No. 83-430
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
JIM FORD,
Plaintiff and Appellant,
MONTANA DEPARTMENT OF FISH, WILDLIFE
A 3 PARKS, and its Director, JAMES W.
TD
FLYNN ,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Boone, Karlberg & Haddon, Missoula, Montana
For Respondents:
Stan Bradshaw, Dept. of Fish, wildlife and Parks,
Helena, Montana
Submitted on Briefs: December 8, 1983
Decided: February 2, 1984
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
On Ju3.y 15, 1983, the District Court for the Fourth
lTudicial District, Missoula County, filed a memorandum and
order granting the Department of Fish, Wildlife and Park's
motion for change of venue. The Department also filed a
motion to quash the writ of mandate filed April 26, 1983; the
parties stipulated that the venue issue be resolved first.
We reverse the District Court's order.
Ford, a long-time employee of the Department, was a
regional- supervisor in Missoula at the time this action
arose. The Department's Director Jim Flynn, by letter dated
April 21, 1983, notified Ford that he was to be demoted as of
April 28, 1983 to the position of land resource supervisor in
Missoula.
On April 26, 1983, Ford filed an application for writ of
mandamus or other appropriate writ alleging, inter alia that
he did not have an adequate remedy at law. He asked the
court to issue an appropriate writ requiring the Department
to allow Ford to remain regional supervisor at least pending
determination of the application for the writ.
An order for issuance of writ was signed on April 26,
1983 and an alternative writ of mandate was filed April 28,
1983, setting a show cause hearing and ordering that during
the interim Ford was to maintain the position of regional.
supervisor. A consolidated motion for change of venue and to
quash the alternative writ was filed by the Department,
whereafter the parties stipulated that the venue question be
decided first.
The issue raised is whether the venue was properly
changed to Lewis and Clark County by the District Court. We
find Missoula County to be the proper venue.
The Department contends that the proper venue for this
case is in Lewis and Clark County, as dictated by the general
rule that venue in a mandamus action is proper "in the county
where the public official, whose act the petitioner seeks to
compel, resides," as found in Cabinet Resource Group v.
Montana Department of State Lands (Mont 1980), 616 P.2d 310,
313, 37 St.Rep. 1493, 1496 and McGrath v. Dore (1978), 177
Mont. 178, 180, 580 P.2d 1385, 1386.
Ford contends that an absolute rule of venue in mandamu-s
actions should not be applied by this Court. He argues that
the proper county here is Missoula County, as that is where
the cause of action arose. The alleged misconduct (stated as
the basis for the demotion) took place in Missoula and that
is where the Director's acts will be felt. He calls for
development and application of a liberal venue rule which is
applied according to the circumstances of a case, rather than
according to classifications such as mandamus, prohibition,
or injunction.
In its order, the District Court in this case granted
the change of venue to Lewis and Clark County, relying on the
cases of Lunt v. Division of Workers' Compensation (1975),
167 Mont. 251, 537 P.2d 1080, and Cabinet Resource Group v.
Montana Department of State Lands, supra.
Lunt involved an alleged failure by the Montana Workers'
Compensation Division to set a hearing on the plaintiff's
claim for compensation. This Court found that, because the
alleged failure involved the function of the Division's
offices in Lewis and Clark County, that is where the cause
arose and must be tried. 167 Mont. at 253.
This Court in Cabinet found Lewis and Clark County to be
the proper place for trial where the plaintiffs were alleging
violation of state Law by the Montana Department of State
Lands and the Montana Department of Health and Environmental
Sciences, both located in Lewis and Clark County. 616 P. 2d
Although a general rule in mandamus actions was
enunciated and applied in McGrath v. Dore, supra and Cabinet,
it is not an absolute rule and should not be used to
circumvent the goal of providing a forum which is practical
and convenient for the plaintiff. This Court in Guthrie v.
Montana Department of Health and Environmental Sciences
(1977), 172 Mont. 142, 146, 561 P.2d 913, 915, cited with
approval Regents of University of California v. Superior
Court, 91 Cal. Rptr. 57, 476 P.2d 457, 461, where the
Calfornia Supreme Court said:
"The underlying purpose of statutory provisions as
to venue for actions against state agencies is to
afford to the citizen a forum that is not so
distant and remote that access to it is impractical
and. expensive. To that end, such provisions should
be liberally construed in favor of the private
litigant."
A plaintiff may initially choose the forum for a case.
If the county chosen is improper, a court must, on motion,
change the place of trial. Section 25-2-201, MCA: Guthrie,
supra. But i.f venue properly lies in the county designated
in the complaint a motion for change must not be granted.
Shields v. Shields (1943), 115 Mont. 146, 139 P.2d 528.
We are urged by the Department that this cause should be
tried in Lewis and Clark County, according to the following
statute:
"Actions against a public officer or person
specially appointed to execute his duties for an
act done by him in virtue of his office or against
a person who, by his command or in his aid, does
anything touching the duties of such officer must
be tried in the county where the cause or some part
thereof arose, subject to the power of the court to
change the place of trial." Section 25-2-105, MCA.
But also applicable is Section 2-9-31.2, MCA (enacted in
"(1) Actions against the state shall be brought in
the county in which the cause of action arose or in
Lewis and Clark County. In addition, a resident of
the state may bring an action in the county of his
residence."
Section 2-9-312, MCA provides for venue when the state is
sued; Section 25-2-105 applies when a public official is
sued. In this case both the Department of Fish, Wildlife and
Parks - its Director, James W. Flynn were named in the
and
application for a writ..
When two statutes are a.pplicable, the more specific
controls to the extent of any inconsistency between it and
the more general. State v. Montana Department of Publ-ic
Service Regulation (1979), 181 Mont 225, 593 P.2d 34. But
here, neither statute is the more specific and there are no
inconsistencies, so the two must be harmonized. Both set
proper venue where the cause of action (or some part thereof)
arose. A cause of action Ifa.riseswhen it springs up,
originates, comes into being, becomes operative, presents
itself." Bergin v. Temple (1944), 111 Mont. 539, 546, 111
P. 2d 286, 289. Here, the position held by Ford, to which he
claims he is entitled and from which he was to be demoted, is
located in Missoula. He was to be demoted to a position in
Missoula. Therefore, at least a part of the cause of action
arose in Missoula, and Missou1.a County is a proper place for
trial.
By basing our decision on these criteria we are giving
effect to the rule previously stated by this Court that in
determining the proper venue of a case, a court must consider
the nature of the action and the place where it arose.
Cabinet Resource Group v. Montana Department of State Lands
(Mont 1980), 616 P.2d 310, 37 St.Rep. 1493; Roundup National
Bank v. Department of Revenue (19771, 175 Mont. 133, 572 P.2d
910; Guthrie v. Montana Department of Health and
Environmental Sciences (1977), 172 Mont. 142, 561 P.2d 913.
It is not the ma.ndamus aspect of the case, but the fact that
the challenged state action concerns and will affect a person
and a position in Missoula that controls here. "It is not
the mere making of the order, but the place where it is put
in operation, that determines where the cause of action
arose." Montana-Dakota Utilities Company v. Public Service
Commission (1940), 111 Mont. 78, 80, 107 P.2d 533, 534.
We are also giving effect to both section 25-2-105 and
section 2-9-312, MCA. Although Lewis and Clark County may be
a proper venue, according to the above-stated rules, Missoula
County is also. We determine that Missoula County is a
proper county of venue in this case.
The District Court erred in granting the cha-nge of
venue. The order so stating is reversed, and the cause
remanded for further proceedings.
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Justice
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We Concur: