No. 84-165
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
WILLIAM A. RZIYNES,
Plaintiff and Appellant,
CITY OF GREAT FALLS, and
G. ALLEN JOHNSON, Individually,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Glary & Clary; Thomas 1.1. Clary, Great Falls,
Montana
For Respondents:
David V. Gliko, City Attorney, Great Falls, Montana
Dzivi, Conklin & Nybo; William Conklin, Great Falls,
Montana
Submitted on Briefs: Nov. 2, 1984
Decided: February 20, 1985
Filed: Fk. . i ;385
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from a d-eclara-toryjudgment of the
District Court of the Eighth Judicial District, State of
Montana, County of Cascade, whereby the District Court held
that the proper party to review the decision of the Police
Commission was the City Manager rather than the City Mayor,
section 7-32-4153, MCA.
Two issues are presented for consideration.
1. Did the District Court err in concluding that the
City Manager, rather than the elected City Commissioner, was
the proper party to review the decision of the Police
Commission?
2. On the particular facts of this case, did the Dis-
trict Court err in refusing to find that the City Manager
could review the decision of the Police Commission without
considering the constitutional safeguards guaranteed to a
government employee upon the City's attempt to terminate his
employment?
This case was submitted to the trial judge in the
agreed stipulation of facts which are as follows:
1. Commencing Karch 12, 1973, after a city election,
the form of government of the City of Great Falls, Montana,
became a commissioner-manager form as authorized and defined
in Title 11, Chapter 32 and 33, R.C.M. (1947), now Title 7,
Chapter 3, Parts 43 and 44, Montana Code Annotated. The City
of Great Falls, Montana, has continued to operate under the
commissioner-manager form of government up to the present
date.
2. The general administration of the City of Great
Falls is also authorized under the provisions of ordinance
no. 1904. . . which ordinance was regularly adopted by the
City Commission of the City of Great Falls on March 2, 1.976,
and set forth in Title I1 of the Official Codes of the City
of Great Falls.
3. At all times 1x1-evant to this case, G. Allen John-
son was a duly appointed, qualified, acting City Manager of
the City of Great Falls.
4. At all times relevant to this case, Shirley A.
Kuntz was a duly elected, qualified, acting City Commissioner
of the Great Falls City Commission and was designated Mayor
of the City of Great Falls.
5. On January 13, 1982, Jack Anderson, Chief of Police
of the City of Great Falls, Montana, filed a complaint before
the City Commission, the City of Great Falls, Montana,
against Sgt. William Raynes, charging Sgt. Raynes with con-
duct unbecoming a police officer, and conduct bringing re-
proach to the police force. Thereafter, on January 19, 1982,
Jack Anderson, the Chief of Police of the City of Great
Falls, filed an amended complaint with the City Commission of
the City of Great Falls against Sgt. William Raynes to the
same effect.
6. The complaint in the amended complaint referred to
above is signed by both the complainant, Jack Anderson, Chief
of Police of the City of Great Falls, and G. Allen Johnson,
City Manager of the City of Great Falls.
7. G. Allen Johnson was listed as a possible witness
for the City of Great Falls in the William Raynes proceeding
before the Great Falls Police Commission, but did not actual-
ly testify before the Commission.
8. On January 12, 1983, the City Commission of the
City of Great Falls entered its findings of fact, conclusions
of law, judgment and recommendation in the matter of Sgt.
William Raynes.
9. On January 14, 1983, G. Allen Johnson, City Manager
of the City of Great Falls, filed with the Police Commission
an order confirming the recommendation of the Police Commis-
sion of the City of Great Falls and directing permanent
discharge of Sgt. Raynes as a police officer of the City of
Great Falls. In filing the said order, G. Allen Johnson,
City Manager, purported to act pursuant to section 7-32-4161,
MCA .
10. On January 17, 1983, Shirley A. Kuntz, as the City
Commissioner of the City of Great Falls who was designated as
the Mayor of the City of Great Falls, signed and deposited
with the U.S. mail an order addressed to the City Commission
of the City of Great Falls, Montana, which order modified the
recommendation to the City Commission and directed Sgt.
Raynes be retained as a police officer for the City of Great
Falls subject to certain conditions and limitations ... In
so acting Shirley A. Kuntz, City Commissioner and Mayor,
purported to act pursuant to section 7-32-4161, MCA.
11. The order of Shirley A. Kuntz, described in para-
graph ten above, was received by the Police Commission of the
City of Great Falls, Tuesday, January 18, 1983.
Thereafter the City filed a declaratory judgment action
appealing the decision of Commissioner Shirley A. Kuntz and
the District Court held that under section 7-32-4153, MCA,
the proper party to review the decision of the Police Commis-
sion was the City Manager rather than the City Commissioner.
In addition to the above declaratory judgment action,
the appellant has appealed the initial decision against him
by the Great Falls Police Commission. That decision has been
affirmed by the Eighth Judicial District Court, Cascade
County, Judge Wheelis sitting, and is now on appeal to this
Court in Cause No. 84-165. In addition to the above action,
the appellant has raised various constitutional claims in a
civil rights suit filed in the U.S. District Court, entitled
Raynes v. Jack H. And.erson, et al, Cause No. CD-83-62-GI?.
That case has been dismissed by Judge Batten and is now on
appeal to the Ninth Circuit Court of Appeals.
The first issue is: Did the District Court err in
concluding that the City Manager, rather than an elected City
Commissioner was the proper party to review the decision of
the Police Commission.
The appellant argues that under the commissioner-
manager form of government set forth in section 7-3-4301, MCA
et seq., there are elected commissioners and under section
7-3-4319, MCA, the commissioner who receives the highest
number of votes is designated "mayor." Further, under sec-
tion 7-3-4320, MCA, the mayor is "recognized as the official
head of the municipality ... " The word "mayor" as used in
section 7-32-4160, MCA, j s intended to apply to the person
.
who is identified or designated as the chief executive of any
city or municipality. It is clearly the intent of the Legis-
lature to have the elected official, the person who is the
official head of the city or chief executive, review the
decision of the police commission.
The appellant argues that under the law of this state
police officers have a right to a fair and impartial hearing
before they can he terminated once they become members of the
police force, citing section 7-32-4162, MCA. Additionally
the only limitation of discipline on what a city manager can
do to a police officer, is that the city manager cannot
discharge a police officer without the police officer being
granted a hearing. Further when this section is read in
conjunction with section 7-32-4160, MCA, there must be a
different person in the position of reviewing the decision of
the police commission. Also under the above section, Montana
Code Annotated specifically authorizes the "mayor" to modify
or veto the decision of the police commission.
Appellant further argues that under the case of Board
of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33
L.Ed.2d 548, "due process considerations" must be granted to
government employees when determining whether or not they
should be terminated. These guidelines are binding on this
Court as they were on the District Court. Appellant contends
those guidelines cannot be met when the same party that
brings charges is listed as a potential witness, sits in on
the trial of the matter, and then, takes the position that he
may modify the decision of the police commission that he has
appointed, if it does not achieve its desired results. We
find this argument unpersuasive. Contrary to the above
argument, the City Manager, not the Mayor under the
commissioner-manager form of government is the chief execu-
tive of the City of Great Falls with power to affirm, modify
or veto the decision of the Police Commission.
The role of the mayor in a commissioner-manager form of
government as noted above is defined in Montana Code Annotat-
ed sections 7-3-4319, 7-3-4320 and 7-3-4368. These statutes
narrowly define and limit the role of the mayor in a city
management form of government. Under our statutes, the
mayor is the presiding officer of the commission and shall be
the official head of the municipality for the purposes of
receiving civil processes, for the purpose of military law,
and for all ceremonial purposes, section 7-3-4320, MCA. Said
section 7-3-4320 specifically holds that the mayor "shall
have no power to veto any measure."
