaining to the materials sought in pretrial discovery, he may be entirely precluded from offering a defense. He must risk conviction in order to effect an appeal, and then risk the uncertainty of our decision on appeal. Without our intervention now, defendant has a Hobson’s choice: Go back to the District Court, comply with the pretrial discovery, hope that the District Court will rescind its order barring the evidence and rely on a successful appeal; or, alternatively, stand pat, risk conviction, and the uncertainty of success on appeal. Moreover, the District Court order is binding not only on the defendant, but upon his counsel and their agents. They are also at risk for noncompliance through contempt proceedings against them.

Counsel for the State in prosecuting defendant is likely to have a dilemma here with respect to the law: There is a split of authority among neighboring states as to the legality of such pretrial discovery provisions. Unless we set the course in this case of first impression, there are no Montana guideposts for counsel advising their clients with respect to pretrial discovery in criminal cases.

Accordingly, we accept jurisdiction to determine if supervisory control is proper in this matter.

The District Court’s Order

On December 20, 1985, the District Court entered its order for pretrial discovery which included the following provisions:

“IT IS HEREBY ORDERED that the defendant, James Carkulis and his counsel or agents, make the following materials and information available to the State without delay for examination and reproduction, subject to constitutional or statutory limitations:
“(1) the names and addresses of all persons, other than the defendant, whom he in good faith knows he will call as witnesses at trial, and copies of all statements made by them related to this case;
“(2) the names and addresses of any expert witnesses whom he in good faith knows he will call at trial, and summaries of the testimony he expects the witnesses to give at trial;
“(3) all papers, documents, photographs and other tangible objects which the defendant in good faith knows will be used as exhibits at trial; and
“IT IS FURTHER ORDERED that the defendant shall promptly notify the State of the existence of any additional information or material referred to in the foregoing that is discovered by the defendant after this Order and make such information or material available for examination and reproduction without delay.”

On April 9, 1987, the District Court, by a further order, supplemented the foregoing provisions by providing that if the defendant Carkulis did not disclose the materials set out above by May 1, 1987, he would “be precluded from offering same at trial.”

Issues Raised By Defendant

The defendant maintains that the District Court’s orders violate his rights secured by the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and Article II, Sections 11, 17, 24 and 25 of the 1972 Montana Constitution.

The Applicable Statutes

The legislature adopted in 1985 several provisions relating to reciprocal pretrial discovery in criminal cases. Ch. 202, Laws of Montana (1985). The provisions relating to pretrial reciprocal discovery are now embodied in Sections 46-15-321 through 46-15-329, MCA. In general, these statutes contain applicable definitions (Section 46-15-321); requirements for disclosure by the prosecution (Section 46-15-322); requirements for disclosure by the accused (Section 46-15-323); materials not subject to disclosure (Section 46-15-324); a continuing duty to disclose (Section 46-15-327); a provision for excision or protective orders (Section 46-15-328); and provisions for sanctions in the case of noncompliance (Section 46-15-329).

The orders of the District Court in this case are based on provisions contained in Section 46-15-323, MCA. The important subsections are:

“(4) Simultaneously with the notice of defenses submitted under Subsection (3), the defendant shall make available to the prosecutor for testing, examination, and reproduction:
“(a) the names and addresses of all persons, other than the accused, whom he will call as witnesses at trial, together with all statements made by them in connection with a particular case; and
“(b) the names and addresses of experts whom he will call at trial, together with the results of the physical examinations, scientific tests, experiments, or comparisons, including all written reports and statements made by them in connection to the particular case; and,
“(c) a list of all papers, documents, photographs, and other tangible objects that he will use at trial.
“(5) The defendants obligation under this section extends to material and information within the possession or control of the defendant or his attorneys or agents.”

Disclosure of Witnesses and Statements

Carkulis attacks the provisions of Section 45-15-323(4)(a), MCA, which requires the disclosure of witnesses the defendant will call at trial, together with all statements made by them in connection with this particular case.

The word “statements” found in the statute may in itself be over-broad. We construe the word statements to include tapings, transcriptions, writings or other means used to memorialize the witness as to his observation or impression of a situation or event, and which may be used either to refresh the recollection of the witness or to impeach him at trial.

Carkulis attacks this statute on the grounds that it violates the state and federal rights against self-incrimination and deprives him of due process.

With respect to the defenses of alibi and self-defense and the former defense of insanity, this Court has already spoken and approved the requirement for a production of a list of witnesses to be used at trial. State ex rel. Sikora v. District Court (1969), 154 Mont. 241, 462 P.2d 897. Sikora arose under former statute Section 46-15-301, now repealed, (Ch. 202, Laws of Montana (1985)), but the provisions of which have been subsumed in Part 3, Title 46, Criminal Procedure. In Sikora, this Court declared that not all evidence obtained from a defendant is privileged under the Fifth Amendment of the United States Constitution. The production by the defendant of a list of his witnesses relating to those defenses was approved on the grounds that such production merely enabled the prosecution to perform its function at trial more effectively, that the right to remain silent was not violated because production was not required if the witnesses would not testify, and that the defendant was not required to reveal anything more than he would voluntarily and without compulsion give at trial. This Court also found protection for the defendant in Sikora in that the statute was directed to the purpose of giving notice to the state and that “the defendant who chooses to remain silent until later than the statute indicates may do so and for good cause may still interpose his defenses.” 154 Mont. at 251, 462 P.2d at 902. The logic of Sikora now controls the additional defenses now listed in Section 46-15-323(3) for which the defendant must provide written notice and a list of the witnesses pertaining thereto that he will call at trial.

