source: Caselaw Access Project

author: JUSTICE NELSON JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RONDA K. WILLIAMS-RUSCH, Defendant and Appellant.
    No. 94-240.
    Submitted on Briefs March 7, 1996.
    Decided November 25, 1996.
    53 St.Rep. 1224.
    279 Mont. 437.
    928 P.2d 169.

      For Appellant: Amy N. Guth, Public Defender’s Office, Libby.
    For Respondent: Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Charles Sprinkle, Lincoln County Attorney, Libby.
   JUSTICE NELSON

delivered the Opinion of the Court.

Following a jury trial in the Nineteenth Judicial District Court, Lincoln County, appellant Ronda K. Williams-Rusch (Ronda) was acquitted of the offense of conspiracy, a felony, and convicted of tampering with a witness or informant, a felony. We affirm.

Ronda raises the following issues on appeal:

1. Did the District Court err in failing to dismiss the prosecution on the grounds of outrageous government conduct?

2. Did the District Court err in allowing the State to prosecute Ronda for witness tampering?

3. Did the District Court err in failing to dismiss the prosecution on the grounds of denial of a speedy trial?

4. Did the District Court have subject matter jurisdiction over the offense of witness tampering?

Factual and Procedural Background

On August 16, 1992, two law enforcement officers with the U.S. Forest Service came across a campsite near the Fisher River in the Kootenai National Forest about 15 miles from Libby. No one was at the campsite at the time. Next to a trailer in the camp the officers observed some bags of potting soil and several cardboard boxes containing 15 to 20 small plants growing in styrofoam cups. The officers obtained a leaf from one of the plants which later tested positive as marijuana.

Over the next three days, officers from the Lincoln County Sheriff’s Office and the U.S. Forest Service conducted a surveillance of the campsite, which was occupied by Ronda, her husband, Mike Rusch, her boyfriend, Randell Nealy, and her nine-year-old daughter, Tracy Rusch. On August 20,1992, the Justice of the Peace issued a warrant to search the campsite and seize all marijuana plants and seeds, drug paraphernalia, records of drug transactions, and cash. That same day, as officers from the Sheriff’s Office conducted a search, they discovered approximately 50 marijuana plants growing a short distance from the campsite. The officers arrested Ronda and her two male companions and transported them to the Lincoln County detention facility. Ronda’s daughter, Tracy, was placed in the care of child protective services. The officers confiscated all of the items located at the campsite including several videotapes. Some of these items were marked as evidence and others were held for safekeeping.

The day after Ronda’s arrest and the seizure of items from the campsite, Officer Klint Gassett (Gassett) played the videotapes on the VCR in his office. The Chief of Detectives had instructed Gassett to view the tapes to determine if they had any evidentiary value. However, instead of depicting drug transactions, the tapes showed Ronda engaging in sexual acts with Nealy. The television on which Gassett viewed the tapes is mounted on a wall facing the door of the office he shares with several other officers. Several officers and others entered the room at various times during the viewing of the videotapes and saw all or part of the tapes.

That same afternoon, Gassett removed Ronda from her cell to interview her. Gassett accompanied Ronda to the squad room which is the only area in the Sheriff’s Office where smoking is permitted. He advised Ronda that if she needed to smoke she could request to speak to him and he would escort her to the squad room. Ronda later alleged that during this and other later interviews, Gassett made suggestive comments to her about her performance on the videotapes. At the time of the first interview, Ronda had not yet made an initial appearance. She appeared before the Justice of the Peace later that afternoon, at which time counsel was appointed to represent her. Bail was set at $50,000.

On August 24, 1992, Ronda waived her right to a preliminary hearing and requested that the District Court release her upon her own recognizance. Ronda was released from jail the following day. On August 26, 1992, the State formally charged Ronda by information with one count of criminal possession with intent to sell, a felony, in violation of § 45-9-103, MCA. She was arraigned on this charge on August 31, 1992, and pleaded not guilty.

On August 27,1992, Ronda appeared before the District Court and requested the Sheriff’s Office return her personal property. The court so ordered and the following day, Ronda supplied the Sheriff’s Office with a list of the personal property that she sought returned. The list included a notation for “tapes-musical & video.”

Ronda’s tapes were not returned as ordered, so on September 1, 1992, she requested that the District Court direct an order to the State to show cause why her personal property had not been returned to her. Ronda appeared in District Court the next day and again requested that her personal property be returned. The court ordered that Ronda’s personal property be delivered to her residence by 11:00 a.m. the following day. Not only were the videotapes not returned to Ronda on the date and time specified by the court, but the videotapes were instead shown that same day to several detectives from Seattle, Washington, who had arrived in Libby to interview Michael Rusch. The same day the tapes were to be returned, the Lincoln County Sheriff’s Office arrested Ronda on a warrant from Oregon and incarcerated her in the Lincoln County jail.

On September 10, 1992, the Lincoln County Attorney directed Officer Gassett to make copies of the videotapes. The following day, after receiving an order from the District Court requiring that the Sheriff’s Office release all of Ronda’s personal property to Ronda’s sister and to release the videotapes to Ronda’s attorney, two officers attempted to locate the tapes in the evidence locker, but they were unsuccessful. The videotapes were later located at Gassett’s home and delivered to Ronda’s attorney.

On September 14, 1992, Ronda moved the District Court to order the release of any copies of the videotapes. The court so ordered, however, the Sheriff’s Office responded that it had been unsuccessful in its attempts to make copies of the videotapes, thus no copies were in existence.

Ronda was extradited to Oregon to face charges there on September 16, 1992. On October 5, 1992, Ronda moved to dismiss the Montana action on the grounds of outrageous government conduct in the seizure, use and possession by the State of the sexually explicit videotapes and the sexual harassment of her by State employees. She later moved to continue the hearing on this motion because she was still incarcerated in Oregon.

On November 18,1992, the State moved to amend the information to include the alternative offense of conspiracy, a felony, in violation of §§ 45-9-101 and 45-4-102, MCA, and to add a charge of tampering with witnesses or informants, a felony, in violation of § 45-7-206, MCA. The State filed a new complaint in Justice Court charging Ronda with witness tampering and bond was set at $10,000. A November 23, 1992 hearing on the motion to amend the information was continued until Ronda could be personally present.

Ronda returned to Montana on April 26,1993, her Oregon charges having been settled, and the District Court released her on her own recognizance. On May 12, 1993, the court held a hearing on Ronda’s motion to dismiss for outrageous government conduct and granted the State’s motion to amend the information.

Ronda was arraigned on the charges in the amended information on June 10, 1993, and pleaded not guilty. On July 12, 1993, the District Court conducted an omnibus hearing and set trial in this matter for January 11, 1994. On July 19, 1993, Ronda moved to suppress her August 21, 1992 statement on the grounds that Gas-sett’s actions in eliciting the statement deprived her of a speedy initial appearance and her right to counsel. A few weeks later, Ronda also moved to suppress evidence seized in the search of the campsite on the grounds the search was oppressive and overly broad.

On January 3, 1994, Ronda moved to dismiss the information on the grounds that the State had violated her right to a speedy trial. Two days later, the State moved to continue the trial due to its failure to secure the presence of out-of-state witnesses. The District Court reset the trial for February 14, 1994.

On the day set for trial, the District Court granted Ronda’s motions to suppress her statement and certain items of evidence and denied her motion to dismiss on the grounds of outrageous government conduct. Following a 3-day trial and the dismissal of the charge of criminal possession with intent to sell, the jury found Ronda not guilty of the alternative charge of conspiracy and found her guilty of tampering with a witness. Ronda filed a motion for a judgment notwithstanding the verdict on the grounds that her right to a speedy trial had been denied. The motion was deemed to be a motion for a new trial and denied by the District Court. On March 29, 1994, the court sentenced Ronda to ten years in prison, all of which was suspended, and placed her on probation.

Ronda now appeals the denial of her motion to dismiss on the grounds of outrageous government conduct, the denial of her motion to dismiss for lack of sufficient evidence to prove the charge of witness tampering, and the denial of her motion to dismiss for lack of a speedy trial.

Issue 1.

Did the District Court err in failing to dismiss the prosecution on the grounds of outrageous government conduct?

Ronda claims that as a consequence of this prosecution, she was subjected by government agents to a violation of her right to counsel, her right to remain silent, her right to be free from unreasonable search, her right to a timely initial appearance and release from incarceration, and her right to be free from the civil wrongs of sexual harassment, invasion of privacy, and the conversion of her personal property. She contends that the totality of her treatment by the government was outrageous and the only appropriate remedy is dismissal of this action with prejudice.

However, Ronda’s constitutional rights concerning the searches and the pre-appearance interrogation were fully vindicated when the District Court ordered that Ronda’s August 21, 1992 statement and certain items of evidence be suppressed. The focus of Ronda’s claim of outrageous government conduct in this appeal rests upon the handling of the videotapes by the Sheriff’s Office.

The United States Supreme Court first enunciated the defense of outrageous government conduct in United States v. Russell (1973), 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. In Russell, an undercover narcotics agent investigating the defendant and his confederates supplied the defendant with one of the ingredients necessary to manufacture methamphetamine. Although this ingredient was a legal substance, it was difficult to obtain. Based on evidence obtained by the narcotics agent, the defendant was eventually convicted of three counts of unlawfully manufacturing and selling methamphetamine. On appeal, the United States Court of Appeals for the Ninth Circuit reversed the conviction concluding that as a matter of law “a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise.” United States v. Russell (9th Cir. 1972), 459 F.2d 671, 673. However, the United States Supreme Court reversed the Court of Appeals stating:

While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction ... the instant case is distinctly not of that breed.

Russell, 411 U.S. at 431-32, 93 S.Ct. at 1643, 36 L.Ed.2d at 373.

Since the Supreme Court’s determination in Russell, both state and federal decisions have limited the outrageous government conduct defense to extreme cases in which the government has essentially manufactured the crime or has generated new crimes merely for the sake of pressing criminal charges against the defendant. State v. DeAngelo (Or.App. 1992), 830 P.2d 630, 632-33 (citing State v. McArdle/Harrelson (Or.App. 1988), 754 P.2d 918); United States v. Stenberg (9th Cir. 1986), 803 F.2d 422; United States v. Bogart (9th Cir. 1986), 783 F.2d 1428 vacated on other grounds sub nom. United States v. Wingender (1986), 790 F.2d 802.

The doctrine is a “most narrow” defense. State v. Briner (1992), 253 Mont. 158, 164, 831 P.2d 1365, 1369. In State v. Haskins (1992), 255 Mont. 202, 841 P.2d 542, this Court upheld the District Court’s denial of a defendant’s motion to dismiss for outrageous government conduct because the defendant failed to show how the alleged police misconduct violated the defendant’s constitutional rights relating to the crimes charged. See also State v. Romero (1996) 279 Mont. 58, 926 P.2d 717, (holding that the defendant lacked standing to raise a claim of outrageous government conduct).

So too must Ronda’s claim fail in the case before us as the record does not show any connection between the challenged government conduct regarding the videotapes and the commission of the acts which constituted Ronda’s conviction for tampering with a witness. Ronda has failed to show that the Sheriff’s officers instigated any of the criminal activity which led to her charges or conviction, nor did she demonstrate that the government manufactured any of the crimes with which she was charged and convicted or that it generated new crimes merely for the sake of pressing criminal charges against her.

In denying Ronda’s motion to dismiss for outrageous government conduct, the District Court determined that it is not inappropriate for government agents to view home videos seized in the course of a drug raid to find evidence consistent with the crimes charged as well as the identities of persons connected with the crimes. While we agree with this determination of the District Court, we do not in any way condone the way the officers conducted the viewing or handling of the videos.

However, the appropriate remedy for Ronda’s allegations of government misconduct in this case is not dismissal of the action. Rather, as we pointed out in Haskins, the appropriate remedy is to bring a federal civil rights action pursuant to 42 U.S.C. § 1983.

If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provision of state or federal law.

Haskins, 841 P.2d at 546 (quoting Hampton v. United States (1976), 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113, 119). Since Ronda is presently pursuing those civil remedies, we decline further comment on the matter of the government’s conduct in this case.

We hold, simply, that the District Court did not err in denying Ronda’s motion to dismiss on the grounds of outrageous government conduct as Ronda failed to demonstrate that the conduct of the Sheriff’s officers in handling and viewing the videotapes led to her charges or conviction, nor did she establish that the government manufactured any of the crimes with which she was charged and convicted or that it generated new crimes merely for the sake of pressing criminal charges against her.

Issue 2.

Did the District Court err in allowing the State to prosecute Ronda for witness tampering?

On November 18, 1992, the State filed a Motion to Amend the Information by adding the alternative charge of conspiracy, a felony, in violation of §§ 45-9-101 and 45-4-102, MCA, and by joining as Count II the charge of tampering with witnesses or informants, a felony, in violation of § 45-7-206, MCA. The State attached a supporting affidavit filed in Justice Court for the new charge of tampering with witnesses or informants.

Ronda maintains that the crime of tampering with a witness is an attempt crime and that under § 45-4-103, MCA, she cannot be liable for an attempt crime if she avoided the commission of the offense attempted by abandoning her criminal effort. She contends that she did abandon her criminal effort when she advised Tracy in a letter dated October 10, 1992, to “tell the truth.”

Section 45-7-206, MCA, provides, in part:

Tampering with witnesses and informants. (1) A person commits the offense of tampering with witnesses and informants if, believing that an official proceeding or investigation is pending or about to be instituted, he purposely or knowingly attempts to induce or otherwise cause a witness or informant to:
(a) testify or inform falsely;
(b) withhold any testimony, information, document, or thing;
(c) elude legal process summoning him to testify or supply evidence; or
(d) absent himself from any proceeding or investigation to which he has been summoned.

Ronda was not charged with attempted tampering with a witness, and the statutory defense to attempt would, by its own terms, be inapplicable to the charge of a completed offense. All that is required to complete the offense is the purposeful or knowing attempt to influence the witness. Section 45-7-206, MCA. Ronda committed and completed the offense when she made her initial efforts to get Tracy to withhold information and testify falsely long before she wrote the letter to Tracy. The defense of abandonment of attempt is not available to a defendant where substantial harm has been inflicted or acts of danger completed. State v. Mahoney (1994), 264 Mont. 89, 99-100, 870 P.2d 65, 72. Where, as here, the essential elements of the criminal enterprise have been already accomplished, the defense of abandonment is not applicable; the criminal act is fait accompli, and cannot be undone.

Moreover, Ronda’s letter to Tracy says, in actuality, “You will have to tell the truth — of how I was never over in those plants cause they think you and I were over there — or at least you.” Contrary to Ronda’s assertion that she abandoned her efforts to influence Tracy when she urged Tracy to tell the truth, Ronda tells Tracy in the letter exactly what “truth” Ronda wants Tracy to tell.

Ronda also contends that the affidavit in support of the amended information fails to set forth sufficient facts to merit a finding of probable cause. However, the affidavit states, in part, as follows:

3. ... During the time that Defendant was out of jail, Defendant repeatedly told Trade [sic] not to talk to anyone about what had occurred while they were camping. Defendant told Trade that it “is not a lie if you don’t say anything.”
5. Beverly Miller (“Miller”), a Lincoln County Social Worker, recalls being at the Sheriff’s office while Trade was visiting her mother on or about September 11, 1992. Miller was not immediately near Trade during most of the visit. Miller came into the view room at one point during the visit. She saw police reports being shown to Trade, with portions of the report underlined. Miller terminated the interview. After leaving the interview, Miller talked to Trade. Trade was upset and was saying she did not want to testify. Up to that point, no one had mentioned [to] Trade that she would have to testify.
6. ... Across the top of the [police report that Defendant showed Trade] the words “Do not talk to anybody, see what you did” were written. ...
7. Trade received a letter from Defendant in late October, 1992. The letter discussed the possibility that Trade might be called as a witness in the trial of Defendant. The letters [sic] says in part “You will have to tell the truth — of how I was never over in those plants cause they think you and I were over there — or at least you — Daddy already told them that I didn’t know anything about it. But they are saying you took them to the plants. Did you take them? Or did they take you? You have to be careful because they might try to get you on the stand and confuse you ... I can’t believe they would try and get you to testify against your Mom! It’s really sick! ... But since the police say you are a witness against me and for them — we had better cover all the stuff that went on....
8. ... Defendant told Trade during the time that the marijuana plants were growing that Trade was to be “hush-hush” about the plants.

This Court has stated that an affidavit filed in support of a motion for leave to file an information need only recite facts sufficient to indicate a probability that the defendant committed an offense; it need not demonstrate a prima facie case. State v. Little (1993), 260 Mont. 460, 469, 861 P.2d 154, 160 (citing State v. Ramstead (1990), 243 Mont. 162, 165-66, 793 P.2d 802, 804). Clearly, the affidavit in this case filed in support of the motion for leave to file an information does recite facts sufficient to indicate a probability that Ronda committed the offense of tampering with a witness.

Accordingly, we hold that the District Court did not err in allowing the State to prosecute Ronda for witness tampering as the affidavit established probable cause to believe that the crime had been committed.

Issue 3.

Did the District Court err in failing to dismiss the prosecution on the grounds of denial of a speedy trial?

Ronda was arrested on August 20,1992, and arraigned on August 31, 1992. She filed a motion to dismiss for lack of a speedy trial on January 3, 1994, but the District Court denied her motion and trial commenced on February 14, 1994.

The Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution guarantee a criminal defendant the right to a speedy trial. Whether that right has been violated is determined by a four-part test set out in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116-17, and adopted by this Court in State ex rel. Briceno v. Dist. Ct. of 13th Jud. Dist. (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64.

This test requires a balancing of the following four factors: (1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right by the defendant; and (4) prejudice to the defendant. State v. Collier (1996), [277 Mont. 46], 919 P.2d 376, 381-82 (citing State v. Matthews (1995), 271 Mont. 24, 27-28, 894 P.2d 285, 287). All four factors are weighed by considering the facts and circumstances of each case; no one factor is determinative. Collier, 919 P.2d at 382.

The first factor, length of the delay, triggers farther inquiry into the remaining three factors. It is not necessary to consider the remaining factors unless the length of the delay is presumptively prejudicial. Collier, 919 P.2d at 382 (citing State v. Eklund (1994), 264 Mont. 420, 424, 872 P.2d 323, 326). When considering the length of the delay, no regard is given to which party caused the delay. Collier, 919 P.2d at 382.

Ronda was arrested on August 20,1992, and trial was held on February 14, 1994, a delay of 543 days. We have previously stated that a delay of over 200 days will trigger further analysis. Collier, 919 P.2d at 382. Thus the 543-day delay in the instant case is presumptively prejudicial warranting an analysis of the remaining three factors. Once the delay has been determined to be presumptively prejudicial, the State has the burden to provide a reasonable explanation for the delay and to show that the defendant was not prejudiced by the delay. Collier, 919 P.2d at 382.

The second factor, reason for the delay, requires us to allocate portions of the overall delay to the party responsible for causing that particular delay. Ronda argues that most of the delay in this case is attributable to the State, including a majority of the delay while she was incarcerated in Oregon on other charges.

Ronda was arraigned on August 31,1992, and an omnibus hearing was scheduled for September 14,1992. Thus the 25-day delay from Ronda’s arrest on August 20, 1992, until her omnibus hearing on September 14, 1992, is attributable to the State. However, this delay may be characterized as institutional delay rather than intentional delay. Institutional delay, though charged against the State, weighs less heavily than intentional delay. State v. Gould (1995), 273 Mont. 207, 216, 902 P.2d 532, 538.

