School Districts v. Human Rights Co

/3&4
No. ft36%F
IN TKE SUPREME COURT OF THE STATE OF MONTANA
1977
SCHOOL DISTRICT NO. 7, BOZEMAN, MONTANA;
OPHIR SCHOOL DISTRICT NO. 72, GALLATIN
COUNTY, MONTANA ; WILLOW CREEK SCHOOL
DISTRICT No. 15, GALLATIN COUNTY, MONTANA;
THREE FORKS SCHOOL DISTRICT No. 24, GALLATIN
COUNTY, MONTANA,
Plaintiffs and Respondents,
VS.
HUMAN RIGHTS COMMISSION, STATE OF MONTANA,
AND RAYMOND D. BROWN, Administrator
thereof,
Defendants and Appellants.
Appeal from: District Court of the Eighteenth Judicial District,
Honorable Nat Allen, Judge presiding.
Counsel of Record:
For Appellant:
.
Rosemary B Zion, Helena, Montana
For Respondent:
Donald E. White
County Attorney's Office, Bozeman, Montana
Brian Sullivan, argued, Bozeman, Montana
Submitted: June 7, 1977
Decided : 2a
- I
d.
dL14 1'"
Filed:
Clerk.
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Defendants appeal from an order of the district court,
Gallatin County, denying their motion for change of venue to
Lewis and Clark County.
Plaintiffs are four school districts in Gallatin County.
They brought an action against the defendants, Human Rights
Commission, State of Montana, and Raymond D. Brown, its adminis-
trator, seeking a writ of prohibition, or in the alternative to
quash defendants' interrogatories. The action sought to halt
proceedings of the defendants in investigating complaints filed
with the Commission concerning alleged discriminatory practices
of the school districts in violation of what we will call the
anti-discrimination act, section 64-301, et.seq., R.C.M. 1947.
The petition alleges defendants' submission of interrogatories
and attempted interrogation of administrators of plaintiff school
districts violates plaintiffs' constit~tionalrights against self-
incrimination under the federal and state constitutions. Fifth
Amendment, United States Constitution; Art.11, Section 25, 1972
Montana Constitution.
The district court entered an order prohibiting defendants
from compelling plaintiffs to answer the interrogatories sent
to them and quashing the interrogatories during the pendency of
the action, and set a hearing on making the order permanent.
Thereafter, among other things, defendants filed a motion
for change of venue to Lewis and Clark County. Following sub-
mission of briefs, the district court denied defendants' motion
for change of venue. Defendants appeal from that order.
The i s s u e on appeal i s whether venue i s properly i n G a l l a t i n
County o r Lewis and Clark County.
Defendants contend t h a t venue properly l i e s i n Lewis and
Clark County under s e c t i o n 93-2902(2), R.C.M. 1947, because t h a t
i s where " t h e cause, o r some p a r t t h e r e o f , arose". They claim
t h e s i t u s of o f f i c i a l a c t s of a public agency o r o f f i c i a l i s i n
t h e county of o f f i c i a l residence which i s t h e decision-making
hub from which a l l o f f i c i a l a c t s emanate, h e r e Lewis and Clark
County. Defendants view p l a i n t i f f s ' p e t i t i o n a s an a c t i o n t o
l i m i t o r e x t i n g u i s h t h e i r s t a t u t o r y i n v e s t i g a t i v e powers; thus
they contend t h a t t h e underlying question i s whether they may
e x e r c i s e t h e i r i n v e s t i g a t i v e powers a t a l l and not whether t h e
e f f e c t s of t h e i r a c t i v i t i e s a r e f e l t i n G a l l a t i n County.
