No. 87-403

INTHE STJPREME COURT OF THE STATE OF MONTANA
1988

JOHN E. WRIGHT, Plaintiffand Appellant,

STATEOF MONTANA, MICHAEL GREELY, Attorney General of the State of Montana; RAY HOUGHTON; CITY OF BOZEMAN, a Municipal corporation; and EDWARD MALONE,
Defendantsand Respondents.

APPEAL FROM: District Court of the Eighteenth JudicialDistrict, Inand for the County of Gallatin, TheHonorable ThomasA. Olson, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:
J. David Penwell,Bozeman,Montana
For Respondent:
Leanne M. Schraudner,Lilly,Andriolo and Schraudner; Bozeman, Montana, G. CurtisDrake,Keller,Reynolds,Drake,Sterhagen and Johnson;Helena,Montana JohnMaynard,TortClaims Division, Helena,Montana

Submitted on Briefs: February 18, 1988 Decided:

Filed: 

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### -- ClerkMr. 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 issueon 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 JohnWright 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 longermandates 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 thathe replied by saying, "Hell,no." Additional testimony indicates hewas 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 touse for the drivingportion of the exam. Beforehe left hewas advised by Houghton tobe sure tobring back adequateproof of insurance. Wright returned but with what Houghton thought to be inadequateproof 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 comeback that day as he would not be waited upon further. Wright left, attempting to slam the office door as hewent. Wright did return later that day and tried to use an office phone restricted to office business only. Having several customers and notwanting a disturbance, Houghton called thepolice 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 licensedoesnot 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 issueof 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 disputeswhether therewasprobable cause to arrest and second, whetherWrightwas arrestedbecausehe was required to give his Social Security number as a condition precedent to obtaininghis driver's license. We will address the second issue first. The standard of review for an order for summary judgment is the same as thatused by theDistrict Courtunder Rule 56, M. R.Civ.P. Mayer Bros. v. Daniel Richard Jewelers, Inc

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(Mont. 1986), 726 P.2d 815, 816, 43 St.Rep. 1821, 1822. If the record does not show an issue ofmaterial 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 Bergerv. State (Mont. 19851, 698P.2d 399, 401, 42 St.Rep. 272, 274. Further,we have stated that a party opposing a motion for summary judgmentmay 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 affidavitswere filed. Wright's owndeposition

was not filed until a month after the court's judgment. The court need not consider untimely filed documents inproceedings 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 DistrictCourt 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

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## , 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 DistrictCourt 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 arrestwas 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.JusticesMr. Justice John C. Sheehy,dissenting:

In Hamlet's soliloquy, one of the "whips and scorns" which led the great Dane to consider whether deathwasbetter than lifewas "the insolenceof 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 inperforming their duties. The authority to wear a badge or towield a pen inpower 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 insolenceof office inus 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 issuesofmaterial 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 hewent to a public building to renewhis 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 wasgroundless, 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 thathis arrestwas groundless. She describes how the examiner (withoutany authority to do so) told Wright not to return for his license thatday. When Wright returned,with his proof of insurance, the examiner immediately, without exchanging a word with Wright, telephoned for thepolice. Rena Knapp describes the interval until the policeman came as no shouting and no threateningby 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 examinerwanted Wright out of the office; "thathe 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 thewritten exam,and had insurancepapers 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 buildingwhere he had a right to be, and groundlessly charged with crimes. There are in this case genuine issues ofmaterial fact, and summary judgmentwas improper. Iwould reverse.