NO. 94-324
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN THE MATTER OF THE RENEWAL,
OF THE TEACHING CERTIFICATE OF
GERALD THOMPSON
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kathleen F. Holden, Special Assistant Attorney
General, Office of Public Instruction, Helena,
Montana
For Respondent:
Torger S. Oaas, Lewistown, Montana; Elizabeth A
Best, Best Law Offices, Great Falls, Montana
For Amicus:
Hon. Joseph P. Mazurek, Attorney General, Kimberly
A. Kradolfer, Assistant Attorney General, Helena,
Montana (Board of Public Education); Janice F.
Doggett (Montana School Boards Ass'n); Douglas F.
Bates, Salt Lake City, Utah, (National Ass'n of
State Directors of Teacher Education and
Certification)
:
Justice Fred J. Weber delivered the Opinion of the Court.
The Montana Office of Public Instruction appeals from an Order
of the District Court of the Eighth Judicial District, Cascade
county. The District Court's Order reversed an Order of the Board
of Public Education which denied the renewal of Gerald Thompson's
teaching certificate. Nonrenewal was based on the Board's
conclusion that Gerald Thompson is not of good moral and
professional character because of incidents of sexual misconduct.
The District Court concluded that the authorities involved in
investigating the allegations of sexual misconduct had actively
sought to suppress the truth, that the actions of the County
Attorney were "shocking to the conscience" of the court and that
Gerald Thompson had been deprived of due process during the
proceedings leading up to the Hearing Examiner's decision which was
adopted by the Board of Public Education. We affirm the District
Court.
The dispositive issues are as follows:
I. Did the District Court err in reversing the Order of the
Board of Public Education based on the expert testimony provided by
OPI's expert?
II. Did the District Court err in concluding that the Order
of the Board of Public Education was not supported by substantial
credible evidence?
Gerald Thompson (Thompson) began teaching in 1977. In 1981,
he was hired by the Hobson School District to teach, coach
basketball, and to be part-time administrative assistant to the
district superintendent. He was head high school basketball coach
for the boys' team from 1981 until his resignation on December 5,
2
1988. He also coached high school girls' basketball from 1984
until 1987. In July 1987, he was promoted to district school
superintendent and he relinquished his teaching and girls'
basketball coaching duties.
In late November of 1988, the Board of Trustees for the Hobson
School District (School Board) received two letters alleging sexual
misconduct by Thompson. Lisa Killham (Killham), a 1987 Hobson High
School graduate, signed one of these letters; K.W., a senior at
Hobson High School at the time, signed the other.
The School Board later received two additional claims alleging
sexual misconduct by Thompson. One of these was from a former
employee of the school district, Margaret Aamold, alleging sexual
misconduct during her employment; the other was from a 1986 Hobson
High School graduate, Tammy Hutchinson (Hutchinson), alleging
sexual misconduct by Thompson after her graduation from high school
when she visited him at his home.
Hobson is a community of less than 250 residents. The
substance of the letters from Killham and K.W. became widely
disseminated throughout the small community within a period of
approximately forty-eight hours after the School Board met to
consider what to do about the allegations. As a result of the
allegations becoming widely known in Hobson and the publication of
an article about the sexual misconduct allegations, Thompson
resigned his position with the Hobson School District effective
December 5, 1988. His resignation was due in part to the position
taken by at least two School Board members who stated their belief
3
that Thompson could not continue to be effective in his position
considering the community's division regarding the truthfulness of
the allegations made by Killham and K.W.
The Judith Basin County Attorney investigated the allegations
on behalf of the School Board. She also referred the matter to the
Attorney General's office for a decision on whether to prosecute
Thompson for criminal sexual conduct regarding the facts alleged in
the claims made by Killham and K.W. Thompson was subsequently
charged with two counts of sexual intercourse without consent and
one count of attempted sexual contact.