The United States Supreme Court in Williams v. Florida (1970), 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, upheld a state statute requiring the disclosure of an alibi defense and alibi witnesses to the state prior to trial as not violating the federal right against self-incrimination. Williams is essentially grounded on the “accelerated disclosure” theory, that is, that at trial, the defendant would have to reveal his alibi and his witnesses relating thereto, and that accelerating the disclosure does not affect his constitutional rights against self-incrimination. Nonetheless, in Williams, Justice Black took an opposite tack:

“[Federal constitutional rights] are designed to shield the defendant against state power. None are designed to make convictions easier and taken together they clearly indicate that in our system the entire burden of proving criminal activity rests on the state. The defendant, under our constitution, need not do anything at all to defend himself, and certainly cannot be required to help convict himself. Rather he has an absolute, unqualified right to compel the state to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process the defendant has a fundamental right to remain silent, in effect challenging the state at every point to: “ ‘Prove it!’ ”

399 U.S. 78, 112, 90 S.Ct. 1893, 1912, 26 L.Ed.2d 446, 483 (Black, J., dissenting).

Justice Black’s argument for the rights of an accused has not, for the most part, been followed by other federal and state courts. More and more, there have been declarations that a criminal trial is a “search for truth,” that criminal trials are not a game of surprise, and that the right of discovery is a “two way street.” Montana has followed that tack since Sikora. It is clear that the accused must give the State pretrial notice of affirmative defenses, and produce for the State a list of the witnesses he will call to establish the defense.

The question that remains regarding witnesses is whether the defendant must also make a pretrial disclosure of witnesses that he will call in his general defense of the crime charged. Immediately, the Sikora ruling comes to the fore: the defendant is merely revealing in advance of trial what eventually he would have to reveal during the trial. Under the order of the court in this case, and under the statute, Carkulis does not have to reveal to the State whether he as a defendant will or will not take the stand in his defense. The requirement is not self-incriminatory as to him. With respect to other witnesses for his general defense, the logic of Sikora and Williams seems to apply: their names will be revealed in due course in any event. It is certain that if, without prior disclosure, a devastating surprise witness for the defendant were to testify, the State would obtain from the trial judge a continuance in order to meet the testimony. Pretrial revelation may avoid surprise, aid the administration of the trial courts and provide an orderly resolution of the charge. On those grounds, and because we see protections for the defendant in other provisions of the discovery statutes, we hold that the defendant must provide to the State a list of all witnesses he intends to call at the trial. The District Court subjected this requirement to “constitutional or statutory limitations.”

We turn now to the question of whether the defendant must also surrender to the State copies of statements obtained by the defendant or his agents and counsel statements of all witnesses he will call at trial.

The State contends that the discovery statutes requiring copies of statements merely provide for the accelerated production of evidence that the defendant would voluntarily and without compulsion provide at trial. The State also argues that the protections provided by the Fifth Amendment and Article II, Section 25 of the Montana Constitution apply only to the statements of a criminal defendant. The privilege does not extend to the testimony or statements of third parties. Therefore, the State contends that the provisions of Sections 46-15-323(3) and (4), MCA, are constitutionally sound.

Carkulis and amici contend, however, that the production of such items may be incriminating in that they could provide the State with a “link in the chain” of evidence sufficient to establish a prima facie case. That, they contend, would have the effect of lessening the burden of beyond a reasonable doubt and in effect violate the accused’s right to remain silent.

In considering the question of pretrial production by an accused of prospective witness statements relating to his general defense, we are leading into a field where there is little authority to guide us. For one thing, there is a critical difference between the discovery and inspection rules provided under the federal system and those of the Montana criminal discovery statutes. Under Rule 16, Fed.R.Crim.P., any discovery must first be defendant triggered. Discovery from the defendant as to documents and tangible objects, and reports of examination and tests, are permitted only if defendant has requested from the government the same kinds of disclosure. Rule 16(b)(1) (A), (B), Fed.R.Crim.P. Except for these, the federal rule does not authorize the discovery or inspection of reports, memoranda or other internal defense documents made by the defendant or his attorneys in connection with the investigation or defense of the case, or statements made by the defendant or by government defense witnesses or by prospective government or defense witnesses. Rule 16(b)(2), Fed.R.Crim.P. In fact, the Congress specifically declined to provide for the discovery of witness lists in Rule 16. Moore’s Federal Practice (1986 Rules Pamphlet at 231).

In addition, Rule 12.1, Fed.R.Crim.P. provides for a notice of alibi, but it is government triggered. Rule 12.1 requires the government to provide the defendant with a demand stating the time, date and place where the alleged offense was committed whereupon the defendant must serve within 10 days a notice of intention to offer the defense of alibi and within an additional 10 days provide a list of the names of witnesses who establish the alibi. The defendant must also state the specific place at which he claims to have been at the time of the alleged offense. Montana’s statutes have no such provisions.

Thus, the State has relied on a number of cases from the federal system which are not on point. In those cases, the defendants are not required to produce statements until the government has completed its case and if the statements are being used by the defendant in his defense or to impeach a witness. See, for example, United States v. Nobles (1975), 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141.

Two sister states have refused to permit a pretrial disclosure of witness lists or statements. One is Alaska, expressing its decision in Scott v. State (Alaska 1974), 519 P.2d 774. There the Superior Court, apparently without direct statutory authority, had required a defendant charged with rape to disclose to the prosecution the names of all prospective defense witnesses other than the defendant himself, the production for inspection and copying of any written or recorded statements of those witnesses, and advance notice of an alibi defense. The defendant sought interlocutory appellate review in the Alaska Supreme Court which was granted. The Supreme Court struck down the Superior Court order, including the requirements relating to the alibi defense. The Alaska Supreme Court decided to interpret the Alaska Constitution more broadly than the United States Supreme Court construed the Fifth Amendment in Williams v. Florida, supra. It determined that the pretrial transfer of witness lists and witness statements was testimonial because a document containing such facts transmitted from one party to another constituted a communication of cognizable information from one source to another. The Supreme Court was of the opinion that such information may in some instances tend to be incriminating; and because a court order was involved, it found that the production was compelled. Thus, in the opinion of that Supreme Court, the criteria for self-incrimination was met in the Superior Court order.

