NO. 94-324

IN THE SUPREME COURT OF THE

1995

STATE OF MONTANA

IN THE MATTER OF THE RENEWAL,

OF THE TEACHING CERTIFICATE OF

GERALD THOMPSON

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Kathleen F. Holden, Special Assistant Attorney

General, Office of Public Instruction, Helena,

Montana

For Respondent:

Torger S. Oaas, Lewistown, Montana; Elizabeth A

Best, Best Law Offices, Great Falls, Montana

For Amicus:

Hon. Joseph P. Mazurek, Attorney General, Kimberly

A. Kradolfer, Assistant Attorney General, Helena,

Montana (Board of Public Education); Janice F.

Doggett (Montana School Boards Ass'n); Douglas F.

Bates, Salt Lake City, Utah, (National Ass'n of

State Directors of Teacher Education and

Certification)

:
Justice Fred J. Weber delivered the Opinion of the Court.

The Montana Office of Public Instruction appeals from an Order

of the District Court of the Eighth Judicial District, Cascade

county. The District Court's Order reversed an Order of the Board

of Public Education which denied the renewal of Gerald Thompson's

teaching certificate. Nonrenewal was based on the Board's

conclusion that Gerald Thompson is not of good moral and

professional character because of incidents of sexual misconduct.

The District Court concluded that the authorities involved in

investigating the allegations of sexual misconduct had actively

sought to suppress the truth, that the actions of the County

Attorney were "shocking to the conscience" of the court and that

Gerald Thompson had been deprived of due process during the

proceedings leading up to the Hearing Examiner's decision which was

adopted by the Board of Public Education. We affirm the District

Court.

The dispositive issues are as follows:

I . Did the District Court err in reversing the Order of the

Board of Public Education based on the expert testimony provided by

OPI's expert?

II. Did the District Court err in concluding that the Order

of the Board of Public Education was not supported by substantial

credible evidence?

Gerald Thompson (Thompson) began teaching in 1977. In 1981,

he was hired by the Hobson School District to teach, coach

basketball, and to be part-time administrative assistant to the

district superintendent. He was head high school basketball coach

for the boys' team from 1981 until his resignation on December 5,

2
1988. He also coached high school girls' basketball from 1984

until 1987. In July 1987, he was promoted to district school

superintendent and he relinquished his teaching and girls'

basketball coaching duties.

In late November of 1988, the Board of Trustees for the Hobson

School District (School Board) received two letters alleging sexual

misconduct by Thompson. Lisa Killham (Killham), a 1987 Hobson High

School graduate, signed one of these letters; K.W., a senior at

Hobson High School at the time, signed the other.

The School Board later received two additional claims alleging

sexual misconduct by Thompson. One of these was from a former

employee of the school district, Margaret Aamold, alleging sexual

misconduct during her employment; the other was from a 1986 Hobson

High School graduate, Tammy Hutchinson (Hutchinson), alleging

sexual misconduct by Thompson after her graduation from high school

when she visited him at his home.

Hobson is a community of less than 250 residents. The

substance of the letters from Killham and K.W. became widely

disseminated throughout the small community within a period of

approximately forty-eight hours after the School Board met to

consider what to do about the allegations. As a result of the

allegations becoming widely known in Hobson and the publication of

an article about the sexual misconduct allegations, Thompson

resigned his position with the Hobson School District effective

December 5, 1988. His resignation was due in part to the position

taken by at least two School Board members who stated their belief

3
that Thompson could not continue to be effective in his position

considering the community's division regarding the truthfulness of

the allegations made by Killham and K.W.

The Judith Basin County Attorney investigated the allegations

on behalf of the School Board. She also referred the matter to the

Attorney General's office for a decision on whether to prosecute

Thompson for criminal sexual conduct regarding the facts alleged in

the claims made by Killham and K.W. Thompson was subsequently

charged with two counts of sexual intercourse without consent and

one count of attempted sexual contact.