In contrast, the power and the authority of the city
manager under the city manager form of government is broad
and pervasive as clearly demonstrated in sections 7-3-4314;
7-3-4361 through 7-3-4363; sections 7-3-4366; 7-3-4402;
7-3-4403; 7-3-4417; 7-3-4441; and 7-3-4463 through 7-3-4466,
MCA. These statutes provide that an elected commj.ssion is
required to appoint a city manager, section 7-3-4361, MCA,
who shall be the administrative head of the municipal govern-
men% and be responsible for the efficient administration of
all departments. Specifically, he/she is empowered to ap-
point and remove all subordinate officers and employees of
the departments in both the classified and unclassified
service.
With respect to the police department, the statutes
provide "the police force shall be composed of a chief of
police and such officers, patrolmen, and other employees as
the city manager may determine." Section 7-3-4465 (1), MCA.
Section 7-3-4465 specfies that certain statutes, including
Part 41 of Chapter 32, entitled "MunicipaL Police on Force"
A
shall govern the police department of all cities under the
commissioner-form of government.
The following statutes pertaining to the municipal
police force clearly mandate the city manager, not the mayor
is in charge of the police force and makes all decisions
pertaining to personnel: section 7-32-4103, 7-32-4108,
7-32-4113, 7-32-4151, and 7-32-4153, MCA. This last statute,
section 7-32-4153, concerns the meaning of the word "mayor."
Whenever that word (mayor) is used in sections 7-32-4109 and
7-32-4155 through 7-32-4163, it is intended to include "city
manager," "city comrnfssioner," or any other name or designa-
tion used to identify or designate the chief executive of any
city or municipality.
The foregoing listing of statutes specifically granted
to the city manager in those cities operating under the
commissioner-manager form of government the power to appoint
members of the police force; the power to revoke such ap-
pointments during the probationary period subject to the
provision of the state law requiring hearings before the
police commission; and the power to suspend or remove any
member or officer of the police force. There is no similar
power granted to a mayor under the commissioner-manager form
of government.
Tt is obvious that the above statutes are intended to
govern the municipal police force of any city, regardless of
the form of government adopted by that city. See sections
7-32-3102 and 7-3-4465, MCA. Because these statutes are
intended to apply to all forms of municipal government where
the powers of mayor vastly differ, section 7-32-4153, MCA
cited above, provide that when the term "mayor" is used in
section 7-32-4155 through 7-32-4163, the term is intended to
refer to whatever officer is the chief executive of the city
depending upon the form of municipal government adopted by
that city. Section 7-32-4153 applies to section 7-32-4160
and 7-32-4161 authorizing the mayor to enforce, modify or
veto the decision of the police commission after hearings
against a police officer. However under the
commissioner-manager form of government the term "mayor" as
used in the statutes means the city manager. Any other inter-
pretation would be clearly inconsistent with the statutory
provisions and we find the appellant's contentions erroneous.
T e find that under our statutes above quoted, the mayor
d
has no basis whatever upon which to claim that he/she is the
"chief executive" of the city, as that term is employed in
section 7-32-4153 defining the term "mayor" for the purposes
of the municipal police force. The mayor acting alone has no
appointive, discharge, or supervisory power or authority over
any employee, and clearly lacks the authority necessary for
one to be considered the chief executive of a municipality.
fn the commissioner-manager form of government the mayor's
primary duty is to serve as a voting member of the commis-
sion, which enacts the ordinances and sets the general policy
of the city. As such, the mayor is clearly a I.egislative and
not an executive officer.
On the question of the power of the mayor under the
comissioner-manager form of government to veto the decision
of the police commission, we adopt the holding of the West
Virginia Supreme Court in the case of State ex rel. Dieringer
. Bachman (W.Va. 1948), 48 S.E.2d 420, 422. In that case,
the court found the mayor was not a necessary pa.rty. We find
here that the city manager is the "chief executive" of the
City of Great Falls, and the only official empowered to
affirm, modify or veto the decision of the police commission.