At odds with the Alaska decision in Scott v. State, supra, is the rationale of the District Court in Carkulis’ case. While agreeing that the protection against self-incrimination applies to testimonial or communicative evidence, State v. Armstrong (1980), 189 Mont. 407, 421, 616 P.2d 341, 349, the District Court held that the disclosure required by the court order was not compelled, State v. Anderson (Mont. 1984), [211 Mont. 272,] 686 P.2d 193, 197, 41 St.Rep. 1357, 1360. The District Court held that there was no compulsion in the Montana statute because Carkulis was not compelled to reveal that which he did not intend to reveal at trial anyhow.

California also held against the disclosure of witness lists and statements in In Re Misner (1985), 38 Cal.3d 543, 213 Cal Rptr. 569, 698 P.2d 637. In that case the California history of prosecutorial discovery (advocated by the late J. Traynor) was examined, beginning with Jones v. Superior Court (1962), 58 Cal.2d 56, 22 Cal. Rptr. 879, 372 P.2d 919; through the backing away from Jones in Prudhomme v. Superior Court (1970), 2 Cal.3d 320, 85 Cal. Rptr. 129, 466 P.2d 673; down to the facts before it in Misner. That case involved the constitutionality of a statute which permitted the prosecution to discover from the defendant or his counsel, following testimony under direct examination of defense witnesses other than the defendant, other statements made by those witnesses. The California appellate court examined Williams v. Florida, supra, and United States v. Nobles, supra, but rested its decision on California state law. It determined that the California statute was directed only to prior statements of witnesses produced by the defense and though limited to the scope of their direct testimony, the statute obviously contemplated that the discovery permitted by the statute would provide the state with evidence to impeach the defense witnesses. Misner determined that it violated a defendant’s privilege against self-incrimination to extract impeachment evidence from him.

Further in Misner, the prosecution argued that even if the privilege against self-incrimination covered prior statements of defense witnesses, the defendant waived the privilege by putting the witnesses on the stand, at least to the extent of the permissible scope of cross examination. The California Supreme Court said the state could not rely on this rule, stating:

“. . . while it may be true that by putting witnesses on the stand the defendant waives any right to object to their vigorous cross examination by the prosecution, he does not waive his right to refuse to supply the prosecution with the means to conduct that cross examination.”

698 P.2d 637, 647.

Within the last quoted sentence of the Misner court, we find the kernel of difference between California law and Montana law on this subject. In Sikora, supra, we quoted with approval (admittedly dictum, but bearing on the Montana view of the law) from People v. Damon (1969), 24 N.Y.2d 256, 299 N.Y.S.2d 830, 247 N.E.2d 651, as follows:

“It is argued first that there was a possible violation of the right against self-incrimination. We do not agree. These statements were not those of the defendant but of witnesses offered by the defendant. In no sense can it be said that he is being compelled to produce incriminating statements of his own. The privilege against self-incrimination applies only to evidence of a testimonial or communicative nature obtained from the defendant himself.”

154 Mont. 241, 249, 462 P.2d 897, 901.

While admitting the question is close, and with deference to sister states holding otherwise, we hold that the pretrial disclosure by the defendant of statements of witnesses he intends to call at trial does not offend his rights against self-incrimination under state or federal grounds. Undoubtedly at trial time, such statements would be used to refresh the recollection of defense witnesses. As such they ought as well to be available to the state. Our holding is also based on the reciprocity provided in the state’s statutes, and on the limitation of disclosure to those statements only of witnesses defendant intends to call at trial.

Disclosure of Statements of Experts

What is said foregoing applies with equal force to pretrial disclosure of prospective experts as witnesses. There is however, a necessary caution to be stated.

In the preparation of and the examination by such experts, the defendant may be encouraged to communicate freely and candidly with them. Thus experts’ reports, notes and other written materials may contain potentially incriminating information to which the state should not be entitled. Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Particularly, the reports of psychologists and psychiatrists may contain such incriminatory statements.

In ordering the exchange of disclosure of statements of expert witnesses therefore, it may be expedient for District Courts to weigh the issues of self-incrimination carefully under the protective procedures hereafter discussed.

It is noted that in this case the order of the court is carefully limited. Carkulis is ordered to give summaries only of the testimony he expects the expert witnesses to give at trial.

Disclosure of Documents

Carkulis has been ordered by the District Court to disclose to the state “all papers, documents, photographs, and other tangible objects” which he in good faith knows will be used as exhibits at the trial.

Carkulis claims that this order violates the Fourth Amendment of the Federal Constitution, and Article II, Section of the 1972 Montana Constitution.

Carkulis contends that the order is a compulsory production of documents and so it violates his Fourth Amendment rights within the meaning of Boyd v. United States (1886), 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. He argues that the seizure is void because the description of the place to be searched and things to be seized is not made with particularity, that the request is not made on probable cause, and that it is not made on written affirmation. Article II, Section 11, 1972 Montana Constitution.

The State counters that the authority of Boyd v. United States, supra, has been diminished, and there is no authority to support Carkulis that the Fourth Amendment applies to pretrial discovery.

The case which the State contends watered down the holding of Boyd, supra, is Hale v. Henkel (1906), 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652, wherein it was stated that “the Fourth Amendment was not intended to interfere with the power of Courts to compel, through a subpoena duces tecum, the production, upon a trial in court, of documentary evidence.” However, the United States Supreme Court also said in Hale that an order for the production of book and papers may constitute an unreasonable search and seizure within the Fourth Amendment whether the seizure occurred under a search warrant or a subpoena duces tecum. In Hale, the Supreme Court decided that the subpoena duces tecum was far too sweeping because of the vast extent of documents required to be produced from many different places under the subpoena.