The Office of Public Instruction (OPI) controls the granting

and renewal of teaching certificates in Montana. Thompson's

teaching certificate expired July 1, 1990, approximately one and

one-half years after the first allegations of sexual misconduct

came to light. Prior to its expiration, he filed an incomplete

application for renewal, indicating that he was awaiting the

resolution of pending criminal charges. In December of 1990, the

charges against Thompson were dismissed. Thompson then notified

OPI of such dismissal.

OPI investigated the matter primarily by obtaining a copy of

the Attorney General's file on the criminal charges against

Thompson. After OPI's investigation, the Superintendent of Public

Instruction denied renewal of Thompson's teaching certificate on

May 16, 1991, based on OPI's determination that Thompson was not of

good moral character, as required by 5 20-4-104(l) (b), MCA.

Thompson appealed OPI's decision to the Board of Public

4
Education (the Board). The Board appointed an attorney as hearing

examiner for purposes of the appeal and a hearing was held on April

8-11, 1992. The Hearing Examiner determined that OPI's decision to

deny renewal of Thompson's teaching certificate should be upheld

because Thompson did not meet the requirement of § 20-4-104(l) (b),

MCA, that he be of "good moral and professional character." This

conclusion was based on the Hearing Examiner's finding that

Thompson demanded and attempted to force Killham to engage in

sexual activities with him on December 9, 1986, when she was a

student at Hobson High School, and the additional finding that he

had made unwelcome sexual advances toward Hutchinson in 1987. In

view of the contradictory testimony elicited from various

witnesses, we emphasize that the findings were limited to an

unsuccessful attempt to force Killham to perform oral sex and a

making of unwelcome sexual advances to Hutchinson.

Thompson filed formal exceptions to the Proposed Order of the

Hearing Examiner. The Board heard arguments by the parties on

January 22, 1993 and subsequently reviewed the entire transcript

and all exhibits. On March 19, 1993, the Board voted 5-l to uphold

the findings and conclusions of the Hearing Examiner, adopting them

and the proposed order without amendment.

Thompson then appealed the matter to the District Court. The

District Court reversed the Board's decision and remanded the

matter to the Board, determining that the decision not to renew

Thompson's certification was clearly erroneous because it was not

supported by substantial evidence. The court also concluded that

5
the Hearing Examiner had allowed an unqualified witness, held out

as an "expert," to l'excuse obviously false and vindictive testimony

to support OPI's refusal to renew Gerald Thompson's teaching

certificate." The court further stated that the Hearing Examiner

had used allegations of non-school related conduct--Hutchinson's

allegations--to support that conclusion. The court stated that a

review of the record left the court with the definite and firm

conviction that a mistake and an injustice had been committed. The

court held that Thompson's procedural and substantive due process

rights had been violated by the actions of the Judith Basin County

Attorney, on behalf of the School Board and OPI, and that such

actions shocked the conscience of the court. The court further

held that the admission of improper expert testimony deprived

Thompson of the fundamental fairness mandated by due process.

OPI appeals the District Court's reversal of the Board's

decision to this Court. The following quote from the Proposed

Order of the Hearing Examiner aptly describes the seriousness of

the case before us:

Although the decision in this matter is as difficult as

any I have made as a hearings examiner, there are certain

things which are clear. From the testimony of numerous

witnesses it is beyond refute that Mr. Thompson was a

talented and respected teacher, coach and administrator.

If the charges are untrue a high caliber professional has

had his life's work ruined. However, if the charges are

true he is a sexual predator who should not be in a

position of power and authority with women and girls and

the licensing agency would be remiss if it allowed Mr.

Thompson to be licensed as a teacher.

Further facts are provided throughout this opinion as may be

necessary for discussion.
ISSUE I

Did the District Court err in reversing the Order of the Board

of Public Education based on the expert testimony provided by

OPI's expert?

OPI presented a drug and alcohol counselor to provide

testimony as an expert witness on sexual abuse. OPI's expert

provided the only expert testimony at the hearing. Her testimony

formed the basis for the Hearing Examiner's findings that Thompson

attempted to have sexual relations with Killham on December 9,

1986, and with Hutchinson in 1987. As to the allegations made by

K.W. and Mrs. Aamold, the Hearing Examiner determined that their

allegations were not credible.

