DA 07-0334

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 80

SHELBY DISTRIBUTORS, LLC,

a Montana Limited Liability Company,

Petitioner and Appellant,

v.

MONTANA DEPARTMENT OF REVENUE,

Respondent and Appellee.

APPEAL FROM: District Court of the Ninth Judicial District,

In and For the County of Toole, Cause No. DV 06-039

Honorable Laurie McKinnon, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Glenn E. Tremper, Attorney at Law, Great Falls, Montana

For Appellee:

Joel E. Silverman, Special Assistant Attorney General, Montana Department

of Revenue, Helena, Montana

Submitted on Briefs: May 7, 2008

Decided: March 17, 2009

Filed:

__________________________________________

Clerk

March 18 2009
2

Justice John Warner delivered the Opinion of the Court.

¶1 Shelby Distributors, LLC (Shelby Distributors), is a beer wholesaler and wine

distributorlicensed to operate by the Montana Department ofRevenue (DOR). Acontrolling

interest in Shelby Distributors is held by Steve Williamson (Williamson). Williamson also

owns sufficient stock to control Northern Vending, Inc. (Northern Vending), a Montana

corporation. Northern Vending’s business is leasing, installing, servicing, and maintaining

electronic gaming machines. Northern Vending is a gambling route operator and it has a

license to operate in Montana’s gaming industry issued by the Montana Department of

Justice (DOJ). Northern Vending made loansto alcohol retailers. These loans were reported

to and approved by DOJ. However, based on this practice, DOR brought proceedings to

revoke Shelby Distributors’ license because Williamson controlled both Northern Vending

and Shelby Distributors. DOR determined that Shelby Distributors wasin violation ofstate

law, penalized it $1,500, and ordered that its beer wholesaler and wine distributor license

would be revoked if Northern Vending did not cease making loans to alcohol retailers.

Shelby Distributors appealed DOR’s final decision to the Ninth Judicial DistrictCourt,Toole

County. The District Court affirmed DOR and Shelby Distributors now appeals DOR’s

decision.

¶2 Shelby Distributors raises two issues on appeal, which we restate as follows:

¶3 Issue 1: Did DOR violate Shelby Distributors’ due process rights by imposing

sanctions against it because ofloans made by Northern Vending to liquor retailers when the

loans had been approved by DOJ?
3

¶4 Issue 2: Did DOR and the District Court err in concluding that the loans made by

Northern Vending to liquor retailers create prohibited indirect financial interests held by

Shelby Distributors in retail liquor businesses?

BACKGROUND

¶5 Through inheritance and purchase, Williamson first acquired a 75% majority

ownership interest in Northern Vending. He later purchased a 55% controlling interest in

Shelby Distributorsfromhis mother’s estate. Upon transfer of wholesale liquor distributors

licenses to Shelby Distributors, he disclosed his ownership of Northern Vending to DOR.

The license transfer to Shelby Distributors was completed in October 1999.

¶6 Over a period of several years, Northern Vending loaned money to alcohol retailers

several times. Before making these loans, Northern wasrequired to secure approvalfromthe

Gambling Control Division of DOJ, as funding sources for gaming operations must be

approved. Northern Vending submitted the proper forms to DOJ to obtain approval of the

loans at issue in this case, and DOJ subsequently approved them.

¶7 DOR does not have responsibility to assure compliance with gambling laws. That

function lies solely within the Gambling Control division of DOJ. The Gambling Control

Division approved the non-institutional loans in question but did not report these loans to

DOR. As it does not examine transactions involving the gambling industry, DOR was

unaware of these loans until Northern Vending sought its approval to acquire and hold a

liquor license for a time, pending its resale.
4

¶8 DOR is responsible for regulation and enforcement of Montana’s liquor laws,

including the Montana Alcoholic Beverage Code (MABC), Title 16, Chapters 1-6, MCA.

However, DOR does not have its own staff to investigate possible violations of the MABC.

Section 16-6-101, MCA, provides that investigators attached to DOJ shall, at the request of

DOR, investigate possible violations of the liquor control laws and regulations. The two

agencies have entered into a Memorandumof Understanding, which provides, in the event of

a possible violation of liquor control laws and regulations, DOJ personnel will investigate

and report the results of the investigation to DOR. DOR is then responsible for the ultimate

determination of whether to pursue a penalty or othersanction based on an alleged violation.