They c i t e Lunt v. Division of Workmen's Compensation (1975),
167 Mont. 251, 537 P.2d 1080, i n support of t h e i r venue claim,
and contend t h a t Guthrie v. Department of Health and Environ-
mental Sciences, e t a l . (1977), Mont . , 561 P.2d 913,
34 St.Rep. 155, does not r e q u i r e a c o n t r a r y r e s u l t . Additionally,
they claim t h a t public policy a g a i n s t d i s s i p a t i n g t h e time and
resources of s t a t e agencies i n defending t h e i r a c t i o n s a t f a r -
flung l o c a t i o n s throughout t h e s t a t e of Montana supports t h e i r
p o s i t i o n on venue. They deny t h a t p l a i n t i f f s ' r i g h t a g a i n s t s e l f -
incrimination i s involved i n determining venue; they say such
c o n s t i t u t i o n a l r i g h t can only be a s s e r t e d by a n a t u r a l person
and n o t a governmental e n t i t y [United S t a tes v: White (1944),
322 U.S. 694, 64 S. Ct. 1248, 88 L ed 15421 and t h e r i g h t cannot
be invoked a s a general b a r t o inquiry, b u t can only be a s s e r t e d
t o s p e c i f i c d i s c l o s u r e s sought [Kastigar v. United S t a t e s (1972),
406 U.S. 441, 92A S.Ct. 1653, 32 L ed 2d 2121.
P l a i n t i f f s , on the other hand, agree t h a t section 93-2902
governs venue i n t h i s a c t i o n , but disagree a s t o the nature of
t h e i r a c t i o n and where i t a r i s e s . They view t h e i r a c t i o n a s
fundamentally one t o e s t a b l i s h and give e f f e c t t o t h e i r c o n s t i t u -
t i o n a l r i g h t against self-incrimination. They a s s e r t t h a t a l l
of the conduct of defendants which they seek t o p r o h i b i t occurred
i n G a l l a t i n County; t h a t i s where t h e cause of a c t i o n arose,
and t h a t i s where venue l i e s . They c i t e Guthrie v. Department
of Health and Environmental Sciences, supra; and the California
case Cecil v. Superior Court (1943), 59 C.A.2d 793, 140 P.2d 125,
i n support of t h e i r position.
The s t a t u t e c o n t r o l l i n g venue i n t h i s case i s s e c t i o n 93-
2902, which provides i n p e r t i n e n t p a r t :
"Actions f o r t h e following causes must be t r i e d i n
the county where t h e cause, o r some p a r t t h e r e o f ,
arose * * *.
"2. Against a public o f f i c e r , o r a person s p e c i a l l y
appointed t o execute h i s d u t i e s , f o r an a c t done by him
i n v i r t u e of h i s o f f i c e ; o r against a person who, by h i s
command o r i n h i s a i d , does anything touching t h e d u t i e s
of such officer."
A "public o f f i c e r " within the meaning of t h i s s t a t u t e encompasses
a governmental agency which can only a c t through i t s public
o f f i c e r s and employees. Lunt v. Division of Workmen's Compensa-
t i o n , supra. Thus defendant Human Rights Commission, a s well a s
defendant Brown i t s administrator, i s a public o f f i c e r within t h e
meaning of t h i s s t a t u t e .
The crux of venue i n t h i s case i s where "the cause, o r some
p a r t thereof, arose" within the meaning of s e c t i o n 93-2902. Prior
decisions of t h i s Court have a l l turned upon t h i s question with
varying r e s u l t s , depending upon our view of the nature of the
a c t i o n involved i n each case.
In Montana-Dakota Utilities Co. v Public Service Commission
.
(1940), 111 Mont. 78, 107 P.2d 533, an action to enjoin enforcement
of an order of the Commission reducing utility rates for natural
gas service in Valley and Phillips Counties, this Court held
that venue was properly in Valley County where the action was
originally filed, rather than Lewis and Clark County the official
residence of the Commission and the place where the order was
issued. Venue was determined-underthe statutory predecessor of
section 93-2902 on the basis that plaintiff sought relief from
operation of the order which would occur in Valley and Phillips
Counties where the cause of action arose.
State ex rel. Fulton v. District Court (1961), 139 Mont.