The Office of Public Instruction (OPI) controls the granting
and renewal of teaching certificates in Montana. Thompson's
teaching certificate expired July 1, 1990, approximately one and
one-half years after the first allegations of sexual misconduct
came to light. Prior to its expiration, he filed an incomplete
application for renewal, indicating that he was awaiting the
resolution of pending criminal charges. In December of 1990, the
charges against Thompson were dismissed. Thompson then notified
OPI of such dismissal.
OPI investigated the matter primarily by obtaining a copy of
the Attorney General's file on the criminal charges against
Thompson. After OPI's investigation, the Superintendent of Public
Instruction denied renewal of Thompson's teaching certificate on
May 16, 1991, based on OPI's determination that Thompson was not of
good moral character, as required by 5 20-4-104(l) (b), MCA.
Thompson appealed OPI's decision to the Board of Public
4
Education (the Board). The Board appointed an attorney as hearing
examiner for purposes of the appeal and a hearing was held on April
8-11, 1992. The Hearing Examiner determined that OPI's decision to
deny renewal of Thompson's teaching certificate should be upheld
because Thompson did not meet the requirement of § 20-4-104(l) (b),
MCA, that he be of "good moral and professional character." This
conclusion was based on the Hearing Examiner's finding that
Thompson demanded and attempted to force Killham to engage in
sexual activities with him on December 9, 1986, when she was a
student at Hobson High School, and the additional finding that he
had made unwelcome sexual advances toward Hutchinson in 1987. In
view of the contradictory testimony elicited from various
witnesses, we emphasize that the findings were limited to an
unsuccessful attempt to force Killham to perform oral sex and a
making of unwelcome sexual advances to Hutchinson.
Thompson filed formal exceptions to the Proposed Order of the
Hearing Examiner. The Board heard arguments by the parties on
January 22, 1993 and subsequently reviewed the entire transcript
and all exhibits. On March 19, 1993, the Board voted 5-l to uphold
the findings and conclusions of the Hearing Examiner, adopting them
and the proposed order without amendment.
Thompson then appealed the matter to the District Court. The
District Court reversed the Board's decision and remanded the
matter to the Board, determining that the decision not to renew
Thompson's certification was clearly erroneous because it was not
supported by substantial evidence. The court also concluded that
5
the Hearing Examiner had allowed an unqualified witness, held out
as an "expert," to l'excuse obviously false and vindictive testimony
to support OPI's refusal to renew Gerald Thompson's teaching
certificate." The court further stated that the Hearing Examiner
had used allegations of non-school related conduct--Hutchinson's
allegations--to support that conclusion. The court stated that a
review of the record left the court with the definite and firm
conviction that a mistake and an injustice had been committed. The
court held that Thompson's procedural and substantive due process
rights had been violated by the actions of the Judith Basin County
Attorney, on behalf of the School Board and OPI, and that such
actions shocked the conscience of the court. The court further
held that the admission of improper expert testimony deprived
Thompson of the fundamental fairness mandated by due process.
OPI appeals the District Court's reversal of the Board's
decision to this Court. The following quote from the Proposed
Order of the Hearing Examiner aptly describes the seriousness of
the case before us:
Although the decision in this matter is as difficult as
any I have made as a hearings examiner, there are certain
things which are clear. From the testimony of numerous
witnesses it is beyond refute that Mr. Thompson was a
talented and respected teacher, coach and administrator.
If the charges are untrue a high caliber professional has
had his life's work ruined. However, if the charges are
true he is a sexual predator who should not be in a
position of power and authority with women and girls and
the licensing agency would be remiss if it allowed Mr.
Thompson to be licensed as a teacher.
Further facts are provided throughout this opinion as may be
necessary for discussion.
ISSUE I
Did the District Court err in reversing the Order of the Board
of Public Education based on the expert testimony provided by
OPI's expert?
