No. 87-403 

IN THE STJPREME COURT OF THE STATE OF MONTANA 

1988 

JOHN E. WRIGHT, 

Plaintiff and Appellant, 

STATE OF MONTANA, MICHAEL GREELY, 

Attorney General of the State of 

Montana; RAY HOUGHTON; CITY OF 

BOZEMAN, a Municipal corporation; 

and EDWARD MALONE, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. David Penwell, Bozeman, Montana 

For Respondent : 

Leanne M. Schraudner, Lilly, Andriolo and Schraudner; 

Bozeman, Montana, 

G. Curtis Drake, Keller, Reynolds, Drake, Sterhagen 

and Johnson; Helena, Montana 

John Maynard, Tort Claims Division, Helena, Montana 

Submitted on Briefs: February 18, 1988 

Decided: 

Filed: APR 6 - 1988 

'&& f4, '2- 6.. 

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Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

This is an appeal from an order by the District Court, 

Eighteenth Judicial District, Gallatin County, granting 

summary judgment in favor of respondents. We affirm. 

Appellant's issue on appeal restated is: 

Did the District Court err in granting summary judgment 

for all defendants when there existed a material issue of 

fact? 

On January 20, 1984, plaintiff John Wright was arrested 

for violations of § 45-8-101, MCA, disorderly conduct, and S 

45-6-203, MCA, criminal trespass, while attempting to renew 

his expired Montana driver's license at the Licensing Bureau 

offices in Bozeman. Wright entered the Bureau offices in 

midmorning with the intention of renewing his expired 

license. He was first waited upon by examiner Rena Knapp, 

who informed him that because his license was past 90 days 

expired, he was required to pass a complete driving 

examination before being issued a new license. Wright took 

and successfully passed the written exam and then was 

required by Knapp to fill out the standard application form 

called a DL-40. The form he filled out contained a clause 

that required the disclosure of his Social Security number. 

Although Montana law no longer mandates the use of a Social 

Security number, many of the old forms are still being used. 

Either Knapp or examiner Ray Houghton asked him what his 

number was. He indicated he did not wish to disclose his 

Social Security number and there is testimony that he replied 

by saying, "Hell, no." Additional testimony indicates he was 

given a random number. 
At this point, examiner Houghton took over the 

application of Wright. After apparently completing the rest 

of the form, Wright left the office and returned with the 

vehicle he wished to use for the driving portion of the exam. 

Before he left he was advised by Houghton to be sure to bring 

back adequate proof of insurance. 

Wright returned but with what Houghton thought to be 

inadequate proof of insurance, and he refused to allow Wright 

to finish the exam because an examiner is prohibited from 

getting into a vehicle without adequate proof of insurance. 

A loud argument ensued and ended when Wright called Houghton 

a "horse's ass." Houghton then told Wright not to come back 

that day as he would not be waited upon further. Wright 

left, attempting to slam the office door as he went. Wright 

did return later that day and tried to use an office phone 

restricted to office business only. Having several customers 

and not wanting a disturbance, Houghton called the police and 

Wright was arrested after refusing the police officer's 

request to leave. He was taken to the detention center, 

booked, and released on bail. The next Monday, Wright 

returned to the Bureau office, showed adequate proof of 

insurance and was given the driving portion of the exam by 

Houghton. He passed and was given a new driver's license. 

All charges were later dismissed. It should be noted that 

Wright's renewed license does not contain his Social Security 

number. 

Wright brought suit for false arrest and other claims 

against the State of Montana, Houghton, City of Bozeman and 

the arresting officer, Ed Malone. All defendants filed a 

motion for summary judgment which was granted July 29, 1987. 

In its order, the District Court noted the lack of any 

evidence submitted in opposition to the motion and found no 

material issue of fact existed. Plaintiff appeals. 
Appellant argues that the court ignored the existence of 

two issues of fact at the time it entered summary judgment. 

First, appellant disputes whether there was probable cause to 

arrest and second, whether Wright was arrested because he was 

required to give his Social Security number as a condition 

precedent to obtaining his driver's license. We will address 

the second issue first. 

The standard of review for an order for summary judgment 

is the same as that used by the District Court under Rule 56, 

M. R. Civ. P. Mayer Bros. v. Daniel Richard Jewelers, Inc . (Mont. 1986), 726 P.2d 815, 816, 43 St.Rep. 1821, 1822. If 

the record does not show an issue of material fact exists the 

movant is entitled to summary judgment as a matter of law. 

Rule 56 (c) , M.R.Civ.P. 

The burden of proof requirements for summary judgment 

have been set forth by this Court on innumerable occasions. 

The initial burden is on the party seeking summary judgment. 

