No. 01-492
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 97
STEPHEN C. PATTERSON,
Petitioner and Respondent,
v.
STATE OF MONTANA, DEPT. OF JUSTICE,
MOTOR VEHICLE DIVISION,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Edward P. McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary Henricks, City Attorney's Office, Missoula, Montana
For Respondent:
Jeffrey Sutton, Attorney at Law, Great Falls, Montana
Submitted on Briefs: January 31, 2002
Decided: May 9, 2002
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Appellant State of Montana, Department of Justice, Motor
Vehicle Division, appeals from an order issued by the Fourth
Judicial District Court, Missoula County, which granted Respondent
Stephen Patterson’s petition to reinstate his driver’s license. We
affirm.
¶2 The sole issue on appeal is whether the District Court erred when it reinstated
Patterson’s driver’s license based on the State’s failure to comply with an order compelling
production of a 9-1-1 report.
BACKGROUND
¶3 On December 14, 2000, the Missoula County 9-1-1 dispatch
center received an anonymous report of an unconscious male slumped
over the wheel of a vehicle. Missoula City Police Officer Keith
Hedges was dispatched to the scene. At the scene, Officer Hedges
found Patterson draped over the steering wheel of a running vehicle
fast asleep. Hedges shut the vehicle off, verified that Patterson
was breathing, and awoke him to inquire into his condition. During
the exchange, Hedges detected a strong odor of alcohol on
Patterson’s breath. Hedges also observed that Patterson had
bloodshot, glassy eyes and a slurred speech.
¶4 At that point, Hedges asked Patterson to exit the vehicle and
perform various standardized field sobriety tests. Following the
completion of three tests, Hedges read a breath test advisory to
Patterson and requested that Patterson submit a sample for a
preliminary breath test. Patterson refused to submit a breath
2
sample. Consequently, Hedges arrested Patterson for driving under
the influence of alcohol and seized his driver’s license.
¶5 On December 27, 2000, Patterson filed a notice of counsel,
plea of not guilty, and request for jury trial. On December 29, 2000,
Patterson sent a letter to the State requesting a “transcribed copy of any 911 or dispatch calls
related to this incident, including any calls received by anonymous tipsters.” The State
subsequently responded that Patterson would have to independently obtain the report from
the 9-1-1 dispatch center. On January 2, 2001, Patterson filed a petition which challenged
the suspension of his driver’s license pursuant to § 61-8-403, MCA. Ultimately, following a
motion to continue, the District Court set the matter for a reinstatement hearing on March 15,
2001. On March 6, 2001, Patterson served the State with discovery requests which sought,
among other things, a transcribed copy of the 9-1-1 report. Subsequently, the District Court
continued the hearing to May 10, 2001.
¶6 On May 10, 2001, the parties appeared for the hearing. Prior
to the hearing, Patterson filed another motion to continue on the
grounds that the State had not provided him with a transcribed copy
of the 9-1-1 report. The District Court heard arguments from both
parties on the motion and continued the hearing to May 17, 2001.
However, the District Court warned the State that if it failed to
produce the report by May 17, 2001, the Court would reinstate
Patterson’s driver’s license and dismiss the suspension.
¶7 On May 17, 2001, the parties appeared before the District
Court for the reinstatement hearing. The State informed the
District Court that it was unable to obtain a copy of the 9-1-1
3
report. Therefore, the District Court granted Patterson’s petition
for reinstatement of his driver’s license. The State appeals the
District Court’s order of reinstatement.
4
STANDARD OF REVIEW
¶8 This Court generally defers to the decision of a trial court regarding sanctions for
failure to comply with discovery procedures because the trial court is in the best position to
know whether parties are disregarding the rights of opposing parties in the course of
litigation and which sanctions for such conduct are most appropriate. McKenzie v. Scheeler
(1997), 285 Mont. 500, 506, 949 P.2d 1168, 1172. As a result, we review a district court’s
imposition of sanctions for failure to comply with discovery procedures to determine whether
the court abused its discretion. McKenzie, 285 Mont. at 506, 949 P.2d at 1172.
DISCUSSION
¶9 Did the District Court err when it reinstated Patterson’s driver’s license based on the
State’s failure to comply with an order compelling production of a 9-1-1 report?
¶10 On appeal, the State argues that § 61-8-403, MCA, explicitly
confines a driver’s license reinstatement inquiry to enumerated
issues. The State insists that the requested 9-1-1 report contains
information beyond the purview of those specified issues.
Therefore, according to the State, the District Court erred in
granting Patterson’s petition, on discovery grounds, because
Patterson failed to show that the report contained relevant
information essential to the issues at hand. Further, the State
suggests that the District Court abused its discretion in levying
the ultimate sanction, i.e., the equivalent of a dismissal, as
Patterson was not prejudiced by the State’s inability to produce
the requested information.
