NO. 93-629 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

CHARLES M. BICKENHEUSER, 

Plaintiff and Appellant, 

v. 

ANNABETH M. FELSMAN, individually and as an 

employee of the Department of Family Services, FED L! 2 . 3 ,1995 

and 

STATE OF MONTANA, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Hensdn, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Charles M. Bickenheuser, Pro Se, 

Missoula, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Kelly M. O'Sullivan, Assistant Attorney General, 

Agency Legal Services Bureau, Helena, Montana 

Filed: 

Submitted on Briefs: December 1, 1994 

Decided: February 23, 1995 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Charles M. Bickenheuser, appearing pro se, appeals 

from an order of the Fourth Judicial District Court, Missoula 

County, granting summary judgment in favor of respondents 

Annabeth M. Felsman and the State of Montana and striking the 

affidavits in opposition to summary judgment. 

Af f irmed . 

Appellant raises the following issues: 

1. Did the District Court err in granting respondents' 

motion to strike? 

2. Did the District Court err in granting respondents' 

motion for summary judgment? 

Felsman was employed by the Department of Family Services as 

a child protective services worker. On December 13, 1990, Felsman 

received a referral of suspected child abuse of T.B., an 

eight-year-old boy living with his foster parents, Bickenheuser and 

his wife. On the same day, Felsman began her investigation of the 

alleged abuse. Felsman interviewed and took photographs of T.B. 

She also interviewed Bickenheuser and his wife, who claimed that 

they no longer wanted T.B., and that they wanted to close their 

foster care license. Felsman determined that Bickenheuser had 

grabbed T.B. by the jaw with sufficient force to leave marks on the 

child's face. T.B. was subsequently removed from the Bickenheuser 

home. 
Felsman notified Missoula County Detective Hintz of her 

investigation of the alleged abuse. Detective Hintz conducted a 

criminal investigation simultaneously with Felsman's civil 

investigation. Because T.B. had been removed from the Bickenheuser 

home, Felsman closed her civil investigation and reported to the 

Department of Family Services, concluding that the abuse to T.B. 

had been substantiated. 

Detective Hintz interviewed T.B. on December 17, 1990, and 

Bickenheuser on December 18, 1990. On February 28, 1991, the 

Missoula County Attorney's Office filed misdemeanor assault charges 

against Bickenheuser in justice court alleging that Bickenheuser 

grabbed T.B. 's jaw with sufficient force to leave bruises on either 

side of T.B.'s face. The charges against Bickenheuser were 

subsequently dismissed for failure to prosecute, and the record was 

expunged on motion of Bickenheuser. 

On November 19, 1992, Bickenheuser filed suit against Felsman 

and the State of Montana, alleging Felsman recommended that he be 

prosecuted for misdemeanor assault because Felsman was concerned 

that she or the Department of Family Services would be sued for 

negligently placing T.B. with the Bickenheusers. Bickenheuser also 

alleged violations of his state and federal constitutional right to 

free speech, due process, and equal protection. 

On January 5, 1993, the District Court dismissed the federal 

consti.tutiona1 claims against Felsman and the State, but denied 

Felsman's motion to dismiss the state constitutional tort claims. 
On June 15, 1993, the District Court granted Felsman's motion for 

summary judgment and struck two affidavits in opposition. 

Bickenheuser appeals the District Court's order granting 

respondents' motion to strike and their motion for summary 

judgment . 

ISSUE 1 

Did the District Court err in granting respondents' motion to 

strike? 

A district court's decision whether to consider an affidavit 

in support of, or in opposition to, a motion for summary judgment 

is governed by Rule 56(e), M.R.Civ.P., which provides in pertinent 

part that : 

[Sl upporting and opposing affidavits shall be made on 

personal knowledge, shall set forth such facts as would 

be admissible in evidence, and shall show affirmatively 

that the affiant is competent to testify to the matters 

stated therein. 

Bickenheuser and his attorney for the misdemeanor assault charge 

filed affidavits in opposition to respondents' motion for summary 

judgment. The District Court found that the attorney's affidavit 

contained hearsay and inadmissible comments on the evidence. The 

District Court found that Bickenheuser's affidavit contained 

matters which were irrelevant and outside the personal knowledge of 

the affiant. As a result, the District Court ordered both 

affidavits stricken. 

A review of the record shows that the attorney's affidavit 

consists almost exclusively of hearsay. In paragraphs 1 and 2, the 
affiant offers alleged statements made by Felsman to Detective 

Hintz and County Attorney Deschamps, which were subsequently 

related to the attorney by Hintz and Deschamps, as evidence to 

prove the truth of the assertion that Felsman was concerned that 

she was going to be sued. These statements are not based on 

personal knowledge, and are hearsay. Rule 801(c), M.R.Evid. 