At the September 14, 1992 omnibus hearing, Ronda requested a continuance to October 5, 1992, which the District Court granted. Ronda was extradited to Oregon on September 16, 1992, to face charges in that state. On October 5,1992, Ronda’s attorney filed on Ronda’s behalf, a motion to dismiss for outrageous government conduct. A hearing on this motion was set for October 26, 1992. However, three days before the scheduled hearing, Ronda, through her attorney, moved to continue the hearing until Ronda could be personally present to testify. Having made the motion for a continuance, defense counsel at no time objected to the fact that Ronda was not within the jurisdiction of the court. Even though it is the State’s obligation to move a case forward, where the defendant requests and obtains a continuance, the delay resulting from that continuance should not be charged to the State. “[D]elay[s] in bringing a defendant to trial caused or consented to by defendant are considered to constitute a waiver of the right to be tried within the time fixed by statute or required by the constitution.” State v. Robbins (1985), 218 Mont. 107, 116, 708 P.2d 227, 233 (emphasis added).

Ronda returned to Montana on April 26, 1993. At a bond hearing on that date, the District Court released Ronda on her own recognizance and set May 12, 1993, as the time for hearing Ronda’s motion to dismiss for outrageous government conduct. Commencing May 12,1993, the District Court held a three-day hearing on Ronda’s motion to dismiss. This motion was denied by the court. On June 7, 1993, upon a motion by Ronda, the court reset the hearing on her plea to the amended charges to June 10, 1993. The District Court then granted Ronda’s motion to continue the omnibus hearing scheduled for June 10, 1993, to July 12, 1993. Thus 278 days of the 301-day delay from September 14, 1992, until July 12, 1993, were caused by Ronda’s various motions and are attributable to Ronda. Only 23 days of that time are attributable to the State.

At the July 12, 1993 omnibus hearing, the District Court set January 11,1994, as the date for trial in this matter. Thus the 183-day delay from the omnibus hearing to the January trial date is attributed to the State as institutional delay. However, it bears noting that Ronda made no objection at this hearing to trial being set for almost six months later. Moreover, Ronda filed several motions after the omnibus hearing, all of which required response by the State and a hearing. If trial had not already been set for six months hence, Ronda’s motions would have delayed the start of her trial in any event.

On January 5, 1994, the State moved to continue the trial scheduled for January 11, 1994, because it was unable to locate certain out of state witnesses. While nothing in the record supports a conclusion that the State’s motion was made in bad faith or simply to delay the trial of this case, the continuance was at the State’s request and for its benefit and to that extent, must be characterized as “intentional.” Accordingly, the time lost being not properly charged merely as institutional delay, the 34-day delay from January 11,1994, to February 14, 1994, when trial commenced, is attributable at full weight to the State.

Of the 543 days between Ronda’s arrest on August 20, 1992, and the commencement of trial on February 14, 1994, 278 days are attributable to Ronda and 265 days are attributable to the State, of which only 34 days were “intentional” delay. As we stated previously in this opinion, institutional delay weighs less heavily against the State than intentional delay. Gould, 902 P.2d at 538.

The third factor, assertion of the right by defendant, was satisfied when Ronda moved to dismiss on speedy trial grounds prior to trial. However, by filing her motion to dismiss only one week before trial was to commence, Ronda exhibited a lack of actual interest which should be considered in balancing the Barker factors. State v. Thompson (1993), 263 Mont. 17, 32-33, 865 P.2d 1125, 1135 (citing State v. Mooney (1991), 248 Mont. 115, 119-20, 809 P.2d 591, 594). As we pointed out in Thompson, a defendant’s failure to object to a trial date at the omnibus hearing must be considered in the defendant’s later assertion of a claim of denial of a speedy trial. Thompson, 865 P.2d at 1135. In the present case, Ronda did not object at the July 12, 1993 omnibus hearing when trial was set for January 11, 1994, almost six months later.

Prejudice to the defendant, the fourth factor of the Barker test, is analyzed by assessing three interests which the right to a speedy trial was designed to protect: (1) prevention of oppressive pretrial incarceration; (2) minimization of the defendant’s anxiety and concern; and (3) avoidance of impairment of the defense. The last of these being the most critical factor. Collier, 919 P.2d at 383.

First, except for a few days after her arrest on the Montana charges and the period of time she was incarcerated in Oregon, Ronda was released on her own recognizance while she awaited trial on this matter. Thus, she was not subjected to excessive or oppressive pretrial incarceration as a result of the Montana charges.

Second, this Court has previously stated that since it is nearly impossible for the State to prove that anxiety and concern do not exist, the State’s burden to show a lack of anxiety becomes considerably lighter in the absence of more than marginal evidence of anxiety. State v. Atkins (1996), [277 Mont. 103], 920 P.2d 481, 484; State v. Weeks (1995), 270 Mont. 63, 74, 891 P.2d 477, 483. Here, Rondamakes no claim that she experienced any anxiety or concern which was aggravated as a result of the delay. This Court should not presume prejudice in the absence of anxiety and concern which exceeds that inherent in being charged with a crime. State v. Moore (1994), 268 Mont. 20, 69, 885 P.2d 457, 487-88.

Third, Ronda claims prejudice because of Tracy’s “memory loss.” She contends that Tracy’s inability to recall statements that she gave to Sheriff’s officers and others a year earlier, placed the State in the “comfortable position of proving its case solely upon hearsay,” and, consequently, the lack of a speedy trial effectively deprived Ronda of her right to confront and cross-examine Tracy. On the contrary, a review of Tracy’s testimony at trial reveals that Tracy was able to testify affirmatively that she did not make the critical statements and, accordingly, the officers could properly testify about Tracy’s prior inconsistent statements under Rule 801(d)(1), M.R.Evid. Moreover, this Court has noted that a defendant suffers no prejudice, for purposes of a speedy trial analysis, if a child witness’ loss of memory is beneficial to the defense. State v. Scott (1993), 257 Mont. 454, 459-60, 850 P.2d 286, 289; State v. Eklund (1994), 264 Mont. 420, 426, 872 P.2d 323, 327.

The dissent insists that the only evidence linking Ronda to the charge of witness tampering is Tracy’s prior statement to law enforcement officials. On the contrary, as we stated in our discussion under Issue 2, in addition to Tracy’s prior statement to law enforcement officers, the evidence against Ronda includes Ronda’s own letter to Tracy and the testimony of a social worker who observed an attempt by Ronda to influence Tracy.

Therefore, weighing the facts and circumstances in this case with the factors set forth in Barker establishes that Ronda did not suffer any prejudice in her defense from the delays, whether those delays were attributable to the State or to Ronda. Accordingly, we hold that Ronda’s right to a speedy trial was not violated and the District Court did not err in denying her motion to dismiss on speedy trial grounds.

Issue 4.

Did the District Court have subject matter jurisdiction over the offense of witness tampering?

Ronda contends that the crime of tampering with a witness does not apply to the constitutionally protected relationship of a parent and child and thus the District Court did not have subject matter jurisdiction over this issue. Ronda raised this issue for the first time in her reply brief to this Court. Under § 46-13-101, MCA, most defenses or objections to a criminal charge that are capable of determination without trial must be raised at or before the omnibus hearing. Failure to raise such defenses or objections prior to trial constitutes a waiver of the defense or objection. However, lack of jurisdiction is a non-waivable defect and must be noticed by the court at any time during the pendency of the proceeding. Section 46-13-101(3), MCA.

The State contends that although Ronda invokes the term “subject matter jurisdiction,” her challenge does not go to the fundamental authority of a district court to adjudicate a witness tampering case but rather to the constitutionality of applying the witness tampering statute to her case. Citing City of Columbia Falls v. Bennett (1991), 247 Mont. 298, 806 P.2d 25, the State argues that where the constitutionality of a statute is challenged for the first time in an appellant’s reply brief, it is improper for this Court to address the issue in its opinion.

We find no merit in Ronda’s argument. District Courts are courts of general jurisdiction and have jurisdiction over felonies. Section 3-5-302(1)(a), MCA; State v. Barnes (1988), 232 Mont. 405, 409, 758 P.2d 264, 267. We concur with the State’s contention that Ronda is attempting to argue the constitutionality of applying the witness tampering statute to her case. Since Ronda did not raise this issue until she filed her reply brief, she waived her right to raise this issue on appeal and we decline to address this issue.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and ERDMANN concur.

JUSTICE TRIEWEILER

specially concurring in part and dissenting in part.

I concur with the majority’s disposition of Issues 1, 2, and 4.

I dissent from the majority’s conclusion that the defendant was not denied her constitutional right to a speedy trial.

The defendant was arrested on August 20,1992, and was not tried until February 14, 1994 — 543 days later. The majority concedes, based on our prior decisions, that a delay of nearly one and one-half years from the date of arrest to the date of trial is presumptively prejudicial. The majority also concedes that the defendant timely asserted her right to a speedy trial. However, the majority then avoids enforcement of this defendant’s constitutional right to a speedy trial by concluding that 278 days of the delay is the fault of the defendant for moving to continue a hearing while she was incarcerated out of state, and by further concluding that the defendant has failed to show prejudice from a nearly one and one-half year delay (apparently forgetting the earlier presumption of prejudice).

I disagree with the majority’s conclusion for two reasons: (1) The 278 days attributed by the majority to Ronda were not, in fact, a result of her motions. They were due to her incarceration out of state. When the majority, in effect, held that the defendant’s time in Oregon is attributed to her for purposes of speedy trial analysis, it completely ignored our holding in State v. Robbins (1985), 218 Mont. 107, 116-17, 708 P.2d 227, 233-34; and (2) when the majority concluded that the defendant had failed to establish prejudice from the one and one-half year delay of her trial, it completely ignored the fact that prejudice was presumed and the State failed to in any way rebut the presumption.

