No. 85-503 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN THE MATTER OF 

MARTHA R. SORINIf 

Licensed Real Estate Broker. 

APPEAL PROM: District Court of the Second Judicial District, 

In and for the County of Silver BOW, 

The Honorable Mark Sullivan, Judge presiding. 

For Appel-la.nt : 

Robert P. McGee, Butte, Montana 

For Respondent: 

F. Lon Mitchell, Helena, Montana 

Submitted on Briefs: Dec. 19, 1985 

Decided: April 1, 1986 

.. (3i$i 

Filed: &'t"& .' 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Ms. Sorini appeals the decision of the Butte/Silver Bow 

County District Court which upheld a Board of Realty Regulation decision revoking her real estate broker's license. We 

affirm. 

The issues are: 

1. Was Ms. Sorini denied her rights at her administrative hearing because the hearing examiner and the attorney 

for the Board of Realty Regulation were both deputy attorneys 

of the State of Montana? 

2. Did the matter of Ms. Sorini's competence or trustworthiness become moot because the Board of Realty Regulation 

was required to take those characteristics into consideration 

before issuing her a real. estate broker's license? 

3. Is the Board of Realty Regulation required to rule 

with particularity upon the objections and exceptions filed 

with it, and is their failure to issue such a ruling a deprivation of Ms. Sorini's rights? 

4. Was the penalty imposed by the hearing examiner 

based upon a finding of fact which was not an issue, and 

should the decision be therefore reversed for unusual and 

unwarranted punishment? 

In December 1983, a complaint was filed with the Board 

of Realty Regulation ("Board") a.qainst Martha Sorini, a 

licensed real estate salesperson. In spring 1984, Ms. Sorini 

passed the real estate broker's examination and was issued a 

broker's license. The complaj-nt against her was amended to 

reflect her change in status, and the matter was heard before 

a hearing examiner in June 1984. Ms. Sorini was represented 

by counsel and testified at the hearinq. The hearing examiner's proposed findings, conclusions and order recommended 

that Ms. Sorini's broker" license be revoked for violations 
of S 37-51-321, MCA, including failure to account for or 

remit money belonging to others, failure by a real estate 

salesperson to deposit money of others in a broker's trust 

account, and demonstrated unworthiness or incompetence. Ms. 

Sari-ni filed exceptions to these recommendations, and oral 

argument was held before the full Board. Later, the Board 

issued an order adopting the findings of fact, conclusions of 

law and order of the hearing examiner. Ms. Sorini then filed 

a petition for judicial review in District Court and obtained 

a temporary restraining order suspending the revocation of 

her broker's license. A hearing on that petition was conducted and the court affirmed the Board's order revoking her 

broker's license. Revocation of the license has again been 

stayed during this appeal. 

I 

Was Ms. Sorini denied her rights at her administrative 

hearing because the hearing examiner and the attorney for the 

Board of Realty Regulation were both deputy attorneys of the 

State of Montana? 

Ms. Sorini argues that the independence of the hearing 

examiner was impaired because he was a deputy attorney general as was the attorney representing the Board. Next, she 

argues that the Board gave extra consideration to the hearing 

examiner's recommendations because he was from the attorney 

general's office. Fs. Sorini failed to submit any proof to 

support these allegations. There is nothing in the record to 

suqgest a factual basis for her position. 

Section 2-4-611, MCA, establishes the manner in which a 

party may file an affidavit of personal bias, lack of independence, disqualification by law, or other disqualification 

of a hearing examiner. In the absence of a request for 

disqualification, it is not proper to raise the question on 
appeal. As we pointed out in Western Bank of Billings v. 

Mont. St. Banking (1977), 174 Mont. 331, 570 P.2d 1115, a 

party may not raise on appeal a question which was not presented before the administrative agency except the validity 

of the statute under which the agency is proceeding, unless 

it is shown that there was good cause for failure to raise 

the question before the agency. Such good cause has not been 

shown here. 

While we tend to agree with the District Court's observation that having a greater separation of prosecutorial and 

decision-making functions would eliminate an appearance of 

impropriety, we find nothing to warrant a reversal of the 

District Court. We therefore affirm the conclusion of the 

District Court that there was no reversible error on this 

issue. 

Did the matter of Ms. Sorini's competence or trustworthiness become moot because the Board of Realty Regulation 

was required to take those characteristics into consideration 

before issuing her a real estate broker's license? 

After the charges had been filed against Ms. Sorini, she 

was allowed to sit for the real estate broker's examination 

and was subsequently issued a real estate broker's license. 

She a-rgues that her honesty, trustworthiness and competency 

were considered in the licensing process, under the provisions of 37-51-302(3), MCA. She therefore maintains that 

the issues of her competence and. trustworthiness have been 

determined so far as this case is concerned. 