Once that burden is met the party opposing the motion must 

present evidence substantial and material enough to raise a 

genuine issue of fact. B.M. By Berger v. State (Mont. 19851, 

698 P.2d 399, 401, 42 St.Rep. 272, 274. 

Further, we have stated that a party opposing a motion 

for summary judgment may not rest upon his pleadings but has 

an affirmative duty to bring forth sworn testimony or 

affidavits which show a genuine issue. Mere allegations are 

insufficient to raise a genuine issue of fact. Mayer Bros. , 

726 P.2d at 817; B.M. By Berger, 698 P.2d at 401; Conboy v. 

State (Mont. 1985), 693 P.2d 547, 551, 42 St.Rep. 120, 125. 

The appellant presented no evidence to the District 

Court in opposition of respondent's motion for summary 

judgment. No affidavits were filed. Wright's own deposition 

was not filed until a month after the court's judgment. The 

court need not consider untimely filed documents in 
proceedings for summary judgment. Marcus Daly Memorial 

Hospital v. Borkoski (Mont. 1981), 624 P.2d 997, 1000, 38 

St.Rep. 322, 325. 

Appellant argues that a negotiation session between the 

parties transcribed by a court reporter can be considered by 

the District Court. We hold that because this is not sworn 

testimony the District Court need not consider it in 

proceedings for summary judgment. 

The relevant depositions in the District Court file are 

all consistent on the point of Wright's Social Security 

number. Both Knapp and Houghton testified that Wright was 

not required to use his Social Security number and was in 

fact assigned a random number. There is no opposing evidence 

that shows he was forced to use his Social Security number. 

That number is not on his driver's license. Knapp ' s , 

Houghton's and Malone's depositions are consistent in showing 

that the conflict arose over Wright's lack of proof of 

insurance. Even if Wright's deposition showed an 

inconsistency it was not before the court and cannot be 

considered. The appellant failed to carry his burden and the 

District Court made its decision accordingly. 

Appellant also argues that whether officer Malone had 

probable cause to arrest Wright is a question of fact which 

the appellant is entitled to present to a jury. The general 

rule is that where the facts are undisputed the question of 

whether an arrest was legal or illegal becomes a question of 

law for the court. 32 Am. Jur.2d False Imprisonment, S 96. 

Since no material fact exists the respondents were 

entitled to summary judgment as a matter of law. We 

therefore affirm the District Court's order for summary 

judgment. 
Justices 
Mr. Justice John C. Sheehy, dissenting: 

In Hamlet's soliloquy, one of the "whips and scorns" 

which led the great Dane to consider whether death was better 

than life was "the insolence of office." In those few words, 

the Bard managed to express the aggravations and futilities 

pressed on any of us when public officials vent their sour 

stomachs in performing their duties. The authority to wear a 

badge or to wield a pen in power over others seems to fuel in 

us a sense of mastery, and not of service. It is a common 

failing, and all of us public servants succumb to it at some 

point. 

It is an insolence of office in us to disregard the rule 

of law applicable to a summary judgment in this case. That 

rule is that a summary judgment does not lie where there are 

genuine issues of material fact. 

This Court assumes without question that the version of 

incidents propounded by the public officers in this case is 

the only version. It ignores the opposite version posed by 

the plaintiff, that he went to a public building to renew his 

driver's license; that his Social Security number was 

demanded; that he later produced proof of insurance but that 

the examiner refused to issue him a license that day, and 

told him to return on the following Monday; and that the 

examiner called the police and had him arrested; that the 

charges against him were disorderly conduct and criminaltrespass; and that both of these charges were later 

dismissed. In short, he went to a public building for a 

driver's license and wound up handcuffed and led off to the 

police station. 

The real question in this case is whether there was 

probable cause for Wright's arrest. If his arrest was 
groundless, he has a cause of action against the 

perpetrators. Neither the District Court nor this Court 

addresses that question. The deposition testimony of Rena 

Knapp is strong evidence that his arrest was groundless. She 

describes how the examiner (without any authority to do so) 

told Wright not to return for his license that day. 

When Wright returned, with his proof of insurance, the 

examiner immediately, without exchanging a word with Wright, 

telephoned for the police. Rena Knapp describes the interval 

until the policeman came as no shouting and no threatening by 

Wright. When the policeman came and asked what the problem 

was, the examiner said that Wright had been asked to leave, 

and would not, and that the examiner wanted Wright out of the 

office; "that he would no longer be helped that day." There 

appears no justification for refusal to help Wright on that 

day, since he had paid for his license, successfully taken 

the written exam, and had insurance papers which entitled him 

to a test drive. For reasons of his own, it appears the 

patrolman was punishing Wright. Without any struggle or 

tumult, Wright was handcuffed and taken out of a public 

building where he had a right to be, and groundlessly charged 

with crimes. 

There are in this case genuine issues of material fact, 

and summary judgment was improper. I would reverse.