5
¶11 This Court has consistently stated that a party’s abuse of
discovery procedures which results in unnecessary delay of a case
should not be dealt with leniently; transgressors should be
punished rather than encouraged repeatedly to cooperate in the
discovery process. Delaware v. K-Decorators, Inc., 1999 MT 13, ¶
87, 293 Mont. 97, ¶ 87, 973 P.2d 818, ¶ 87. Concerns related to
crowded dockets and the responsibility to maintain fair and
efficient judicial administration have shifted the traditional
reluctance to impose discovery-related sanctions to a judicial
intolerance of discovery abuses. Smith v. Butte-Silver Bow County
(1996), 276 Mont. 329, 332, 916 P.2d 91, 92. Thus, the imposition
of sanctions for failure to comply with discovery procedures is
regarded with favor. McKenzie, 285 Mont. at 506, 949 P.2d at 1172.
¶12 We agree with the State that § 61-8-403, MCA, limits a
district court’s inquiry at a driver’s license reinstatement
proceeding to certain enumerated issues. Indeed, we have
reaffirmed this proposition on numerous occasions. See, e.g.,
State v. Krause, 2002 MT 63, ¶ 26, 309 Mont. 174, ¶ 26, ___ P.3d
___, ¶ 26; Hulse v. State, Dep’t of Justice, 1998 MT 108, ¶ 11, 289
Mont. 1, ¶ 11, 961 P.2d 75, ¶ 11; Thompson v. Department of Justice
(1994), 264 Mont. 372, 376, 871 P.2d 1333, 1336. However, a
hearing held pursuant to § 61-8-403, MCA, is a civil proceeding,
and, therefore, must be conducted in accordance with the Montana
Rules of Civil Procedure. See Thompson, 264 Mont. at 376, 871 P.2d
at 1335 and Rule 1, M.R.Civ.P.
6
¶13 Rule 34(a), M.R.Civ.P., provides that any party may serve on
any other party a request to produce documents or any tangible
things which constitute or contain matters within the scope of Rule
26(b), M.R.Civ.P. Rule 26(b)(1), M.R.Civ.P., authorizes a party to
“obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action . . .
.” Finally, Rule 34(b), M.R.Civ.P., provides:
The party upon whom the request is served shall
serve a written response within 30 days after the service
of the request, except that a defendant may serve a
response within 45 days after service of the summons and
complaint upon that defendant . . . . The response shall
state, with respect to each item or category, that
inspection and related activities will be permitted as
requested, unless the request is objected to, in which
event the reasons for objection shall be stated.
¶14 On March 6, 2001, Patterson served the State with a number of
interrogatories, requests for admission, and requests for
production, which included the following:
REQUEST FOR PRODUCTION NO. 12.: Please produce a
transcribed copy of all 911, dispatch, or any other radio
broadcast communications made or received by any law
enforcement official, medical personnel, fire and rescue
personnel, or citizen informant in regards to this
matter.
On April 5, 2001, the State answered the above request as follows:
RESPONSE: The [State] has requested that 911
produce a copy of the 911 tape prepared in relation to
[Patterson’s] arrest. If and when it is made available
to the City Attorney’s Office, a copy of the tape will be
made available for [Patterson’s] inspection, review, and
copying. If [Patterson] chooses to make a transcript of
7
the tape after it has been made available to [Patterson],
the [State] has no objection to [Patterson] doing so.
¶15 The rules of civil procedure are premised upon a policy of
liberal and broad discovery. Burlington Northern v. District Court
(1989), 239 Mont. 207, 216, 779 P.2d 885, 891. Therefore, we must
begin with the presumption that the 9-1-1 report was relevant,
discoverable information. If, as the State now suggests, Patterson
requested irrelevant information outside the scope of the
reinstatement hearing, the State had the affirmative obligation to
object to the request or file a motion with the District Court to
limit discovery. The State did neither. As such, the District
Court also had to proceed under the assumption that Patterson
appropriately requested discoverable information pursuant to Rule
26(b), M.R.Civ.P.
¶16 As of May 10, 2001, the date purportedly set for the
reinstatement hearing, the State had not produced a copy of the 9-
1-1 report. Therefore, on that date, the District Court held a
telephonic conference whereby it informed the parties that it would
continue the hearing until May 17, 2001. Thus, the District Court
provided the State with one more opportunity to comply with the
request. However, the District Court warned that if “the State has
not furnished a copy of the call to 911 by that time, I’ll
reinstate the driver’s permit and dismiss the suspension.” On May
17, 2001, the State conceded that it could not locate a tape of the
9-1-1 call. Accordingly, the District Court granted Patterson’s
petition for reinstatement of his driver’s license.
