No. DA 06-0388 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 130

YELLOWSTONE COUNTY, JAMES RENO and DWIGHT VIGNESS, Petitioners and Respondents,

v. ROBERTA DREW, Respondent and Appellant, and MONTANA HUMAN RIGHTS COMMISSION, Respondent.

APPEAL FROM: The District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 2005-0512, Honorable David Cybulski, Presiding Judge

COUNSEL OF RECORD: For Appellant: Timothy C. Kelly, Kelly Law Office, Emigrant, Montana For Respondents Yellowstone Count y, James Reno and Dwight Vigness: Calvin J. Stacey, Stacey and Funyak, PC., Billings, Montana For Respondent Montana Human Rights Commission: Marieke Beck, Special Assistant Attorney General, Helena, Montana

Submitted on Briefs: December 13, 2006 Decided: June 5, 2007Filed:

__________________________________________ Clerk

2Justice Patricia O. Cotter deliver ed the Opinion of the Court. ¶1 Following administrative proceedings and the ensuing Human Rights Commission (HRC) decision stemming from a claim by Robe rta Drew that Yellowstone County and two county commissioners, James Reno and Dwight Vigness, had di scriminated against her in a hiring decision, Drew appealed certai n aspects of the decisi on of the HRC to the First Judicial District Court for Lewis and Clark County in Helena, Montana. Shortly thereafter, Yellowstone County and the two Commissioners appealed other aspects of the HRC decision to the Thirteenth Judicial District Court for Yellowstone County, Montana. The Thirteenth Judicial Distri ct Court ordered that the two appeals be consolidated and presided over by the First Judicial District Court in Lewis and Clark County. Drew appeals. We vacate and remand. ISSUE ¶2 A restatement of the issue on appeal is whether the Thir teenth Judicial District Court, Yellowstone County, erred in ordering consolidation in Lewis and Clark County of Petitions for Judicial Appeal file d there and in Yellowstone County. FACTUAL AND PROCED URAL BACKGROUND Administrative Proceedings ¶3 In November 2002 when Roberta Drew wa s the chief deputy public defender for Yellowstone Country in Billings, Montana, Drew applied for the vacant position of interim chief public defender fo r the County. Subsequently a male was selected to fill the position. In December 2002 Dr ew filed a Charge of Discri mination with the State of Montana Department of Labor and Industry (DOLI) alleging that Yellowstone County

3and two county commissioners, James Reno and Dwight Vigness (hereinafter collectively referred to as Yellowstone C ounty or the County), had unlaw fully discriminated against her. She maintained in her Petition that the County had denied he r an equal employment opportunity based on her gender and political ideas. In Ju ly 2003 DOLI notified Drew that her charges would proceed to a contested case hearing. The parties stipulated to extended departmental jurisdiction. ¶4 The contested case hearing wa s held over several days between February and May 2004. On November 5, 2004 , DOLI issued its Final Agen cy Decision in which it found in favor of Drew on some issues and in favor of the County on others. The County appealed and Drew cross-a ppealed DOLI’s ruling to the Montana Human Rights Commission (HRC or the Commission), a quasi -judicial board responsible for hearing appeals of final agency decisions by DOLI. On April 18, 2005, th e Commission affirmed DOLI’s final decision. ¶5 On April 20, 2005, Drew file d a Petition for Judicial Revi ew in the First Judicial District Court for Lewis and Clark County in Helena, Montana. Thereafter, on May 10, 2005, Yellowstone County filed a Petition for Judicial Revi ew in the Thirteenth Judicial District Court for Yellowstone County. In an effort to mi nimize the confusion occasioned by the dual pendency of proceeding s in two different counties, we recount below by county—rather than by overall chro nology—the proceedings which took place in the district courts. Proceedings in First Judicial Dist rict Court, Lewis and Clark County

