author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JIMMY RAY BROMGARD, Defendant and Appellant.
    No. 96-553.
    Submitted on Briefs April 17, 1997.
    Decided October 21, 1997.
    54 St.Rep. 1096.
    948 P.2d 182.
    285 Mont. 170.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Josh Van De Wetering, Deputy Yellowstone County Attorney, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

Jimmy Ray Bromgard (Bromgard), appeals an order of the District Court for the Thirteenth Judicial District, Yellowstone County, denying his second petition for post-conviction relief. We affirm.

We address the following issues on appeal:

1. Did the District Court err in determining that Bromgard could have raised his claim of jury misconduct in his original petition for post-conviction relief?

2. Did the District Court err in failing to determine whether Bromgard’s claim of ineffective assistance of counsel could have been raised in his original petition for post-conviction relief?

Factual and Procedural Background

On November 19,1987, Bromgard was convicted by a jury of three counts of felony sexual intercourse without consent. He was sentenced by the District Court on December 11, 1987, to three concurrent terms of 40 years at the Montana State Prison. Bromgard was represented by appointed counsel throughout the proceedings.

Bromgard’s counsel filed a notice of appeal on December 28, 1987, however, no brief was ever filed. This Court dismissed the appeal on August 30, 1988, for failure to file appellant’s brief or a memorandum in compliance with Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.

On March 29, 1991, Bromgard filed a pro se petition for post-conviction relief with this Court. The petition was a fill-in-the-blank document available to inmates at the prison. In his petition, Bromgard raised seven grounds for relief including a claim that his counsel had rendered ineffective assistance by failing to perfect his appeal. Bromgard also alleged that several jurors were prejudiced against him. In support of this claim he referred to a Billings Gazette article, published the day after his trial, which claimed that several jurors were convinced of his guilt on the second day of the three-day trial after they heard evidence relating to hair samples.

On May 15, 1991, this Court issued an order denying relief on six of the seven claims alleged in Bromgard’s petition and remanding the case to the District Court on the seventh claim, ineffective assistance of counsel. Complying with this Court’s instructions to appoint counsel to review the records and determine if there were any meritorious issues, the District Court appointed new counsel on June 5, 1991. However, on August 24,1992, by order of this Court, counsel from the Montana Appellate Defender’s office was substituted as counsel of record. On November 10,1992, counsel moved this Court to set aside the August 30,1988 order dismissing Bromgard’s appeal. We granted counsel’s motion to file an out-of-time direct appeal.

On December 11, 1992, while Bromgard’s appeal was pending, counsel filed a second petition for post-conviction relief alleging that the jury had engaged in misconduct during deliberations and that trial counsel was ineffective for failing to protect Bromgard’s rights with regard to the jurors’ actions. The misconduct allegation stemmed from the same newspaper article that formed a basis for Bromgard’s original petition for post-conviction relief. In that article, the Billings Gazette reported that during deliberations the jurors conducted an experiment intended to recreate the fighting conditions existing at the time of the attack. The victim had testified that even though it was dark in her room, she could see that her assailant was wearing brown pants. Bromgard had asserted throughout the trial that he did not own a pair of brown pants and that he usually wore jeans. The purpose of the jurors’ experiment was to test whether they could discern a difference between a pair of brown pants worn by one juror and the jeans worn by another juror in fighting conditions similar to those described by the victim.

Bromgard alleged in his petition that the conduct of the jury in experimenting during deliberations constituted jury misconduct which entitled Bromgard to a new trial. In addition, Bromgard alleged that trial counsel’s failure to take any action with regard to this experimentation denied Bromgard the opportunity to present this misconduct to the court by way of a motion for a new trial or other appropriate relief.

On November 2, 1993, this Court affirmed Bromgard’s conviction. State v. Bromgard (1993), 261 Mont. 291, 862 P.2d 1140 {Bromgard I). The post-conviction matter, which had been held in abeyance in the District Court pending resolution of the appeal, was resumed. On September 21, 1994, the District Court entered an order denying post-conviction relief. The court concluded that Bromgard’s petition was procedurally barred because Bromgard knew about the jury experimentation before he filed his direct appeal and the issue could have been raised at that time.

Bromgard appealed and this Court vacated the District Court’s order holding that the issues raised in Bromgard’s second petition for post-conviction relief could not have been raised in the direct appeal as evidence of the jury’s misconduct was not part of the District Court record and we do not consider on appeal facts that are not found in the record. State v. Bromgard (1995), 273 Mont. 20, 901 P.2d 611 (Bromgard II). We remanded the case to the District Court for an evidentiary hearing on the issue of whether Bromgard could reasonably have raised in his original petition for post-conviction relief the claims that were alleged in his second petition.

An evidentiary hearing was held on November 9, 1995. On June 6, 1996, the District Court denied Bromgard’s second petition determining that, under § 46-21-105(1), MCA, Bromgard was procedurally barred from raising the issue of jury misconduct in his second petition for post-conviction relief as he could reasonably have raised that issue in his original petition. Bromgard now appeals the District Court’s Order.

Issue 1.

Did the District Court err in determining that Bromgard could have raised his claim of jury misconduct in his original petition for post-conviction relief?

The standard of review of a district court’s denial of a petition for post-conviction relief is whether substantial evidence supports the court’s findings and conclusions. State v. Christensen (1995), 274 Mont. 326, 328-29, 907 P.2d 970, 971 (citing State v. Baker (1995), 272 Mont. 273, 280, 901 P.2d 54, 58; State v. Coates (1990), 241 Mont. 331, 336, 786 P.2d 1182, 1185). Moreover, we will not overturn a district court’s legal conclusions if its interpretation of the law is correct. Mothka v. State (1997), [281 Mont. 175], 931 P.2d 1331, 1332 (citing Wagner v. State (1995), 270 Mont. 26, 28, 889 P.2d 1189, 1190, cert. denied _ U.S. _, 116 S.Ct. 101, 133 L.Ed.2d 55).

The District Court determined that, pursuant to § 46-21-105, MCA, Bromgard was procedurally barred from raising the issue of jury misconduct in his second petition for post-conviction relief as he could reasonably have raised that issue in his original petition. At the time Bromgard filed his original petition, § 46-21-105, MCA, provided, in pertinent part:

All grounds for relief claimed by a petitioner under this chapter must be raised in his original or amended petition. Any grounds not so raised are waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.

Other than some minor changes in style made by the 1991 Legislature, the statute quoted above is essentially the same as the statute in effect when Bromgard filed his second petition for post-conviction relief. The Commission Comments to § 46-21-105, MCA, provide:

The object of this section is to eliminate the unnecessary burden placed upon the courts by repetitious or specious petitions. It is highly desirable that a petitioner be required to assert all his claims in one petition. Unless good cause is shown why he did not assert all his claims in the original petition, his failure to so assert them constitutes a waiver. The way is left open, however, for a subsequent petition if the court finds grounds for relief that could not reasonably have been raised in the original petition. [Emphasis added.]

Bromgard argues that the issue of jury misconduct could not reasonably have been raised in his original petition for post-conviction relief because, although he had read the Billings Gazette article the day after his trial and thus knew of the jurors experiment prior to the time he filed his original petition, he was not aware of the legal significance of that experimentation. He maintains that since he was housed in the maximum security unit at the prison, he did not have direct access to legal materials and that his lack of legal awareness was sufficient to establish “good cause” for failing to include the claim in his original petition. He asserts that his failure to include his claim of jury misconduct in his original petition for post-conviction relief should be excused because he was not represented by counsel at the time he filed his original petition.

The District Court likened the operation of § 46-21-105, MCA, to civil statutes of limitation wherein the accrual of a claim, for purposes of commencing the limitations period, often occurs when the claimant has (or reasonably should have) knowledge of the facts which would support the claim, without regard to whether the claimant is aware of the legal significance of the facts. See Title 27, chapter 2, Montana Code Annotated. The court found that Bromgard’s lack of knowledge of the law did not excuse his failure to include the issue of jury misconduct in his original petition for post-conviction relief.

A post-conviction relief procedure is civil in nature and there is no constitutional requirement that counsel be appointed. Petition of Martin (1989), 240 Mont. 419, 420, 787 P.2d 746, 747 (citing Pennsylvania v. Finley (1987), 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539). An appellant appearing pro se in appealing the denial of his petition for post-conviction relief will be held to the same standards as any appellate attorney. State v. Henricks (1983), 206 Mont. 469, 474, 672 P.2d 20, 23, overruled on other grounds by Kills on Top v. State (1995), 273 Mont. 32, 901 P.2d 1368.

At the evidentiary hearing, Bromgard admitted having read the newspaper article the day after his trial and remembering it clearly enough to assert a claim of juror bias in his original petition for post-conviction relief. Moreover, the fill-in the blank document that Bromgard used for his original petition for post-conviction relief clearly cautions pro se petitioners that if they fail to set forth all grounds for relief in their petition, they “may be barred from presenting additional grounds at a later date.” A post-conviction relief petitioner bears the risk of waiving a claim by failing to comply with the procedural obligations arising from knowledge of that claim’s underlying factual basis. See § 46-21-105(1), MCA; Blaney v. Gamble (1994), 266 Mont. 51, 53, 879 P.2d 51, 52-53.

We agree with the District Court’s conclusion that Bromgard failed to show good cause why he could not reasonably have included his claim of jury misconduct in his original petition for post-conviction relief. Accordingly, we hold that the District Court did not err in determining that Bromgard was procedurally barred from raising the issue of jury misconduct in his second petition for post-conviction relief as he could reasonably have raised that issue in his original petition.

Issue 2.

Did the District Court err in failing to determine whether Bromgard’s claim of ineffective assistance of counsel could have been raised in his original petition for post-conviction relief?

Bromgard contends that since the District Court failed to consider whether his claim of ineffective assistance of counsel could reasonably have been raised in his original petition for post-conviction relief, this case should be remanded for consideration of this issue. Bromgard argues that, in the alternative, we should find that this claim could not reasonably have been raised in the original petition and remand the case for consideration of the merits of Bromgard’s claim.

Since Bromgard’s claim of ineffective assistance of counsel is derived entirely from his claim of jury misconduct, the District Court’s ruling on the ineffective assistance of counsel claim is implicit in the court’s order. Nevertheless, in his original petition for post-conviction relief, Bromgard raised other instances of ineffective assistance of counsel. Because Bromgard was aware at the time he filed his original petition that his trial attorney did not challenge the jury misconduct claim in any post-trial motions, Bromgard could have and should have raised this claim in his original petition for post-conviction relief along with the other claims of ineffective assistance of counsel.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and REGNIER concur.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CARL SIDNEY RACE, Defendant and Appellant.
    No. 96-624.
    Submitted on Briefs September 17, 1997.
    Rehearing Denied November 13, 1997.
    Decided October 21, 1997.
    54 St.Rep. 1099.
    946 P.2d 641.
    285 Mont. 177.

      For Appellant: Derik Pomeroy; Morgan, Cameron & Weaver, Bozeman.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Elizabeth Griffing, Assistant Attorney General, Helena; John P. Connor, Jr., County Prosecutor Services Bureau, Helena; Gary Bunke, Custer County Attorney, Miles City.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The Sixteenth Judicial District Court, Custer County, accepted Carl Sidney Race’s plea of guilty to two counts of deliberate homicide and two counts of attempted deliberate homicide. The court sentenced Race to four consecutive life terms, plus forty years’ imprisonment for use of a weapon in all four offenses, and declared him ineligible for parole. Race appeals. We affirm.

The issues are:

1. Did the District Court commit reversible error by ordering defense counsel to provide the court with a complete copy of the defense psychiatrist’s report when Race intended to have the psychiatrist testify at the sentencing hearing?

2. Did the court properly exercise its discretion with respect to Race’s claim that he was seriously mentally ill?

3. Did the court err in not awarding Race credit for time served in jail?

On the evening of October 21, 1995, Race went to the home of his estranged wife’s sister and her family outside Miles City, Montana, and shot all four people living there. He then poured an accelerant, believed to be gasoline, on the victims’ bodies and set them on fire. One of the victims managed to escape to a neighbor’s house after being shot, and another managed to escape after he had been set on fire. Those two victims survived Race’s attack. The other two died as a result of their gunshot wounds and bums.

The two surviving victims, who had known Race for over twenty years, identified him as the assailant. Race was arrested in Texas a week later and was extradited to Montana on two charges of deliberate homicide, two charges of attempted deliberate homicide, aggravated burglary, and arson. At the State’s request, the court ordered a psychiatric examination to determine whether Race was capable of standing trial and whether he was capable of possessing the requisite mental state at the time of the crimes. After a two-day examination, the psychiatrist, Dr. Stratford, concluded that Race was competent to stand trial and that he suffered from no mental disease or defect. Stratford further stated his belief that Race had the capacity to act purposely or knowingly and to appreciate the criminality of his conduct at the time of the crimes charged.

In May 1996, Race and the State entered a plea agreement by which Race pled guilty to two counts of deliberate homicide and two counts of attempted deliberate homicide. The State agreed to drop the charges of arson and aggravated burglary and not to recommend a sentence of death.

The defense gave notice of its intent to present testimony at Race’s sentencing hearing concerning the results of an independent psychiatric examination of Race by Joseph D. Rich, M.D. Noting that the presentence investigation report contained only page 7 of Rich’s report of his examination of Race, and reasoning that under § 46-18-111, MCA, if part of the report was included in the presentence investigation, the whole report should be available for the court’s review, the District Court ordered the defense to release the entire report. Defense counsel first refused to provide the report on grounds that it contained irrelevant and prejudicial material. Then defense co-counsel agreed to, and did, file the report. Rich testified at the sentencing hearing, as did Stratford.

Issue 1

Did the District Court commit reversible error by ordering defense counsel to provide the court with a complete copy of the defense psychiatrist’s report when Race intended to have the psychiatrist testify at the sentencing hearing?

Race asserts that, in ordering the defense to produce Rich’s entire report, the court forced his attorneys to turn over privileged, confidential, and extremely prejudicial material to the probation officer. He cites § 26-1-807, MCA, which provides:

The confidential relations and communications between a psychologist and his client shall be placed on the same basis as provided by law for those between an attorney and his client. Nothing in any act of the legislature shall be construed to require such privileged communications to be disclosed.

Race farther cites § 46-14-217, MCA:

A statement made for the purposes of psychiatric or psychological examination or treatment provided for in this section by a person subjected to examination or treatment is not admissible in evidence against the person at trial on any issue other than that of the person’s mental condition. It is admissible on the issue of the person’s mental condition, whether or not it would otherwise be considered a privileged communication, only when and after the defendant presents evidence that due to a mental disease or defect the defendant did not have a particular state of mind that is an element of the offense charged.

Race also cites § 46-15-324, MCA, which provides that with the exception of exculpatory information in the possession of a prosecutor, superseded notes or work product of a defense or prosecuting attorney are not subject to disclosure.