8
¶17 The District Court’s order reinstating Patterson’s driver’s
license cited no authority for its ultimate determination. It
simply granted Patterson’s petition because the State “failed to
comply with the Court’s Order . . . requiring full discovery
disclosure by the time of this hearing.” Essentially, the District
Court sanctioned the State for its shortcomings by entering a
default judgment in favor of Patterson. Therefore, we presume from
the language utilized by the Court, that it acted pursuant to Rule
37(b)(2), M.R.Civ.P., and, for purposes of this appeal, we will
evaluate the District Court’s determination accordingly.
¶18 Rule 37(b)(2), M.R.Civ.P., provides:
Sanctions by court in which action is pending. If a
party . . . fails to obey an order to provide or permit
discovery, . . . the court in which the action is pending
may make such orders in regard to the failure as are just
and among others the following:
. . . .
(C) An order striking out pleadings or parts
thereof, or staying further proceedings until the order
is obeyed, or dismissing the action or proceeding or any
part thereof, or rendering a judgment by default against
the disobedient party.
Clearly, on May 10, 2001, the District Court ordered the State to
produce the 9-1-1 report. Further, on May 17, 2001, the State
conceded that it could not produce the report. Therefore, the
District Court was justified in levying sanctions against the State
in accordance with Rule 37(b)(2)(C), M.R.Civ.P. However, the
District Court was authorized to enter such orders as were “just.”
Consequently, for purposes of this appeal, the inquiry hinges on
9
whether the District Court abused its discretion in levying the
sanction it did.
¶19 Subject to the remedial purposes justifying Rule 37,
M.R.Civ.P., sanctions for discovery abuses and our aforementioned
deferential policy regarding the imposition of the same, we have
identified three factors which we consider in determining whether a
sanction constitutes an abuse of discretion. We look to: 1)
whether the consequences imposed by the sanctions relate to the
extent and nature of the actual discovery abuse; 2) the extent of
the prejudice to the opposing party which resulted from the
discovery abuse; and 3) whether the court expressly warned the
abusing party of the consequences. Maloney v. Home and Investment
Center, Inc., 2000 MT 34, ¶ 35, 298 Mont. 213, ¶ 35, 994 P.2d 1124,
¶ 35.
¶20 At the core of our analysis lies the above mentioned
presumption of relevance surrounding Patterson’s request for the 9-
1-1 report, given the State’s failure to object otherwise. The
State insists on appeal that the report contained information
beyond the scope of the reinstatement hearing, and, therefore,
contends that Patterson suffered no prejudice from its failure to
produce. However, due to the obligations placed upon the parties
by the Montana Rules of Civil Procedure, for purposes of this
appeal, we must treat the requested report as relevant information.
¶21 As such, the State’s failure to relinquish the relevant
information certainly compromised Patterson’s ability to prepare
and present an informed challenge at the impending proceeding.
10
Common sense and fundamental fairness suggest that no party should
be forced to proceed under such a “cloud of uncertainty.”
Consequently, we conclude that the reinstatement of Patterson’s
driver’s license relates to the extent and nature of the actual
discovery abuse. Further, the State’s inability to provide the
information essentially suspended the case’s progress. When a
party’s failure to comply with discovery procedures effectively
halts the discovery process, it results in impermissible prejudice
to the opposing party. McKenzie, 285 Mont. at 516, 949 P.2d at
1177. Therefore, the State’s disregard for the discovery process
and procedures was, in itself, prejudicial to Patterson. Finally,
the District Court expressly warned the State of the potential
consequences for noncompliance with its order.
¶22 We do not disagree with the dissent’s relevance analysis and,
in all likelihood, the case would have compelled a different result
had the State propounded such a position, as prescribed by the
Montana Rules of Civil Procedure. However, the State did not
proceed in such a manner. Consequently, we do not share the
dissent’s sentiment that the discovery analysis diverted the
District Court’s or this Court’s attention from any underlying
substantive issue.
¶23 In its response to Patterson’s request for production, the
State claimed that it would provide Patterson with a copy of the
report “[i]f and when it is made available to the City Attorney’s
Office.” Simply put, the State failed to assert a timely objection
to Patterson’s request for production with the District Court. On
11
appeal, the State finally raises the relevance issue and requests
that we come to its aid via a finding of an abuse of discretion.
The District Court did not contemplate the relevance argument,
absent notification from the parties, and we will not allow the
State to avail itself of a position that was not properly
preserved. The record before the District Court simply revealed
that the State had not divulged presumably discoverable information
in the face of a judicial order to compel such production. In
these days of crowded dockets and strained judicial resources,
practitioners must abide by the applicable rules of procedure for
courts to maintain some semblance of order. As litigants often
enjoy the benefits and protections afforded by the Montana Rules of
Civil Procedure, they should likewise be prepared to accept the
consequences for noncompliance. Accordingly, we hold that the
District Court did not abuse its discretion when it granted
Patterson’s petition for reinstatement of his driver’s license.