4¶6 In addition to filing its petition for review with the Thirteenth Judicial District Court on May 10, 2005, Yellows tone County also filed a response to Drew’s Petition for Judicial Review in Lewis and Clark County. It denied the allegations contained in Drew’s Petition and requested a scheduling conf erence for briefing d eadlines and an oral argument date. In the meantim e, Drew had filed a motion in Yellowstone County to change venue of the County’s Yellowstone County proceedings to Lewis and Clark County. On September 21, 20 05, the First Judicial District Court acknowledged the change of venue motion pending in Yell owstone County and ordered a scheduling conference for December 5, 2005. ¶7 On May 4, 2006, 1 the First Judicial District Court for Lewis and Clark County issued its Order on Drew’s Petition for Judici al Review. The Lewis and Clark District Court noted that Drew did not challenge HRC’s factual find ings but raised two legal issues only: (1) whether she wa s entitled to fees and costs fo r a specific segment of the administrative proceedings; a nd (2) whether the h earing examiner erred by failing to issue a statutorily-required injunction agains t the individual commissioners Reno and Vigness. The Lewis and Clark court remanded the issue of attorney fees and costs to the hearing officer for further proceedings with instructions to develop appropriate factual findings and legal conclusions. The court also granted Drew’s request for a modification of the final HRC Order by amending the Order to include a statutory injunction against

1 As indicated below, while the Thir teenth Judicial District Court i ssued its consolidation order in February 2006, the First Judicial District C ourt did not reference in its May 2006 Order the consolidation order or the facts and issues presen ted in the Thirteenth Judicial District Court proceedings.

5Reno and Vigness. On May 31, 2006, Yellowston e County appealed the Lewis and Clark District Court Order to this Court. In July 2006 we dismissed the appeal without prejudice stating that it was premature b ecause the matter had been remanded to the hearing officer. We note that with the exception of Drew’s Petition, the County’s request for a scheduling hearing, and the court’s order, the record of the Firs t Judicial District Court proceeding is not before us; therefore, we make no determinations based on the contents of that record or the arguments presented in the documents therein. Proceedings in Thirteenth Judicial District Court, Yellowstone County ¶8 On May 10, 2005, in additio n to responding to Drew’s Lewis and Clark District Court petition for review of H RC order, the County filed a Pe tition for Judicial Review of the same HRC order in the Thir teenth Judicial District Cour t for Yellowstone County in Billings. On May 14, 2005, Dr ew moved the Yellowstone Co unty District Court for an order changing the venue of the County’s a ppeal to Lewis and Clark County. In the alternative, she sought dismi ssal of the County’s petition for review in the Thirteenth Judicial District Court. The County oppos ed Drew’s motion. Neither party asked the Yellowstone County District Court to consolid ate the two separate appeals; however, the District Court sua sponte requested that the parties brief the issue of consolidation. The County complied and argued that consol idation was inappropriate because it was presenting different issues on appeal than did Drew in her First Judicial District Court appeal. Drew respectfully declined to brief the consolidatio n issue and instead requested a ruling on her motion for a change of venue.

6¶9 In February 2006 the Thirteenth Judicial District Court consolidated both appeals and held that because the first petition in time was filed by Drew in Helena, the consolidated cases would go forw ard in the First Judicial District Court. In early April 2006 Drew filed a timely appeal to this Court on the ground that the Thirteenth Judicial District Court erred in failing to rule on her motion for a cha nge of venue or for dismissal. ¶10 We vacate the Thirteenth Judicial Dist rict Court’s order and remand the matter with instructions to the Thirteenth Judicial District Cour t to grant Drew’s motion for a change of venue of the County’s appeal to the First Judicial District Court. STANDARD OF REVIEW ¶11 In the case before us, the Thirteenth Judici al District Court in terpreted and applied M. R. Civ. P. 42(a) (Rule 42(a)) providing for consolidation of actions. We review a district court’s interpretation and appli cation of a procedural rule de novo. State v. Mizenko , 2006 MT 11, ¶ 8, 330 Mont. 299, ¶ 8, 127 P.3d 458, ¶ 8 (citation omitted). DISCUSSION ¶12 As noted above, Drew filed a charge of discrimination w ith DOLI against Yellowstone County, Reno and Vigness. Upon issuance of DOLI’s ruling, the County sought review by the Human Rights Commission. Drew also appealed the agency ruling, seeking modification of certain conclusions of law. When HRC affirmed DOLI’s ruling, Drew immediately sought review by the Lewis and Clark County District Court, challenging those legal rulings which she had sought unsu ccessfully to modify. The County sought a review of its own in Ye llowstone County, cha llenging all factual