The State points out that the rules of evidence are not applicable or controlling in sentencing hearings. State v. DeSalvo (1995), 273 Mont. 343, 349, 903 P.2d 202, 206. This allows a sentencing court to have the fullest information possible concerning the defendant’s life and characteristics, so that the court is able to individualize punishment. See Williams v. New York (1949), 337 U.S. 241, 246-49, 69 S.Ct. 1079, 1082-84, 93 L.Ed. 1337, 1341-43. The first two statutes cited by Race, §§ 26-1-807 and 46-14-217, MCA, are codifications of rules of evidence.

Additionally, Race waived any psychologist-patient privilege as to Rich’s evaluation when he decided to present testimony and evidence from Rich. Criminal defendants are free to communicate freely with their psychiatrist and may disclose nothing “unless the expert is to be called as a witness.” State v. Davidson (1994), 266 Mont. 404, 412, 880 P.2d 1331, 1337. The complete report was necessary in order for the District Court to properly evaluate Rich’s testimony, and we conclude that it was properly considered by the court.

Issue 2

Did the court properly exercise its discretion with respect to Race’s claim that he was seriously mentally ill?

The sentencing order included a provision that Race “shall be allowed to keep and use any prescribed medication he is presently taking until such time as [he] can be re-evaluated by prison medical staff.” Race contends that the District Court committed reversible error in ignoring Rich’s determination that he was seriously mentally ill. Race claims that, in addition to ordering that he be allowed to keep and use his prescribed medication, the court should have ordered “appropriate psychological or psychiatric treatment.”

A district court sitting as a finder of fact is free to accept or reject any expert opinion. DeSalvo, 903 P.2d at 205. Rich opined that Race suffered from a delusional disorder with paranoid features. On cross-examination, however, Rich acknowledged that what he diagnosed as Race’s delusional disorder played no role in the planning or execution of the crimes and that there was “a lot of manipulation” in the way Race presented himself. He further acknowledged that Race had provided false information and was malingering. On the other hand, Stratford diagnosed Race as a malingerer who was not seriously mentally ill. He strongly disagreed with Rich’s opinion that Race suffered from a delusional disorder, and unequivocally stated that Race was not subject to rehabilitation.

The District Court was well within its discretion in accepting Stratford’s opinion that Race was not seriously mentally ill over Rich’s opinion on that subject. We hold that the District Court properly exercised its discretion with respect to Race’s claim that he was seriously mentally ill.

Issue 3

Did the court err in not awarding Race credit for time served in jail?

Race points out that he was arraigned on December 4, 1995, and was held without bond. He contends that, pursuant to § 46-18-403, MCA, he must be given credit for all time he served in jail prior to his conviction.

Section 46-18-403(1), MCA, provides:

Any person incarcerated on a bailable offense and against whom a judgment of imprisonment is rendered must be allowed credit for each day of incarceration prior to or after conviction, except that the time allowed as a credit may not exceed the term of the prison sentence rendered.

The State’s initial response on this issue is that Race has not explained how he is prejudiced by the District Court not giving him credit for jail time served — credit for jail time is immaterial in light of Race’s four life sentences plus forty years, with no possibility of parole.

Further, § 46-18-403, MCA, applies to “[a]ny person incarcerated on a bailable offense.” Section 46-9-102, MCA, provides that all persons are bailable before conviction, except when death is a possible punishment for the offense charged. In this case, death was a possible punishment. Therefore, by definition, Race was not incarcerated on a bailable offense, and the District Court was not obliged to award credit for jail time served under § 46-18-403, MCA. We hold that the District Court did not err in failing to award Race credit for time served in jail.

We affirm the judgment of the District Court.

JUSTICES NELSON, HUNT, REGNIER and LEAPHART concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RODNEY PLENTY HAWK, Defendant and Appellant.
    No. 97-305.
    Submitted on Briefs October 16, 1997.
    Decided October 22, 1997.
    54 St.Rep. 1102.
    948 P.2d 209.
    285 Mont. 183.

      For Appellant: James L. Vogel, Hardin.
    For Respondent: Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena; Christine A. Cooke, Big Horn County Attorney, Curtis Bevolden, Deputy Big Horn County Attorney, Hardin.
   JUSTICE NELSON

delivered the Opinion of the Court.

Rodney Plenty Hawk appeals a jury verdict in the District Court for the Thirteenth Judicial District, Big Horn County, convicting him of Intimidation. We reverse.

The issues presented for review are:

1. Whether there was sufficient evidence to support the verdict.
2. Whether Plenty Hawk’s right to a speedy trial was violated.

Because we reverse on issue one regarding the sufficiency of the evidence, we decline to address issue two.

Factual and Procedural Background

On February 8,1996, at approximately 9 p.m., Deputy Bob Runge of the Big Horn County Sheriff’s Department was dispatched to investigate a report of an intoxicated person lying in the road. Upon arriving at the scene, Runge discovered Plenty Hawk lying in the parking lane. Runge noticed that Plenty Hawk had blood coming down over one eye. Fearing that Plenty Hawk may have been hit by a car, Runge called for an ambulance. When the ambulance personnel arrived and began examining Plenty Hawk, he sat up and tried to push them away. Sue Mercier and Patti Medicinehorse, the ambulance personnel, testified that Plenty Hawk smelled of alcohol and that, although he seemed alert and oriented, he was combative and belligerent.

Mercier and Medicinehorse determined that Plenty Hawk’s vital signs were normal and that he had not sustained any life-threatening injuries. Because Plenty Hawk was covered with mud, they decided to transport him to the sheriff’s office where they could clean him up and examine him more thoroughly. Runge placed Plenty Hawk in the back of his patrol car while assuring Plenty Hawk that he was not under arrest.

At the sheriff’s office, Plenty Hawk was placed in a holding cell. He was combative and insisted that everyone leave him alone. When Mercier attempted to check his pulse, Plenty Hawk took a swing at her. Mercier then left the cell and Medicinehorse calmed Plenty Hawk down, completed the medical exam and cleaned the abrasion over Plenty Hawk’s eye.

As Medicinehorse was leaving, Runge advised Plenty Hawk that he was under arrest for the charge of Intoxicated Pedestrian and that he would be spending the night in jail. Pete Molina, the detention officer, began the booking process and directed Plenty Hawk to take off his shoes. After taking off one shoe, Plenty Hawk refused to take off his other shoe and twice challenged Runge to fight. Plenty Hawk stood 6 feet 3 inches tall, weighed 240 pounds and was 35 to 40 years old, while Runge stood 5 feet 11 inches tall, weighed 180 pounds and was 56 years old.

Both Runge and Molina testified that Plenty Hawk declared that as soon as he got out of jail he was going to kick Runge’s ass and terrorize Runge and his family. Molina reported that the entire exchange with Plenty Hawk lasted only 15 to 20 minutes and that Plenty Hawk apologized to Molina the next day. Runge acknowledged at trial that he had been told by one of the jailers that Plenty Hawk wished to apologize to Runge as well.

At trial, Plenty Hawk recounted that he was in Hardin to make a dental appointment. While waiting for his ride back to the Crow Agency, he stopped in one of the local casinos to gamble. After winning $150, he visited a few bars and spent several hours drinking. At some point he decided to hitchhike home. He recalled standing on the side of the road in the rain, but did not recall anything else until he woke up in a cell at the jail. He contended that because of his intoxicated condition he must have blacked out and that he did not remember Runge or the ambulance crew coming to the scene or having made any threats to Runge.

