No. 94-616

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

CAROL LEWIS,

Plaintiff and Appellant,

v.

ALCOHOL AND DRUG SERVICES OF

CENTRAL MONTANA, A MONTANA

CORPORATION, ITS AGENTS AND

EMPLOYEES, AND GREGORY WONNACOTT,

Defendants and Respondents.

APPEAL FROM: District Court of the Tenth Judicial District,

In and for the County of Fergus,

The Honorable Peter L. Rapkoch, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Sarah Arnott Ozment, Attorney at Law, Livingston,

Montana

Suzanne Nellen, Attorney at Law, Bozeman, Montana

For Respondents:

James L. Stogsdill, Attorney at Law, Lewistown,

Montana

Mark Higgins; Ugrin, Alexander, Zadick & Higgins,

Great Falls, Montana

Filed:

Submitted on Briefs: June 29, 1995

Decided: September 7, 1995

Clerk
Justice Karla M. Gray delivered the Opinion of the Court.

Carol Lewis (Lewis) appeals from the final judgment entered by

the Tenth Judicial District Court, Fergus County, on its order

granting the motion for summary judgment of Gregory Wonnacott and

Alcohol and Drug Services of Central Montana and denying her crossmotion. We affirm.

We restate the dispositive issues on appeal as follows:

1 . Did the District Court err in granting summary

judgment to Gregory Wonnacott on the basis of qualified

immunity from monetary damages?

2. Did the District Court err in addressing the issue of

whether Lewis' claims against Alcohol and Drug Services

of Central Montana also were barred?

3 . Did the District Court err in granting summary

judgment on Lewis' claims for injunctive and declaratory

relief?

Carol Lewis was arrested for driving under the influence of

alcohol in August of 1986; she pled guilty to the offense in the

City Court of Lewistown, Montana. City Judge Robert Brassey fined

Lewis $300 and sentenced her to 60 days in jail, with 59 days

suspended on condition that Lewis follow the recommendations of an

Alcohol and Drug Services of Central Montana (Alcohol Services)

counselor with regard to alcohol treatment.

Lewis' counselor at Alcohol Services was Gregory Wonnacott

(Wonnacott). He originally recommended inpatient treatment for

Lewis but, at her urging, allowed her to try outpatient treatment.

When the outpatient treatment proved unsuccessful, Lewis agreed to

attend an inpatient treatment program at Hilltop Recovery (Hilltop)

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in Havre, Montana. She left the 28-day program after 7 days.

AS a result of Lewis' failure to complete the program,

Wonnacott wrote a letter to City Judge Brassey on October 24, 1986.

He indicated that Lewis had not met the condition of her suspended

sentence requiring her to complete the course of treatment

recommended by Alcohol Services. He advised that, on that basis,

he was "referring this case back to your court with the

recommendation that Ms. Lewis suffer the natural consequences of

her actions and be made to serve part or all of the remaining 59

days of suspended jail time." The City Court issued an order to

show cause why Lewis' suspended sentence should not be revoked and

scheduled a hearing.

Shortly thereafter, Lewis filed the present action against

Wonnacott and Alcohol Services seeking declaratory, injunctive and

monetary relief. The apparent thrust of her multi-coun,t complaint

was that she was being required to involuntarily undergo alcohol

treatment, under the potential penalty of serving jail time,

without the procedural protections of the statutory involuntary

alcohol commitment procedures. Lewis also argued that Wonnacott's

recommendation regarding revocation of her suspended sentence

violated her statutory and constitutional rights. She prayed for

a declaration that § 61-E-714(4), MCA, is unconstitutional on its

face and as applied under a variety of theories, including due

process, equal protection and cruel and unusual punishment; for an

injunction preventing Alcohol Services from recommending jail time

for her failure to voluntarily attend inpatient alcohol treatment;

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for damages under 42 U.S.C. § 1983; for punitive damages; and for

costs and attorney fees pursuant to 42 U.S.C. § 1988. Proceedings

in the underlying City Court action were stayed on stipulation of

the parties, pending resolution of this case. As a result, the

City Court has taken no action regarding the revocation of Lewis'

suspended sentence.

The parties filed cross-motions for summary judgment. The

thrust of the Wonnacott and Alcohol Services motion was that they

were immune as to Lewis' state law and federal civil rights claims.

The thrust of Lewis' motion was that her procedural due process

rights were violated by the defendants' actions and that any

immunity to which they might be entitled would extend to monetary

damages only. Lewis abandoned many of the claims asserted in her

second amended complaint.

The District Court subsequently entered findings of fact,

conclusions of law and an order granting the defendants' motion for

summary judgment, denying Lewis' cross-motion for summary judgment,

and dismissing Lewis' claims for monetary, injunctive and

declaratory relief with prejudice. Judgment was entered on the

order. Lewis appeals.

Standard of Review

Our review of an order granting or denying a motion for

summary judgment is de nova and we utilize the same criteria as the

district court. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont.

441, 444, 872 P.2d 330, 331-32. Summary judgment is proper only

when no genuine issue of material fact exists and the moving party

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is entitled to judgment as a matter of law. Rule 56(c),

M.R.Civ.P.; Spain-Morrow, 872 P.2d at 331-32.

Here, the District Court granted summary judgment to Wonnacott

on the basis of qualified immunity. The availability of immunity

is a question of law. Mitchell v. Forsythe (1985), 472 U.S. 511,

528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411, 426. Thus, we review

the court's conclusion that Wonnacott is entitled to qualified

immunity to determine whether it is correct. Steer, Inc. v. Dep't

of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

1 . Did the District Court err in granting summary

judgment to Wonnacott on the basis of qualified immunity

from monetary damages?

As noted above, Lewis abandoned many of her claims prior to

the District Court's determination of the parties' motions for

summary judgment. Her remaining claims are based on 42 U.S.C. §

1983, which provides, in pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory

or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress.

Lewis argues that, by failing to utilize Montana's statutory

involuntary alcohol commitment procedures prior to notifying the

court of her failure to complete the Hilltop program, Wonnacott

infringed on her liberty interest and violated her Fourteenth

Amendment due process rights. The District Court determined that

Wonnacott was entitled to qualified immunity from Lewis' 5 1983

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claims for monetary damages.

We recently have addressed the issue of an official's

entitlement to qualified immunity from an action alleging a

violation of a plaintiff's civil rights under 42 U.S.C. § 1983. In

Sacco v. High Country Independent Press (Mont. 1995), 896 P.2d 411,

415, 52 St.Rep. 407, 415, we applied the two-part test promulgated

by the United States Supreme Court in Harlow v. Fitzgerald (1982),

457 U.S. 800, 102 S.Ct 2727, 73 L.Ed.2d 396. Under that test,

government officials performing discretionary functions are

shielded from liability for civil damages only where their conduct

does not violate clearly established statutory or constitutional

rights of which a reasonable person would have knowledge. Sacco,

896 P.2d at 415. We also determined that the "reasonable person"

part of the test must be analyzed under the "objective

reasonableness" standard set forth in Malley v. Briggs (1986), 475

U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271. Sacco, 896 P.2d at 415.

We will apply the Harlow test to the case presently before us.

First, we determine whether Wonnacott's actions violated one

of Lewis' clearly established rights. If not, our inquiry is over

because the first part of the Harlow test is not satisfied. If so,

we determine whether a reasonable person in Wonnacott's position

would have known that his conduct violated that right.

It is clear that Wonnacott's notification to the court of

Lewis' failure to complete the Hilltop program violates no statute.

Section 53-24-302, MCA, upon which much of Lewis' argument is

premised, sets forth the procedures by which the State of Montana

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may seek to involuntarily commit an alcoholic. Application of the

statute is confined, by its terms, to the involuntary commitment

process. Thus, the statute is inapplicable to the situation before

us which involves the potential revocation of a suspended sentence

on the basis that the convicted defendant failed to meet one of the

conditions of her suspended sentence. Moreover, Wonnacott's

notification complied with the specific mandate of 5 61-E-714(4),

MCA, that he notify the court of Lewis' failure to complete the

recommended, and agreed upon, program.

