No. 14945 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

THE DEPARTMENT OF REVENUE 

OF THE STATE OF MONTANA, 

Petitioner, 

THE STATE TAX APPEAL BOARD, HELEN M. 

PETERSON, Chairman, ROBERT S . RAUNDAL , Member, and Honorable WILLIAM H. CODER, 

Judge of the Eighth Judicial District 

of the State of Montana, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Petitioner: 

J. Vaughan Barron, Legal Division, Dept. of Revenue, 

Helena, Montana 

For Respondents: 

L. Morris Ormseth, Great Falls, Montana 

James R. Paull, Great Falls, Montana 

Randall Swanberg, Great Falls, Montana 

James, Gray & McCafferty, Great Falls, Montana 

Church, Harris & Johnson, Great Falls, Montana 

Submitted on briefs: November 19, 1979 

Filed: 1 (i 1s~~ 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

The State Department of Revenue has filed a petition for 

a writ of supervisory control in this Court seeking an order 

from this Court enjoining the State Tax Appeal Board from granting each owner of commercial property a 34% reduction in the appraised value of his property for tax purposes and directing the 

District Court of Cascade County to reopen cause No. 85980A for 

the reception of further evidence concerning the tax market value 

of commercial properties involved in that litigation. 

The underlying dispute between the parties involves the 

statewide reappraisal completed in 1978. A number of owners of 

commercial property in Cascade County protested that the appraisals 

on the improvements on their property were too high in comparison 

to appraisals on improvements on residential property. They first 

appealed to the Cascade County Tax Appeal Board which denied their 

request for reduction. This decision was appealed to the State 

Tax Appeal Board (STAB) which held further hearings. STAB ruled 

that the Department of Revenue (DOR) had discriminated against 

owners of commercial improvements in favor of owners of residential improvements and directed DOR and the Cascade County assessor 

to reduce the appraisal value of commercial improvements on each 

property by 34%. 

Thereafter DOR filed a petition for judicial review in 

the District Court of Cascade County, naming STAB and the taxpayers as respondents. On December 15, 1978, DOR filed a motion 

to suspend briefing on the petition for judicial review and to set 

the matter for "a further evidentiary hearing" to permit it to 

introduce additional evidence. A hearing was held before Judge 

Coder at 10:05 a.m. on December 28, 1978, at which time argument 

was presented by DOR and the taxpayers in question, on the motion 

for an additional evidentiary hearing. Upon conclusion of oral 
argument, the matter was taken under advisement by Judge Coder. 

Subsequently, briefs were submitted by the parties in 

support of and in opposition to the petition for judicial review. Oral argument was held before Judge Coder on the petition 

for judicial review on February 28, 1979. On June 14, 1979, 

Judge Coder entered an order denying the motion of DOR for a 

further evidentiary hearing and a separate opinion and order 

denying the relief sought by DOR in its petition for judicial 

review and affirming the decision of the STAB with certain 

exceptions, not applicable here. Judgment was entered upon said 

opinion and order on June 18, 1979. Notice of entry of judgment 

was filed on June 18, 1979, and served upon DOR in accordance 

with the Montana Rules of Civil Procedure. 

On July 27, 1979, DOR filed its notice of appeal to this 

Court in the Cascade County action. The District Court file, 

exhibits, transcript and briefs on appeal have now been filed 

and the appeal is ready for setting on the next appeal calendar. 

In the meantime on August 30, 1979, DOR filed the instant 

application for supervisory control with this Court claiming an 

emergency wherein the remedy by appeal would not afford plain, 

speedy or adequate relief. According to DOR, STAB has granted 

102 commercial property owners a 34% reduction in the appraisal 

value of their property for the 1978 tax year with appeals to the 

District Courts in 19 counties pending. Additionally DOR alleges 

that over 2,000 appeals to STAB are pending which seek a 34% reduction in commercial values for 1979. This will require appeals 

to the District Courts in 25 counties representing a tax loss 

of about $2,245,000 primarily to cities according to DOR. In order 

to establish this alleged error by STAB will require legal representation far exceeding the capacity of the four staff attorneys 

available to DOR, it is alleged. 
On September 13, 1979, this Court established a briefing schedule and held further action on DOR's petition in abeyance pending receipt of the briefs. On October 29, 1979, 

representatives filed a motion to dismiss this proceeding on the 

following grounds: (1) DOR's petition is defective procedurally; 

(2) the correct remedy is an expedited appeal rather than supervisory control; (3) the District Court's decision is correct in 

any court. 

The gist of DOR's position is that the remedy by appeal 

is inadequate because a flood of litigation throughout the state 

has been precipitated by the 34% reduction in the appraisals of 

commercial improvements granted by STAB and by the District 

Court of Cascade County in cause #85980A. DOR argues that this 

has created an emergency from the standpoint of its legal resources and by tying up about 2.25 million dollars in local tax 

revenues. DOR further contends that the record on appeal in 

cause #85980A is incomplete because of the District Court's refusal to reopen the case and permit it to introduce evidence of 

the true market value of the commercial improvements. This 

combination of circumstances demonstrates the need for supervisory 

control by this Court according to DOR. 

Respondents, on the other hand, argue that a writ of 

supervisory control is not a proper remedy because DOR has failed 

to comply with Rule 17(d), M.R.App.Civ.P., by its failure to 

attach a copy of the District Court's order affirming STAB and 

its order denying DOR's application to reopen cause #85980A for 

the reception of further evidence. They further argue that the 

appropriate remedy is a request for an expedited appeal of cause 

#85980A precluding extraordinary relief by writ of supervisory 

control. Finally they contend that the District Court's denial 

of reopening is correct in any event because DOR made no showing 

of good cause for reopening as required by statute, no offer of 
proof was made, and that DOR came before the District Court with 

"unclean hands." 

We decline to accept jurisdiction at this time by supervisory control. The issues presented by this petition appear 

to be the same issues presented by DOR1s appeal which is ready 

for setting on our February 1980 Calendar. This renders the 

remedy by appeal adequate precluding review by supervisory control. State ex rel. Jennings v. District Court (1978), Mont . 

, 582 P.2d 1260, 35 St.Rep. 1264; and State ex rel. Woodahl 

v. District Court (1976), 170 Mont. 329, 553 P.2d 971. 

Our ruling herein is expressly made without prejudice to 

any future application for relief by extraordinary writ should 

circumstances develop hereinafter rendering the remedy by appeal 

inadequate to decide the underlying question, viz. whether the 

method, procedure and appraisals of DOR in its statewide property 

reappraisal for tax purposes of commercial vis-a-vis residential 

improvements complies with the law. 

Chief Justice