The issue in Robbins was stated as follows: “The real issue, however, is whether Robbins or the State should be charged with the time Robbins was in Idaho resisting extradition to Montana.” Robbins, 218 Mont. at 115, 708 P.2d at 233 (emphasis added).

This Court held that that time during which a defendant, incarcerated out of state resists extradition to Montana is not attributable to the State for purposes of calculating the length of delay. However, this Court went on to state that:

Diligent prosecution includes a timely demand for extradition of a defendant, and extradition proceedings are a sufficient reason for delay if the State has been diligent. State v. Smith, [206 Mont. 99, 670 P.2d 96 (1983)] supra. The right of a defendant to resist formal extradition, however, cannot be charged to the State when computing the length of delay for speedy trial, if the State is acting in good faith. Balla [v. State, 544 P.2d 1148 (1976)] supra. The right of a defendant to a speedy trial commences when he becomes an accused. [U.S. v.] Marion, [404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)] Smith, [State v.] Larson [191 Mont. 257, 623 P.2d 954 (1981)], and [State v.] Ackley [201 Mont. 252, 653 P.2d 851 (1982)], supra. The court then must acquire in personam jurisdiction over the accused to engage in proceedings leading to a trial. If the accused is out of state, the State must act diligently and in good faith to acquire jurisdiction. At the same time, the accused has a right to resist extradition. When he does so, however, he loses those days he resists from computation of length of delay. When an accused does not resist, those days should not be weighed against him when the State is acting diligently and in good faith. For this reason, inclusion of those days in computing the length of delay, as was done in Ackley, will no longer be the rule. Only those days an accused actively resists extradition will be included. Days in which the court does not or cannot, through the State’s efforts, acquire jurisdiction over an accused will be counted against the accused and will not be included in computing the length of delay.

Robbins, 218 Mont. at 116-17, 708 P.2d at 233-34 (emphasis added).

In this case, there is no evidence that the defendant ever resisted extradition. Neither is there evidence that the State acted diligently to seek extradition. Therefore, based on Robbins, there is no justification for attributing to her the 222 days she was in Oregon for purposes of deciding whether she was denied her constitutional right to a speedy trial.

The majority circumvents the holding in Robbins by concluding that, because the defendant moved to continue a hearing until she could return from out of state and be personally present, the time out of state is now attributable to her. That holding ignores the reason for her motion, and effectively reverses our prior holding in Robbins, without ever saying so. If her time of incarceration out of state is assigned to the State, and if her motion was necessary because she was incarcerated out of state, how can the delay be attributed to her? The majority’s solution is little more than a shell game. When the 222 days erroneously attributed to the defendant is added to the 265 days which the majority concedes is attributable to the State, the actual period during which defendant was denied her right to a speedy trial is 487 days.

Since the majority concedes that we have, in the past, found a delay of 200 days to be presumptively prejudicial, a delay of over twice that length certainly creates a presumption of prejudice. We have recently held that where the presumption of prejudice attaches and is not rebutted by the State, and where the other factors from the test set forth in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101, are satisfied — as the majority concedes they are in this case — a conclusion that the right to a speedy trial was denied is necessary. State v. Tweedy (1996), 922 P.2d 1134, 1140, 53 St. Rep. 656, 661. In that case we held that:

When the delay is presumptively prejudicial, the burden shifts to the State to rebut the presumption by showing a reasonable explanation for the delay and demonstrating that the defendant was not prejudiced by the delay.

Tweedy, 922 P.2d at 1138, 53 St. Rep. at 659 (citing State v. Matthews (1995), 271 Mont. 24, 28, 894 P.2d 285, 287).

Here, there was no reasonable explanation for a delay of 487 days. Merely asserting that the delay was institutional, rather than by design of the prosecution, is not an adequate explanation. As the majority acknowledges, institutional delay is attributed to the State. It is the State’s duty to bring the defendant to trial. The State cannot sit back for nearly one and one-half years and be satisfied that the district court has not set a trial date.

Furthermore, the State did nothing to demonstrate that the defendant was not prejudiced by the delay. In fact, the primary evidence which linked the defendant to witness tampering was a very old statement made by a child to law enforcement officials. That child repudiated the statement at the time of trial. Whether her repudiation was due to the passage of time and failure of her memory, or a conscious decision on her part not to deny her earlier statement is speculative. The fact is, she was no longer available for cross-examination, and the defendant was unable to cross-examine the prior statements which were used as substantive evidence against her. Whether these facts would be sufficient by themselves to establish prejudice is irrelevant. The critical point is that the State did nothing to satisfy its burden that it demonstrate an absence of prejudice. In Tweedy we found that failure conclusive. We held:

Moreover, given the presumptively prejudicial delay, the burden shifted to the State in this case to rebut the presumed prejudice. [State v.] Matthews [271 Mont. 24], 894 P.2d [285] at 287 [(1995)]. The State did not respond to Tweedy’s motion via either a brief or argument at the hearing. It did not present any evidence, as required by Matthews, to prove that Tweedy was not prejudiced. See Matthews, 894 P.2d at 289.
... More importantly, the appropriate place to respond to Tweedy’s claim of prejudice was in the District Court, not in this Court. The State could, and should, have done so by responding to Tweedy’s motion and requesting an evidentiary hearing to rebut his claims. It did not.
Once the burden has shifted to the State to rebut presumed prejudice, however, it is the State’s duty to respond to a speedy trial motion and to properly raise, for resolution by the district court, the issues related thereto. Under the well-established principle that we will not consider an issue raised for the first time on appeal, the State acts at its own peril if it fails to do so. See [State v.] Weeks [270 Mont. 63], 891 P.2d [477] at 491 [(1995)].
In this case, the State failed to raise either its fact-based responses or its legal authority regarding the sufficiency of Tweedy’s assertions in the District Court. Thus, on this record, we conclude that the State failed to meet its burden of rebutting the presumed prejudice to the defense as a matter of law. Consequently, we weigh the prejudice factor in Tweedy’s favor.

Tweedy, 922 P.2d at 1139-40, 53 St. Rep. at 660-61.

For the same reasons that the charges against the defendant in Tweedy were dismissed, the charges against this defendant should have been dismissed. She was unquestionably denied her right to a speedy trial. Prejudice from that denial was presumed. The State did nothing to rebut the presumption of prejudice.

The greater problem with the majority opinion is that it adds to the mish-mash of result-oriented case law from this Court with regard to the speedy trial issue. Speedy trial case law in Montana will soon rival our decisions that apply Rule 404(b), M.R.Evid., for inconsistency.

On the one hand, we have consistently held that a delay of more than 200 days gives rise to a presumption of prejudice. See e.g. State v. Wombolt (1988), 231 Mont. 400, 402-03, 753 P.2d 330, 331 (214 days); State v. Palmer (1986), 223 Mont. 25, 27-28, 723 P.2d 956, 958 (256 days); State v. Chavez (1984), 213 Mont. 434, 441-42, 691 P.2d 1365, 1370 (214 days); State v. Ackley (1982), 201 Mont. 252, 256, 653 P.2d 851, 853 (257 days). On the other hand, without regard to that presumption, we hold defendants to the burden of proving prejudice, as we have done in this case.

We attribute institutional delay to the State, Wombolt, 231 Mont. at 403, 753 P.2d at 331-32, and Ackley, 201 Mont. at 256, 653 P.2d at 853-54, but then conclude that institutional delay does not weigh as heavily against the State as intentional delay. Wombolt, 231 Mont. at 403, 753 P.2d at 331-32; Chavez, 213 Mont. at 442, 691 P.2d at 1370. This Court has lost sight of the reasons for which speedy trials are necessary, and has concluded that the passage of time for one reason is less detrimental to a trial on the merits than the passage of time for another reason.

On the one hand, we hold that it is sufficient to assert the right to a speedy trial prior to the date of trial, Wombolt, 231 Mont. at 403, 753 P.2d at 332, State v. Waters (1987), 228 Mont. 490, 493, 743 P.2d 617, 620, and State v. Steward (1975), 168 Mont. 385, 390, 543 P.2d 178, 182, but then, in this case, we conclude that the assertion of the right one week before trial does not satisfy the obligation quite as well as if it had been asserted earlier.

Finally, we previously held that time while incarcerated out of state would not be attributed to the defendant for purposes of speedy trial analysis. Robbins, 218 Mont. at 116, 708 P.2d at 233-34. Now, in this case, without distinguishing our prior holding in Robbins, we simply conclude that if some procedural matter is continued due to that out-of-state incarceration, the time is attributable to the defendant.

I doubt at this point that anyone, whether it be a defense lawyer, prosecutor, or district judge, can make sufficient sense out of this Court’s speedy trial analyses to apply them in any practical or predictable way. This decision further confuses the situation. For these reasons, I dissent from Issue 3 of the majority opinion.

JUSTICES HUNT and LEAPHART join in the foregoing concurring and dissenting opinion.


author: JUSTICE TRIEWEILER JUSTICE LEAPHART, JUSTICE ERDMANN

text:
    DONALD R. SAGE, Petitioner and Respondent, v. MICKEY GAMBLE, Director of Administration, CRAIG THOMAS, Executive Secretary, Board of Pardons, MONTANA BOARD OF PARDONS AND PAROLE, MONTANA STATE PRISON, Respondents and Appellants.
    No. 95-533.
    Submitted on Briefs September 19, 1996.
    Decided November 25, 1996.
    53 St.Rep. 1234.
    279 Mont. 459.
    929 P.2d 822.

