No. 94-251
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
CITY OF CUT BANK,
Plaintiff, Appellant,
GLACIER COUNTY, MONTANA,
DONALD KOEPKE, CLINTON R.
PILGERAM & FRED R. JOHNSON,
GLACIER COUNTY COMMISSIONERS, /q\:f~: 2 7 Jgg5
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Glacier,
The Honorable R.D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Selden S. Frisbee, Cut Bank, Montana
For Respondent:
Larry D. Epstein, Glacier County Attorney, Cut Bank,
Montana
Submitted on Briefs: December 22, 1994
Decided: March 21, 1995
Filed:
Justice Fred J. Weber delivered the Opinion of the Court
This is an appeal from the grant of summary judgment to
Glacier County by the Ninth Judicial District Court, Glacier
county. We affirm.
The only issue on appeal is whether the District Court erred
in granting summary judgment to Glacier County.
The City of Cut Bank (City) is a municipal corporation located
within the political subdivision of Glacier County (County). The
County Sheriff's office operates a dispatch service which
dispatches for its own office as well as for the City. The City
operates its own dispatch service for its police department, fire
department and animal control between the hours of 8:00 am until
4:00 pm. Monday through Friday. The County dispatches for the City
between the hours of 4:00 pm and 8:00 am on work days and 24 hours
on weekends and holidays and on all occasions when the city
dispatcher is unable to dispatch.
The Glacier County Sheriff's Office dispatch is the designated
Public Safety Answering Point (PSAP) for the County pursuant to §
lo-4-103(3), MCA. The County sent a letter to the City on July 22,
1988 asking the City to contribute to the financing of the dispatch
service which until this time, the County had been funding
exclusively. The City refused and the County threatened to cut off
the dispatch service to the City as of October 1, 1988.
The City filed a Complaint seeking to have the County continue
to make its dispatch service available to the Cut Bank Police
Department at no charge. The City sought to have the County
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enjoined from the cessation of this dispatch service and also
requested a writ of mandate to force the County to continue
providing the service free of charge to the City.
The County filed an answer and engaged in limited discovery.
Subsequently the County moved for summary judgment.
On April 20, 1994, the court granted summary judgment to the
County. The City appeals that order.
Did the District Court err when it granted summary judgment to
the County?
The City argues that it had an agreement with the County that
specifically provides that the County would fund the dispatch
service for the City. Further, the City argues that statutes
require that the County fund this service for the City. It is the
City's contention that its taxpayers are already paying for this
dispatch service and that contributing more money to the County for
this service would involve double-taxation.
The County contends that there is no genuine issue of material
fact here and that the only issue to be resolved is a matter of
law. According to the County's interpretation of the law, it is
not required to provide the City with free dispatch service. In
fact, the County argues that it does not have to provide a dispatch
service to a city at all but that statutes allow it a choice of
three alternatives once it is designated as a PSAP--it can
dispatch, relay or transfer a message. The County argues that
issues involving taxation are irrelevant to the pertinent issue.
Further, the County argues that it is under no contract to the City
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of Cut Bank.
Summary judgment will be granted if there is no genuine issue
of material fact and it is proven that the moving party is entitled
to judgment as a matter of law. Rule 56(c) M.R.Civ.P. The party
seeking summary judgment must prove that no material issues exist.
Kittelson v. Archie Cochrane Motors, Inc. (1991), 248 Mont. 512,
813 P.Zd 424. Once that is proven, the non-moving party must
submit evidence to show that questions do exist as to material
issues. Owen v. Ostrum (1993), 259 Mont. 249, 855 P.2d 1015.
The District Court granted summary judgment finding that any
fact at issue was not material and counties are not required to
provide dispatch service to cities. The District Court did not
find any statutory requirement that the County was required to pay
the City's dispatch service during off hours. The District Court
found that all taxation arguments were not relevant.
The County has proven that no questions of material fact
exist: Cut Bank is a city within Glacier County and is currently
receiving free dispatch service from the County, the County has
asked for financial help from the City, and the City has denied
that help. There is no question that this is the situation. While
the City asserts in its pleadings that material issues exist, it
has provided no evidence to show that material issues are in any
way in controversy. The City may not just assert that material
issues exist; it must present depositions, affidavits, some
evidence to support its assertions. Minnie v. City of Roundup
(1993), 257 Mont. 429, 849 P.2d 212.
The only question that exists under the facts of this case is
a legal one. While the City is correct that the legislature
adopted 55 10-4-101 through 121, MCA in 1985, nothing within these
lengthy statutes requires that counties pay for dispatch services
to cities within their jurisdiction.
These statutes are contained in a chapter entitled State
Emergency Telephone System and provide the requirements of such a
system when set up by a public or private safety agency.