Wonnacott's notification still could satisfy the first part of

the Harlow test, however, if it violated Lewis' Fourteenth

Amendment due process rights. In this regard, Lewis asserts, and

we agree, that we must first determine whether due process is

necessary and, if so, the nature of the process that is due. Nor

do we disagree with Lewis' contention that risk of jail time and/or

involuntary inpatient alcohol or rehabilitation treatment triggers

a liberty interest to which due process applies. See Wolff v.

McDonnell (1974), 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935; Dow

v. Circuit Court of the First Circuit (9th Cir. 1993), 995 F.2d

922. There is no question but that process is due Lewis. The

questions are what process is due and when must it be provided.

Lewis argues that, under Dow, she is entitled to due process

prior to being involuntarily committed. Again, we do not disagree

with the correctness of the stated legal principle; we do disagree

with its applicability here. If the State of Montana were seeking

to involuntarily commit Lewis as an alcoholic, she would be

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entitled to the process and procedural safeguards contained in 5

53-24-302, MCA. However, neither the State of Montana nor any

individual is seeking Lewis' involuntary commitment pursuant to

that statute. This case involves a suspended sentence under a DUI

conviction and a potential revocation of that suspended sentence.

Thus, we reject Lewis' argument that due process required Wonnacott

to utilize the § 53-24-302, MCA, procedures prior to notifying the

court of her failure to complete the Hilltop program. We conclude

that 5 53-24-302, MCA, is inapplicable here.

The process due Lewis is contained in the statute governing

the revocation of a suspended sentence. That statute requires,

among other things, that a defendant be given the opportunity to

appear, present evidence and question adverse witnesses. Section

46-18-203(4), MCA. As a general rule, a hearing is necessary prior

to any revocation, and the prosecution must prove by a

preponderance of the evidence that a term or condition of the

suspended sentence has been violated. Section 46-18-203(5) and

(6), MCA. The court may revoke the suspended sentence only if it

finds, based on a preponderance of the evidence, that the defendant

has violated a term or condition of that suspended sentence.

Section 4618-203(7), MCA. Here, Lewis' commencement of the

present case has delayed--for nearly a decade--further proceedings

on the possible revocation of her suspended sentence. Thus, the

process due her has neither become applicable nor been infringed.

Lewis relies on Zinermon v. Burch (1990), 494 U.S. 113, 110

s.ct. 975, 108 L.Ed.2d 100, in support of her contention that her

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due process rights are being violated by Wonnacott's actions and

the procedures being utilized in this case. Zinermon does not

support her contention.

In Zinermon, an actual deprivation of liberty had occurred, in

the context of an involuntary commitment of a mentally ill person,

without the predeprivation due process which the Supreme Court held

could, and should, have been provided. Zinermon, 110 S.Ct. at 990.

Here, no deprivation or infringement of a liberty interest of

Lewis' has occurred. Moreover, as noted above, no effort is being

undertaken to involuntarily commit Lewis to alcohol treatment; this

case involves only an alleged violation of a condition of a

suspended sentence with which Lewis agreed to comply. The

statutory procedural requirements applicable to the involuntary

commitment of alcoholics are not applicable, either directly or

indirectly, and the procedural safeguards to which Lewis is

entitled during the revocation proceedings have not yet come into

play.