The second issue is whether the District Court erred in
refusing to consider appellant's procedural due process claim
as it related to this declaratory judgment action. The
appellant alleges that the District Court refused to consider
the appellant's constitutional claims as they related to this
declaratory judgment action. His argument that he attempted
to get the District Court to consider his declaratory judg-
ment, was a unique factual situation that required the Dis-
trict Court to conclude differently than it might otherwise
have been able to do as it related to issue one. The appel-
lant argues that the Board of Regents v. Roth (1972), 408
ifa
U.S. 564, 9 8 2 - S.Ct. 2701, 33 L.Ed.2d 548, sets forth the
criteria which must be met in order for a government employee
to have been given his constitutional rights before his
employment can be terminated. We find no merit to this
argument.
The appellant's constitutional claim was not properly
before the court in this declaratory judgment action. A
declaratory judgment proceeding is primarily intended to
determine the meaning of a law or a contract and to adjudi-
cate the rights of the parties therein, but not to determine
controversial issues of fact such as the existence or denial
of procedural due process; see, State ex rel. Industrial
Indemnity v. District Court (19751, 169 Mont. 10, 544 P.2d
438; and In the Matter of Dewar (1976), 169 Mont. 437, 548
P.2d 149. Here the appellant sought judicial review of a
proceeding before the Great Falls Police Commission in anoth-
er a.ction filed before the Eighth Judicial District Court,
and that matter is now on appeal to this Court, Cause No.
84-163. In addition, he raises various constitutional issues
in a civil rights action filed with the United States Dis-
trict Court, and that matter is now on appeal in the Ninth
Circuit Court of Appeals. Accordingly, we hold that the
court did not err in refusing to consider the appellant's
constitutional claims. Instead, it addressed the specific
declaratory relief sought by the appellant in its petition
which was whether the Mayor or the City Manager of the City
of Great Falls is a party entitled under the statues to
affirm, modify, o r veto a decision of the Police Commission
discharging the appellant.
The judgment of the District Court is affirmed.
Mr. Justice Frank B. Morrison, Jr., specially concurring.
I concur in the result but disagree with the rationale.
Particularly, I take exception to this language:
"A declaratory judgment proceeding is primarily
intended to determine the meaning of a law or a
contract and to adjudicate the rights of the par-
ties therein, but not to determine controversial
issues of fact such as the existence or denial of a
procedural due process; . . ."
The majority's language is confusing at best. Hopefully
no one will read this language and think that constitutional
interpretation cannot be made in a declaratory judgment
action. In fa.ct, that is exactly how many important consti-
tutional questions are answered. See Grossman v. State
Department of Natural Resources (Mont. 1984), 682 P.2d 1319,
41 St-Rep. 804; Committee for an Effective Judiciary v. State
of Montana (Mont. 1984), 679 P.2d 1223, 41 St-Rep. 581.
Likewise, we should not give the impression that declar-
atory judgment actions foreclose determining controversial
issues of fact. Whether fact issues are controversial makes
no difference. Some fact issues, such. as intent, are re-
solved in declaratory judgment actions.
This language indicates we think the existence or denial
of procedural due process is a fact question. Whether or not
a particular ordinance, statute, or administrative regula-
tion, affords procedural due process is a question of law,
not a question of fact.
The courts have every right to review procedural due
process and should do so here. The issue has not had an
adequate hearing and has not been considered by a majority of
o u r members. However, I believe tha.t t h e procedural due
p r o c e s s r i g h t s o f p l a i n t i f f w e r e a f f o r d e d i n t h i s c a s e and
t h e r e f o r e I concur i n t h e r e s u l t .
\
I concur i n t h e foregoing s p e c i a l concurrence of M r . ~ustice
F r a n k B. M o r r i s o n , J r .