OPI presented a drug and alcohol counselor to provide
testimony as an expert witness on sexual abuse. OPI's expert
provided the only expert testimony at the hearing. Her testimony
formed the basis for the Hearing Examiner's findings that Thompson
attempted to have sexual relations with Killham on December 9,
1986, and with Hutchinson in 1987. As to the allegations made by
K.W. and Mrs. Aamold, the Hearing Examiner determined that their
allegations were not credible.
Although the testimony and the allegations of abuse made by
both Killham and Hutchinson were fraught with inconsistencies and
contradictions which the Hearing Examiner stated would seem to make
them improbable, the examiner disregarded these inconsistencies
based on the expert's testimony. The findings include the
following statements concerning the drug and alcohol counselor's
testimony as used by the examiner to support Killham's credibility:
The stories of the two main complaining witnesses
are troubled by inconsistencies and contrary evidence.
However, OPI presented expert testimony that
inconsistencies are part of the normal pattern of
behavior for sexual abuse or sexual harassment victims.
The e x p e r t is a counselor with extensive training
in sexual abuse and extensive experience in counseling
victims. I found her testimony credible.
. .
The inconsistencies begin immediately. [Killham's]
letter to the school board . . . alleges that she was
forced to actually perform oral sex with Mr. Thompson on
that day. [The inconsistency is that at the time of
hearing Killham testified that Mr. Thompson asked her to
perform oral sex but that she did not do so.] The boys'
teams had played their first games of the season prior to
December 9. It is illogical that Lisa would be getting
practice jerseys on December 9, since the jerseys would
have been handed out to the team members long before.
The teacher whom she testified interrupted the assault
has no recollection of going to the storage room and
finding Lisa and Mr. Thompson. Mr. Thompson established
he went to his dentist's office that afternoon to receive
his allergy shot and was there for an hour or more . . .
This left very little time for the incident to occur.
The librarian, where Lisa was working as an aide around
the time of the incident recalls Lisa being very happy
and excited about her eighteenth birthday. Lisa wrote a
note in Mr. Thompson's practice book that day, after the
incident was alleged to have occurred. She wrote "Lisa's
B-day" and drew a happy face.
.
The inconsistencies would seem to make Lisa's
allegations improbable. However, my interpretation of
the sexual abuse expert's testimony is that blocking out
abusive incidents from memory is a self-preservation
mechanism commonly employed by victims and that later
recollection tends to come back slowly and incompletely
and in a jumbled fashion, and that it is common for the
victim to put up a facade of normalcy. This is logical
and consistent with Lisa's testimony.
. .
Again, the sexual abuse expert testified victims
tend to be those who appear to be vulnerable and lacking
in self-esteem. Lisa fits that profile. . .
The following statements by the Hearing Examiner relate to
Hutchinson's testimony:
Again there are inconsistencies. Tammy stopped to see
Mr. Thompson at the school and at home on a later visit
to Hobson, making a point to introduce her friend from
college. At a basketball game she sat with Mr. Thompson
and engaged in conversation the entire time. This
behavior again fits that of an abuse victim. I find Mrs.
Hutchinson to be a very credible witness to which Mr.
Thompson's only response is that this did not happen when
she came to his house that night. I find her testimony
true, and I find that the incident did occur.
Clearly, the assumption that these two young women were victims of
8
sexual abuse pervades the Hearing Examiner's findings and the
conclusions. We emphasize that the conduct of Killham and
Hutchinson as above-quoted, while it arguably may fit within the
profile of victims, could also fit many other explanations. Other
explanations for their behavior were not ruled out, nor were they
addressed. Moreover, the incident alleged by Hutchinson, if true,
occurred at Thompson's home and long after she graduated from high
school. It is insufficient in itself to support the Board's
action, and it was arguably inappropriate to use it to buttress the
charge brought by Killham which the Hearing Examiner found had
occurred.