      For Appellant: David L. Ohler and Lois Adams, Attorneys at Law, Department of Corrections, Helena.
    For Respondent: Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

On September 9, 1994, Donald R. Sage filed a petition for habeas corpus in the District Court for the Third Judicial District in Powell County in which he alleged that the Montana Board of Pardons (Board) had improperly denied him parole. Following a hearing on Sage’s petition, the District Court issued an opinion and order in which it concluded that, although the Board had not abused its discretion when it denied Sage parole, it had violated Sage’s right to due process when it denied him the opportunity to personally appear at his parole hearing. The court therefore ordered the Board to conduct another hearing at which Sage could be personally present. The Board appeals the District Court’s conclusion that it violated Sage’s right to due process. We affirm the order of the District Court.

The issues presented on appeal are:

1. Did the District Court have subject matter jurisdiction, pursuant to a writ of habeas corpus, to determine whether Sage’s right to due process was violated when he was denied the opportunity to personally appear before the Montana Board of Pardons?

2. Did the District Court err when it concluded that Sage’s right to due process had been violated when he was denied the opportunity to personally appear at his parole hearing?

FACTS

In March 1982, Donald Sage was convicted by a jury of the crime of mitigated deliberate homicide. Sage was sentenced to forty years in the Montana State Prison, and an additional five years to be served consecutively for the use of a deadly weapon in the commission of the offense. He was designated a dangerous offender for purposes of parole.

Sage was living at the Great Falls Pre-Release Center when he became eligible for parole in 1993. The Board of Pardons scheduled Sage’s initial parole hearing for November 29, 1993. Prior to the hearing, the Board appointed its executive secretary to interview Sage. At the interview, Sage had the opportunity to present oral testimony and have other witnesses testify on his behalf. He was also asked whether the information contained in his parole file, including his offense and his sentence, were correct.

Following the interview, the executive secretary prepared a recommendation for the Board regarding Sage’s application for parole. Sage was advised of this recommendation.

The Board of Pardons considered Sage’s parole application at its monthly parole hearing in Deer Lodge on November 29, 1993. Sage was not present at this hearing. The record does not disclose whether he requested and was denied the opportunity to be present. Instead, the information about Sage’s parole application was presented to the Board by the executive secretary. After considering all of the information before it, the Board denied Sage’s parole application.

On September 9, 1994, Sage filed a petition for writ of habeas corpus with the Third Judicial District Court in which he alleged that the Board of Pardons had improperly denied him parole. In his petition, Sage maintained that the Board had denied his right to due process guaranteed by the Fourteenth Amendment to the United States Constitution when it denied him the opportunity to personally appear before the Board. Following a hearing, the District Court issued an opinion and order in which it concluded that although the Board had not abused its discretion when it denied parole, the Board had violated Sage’s right to due process by failing to allow him to personally appear before the Board. The court therefore ordered that another hearing be held at which Sage could appear before the Board.

ISSUE 1

Did the District Court have subject matter jurisdiction, pursuant to a writ of habeas corpus, to determine whether Sage’s right to due process was violated when he was denied the opportunity to personally appear before the Montana Board of Pardons?

On appeal, the Board of Pardons asserts that Sage’s alleged due process violations fall outside the parameters of habeas corpus relief and that therefore the District Court lacked subject matter jurisdiction to consider the issue. Section 46-22-101, MCA, provides in relevant part:

[E]very person imprisoned or otherwise restrained of liberty within this state may prosecute a writ of habeas corpus to inquire into the cause of imprisonment or restraint and, if illegal, to be delivered from the imprisonment or restraint.

Habeas corpus is available to challenge the legal sufficiency of the cause for incarceration. This Court has held, however, that habeas corpus relief is not available to determine whether other constitutional rights have been violated. Gates v. Missoula County Comm’rs (1988), 235 Mont. 261, 766 P.2d 884.

Sage maintains that the Board waived this issue of subject matter jurisdiction by failing to raise it during the District Court proceedings and therefore should not now be permitted to raise it on appeal. It is a well-settled principle of law, however, that lack of subject matter jurisdiction cannot be waived, and may be raised at any stage of a judicial proceeding by a party or sua sponte by the court. O’Donnell v. Ryans, Inc. (1987), 227 Mont. 48, 49, 736 P.2d 965, 966; State v. Davis (1984), 210 Mont. 28, 30, 681 P.2d 42, 43.

Sage further asserts that the District Court did have subject matter jurisdiction to decide by writ of habeas corpus whether his right to due process had been violated. Sage maintains that he had a right to due process, based on a liberty interest in parole pursuant to § 46-23-201, MCA (1981), which was violated by the Board when it did not allow him to personally appear before the Board at the parole hearing and ultimately denied his parole application.

We conclude that the alleged deprivation of Sage’s right to due process is directly related to whether the cause of his continued incarceration is or is not illegal, and therefore it falls within the parameters of § 46-22-101, MCA. We therefore hold that the District Court did have subject matter jurisdiction to determine whether Sage’s right to due process was violated.

ISSUE 2

Did the District Court err when it concluded that Sage’s right to due process had been violated when he was denied the opportunity to personally appear at his parole hearing?

In this case, the District Court concluded that the Board of Pardons had violated Sage’s right to due process by denying him the opportunity to personally appear before the Board during his parole hearing. We review a district court’s conclusion of law to determine whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

In 1982, when Sage was convicted and sentenced, § 46-23-201, MCA (1981), provided:

(1) Subject to the following restrictions, the board shall release on parole by appropriate order any person confined in the Montana state prison ... when in its opinion there is reasonable probability that the prisoner can be released without detriment to himself or to the community ....
(2) Aparóle shall be ordered only for the best interests of society and not as an award of clemency or a reduction of sentence or pardon. A prisoner shall be placed on parole only when the board believes that he is able and willing to fulfill the obligations of a law-abiding citizen.

In Board of Pardons v. Allen (1987), 482 U.S. 369, 381, 107 S.Ct. 2415, 96 L.Ed.2d 303, the United States Supreme Court held that the mandatory language of § 46-23-201, MCA, creates a liberty interest in parole release that is protected by the Due Process Clause of the Fourteenth Amendment. Specifically, the Court determined that “the Montana statute ... uses mandatory language (‘shall’) to ‘creat[e] a presumption that parole release will be granted’when the designated findings are made.” Allen, 482 U.S. at 377-78, 107 S.Ct. at 2420 (footnote omitted) (interpreting § 46-23-201, MCA (1985), which is identical to the 1981 version of the statute under consideration here). In this case, although the Board does not contest that § 46-23-201, MCA (1981), creates a liberty interest in parole, the Board challenges the District Court’s conclusion that Sage was not accorded the minimal due process required before denying that liberty interest. In particular, the Board maintains that the District Court erred when it concluded that due process requires that a parole applicant be afforded a personal appearance in front of the Parole Board. The Board contends that its practice of authorizing a hearings officer to conduct a parole eligibility interview satisfies minimal due process requirements.

It is well established that “due process ‘is flexible and calls for such procedural protections as the particular situation demands.’” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex (1979), 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (quoting Morrissey v. Brewer (1972), 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484). Thus, “the process that is due in any given case varies according to the factual circumstances of the case and the nature of the interests involved.” Benson v. Scott (7th Cir. 1984), 734 F.2d 1181, 1185. The process provided, however, should “minimize the risk of erroneous decisions. ... [T]he quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error.” Greenholtz, 442 U.S. at 13, 99 S.Ct. at 2106.

Although a prisoner has a liberty interest in parole release, it is well established that a parole eligibility hearing is not subject to all the due process protections of an adversary proceeding. See, e.g., Fardella v. Garrison (4th Cir. 1982), 698 F.2d 208, 212. However, although the United States Supreme Court has recognized that due process in the context of parole does not require “repeated, adversary hearings,” the Court has required, at minimum, that the prisoner be provided an opportunity to be heard and a written statement explaining why he was denied parole. Greenholtz, 442 U.S. at 14, 16, 99 S.Ct. at 2107, 2108. In Greenholtz, the Supreme Court examined the parole procedure in Nebraska and noted with approval that an inmate in Nebraska’s prison system is permitted to appear before the Board at a yearly hearing and present letters and statements on his own behalf. Greenholtz, 442 U.S. at 15, 99 S.Ct. at 2107-08.

While it is true that the Court in Greenholtz did not directly address the issue of whether due process requires an opportunity to personally appear before the Board, its approval of the procedure provided in Nebraska was couched almost exclusively in terms of the parole applicant’s opportunity to personally appear. For example, the Court stated that:

At the Board’s initial interview hearing, the inmate is permitted to appear before the Board and present letters and statements on his own behalf. He is thereby provided with an effective opportunity first, to insure that the records before the Board are in fact the records relating to his case; and second, to present any special considerations demonstrating why he is an appropriate candidate for parole. Since the decision is one that must be made largely on the basis of the inmate’s files, this procedure adequately safeguards against serious risks of error and thus satisfies due process. Cf. Richardson v. Perales, 402 U.S. 389, 408, [91 S.Ct. 1420, 1430-31, 28 L.Ed.2d 842] (1971).
... The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more.

Greenholtz, 442 U.S. at 15-16, 99 S.Ct. at 2108 (footnote omitted).

It is reasonable, therefore, to infer from the Greenholtz opinion that the opportunity of a parole applicant to appear before those entrusted with the subjective responsibility of passing judgment on his or her application is an important element of the due process to which the applicant is entitled.

Furthermore, when Sage was convicted and sentenced in 1982, § 46-23-202, MCA (1981), provided:

(1) Within 2 months after his admission and at such intervals thereafter as it determines, the board shall consider all pertinent information regarding each prisoner, including the circumstances of his offense, his previous social history and criminal record, his conduct, employment, and attitude in prison, and the reports of any physical and mental examinations which have been made.
(2) Before ordering the parole of any prisoner the board shall interview him.