Although the testimony and the allegations of abuse made by

both Killham and Hutchinson were fraught with inconsistencies and

contradictions which the Hearing Examiner stated would seem to make

them improbable, the examiner disregarded these inconsistencies

based on the expert's testimony. The findings include the

following statements concerning the drug and alcohol counselor's

testimony as used by the examiner to support Killham's credibility:

The stories of the two main complaining witnesses

are troubled by inconsistencies and contrary evidence.

However, OPI presented expert testimony that

inconsistencies are part of the normal pattern of

behavior for sexual abuse or sexual harassment victims.

The expert is a counselor with extensive training

in sexual abuse and extensive experience in counseling

victims. I found her testimony credible.

. .

The inconsistencies begin immediately. [Killham's]

letter to the school board . . . alleges that she was

forced to actually perform oral sex with Mr. Thompson on

that day. [The inconsistency is that at the time of

hearing Killham testified that Mr. Thompson asked her to
perform oral sex but that she did not do so.] The boys'

teams had played their first games of the season prior to

December 9. It is illogical that Lisa would be getting

practice jerseys on December 9, since the jerseys would

have been handed out to the team members long before.

The teacher whom she testified interrupted the assault

has no recollection of going to the storage room and

finding Lisa and Mr. Thompson. Mr. Thompson established

he went to his dentist's office that afternoon to receive

his allergy shot and was there for an hour or more . . .

This left very little time for the incident to occur.

The librarian, where Lisa was working as an aide around

the time of the incident recalls Lisa being very happy

and excited about her eighteenth birthday. Lisa wrote a

note in Mr. Thompson's practice book that day, after the

incident was alleged to have occurred. She wrote "Lisa's

B-day" and drew a happy face.

.

The inconsistencies would seem to make Lisa's

allegations improbable. However, my interpretation of

the sexual abuse expert's testimony is that blocking out

abusive incidents from memory is a self-preservation

mechanism commonly employed by victims and that later

recollection tends to come back slowly and incompletely

and in a jumbled fashion, and that it is common for the

victim to put up a facade of normalcy. This is logical

and consistent with Lisa's testimony.

. .

Again, the sexual abuse expert testified victims

tend to be those who appear to be vulnerable and lacking

in self-esteem. Lisa fits that profile. . .

The following statements by the Hearing Examiner relate to

Hutchinson's testimony:

Again there are inconsistencies. Tammy stopped to see

Mr. Thompson at the school and at home on a later visit

to Hobson, making a point to introduce her friend from

college. At a basketball game she sat with Mr. Thompson

and engaged in conversation the entire time. This

behavior again fits that of an abuse victim. I find Mrs.

Hutchinson to be a very credible witness to which Mr.

Thompson's only response is that this did not happen when

she came to his house that night. I find her testimony

true, and I find that the incident did occur.

Clearly, the assumption that these two young women were victims of

8
sexual abuse pervades the Hearing Examiner's findings and the

conclusions. We emphasize that the conduct of Killham and

Hutchinson as above-quoted, while it arguably may fit within the

profile of victims, could also fit many other explanations. Other

explanations for their behavior were not ruled out, nor were they

addressed. Moreover, the incident alleged by Hutchinson, if true,

occurred at Thompson's home and long after she graduated from high

school. It is insufficient in itself to support the Board's

action, and it was arguably inappropriate to use it to buttress the

charge brought by Killham which the Hearing Examiner found had

occurred.

The Hearing Examiner's conclusion that the abusive incidents

occurred hinged on the drug and alcohol counselor's testimony as an

expert on sexual abuse. The District Court concluded that the

Hearing Examiner "improperly relied on concededly incredible

testimony which was erroneously bolstered by inadmissible testimony

of an unqualified expert." This conclusion raises two separate

issues--whether the testimony was admissible and whether the expert

was qualified to testify. For the reasons explained below, we

conclude the Hearing Examiner erred in basing his decision on the

inadmissible testimony and, therefore, we decline to address the

qualification of the expert witness.

Standard of Review

On appeal, the District Court determined that OPI's expert had

testified that the abuses alleged by Killham and Hutchinson had

occurred and that her testimony should not have been admitted.