Here the order of the court is moderate in comparison to the subpoena duces tecum in Hale. Carkulis is required to produce, for examination or reproduction, papers, documents, photographs, and tangible objects which he “in good faith knows will be used as exhibits at trial.” The order in its terms is definitive, and cannot be a burden upon the defendant, since he will use those same objects at trial. In consideration of the language used by the District Court order, we hold it meets the test of reasonableness, under Fourth Amendment tests, and is equally amenable to Article II, Section 11 of the 1972 Montana Constitution. Carkulis’ arguments that the place to be searched or the things to be seized or that probable cause has not been set forth nor supported by oath or affirmation, are state constitutional requirements for the issuance of a warrant. In this pretrial discovery procedure, the use of a warrant is not involved. For the efficient administration of justice, the court’s order here is directed to the production of objects for examination and reproduction which must eventually come to light at trial. Even if the order for production is regarded as a seizure of sorts, it is nevertheless reasonable. The constitutional prohibitions are against unreasonableness.

Due Process

Carkulis argues that the imposition of sanctions if he fails to abide by the discovery order of the District Court deprives him of due process. The due process provision of the Fifth Amendment is applicable to state action through the Fourteenth Amendment. Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.

The grinding surface of the due process question in this type of issue is whether reciprocity for discovery exists. In Williams v. Florida, supra, the United States Supreme Court indicated that nothing in the due process clause precludes any states from using broad discovery procedures designed to increase evidence available to both sides in criminal cases and to enhance goals and fairness in the adversary system. In Wardius v. Oregon (1973), 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82, the United States Supreme Court reaffirmed this point in reversing a conviction of an Oregon defendant based on an Oregon statute. The Oregon defendant had not given notice to the prosecution that he intended to use the defense of alibi and at trial his alibi witness as well as his own testimony was stricken. He appealed his conviction on the ground that he had been deprived of due process because under the Oregon statute there is no provision for reciprocal discovery, that is that the accused had not the same rights of pretrial discovery as did the State. The U.S. Supreme Court held that the Oregon statute did not provide reciprocal rights of discovery and that thereby due process was violated.

The statutes now enacted in this State relating to pretrial discovery in criminal cases provide for full discovery within constitutional and privilege limitations to both sides. After this Court approved the requirement that the defendant give notice of an alibi defense in Sikora, supra, the case went back to the District Court where the defendant, Radford, was convicted. He brought an action for habeas corpus in the federal system, in the United States District Court for the District of Montana. There the United States district judge upheld the notice of alibi statute and he was affirmed on appeal in the Ninth Circuit. Radford v. Stewart (9th Cir. 1973), 472 F.2d 1161, 1162. The circuit court said:

“The State operated in good faith in this action and did not use the discovery required merely to build its case. No investigation was made of the witnesses named by the defendant. In fact, defendant was allowed, without objection, to call two witnesses whose names had not been noticed. Defendant also knew prior to trial of the prosecution’s only rebuttal witness (a psychiatrist). Judge Battin thus found that under the facts of this case reciprocity existed.”

Since under the cases due process in this kind of case hinges on reciprocity, and reciprocity is provided in the statutes, Carkulis’ due process argument falls.

This Court noted the presence of reciprocity in the statutes which were precursors to the present pretrial discovery statutes as providing due process in State v. Bentley (1970), 155 Mont. 383, 472 P.2d 864.

Obligation of Defense Counsel Work-Product

The order of the District Court for pretrial discovery is binding not only upon Carkulis himself, but upon his agents and attorneys. Questions arise as to the impact of such an order upon the attorney-client relationship and its effect upon the work-product rule.

First, the work-product rule. It is a qualified evidentiary privilege recognized in Hickman v. Taylor (1947), 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed 451. The work-product rule is different from the attorney-client privilege. The latter protects communications between the client and his attorney or the attorney’s agent. The work-product doctrine protects against the disclosure of specific documents and tangible items prepared in actual anticipation of litigation or for trial. The exemption from discovery is intended to insure the privacy of a party’s attorney from unnecessary intrusion by opposing parties or counsel. However, the “privilege” is not absolute. It is not personal to the client. It can be waived by an attorney’s course of conduct. See People v. Small (Colo. 1981), 631 P.2d 148, 159.

There is no doubt that if an attorney uses at trial a statement he obtained and prepared in anticipation of litigation in interrogating or cross examining a witness, the full statement, even though work-product, must be produced at the demand of the other side. See People v. Small, supra. By the use of the statement at trial, the attorney has waived the work-product protection, since the material in the statement has become substantive evidence. On this ground Justice Byron R. White specially concurred in Williams v. Florida, supra, he contended that the work-product rule does not apply to evidence, and therefore no waiver of work-product rule by the attorney was involved. The majority in Williams held the attorney had waived the work-product rule by using the statement to impeach on cross-examination. In any event, the statement becomes discoverable when used at trial.

The order of the District Court in this case was tailored to require the plaintiff and his counsel and agents to produce all documents and tangible objects which the defendant in good faith knows will be used as an exhibit at the trial. If the defendant knows that such objects will be used at trial, whether we regard the same as evidence, or the use of them as a waiver of the work-product doctrine, since they are discoverable in any event, the timing of the discovery is the only question involved. The logic of Williams, that “accelerated disclosure” is permissible if the objects will come to light in any event applies here. If counsel, in representation of this client, acquires work-product objects which the defendant knows in good faith will not be used at trial, they are not subject to discovery under the order of the court. Further they are protected by the provisions of Section 46-15-332, MCA, that all matters which are privileged upon the trial are privileged against disclosure in the discovery procedure.

A close question may arise in some instances as to whether servance of the discovery order by a defendant’s attorney in the production of documents or tangible objects would in themselves incriminate his client. It appears to us that there are safeguards in that a protective order may be sought under Section 46-15-328, MCA, as we will hereafter discuss.