¶9 As a result of a routine investigation of Northern Vending conducted when it sought

DOR’s approval to hold a retail liquor license for a time, DOR became aware Williamson

controlled that company. As Shelby Distributors held a beer wholesaler and wine distributor

license, DOR already knew Williamson held the controlling interest in that company. Thus,

on January 25, 2000, in connection with the transaction wherein Northern Vending would

hold a retail liquor license for a time, a DOR liquor licensing specialist, Jason Wood, sent a

letter to Northern Vending and Shelby Distributors’ attorney, Don Lee, advising himthatthe

transfer of a liquor license from a retailer to Northern Vending would result in Shelby

Distributors having an impermissible financial interest in an alcohol retailer because

Williamson controlled both entities. Then, in February of 2000, Wood had a telephone

conversation with Lee during which he again told him that the financing was unacceptable.

Wood also told Lee that Northern Vending could not loan money on an unsecured note to a
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licensed liquor retailer as long as Williamson continued to hold the controlling interest in

Shelby Distributors. However, following suggestions from DOR on how to structure this

transfer, it was subsequently completed. Still, this transaction brought to DOR’s attention

the fact that Northern Vending had been making unsecured loans to liquor retailers.

¶10 As DOR had become aware that Williamson controlled both Shelby Distributors and

Northern Vending, DOR commenced an investigation into possible violations ofthe MABC

by Shelby Distributorsin May of 2000. On June 2, 2001, the investigator completed a report

which concluded the loans made by Northern Vending to alcohol retailers caused Shelby

Distributors to violate §§ 16-3-242, 16-3-406, MCA, because Williamson controlled both

entities. According to DOR, control of both Shelby Distributors and Northern Vending by

Williamson caused Shelby Distributorsto have a prohibited indirect financial interest in the

liquor retailer to which Northern Vending had made a loan.

¶11 On January 28, 2002, DOR issued a notice to Shelby Distributors that its beer

wholesaler and wine distributor license wasto be revoked. The notice advised ofthe rightto

request a hearing on the matter before the revocation wasfinal. Shelby Distributors objected

to the proposed revocation and initiated a contested proceeding.

¶12 After notifying Shelby Distributors of the possible revocation of its beer wholesaler

and wine distributorlicense, DOR learned of additional loans made by Northern Vending to

liquor retailers during the discovery phase of the case.

¶13 A DOJ HearingExaminer held an evidentiary hearing on the petition to revokeShelby

Distributors’ license. On November 29, 2005, the Hearing Examiner entered findings of
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fact, conclusions of law, and issued a proposed order to the effect that the loans made by

Northern Vending to licensed liquor retailers caused violations of MABC because

Williamson controlled both Northern Vending and Shelby Distributors. The Hearing

Examiner found, inter alia, that DOJ and DOR are distinct, separate agencies, both in their

duties and in the statutes and regulations they enforce. Thus, approval by the Gambling

Control Division of DOJ of the loans Northern Vending made to liquor retailers did not

mean that these loans had been approved by DOR. The Hearing Examiner found as a matter

of fact Shelby Distributors had a prohibited indirect financial interest in the liquor retailers

that had borrowed from Northern Vending because Williamson controlled both entities.

Nevertheless, the Hearing Examiner concluded that revocation of Shelby Distributors’

license was not required. Instead, the Hearing Examiner proposed an order that levied a

$1,500 fine and required that Williamson divest himself of his interest in either Shelby

Distributors or Northern Vending.

¶14 Shelby Distributors appealed the Hearing Examiner’s proposed decision to the

director of DOR. On May 5, 2006, DOR issued a final decision which adopted the Hearing

Examiner’s proposed findings of fact and conclusions oflaw and resulted in a final decision

that Shelby Distributors pay a $1,500 fine and that Williamson divest himself ofthe common

ownership of the two companies or that Northern Vending cease making loans to alcoholic

beverage retailers. The final order also provided that if Northern Vending opted to cease

making the prohibited loans, it would be required to make quarterly reportsto DOR showing
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that existing loans made by Northern Vending to liquor retailers are being repaid and nonew

loans are being created.

¶15 Shelby Distributors appealed the final agency decision to the District Court arguing

that its due processrights had been violated and DOR had incorrectly interpreted the statutes.