(Emphasis added.) To implement this statutory requirement, the Board adopted Rule 20.25.401, ARM, which provided:

(1) An inmate will systematically come before the parole board for an interview at the time fixed by law, usually up to two months prior to the actual eligibility date ....
(2) All interviews and hearings before the board shall be conducted informally under the direction of the chairman. The board may limit the length of the interviews or hearings in order to accommodate its schedule.

(Emphasis added.)

Based on the plain language of both § 46-23-202, MCA (1981), and Rule 20.25.401, ARM, an inmate who is eligible for parole is clearly provided the right to personally appear at an interview before the Parole Board prior to the Board’s decision to grant or deny the application for parole. The Board contends that Montana’s statutory scheme, however, permits it to delegate its personal interview responsibility to an appointed hearings officer. The Board cites § 46-23-104(4), MCA (1981), which provides that:

The board may designate one of its members, one of its staff members, or any other adult correctional releasing authority to conduct interviews relative to:

(a) parole eligibility;
(b) plans for release on parole; or
(c) revocation hearings.

The Board’s interpretation of § 46-23-104(4) would create a contradiction between that statute and the language of § 46-23-202, MCA, and its own administrative rule, which requires an informal interview “before the parole board” which must be “conducted ... under the direction of the chairman” of that Board. Rule 20.25.401, ARM. However, nothing in § 46-23-104(4), MCA, suggests that the staff interview provided for is in lieu of other interviews required by § 46-23-202, MCA, and the Board’s administrative rules. Furthermore, we conclude that an interpretation which relieves the Board of its duty to personally interview an inmate would unconstitutionally deny the inmate his right to due process guaranteed by the Fourteenth Amendment to the U.S. Constitution, and independently by Article II, Section 17, of the Montana Constitution, by denying him an opportunity to be heard by those who will decide the merits of his application. See, e.g., Greenholtz, 442 U.S. at 16, 99 S.Ct. at 2108. It is our duty to construe statutes, where possible, in a manner that withstands constitutional scrutiny. State v. Martel (1995), 273 Mont. 143, 148, 902 P.2d 14, 17.

Therefore, we interpret § 46-23-104(4), MCA (1981), to permit the Board to designate one of its members, one of its staff members, or any other adult correctional releasing authority to conduct a prehearing interview of an inmate relative to parole eligibility for the purpose of assisting the Board and expediting the hearing process. However, the prehearing interview does not, and cannot substitute for the applicant’s constitutional right to personally appear before the Board.

To ignore the importance of an inmate’s opportunity to appear before those who will personally decide the merits of his or her parole application is to ignore the subjective nature of the decision and the statutory requirement that those vested with such responsibility possess specific qualifications. As the U.S. Supreme Court noted in Greenholtz, 442 U.S. at 13, 99 S.Ct. at 2106-07:

[T]he Parole Board’s decision as defined by Nebraska’s statute is necessarily subjective in part and predictive in part. Like most parole statutes, it vests very broad discretion in the Board. No ideal, error-free way to make parole-release decisions has been developed ....

Furthermore, § 2-15-2302(2), MCA, sets forth very specific educational and vocational background requirements for those vested with the exercise of such broad discretion. To permit delegation of the personal interview to a paid staff member would defeat the purpose of those statutory requirements and necessarily render intelligent and responsible exercise of the Board’s broad discretion more difficult.

We hold that compliance with § 46-23-202, MCA (1981), which provides that the Board must personally interview an inmate prior to his release on parole, is necessary to satisfy the minimum due process requirements set forth in Greenholtz, 442 U.S. 1, 99 S.Ct. 2100, and as independently required by Article II, Section 17, of the Montana Constitution. The requirement of a personal interview provides the necessary opportunity for an inmate to verify or refute the accuracy of the Board’s accumulated records and to present any special considerations which might demonstrate why he or she is an appropriate candidate for parole. Such a procedure is clearly necessary to the purpose of minimizing the risk of error in a parole eligibility determination. Greenholtz, 442 U.S. at 13, 99 S.Ct. at 2106-07.

We therefore affirm both the District Court’s conclusion that it had jurisdiction to determine whether Sage’s right to due process was violated, and the court’s conclusion that the Board had violated Sage’s right to due process when it denied him the opportunity to personally appear at his parole hearing. We hold that due process requirements of both the federal and state constitutions, and the clear mandate of § 46-23-202, MCA (1981), compel the Board of Pardons to personally interview a parole-eligible inmate, who has a liberty interest in parole, at the time fixed by law.

JUSTICES NELSON, HUNT and LEAPHART concur.

JUSTICE LEAPHART,

specially concurring.

I concur in the Court’s conclusion that a defendant has a due process right to personally appear before the Board for a personal interview. In addition, I would point out that the public as well has a very compelling interest in requiring that an inmate not be released on parole without first undergoing a face to face interview with the Board.

JUSTICE ERDMANN

dissenting.

I join the majority’s opinion on Issue 1. I respectfully dissent, however, on Issue 2.

The majority concludes that Sage not only has a statutory right to personally appear before the Board, but also that his constitutional right to due process was violated when he was denied the opportunity to personally appear before the Board upon his parole application. The majority reaches this conclusion by first applying a narrow statutory analysis to § 46-23-202, MCA (1981), which effectively ignores the remaining statutory scheme as set forth by the Montana Legislature. The majority then changes tack and undertakes an expansive constitutional analysis involving Greenholtz v. Inmates of Nebraska Penal and Correctional Complex (1979), 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668. The majority relies on Greenholtz to resolve issues which the United States Supreme Court explicitly declined to address in that case.

We have consistently held that when several statutes apply to a given situation, if it is at all possible, a construction is to be adopted as will give effect to all. City of Bozeman v. Racicot (1992), 253 Mont. 204, 208-09, 832 P.2d 767, 769; Schuman v. Bestrom (1985), 214 Mont. 410, 415, 693 P.2d 536, 538; § 1-2-101, MCA.

It is good statutory construction law that where one part of the law deals with a subject in general and comprehensive terms, while another part of it deals in a more minute and definite way, the two parts should be read together and, if possible, harmonized, with a view to giving effect to a consistent legislative policy.

Schuman, 693 P.2d at 539.

Contrary to the statutory arguments presented by the majority, I am not convinced that the Board’s use of its executive secretary, Craig Thomas, to conduct the parole eligibility interview, or Sage’s failure to personally appear before the Board, violated any statutory provisions. Thomas was designated by the Board to conduct Sage’s parole eligibility interview. Section 46-23-104(4), MCA(1981), provides that:

The board may designate one of its members, one of its staff members, or any other adult correctional releasing authority to conduct interviews relative to:
(a) parole eligibility;
(b) plans for release on parole; or
(c) revocation hearings.

Thomas serves as the Montana Board of Pardon’s Executive Secretary, which is a position defined as a “staff member” by Rule 20.25.101(2), ARM. Thus § 46-23-104(4), MCA (1981), allows the Board to delegate the prisoner’s interview, as provided for in § 46-23-202, MCA (1981), to Thomas as a “staff member.” The Board’s utilization of Thomas to conduct the parole eligibility interview was therefore clearly within statutory constraints.

The majority glosses over § 46-23-104(4), MCA (1981), by inferring that the Board’s authority to designate an individual under this section is limited to a “pre-hearing interview.” The plain language of this section simply does not limit the interview which may be conducted by a designated individual to a pre-hearing interview. Section 46-23-104(4), MCA (1981), refers to interviews relative to parole eligibility, which is exactly what is at issue in this case and includes the interview which is provided for in § 46-23-202, MCA (1981).

In addition, the majority asserts that interpreting § 46-23-104(4), MCA (1981), to apply to § 46-23-202, MCA (1981), creates a contradiction between that statute and the language of the Board’s administrative rule which requires that an informal interview “before the board” shall be “conducted ... under the direction of the chairman” of that Board. Rule 20.25.401, ARM. We have recognized that the Legislature, in enacting law, is presumed to have knowledge of the existing law. Blythe v. Radiometer America, Inc. (1993), 262 Mont. 464, 866 P.2d 218. The same role can be applied to an administrative agency when adopting rules, as rules which conflict with statutory requirements are invalid. Section 2-4-305(6), MCA; Taylor v. Taylor (1995), 272 Mont. 30, 36, 899 P.2d 523, 526. When Rule 20.25.401, ARM, was adopted by the Board, § 46-23-104(4), MCA, was in effect and we can presume the Board was aware of its provisions. The rule must therefore be construed in light of § 46-23-104(4), MCA, which allows a designated individual to conduct parole interviews. There simply is no contradiction between the statutory scheme and the administrative rule.

Furthermore, the 1981 parole eligibility statutory scheme provides that the Board shall be required to hear oral statements from all persons desiring to be heard. Section 46-23-204, MCA (1981), provides:

The board shall be required to hear oral statements from all persons desiring to be heard before the board, and any person may be represented by counsel, provided that the board shall have the power to regulate procedure at all hearings.

(Emphasis added.) It cannot be disputed that the language, “all persons desiring to be heard” includes parole applicants, particularly given the right to be represented by counsel. The record does not reflect that Sage exercised his statutory right to be personally present at a hearing before the Board under this section by requesting or expressing a desire to make an oral statement before the Board. Thus, I would determine that Sage’s personal appearance at his interview was sufficient to meet the statutory requirements.

The majority next asserts that Sage’s constitutional right to due process was violated when his personal appearance was before an individual designated by the Board and not before the Board itself. The majority argues that it is reasonable to infer from Greenholtz, 442 U.S. 1, 99 S.Ct. 2100, 606 L.Ed.2d 668, that the opportunity of a parole applicant to appear before the Board itself is an important element of the due process to which the applicant is entitled. The majority, however, concedes that the United States Supreme Court did not directly address this issue in Greenholtz since a personal appearance before the board is a statutory requirement in Nebraska. Its reliance on Greenholtz for this proposition is thus misplaced. The United States Supreme Court stated that due process requires that the inmate be provided with an effective opportunity to insure that the records before the Board are in fact the records relating to his case and that he be provided with the opportunity to present any special considerations demonstrating why he is an appropriate candidate for parole. Greenholtz, 442 U.S. at 15, 99 S.Ct. at 2107-08.