Excision and Protective Orders

Section 46-15-328, MCA, allows any party to obtain orders denying, deferring, or regulating pretrial discovery. The statute provides for excision of nondiscoverable material and for applications to the district court in camera for protective orders.

Carkulis contends that Section 46-15-328, MCA, violates his right against self-incrimination because Subsection 3 requires the counsel of both parties be present during all protective order presentations.

“A statute derives its meaning from the entire body of the words, taken together.” Wyse v. District Court of Fourth Judicial District (1981), 195 Mont. 434, 636 P.2d 865, 866. [38 St.Rep. 2005,] Section 46-15-328(1), MCA, gives the District Court the power to regulate disclosure:

“(1) Upon a motion of any party showing good cause, the court may order . . . that any other disclosure as required by Sections 46-15-321 through 46-15-329(b) . . . be . . . regulated when it finds:
“(b) that the risk cannot be eliminated by a less substantial restriction of discovery rights.”

It is possible for occasions to arise where applications for protective orders are made to the court, and where if counsel for all parties are present, “the cat is then out of the bag, never to be recaptured.” Subsection 1 in the statute gives the court the flexibility to employ appropriate protection procedures. The provisions of Subsection 3, that the court may permit the moving party to present the material or information for the inspection of the judge alone in the presence of all counsel, merely provides one method of accomplishing the legislative purpose. It is not exclusive. It does not exclude ex parte presentations. The District Court can exert its judicial authority in its adjudicatory function so as to protect constitutional and statutory rights.

Among the inherent powers of the court is “the right of the court to receive information in private so that it can intelligently assess its adjudicatory function.” Phoenix Newspapers, Inc. v. Superior Court (1983), 140 Ariz. 30, 680 P.2d 166, 169. The determination of whether material is discoverable or not is a necessary facet of the adjudicatory function. People v. Stevens (1981), 102 Ill.App.3d 773, 58 Ill.Dec. 389, 430 N.E.2d 331, 333.

The United States Supreme Court has never squarely addressed the issue of in camera hearings conducted ex parte. Yet, it has seen fit to approve of such procedure by implication. See Taglianetti v. United States (1969), 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (approving of in camera inspection of unlawful electronic surveillance case as not being violative of the Fourth Amendment where the defendant was provided with all tapes in which he took part in the conversation); Dennis v. United States (1966), 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (recognition of in camera procedure when national security or clear-cut threat to individuals is identified).

While the 1975 Amendments to the Federal Rules of Criminal Procedure were pending, the United States Supreme Court proposed a mandatory ex parte proceedings upon request of a party seeking a protective order. Moore’s Federal Practice, Section 1604 at 16-63. The House of Representatives changed the mandatory language to permissive in order to prevent burdening the trial courts. The amended proposal was codified in Rule 16(d)(1), Fed.R.Crim.P.

It provides:

“Protective and modifying orders.
“Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as appropriate upon motion by a party. The court may permit the party to make such a showing in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order to grant relief following such an ex parte showing, the entire text of the party’s statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.”

Not all protective order requests will require the use of the ex parte procedure. Ex parte proceedings are generally disfavored and are not to be employed lightly. The procedure would be appropriate only if an adversary hearing would defeat the purpose of the order sought.

Sanctions Fair Trial

The sanction applied by the District Court in its order for disclosure is that if the materials are not disclosed, the defendant will be precluded from offering the same at trial.

Carkulis argues that the imposition of such a sanction deprives him of the right to present a defense and thus violates the Sixth Amendment of the Federal Constitution and Article II, Section 24 of the Montana Constitution.

Carkulis argues that the Sixth Amendment is a guaranty to an accused of a right to call witnesses in his favor, without qualification or restraint. Washington v. State of Texas (1967), 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023. The State relies on Rowan v. Owens (7th Cir. 1984), 752 F.2d 1186, 1191, which held that to prevent the witness from testifying is not a per se unreasonable interference with the defendant’s right to defend himself. Again, in U.S. v. Nobles, supra, it was held that the Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; “one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth.”

Once it is determined, as we have determined here, that reciprocal pretrial disclosures subject to constitutional or statutory limitations are permissible, it goes hand in hand with that determination to say that the District Court may exercise its judicial discretion in enforcing such permissible disclosures.

We do not in this opinion pass upon the appropriateness of the sanctions set forth in the District Court in the Carkulis case, for the reason that the sanctions have yet to be applied. See State v. Fendler (App. 1980), 127 Ariz. 464, 622 P.2d 23, 41, for a discussion of appropriate sanctions.

Application of Section 46-15-323(3)

We find no substance in Carkulis’ argument that before Section 46-15-323(4) can be operative, defendant must have acted under Subdivision (3) of that statute.

Disposal

Accordingly, we have considered Carkulis’ petition under our power of supervisory control. Upon consideration the application of Carkulis for a writ of supervisory control directed to the District Court is DENIED, and these proceedings are dismissed.

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

MR. JUSTICE HUNT,

dissenting:

I dissent from the majority’s holding that before the trial the defendant in a criminal proceeding must make available to the prosecution a list of witnesses and exhibits expected to be used at trial. To do this is to go one step further to make the government more powerful than its citizens.

Our government was founded as a reaction to the oppressive and tyrannical actions of the British government in the eighteenth century. The founding fathers knew of the abuses of human rights that easily coupled with an overly authoritarian government and sought to protect the citizens of their newly formed nation-state by a recognition of certain inalienable rights enumerated in the Bill of Rights. Now we seem to be captivated by the idea of efficiency at the expense of safety.

As Justice Black stated in his dissent in Williams v. Florida (1970), 399 U.S. 78, 112, 26 L.Ed.2d 446, 483, 90 S.Ct. 1893, 1912:

“All of these rights are designed to shield the defendant against state power. None are designed to make convictions easier and taken together they clearly indicate that in our system the entire burden of proving criminal activity rests on the State.”