¶24 Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ PATRICIA COTTER
12
Justice James C. Nelson dissents.
¶25 I dissent from the Court's decision. The discovery issue
is nothing but a red herring. The 9-1-1 tape was irrelevant under
the undisputed facts here.
¶26 The proceeding at issue involved Patterson's challenge
to the suspension of his driver’s license under § 61-8-403, MCA.
It is well settled that under this statute the trial court's review
is limited to three issues: (1) whether a peace officer had
reasonable grounds to believe that the person had been driving or
was in actual physical control of a vehicle upon the ways of this
state open to the public while under the influence of alcohol,
drugs, or a combination of the two; (2) whether the person was
placed under arrest; and (3) whether the person refused to submit
to the test for the presence of alcohol or drugs in the person's
body. Gentry v. State, Dept. of Justice (1997), 282 Mont. 491,
495, 938 P.2d 693, 695. 1
1
The 1999 version of the Montana Code applies in the
case sub judice. The version of the code at issue in Gentry
was the 1995 version. While the language of
§ 61-8-403(4)(a), MCA (1995), varies somewhat from § 61-8-
403(4)(a), MCA (1999), the basic three elements of inquiry
articulated in Gentry remain the same--at least as applied
in the instant case.
13
¶27 In the case at bar, there are no disputed questions of
fact as to (2) and (3). See ¶¶ 3-4 of the majority opinion. That
leaves (1) as the only issue for the trial court's review.
¶28 Typically, the sort of case before us here starts with the
stop of the accused's vehicle by a police officer based on a
traffic violation or erratic driving. The accused
characteristically claims that there was no particularized
suspicion or reasonable grounds for the stop. See, for example,
Grindeland v. State, 2001 MT 196, ¶ 9, 306 Mont. 262, ¶ 9, 32 P.3d
767, ¶ 9. Indeed, we have held that in a hearing to reinstate a
driver's license, the trial court must first look to whether a
peace officer had a "particularized suspicion" for making the
initial stop. Morris v. State, 2001 MT 13, ¶ 8, 304 Mont. 114, ¶
8, 18 P.3d 1003, ¶ 8. Keeping that premise in mind, the only
possible relevance that the 9-1-1 tape would have had to the
proceedings at bar was whether the arresting officer had reasonable
grounds in "stopping" Patterson.
¶29 However, here, as ¶ 3 of the Court's opinion reflects, there
was no initial stop. Patterson was passed out, drunk, slumped over
the steering wheel, with his vehicle running. The record also
reflects that Patterson's vehicle was parked on a public street--
North Pattee Street--in Missoula.
¶30 Importantly, Officer Hedges did nothing as a result of the 9-
1-1 tip that he could not have done without the tip. Had he simply
come upon a vehicle parked on a public street, with the motor
running and the driver passed out over the steering wheel, Officer
Hedges would have had the authority--in fact, a duty--to
14
investigate further, whether based on reasonable suspicion that the
driver was intoxicated, see State v. Morris (1988), 230 Mont. 311,
749 P.2d 1379, or under the "welfare check" doctrine, see State v.
Boyer, 2002 MT 33, ¶ 11, 308 Mont. 276, ¶ 11, 42 P.3d 771, ¶ 11
(citing Grinde v. State (1991), 249 Mont. 77, 81, 813 P.2d 473,
476, overruled on other grounds by Bush v. Montana DOJ, Motor
Vehicle Div., 1998 MT 270, 291 Mont. 359, 968 P.2d 716).
¶31 While I do not condone the State's sloppy discovery practice
and while, in some other case, the 9-1-1 tape may have been crucial
in determining whether the initial stop was based on particularized
suspicion (compare State v. Pratt (1997), 286 Mont. 156, 951 P.2d
37), in the context of this case, the 9-1-1 tape was irrelevant.
Why or how Officer Hedges came to be at Patterson's vehicle matters
not at all since there was no stop. Our case law permitted Officer
Hedges to do exactly what he did, regardless of what prompted his
appearance at Patterson's vehicle.
¶32 I agree that sanctions are an important method of enforcing
discovery obligations in civil and criminal cases alike. However,
punishing a party for failing to produce irrelevant evidence is
nothing but a sanction for sanction's sake and has no legitimate
purpose.
¶33 On the undisputed facts here, I would reverse, vacate the
trial court's decision, and order Patterson's driver's license
suspension to be reinstated. I dissent from our failure to do so.
/S/ JAMES C. NELSON
Justices W. William Leaphart and Jim Rice concur in the foregoing
dissent.
15
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
16