9
Like other decisions concerning the admissibility of evidence, a

ruling on whether expert testimony is admissible is left to the

discretion of the trial judge. State v. J.C.E. (19881, 235 Mont.

264, 269, 767 P.2d 309, 312; State v. Harris (19911, 247 Mont. 405,

410, 808 P.2d 453, 455. Similarly, the determination of whether a

witness is qualified as an expert is left to the discretion of the

trial judge, who has wide latitude in making such determinations.

J.C.E., 767 P.2d at 312. Citing the general rule in Montana that

experts may not testify on an ultimate issue, the District Court in

this case determined that the ultimate issue was whether the

alleged acts had occurred and that the expert had testified that

the acts alleged really did occur, thereby invading the province of

the trier of fact. See Heltborg v. Modern Machinery (lPPO), 244

Mont. 24, 29-33, 795 P.2d 954, 957-59.

Was the expert's testimonv admissible?

Admissibility of expert testimony in administrative

proceedings is an issue which has not been thoroughly addressed by

this Court. The Montana Administrative Procedure Act (MAPA), at 5

Z-4-612(2), MCA, provides that agencies are bound by common law and

statutory rules of evidence, except as otherwise provided by

statute relating directly to an agency. Often the hearing examiner

in a formal contested case hearing will admit the evidence and will

consider the weight to be given to such evidence when preparing

findings and conclusions from all the evidence. Although the Rules

of Evidence are generally more relaxed in an administrative

proceeding than in a court of law, they are not to be relaxed to

10
the point of disregarding due process of law and the fundamental

rights of the individual. Hert v. J.J. Newberry Co. (1978), 178

Mont. 355, 364, 584 P.2d 656, 661. While our discussion in this

case draws on other areas of the law in reaching conclusions, OUI

opinion is directed only to the administrative hearing process.

Although this case centers around the allegations of high

school students, and the two incidents relied on by the Hearing

Examiner involved an eighteen-year-old and a nineteen-year-old, our

discussion is permeated with references to child sexual abuse

without reference to age as that is how it was presented at the

administrative hearing and argued in briefs in this Court by the

parties and by amici curiae.

In a criminal case, the question whether a child is a victim

of sexual abuse is a question that may be clarified by qualified

expert testimony. Harris, 808 P.2d at 456. As a general rule,

however, expert testimony evaluating the credibility of witnesses

is not admissible. We have adopted an exception to this general

rule in cases where the witness is a child victim of sexual

assault, testifies at trial and credibility is brought into

question. J.C.E., 767 P.2d at 312-13; Harris, 808 P.Zd at 455.

OPI relied on this exception to introduce otherwise inadmissible

evidence to rebut the impeachment evidence provided by Thompson.

We have not addressed to an appreciable degree in the area of

criminal law at what age such rehabilitative evidence is no longer

appropriate and we have not indicated that it is appropriate to

consider it up to and beyond the age of attaining majority. Most

1 1
of our cases addressing this subject involve young children. 1n

State v. Donnelly (1990), 244 Mont. 371, 378, 798 P.2d 89, 93,

however, we discussed expert testimony on credibility in relation

to a victim who was fifteen years old at the time she testified,

but who had been sexually abused prior to that time. In Donnellv,

798 P.2d at 93, an expert was allowed to provide testimony to

rehabilitate the credibility of the victim.

In State v. Hensley (1991), 250 Mont. 478, 481, 821 P.2d 1029,

1031, the victim was a month shy of her seventeenth birthday when

she testified that she had been abused over a five-year period. We

concluded that admitting the expert testimony in Hensley was

reversible error where the victim was sixteen years old, a

competent witness and was under no physical or mental disability.

Hensley, 821 P.2d at 1032. We reasoned that the jury was capable

of assessing the credibility of such a witness without resort to

expert assistance. If the present case were a criminal

prosecution, no foundation had been laid which would warrant

admission of expert testimony.

In our present case, the allegations were made to the School

Board. Those allegations triggered criminal charges which were

later dismissed. The charges were made by adults and by one minor,

K.W., age sixteen in 1988 at the time she made the allegations.