Plenty Hawk was charged with Intimidation pursuant to § 45-5-203, MCA (1995). He was tried by a jury on September 6,1996. At the close of the State’s case-in-chief, defense counsel moved for a directed verdict alleging insufficient evidence. The District Court denied the motion and Plenty Hawk was subsequently found guilty and sentenced to three years at Montana State Prison. On March 5, 1997, defense counsel filed a motion for a new trial or a judgment notwithstanding the verdict. A hearing on the motion was conducted on April 7,1997. By order dated April 18,1997, the court denied Plenty Hawk’s motion as untimely. Plenty Hawk now appeals his conviction.

Discussion

Whether there was sufficient evidence to support the verdict.

The standard of review of the sufficiency of the evidence to sustain a criminal conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Ross (1995), 269 Mont. 347, 360, 889 P.2d 161, 169 (citing State v. Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318). This is the same standard that applies to a district court’s decision on a motion for a directed verdict. State v. Treible (1996), 275 Mont. 59, 61, 910 P.2d 237, 238.

Plenty Hawk was convicted of Intimidation under § 45-5-203, MCA (1995), which provides, in pertinent part:

Intimidation. (1) A person commits the offense of intimidation when, with the purpose to cause another to perform or to omit the performance of any act, he communicates to another, under circumstances which reasonably tend to produce a fear that it will be carried out, a threat to perform without lawful authority any of the following acts:
(a) inflict physical harm on the person threatened or any other person;
(b) subject any person to physical confinement or restraint; or
(c) commit any felony.

Plenty Hawk contends that his conviction should be reversed because the State failed to present any evidence on one of the essential elements of the crime, namely whether the threats were made “with the purpose to cause another to perform or to omit the performance of any act.”

The State contends that at the time the threats were made, Runge was placing Plenty Hawk under arrest and that Plenty Hawk’s purpose in making the threats was to cause Runge to release him. However, there is no evidence in the record that the threats were made for any particular purpose. Plenty Hawk was belligerent and uncooperative from the time Runge found him. He tried to push the ambulance attendants away when they attempted to examine him while he was lying in the roadway. At the jail, prior to being informed he was under arrest, Plenty Hawk took a swing at one of the ambulance attendants. There is nothing in the record to indicate that Plenty Hawk’s threats to Runge were anything other than a continuation of his belligerent attitude.

The Criminal Law Commission Comments to § 45-5-203, MCA, provide that “[i]ntimidation requires a specific purpose to cause another to perform ‘or to omit’ the performance of any act... and the threat must be ‘communicated’ with that purpose.” As Plenty Hawk points out, there was no purpose in the threats made to Runge; Plenty Hawk was simply drunk and belligerent. At no time did Plenty Hawk state what act he might want Runge to do or to omit and the State has provided no evidence to show what specific act Plenty Hawk was seeking to have done or omitted.

Accordingly, we hold that the evidence is insufficient to support a guilty verdict on the charge of Intimidation. The District Court erred in denying Plenty Hawk’s motion for a directed verdict.

Reversed with instructions that the District Court enter an order granting Plenty Hawk’s motion for a directed verdict and vacating his conviction and sentence for Intimidation.

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


author: JUSTICE REGNIER

text:
    LINDA LEE MOORE and H. GARY MOORE, Plaintiffs and Appellants, v. IMPERIAL HOTELS CORPORATION, Defendant and Respondent.
    No. 96-406.
    Submitted on Briefs July 2, 1997.
    Decided October 23, 1997.
    54 St.Rep. 1104.
    948 P.2d 211.
    285 Mont. 188.

      For Appellants: Jack E. Sands, Attorney at Law; Billings.
    For Respondent: John O. Mudd and Lucy T. France; Garlington, Lohn & Robinson; Missoula.
   JUSTICE REGNIER

delivered the Opinion of the Court.

This is an appeal by Linda Lee Moore and H. Gary Moore from the Yellowstone County District Court’s November 13,1996, order requiring the Moores to post a $5,000 bond to secure payment of Imperial Hotels Corporation’s costs on appeal. We reverse and remand.

The issue on appeal is whether the District Court abused its discretion in requiring the Moores to post a $5,000 bond to cover anticipated attorney fees for an appeal as an element of costs on appeal pursuant to § 39-2-915, MCA.

FACTUAL BACKGROUND

Linda Lee and H. Gary Moore filed a wrongful discharge claim, as well as claims involving violations of wage and hour statutes pursuant to § 39-3-204, MCA, and §§ 39-3-404 and -405, MCA, against Imperial Hotels Corporation in the Thirteenth Judicial District Court, Yellowstone County, on November 2, 1994. On February 23, 1995, Imperial made an offer to arbitrate the case pursuant to § 39-2-914, MCA, and the Moores refused. A jury returned a verdict in Imperial’s favor on January 25, 1996. On February 7, 1996, judgment was entered and the District Court awarded Imperial attorney fees and costs totaling $41,881.33.

The Moores filed a notice of appeal on March 12,1996. On November 12,1996, counsel for Imperial filed a motion in the District Court requesting that the Moores be ordered to post a bond in the amount of $5,000 in order to secure costs of appeal, including anticipated attorney fees incurred in defending the appeal. Imperial served the Moores by first class mail with notice of this motion. The next day, November 13, 1996, the motion was granted by the District Court without a hearing and before the Moores filed a responsive brief. That order was appealed on December 6, 1996.

On December 17,1996, this Court ordered that the briefing schedule and underlying appeal be stayed until the appeal concerning the District Court’s bond order was resolved.

The Moores appeal from the District Court order dated November 13, 1996, requiring them to post a $5,000 bond to secure payment of Imperial’s costs on appeal.

DISCUSSION

Did the District Court abuse its discretion in requiring the Moores to post a $5,000 bond to cover anticipated attorney fees for an appeal as an element of costs on appeal pursuant to § 39-2-915, MCA?

The issue presented here is one involving a district court’s order on a post-trial motion for costs on appeal. Discretionary rulings of a district court include trial administration issues, post-trial motions, and similar issues. Eagle Ridge Ranch v. Park County (1997), [283 Mont. 62], 938 P.2d 1342, 1344. The standard of review of discretionary court rulings is abuse of discretion. May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388.

The Moores sued Imperial under the Wrongful Discharge From Employment Act. As part of the act, § 39-2-915, MCA, provides:

Effect of rejection of offer to arbitrate. A party who makes a valid offer to arbitrate that is not accepted by the other party and who prevails in an action under this part is entitled as an element of costs to reasonable attorney fees incurred subsequent to the date of the offer.

Thus, under § 39-2-915, MCA, if a party declines an offer to arbitrate a dispute and subsequently loses in court, the prevailing party that made the offer to arbitrate is entitled to reasonable attorney fees incurred after the offer was made.

Both the Moores and Imperial agree that Imperial made a valid offer to arbitrate, that the Moores, within their rights, declined Imperial’s offer to arbitrate, and that Imperial prevailed on the action in the District Court. However, the parties dispute whether the District Court can require the Moores to post a bond securing Imperial’s anticipated attorney fees for defending the appeal as costs on appeal.

The Moores argue that the District Court’s November 13, 1996, order requiring them to post a $5,000 bond to cover Imperial’s anticipated attorney fees for the appeal is contrary to Rule 6, M.R.App.R, and is not authorized by § 39-2-915, MCA. The Moores contend that under Rule 6, the only costs allowed as “costs on appeal” are those costs specifically mentioned in Rule 33, M.R.App.P.

Imperial counters that the District Court properly required the Moores to post a $5,000 bond to insure payment of Imperial’s costs on appeal. Imperial contends that § 39-2-915, MCA, expressly provides that attorney fees be included as an element of costs on appeal under Rule 6.

For the reasons stated below, this Court concludes that, for the purposes of determining the amount of a bond or security under Rule 6, a district court may not include anticipated attorney fees for the defense of an appeal as part of costs on appeal. This is not to say, however, that attorney fees incurred on appeal may not ultimately be recovered by a prevailing party when allowable by law.

Rule 6, M.R.App.P, is entitled “Undertaking for costs on appeal in civil cases” and provides in relevant part:

(a) The district court may require an appellant to file a bond or provide other security in such form and amount as it finds necessary to insure payment of costs on appeal in a civil case. The provisions of Rule 8(a) apply to a surety upon a bond given pursuant to this rule.

The term “costs on appeal” is not defined under Rule 6. However, Rule 33 defines costs on appeal in civil cases.

Rule 33, M.R.App.P., provides in relevant part:

Rule 33. Costs in civil cases.
(a) Costs on appeal. Costs on appeal in civil cases will be taxed as provided by section 25-10-104, Montana Code Annotated, and if not otherwise provided by the court in its decision, will automatically be awarded to the successful party against the other party. All costs on appeal shall be claimed as provided by section 25-10-503, Montana Code Annotated.
(b) Costs of briefs and appendices. The cost of printing or otherwise producing briefs and appendices shall be taxable at rates not higher than specified in Rule 23(g).
(c) Other costs taxable. Costs incurred in the preparation and transmission of the record, the cost of the reporter’s transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, and the fee for filing notice of appeal shall be taxed in the district court as costs of the appeal in favor of the party entitled to costs under this rule.

Under Rule 33, M.R.App.P, we conclude that there are two types of costs that are components of costs on appeal when a district court sets a bond under Rule 6. First, Rule 33(b) provides for the costs of printing and producing briefs and appendices. These costs are to be taxed as provided for under Rule 23(g), M.R.App.P. At the time of the Moores’ appeal, Rule 23(g) stated that “reasonable costs for briefs shall be limited to $250 for appellant’s brief and $200 for respondent’s brief.” Second, Rule 33(c) provides for the costs associated with preparing and transmitting the record, the cost of the reporter’s transcript, premiums paid for supersedeas bonds or other bonds, and the fee for filing a notice of appeal. Under Rule 33, there is no provision specifically incorporating attorney fees into costs on appeal.

Imperial argues that the anticipated attorney fees for defending an appeal may be included in setting the amount of a bond under Rule 6. Imperial points out that Rule 33(a) makes specific mention that “[c]osts on appeal in civil cases will be taxed as provided by section 25-10-104.” Imperial suggests that one must then refer to § 25-10-201, MCA, for the definition of “costs.” Imperial then points out that § 25-10-201(9), MCA, provides for allowable costs that include “such other reasonable and necessary expenses as are taxable according to the course and practice of the court or by express provision of law.” The express provision of law on which Imperial bases its request for anticipated attorney fees is § 39-2-915, MCA.

As stated above, under § 39-2-915, MCA, a prevailing party that made an offer to arbitrate that was refused is entitled “as an element of costs to reasonable attorney fees incurred subsequent to the date of the offer.” The District Court awarded Imperial attorney fees in the amount of $41,881.31. That amount represents total fees, costs and disbursements incurred from February 22,1995, the date the offer to arbitrate was made, through January 26, 1996, the day after the verdict was rendered. These costs awarded by the District Court are directly related to the District Court proceeding and are not disputed nor at issue in this appeal.

Imperial’s motion to the District Court requested that the Moores post a $5,000 bond to insure the payment of Imperial’s costs on appeal. Imperial asserts that as attorney fees are an element of costs pursuant to § 39-2-915, MCA, the amount of the bond should include attorney fees incurred in connection with the appeal.

Imperial’s motion states, “Imperial’s counsel estimates the costs and fees associated with defending the appeal will be $5,000.00.” Attached in support of Imperial’s motion is the affidavit of John O. Mudd, Imperial’s counsel. In the affidavit dated November 8, 1996, Mudd swears:

2. Although the plaintiffs have not filed their brief in this matter, I estimate that the time involved in analyzing the plaintiff’s brief, reviewing the trial transcript, performing the necessary legal research, and writing the defendant’s response brief will take approximately 40 hours. My hourly rate for this work will be $120.00, which I understand to be comparable to the hourly rate charged by counsel handling this type of litigation.
3. The experience of our law firm and [sic] handling appeals of this type indicates that there will be approximately $200.00 in additional costs associated with printing, preparation and filing of the defendant’s brief....
4. I therefore estimate that the total cost, exclusive of oral argument, will be $5,000.00.

In the affidavit, counsel has not stated any costs that Imperial has actually incurred in defending the appeal against the Moores. Indeed, the affidavit sets forth an estimate of the costs of appeal, including attorney fees, that Imperial might incur. Since the underlying appeal has yet to be briefed, it is impossible for the anticipatory attorney fees to be fixed with any precision. This estimate of costs cannot yet be included as costs on appeal as “reasonable attorney fees incurred subsequent to the date of the offer” pursuant to § 39-2-915, MCA (emphasis added), because they are not costs that have been actually incurred by Imperial.

Imperial relies on two cases in its brief for the proposition that anticipated attorney fees can be included as costs on appeal by a district court when setting bond under Rule 6. In Chamberlin v. Puckett Construction (1996), 277 Mont. 198, 921 P.2d 1237, attorney fees were included in costs on appeal awarded to the prevailing party based on contract. Also, in Missoula High School Legal Defense Ass’n v. Superintendent of Public Instruction (1981), 196 Mont. 106, 637 P.2d 1188, attorney fees for costs of appeal were awarded to the prevailing party under the common fund doctrine. In neither of these cases did the district court order, as was done here, anticipatory attorney fees to be included in the Rule 6 bond as a cost of appeal. In fact, we remanded both cases back to the district court to conduct an evidentiary hearing to determine reasonable attorney fees on appeal.

For the reasons stated above, we conclude that the District Court abused its discretion in ordering the Moores to post a $5,000 bond based upon Imperial’s motion. Although § 39-2-915, MCA, allows for attorney fees for the prevailing party subsequent to the date of offer to arbitrate as an element of costs, these costs must have actually been incurred.

At this time, we do not preclude Imperial the opportunity to eventually recover costs on appeal, including reasonable attorney fees for defending the appeal, if they are ultimately successful in this litigation. In the event Imperial is successful on the underlying appeal, it will be entitled to reasonable attorney fees incurred in defending the appeal. At that time, this matter will be remanded to the District Court to determine the amount of those fees as an element of costs on appeal.

In conclusion, we determine that the District Court abused its discretion in requiring the Moores to post a $5,000 bond to cover anticipated attorney fees as costs on appeal under Rule 6, M.R.App.P. We remand to the District Court for further proceedings consistent with this opinion.

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


author: JUSTICE LEAPHART

text:
    STEVEN K. HAVENS, Plaintiff and Appellant, v. STATE OF MONTANA, Defendant and Respondent.
    No. 97-319.
    Submitted on Briefs September 17, 1997.
    Decided October 23, 1997.
    54 St.Rep. 1108.
    945 P.2d 941.
    285 Mont. 195.