The District Court heard oral argument on March 1, 2007, and affirmed DOR’s decision on

May 1, 2007. Shelby Distributors now appeals the judgment of the District Court.

STANDARDS OF REVIEW

¶16 A district court reviews an agency’s findings of fact to determine if they are clearly

erroneous and an agency’s conclusions of law to determine if they are correct. This Court

applies the same standards when reviewing a district court’s order regarding an

administrative decision. Ray v. Mont. Tech. of Univer. of Montana, 2007 MT 21, ¶ 24, 335

Mont. 367, 152 P.3d 122. The court may not substitute itsjudgment for that ofthe agency as

to the weight ofthe evidence on questions of fact unlessthey are clearly erroneousin viewof

the reliable, probative, and substantial evidence on the whole record. A court may reverseor

modify the agency decision if it is in violation of constitutional or statutory provisions.

Section 2-4-704(2), MCA.

¶17 Both the Fourteenth Amendment of the United States Constitution and Article II,

Section 17 of the Montana Constitution guarantee that no one shall be deprived of life,

liberty, or property without due process of law. “Although the phrase ‘due process’ cannot

be precisely defined, the phrase expresses the requirements of ‘fundamental fairness.’” In re

A.F.-C., 2001 MT 283, ¶ 50, 307 Mont. 358, 37 P.3d 724 (citations omitted).
8

¶18 When this Court interprets a statute, its goal is to ascertain and give effect to the

legislative intent. Barnard v. Liberty Northwest Ins. Corp., 2008 MT 254, ¶ 17, 345 Mont.

81, 189 P.3d 1196; Fliehler v. Uninsured Employers Fund, 2002 MT 125, ¶ 13, 310 Mont.

99, 48 P.3d 746. We first attempt to construe a statute according to its plain meaning. Ifthe

language of the statute is unambiguous, no further interpretation is necessary. Rausch v.

State Compensation Ins. Fund, 2002 MT 203, ¶ 33, 311 Mont. 210, 54 P.3d 25. We read all

parts of a statute as a whole and strive to give effect to all of its provisions. Our task is

“simply to ascertain and declare what is in terms or in substance contained therein, not to

insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA;

Barnard, ¶ 17; Fliehler, ¶ 13.

DISCUSSION

¶19 Issue 1: Did DOR violate Shelby Distributors’ due process rights by imposing 

sanctions against it because of loans made by Northern Vending to liquor retailers when the 

loans had been approved by DOJ?

¶20 Citing Seaman v. State, Dept. of Revenue, 2002 MT 34, 308 Mont. 307, 42 P.3d 790

(Cotter,J., concurring), for the proposition that it is a violation of due process if the State of

Montana gives permission to do an act but proceedsto penalize that act, Shelby Distributors

arguesthat DOR did not treat it in a fundamentally fair manner because the loansin question

were approved by another department of the State of Montana, DOJ.

¶21 We first note that Seaman was decided on statutory grounds and the Court expressly

noted that it did not reach the merits of the due process argument raised by the appellant.
9

Seaman, ¶ 24. Further, considering the thesis ofthe concurring opinion in Seaman, the facts

of this case are substantially different. In Seaman, only DOR and Seaman were involved.

Seaman, ¶ 5. In this case, there are two separate agencies, with separate duties, DOR and

DOJ, on the government side of the equation. Pertinent to this case, each of these agencies

has separate duties to enforce separate laws, enacted for different purposes. The dissents

posit because “the State” approved the loans it is unfair to sanction Shelby Distributors for

doing what “the State” said Northern Vending could do. However, this does not account for

the distinctly different purposes ofthe separate agencies, and the separate lawsthey enforce.

Approval by one agency of an act does not necessarily provide a blanket approval ofthat act

by all agencies of the State.

¶22 DOR has, inter alia, the duty to enforce MABC, the liquor control laws. It is a part of

Montana’s policy, as expressed in the MABC, that liquor wholesalers may not have a

financial interest, direct or indirect, in liquor retailers. Section 16-3-242, MCA. Shelby

Distributors’ beer wholesaler and wine distributor license is within the jurisdiction of DOR.

¶23 DOJ has, inter alia, the duty to enforce the statutes controlling gaming. Montana’s

policy is that financial arrangements entered into by gaming licensees must be reported and

approved by DOJ in order to tightly control the flow of money in and out of gambling

enterprises. Section 23-5-176(2)(c), MCA; Admin. R. Mont. § 23.16.103(3). Northern

Vending’s license is within the jurisdiction of DOJ.

¶24 On the private enterprise side of the equation, there are two separate private entities,

Shelby Distributors and Northern Vending, each in a different business and each requiring
10

separate licenses. Shelby Distributorsis required to have a license fromDOR to conduct its

business, and Northern Vending is required to have a license from DOJ to conduct its

business.

¶25 The Hearing Examiner found, and we agree, that the Gambling Division of DOJ and

the liquor control division of DOR are separate entities with separate functions. DOJ’s

approval of Northern Vending’s loans to liquor retailers did not unfairly mislead Shelby

Distributors and its majority stock holder, Williamson, into believing that Shelby

Distributors was free fromthe constraints of §§ 16-3-242, 16-3-406, MCA. DOR knew that

Williamson controlled Shelby Distributors. Once it learned that Williamson also controlled

Northern Vending, DOR’s decision to enforce the MABC was neither mean-spirited nor

deceitful. Further, the sanction imposed, the major part of which was simply an order that

the prohibited conduct must cease, does not amount to treatment that is so fundamentally

unfair that it violates Shelby Distributors’ due process rights.

¶26 Issue 2: Did DOR and the District Court err in concluding that the loans made by

Northern Vending to liquor retailers created prohibited indirect financial interests held by

Shelby Distributors in retail liquor businesses?

¶27 Section 16-3-242, MCA, provides:

No brewer, beer importer, or wholesaler shall advance or loan money to or

furnish money for or pay for or on behalf of any retailer any license or tax

which may be required to be paid for any retailer, and no brewer, beer

importer, or wholesaler shall be financially interested, either directly or

indirectly, in the conduct or operation of the business of a retailer. A brewer,

beer importer, or wholesaler shall be deemed to have such a financial interest

within the meaning of this section if:

(1) such brewer, beer importer, or wholesaler owns or holds any interest in or
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a lien or mortgage against the retailer or his premises;

(2) such brewer, beer importer, or wholesaler is under any contract with a

retailer concerning future purchases and/orsale ofmerchandise by one fromor

to the other;

(3) any retailer holds an interest, as a stockholder or otherwise, in the business

of the wholesaler.

Section 16-3-406, MCA, employs nearly identical language regarding table wine

distributors, with the exception of one subsection, § 16-3-406(2)(c), MCA, not at issue here. 

 

¶28 Based on the principle expressio unius est exclusio alterius (the expression of one is

the exclusion of others), Shelby Distributors argues that only the specific interests listed in

subdivisions (1), (2), and (3) of § 16-3-242, and subdivision (2) of § 16-3-406, MCA, are

prohibited. See Dukes v. City of Missoula, 2005 MT 196, ¶ 15, 328 Mont. 155, 119 P.3d 61.

It claimsthat the only prohibited financial interests are those listed in §§ 16-3-242(2), 16-3-

406(2) MCA, and all others are therefore allowed.

¶29 Considering the entirety of §§ 16-3-242(2), 16-3-406(2) MCA, the maxim expressio

unius est exclusio alterius does not apply in this case. The phrases “any interest,” “any

contract,” and “an interest, as a stockholder or otherwise” constitute broad language that

encompasses, rather than excludes, the type ofindirect financial interest at issue in this case.

¶30 Shelby Distributors also argues that the District Court and DOR read the term

“financial interest” too broadly and it should be construed to refer only to an ownership

interest.

¶31 Sections 16-3-242, 16-3-406, MCA, prohibit beer wholesalers and wine distributors 

from being “financially interested, either directly or indirectly” in an alcohol retailer. The
12

statutes do not define what constitutes an indirect financial interest, thus we look to the plain

meaning ofthe words. “Indirect” in the present context refersto something that is “deviating

from a direct line or course; not proceeding straight from one point to another; proceeding

obliquely or circuitously.” Webster’s Third NewInternational Dictionary,Unabridged 1151

(Philip Babcock Gove ed., Merriam-Webster 2002). A financial interest is “[a]n interest

involving money or its equivalent.” Black’s Law Dictionary 829 (Brian A. Garner ed., 8th

ed., West 2004).

¶32 It cannot be gainsaid that Northern Vending acquired a direct financial interest in the

retail liquor businesses to which it loaned money. Northern Vending was interested in

making sure that these businesses were successful so that they could repay the loans and it

had a legal right to proceed against their assets if they did not. Williamson, as the owner of

the controlling interest in Northern Vending, stands to make the most or lose the most from

these loans and will naturally take such steps he deems reasonably necessary to make sure

Northern Vending gets its money back.

¶33 Williamson is also the owner ofthe controlling interest in Shelby Distributors. Hehas

an obvious interest in assuring that this business succeeds, and he will naturally take such

steps he deems reasonably necessary to make sure it does. This common business interest

and control over two companies controlled by Williamson constitutes just the type of

circuitous, indirect financial interest that is prohibited by §§ 16-3-242, 16-3-406, MCA. If

all that isrequired to circumvent the statute is formation of a legal entity to hold an otherwise

prohibited financial interest, the legislature’s prohibition ofindirect interestsis meaningless.
13

This Court construes a statute so as to give effect to all its provisions. Barnard, ¶ 17;

Fliehler, ¶ 13; Mont. Trout Unlimited v. Mont. DNRC, 2006 MT 72, ¶ 23, 331 Mont. 483,

133 P.3d 224.

¶34 Williamson’s common ownership and control of Northern Vending and Shelby

Distributors, coupled with Northern Vending’s loans to alcoholic beverage retailers, gave

Shelby Distributors an impermissible indirect financial interest in the retailers.

¶35 The District Court did not err in affirming DOR’s final decision.

¶36 Affirmed.

/S/ JOHN WARNER

We Concur:

/S/ BRIAN MORRIS

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE

Justice James C. Nelson, dissenting.

¶37 I respectfully dissent from the Court’s decision.

¶38 Before making loans to alcohol retailers, Northern sought and received written

approval from the DOJ. The DOJ, however, did not report its approval of these loans to the

DOR. The DOR remained blissfully unaware of the loansthat the DOJ had approved. Yet,

pursuant to an MOU entered into between the DOR and the DOJ, the DOJ investigated

Northern and then reported to the DOR the loansthat the DOJ had previously approved. The
14

DOR was already aware that Williamson owned controlling interests in Shelby Distributors 

and Northern. But upon receiving the DOJ’s report, the DOR first became aware of the

loans that Northern had made and which had been previously approved by the DOJ. The

DOR then determined to prosecute and sanction Shelby Distributors for loans which the DOJ 

had approved. Indeed, a DOJ hearing examiner heard the DOR’s petition to revoke Shelby 

Distributor’s license and determined that the loans which the DOJ had approved violated the 

DOR’sregulations. The DOR director then approved the DOJ hearing examiner’s decision.

In short, DOR determined that Shelby Distributors was SOL because Northern wentforward

with an activity which DOJ had expressly approved. It doesn’t take Ansel Adams to see that 

something is wrong with this picture.

¶39 I refuse to accept the proposition that executive agencies of this State, especially those 

administrating closely related activities—and what can be more closely related than the 

licensing and regulation of alcohol sales and gambling?—either cannot or will not

investigate and share information so as to prevent the needless inconvenience to and

penalization of Montana businesses and citizens exemplified by this case. While the DOJ

and the DOR may be separate agencies, Opinion, ¶¶ 13, 21, 24-25, they are not separate

sovereigns. They are both executive branch agencies that function as part of the same state

government and enforce a common body of public laws and administrative regulations—and, 

in theory at least, serve the same business community and citizenry.

¶40 I cannot agree with our parsing of these laws and administrative regulations—these 

are DOR’s, these are DOJ’s, and never the two shall meet. Opinion, ¶¶ 21-23. In truth,these
15

laws and regulations are the State of Montana’s, and it is fundamentally unfair that Montana 

businesses and citizens should suffer being investigated and penalized—with all of the 

attendant cost and expense—because the right hand of state government is intentionally 

ignorant about what the left hand of state government is doing.

¶41 The fact that there are two separate businesses requiring separate licenses, Opinion, 

¶ 24, is beside the point. The licenses are issued by, and the licensees regulated by, the same 

sovereign power—the State of Montana. It cannot logically follow that because the State 

acts through its executive branch agencies, these agencies are permitted—much less, 

required—to be intentionally oblivious to each other’s activities.