573, 366 P.2d 435, an original petition seeking a writ of prohibi-
tion to restrain the district court of Cascade County from further
proceeding with an action against the State Board of Equaliza-
tion relating to its regulations concerning the corporation license
tax, contains dictum to the effect that section 93-2902 requires
the action to be filed in Lewis and Clark County, the official
residence of the Board and the place where the regulations were
issued.
Gildroy v. Anderson (1972), 159 Mont. 325, 497 P.2d 688,
was an action for injunction to prevent the governor of Montana
from implementing an executive order establishing multi-county
planning and administration districts and changing the composition
of existing districts. We held venue properly belonged in Lewis
and Clark County, the county of the governor's official residence,
rather than Musselshell County, one of the affected counties. We
construed the objective of plaintiff's complaint as a challenge to
an official act of the governor, allegedly exceeding his power and
a u t h o r i t y v i s - a - v i s t h e s t a t e l e g i s l a t u r e , r a t h e r than a
challenge t o t h e merits of t h e operation of t h e executive o r d e r
i n r e d i s t r i c t i n g t h e a f f e c t e d counties.
I n Lunt v. Division of workmen's Compensation, supra, an
a c t i o n f o r a w r i t of mandate t o compel t h e s t a t e agency t o s e t
a hearing on p e t i t i o n e r ' s claim f o r worker's compensation bene-
f i t s , we held venue property belonged i n Lewis and Clark County,
t h e s i t u s of t h e agency's o f f i c e , r a t h e r than Yellowstone County
where t h e a c t i o n was f i l e d , because t h e a c t i o n only involved a
f u n c t i o n of t h e agency's o f f i c e s i n Lewis and Clark County.
F i n a l l y , i n Guthrie v. Montana Department of Health and
Environmental Sciences e t a l . , surpa, w e again looked t o t h e
n a t u r e of t h e a c t i o n i n holding t h a t venue properly l a y i n Teton
County r a t h e r than Lewis and Clark County. This was an a c t i o n by
r e c r e a t i o n a l and business u s e r s of land i n Teton County near a
subdivision development a g a i n s t t h e S t a t e Department of Health,
t h e Teton County Commissioners and t h e subdivision developers.
The a c t i o n sought an i n j u n c t i o n a g a i n s t t h e defendants t o r e s t r a i n
f u r t h e r a c t i o n t h a t would p h y s i c a l l y a l t e r t h e land i n t h e sub-
division u n t i l s a n i t a r y r e s t r i c t i o n s were properly l i f t e d and
p l a t approval properly secured. W construed t h e n a t u r e of t h e
e
a c t i o n a s seeking t o r e s t r a i n a l l e g e d i r r e p a r a b l e harm t o Teton
County land. Accordingly, we held Teton County was where t h e
a c t i o n a r o s e and where venue was proper.
The r o o t of t h e venue i s s u e i n t h e i n s t a n t case i s t h e con-
f l i c t i n g view of t h e p a r t i e s a s t o t h e n a t u r e of t h e a c t i o n .
P l a i n t i f f s contend t h e i r a c t i o n fundamentally involves t h e i r con-
s t i t u t i o n a l r i g h t a g a i n s t s e l f - i n c r i m i n a t i o n being denied them
by conduct of defendants i n G a l l a t i n County. Defendants claim
plaintiffs' action is basically an attack seeking destruction
or at least limitation of their statutory powers and authority
to investigate complaints of discrimination under the act.
The merits of plaintiff&' action are not before us. Conway
v. Fabian, 103 Mont. 574, 63 P.2d 1022. Venue must be deter-
mined on the basis of the allegations in plaintiffs' petition.
Johnson v. Clark, 131Mont. 454, 311 P.2d 772. In our view,
the gist of plaintiffs' petition is that their constitutional
right against self-incrimination is allegedly being infringed
upon by defendants' investigatory activities and conduct in
Gallatin County which they seek to arrest by a writ of prohibi-
tion. Plaintiffs' attack is not upon the statutory power and
authority of the Commission to investigate complaints under the
anti-discrimination act. Rather it is an attack on the Comis-
sion's method or manner of exercising those powers in conducting
its investigation in Gallatin County, in alleged violation of
constitutional guarantees. The attack is not upon the statutory
powers of the Commission, but upon the conduct of defendants in
Gallatin County in the exercise or operation of those powers.