Provisions enable agencies with common boundaries to make
agreements which would provide emergency service. However, the
statutes do not require an agency to provide free dispatch service
to another entity that shares a common boundary.
The County asked the City in its interrogatories to submit a
copy of the agreement that the City stated it had with the County
concerning the County's dispatch service to the City. The City
provided a document that it called an "agreement" and which it
characterized as a binding contract. Even a cursory inspection
shows that it is not a contract. A contract must include
identifiable parties, parties' consent, lawful object, and
consideration. Daniels v. Thomas (1990), 246 Mont. 125, 804 P.2d
359. Here, the only element satisfied is that the document
involves a lawful object.
The document is clearly labeled "application" and is a
proposed "final plan" to be sent to the State of Montana for
approval of a county emergency telephone system. The record does
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not show that State approval was ever obtained for the plan. The
City cannot rely on this document as it is clearly not a contract
purporting to provide Cut Bank with free dispatch service.
We do not consider the question of taxation as it is not
relevant to the question of whether a county has to provide free
dispatch service to a city within its jurisdiction.
We conclude that the City of Cut Bank did not meet its burden
of proving that material issues exist and the law involved does not
require a county to provide a city within its jurisdiction with
free dispatch service. Therefore, we hold that the District Court
did not err in granting Glacier County summary judgment.
Affirmed.
Justices
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Justice Terry N. Trieweiler dissenting.
After reviewing the record, I find it difficult to either
agree or disagree with the majority opinion. There is simply an
inadequate basis in the record from which to draw any conclusion
about the County's and the City's respective obligations to each
other.
The District Court's conclusion that Glacier County had no
obligation to provide dispatch services to the City of Cut Bank was
based, in part, on a 1977 Attorney General Opinion to that effect.
However, the City's claim that it is entitled to dispatch services
without further charge is based on Title 10, Chapter 4, of the
Montana Code Annotated, which provides for a state emergency
telephone system. This chapter of the Code was not even enacted
until 1985.
Title 10, Chapter 4, of the Montana Code Annotated, provides
for the establishment of public safety answering points at various
locations in the State to receive emergency calls based on a 9-l-l
service, and provide a response to those calls. Every city or
county which provides emergency services may establish an emergency
telephone system. However, once established the system must
include 24 hour service accessible by dialing 9-1-l anywhere within
the system's jurisdiction. The system must also provide for either
direct dispatch of safety services, or relay or transfer of 9-l-l
calls to the appropriate safety agency. See § 10-4-103(l) and (2),
MCA.
The facility (in this case the Glacier County Sheriff's
Office) in which the local unit of government establishes the
emergency telephone system, is known as the "public safety
answering point." Section lo-4-101(13), MCA. When emergency calls
are made to a public safety answering point (the Glacier County
Sheriff's Office), the person receiving those calls has a statutory
duty to notify the appropriate "public safety agency" (in this
case, the City of Cut Bank's fire department, police department, or
animal protection unit) of the request for services. However, the
Emergency Telephone System Act seems to provide that that
notification can take one of several forms--either "direct
dispatch," or transfer or relay of the call. Section lo-4-lOl(131,
MCA. The transfer method involves transferring the caller to the
appropriate provider of emergency services. Section lo-4-101(16),
MCA. The relay method requires that the 9-l-l dispatcher convey
the necessary information to the appropriate provider of emergency
services. Section lo-4-101(14), MCA. The direct dispatch method,
on the other hand, would require the person answering the phone at
the public safety answering point (the sheriff's office) to
dispatch the appropriate emergency service units. Section
lo-4-101(3), MCA.
I would conclude from the provisions of the Emergency Telehone
System Act, that once designated as the public safety answering
point for Glacier County, the County had an obligation pursuant to
5 lo-4-104(2), MCA, to at least notify the City of requests for
emergency services within the City's jurisdiction. However, it is
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unclear to me from the record in this case whether the county
denies any obligation under 5 lo-4-104(2), MCA, without
reimbursement from the City, or whether it merely denies an
obligation to provide for direct dispatch of emergency services
within the City's jurisdiction. There is no satisfactory
discussion of that issue in either party's brief, in the majority
opinion, or elsewhere in the record.
A second issue which causes me concern with the result arrived
at by the majority is the effect of the provision in § 10-4-111,
MCA, for the submission of a preliminary plan to the Department of
Administration by an applicant for a 9-1-l jurisdiction (in this
case, the County). In response to the County's request that the
City produce a copy of any written agreement which would require it
to provide emergency telephone service to the City, the City
produced a 27-page document entitled "Emergency Telephone System
Plan Summary." Various pages of the document are referred to by
the subheading "Agreement" and appear to be executed by
representatives of the National Park Service, the County Ambulance
Service, the County Commissioners, the County Sheriff's Department,
the County Fire Department, the City of Cut Bank, and the City of
Cut Bank Police Department. The purpose of the document, as set
forth on page one, was as follows:
This application is to serve as a summary of the
Preliminary and/or Final Plan to establish an emergency
9-l-l telephone system as required by 10-4-101 through
10-4-121, MCA. Submission of this application is
intended to expedite the state review and approval
process by the Department of Administration.