Lewis also asserts that Wonnacott's recommendation to the

court that her suspended sentence be revoked violates her rights in

some fashion. We disagree. While no statute specifically

authorizes Wonnacott to make a sentencing recommendation, no

statute specifically prohibits such a recommendation. Thus, the

recommendation does not violate Lewis' statutory rights. Nor do we

see how Wonnacott's mere recommendation that the court require

Lewis to serve all or part of the suspended 59 days' jail time can

constitute a violation of Lewis' right to due process. Only the

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court itself can act on Lewis' alleged violation of a condition of

her suspended sentence, because the court is the only entity which

is authorized to sentence a criminal defendant or revoke a

suspended sentence. See §§ 46-18-201 and 46-18-203, MCA. Thus,

while the better practice may be to refrain from doing so, making

a recommendation does not rise to a constitutional violation.

We conclude that neither Wonnacott's notification nor his

recommendation violated any of Lewis' clearly established statutory

or constitutional rights and, thus, that the first part of the

Harlow test has not been satisfied; as a result, we need not

analyze the second part. We hold that the District Court did not

err in concluding that Wonnacott was entitled to qualified immunity

against Lewis' 5 1983 claim for monetary damages and in granting

summary judgment to Wonnacott on that basis.

2. Did the District Court err in addressing the issue of

whether Lewis' claims against Alcohol Services also were

barred?

In granting Wonnacott and Alcohol Services' motion for summary

judgment, the District Court determined that, because the claims

against Alcohol Services were wholly derivative of those against

Wonnacott, Alcohol Services also was entitled to immunity from

Lewis' § 1983 claims. The court relied on City of Great Falls v.

Price (19891, 238 Mont. 99, 775 P.2d 1260. While Lewis does not

challenge the court's legal analysis, she asserts error in this

regard on the basis that the "issue was not raised in summary

judgment." We disagree.

Lewis filed her original complaint in this action on December

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4 , 1986. In it, she asserted claims against Alcohol Services and

against Wonnacott in both his individual capacity and his capacity

as director of Alcohol Services. Most of the allegations in the

complaint referenced "defendants" without specifying either or both

of them. Her references to Alcohol Services' "actions" make it

clear that she was attributing Wonnacott's actions to Alcohol

Services because of his employment position there; the only

"actions" of Alcohol Services which are at issue here are those

taken by Wonnacott. The allegations in Lewis' first amended

complaint, filed March 11, 1987, do not differ in these regards.

The same is substantially true concerning the allegations in Lewis'

second amended complaint, filed March 31, 1987.

On October 22, 1990, Wonnacott and Alcohol Services filed a

joint motion for summary judgment. The primary thrust of the

motion and supporting brief was that Wonnacott and Alcohol

Services, "his employer at the time," were immune from suit.

Indeed, the defendants argued affirmatively that "[ulnder the

discussion set forth above, and the clear mandate of the United

States Supreme Court, Gregory Wonnacott and Alcohol and Drug

Services of Central Montana, whose liability is simply derivative,

are entitled to qualified immunity . . . .'I

On the basis of the pleadings of record, we conclude that the

issue was raised during the summary judgment proceedings.

Therefore, we hold that the District Court did not err in

addressing the issue.

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3 . Did the District Court err in granting summary

judgment on Lewis' claims for injunctive and declaratory

relief?

Lewis makes a passing argument that, even if the defendants

were entitled to qualified immunity, that immunity would extend to

monetary damages only. On this basis, she seems to assert that the

District Court erred in granting summary judgment on immunity

grounds with regard to her claims for injunctive and declaratory

relief.

The fundamental problem with Lewis' argument is that the

District Court did not grant summary judgment regarding her claims

for injunctive and declaratory relief on the basis of qualified

immunity. Rather, the court determined that no genuine issue of

material fact existed concerning the viability of those claims

because Lewis did not sustain her burden of establishing the

unconstitutionality of § 61-8-714(4), MCA.

A party asserting error by a district court must present

argument, buttressed by citation to legal authorities. Rule 23,

M.R.App.P. Here, Lewis asserts error concerning a determination

never made by the District Court. We cannot conclude, on the basis

of any arguments or authorities presented by Lewis, that the

District Court erred in granting summary judgment on Lewis' claims

for injunctive and declaratory relief.

Affirmed.

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

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

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

We concur:

J$tlces

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