The Hearing Examiner's conclusion that the abusive incidents
occurred hinged on the drug and alcohol counselor's testimony as an
expert on sexual abuse. The District Court concluded that the
Hearing Examiner "improperly relied on concededly incredible
testimony which was erroneously bolstered by inadmissible testimony
of an unqualified expert." This conclusion raises two separate
issues--whether the testimony was admissible and whether the expert
was qualified to testify. For the reasons explained below, we
conclude the Hearing Examiner erred in basing his decision on the
inadmissible testimony and, therefore, we decline to address the
qualification of the expert witness.
Standard of Review
On appeal, the District Court determined that OPI's expert had
testified that the abuses alleged by Killham and Hutchinson had
occurred and that her testimony should not have been admitted.
9
Like other decisions concerning the admissibility of evidence, a
ruling on whether expert testimony is admissible is left to the
discretion of the trial judge. State v. J.C.E. (19881, 235 Mont.
264, 269, 767 P.2d 309, 312; State v. Harris (19911, 247 Mont. 405,
410, 808 P.2d 453, 455. Similarly, the determination of whether a
witness is qualified as an expert is left to the discretion of the
trial judge, who has wide latitude in making such determinations.
J.C.E., 767 P.2d at 312. Citing the general rule in Montana that
experts may not testify on an ultimate issue, the District Court in
this case determined that the ultimate issue was whether the
alleged acts had occurred and that the expert had testified that
the acts alleged really did occur, thereby invading the province of
the trier of fact. See Heltborg v. Modern Machinery (lPPO), 244
Mont. 24, 29-33, 795 P.2d 954, 957-59.
Was the expert's testimonv admissible?
Admissibility of expert testimony in administrative
proceedings is an issue which has not been thoroughly addressed by
this Court. The Montana Administrative Procedure Act (MAPA), at 5
Z-4-612(2), MCA, provides that agencies are bound by common law and
statutory rules of evidence, except as otherwise provided by
statute relating directly to an agency. Often the hearing examiner
in a formal contested case hearing will admit the evidence and will
consider the weight to be given to such evidence when preparing
findings and conclusions from all the evidence. Although the Rules
of Evidence are generally more relaxed in an administrative
proceeding than in a court of law, they are not to be relaxed to
10
the point of disregarding due process of law and the fundamental
rights of the individual. Hert v. J.J. Newberry Co. (1978), 178
Mont. 355, 364, 584 P.2d 656, 661. While our discussion in this
case draws on other areas of the law in reaching conclusions, OUI
opinion is directed only to the administrative hearing process.
Although this case centers around the allegations of high
school students, and the two incidents relied on by the Hearing
Examiner involved an eighteen-year-old and a nineteen-year-old, our
discussion is permeated with references to child sexual abuse
without reference to age as that is how it was presented at the
administrative hearing and argued in briefs in this Court by the
parties and by amici curiae.
In a criminal case, the question whether a child is a victim
of sexual abuse is a question that may be clarified by qualified
expert testimony. Harris, 808 P.2d at 456. As a general rule,
however, expert testimony evaluating the credibility of witnesses
is not admissible. We have adopted an exception to this general
rule in cases where the witness is a child victim of sexual
assault, testifies at trial and credibility is brought into
question. J.C.E., 767 P.2d at 312-13; Harris, 808 P.Zd at 455.
OPI relied on this exception to introduce otherwise inadmissible
evidence to rebut the impeachment evidence provided by Thompson.
We have not addressed to an appreciable degree in the area of
criminal law at what age such rehabilitative evidence is no longer
appropriate and we have not indicated that it is appropriate to
consider it up to and beyond the age of attaining majority. Most
11
of our cases addressing this subject involve young children. 1n
State v. Donnelly (1990), 244 Mont. 371, 378, 798 P.2d 89, 93,
however, we discussed expert testimony on credibility in relation
to a victim who was fifteen years old at the time she testified,
but who had been sexually abused prior to that time. In Donnellv,
798 P.2d at 93, an expert was allowed to provide testimony to
rehabilitate the credibility of the victim.
In State v. Hensley (1991), 250 Mont. 478, 481, 821 P.2d 1029,
1031, the victim was a month shy of her seventeenth birthday when
she testified that she had been abused over a five-year period. We
concluded that admitting the expert testimony in Hensley was
reversible error where the victim was sixteen years old, a
competent witness and was under no physical or mental disability.
Hensley, 821 P.2d at 1032. We reasoned that the jury was capable
of assessing the credibility of such a witness without resort to
expert assistance. If the present case were a criminal
prosecution, no foundation had been laid which would warrant
admission of expert testimony.
In our present case, the allegations were made to the School
Board. Those allegations triggered criminal charges which were
later dismissed. The charges were made by adults and by one minor,
K.W., age sixteen in 1988 at the time she made the allegations.
Although Killham was still in high school, she reached eighteen on
the very day of the alleged act which the Hearing Examiner found
had occurred. She made the allegations nearly two years later.
The question then is whether there was a proper basis or foundation
12
for expert testimony in the present case to rehabilitate the
credibility of the witnesses.
The cases which have come before this Court involving sexual
abuse have raised difficult evidentiary questions. Harris, 808
P.2d at 456. Much of the litigation regarding such abuse has
challenged the suitability of using experts' opinions to determine
if a particular person was a victim of sexual abuse. It has
involved issues of hearsay and whether the conduct exhibited by the
alleged victim was consistent with conduct demonstrated by victims
of sexual abuse in general. It has often related to the
unavailability of the child victim for purposes of testifying, as
well as the normally inadmissible out-of-court statements of very
young children. In such cases, if the victim was unable to relate
information about an alleged offense in a courtroom setting,
crucial probative evidence may have been lost.
We have summarized the foregoing to emphasize that none of the
foregoing applies in the present case. Here the grave danger by
the admission of such expert testimony was demonstrated with
clarity when the expert testified in general statements about
delays in reporting abuse, recantations and inconsistencies in
testimony of sexual abuse victims; and her general statements were
relied upon by the Hearing Examiner. We emphasize here that, while
the present case involved an administrative proceeding, the
constitutionally protected interest of Thompson in his right to
employment as a teacher was directly involved. At that point, the
effect of inadmissible testimony becomes most significant. In
13
Harris, 808 P.2d at 456, we stated:
While we recognize that expert testimony regarding the
sometimes puzzling and seemingly contradictory behavior
of victims of child sexual assault may aid the jury to
determine ultimate issues, such as whether the crime
actually occurred, we must be careful not to allow the
witness to become a conduit for otherwise inadmissible
testimony.
With regard to generalized credibility testimony as presented in
the present case, the rationale for allowing expert testimony to
explain delays in reporting or recantations of charges of sexual
abuse by victims is that it provides reliable information which the
trier of fact can use to assist in understanding evidence. While
qualified experts possess specialized knowledge regarding certain
aspects of credibility, their capacity to detect lying and coaching
is too limited to justify admission of generalized credibility
testimony. John E.B. Myers, Expert Testimony in Child Sexual Abuse
Litisation, 68 Neb. L. Rev. 1, 127 (1989).
Thus, without an explanation, an expert's general statements
that delays and recantations are common in victims of sexual abuse
may prejudice the accused because the trier of fact may defer to
the expertise of the expert in the field of child sexual abuse and
infer that the expert believes the witness to be credible. This is
exactly what happened in the present case. It is the reason that
expert testimony on credibility is not permitted in most instances.
In addition to her testimony about delays in reporting abuse
and recanting prior allegations of abuse, OPI's expert repeatedly
testified, in reference to inconsistent testimony, that memory may
be affected in that a victim's memory of the facts may be unclear,
14
garbled or blurred due to the trauma involved and the resultant
shock used as a buffer by the victim. Again, we note that her
testimony relates to victims of sexual abuse in general, not
specifically child victims.