Although Killham was still in high school, she reached eighteen on

the very day of the alleged act which the Hearing Examiner found

had occurred. She made the allegations nearly two years later.

The question then is whether there was a proper basis or foundation

12
for expert testimony in the present case to rehabilitate the

credibility of the witnesses.

The cases which have come before this Court involving sexual

abuse have raised difficult evidentiary questions. Harris, 808

P.2d at 456. Much of the litigation regarding such abuse has

challenged the suitability of using experts' opinions to determine

if a particular person was a victim of sexual abuse. It has

involved issues of hearsay and whether the conduct exhibited by the

alleged victim was consistent with conduct demonstrated by victims

of sexual abuse in general. It has often related to the

unavailability of the child victim for purposes of testifying, as

well as the normally inadmissible out-of-court statements of very

young children. In such cases, if the victim was unable to relate

information about an alleged offense in a courtroom setting,

crucial probative evidence may have been lost.

We have summarized the foregoing to emphasize that none of the

foregoing applies in the present case. Here the grave danger by

the admission of such expert testimony was demonstrated with

clarity when the expert testified in general statements about

delays in reporting abuse, recantations and inconsistencies in

testimony of sexual abuse victims; and her general statements were

relied upon by the Hearing Examiner. We emphasize here that, while

the present case involved an administrative proceeding, the

constitutionally protected interest of Thompson in his right to

employment as a teacher was directly involved. At that point, the

effect of inadmissible testimony becomes most significant. In

1 3
Harris, 808 P.2d at 456, we stated:

While we recognize that expert testimony regarding the

sometimes puzzling and seemingly contradictory behavior

of victims of child sexual assault may aid the jury to

determine ultimate issues, such as whether the crime

actually occurred, we must be careful not to allow the

witness to become a conduit for otherwise inadmissible

testimony.

With regard to generalized credibility testimony as presented in

the present case, the rationale for allowing expert testimony to

explain delays in reporting or recantations of charges of sexual

abuse by victims is that it provides reliable information which the

trier of fact can use to assist in understanding evidence. While

qualified experts possess specialized knowledge regarding certain

aspects of credibility, their capacity to detect lying and coaching

is too limited to justify admission of generalized credibility

testimony. John E.B. Myers, Expert Testimony in Child Sexual Abuse

Litisation, 68 Neb. L. Rev. 1, 127 (1989).

Thus, without an explanation, an expert's general statements

that delays and recantations are common in victims of sexual abuse

may prejudice the accused because the trier of fact may defer to

the expertise of the expert in the field of child sexual abuse and

infer that the expert believes the witness to be credible. This is

exactly what happened in the present case. It is the reason that

expert testimony on credibility is not permitted in most instances.

In addition to her testimony about delays in reporting abuse

and recanting prior allegations of abuse, OPI's expert repeatedly

testified, in reference to inconsistent testimony, that memory may

be affected in that a victim's memory of the facts may be unclear,

14
garbled or blurred due to the trauma involved and the resultant

shock used as a buffer by the victim. Again, we note that her

testimony relates to victims of sexual abuse in general, not

specifically child victims.

The key testimony by the expert here Was that the

inconsistencies in the testimony and the contrary nature of some of

the testimony was explained by the alleged sexual abuse, yet the

record indicates that other explanations for the inconsistencies

are possible. Thompson's counsel objected to each of the

hypothetical questions posed to the witness. He based some of the

objections on lack of foundation and relevancy and had a continuing

objection as well to the testimony from this expert witness.

As above cited, Henslev established that where a victim was

sixteen years old, a competent witness, and under no physical or

mental disability, it was reversible error to admit expert

rehabilitation testimony. As we have indicated, the record here

contains nothing to establish that any of the witnesses, all of

whom were over eighteen years of age at the time of the hearing,

were for some reason not competent as witnesses or were under any

form of physical or mental disability. We therefore conclude that

there was a failure to establish a foundation for the use of any

expert testimony under Henslev. As a result, we hold that the

testimony on the part of the expert was not admissible.

ISSUE II

Did the District Court err in concluding that the Order of the

Board of Public Education was not supported by substantial

credible evidence?