Clearly, the issues are not the same. The Board is 

required by statute to determine that an applicant for a 

broker's license meets certain standards of conduct. In the 

absence of evidence that the Board considered the pending 
charges aga.inst her, the determination that Ms. Sorini met 

those standards of conduct is not dispositive of the pending 

charges against her. There is no such evidence in the 

record--in fact, there are indications that the Board did not 

consider the charges because they had. not been proven. 

We conclude that the issue of the competence and trustworthiness of Ms. Sorini as raised by these charges was not 

determined by the issuance of her real esta.te broker's 

license. 

I11 

Is the Board of Realty Regulation required to rule with 

particularity upon the objections and exceptions filed with 

it, and is their failure to issue such a ruling a d.eprivation 

of Ms. Sorinils rights? 

The proposed findings of fact, conclusions of law and 

order as prepared by the hearing examiner detail the factual 

basis for his conclusions that the Board had power to either 

suspend or revoke Ms. Sorinils license. The hearing examiner 

found that there had been a failure by Ms. Sorini to deposit 

money of others in a trust account, that there had been a 

failure to account for money belonging to others, and that 

she had demonstrated unworthiness and incompetence. The 

hearing examiner therefore recommended that her license as a 

real estate broker be revoked. 

Prior to her appearance before the full Board, Ms. 

Sorini submitted her contentions of claimed error in these 

findings and conclusions. The Board considered these contentions and voted unanimously to adopt the findings of fact, 

conclusions of law and recommended order of the hearing 

examiner. Ms. Sorini was entitled to nothing further. The 

Board was not required to specifically state in writing that 

her exceptions to the proposed findings were insufficient. 
We affirm the conclusion of the District Court that the 

Board was not required to rule with particularity upon 

Ms. Sorini's exceptions to the proposed findings. 

IV 

Was the penalty imposed by the hearing examiner based 

upon a. finding of fact which was not an issue, and should the 

decision be therefore reversed for unusual and unwarranted 

punishment? L 

Ms. Sorini argues that the penalty imposed upon her is 

based on the finding of the hearing examiner that the mortgage on her clients' home was foreclosed and the clients lost 

their home because of her actions. The violations with which 

Ms. Sorini was charged do not include causinq the foreclosure, and she does not feel it was proven that her actions 

caused the foreclosure. She maintains that she was punished 

to an unusual and unwarranted degree for the viol-ations with 

which she was charged. 

The Board found that Ms. Sorini had violated three 

statutory prohibitions under S 37-51-321, MCA. The penalty 

for violation of any of the standards set out in that section 

is revocation or suspension of the broker's or salesperson's 

license. Revocation of Ms. Sorini's license was within the 

discretion of the Board, as a penalty for her violations of 

the statute. There were enough facts before the Board to 

allow it to revoke Ms. Sorini's license without considering 

whether she caused the foreclosure. We conclude that the 

penalty was not unusual or unwarranted punishment. We affirm 

the District Court's conclusion that the Board's revocation 

of Ms. Sorini's broker's license was based upon her violations of the three standards set out in the complaint against 

her. 

Affirmed. 

Mr. Justice John C. Sheehy, dissenting: 

I dissent on the first issue. 

I should have thought that the mere appearance of 

impropriety would be sufficient for this Court, which so 

lately approved the Rules of Professional Conduct (June 6, 

1985) to rise and strike so anomalous a case as we have here: 

a deputy attorney general acting as hearing examiner in a 

case where the state agency is represented by another deputy 

attorney general. 

For my part, I heartily discountenance such a cozy 

arrangement. 

For the convenience of this Court and counsel, I point 

out that Rule 1.12 (a) of the Rules of Professional Conduct 

debar a lawyer fron representing a party in a matter where 

the lawyer participated personally and substantially as an 

adjudicative officer. Rule 1.12(c) debars any lawyer in a 

firm with which the first lawyer is associated from knowingly 

undertaking or continuing representation in the matter, 

unless certain conditions are met, which are not met here. 

The most elemental notions of due process ought to tell 

us that objectivity is impossible when one party owns both 

the prosecutor and the judge. 

There is indeed evidence that the Board bowed to the 

supposed superiority of a hearing examiner from the attorney 

general's office. The minutes of the Board for August 15, 

1984 reveal that John Dudis, a member of the Board! and 

himself an attorney stated that if the hearing examiner "from 

the attorney general's office has made his findings after 

going through this from top to bottom, and you [appellant's 

counsel] should have had opportuni-ties to put on witnesses 
and cross-examine, I am going along with the 11ea.ring 

examiner." 

We should send this case back to the Board of Realty 

Regulation for a new beginning. 

,' I Justice / i 

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