¶42 Justice Cotter wasright when, in writing her concurrence in Seaman v. State, Dept. of 

Revenue, 2002 MT 34, 308 Mont. 307, 42 P.3d 790, she concluded that it is “at best meanspirited and at worst deceitful” when the government (there the same agency, the DOR)

gives with one hand while taking away with the other. Seaman, ¶ 30 (Cotter & Nelson, JJ.,

specially concurring). Indeed, asJustice Cotter demonstratesin her Dissent here, thissort of

legerdemain results in a violation of the substantive due process rights of the businesses and 

citizens targeted.

¶43 Unfortunately, our decision here will simply encourage more ofthe same. Idecline to

support the perpetuation ofthis deliberate, interagency anopsia any further. I would reverse

on Issue 1; I would decline to reach Issue 2.

¶44 Accordingly, I respectfully dissent.

/S/ JAMES C. NELSON
16

Justice Patricia O. Cotter dissents.

¶45 The Court appears to premise its due process decision on two bases: (1) DOR’s

decision to enforce the MABC was “neither mean-spirited nor deceitful”; and (2) the

sanction imposed upon Shelby Distributors was not so “fundamentally unfair . . . that it

violates Shelby Distributors’ due process rights.” Opinion, ¶ 25. The rationale, in other

words, is that fining Shelby for past lawful conduct is not quite bad enough to merit

reversal—a low bar by any measure. I dissent fromthis offhand approach for the reasonsset

forth in Justice Nelson’s dissent and those set forth below.

¶46 As we stated in Small v. McRae, 200 Mont. 497, 651 P.2d 982 (1982), “due processis

not a fixed concept but, rather, is one which must be tailored to each situation in such a way

that it meetsthe needs and protectsthe interests ofthe various parties involved.” Small, 200

Mont. at 507, 651 P.2d at 988. Moreover, “[a] determination of whether the procedures

followed in any given case [are] constitutionally sufficient requires an analysis of the

governmental and private interests that are affected by the action taken.” Small, 200 Mont.

at 506, 651 P.2d at 988. In addition to containing a “procedural” aspect, the “ ‘due process

clause [also] contains a substantive component which bars arbitrary governmental actions

regardless of the procedures used to implement them . . . .’ ” Powell v. State Compensation

Ins. Fund, 2000 MT 321, ¶ 28, 302 Mont. 518, 15 P.3d 877 (quotingNewville v. State, Dept.

of Family Servs., 267 Mont. 237, 249, 883 P.2d 793, 800 (1994)). Thus, under the due
17

process clause, “the State cannot use its power to take unreasonable, arbitrary or capricious

action against an individual . . . .” Powell, ¶ 29.

¶47 As the Court notes, “the phrase ‘due process’ . . . expresses the requirements of

‘fundamental fairness.’ ” Opinion, ¶ 17 (quoting In re A.F.-C., ¶ 50). This means the

procedures used by the State must be “fair.” In re A.F.-C., ¶ 50. So, the fulcrum of the due

process analysis should not be whether DOR’s decision was mean-spirited; it should be

whether it is fundamentally fair for the State to approve Shelby’s loans and then penalize

Shelby for relying on that approval. It would be one thing if DOR’s decision had been

purely prospective, advising Shelby it could no longer make loansto alcohol retailers in the

future. However, since the State already approved past loans, it is simply not

“fundamentally fair” for the State to impose sanctions on Shelby because it did what the

State said it could do. “[R]egardless of the procedures used to implement” such

governmental action, Powell, ¶ 28, affirming a sanction here is just plain capricious and

wrong.

¶48 Just as the prohibition on ex post facto laws prevents the government from

retroactively criminalizing conduct which was lawful when it was performed, See State v.

Young, 2007 MT 323, ¶ 58, 340 Mont. 153, 174 P.3d 460 (Cotter,J., dissenting), due process

and “fundamental fairness” should prohibit the State from explicitly approving a course of

action only to turn around and penalize it—regardless of the extent to which the duties and

functions of DOJ and DOR are separate. See Opinion, ¶¶ 21-25. The loans previously

approved by DOJ which Shelby had already consummated are a done deal; as between the
18

two, it should be the State, not the citizen, which bears the consequence of the conflicting

actions of the State’s own agents.

¶49 I would reverse the imposition of sanctions against Shelby Distributors. I dissent

from the Court’s failure to do so.

/S/ PATRICIA COTTER