15
The Rules of Evidence were developed to assure that triers of

fact formulate their decisions on reliable, probative and

substantial evidence. MAPA acknowledges this concept in providing

standards of review for administrative agency decisions in 5 2-4-

704, MCA. We have interpreted 5 2-4-704, MCA, to mean that an

agency's findings of fact are reviewed to determine whether they

are clearly erroneous. Baldridge v. Rosebud County School Dist.

#19 (1994), 264 Mont. 199, 205, 870 P.2d 711, 714. In addition,

the court may not substitute its judgment for that of the Board as

to the weight of the evidence on questions of fact. Baldridqe, 870

P.2d at 717; § 2-4-704(2), MCA. In order to properly review the

District Court's decision, we must review the Board's findings--

identical to those of the Hearing Examiner in this case--to

determine whether they are supported by reliable, probative and

substantial evidence in the record. Baldridqe, 870 P.2d at 718,

(quoting Trustees, Carbon County School Dist. No. 28 v. Spivey

(1993), 262 Mont. 513, 521, 866 P.2d 208, 213).

The District Court determined that certain of the Hearing

Examiner's findings and conclusions WeZCe not supported by

substantial credible evidence when the expert's testimony was

disregarded. OPI contends that the District Court had to

substitute its judgment for that of the Hearing Examiner and

reweigh the evidence on critical matters of fact in order to

determine that the findings were not supported by substantial

evidence and were thus clearly erroneous. We disagree.

Our holding in Issue I approved the District Court's ruling

16
that the Hearing Examiner had abused his discretion by considering

the testimony of OPI's expert for any purpose. In the proper case,

where there are no independent findings of fact to support the sort

of action taken by the court here, further action on the part of

the Board may be necessary. However, in this case, no purpose

would be served by requiring the Board to hear the matter anew or

to remake findings and conclusions consistent with the excision of

the expert's testimony. The Board adopted all the findings and

conclusions of the Hearing Examiner, and the findings and

conclusions were sufficiently comprehensive so that the court could

modify the Board's order, provided there is substantial evidence in

the record to support them.

The District Court's Order contains sufficient detail of facts

with references to the transcript and other evidence in the record

so that this Court is able to determine that the District Court

thoroughly reviewed the record. There are two critical findings

which the District Court modified after disregarding the expert's

testimony. The court reversed the findings of the Hearing Examiner

which determined that the inconsistencies and contradictions in the

testimony somehow made the claims of sexual misconduct credible,

even though all other evidence pointed to the opposite conclusion.

The first was the conclusion that the sexual misconduct incident

alleged by Killham to have occurred on December 9, 1986, the day of

her eighteenth birthday, did not occur. The other was that the

allegation made by Hutchinson did not occur and was irrelevant to

the issue of renewing Thompson's teacher certification.

17
The common thread in these findings is the impact of the

expert's testimony:

OPI presented expert testimony that inconsistencies are

part of the normal pattern of behavior for sexual abuse

or sexual harassment victims. The expert . is a

counselor with extensive training in sexual abuse and

extensive experience in counseling victims. I found her

testimony credible.

. .

The inconsistencies would seem to make Lisa's

allegations improbable. However, my interpretation of

the sexual abuse expert's testimony is that blocking out

abusive incidents from memory is a self-preservation

mechanism commonly employed by victims and that later

recollection tends to come back slowly and incompletely

and in a jumbled fashion, and that it is common for the

victim to put up a facade of normalcy. This is logical

and consistent with Lisa's testimony.

. . .

. . . Lisa was also apparently preoccupied with

romance and sexual matters and would tell anyone who

would listen the most intimate information.

Again, the sexual abuse expert testified victims

tend to be those who appear to be vulnerable and lacking

in self-esteem. Lisa fits that profile. Lisa's story of

a December 9, 1986 assault is corroborated by three

fellow students whom she told of the incident at the

time. Lisa's testimony that Mr. Thompson got her out of

class to perform managerial duties is consistent with

past practice. Laurie Valentine's testimony that Lisa

was very upset before practice is consistent with Lisa's

testimony. Although Mr. Thompson accounted for a period

of an hour or more, there was time for the incident to

occur. I find Mr. Thompson had Lisa leave her class on

December 9, 1986, on the pretense of performing a task in

the equipment room and when he had gotten her to that

room he attempted to force her to perform oral sex.