      For Appellant: Douglas J. DiRe; Knight, Dahood, McLean & Everett, Anaconda.
    For Respondent: William Evan Jones, Attorney at Law; Terry J. MacDonald, Attorney at Law, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Steven K. Havens (Havens) sued the State of Montana (State) claiming the State’s negligence in failing to install a stop light at the main entrance to the Wal-Mart store located in Butte, Montana, was a cause of the motorcycle/automobile collision in which he received injuries. The State contended that Havens was contributorily negligent because his ability to react was impaired due to his consumption of alcohol prior to the accident. Havens filed a motion in limine seeking to exclude evidence of his alcohol consumption on the day of the accident and objected at trial to the introduction of results of a toxicology report indicating that Havens had 0.068 blood alcohol concentration (BAC) and tested positive for marijuana. The District Court denied Havens’ motion in limine, the case proceeded to trial and the jury found no negligence by the State. The court also denied Havens’ motion for a new trial in which he contended that the court should have granted the motion in limine. Havens asserts in this appeal that the Second Judicial District Court, Silver Bow County, erred in denying, his motion in limine and as a result he was prejudiced by introduction of the toxicology report and evidence of alcohol consumption. We conclude that the District Court erred in denying Havens’ motion for a new trial. We reverse and remand.

Factual and Procedural History

On the afternoon of August 12,1993, Doug Violette (Violette) took a lunch break from his position at the Butte Wal-Mart store. Violette stopped his vehicle at a stop sign located at the main entrance to the Wal-Mart parking lot and waited before pulling out into traffic on Harrison Avenue. At the same time, Havens was driving his motorcycle south on Harrison Avenue at the posted speed limit of 45 miles per hour. Violette pulled out of the parking lot onto Harrison Avenue and into the path of Havens’ motorcycle. The vehicles collided, and Havens was severely injured. Law enforcement cited Violette for violation of § 61-8-341, MCA, failing to yield the right-of-way. Havens settled his claim against Violette. Havens then filed suit against the State and Wal-Mart Stores, Inc., alleging negligence in failing to install a stop light at the busy Wal-Mart intersection. The District Court dismissed Wal-Mart on a motion for summary judgment, finding that Wal-Mart owed no duty to Havens to install traffic signals.

Prior to trial, Havens moved to exclude evidence of his alcohol consumption on the day of the accident. Havens argued that his alcohol consumption did not contribute to the accident and therefore was not relevant to the case. The State objected to the motion citing this Court’s recent decision in Busta v. Columbus Hosp. Corp. (1996), 276 Mont. 342, 916 P.2d 122, 139, and asserted that it “[would] present evidence and argue that its own conduct was not, in a natural and continuous sequence, a substantial factor in bringing about injury to the Plaintiff.” It also claimed that it should be allowed to present testimony that Havens’ ability to react was impaired. The State asserted that it “intend[ed] to call Dr. James M. Miller, P.E. as an expert. ... He [would] testify that Mr. Havens’ 0.068 blood alcohol level decreased his ability to respond and react in an emergency situation.” Finally, the State argued that “[Havens’] inability to properly respond, coupled with Doug Violette’s violation of the law, was an intervening, superseding cause of the accident in this matter.” In light of the State’s representation that, in support of its claim of contributory negligence, it would present expert testimony that Havens’ alcohol consumption decreased his ability to react to an emergency, the District Court denied Havens’ motion in limine.

Since the court had denied his motion in limine, Havens’ counsel, at trial, felt he had no choice but to “elicit testimony from Steven Havens that he had consumed three beers on the day of the accident and ... smoked marijuana four days before the accident.” The State, however, did not offer evidence that Havens’ alcohol consumption contributed to the accident. In fact, Sergeant James Kilmer, the investigating officer, testified that there was nothing Havens could have done to avoid the collision and that Havens’ alcohol consumption did not play a part in the collision. Moreover, Dr. James M. Miller, the State’s expert witness, did not testify that Havens’ alcohol consumption reduced his ability to react as the State contended in opposing Havens’ motion in limine. Rather, Dr. Miller testified that Havens was not negligent in failing to stop his motorcycle or in failing to avoid the accident. The jury returned a defense verdict, finding the State was not negligent.

Following trial, Havens moved for a new trial, asserting that since Havens’ negligence was not a contested issue in the case, the evidence regarding Havens’ alcohol consumption and the results of the toxicology report had no relevance, severely prejudiced Havens, and, therefore, should have been excluded. The State, in its brief in opposition to Havens’ motion for a new trial, continued to assert that Havens’ contributory negligence was an issue at trial and the evidence regarding his alcohol consumption was properly admitted. In addition, the State contended that because the jury found no negligence by the State and did not reach the issue of contributory negligence, Havens’ negligence was never considered by the jury and Havens, therefore, could not have been prejudiced by admission of the evidence. The District Court denied Havens’ motion for a new trial, and Havens appealed to this Court.

We address the following issue:

Did the District Court err in denying Havens’motion for a new trial when the State failed to make a connection between Havens’ alcohol consumption and the cause of the accident?

Discussion

Rule 59(a), M.R.Civ.R, allows a motion for a new trial to be granted for any reason provided by statute. Section 25-11-102, MCA, sets forth the grounds for a new trial and provides that “any order of the court or abuse of discretion by which either party was prevented from having a fair trial” is sufficient grounds for a new trial if the substantial rights of a party are materially affected. The decision to grant or deny a motion for a new trial is within the sound discretion of the district court and will not be overturned absent a showing of manifest abuse of discretion. Allers v. Riley (1995), 273 Mont. 1, 4, 901 P.2d 600, 602; Larson v. K-Mart Corp. (1990), 241 Mont. 428, 430-31, 787 P.2d 361, 362.

Havens asserts that the District Court erred in denying his motion in limine to exclude evidence of his alcohol consumption and the toxicology report because that evidence was not relevant to the central issue at trial. Rule 401, M.R.Evid., defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402, M.R.Evid., provides that relevant evidence is generally admissible. However, Rule 403, M.R.Evid., creates an exception to Rule 402’s general admissibility standard. Rule 403, M.R.Evid., allows relevant evidence to be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ....” Havens asserts that the toxicology report and evidence of his alcohol consumption were irrelevant. He further asserts that even if the evidence had probative value, the probative value was outweighed by the unfair prejudice that resulted from its admission; therefore, it should have been excluded.

The plaintifi/appellant in Kimes v. Herrin made a similar argument. Kimes v. Herrin (1985), 217 Mont. 330, 705 P.2d 108. In Kimes, the 2-year-old plaintiff was injured in an automobile accident and began exhibiting symptoms several years later. Kimes, 705 P.2d at 110. The defendant proposed to introduce evidence of family fighting and drinking by plaintiff’s father in support of its theory that her symptoms were caused by her environment rather than the collision. Kimes, 705 P.2d at 110. The district court was concerned about the admissibility of this evidence; however, it allowed the testimony because the defendant assured the court that the evidence at trial would medically link home environment to the plaintiff’s symptoms. Although experts from both sides indicated that poor home environment may cause similar symptoms, there was no evidence presented at trial establishing a medical connection between poor home environment and the plaintiff’s symptoms. Accordingly, on appeal, we held that the prejudicial effect of the evidence outweighed its probative value and the evidence should have been excluded under Rule 403, M.R.Evid. Kimes, 705 P.2d at 110.