The cause of action arose in Gallatin County because the conduct
of defendants there allegedly violated constitutional rights of
Gallatin County residents and entities. Thus venue properly lies
in Gallatin County under section 93-2902. Public policy considera-
tions do not change our view.
We have considred the remaining contentions of defendants
but consider them irrelevant to venue. They attack the merits
of plaintiffs' petition, which is not before us on this appeal
The order of the district court denying a change of venue to
Lewis and Clark County is affirmed.
Justice.
We Concur:
Justices.
M r . J u s t i c e Daniel J . Shea s p e c i a l l y concurring :
I concur i n t h e venue decision and t h e Court's r e f u s a l
t o consider t h e merits of defendants' claim t h a t p l a i n t i f f s
a s e n t i t i e s , were a s s e r t i n g c o n s t i t u t i o n a l r i g h t s t h a t belonged
only t o i n d i v i d u a l s . The d i s t r i c t c o u r t has n o t y e t r u l e d on
t h a t question. However, t h e d i s t r i c t c o u r t and t h i s Court
should have considered t h e obvious c o n f l i c t of i n t e r e s t which t h e
attorney
county/has i n a s s e r t i n g s e l f - i n c r i m i n a t i o n r i g h t s f o r h i s c l i e n t s .
The c o n f l i c t i s between h i s function a s prosecuting a t t o r n e y
of G a l l a t i n County and h i s function a s c i v i l l e g a l advisor t o
t h e school d i s t r i c t s and t r u s t e e s . One of those functions must
p r e v a i l , and s i n c e t h e county would be without a prosecutor
i f he chose h i s duty t o be c i v i l a d v i s o r t o t h e school d i s t r i c t s
and t r u s t e e s , t h e duty t o prosecute must p r e v a i l . The school
d i s t r i c t s involved should h i r e an independent lawyer.
Under s e c t i o n 16-3101, R.C.M. 1947, it i s t h e function of
each county a t t o r n e y t o "conduct on behalf of t h e s t a t e , a l l
prosecutions f o r p u b l i c o f f e n s e s * * *." The a n t i - d i s c r i m i n a -
t i o n a c t , s e c t i o n 64-312, R.C.M. 1947, provides t h a t a w i l l f u l
v i o l a t i o n of t h e a c t , whether i n committing a p r o h i b i t e d a c t
o r i n i n t e r f e r i n g with t h e a c t i v i t i e s of t h e Human Rights Commis-
s i o n , i s a misdemeanor f o r which one can be f i n e d and j a i l e d .
Therefore, any v i o l a t i o n of t h i s a c t may u l t i m a t e l y f a l l i n t h e
l a p of t h e county a t t o r n e y t o prosecute. I n f a c t , t h e r e i s no
o t h e r o f f i c i a l who can b r i n g a c r i m i n a l prosecution under t h e
anti-discrimination a c t . Under these circumstances t h e county
a t t o r n e y has no r i g h t t o prevent t h e d i s c l o s u r e of evidence
which may be incriminating. Rather, i t i s h i s duty t o o b t a i n
the evidence and to prosecute if he determines there is a
criminal violation. To allow him to proceed in this case is to
strip the people of Montana of a prosecutor in Gallatin County
for criminal proceedings under the anti-discrimination act.
Section 75-8305.1, R.C.M. 1947, expressly provides school
districts may hire independent counsel in the event of a conflict
of interest. The county attorney should advise the school boards
they should retain independent counsel if they desire to raise
the privilege against self-incrimination as a defense to the
interrogatories propounded by the Human Rights Commission. If
the county attorney will not voluntarily withdraw from the case,
the district court should order that he withdraw and that
plaintiffs hire independent counsel.
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2
Justice.