The key testimony by the expert here Was that the
inconsistencies in the testimony and the contrary nature of some of
the testimony was explained by the alleged sexual abuse, yet the
record indicates that other explanations for the inconsistencies
are possible. Thompson's counsel objected to each of the
hypothetical questions posed to the witness. He based some of the
objections on lack of foundation and relevancy and had a continuing
objection as well to the testimony from this expert witness.
As above cited, Henslev established that where a victim was
sixteen years old, a competent witness, and under no physical or
mental disability, it was reversible error to admit expert
rehabilitation testimony. As we have indicated, the record here
contains nothing to establish that any of the witnesses, all of
whom were over eighteen years of age at the time of the hearing,
were for some reason not competent as witnesses or were under any
form of physical or mental disability. We therefore conclude that
there was a failure to establish a foundation for the use of any
expert testimony under Henslev. As a result, we hold that the
testimony on the part of the expert was not admissible.
ISSUE II
Did the District Court err in concluding that the Order of the
Board of Public Education was not supported by substantial
credible evidence?
15
The Rules of Evidence were developed to assure that triers of
fact formulate their decisions on reliable, probative and
substantial evidence. MAPA acknowledges this concept in providing
standards of review for administrative agency decisions in 5 2-4-
704, MCA. We have interpreted 5 2-4-704, MCA, to mean that an
agency's findings of fact are reviewed to determine whether they
are clearly erroneous. Baldridge v. Rosebud County School Dist.
#19 (1994), 264 Mont. 199, 205, 870 P.2d 711, 714. In addition,
the court may not substitute its judgment for that of the Board as
to the weight of the evidence on questions of fact. Baldridqe, 870
P.2d at 717; § 2-4-704(2), MCA. In order to properly review the
District Court's decision, we must review the Board's findings--
identical to those of the Hearing Examiner in this case--to
determine whether they are supported by reliable, probative and
substantial evidence in the record. Baldridqe, 870 P.2d at 718,
(quoting Trustees, Carbon County School Dist. No. 28 v. Spivey
(1993), 262 Mont. 513, 521, 866 P.2d 208, 213).
The District Court determined that certain of the Hearing
Examiner's findings and conclusions WeZCe not supported by
substantial credible evidence when the expert's testimony was
disregarded. OPI contends that the District Court had to
substitute its judgment for that of the Hearing Examiner and
reweigh the evidence on critical matters of fact in order to
determine that the findings were not supported by substantial
evidence and were thus clearly erroneous. We disagree.
Our holding in Issue I approved the District Court's ruling
16
that the Hearing Examiner had abused his discretion by considering
the testimony of OPI's expert for any purpose. In the proper case,
where there are no independent findings of fact to support the sort
of action taken by the court here, further action on the part of
the Board may be necessary. However, in this case, no purpose
would be served by requiring the Board to hear the matter anew or
to remake findings and conclusions consistent with the excision of
the expert's testimony. The Board adopted all the findings and
conclusions of the Hearing Examiner, and the findings and
conclusions were sufficiently comprehensive so that the court could
modify the Board's order, provided there is substantial evidence in
the record to support them.
The District Court's Order contains sufficient detail of facts
with references to the transcript and other evidence in the record
so that this Court is able to determine that the District Court
thoroughly reviewed the record. There are two critical findings
which the District Court modified after disregarding the expert's
testimony. The court reversed the findings of the Hearing Examiner
which determined that the inconsistencies and contradictions in the
testimony somehow made the claims of sexual misconduct credible,
even though all other evidence pointed to the opposite conclusion.
The first was the conclusion that the sexual misconduct incident
alleged by Killham to have occurred on December 9, 1986, the day of
her eighteenth birthday, did not occur. The other was that the
allegation made by Hutchinson did not occur and was irrelevant to
the issue of renewing Thompson's teacher certification.
17
The common thread in these findings is the impact of the
expert's testimony:
OPI presented expert testimony that inconsistencies are
part of the normal pattern of behavior for sexual abuse
or sexual harassment victims. The expert . is a
counselor with extensive training in sexual abuse and
extensive experience in counseling victims. I found her
testimony credible.
. .
The inconsistencies would seem to make Lisa's
allegations improbable. However, my interpretation of
the sexual abuse expert's testimony is that blocking out
abusive incidents from memory is a self-preservation
mechanism commonly employed by victims and that later
recollection tends to come back slowly and incompletely
and in a jumbled fashion, and that it is common for the
victim to put up a facade of normalcy. This is logical
and consistent with Lisa's testimony.
. . .
. . . Lisa was also apparently preoccupied with
romance and sexual matters and would tell anyone who
would listen the most intimate information.
Again, the sexual abuse expert testified victims
tend to be those who appear to be vulnerable and lacking
in self-esteem. Lisa fits that profile. Lisa's story of
a December 9, 1986 assault is corroborated by three
fellow students whom she told of the incident at the
time. Lisa's testimony that Mr. Thompson got her out of
class to perform managerial duties is consistent with
past practice. Laurie Valentine's testimony that Lisa
was very upset before practice is consistent with Lisa's
testimony. Although Mr. Thompson accounted for a period
of an hour or more, there was time for the incident to
occur. I find Mr. Thompson had Lisa leave her class on
December 9, 1986, on the pretense of performing a task in
the equipment room and when he had gotten her to that
room he attempted to force her to perform oral sex.
Regardless of anything else I find this assault occurred.
One crucial item of testimony which the Hearing Examiner did not
consider is that Thompson was teaching a boys physical education
class during the class period when the incident allegedly occurred.
18
The Hearing Examiner determined that Thompson had accounted for his
time during 6th period but did not consider the unrebutted
testimony that he was teaching this class during 7th period.
The District Court did not reweigh the evidence pertaining to
Killham's allegation. Instead, the court disregarded the testimony
of the expert, was then left with the Hearing Examiner's finding
that the inconsistencies seemed to make Killham's allegation
improbable and considered the unrebutted probative evidence that
Thompson was not free during Killham's 7th period when she claimed
he took her from the library, and concluded that the reliable,
probative and substantial evidence left in the record supported no
other finding than that Killham was not a credible witness.
OPI contends the court could only reach this conclusion by
determining first that Killham's testimony was not credible and
then making the second determination that the testimony of Laura
Valentine, Alynn Mikkelson and Amy Otchko Cummings was not
credible. Valentine, Mikkelson and Cummings all testified that
Killham told them about the alleged incident which occurred on her
birthday, December 9, 1986. They all related substantively
differing stories about what Killham had told them on that day.
The Hearing Examiner used the testimony of these witnesses as
evidence to corroborate Killham's claim that Thompson propositioned
her on December 9, 1986.
The testimony of these three witnesses also contradicted
Killham's testimony which was that she had told no one about the
alleged incident. Numerous witnesses testified that Killham had a
19
"crush" on Thompson while she was in high school and that she was
obsessed with things of a romantic and sexual nature and would
relate the most intimate information to anyone who would listen.
The core details of the stories Killham allegedly told these three
girls differ. For example, Valentine testified that Killham told
her she was forced to perform oral sex on Thompson; the others
testified that she told them that Thompson had only asked her to do
this. Mikkelson testified that Killham had also told her that she
had been forced to perform oral sex on Thompson on an occasion when
he drove her home after she had been babysitting his child. Not
only did Killham testify that this did not occur, she also
testified that she did not tell Mikkelson about this incident.
Valentine also testified about an encounter with K.W. shortly
after the incident K.W. alleged had happened with Thompson in the
summer of 1986. K.W.'s testimony pertaining to that event was that
she had only told one person, Dawn Hall, about the incident, and
that she had not related it to Valentine. The Hearing Examiner did
not find Valentine's testimony credible with regard to K.W.'s
accusations. However, this is the same sort of testimony the
examiner found believable to support the finding that Killham's
alleged sexual abuse incident on December 9, 1986 had occurred.