In the case at hand, the State, like the defendant in Kimes, assured the District Court that it would produce testimony linking Havens’ alcohol consumption as a contributory factor in the accident. As a result of this assurance, the District Court denied Havens’ motion in limine. Despite the State’s assurance, however, there was no evidence produced at trial that established a connection between Havens’ alcohol consumption and the cause of the accident. In fact, Dr. Miller testified that Havens was not negligent in failing to avoid the accident. Moreover, Sergeant Kilmer testified that not only did Havens’ alcohol consumption not play a part in the collision, but, “in [his] opinion Mr. Havens couldn’t avoid the accident. He had a car that pulled out in front of him, it was too late to do anything.” Therefore, under Rule 402, M.R.Evid., the results of the toxicology report and evidence of Havens’ alcohol consumption should have been excluded because, in the absence of testimony linking the evidence to the question of causation, it was irrelevant. Furthermore, the highly prejudicial nature of the evidence created a danger of confusion on the issue of causation.

When the District Court denied Havens’ motion in limine, Havens’ counsel felt constrained to defuse the prejudice which would inhere from introduction of BAC evidence by having Havens himself testify regarding his alcohol consumption rather than wait for the defense to broach the topic. Although the State contends that any error was harmless since the jury did not reach the question of Havens’ contributory negligence, the fact is that, given our society’s grave and well-founded concern with driving under the influence of alcohol, evidence of alcohol consumption by a driver involved in a collision is highly prejudicial.

Although we rarely find a manifest abuse of discretion in the denial of a motion for a new trial, there are certain instances in which the prejudicial matter at issue undermines the fairness to such a degree that a new trial is the only remedy. In Kuhnke v. Fisher (1984), 210 Mont. 114, 683 P.2d 916, we addressed the question of improper argument to the jury and noted that “[t]he only way to be sure which, if any, of the defendants should be exonerated or whether plaintiff should recover at all is to grant a new trial.” Kuhnke, 683 P.2d at 922. In Putro v. Baker (1966), 147 Mont. 139, 410 P.2d 717, we were confronted with a situation wherein jurors had been exposed to a prejudicial newspaper article about the case under consideration. The district court denied both a motion for a mistrial and a motion for a new trial. We reversed and held that “[t]he guiding principle of our legal system is fairness. We must tenaciously adhere to the ideal that both sides of a lawsuit be guaranteed a fair trial. Sec. 27, Art. III, Montana Constitution [now Sec. 17, Art. II].” Putro, 410 P.2d at 722. We also reasoned “that unexplained prejudicial references to important matters in litigation may have a ‘natural tendency’ to infect the proceedings with an unfairness that can be corrected only by starting anew the legal contest.” Putro, 410 P.2d at 722. When Havens was forced to introduce evidence of his own alcohol consumption, that cast his entire presentation to the jury under a shroud of prejudice. It would be unrealistic to assume that evidence of alcohol consumption by Havens did not have a “natural tendency” to infect the entire proceedings with an unfairness which can only be remedied with a new trial.

The District Court did not err when it initially denied Havens’ motion in limine based upon the State’s assurance that the testimony to be presented at trial would link Havens’ alcohol consumption to the question of causation. However, after the verdict, when Havens renewed his contention in the context of a motion for a new trial, the court should have reconsidered its prior ruling in light of the State’s failure to fulfill its promise to elicit testimony establishing Havens’ alcohol consumption as a factor in causing the collision. Havens persistently contended. before, during and after the trial that the evidence was not relevant and that it would and did cause prejudice materially affecting his right to a fair trial. As a result, we hold that the District Court’s denial of the motion for a new trial constituted a manifest abuse of discretion. Reversed and remanded for a new trial.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, GRAY, REGNIER, NELSON and HUNT concur.


author: JUSTICE GRAY

text:
    DON MacMILLAN, Plaintiff and Appellant, v. STATE COMPENSATION INSURANCE FUND, et al., Defendants and Respondents.
    No. 96-645.
    Submitted on Briefs June 26, 1997.
    Decided October 28, 1997.
    54 St.Rep. 1112.
    947 P.2d 75.
    285 Mont. 202.

      For Appellant: Tom L. Lewis and Andrew D. Huppert; Lewis, Huppert & Slovak, Great Falls.
    For Respondents: Jacqueline T. Lenmark and P. Keith Keller; Keller, Reynolds, Drake, Johnson & Gillespie, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Don MacMillan (MacMillan) appeals from the judgment entered by the First Judicial District Court, Lewis and Clark County, on its order granting the motion for summary judgment filed by the State Compensation Insurance Fund, the State of Montana and Carl Swanson (collectively, the State Fund). We reverse and remand.

The dispositive issue on appeal is whether the District Court erred in concluding that MacMillan does not have a cause of action under the Wrongful Discharge from Employment Act and, on that basis, in granting summary judgment to the State Fund.

BACKGROUND

In 1989, the Montana legislature created the State Compensation Mutual Insurance Fund, a nonprofit, independent public corporation and domestic mutual insurer statutorily required to provide workers’ compensation insurance coverage to any Montana employer requesting such coverage. Patrick J. Sweeney (Sweeney) was appointed executive director of the new State Fund. Sweeney hired MacMillan to serve as vice president of the benefits department and MacMillan assumed that position on December 18, 1989. Carl Swanson (Swanson) replaced Sweeney as executive director in 1993. In April of 1994, Swanson terminated MacMillan from his position as vice president of benefits.

MacMillan subsequently filed a complaint in District Court alleging causes of action under the Montana Wrongful Discharge from Employment Act (WDEA) and 42 U.S.C. § 1983 (§ 1983). The State Fund moved for summary judgment on several bases and the District Court granted the motion, concluding that MacMillan does not have a cause of action under either the WDEA or § 1983. Judgment was entered accordingly and MacMillan appeals only that part of the District Court’s order which concluded that he could not bring a cause of action under the WDEA.

STANDARD OF REVIEW

Our standard in reviewing a district court’s summary judgment ruling is de novo; we use the same Rule 56, M.R.Civ.R, criteria as the district court. Clark v. Eagle Systems, Inc. (1996), 279 Mont. 279, 283, 927 P.2d 995, 997 (citations omitted). The party seeking summary judgment must establish both the absence of any genuine issue of material fact which would allow the nonmoving party to recover and entitlement to judgment as a matter of law. Rule 56(c), M.R.Civ.P; Clark, 927 P.2d at 997-98 (citations omitted).

In this case, MacMillan does not argue that there are genuine issues of material fact precluding summary judgment, but only that the District Court erred in concluding that the State Fund was entitled to summary judgment as a matter of law. We review a district court’s conclusions of law to determine whether those conclusions are correct. Albright v. State, by and Through State (1997), [281 Mont. 196], 933 P.2d 815, 821 (citation omitted).

DISCUSSION

Did the District Court err in concluding that MacMillan does not have a cause of action under the WDEA and, on that basis, in granting summary judgment to the State Fund?

The WDEA is set forth in Title 39, Chapter 2, Part 9 of the Montana Code Annotated (MCA). It generally provides the exclusive remedy for an employee’s claim of wrongful discharge from employment. Section 39-2-902, MCA. With the exception of express exemptions, the WDEA applies by its terms to all wrongful discharges from employment in Montana, including discharges from so-called “at will” employment which otherwise could be terminated for any reason. Section 39-2-902, MCA; Jarvenpaa v. Glacier Elec. Co-op., Inc. (1995), 271 Mont. 477, 480, 898 P.2d 690, 692. The two statutory exemptions from application of the WDEA are for discharges subject to any other state or federal statute providing a remedy or procedure for contesting the dispute and discharges of employees covered by collective bargaining agreements or written employment contracts for a specific term. Section 39-2-912, MCA. It is undisputed that the exemptions do not apply in this case and, therefore, that nothing in the WDEA itself precludes MacMillan from bringing a wrongful discharge claim against the State Fund under the WDEA.