In this case, Sage was provided with a personal parole eligibility interview and was provided the opportunity to request a personal hearing before the Parole Board under the provisions of § 46-23-204, MCA (1981). He had the opportunity to correct the record relating to his case. He was allowed to present oral testimony and have other witnesses testify on his behalf. The Board considered the pre-parole investigation report, written statements, and Thomas’s recommendation. Because he was afforded these opportunities and was provided with a written statement setting forth the reasons for the Board’s denials of parole, Sage was provided with due process, as required by both the Montana and United States Constitutions, and there was no deprivation of a constitutionally protected interest.

I would reverse the District Court on this issue.

CHIEF JUSTICE TURNAGE and JUSTICE GRAY join in the foregoing dissenting opinion.

      . The mandatory language of § 46-23-201, MCA, which created a liberty interest in parole was amended by the Legislature in 1989. Therefore any prisoner sentenced after 1989 does not have a constitutionally-protected liberty interest in parole.

      . The Court noted that personal appearances were alaready allowed in Nebraska and that therefore the necessity of that opportunity was not an issue. Greenholtz, 442 U.S. at 16. fn. 8. 99 S.Ct. at 2108, fn. 8.


author: JUSTICE HUNT

text:
    HARRY A. NESS, Petitioner and Appellant, v. ANACONDA MINERALS COMPANY, a division of ATLANTIC RICHFIELD COMPANY, INC., Respondent and Respondent.
    No. 96-038.
    Submitted on Briefs October 31, 1996.
    Decided November 25, 1996.
    53 St.Rep. 1241.
    279 Mont. 472.
    929 P.2d 205.

      For Appellant: R. Lewis Brown, Butte Legal Center, Butte.
    For Respondent: Andrew J. Utick, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Harry A. Ness (Ness) appeals the decision of the Workers’ Compensation Court concluding that Ness was entitled to total disability benefits only until September 11, 1989, the date on which Anaconda Minerals Company (Anaconda) properly discharged its duties to investigate the extent of Ness’s disability and to notify Ness of the results of that investigation. Anaconda cross appeals the Worker’s Compensation Court’s determination that Anaconda was not entitled to subrogate the benefits it had paid against Ness’s settled third party claim, as well as the court’s determination that Ness was entitled to attorneys fees based upon the award of permanent partial disability benefits. We affirm.

ISSUES

Ness presents the following issue on appeal:

1. Did the Workers’ Compensation Court err in concluding that the statutorily mandated notice of intent to reduce workers’ compensation benefits validly may be given before the insurer has discharged its duty to investigate the extent of the claimant’s disability?

In addition, Anaconda presents the following two issues on cross-appeal:

2. Did the Workers’ Compensation Court err in concluding that Anaconda was not entitled to subrogate the benefits it had paid to Ness against his settled third-party claim?

3. Did the Workers’ Compensation Court err in concluding that Ness was entitled to attorney’s fees based upon the award of permanent partial disability benefits?

FACTS

Ness was injured in 1981 during the course of his employment for Anaconda. On the day in question, he was welding the belly pan of a D-8 Caterpillar when it fell and crushed him. Anaconda, which was self-insured, accepted liability and began paying temporary total disability benefits to Ness. Ness also instituted suit against the Caterpillar Tractor Company (Caterpillar), asserting that his injury was caused, at least in part, by a defective part on the Caterpillar he had been repairing.

After paying total disability benefits for over a year, Anaconda terminated total disability payments and began paying partial disability benefits, relying on a doctor’s opinion that Ness had reached maximum healing and could return to light work. Anaconda notified Ness on November 22, 1982, of its intention to reduce his benefits from total to partial disability.

Ness petitioned the Workers’ Compensation Court to reinstate total disability benefits, which that court refused to do. Ness then appealed the matter to this Court. In Ness v. Anaconda Minerals Co. (1993), 257 Mont. 335, 849 P.2d 1021 (Ness I), this Court determined that Anaconda’s reduction of Ness’s benefits was improper because Anaconda had not complied with the Coles test. While the first three elements of the Coles test had been fulfilled in Ness I, this Court noted that Anaconda had not given Ness the required notice of the doctor’s report or a copy thereof. We therefore held that

[wjhen there is proof of the date on which the fourth element of the Coles test has been satisfied, there will be substantial evidence for the termination of claimant’s total disability benefits, and the commencement of partial disability benefits.

Ness I, 849 P.2d at 1024.

On remand to the Workers’ Compensation Court, Ness stipulated that he had received notice of the doctor’s report on September 11, 1989. Accordingly, the Workers’ Compensation Court determined that September 11, 1989, was the proper date for the reduction of Ness’s benefits from total to partial.

Ness, however, argued that the letter he had received on November 22, 1982, by which Anaconda notified him of its intention to reduce his benefits, was insufficient notice because it was given before all of the Coles factors were fulfilled. He therefore contended that Anaconda was precluded from reducing his benefits until it re-notified him of its intention to do so after complying with the Coles test. The Workers’ Compensation Court disagreed, concluding that the plain language of this Court’s opinion in Ness I allowed Anaconda to reduce Ness’s disability benefits from total to partial as of the date the fourth Coles factor was met. Ness appeals this conclusion.

In addition, Anaconda appeals the Workers’ Compensation Court’s determination that it cannot subrogate the benefits it paid to Ness against his third party claim. It also appeals the court’s determination that Ness is entitled to attorney’s fees based on the award of permanent partial disability benefits.

DISCUSSION

1. Did the Workers’ Compensation Court err in concluding that the statutorily mandated notice of intent to reduce workers’ compensation benefits validly may be given before the insurer has discharged its duty to investigate the extent of the claimant’s disability?

The Coles test ensures that the insurer has provided the claimant with the minimum information necessary to discharge its duty to investigate the extent of the claimant’s disability. Compliance with the Coles test is a mandatory prerequisite for benefit reduction or termination. The Coles test requires:

(1) a physician’s determination that the claimant is as far restored as the permanent character of his injuries will permit;
(2) a physician’s determination of the claimant’s physical restrictions resulting from an industrial accident;
(3) a physician’s determination, based on his knowledge of the claimant’s former employment duties, that he can return to work, with or without restrictions, on the job on which he was injured or another job for which he is fitted by age, education, work experience, and physical condition; and
(4) notice to the claimant of receipt of the report attached to a copy of the report.

Ness I, 849 P.2d at 1024.

Part of the confusion regarding this issue may have arisen because it involves two separate and distinct notice requirements. The fourth factor of the Coles test requires an insurer to notify a claimant of a physician’s report regarding the nature and extent of the claimant’s injury and the physician’s opinion regarding the claimant’s ability to return to work. We have held that, until such a physician’s report is made and the claimant notified of it, an insurer may not reduce a claimant’s benefits because it has not acquired sufficient information to discharge its duty to investigate the extent of the claimant’s disability. Wood v. Consolidated Freightways, Inc. (1991), 248 Mont. 26, 808 P.2d 502. This is the Coles test, and notice to the claimant is the fourth factor of this test. Ness I, 849 P.2d at 1024.

In addition, the insurer is statutorily required to provide the claimant with at least 14 days’ notice of its intent to terminate benefits. Section 39-71-609, MCA, provides in part:

if an insurer determines to deny a claim on which payments have been made under 39-71-608 during a time of further investigation or, after a claim has been accepted, terminates all biweekly compensation benefits, it may do so only after 14 days’ written notice to the claimant, the claimant’s authorized representative, if any, and the department. For injuries occurring prior to July 1, 1987, an insurer must give 14 days’ written notice to the claimant before reducing benefits from total to partial.

Section 39-71-609(1), MCA (emphasis added). Ness does not argue that Anaconda’s notice, when given, did not properly comply with the statute. Instead, he argues that Anaconda did not have the ability to reduce his benefits at the time it notified him of its intent to do so, and that, once it had the ability to do so, its former notice no longer was effective.

We fail to see why the passage of time should render the notice ineffective. The cases Ness cites in support of this theory are not on point. In Catteyson v. Falls Mobile Home Center (1979), 183 Mont. 284, 599 P.2d 341, notice was not given until nearly one month after benefits were terminated. This Court held that such notice was void because it did not follow the clear statutory mandate that notice be given at least 14 days before termination of benefits. This Court has also held that if no statutory notice was ever given, the insurer will not be allowed to reduce or terminate benefits unless and until the statutory notice properly is given. Chagnon v. Tillman Motor Co. (1993), 259 Mont. 21, 855 P.2d 1002; Clark v. Hensel Phelps Const. Co. (1977), 172 Mont. 8, 560 P.2d 515. Ness cites no case in which this Court has held that the requisite statutory notice cannot be given until after the Coles test is completed or that, once properly given, the notice will somehow expire.

As Ness rightly noted, when the language of a statute is plain, unambiguous, direct, and certain, the statute speaks for itself and leaves nothing for this Court to construe. Clark, 560 P.2d at 516-17. Further, it is the function of an appellate court to ascertain what is actually contained in a statute, not to insert that which has been omitted. Russette v. Chippewa Cree Housing Authority (1994), 265 Mont. 90, 93-94, 874 P.2d 1217, 1219 (citations omitted). Accordingly, we decline to interpret § 39-71-609, MCA, as including an expiration provision which, on its face, it does not in fact contain. The statutory notice given to Ness on November 22, 1982, was both proper and effective. Anaconda had no duty to re-notify Ness of its intention to reduce his benefits once the Coles test was fulfilled, and the Workers’ Compensation Court properly refused to impose such a duty upon it.