7findings and legal conclusions that were adve rse to it and favorabl e to Drew, including the award of damages to Drew and the agency ’s imposition of injunctive relief against Yellowstone County. ¶13 Review of administrative decisions is authorized under the Montana Administrative Procedure Act (MAPA). Unde r § 2-4-702(2)(a), MCA, a party seeking review of an administrative decision must file his or her petition with in 30 days after the agency’s written decision is rendered and must f ile it in the district court for the county where the petitioner resides or has his or her principal place of business, or where the relevant agency maintains its principal office. Because Drew chose to designate HRC as a respondent in her case on appeal rather than just Yellowstone County, she had her choice of two venues unde r § 2-4-702(2)(a), MCA—Yellowstone County where she resides, or Lewis and Clark County where HRC maintains its principal office. Drew chose Lewis and Clark County and timely filed her petition for review on April 20, 2005. Subsequently, the County also sought revi ew of HRC’s ruling by filing a timely Petition for Judicial Review in the Yellowstone County District Court. The County acknowledged that Lewis and Clark County was a proper ve nue for Drew’s Petition but argued that its Petition justified a separate appeal in a proper district court of its choice because it presented different issues from those presented in Drew’s Petition. The Yellowstone County District C ourt disagreed and consolidated the appeals in Lewis and Clark County. ¶14 Consolidation of cases is governed by Rule 42(a), wh ich provides that when actions involving a common question of law or fact are pending before the court, the

8court “may order a joint hearing or trial of an y or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may te nd to avoid unnecessary costs or delay.” While we have had numerous occasions to ad dress Rule 42(a) consolidati ons, we have never addressed the consolidation of cases filed in separate district courts but invo lving the same parties, the same facts, and the same underlying admini strative ruling on appeal. Therefore, we must determine whether Rule 42(a) contempl ates consolidation of cases pending in separate district courts. Lacking Montana pr ecedent and recognizing that our Rule 42 is identical to Federal Rule 42, we look to federal case law for guidance. Hafner v. Conoco,
Inc ., 268 Mont. 396, 402, 886 P.2d 947, 950-51 (citation omitted). ¶15 In Swindell-Dressler Corporation v. Dumbauld, 308 F.2d 267 (3 rd Cir. 1962), the court stated, “[a]nd finally, we are of the vi ew that a cause of action pending in one jurisdiction cannot be c onsolidated with a cause of action pending in another jurisdiction. Rule 42(a), Fed.R.Civ.Proc., 28 U.S.C., will not permit such a course. The cases to be consolidated must be ‘pendi ng before the court.’” Swindell-Dressler , 308 F.2d at 273. This position is widely held by other federal courts as well. See Oregon Egg Producers v. Andrews, 458 F.2d 382 (9 th Cir. 1972); National Equipment Rent al, Ltd. v. Fowler, 287 F.2d 43, 47 (2d Cir. 1961); Town of Warwick v. New Jersey Dept of Environmental , 647 F. Supp. 1322, 1324 -25 (S.D.N.Y. 1986); Silver v. Goodman, 234 F. Supp. 415, 416 (D. Conn. 1964); and Figg and Muller Engineers, Inc. v. Petruska, 477 N.E. 2d 968, 970 (Ind. App. 1985).