He continues:

“[The founding fathers] were well aware that any individual might some day be subjected to criminal prosecution, and it was in order to protect the freedom of each of us that they restricted the Government’s ability to punish or imprison any of us.”

Williams, 399 U.S. at 116, 90 S.Ct. at 1914. (dissenting op.).

The effect of the majority opinion is to sacrifice constitutional rights for the sake of “efficient administration of justice.” In doing so it gives in to the rhetoric we often hear that the courts are to blame for the increasing crime problem in this country and that only a “hardline” approach by the courts will solve the problem. Whatever the cause of our increasing crime it is not an inefficient judicial or prosecutorial system. In 1985, the prisons in the United States contained twice as many detainees per capita as the United Kingdom’s, four times as many as France’s and eight times as many as Portugal’s. Encyclopaedia Britannica, Book of the Year (1986) at 188. Chief Justice Wachtler of the New York Court of Appeals has said in a talk in Montana last July that New York alone has 40,000 prison inmates, up 26,000 from 1975. The Montana Lawyer, September, 1987, at 3. According to the Annual Report of the Department of Institutions, Montana has increased its prison population by an average of 376 in 1976 to 937 in 1987. Conversation with officials of the Montana Department of Institutions (November 23, 1987). These are not the numbers of an inefficient court system that require citizens to surrender rights for additional productivity.

In any event,

“[T]he Framers decided that the benefits to be derived from the kind of trial required by the Bill of Rights were well worth any loss in “efficiency” that resulted. Their decision constitutes the final word on the subject, absent some constitutional amendment. That decision should not be set aside as the Court does today.”

Williams, 399 U.S. at 114, 90 S.Ct. at 1912, (J. Black, dissenting op.). Justice Black accurately predicted how the Williams holding would be expanded by the state courts to force the defendant to assist in the prosecution of his own case. It is not just the defendant but all of us who have lost ground today in the struggle between state control and individual freedom.

      . “No person shall be compelled to testify against himself in a criminal proceeding . . . .” Article II, Section 25, 1972 Montana Constitution.

      . “No person . . . shall be compelled in any criminal case to be a witness against himself . . .” Fifth Amendment to the United States Constitution.

      . “No person shall be deprived of life, liberty or property without due process of law.” Article II, Section 17, 1972 Montana Constitution.
      “No person . . . shall ... be deprived of life, liberty or property, without due process of law; . . .” Fifth Amendment to United States Constitution.
      “. . . nor shall any State deprive any person of life, liberty or property, without due process of law; . . .” Fourteenth Amendment to United States Constitution.

        . “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue hut upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Fourth Amendment to the United States Constitution.

      . “The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.” Article II, Section 11, 1972 Montana Constitution.

      . “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and the district wherein the crime shall have been committed,. . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defense.” Sixth Amendment to the United States Constitution.

      . “In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed . . .” Article II, Section 24, 1972 Montana Constitution.

        FOOTNOTES


author: MR. JUSTICE SHEEHY

text:
    WADE J. DAHOOD, Personal Representative of the Estate of Rose M. McEwan, Deceased, Plaintiff and Respondent, v. MAY ANN FRANKOVICH, Rose Schlosser, Helen Dasovich, Steve Frankovich, May ann Riley, Cathy Parks, Charlotte Cutler, Joanne Sirginson, et al., Defendants and Appellants.
    No. 87-41.
    Submitted Oct. 1, 1987.
    Decided Dec. 3, 1987.
    746 P.2d 115.

      John L. McKeon argued, Anaconda, Cok & Wheat, Michael E. Wheat argued, Bozeman, Leonard J. Haxby argued, Butte, Johnson, Skakles & Kebe, Greg J. Skakles argued, Anaconda, for defendants and appellants.
    Poore, Roth & Robinson, Richard Orizotti argued, Butte, Knight, Dahood, McLean & Everett, David M. McLean, Anaconda, Howard Hedrick, Portland, Or., for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

This is an appeal from a declaratory judgment entered by the District Court, Third Judicial District, County of Deer Lodge, holding that Mary Cepuran, Joza Vinski and Karl Vinski, were entitled to equal one-third shares of the intestate residue of the estate of Rose M. McEwan, per capita and not by right of representation. We affirm.

Rose M. McEwan died on May 9, 1984. At the time of her death she left a valid will in which, after certain bequests, she left the entire residuary estate to her half brother, Joseph Stokan. The residuary legatee, Joseph Stokan, predeceased Rose M. McEwan, and Joseph left no issue who could take the share of a deceased devisee under Section 72-2-512, MCA. Accordingly, because the residuary estate of the decedent Rose M. McEwan is not effectively disposed of by her will, the residuary estate passes under the laws of intestate succession. Section 72-2-201, MCA.

Rose M. McEwan herself left no surviving issue, parent, brother, sister, children nor grandchildren of a deceased brother or sister. There are 30 claimants to her residuary estate whose relationships to the decedent Rose M. McEwan we take from an agreed statement of facts to be as follows:

A

Third degree:

Karl Vinski and Joza Vinski, half-brothers, and Mary Cepuran, half-sister to Kata Vinski Stokan, deceased. Rose M. McEwan is the daughter of Kata Vinski Stokan, deceased.

B

Fourth degree:

Ana Prpic (represented in this matter by Mary Ann Johnson) daughter of Rose Vinski, deceased. Rose Vinski was the full sister of Kata Vinski Stokan, the mother of Rose M. McEwan, deceased.

C

Fourth degree:

Ann Angela Laslovich Holleran, Mary Ann Laslovich Puccinelli, and Joseph Matthew Laslovich are the daughters and son of Michael Laslovich, deceased. Michael Laslovich was the full brother of Frank Laslovich, deceased, who was the father of Rose M. McEwan, decedent.

