Spear v. MPERA

October 13 2015
DA 15-0320
Case Number: DA 15-0320
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 297N
OBER E. SPEAR,
Plaintiff and Appellant,
v.
MONTANA PUBLIC EMPLOYEE
RETIREMENT ADMINISTRATION
and the STATE OF MONTANA,
Respondents and Appellees.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 10-1326
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Ober E. Spear (self-represented); Billings, Montana
For Appellees:
Melanie A. Symons, Special Assistant Attorney General; Helena, Montana
Timothy C. Fox, Montana Attorney General, Matt Cochenour, Assistant
Attorney General; Helena, Montana
Submitted on Briefs: August 26, 2015
Decided: October 13, 2015
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Ober E. Spear appeals from the order of the Montana Thirteenth Judicial District,
Yellowstone County, granting summary judgment in favor of the Montana Public
Employee Retirement Administration (MPERA) and the State of Montana. We affirm.
¶3 Spear was employed by the Montana Highway Patrol (MHP) as a highway patrol
officer from 1958 to 1962. When he left MHP he applied for, and was denied, disability
retirement with the State Highway Patrol Board. The denial of that application was
upheld in this Court on January 10, 1967. Spear v. State Highway Patrol Ret. Bd.,
149 Mont. 7, 422 P.2d 348 (1967). On November 27, 1964, Spear was notified that he
would not be reinstated as a patrolman because he was not of sound and active physical
condition. In addition, MHP Colonel Mike Tooley certified on August 31, 2009, that
Spear was no longer an employee of the MHP and had not been with the patrol during
Tooley’s tenure which began in 1982.
¶4 In July 2010, pursuant to advice from its legal department, MPERA began making
“required minimum distribution” (RMD) payments to Spear. MPERA determined
that, based on Spear’s age, his RMD payments should have commenced on or before
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April 1, 2000, and continued every year thereafter. Under this calculation, MPERA paid
out Spear’s benefits by check in July 2010.
¶5 Spear refused to cash the check and instead filed a complaint against MPERA in
the Thirteenth Judicial District in Yellowstone County alleging wrongful disbursement of
his retirement account funds. In the suit Spear also claimed he was still an employee of
the MHP and retained his status as an injured trooper on leave. Spear requested punitive
damages for “malicious” payment of his retirement benefits.
¶6 On June 25, 2013, MPERA moved for summary judgment arguing the facts
showed without dispute that Spear was no longer employed by the MHP, that MPERA is
required to pay retirement benefits to Spear under state and federal law, that payment of
those benefits was not malicious, and finally, Spear’s employment status was settled in
this Court in Spear v. State of Montana, 2012 MT 161N. The District Court granted
summary judgment in MPERA’s favor on April 20, 2015.
¶7 We review de novo a district court’s grant of summary judgment using the same
standards as the district court under M. R. Civ. P. 56. Tin Cup Cnty. Water v. Garden
City Plumbing & Heating, Inc., 2008 MT 434, ¶ 21, 347 Mont. 468, 200 P.3d 60.
Accordingly, a moving party is entitled to summary judgment when no genuine issues of
material fact exist and the moving party is entitled to judgment as a matter of law.
Wagner v. Woodward, 2012 MT 19, ¶ 16, 363 Mont. 403, 270 P.3d 21.
¶8 On appeal, Spear contends that the District Court erred when it determined he was
no longer an employee of the MHP and MPERA properly disbursed payments to Spear
from his MHP retirement account. To support his argument, Spear insists that he was
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permanently appointed as a MHP officer, that he never resigned, and he remains on leave
without pay. Spear also argues that payment of his MPERA retirement benefits is
wrongful because he is still an employee of the MHP on leave without pay. Spear
believes that acceptance of his retirement would be an admission that he is no longer an
officer.
¶9 MPERA counters that the determination regarding Spear’s employment status
was made in Spear and that the issue has already been determined under stare decisis.
Spear, ¶ 10. MPERA also contends that pursuant to I.R.C. § 401(a)(9) (26 U.S.C.
§ 401(a)(9)) and §§ 19-2-908 and 19-2-1007, MCA, MPERA was required to commence
distribution payments to Spear.
¶10 On review of the record, we find no reason to revisit Spear’s employment status
with MHP. Based upon our decision in the 2012 Spear case, Spear is not a current
employee of the MHP because his employment was “terminated” in 1962. Spear, ¶ 10.
Spear’s arguments on appeal fail to raise any new issue regarding our prior determination
regarding his employment.
¶11 Next, we agree with MPERA’s argument that, as fiduciaries of the public
retirement system, MPERA properly followed state and federal law when it paid benefits
to Spear as a former employee of the MHP. Under § 19-2-908(1)(a), MCA, MPERA
may “on its accord and without a written application, begin benefit payments to a
member or beneficiary in order to comply with section 401(a)(9) of the Internal Revenue
Code.” Operating under its duty and this statute, MPERA correctly commenced payment
of Spear’s benefits because he was no longer working at the MHP. MPERA’s actions
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were proper because it was acting to comply with federal tax law requirements regarding
retirement benefit payments. Spear’s allegation that he was not terminated in 1962, that
he is still an employee, and thus cannot receive retirement benefits because he is an
officer on leave without pay, is not substantiated by facts or law. The determination in
our 2012 Spear decision found the opposite conclusion. Spear, ¶ 10. Spear raises no
genuine issue of material fact demonstrating a mistake with MPERA’s determination to
pay out his benefits. Therefore, we conclude that MPERA correctly dispersed Spear’s
benefits as required by federal and Montana law.
¶12 Based on the briefs and record in this case the District Court properly granted
summary judgment pursuant to M. R. Civ. P. 56, because the Court correctly applied the
law to the undisputed facts. Spear’s employment was terminated in 1962 and MPERA
has properly disbursed Spear’s retirement benefits according to federal and Montana law.
¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court’s ruling was not an
abuse of discretion.
¶14 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
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