2. Did the Workers’ Compensation Court err in concluding that Anaconda was not entitled to subrogate the benefits it had paid to Ness against his settled third-party claim?

Anaconda argues that the Workers’ Compensation Court erred by refusing to allow it to subrogate the benefits it paid to Ness. It contends that Ness has been made whole as a matter of law because he settled with the third party, Caterpillar, for less than policy limits. Anaconda contends that this Court’s prior case law mandates such a result.

In workers’ compensation cases, the law in effect at the time of a claimant’s injury establishes the claimant’s substantive right to benefits. Williams v. Plum Creek Timber Co. (1995), 270 Mont. 209, 213, 891 P.2d 502, 504 (citing Plooster v. Pierce Packing Co. (1993), 256 Mont. 287, 291, 846 P.2d 976, 978; Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d 380, 382). Therefore, the governing statutes in this case are § 39-71-412, MCA (1981) and § 39-71-414, MCA (1981).

Section 39-71-412, MCA(1981), which addressed a claimant’s right to pursue a third party claim, provided:

The right to compensation and medical benefits as provided by this chapter is not affected by the fact that the injury, occupational disease, or death is caused by the negligence of a third party other than the employer or the servants or employees of the employer. Whenever such event occurs to an employee while performing the duties of his employment and such event is caused by the act or omission of some persons or corporations other than his employer or the servants or employees of his employer, the employee or in case of his death his heirs or personal representative shall, in addition to the right to receive compensation under this chapter, have a right to prosecute any cause of action he may have for damages against such person or corporations.

Section 39-71-414, MCA (1981), which addressed an insurer’s right to subrogation, provided in part:

If an action is prosecuted as provided for in 39-71-412 or 39-71-413 and except as otherwise provided in this section, the insurer is entitled to subrogation for all compensation and benefits paid or to be paid under the Workers’ Compensation Act. The insurer’s right of subrogation is a first lien on the claim, judgment, or recovery.

Section 39-71-414(1), MCA (1981). However, while this latter statute set forth an insurer’s entitlement to subrogation, it did not set forth whether this right to subrogation began before or after the claimant was made whole.

This Court determined that an insurer was not entitled to invade a claimant’s paid third party claim via subrogation until the claimant had been made whole. See Brandner v. Travelers Insurance Co. (1978), 179 Mont. 208, 587 P.2d 933; Hall v. State Compensation Insurance Fund (1985), 218 Mont. 180, 708 P.2d 234; Getten v. Liberty Mutual Insurance Co. (1989), 240 Mont. 90, 782 P.2d 1267. However, the Court also held that a claimant who had settled a third party claim for less than the policy limits would be deemed to have been made whole. Brandner, 587 P.2d at 938; Hall, 708 P.2d at 236; Getten, 782 P.2d at 1270-71. The rationale behind this determination was the assumption that no claimant would settle for a sum of money which was insufficient to make him or her whole. In Brandner, this Court reasoned:

[fit cannot logically be contended, therefore, that [a] claimant has not been made whole for his Workers’ Compensation injury, when he, by his own voluntary action, has finally compromised his claim in full against the third-party tortfeasor.

Brandner, 587 P.2d at 938.

The decision in Hall carved out an exception to this rule by holding that it could not be assumed that a claimant had been made whole if he or she was forced to settle a third party claim for less than the policy limits. Consequently, the insurer’s right to recoup its payments from the third party settlement under a theory of subrogation could only be exercised once the claimant was actually made whole. In Getten, this Court noted that the claimant’s settlement had been voluntary, not forced. It therefore distinguished Hall and embraced the holding in Brandner.

In arguing that it should be allowed to exercise its right of subrogation, Anaconda relies almost entirely on the decisions in Brandner and Getten. Under the law as articulated in those two cases, Anaconda contends that it is entitled to subrogate because Ness settled his third party claim for less than the policy limits and did so voluntarily. Relying on the decisions in Brandner and Getten, Anaconda contends that Ness “was ‘made whole’ by [his] voluntary settlement, or he would presumably not have made such settlement.”

In response, Ness contends that the rule relied upon by Anaconda and set forth in Brandner and Getten no longer is good law. We agree. While Anaconda attempts to distinguish these earlier cases from the later ones which vitiate the Brandner/Getten rule, there is no escaping the fact that both those cases have been substantively and unambiguously overruled.

In Zacher v. American Insurance Co. (1990), 243 Mont. 226, 794 P.2d 335, this Court stated:

We hold that where a workers’ compensation claimant recovers against a third party an insurer has no subrogation rights until a claimant has been made whole for his entire loss and any costs of recovery, including attorney fees. ... To the extent that Hall and Getten contain requirements which may be interpreted as adding to the foregoing holding, Hall and Getten are expressly overruled.

Zacher, 794 P.2d at 338 (emphasis added). In Francetich v. State Compensation Mutual Insurance Fund (1992), 252 Mont. 215, 827 P.2d 1279, this Court held:

[In Brandner] The Court also distinguished the situation in Brandner from the decision in Skauge [v. Mountain States Telephone and Telegraph Co. (1977), 172 Mont. 521, 565 P.2d 628], The basis for this distinction apparently was the Court’s belief that the injured worker’s voluntary settlement with the third party for less than the upper limits of the third party’s insurance policy indicated that the worker had been fully compensated for his injuries. There is language in Brandner which might be viewed as indicating that subrogation might have been appropriate even if the injured worker had not been fully compensated for his injuries. To the extent that Brandner might be interpreted as allowing for subrogation prior to the injured worker receiving full compensation, it is overruled.

Francetich, 827 P.2d at 1284 (emphasis added).

Despite the clear language to the contrary, Anaconda attempts to distinguish both Zacher and Francetich is an attempt to preserve the applicability of the Brandner/Getten rule. It argues that Zacher does not necessarily conflict with Getten because, factually, both cases involve situations where the claimant was forced to settle for the third party’s insurance policy limits. Ness, they remind us, was not forced to settle for policy limits. Instead, he voluntarily settled for a sum far below that dictated by Caterpillar’s policy limits.

The holding in Zacher, set out above, does not distinguish between voluntary and non-voluntary settlements. Indeed, while noting that such a distinction had been made in past cases, this Court specifically chose not to rely on that distinction when articulating the rule regarding an insurer’s right to subrogation. We will not narrow the impact of Zacher by inferring a limitation which the Court itself refused to place on its own holding. By its terms, the holding in Zacher refers to all cases where an insurer seeks to exercise a right to subrogation regarding a claimant’s paid third party claim. And, by its terms, the holding specifically overrules Getten to the extent that it might add additional requirements to the holding in Zacher.

Similarly, Anaconda relies on the cited language in Francetich which states that:

[t]he Court also distinguished the situation in Brandner from the decision in Skauge. The basis for this distinction apparently was the Court’s belief that the injured worker’s voluntary settlement with the third party for less than the upper limits of the third party’s insurance policy indicated that the worker had been fully compensated for his injuries.

Francetich, 827 P.2d at 1284. Anaconda attempts to construe this language as the actual holding in Francetich, which it clearly is not. It is merely this Court again noting, as it did in Zacher, its own former reliance on the Brandner/Getten rule. The holding is contained in the next sentence, which notes that Brandner might be construed to indicate that subrogation may be allowed before the claimant has been made whole. Tb the extent Brandner might support such a result, Francetich expressly overruled it. Francetich, 827 P.2d at 1284.

Further, we note the fundamental flaw in Anaconda’s reliance on a rule which attempts to set forth when a claimant has been made whole as a matter of law. The question of whether an injured claimant has been made whole is a question of fact, dependent on the level of his or her physical recovery and the extent of his or her compensation through benefits paid and/or damages recouped.

In this case, Anaconda’s own expert placed the amount of Ness’s . damages at $145,000, which was the lowest estimate presented. But Ness has not received benefits and settlement proceeds totalling $145,000, even if Anaconda’s own estimate is presumed to be an accurate one and even if the entire $75,000 settlement from Caterpillar is credited to Ness. On this basis, the Workers’ Compensation Court concluded that “the settlement with Caterpillar did not in fact represent the amount necessary to make claimant whole. Therefore, it does not entitle respondent as a matter of law to a subrogation interest in the settlement proceeds.” (Emphasis added.)

The Brandner/Getten rule, which is the mainstay of Anaconda’s subrogation argument, has been substantively overruled. To the extent that Brandner or Getten or their progeny indicate that the issue of whether a claimant has been made whole is a question of law, they are expressly overruled. The issue of whether a claimant has been made whole is a question of fact. Even Anaconda’s own expert admits that Ness in fact has not been made whole to date. Accordingly, the Workers’ Compensation Court did not err in refusing to grant Anaconda the right to a subrogation interest in Ness’s settlement with Caterpillar.

3. Did the Workers’ Compensation Court err in concluding that Ness was entitled to attorney’s fees based upon the award of permanent partial disability benefits?

Anaconda also contends that the Workers’ Compensation Court erred by awarding Ness attorney’s fees based on the award of permanent partial disability benefits. Anaconda argues that Ness’s entitlement to permanent partial disability benefits was not the issue in this case. It further argues that Ness is not entitled to attorney’s fees because Ness never specifically requested permanent partial disability benefits and, therefore, such benefits were not secured through the efforts of Ness’s attorney. This argument is entirely without merit.

Ness pursued his claim in the Workers’ Compensation Court with the assistance of an attorney, who instituted suit after Anaconda stopped paying benefits to Ness. The issue faced by the Workers’ Compensation Court was what benefits, if any, Ness was entitled to receive. The attorney’s efforts in securing Ness’s award are not diminished simply because Ness did not specifically request a given type of relief.

The decision of the Workers’ Compensation Court is affirmed.

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