D

Fourth degree:

Helen V. Palakovich, Angela A. Davis, and Anna M. Thompson are daughters of Frank Laslovich, deceased. This Frank Laslovich was the half-brother of Frank Laslovich, deceased, who was the father of Rose M. McEwan, decedent.

E

Fifth degree:

Raymond Hess, Robert Hess, George Hess, Marian Greene and Betty Wyant are the sons and daughters of Mary Hess, deceased. Mary Hess was the daughter of Frank Laslovich, deceased. This Frank Laslovich was a half-brother of Frank Laslovich, deceased, who was the father of Rose M. McEwan, decedent.

F

Fifth degree:

Mary Ann Frankovich, Helen Frankovich Dasovich, Rose Frankovich Schlosser, and Steve Frankovich are the daughters and son of Helen Laslovich Frankovich, deceased. Helen Laslovich Frankovich was the daughter of Blazina Laslovich, deceased. Blazina Laslovich was the half-brother of Frank Laslovich, deceased, the father of Rose M. McEwan, decedent.

G

Sixth degree:

Margaret Zueco Snow is a daughter to Margaret Frankovich Zueco, deceased, who was the daughter of Helen Laslovich Frankovich, deceased. Helen Laslovich Frankovich was the daughter of Blazina Laslovich, deceased. Blazina Laslovich was the half-brother of Frank Laslovich, deceased, who was the father of Rose M. McEwan, decedent.

H

Sixth degree:

Mary Ann Frankovich Riley, Joann Frankovich Sirginson, Charlotte Frankovich Cutler, Ruth Frankovich Mix, Nancy Frankovich Connors, Kathleen Frankovich Parks, Jane Frankovich Hawthorne, Patricia Frankovich Morrison, John Frankovich and Gary Frankovich are the daughters and sons of Mike Frankovich, deceased. Mike Frankovich was the son of Helen Laslovich Frankovich, deceased. Helen Laslovich Frankovich was the daughter of Blazina Laslovich, deceased. Blazina Laslovich was a half-brother of Frank Laslovich, deceased, who was the father of Rose M. McEwan, decedent.

I

Application of the half blood statute

Ana Prpic is a full first cousin of the decedent Rose M. McEwan, since Ana’s mother Rose Vinski was a full sister of Kata Vinski Stokan, the mother of Rose M. McEwan. Ana Prpic contends, therefore, that as a full first cousin, she is a half-blood relative of the decedent Rose M. McEwan, and that Karlo Vinski, Joza Vinzki, and Mary Cepuran, as half uncles and half aunt to the decedent can only be quarter blood relatives. Thus Ana contends that although the relationship of the half uncles and half aunt is that of third degree, and that of a first cousin is fourth degree, nonetheless the half blood statute should not apply to the half uncles and half aunt since they are not of the half blood. Ana Prpic makes this contention to avoid the application Section 72-2-211, MCA, which provides:

“Kindred of half blood. Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.”

Ana Prpic is joined in this contention by Angela Laslovich Holleran, Mary Ann Laslovich Puccinelli and Joseph Matthew Laslovich, who state they too are full first cousins of the deceased Rose M. McEwan. Their father, Mike Laslovich was a full brother of Frank Laslovich, the father of Rose M. McEwan.

Ana Prpic contends that the term “half blood” describes the relationship between children who have one common parent. Genschorck v. Blumer (1932), 136 Kan. 228, 14 P.2d 722, 725. She argues that to be half-blood kindred requires establishing a blood line relationship to the decedent produced by either one of the decedent’s parents or through the decedent’s grandparents. This results in her statement that the 26 claimants who are not full first cousins are only “quarter blood” relatives because they trace a bloodline to Rose M. McEwan through one set of her great grandparents. It is thus that Ana Prpic asks us to interpret Section 72-2-211, MCA, in its reference to “the half blood.”

Ana Prpic’s argument is founded principally on the Official Comments to the Uniform Probate Code. In the Official Comments to Part 2, Intestate Succession, it is stated:

“(2) Inheritance by collateral relatives is limited to grandparents and those descended from grandparents. This simplifies proof of heirship and eliminates will contests by remote relatives.”

Official Comments to Part 2, Montana Code Annotated, Volume 6, Title 72, page 18 (1986).

Again, in the Official Comments to Section 72-2-203, MCA, it is stated that “in line with modern policy, [it] eliminates more remote relatives tracing through great grandparents.” Montana Code Annotated, Part 2, Section 72-2-203, Volume 6, Title 72, page 20 (1986).

The elemental contention of Ana Prpic therefore is that the term “half blood” is to be interpreted as she contends, and that this Court should follow in such an interpretation of the Official Comments to the Uniform Probate Code.

Regardless of the Official Comments, however, it is clear that the Montana Legislature, in adopting the Uniform Probate Code, did not incorporate the limitations to intestate distribution contended for by the full first cousins. Section 72-2-203, MCA, provides:

“Share of heirs other than surviving spouse. The part of the intestate estate not passing to the surviving spouse under 72-2-202, or the entire intestate estate if there is no surviving spouse, passes as follows:
“(1) to the issue of the decedent; if they are all of the same degree of kinship to the decedent, they take equally, but if of unequal degree, then those of more remote degree take by representation;
“(2) if there is no surviving issue, to his parent or parents equally;
“(3) if there is no surviving issue or parent, to the brothers and sisters and the children or grandchildren of any deceased brother or sister, by representation;
“(4) if there is no surviving issue, parent, brother, sister, or children or grandchildren of a deceased brother or sister, to the next of kin in equal degree, except that where there are two or more collateral kindred in equal degree but claiming through different ancestors, those who claim through the nearer ancestors must be preferred to those claiming through an ancestor more remote.”