Similarly, Bickenheuser's affidavit lacks personal knowledge, 

contains hearsay, and offers statements not related to the issue on 

which summary judgment was granted. We have held that an affidavit 

in support of or in opposition to a motion for summary judgment 

should be stricken by the district court when the affidavit 

contains statements not based on personal knowledge, and/or not 

related to the issue on which summary judgment is granted. Eberl 

v. Scofield (lggO), 244 Mont. 515, 519, 798 P.2d 536, 538; see also 

Thornton v. Songstad (1994), 236 Mont. 390, 399, 868 P.2d 633, 638. 

We conclude that the affidavits do not meet the requirements 

of Rule 56(e), M.R.Civ.P., and fail to properly raise the disputed 

issues of material fact that Bickenheuser claims were central to 

his case. We hold, therefore, that the District Court did not err 

in granting respondents' motion to strike the affidavits of 

Bickenheuser and his attorney. 

ISSUE 2 

Did the District Court err in granting respondents' motion for 

summary judgment? 
"Our standard of review on a grant of summary judgment is 

identical to that of a trial court's." Cooper v. Sisters of 

Charity (1994), 265 Mont. 205, 207, 875 P.2d 352, 353. Summary 

judgment is only proper when there is no genuine issue of material 

fact, and the moving party is entitled to judgment as a matter of 

law. Rule 56 (c) , M.R.Civ.P. ; Spain-Morrow Ranch, Inc. v. West 

(1994), 261 Mont. 441, 442, 872 P.2d 330, 332. The burden of proof 

rests with the party seeking summary judgment to provide the court 

with evidence which excludes any real doubt as to the existence of 

a genuine issue of fact. Berens v. Wilson (1990), 246 Mont. 269, 

271, 806 P.2d 14, 16. Only after the moving party has met this 

burden of proof does the burden shift to the nonmoving party to 

show that a genuine issue of fact exists. Morton v. M.W.M., Inc. 

(1994), 263 Mont. 245, 249, 868 P.2d 576, 579. "When raising the 

allegations that disputed issues of fact exist, the nonmoving party 

has an affirmative duty to respond by affidavits or other sworn 

testimony containing material facts that raise genuine issues; 

conclusory or speculative statements will not suffice." Koepplin 

v. Zortman Mining (Mont. 1994), 881 P.2d 1306, 1309, 51 St. Rep. 

881, 882. 

Bickenheuser filed a tort action against respondents, alleging 

that Felsman recommended prosecuting Bickenheuser because she 

feared Bickenheuser would sue for negligent placement of T.B. Once 

Felsman received the referral of suspected child abuse from T.B.'s 

school, she had a statutory duty under 5 41-3-202(1) and (3), MCA, 
to investigate the allegations and advise the county attorney of 

the investigation. There is nothing in the record to show that 

when Felsman informed Deputy Missoula County Attorney, Anderson of 

her investigation that she made any recommendation as to what his 

charging decision should be. Anderson testified that he would not 

have accepted any such recommendation had she made one. Anderson 

did not file criminal charges against Bickenheuser. Misdemeanor 

assault charges were filed against Bickenheuser by County Attorney 

Robert Deschamps. Deschamps testified that his charging decision 

was based on his review of Anderson's internal memoranda and the 

investigation file prepared by the Missoula County Sheriff's Office 

and was undertaken in the exercise of his independent, 

prosecutorial discretion. Felsman testified that Deschamps did not 

speak with her or review her investigation files prior to charging 

Bickenheuser. 

Following the defense's presentation of the foregoing 

testimony, the burden shifted to Bickenheuser to establish a 

genuine issue of fact. In Issue 1, we determined that the 

affidavits of Ranney and Bickenheuser did not meet the requirements 

of Rule 56(e), M.R.Civ.P., and were properly stricken. Therefore, 

Bickenheuser failed to meet his affirmative duty to respond by 

affidavit or other sworn testimony containing material facts that 

raise genuine issues. As there is no genuine issue of material 

fact, respondents are entitled to summary judgment as a matter of 

law. 
We hold that the District Court did not err in granting 

respondents' motion for summary judgment. 

Af f irmed. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

Justice 

We concur: 
February 23, 1995 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

CHARLES M. BICKENHEUSER 

1105 Haaglund Dr. No. Six 

Missoula, MT 59802 

HON. JOSEPH P. MAZUREK 

Kelly M. O'Sullivan 

Agency Legal Services 

Justice Bldg. 

Helena, MT 59620-1402 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA