No. 86-549
IN THE STJPREME COURT OF THE STATE OF MONTANA
1987
THERESA CANTWELL,
Plaintiff and Respondent,
-vs-
AUGUSTA GEIGER, DAWSON COUNTY ASSESSOR;
DAWSON COUNTY BOARD OF COMMISSIONERS;
Defendants and Respondents,
and
THE MONTANA DEPARTMENT OF REVENUE,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable Alfred B. Coate, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry G. Schuster, Dept. of Revenue, Helena, Montana
For Respondents:
Ira Eakin, Billings, Montana (Cantwell)
Matthew W. Knierim; Gallagher, Archembeault & ~ n i e r i m ,
Glasgow, Montana (Geiger)
Rodney Hartman; Herndon, Harper & Munro, Billings,
Montana (Dawson County)
Submitted on Briefs: July 23, 1987
Decided: September. 15, 1987
SEP 15 1987
Filed:
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
This is an appeal from the First Judicial District,
Dawson County, Montana. The Montana Department of Revenue
(DOR) appeals from an order granting a motion for summary
judgment in favor of the Dawson County Commissioners,
dismissing them with prejudice.
We affirm the order of the District Court.
The issues raised for our review on appeal are as
follows:
1. Whether the District Court erred in granting summary
judgment to the Dawson County Commissioners.
2. Whether the District Court erred in finding that no
liability could be imputed to the Dawson County Commissioners
for any wrongful acts of the Dawson County Assessor.
3. Whether the District Court erred in finding that the
Dawson County Assessor was an agent of the DOR pursuant to §
15-8-102, MCA.
The facts relevant to this appeal concern the Dawson
County Assessor's job and who was responsible for Augusta
Geiger's actions as her employer and supervisor.
Augusta Geiger was elected to the position of Dawson
County Assessor in November, 1978. The position is a four
year term. In 1982, Theresa Cantwell ran against Geiger for
the job of assessor. Cantwell had been a clerk in the
Assessor's Office since 1976. She lost the election to
Geiger, but continued working in the Assessor's Office
following the November, 1982, election. Cantwell now alleges
that after losing the election to Geiger, she was subjected
to political harassment to such a degree as to force her to
quit her job as clerk in the office in January, 1983. In
April, 1984, Cantwell filed a complaint against Augusta
Geiger, the Dawson County Board of Commissioners and the
Montana DOR charging political harassment.
Following extensive discovery by all parties, the
District Court found that the Dawson County Commissioners
were not liable for Geiger's actions and dismissed the
Commissioners from this law suit.
The issues raised on appeal will be discussed as
one: Is DOR, as Augusta Geiger's employer, liable for her
actions while she was County Assessor?
The well-established rule in Montana is that summary
judgment is proper only where there is no genuine issue of
material fact. Rule 56 (c), M.R.Civ.P. Once this burden has
been met, the opposing party must demonstrate the existence
of a genuine issue of fact. Fleming v. Fleming Farms, Inc.
(Mont. 1986), 717 P.2d 1103, 1106, 43 St.Rep. 776, 779. If
the party opposing summary judgment fails to show any genuine
issue of material fact, the law requires that summary
judgment be granted in favor of the movant. Wagner v.
Glasgow Livestock Co. (Mont. 1986), 722 P.2d 1165, 1168, 43
St.Rep. 1352, 1354.
The main dispute in this appeal concerns the amount of
supervisory control by the County Commissioners over the
County Assessor.
Section 7-4-2110, MCA, states:
Supervision of county - other officers.
and The
board of county commissioners has jurisdiction and
power, under such limitations and -restrictions as
are prescribed by law, to:
(1) supervise the official conduct of all county
officers and officers of all districts and other
subdivisions of the county charged with assessing,
collecting, safekeeping, management, or
disbursement of the public revenues;
(2) see that they faithfully perform their duties;
(3) direct prosecutions for delinquencies; and
( 4 ) when necessary, require them to renew their
official bonds, make reports and present their
books and accounts for inspection.
County officers include the County Assessor. Section
7-4-2203 (1)(i), MCA.
In 1973, 15-8-102, MCA, was amended to make county
assessors agents of DOR. Prior to that time each of the 56
counties in Montana assessed property with a local appraisal
system. The amended statute was intended to centralize and
equalize property assessments statewide.
The record before this Court reflects that following the
1973 amendment, the County Commissioners in Dawson County
treated the County Assessor with a "hands-off" policy with
respect to the internal operations of the Assessor's Office.
The Board met with the Assessor on occasion but
primarily only when the office operations affected the county
budget as a whole. For example, around the date of filing of
this lawsuit by Theresa Cantwell, the Board became aware that
there were serious delays in the Assessor's Office which, if
not rectified, would impact the entire Dawson County
accounting and budget for that year. The Commissioners
contacted DOR in Helena requesting that something be done to
remedy the situation. However, the Commissioners did not
undertake to resolve the problems themselves. The combined
testimony of various County Commissioners state that the
Commissioners' only concern with the Assessor's Office is the
timeliness of their work. The Commissioners' understanding
is that any problem within the Assessor's Office is a problem
for DOR. There is nothing in the record to support the
State's allegation that the Commissioners exercised
supervision and control over the activities of the Assessor's
Office. Extensive deposition testimony reveals a working
relationship between the Assessor's Office (located in the
County Courthouse) and the County Commissioners, but no
immediate supervision or directives issue from the Board with
regard to any operations within the Assessor's Office.
Testimony of Augusta Geiger reveals that she, too,
believed that her immediate supervisor was an agent of DOR in
Helena. Likewise, throughout the period between the 1982
election and Theresa Cantwell's resignation from the
Assessor's Office, Cantwell telephoned and wrote letters to
the Helena DOR office in an attempt to resolve the personnel
problems in the office. She did not attempt to solicit the
Commissioners' help.
The Assessor's Office employees were paid through DOR.
Any termination of employees in the Dawson County Assessor's
Office was done through Geiger's supervisor in Helena. DOR
provided directives to all county assessors informing them of
the correct assessment for all types of property. Whenever
questions concerning the operations or functioning of the
office arose, a DOR employee in Helena was contacted for
guidance or help. The record shows that primarily the Board
of Commissioners was called upon for advice or to relay
information when problems in the Assessor's Office were
having an affect on the budgets or accountings of other
county offices. All problems which were not internally
resolved by the Assessor's Office were referred to DOR, not
to the County Commissioners.
Section 7-4-2110, MCA, gives the county commissioners
supervisory power over the county assessors "under such
limitations and restrictions as are prescribed by law . . ."
Section 15-8-102, MCA, is such a limitation prescribed by
law. This much newer statute makes the county assessor an
agent of DOR. In construing a statute, this Court presumes
that the legislature intended to make some change in existing
law by passing it. State ex rel. Dick Irvin, Inc. v.
Anderson (1974), 164 Mont. 513, 524, 525 P.2d 564, 570. The
changes made in 1973 removed supervision of all internal
operations of the Assessor's Office from the County
Commissioners and placed it with DOR.
In light of the record and foregoing discussion, we
agree with the finding that there is no genuine issue of
material fact as to the Dawson County Commissioner's
supervisory control over the Dawson County Assessor. The
order granting summary judgment in favor of the Dawson County
A
Commissioners is affirmed.
We Concur: I