9¶16 The Washington Supreme Court was also fa ced for the first time with the question of whether a “superior court may consolidat e cases pending in different counties” under its consolidation rule. American Mobile Homes v. Seattle-First , 796 P.2d 1276 (Wash. 1990). It noted that its rule , Washington Court Rule 42(a) (CR 42(a)), was identical to the federal rule. The Washin gton court thus explained: [CR 42(a)] provides the procedure fo r consolidation of cases “pending before the court.” Only if the various counties’ superior courts are viewed as a single superior court of the St ate of Washington would cases pending in superior courts of differe nt counties be “pending before the court,” thus authorizing consolidation under CR 42(a). . . . Unde r the language of the constitution and the statutes, there is no single superior court. Actions pending before the superior courts of different counties are not “pending before the court.” (Emphasis in original). American Mobile Homes , 796 P.2d at 1279. We find the logic of these cases persuasive. Therefore, we conclude that th e Thirteenth Judicial District Court was not authorized to consolidate the County’s Petitio n for Judicial Review filed in Yellowstone County with Drew’s Petition for Judicial Re view filed in Lewis and Cl ark County. We therefore vacate the District Cour t’s consolidation order. ¶17 Having vacated the court’s c onsolidation order, we turn now to the motion Drew filed before the Yellowstone County District Court, requesting a change of venue or dismissal. First, we must decline to address Drew’s ar gument that dismissal of the Yellowstone County proceedings was appropriate based on the County’s failure to file a compulsory counterclaim under M. R. Civ. P. 13(a) (Rule 13(a)) in the Lewis and Clark District Court. As noted abov e, the record of Drew’s appe al before the First Judicial District Court, Lewis and Clark County, is not before us and therefore we have no record

10of what pleadings were or we re not filed there. However, it is unnecessary to address Drew’s dismissal argument because we resolve this matter on the change of venue issue. ¶18 Section 25-2-201, MCA, esta blishes when a change of venue is required. It provides: The court or judge must, on motion, change the place of trial in the following cases: (1) when the county desi gnated in the complaint is not the proper county; (2) when there is reason to believe that an impartial trial cannot be had therein; (3) when the convenien ce of witnesses and the en ds of justice would be promoted by the change. ¶19 We acknowledge the County’s argument th at the two appeals filed in the two district courts raise separate a nd distinct issues, but such is true in virtually every appeal and cross-appeal situation. We therefore conclude that the situation before us should be resolved in much the same way as an appeal and cross- appeal are handled in this Court— i.e., all matters should be addressed by one court and under one cause number, thus eliminating the prospect of conflicting rulings by two separate courts. Such an approach will serve “the ends of justice.” As we noted in Nutter v. Permian Corp. , 224 Mont. 72, 727 P.2d 1338 (1986), a court must chan ge venue under § 25-2-201(3), MCA, when separate cases create the “possibility of co nflicting results, multiple actions and duplicate trials.” ¶20 Given that the First Judicial District C ourt has reviewed the matter to the degree necessary to render a ruling on the two legal issues rais ed in Drew’s Petition and has remanded one of the legal issues to the agency , it clearly is familiar with the case and is in a position to determine the merits of the issues raised by both pa rties once the remand

11proceedings are conclude d. Moreover, there is nothing in the record to indicate that Yellowstone County will be prejud iced by this change of venue. We fully re cognize that the result achieved here is the same for a ll practical purposes as that achieved by a consolidation of the cases. N onetheless, because the District Court was without authority to order the consolidation of two cases pendi ng in separate courts, we deem it necessary to correct such error in lieu of affirmi ng on a right result-wrong rationale basis. CONCLUSION ¶21 For the foregoing reasons and in the intere sts of judicial economy, we vacate the District Court’s order of consolidation and remand the matter to the Thirteenth Judicial District Court with instructions to grant Drew ’s motion for a change of venue to the First Judicial District Court.

/S/ PATRICIA COTTER We Concur: /S/ JOHN WARNER /S/ W. WILLIAM LEAPHART /S/ BRIAN MORRIS /S/ JIM RICE

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