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On page 25 of the plan summary, under the subheading “System
Cost," Glacier County apparently made the following representation:
9-l-l costs for Glacier County Exceeds [sic] state
funding, therefore various county departments['l budgets
will be used to offset differences.
The plan makes no mention of any supplemental funding by the
City of Cut Bank and would explain the City's assumption that by
executing this document and submitting it to the Department of
Administration as the basis for the Department's approval of its
application for emergency telephone service, the County had agreed
to provide the service at no additional cost to the City. The
document at least requires further foundation, explanation, and
possibly parol evidence to explain its purpose and the parties'
understanding when they executed it. However, I disagree with the
majority when it concludes that the document itself does not
satisfy the necessary elements of a contract.
The record does not make clear whether the County's plan
summary is a preliminary plan or final plan, and whether it was
approved by the Department of Administration. Presumably, if it is
the final plan and was approved by the Department of
Administration, the County is bound by the terms of the plan,
including its offer to make up the difference between State funding
and the cost of the emergency telephone services from other County
departments.
Finally, the only source of funding for emergency telephone
services provided for in the Emergency Telephone System Act is
found at 5 10-4-201, MCA, which provides that 25 cents a month is
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to be assessed to each access line of each service subscriber in
the State. The legislative history suggests that the Legislature
was aware that these charges would be insufficient to fully fund
emergency telephone services, but does not indicate where the
shortfall was to be made up. The record in this case is devoid of
any breakdown of the amount provided to the County and the City
pursuant to § 10-4-201, MCA, as opposed to the actual cost of
operating the service, and the percentage of that cost assessed to
the City. I conclude that this information would also be helpful
in resolving the issue raised on appeal by the City.
Other than the plan summary referred to previously (which is
only questionably part of the record), the only evidence submitted
to the District Court upon which it could base summary judgment was
the affidavit of Gary Bjorklund, the Glacier County Sheriff. In
his affidavit, he simply pointed out that the dispatch service at
the Glacier County Sheriff's Office is the designated "public
safety answering point" for Glacier County 9-1-l service; he
explained that in addition to the County's own emergency services
(the County Sheriff's Office, rural fire departments, and County
ambulance), the Sheriff's dispatch service served the City Police
Department and City Animal Control Service during specified periods
of time; and he stated that the County had demanded that the City
contribute to the expense of the dispatch service, but that the
City has refused to do so.
Other than this sparse information, there is no record on
which to base summary judgment in this case. Based on this record,
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I can neither agree nor disagree with the conclusion arrived at by
the majority.
It is clear to me that the County, as the public safety
answering point, has a statutory obligation to notify public safety
agencies, such as the City of Cut Bank, of requests for service
within the agency's jurisdiction, with or without reimbursement
from the City. What is not clear to me is whether the County is
refusing to provide notice by either direct dispatch, relay method,
or transfer method, or whether the County is simply declining to
provide direct dispatch without compensation.
It is also clear, from documents which have been provided to
this Court, that some form of agreement was entered into between
the County and the City as a basis for the Department of
Administration's approval of the County's application for an
emergency telephone system. That document, while signed by
officials from both the County and the City, makes no reference to
payment by the City for that service, but suggests that if the cost
exceeds State funding, the County will make up the difference.
However, this document requires further foundation and explanation.
My concern is that without an adequate record, this Court has
decided issues of major significance to local governments around
the State, and may have decided those issues incorrectly.
I conclude that the only appropriate resolution of this case
from an appellate court's perspective is to vacate the summary
judgment entered by the District Court and remand this case to the
District Court for further development of the record. In
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particular, I would instruct the parties to specify the forms of
notification the County is obligated to provide to the City without
compensation, pursuant to § lo-4-104(2), MCA, and if there is a
difference, which form of notification or dispatch service the
County claims it is entitled to charge a fee to perform. I would
also direct the parties to provide foundational testimony by the
parties who signed the agreement identified as a preliminary plan,
which is attached as Exhibit "A" to the City of Cut Bank's brief on
appeal, with some explanation of the purpose for which the document
was prepared, what was ultimately done with the document, and what
the parties believe it means with regard to payment for emergency
telephone services in Glacier County. As the record presently
exists, the County has simply ignored the document.
For these reasons, I am unable to concur in the majority
opinion. While Glacier County may ultimately be entitled to
judgment as a matter of law in this case, I do not believe there is
an adequate record on which to arrive at that conclusion at this
time.
Therefore, I dissent from the majority opinion.
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