.
This and other contradictions in the evidence are so prevalent
throughout the testimony as to properly allow a conclusion that
Killham's claim was thoroughly impeached. We conclude there is
substantial evidence in the record for the court to find that
Killham's claim was thoroughly impeached.
20
The District Court also determined that Hutchinson's claim was
thoroughly impeached. First, Hutchinson claimed to be deeply
traumatized by the alleged incident where she claimed Thompson, in
his home, had tried to kiss her and had put his hand on her leg
before she pushed him away. Yet, she repeatedly visited him
thereafter and even brought a college friend to his office to meet
him. The District Court determined that she had "embellished her
claim further with a description of an alleged conversation with
Killham shortly after the alleged Hutchinson incident (in Spring
'87) .I' In relating her story that she contacted Killham right
after that incident, she spoke of the incident in her testimony as
if Killham had been out of high school at the time of their
conversation when, in fact, Killham was still a senior in high
school at that time. After the alleged incident of sexual
misconduct made by Hutchinson, while home from college, Hutchinson
also sat with Thompson for the duration of a basketball game and
engaged in conversation the entire time.
The Hearing Examiner found Hutchinson to be a "very credible
witness to which Mr. Thompson's only response is that this did not
happen when she came to his house that night." The Hearing
Examiner found that her behavior "fit that of an abuse victim."
The Hearing Examiner essentially stated that the testimony of
Killham and Hutchinson was made credible after impeachment by the
expert's testimony. As we have held above, the testimony of the
expert concerning general statements about the behavior of victims
of sexual abuse was error. The District Court correctly concluded
21
that the Hearing Examiner's findings that Hutchinson and Killham
were victims of abuse are not supported by substantial evidence in
the record.
The District Court reviewed the entire record to determine
whether substantial evidence supported the Hearing Examiner's
findings. Only by reviewing the entire record would the District
Court have been able to come to the conclusions thoroughly outlined
in the court's detailed order supporting the decision to reverse
the Board's decision. The court looked for reliable, probative and
substantial evidence as directed by § Z-4-702, MCA, to support them
and found such evidence either lacking or not considered by the
Hearing Examiner in forming his conclusions. When the expert's
testimony is properly disregarded, the other findings of the
Hearing Examiner do not support a conclusion that Thompson is not
of good moral and professional character.
Because the Hearing Examiner's findings and the Board's order
were based on improper evidence in the form of expert testimony and
the clearly erroneous findings that Killham's and Hutchinson's
allegations were true because their credibility was restored, the
Board's order cannot stand. The Hearing Examiner's findings and
conclusions in this case contain sufficient independent statements
from which the District Court could reverse the Board's decision
without requiring new findings and conclusions from the record.
We hold the District Court did not err in concluding that the
Board's decision was not supported by substantial credible evidence
and should be reversed.
22
Affirmed.
We Concur:
Chief Justice
Justices
Justice W. William Leaphart did not participate in this decision
because he was not on the Court at the time of its submission.
23
March 23, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, t
following named:
KATHLEEN F. HOLDEN
Special Assistant Attorney General
P.O. Box 202501
Helena, MT 59620-2501
Torger S. Oaas
Attorney at Law
P.O. Box 16
Lewistown. MT 59457
El’ * ‘* A. ’ Best
izaoern -
BEST LAW OFFICES, P.C.
Box 2114
Great Falls, MT 59403-2114
HON. JOSEPH P. MAZUREK, Attorney Ge neral
Kimberly A. Kradolfer, Assistant
215 N. Sanders
Helena, MT 59620
Douglas F. Bates
Attorney at Law
2 5 0 East 500 South
Salt Lake City, UT 84111
ED SMITH
CLERK OF THE SUPREMECOURT
STATE OF MONTANA
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