Section 72-2-203 springs from Section 2-103 of the Uniform Probate Code; however, Subdivision (4) of Section 72-2-203, above, is different from Subdivision (4) of Section 2-103 of the Uniform Probate Code. Montana did not adopt Subdivision (4) of Section 2-103, Uniform Probate Code. If it had, in the situation of the decedent Rose M. McEwan, her residuary estate would be divided half to the descendants of her paternal grandparents, and half to the descendants of her maternal grandparents.

Under Section 72-2-203(4), MCA, above, the residuary estate of Rose M. McEwan, decedent, must go to the “next of kin in equal degree.” The term “next of kin” is not defined in our probate code but we have earlier determined that the term means blood relatives, and not relatives by affinity. Estate of Brewington (1977), 173 Mont. 458, 568 P.2d 133.

Decrees of kindred are computed in accordance with Sections 72-11-101, -105, inclusive, MCA. Under Section 72-11-105, MCA, uncles and aunts are related to the decedent in the third degree, and full first cousins in the fourth degree.

Here, the uncles and aunt, though related in the third degree, are of the half blood. It is at this point that Section 72-2-211, MCA, takes over which provides that relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

The adoption by the legislature of Section 72-2-211, MCA, represents a change from the statute preceding the Montana Uniform Probate Code as to relatives of the half blood. Former Section 91-411, R.C.M. (1947) provided:

“Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance comes to the intestate by descent, devise, or gift of someone of his ancestors, in which case all those who are not of the blood of such ancestors must be excluded from such inheritance.”

It is significant that former Section 91-411, R.C.M. (1947), recognized that the term “half blood” could be applied to heirs without limitation as to a third or fourth degree. Finally, however, the provisions of Section 72-2-203(4), MCA, must be read in conjunction with Section 72-11-105, MCA. In computing the degrees of kindred, the count is made by generations from the claimant to the common ancestor and then to the decedent. Section 72-11-105, MCA, does not require a “set” of common ancestors in determining the degree of kindred.

The argument in this case therefore of the full first cousins that the term “half blood” in Section 72-2-211, MCA, includes only whole blood uncles and aunts of the decedent and whole blood first cousins of the decedent must fail. First cousins, whether of the whole or the half blood, are not of the same degree of kindred as uncles and aunts of a decedent.

II

Paternal and Maternal Division

The full cousins Mary Laslovich Puccinella, Ann Angela Laslovich Holleran, and Joseph Matthew Laslovich point out that under the judgment of the District Court the residuary estate of decedent Rose M. McEwan is divided among heirs from the decedent’s mother’s side of the family whereas the other claimants descend from the father’s side of the family and that to exclude the claimants from the father’s side in the distribution of the residuary estate is patently unfair.

These cousins look to Subdivision (4) of Section 72-2-203, MCA, and that portion of it which states that “where there are two or more collateral kindred in equal degree but claiming through different ancestors . . . .” Their argument runs that all of the persons here claim through different ancestors who are in equal degree, in other words, the mother and father of Rose M. McEwan. Since the mother and father are each dead, half of the estate descends to the issue of the father and half to the issue of the mother. They contend that this is the only explanation for Subsections (1) and (3) of Section 72-2-203, providing for distribution by representation whereas distribution of (2) and (4) under the statute provide for division per capita.

If we were to give effect to the argument made by these first cousins, the result would be to restore by interpretation what was refused by the legislature, that is the provisions of the Uniform Probate Code, Section 2-103, which call for a division between the paternal and the maternal sides. Since the legislature refused to adopt that kind of distribution in this situation, we must adhere to Section 72-2-203(4), MCA, and determine that the residual estate in this case goes to the next of kin in equal degree, per capita. We see nothing in Estate of Gertrude Brown (1972), 158 Mont. 413, 492 P.2d 914, nor Estate of Ethel E. Evans, (Mont. 1985), [217 Mont. 89,] 704 P.2d 35, 42 St.Rep. 1047, leading to a different conclusion.

III

Per Capita and Representation

Mary Ann Frankovich and the remaining claimants listed in paragraph F above are related to the decedent in the fifth degree of kindred. On appeal, their counsel argues that under Section 72-2-203, MCA, a proper interpretation requires a distribution of the intestate estate to all next of kin by representation and that such representation is provided for in Section 72-2-204, MCA. Counsel further argue from the official comments to the Uniform Probate Code under Section 72-2-203, MCA, which stated that “in general the principle of representation is adopted as the pattern which most decedents would prefer.” Montana Code Annotated, Part 2, Vol. 6, at 20 (1986).

First, representation is not allowed unless it is “called for by this code” Section 72-2-204, MCA, and representation is not called for in Subdivisions (2) or (4) of Section 72-2-203, MCA.

Moreover, the term “next of kin” in Subdivision (4) of Section 72-2-203 is limited by the following language “in equal degree.”

We interpret that language to mean that in cases where Subdivision (4) applies, the intestate estate goes to the next of kin, per capita if necessary, in the nearest equal degree. That interpretation is in accord with many of the states, and further in accord with Official Comments respecting the reasons for the intestate provisions: the intestacy rule “attempts to reflect the normal desire of the owner of wealth as to the disposition of his property at death” and so the prevailing patterns of wills were looked to in framing the statutory provisions; in addition intestacy rules and procedures give persons of modest means an effective and not prohibitorily expensive estate plan provided by law. Montana Code Annotated, Part 2, Vol. 6, at 18 (1986).

Similarly, briefs filed in behalf of the claimants in paragraph D above, related in the fourth degree, and paragraph E, related in the fifth degree, and those on behalf of the sixth degree relatives contend for distribution by right of representation, and also join in the “quarter blood” argument which we have discussed above. What we have said foregoing is adequate to meet their contentions.

IV

Conclusion

We determine in this case that the District Court properly interpreted the provisions of Montana’s Uniform Probate Code in determining the residuary heirs of the decedent Rose M. McEwan’s intestate estate. The declaratory judgment thereupon entered is hereby affirmed.

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