The State Fund argued, however, that the statutes which created the State Fund provide that the management staff of the State Fund “serves at the pleasure of the executive director” and, as a result, that MacMillan retained no employment rights and could not bring an action under the WDEA. The District Court agreed, essentially concluding that the phrase “serves at the pleasure of the executive director” contained in § 39-71-2317, MCA, created a new exemption from the WDEA which precludes a management level employee of the State Fund from proceeding with a wrongful discharge claim thereunder. MacMillan contends that the District Court’s interpretation of § 39-71-2317, MCA, is erroneous and we agree.

Section 39-71-2317, MCA, provides as follows:

The board [of directors] shall appoint an executive director of the state fund who has general responsibility for the operations of the state fund. The executive director must have executive level experience, with knowledge of the insurance industry. The executive director must receive compensation as set by the board and serve at the pleasure of the board. The executive director may hire the management staff of the state fund, each of whom serves at the pleasure of the executive director.

Nothing in the § 39-71-2317, MCA, phrase “serves at the pleasure of the executive director” states or otherwise suggests in any way that management staff of the State Fund are exempt from application of the WDEA. Indeed, § 39-71-2317, MCA, which is part of Montana’s Workers’ Compensation Act, contains no reference to the WDEA which, as discussed above, expressly lists the exemptions from its applicability. Thus, on its face, § 39-71-2317, MCA, does not contemplate a new exception to — or exemption from — application of the WDEA.

Notwithstanding, the State Fund urges this Court to interpret the undefined phrase “serve at the pleasure of’ to mean that the State Fund executive director has the authority to terminate the management staff of the State Fund with absolute freedom and without the “good cause” generally required to prevent a discharge from employment from being “wrongful” under the WDEA. See § 39-2-904(2), MCA. It advances several arguments in support of such an interpretation.

First, the State Fund directs our attention to § 2-15-111(3), MCA, which authorizes the governor to appoint the directors of executive branch departments and provides that department directors “serve at the pleasure of the governor.” The State Fund asserts that, just as § 2-15-111(3), MCA, grants the governor the flexibility to create a management staff that best meets his or her management style and needs, so, too, does § 39-71-2317, MCA, provide that necessary flexibility to the State Fund’s executive director.

The State Fund’s reliance on the “serve at the pleasure” language in § 2-15-111(3), MCA, is misplaced. Neither the mere appearance of the phrase at several places in the MCA nor any case law supports the State Fund’s argument that “serve at the pleasure of’ creates an exemption from WDEA applicability. Moreover, the State Fund’s reliance on § 2-15-111(3), MCA, ignores the remainder of that statute, which provides that “[t]he governor may remove a director at any time and appoint a new director to the office.” Indeed, in another Montana statute containing the phrase “serve at the pleasure of,” the legislature has added “terminate ... without any cause” language to “serve at the pleasure” language to reflect an intent to expressly authorize termination of an employee without cause. See § 7-32-221, MCA. If “serve at the pleasure of’ means that the employer may terminate the employee without cause, the additional language in §§ 2-15-111(3) and 7-32-221, MCA, is mere surplusage. Section 39-71-2317, MCA, the statute at issue here, contains neither the “may remove” language in § 2-15-111(3), MCA, nor the “terminate without any cause” language in § 7-32-221, MCA, and this Court may not insert into a statute language which has been omitted by the legislature. See § 1-2-101, MCA.

The State Fund also contends that the District Court’s conclusion that State Fund management staff retain no employment rights and are exempt from the provisions of the WDEA is buttressed by the fact that State Fund employees are exempt from certain state personnel policies pursuant to § 2-18-103, MCA (1993). We disagree.

Section 2-18-103, MCA (1993), provides that the executive director and employees of the State Fund — together with other enumerated positions in state government — are not covered by specified statutory state personnel policies. The statutory personnel policies referenced in § 2-18-103, MCA (1993), are limited to those contained in Parts 1 and 2 of Chapter 18 of Title 2; they do not relate to the question of whether a particular state employee has a right to bring an action under the WDEA for wrongful discharge.

Furthermore, the exemption from certain personnel policies for enumerated state employees reflects that the legislature is well aware of how to create exemptions from, or exceptions to, the applicability of other statutes. It is presumed that the legislature has full knowledge of existing laws. Thiel v. Taurus Drilling Ltd. 1980-II (1985), 218 Mont. 201, 207, 710 P.2d 33, 36. Thus, if, in acting with full knowledge of the provisions of the WDEA, the legislature had intended to create an exemption from or exception to the applicability of the WDEA for State Fund management staff, it would have done so expressly. See, e.g., Williams v. Selstad (1988), 235 Mont. 137, 140, 766 P.2d 247, 248-49. Section 39-71-2317, MCA, does not contain either an express exemption from the WDEA or language specifically stating that State Fund management staff may be terminated without cause and, absent such express language, the phrase “serve at the pleasure of’ does not confer upon the State Fund executive director the authority to terminate management staff without cause. We conclude that the phrase “serves at the pleasure of’ contained in § 39-71-2317, MCA, means only that the State Fluid’s executive director may hire and retain the management staff of his or her choice without interference from the board of directors.

Next, the State Fund generally asserts that the creation of the State Fund as an independent corporation existing as a domestic mutual insurer, subject to the same regulations and operating modes as private insurers in Montana, advances its argument that § 39-71-2317, MCA, authorizes the executive director to terminate the employment of a member of the management staff without the employee having recourse to the WDEA. The State Fund presents no supporting analysis under either the private insurance corporation statutes set forth in Title 33, Chapter 3 of the MCA, or the general business corporation statutes set forth in Title 35, Chapter 1 of the MCA, however, and, as a result, we do not address its general assertions.

Finally, the State Fund argues that the legislative history of § 39-71-2317, MCA, reflects that the legislature intended the “serve at the pleasure of’ language to exempt the State Fund management staff from the provisions of the WDEA. “Th[is] Court properly refers to legislative history only when intent cannot be determined from the content of the statute.” Dorn v. Bd. of Trust, of Billings Sch. Dist. (1983), 203 Mont. 136, 144, 661 P.2d 426, 430. Moreover, our role in interpreting a statute is simply to ascertain what is in terms or in substance contained within that statute, neither omitting what has been inserted nor inserting what has been omitted by the legislature. Section 1-2-101, MCA. As discussed above, when the legislature intends to authorize termination without cause or to provide for an exception to, or exemption from, an otherwise applicable statute, it manifests that intent clearly in express terms. Section 39-71-2317, MCA, does not contain such express language manifesting an intent by the legislature to exempt State Fund management staff from the provisions of the WDEA or to provide that management staff may be terminated without cause, and this Court cannot insert such language. Because we can determine from the content of § 39-71-2317, MCA, that the legislature did not intend to authorize the termination of State Fund management staff without cause, we may not resort to an examination of its legislative history in addressing the issue before us.

We conclude that § 39-71-2317, MCA, does not exempt State Fund management staff from the applicability of the WDEA or authorize the executive director of the State Fund to terminate management staff without “good cause” as defined in the WDEA. As a result, we further conclude that the State Fund failed to establish its entitlement to judgment as a matter of law regarding MacMillan’s claim under the WDEA. We hold, therefore, that the District Court erred in concluding that MacMillan does not have a cause of action under the WDEA and, on that basis, in granting summary judgment to the State Fund.

Reversed and remanded for further proceedings consistent with this opinion.

JUSTICES NELSON, HUNT, TRIEWEILER and LEAPHART concur.