No. 14945 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

THE DEPARTMENT OF REVENUE OF THE STATE OF MONTANA, Petitioner,

THE STATE TAXAPPEAL BOARD, HELEN M. PETERSON,Chairman, ROBERT S

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## , Member, and HonorableWILLIAM H. CODER, Judge of the Eighth Judicial District of the State ofMontana, 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: 

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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 StateTax Appeal Board from granting each owner of commercialproperty a 34%reduction in the appraised value of his property for tax purposes and directing the District Court of Cascade County to reopen causeNo. 85980A for the receptionof further evidence concerning the tax market value of commercialproperties involved in that litigation. The underlying dispute between the parties involves the statewide reappraisal completed in 1978. A number of owners of commercialproperty in Cascade County protested that the appraisals
on the improvements on their property were too high in comparison to appraisals on improvements on residentialproperty. They first appealed to the Cascade County Tax Appeal Board which denied their request for reduction. This decision was appealed to the State TaxAppeal Board (STAB)which held furtherhearings. 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 thematter for "afurther evidentiary hearing" to permit it to introduceadditional 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 oralargument, thematter was taken under advisementby Judge Coder. Subsequently,briefs were submitted by the parties in support of and in opposition to the petition for judicial review. Oral argumentwas 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 soughtby DOR in itspetition for judicial review and affirming the decision of the STAB with certain exceptions,not applicablehere. 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 itsnotice 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 onAugust 30, 1979,DOR filed the instant application for supervisory controlwith this Court claiming an emergencywherein the remedy by appealwould not afford plain, speedy or adequate relief. According to DOR, STAB has granted 102 commercialproperty owners a 34% reduction in the appraisal value of their property for the 1978 tax year with appeals to the District Courts in 19 countiespending. Additionally DOR alleges that over 2,000 appeals to STAB are pending which seek a 34% reduction in commercial values for 1979. Thiswill require appeals to the District Courts in 25 counties representing a tax loss of about $2,245,000 primarily to cities according to DOR. Inorder 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 scheduleand held further action on DOR's petition in abeyance pending receipt of the briefs. On October 29, 1979, representatives filed a motion to dismiss thisproceeding on the following grounds: (1)DOR's petition isdefective 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'sposition 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 standpointof its legal resourcesand 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 DistrictCourt'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 controlby this Court according to DOR. Respondents, on the other hand, argue that a writ of supervisory control is not a proper remedybecause DOR has failed to complywith 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 #85980Aprecluding extraordinary relief by writ of supervisory control. Finally they contend that the DistrictCourt'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 ofproof wasmade, and that DOR came before the District Court with "uncleanhands." We decline to accept jurisdiction at this time by supervisory control. The issuespresented by thispetition appear to be the same issuespresented by DOR1sappealwhich is ready for setting on our February 1980 Calendar. This renders the remedy by appeal adequateprecluding reviewby supervisory control. State ex rel. Jenningsv. District Court (1978), Mont

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, 582 P.2d 1260, 35 St.Rep. 1264; and State ex rel. Woodahl
v. District Court (1976), 170Mont. 329, 553 P.2d 971. Our ruling herein is expresslymade 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 statewideproperty reappraisal for tax purposes of commercialvis-a-vis residential improvements complieswith the law.

Chief Justice