Regardless of anything else I find this assault occurred.

One crucial item of testimony which the Hearing Examiner did not

consider is that Thompson was teaching a boys physical education

class during the class period when the incident allegedly occurred.

18
The Hearing Examiner determined that Thompson had accounted for his

time during 6th period but did not consider the unrebutted

testimony that he was teaching this class during 7th period.

The District Court did not reweigh the evidence pertaining to

Killham's allegation. Instead, the court disregarded the testimony

of the expert, was then left with the Hearing Examiner's finding

that the inconsistencies seemed to make Killham's allegation

improbable and considered the unrebutted probative evidence that

Thompson was not free during Killham's 7th period when she claimed

he took her from the library, and concluded that the reliable,

probative and substantial evidence left in the record supported no

other finding than that Killham was not a credible witness.

OPI contends the court could only reach this conclusion by

determining first that Killham's testimony was not credible and

then making the second determination that the testimony of Laura

Valentine, Alynn Mikkelson and Amy Otchko Cummings was not

credible. Valentine, Mikkelson and Cummings all testified that

Killham told them about the alleged incident which occurred on her

birthday, December 9, 1986. They all related substantively

differing stories about what Killham had told them on that day.

The Hearing Examiner used the testimony of these witnesses as

evidence to corroborate Killham's claim that Thompson propositioned

her on December 9, 1986.

The testimony of these three witnesses also contradicted

Killham's testimony which was that she had told no one about the

alleged incident. Numerous witnesses testified that Killham had a

19
"crush" on Thompson while she was in high school and that she was

obsessed with things of a romantic and sexual nature and would

relate the most intimate information to anyone who would listen.

The core details of the stories Killham allegedly told these three

girls differ. For example, Valentine testified that Killham told

her she was forced to perform oral sex on Thompson; the others

testified that she told them that Thompson had only asked her to do

this. Mikkelson testified that Killham had also told her that she

had been forced to perform oral sex on Thompson on an occasion when

he drove her home after she had been babysitting his child. Not

only did Killham testify that this did not occur, she also

testified that she did not tell Mikkelson about this incident.

Valentine also testified about an encounter with K.W. shortly

after the incident K.W. alleged had happened with Thompson in the

summer of 1986. K.W.'s testimony pertaining to that event was that

she had only told one person, Dawn Hall, about the incident, and

that she had not related it to Valentine. The Hearing Examiner did

not find Valentine's testimony credible with regard to K.W.'s

accusations. However, this is the same sort of testimony the

examiner found believable to support the finding that Killham's

alleged sexual abuse incident on December 9, 1986 had occurred.

.

This and other contradictions in the evidence are so prevalent

throughout the testimony as to properly allow a conclusion that

Killham's claim was thoroughly impeached. We conclude there is

substantial evidence in the record for the court to find that

Killham's claim was thoroughly impeached.

20
The District Court also determined that Hutchinson's claim was

thoroughly impeached. First, Hutchinson claimed to be deeply

traumatized by the alleged incident where she claimed Thompson, in

his home, had tried to kiss her and had put his hand on her leg

before she pushed him away. Yet, she repeatedly visited him

thereafter and even brought a college friend to his office to meet

him. The District Court determined that she had "embellished her

claim further with a description of an alleged conversation with

Killham shortly after the alleged Hutchinson incident (in Spring

'87) .I' In relating her story that she contacted Killham right

after that incident, she spoke of the incident in her testimony as

if Killham had been out of high school at the time of their

conversation when, in fact, Killham was still a senior in high

school at that time. After the alleged incident of sexual

misconduct made by Hutchinson, while home from college, Hutchinson

also sat with Thompson for the duration of a basketball game and

engaged in conversation the entire time.

The Hearing Examiner found Hutchinson to be a "very credible

witness to which Mr. Thompson's only response is that this did not

happen when she came to his house that night." The Hearing

Examiner found that her behavior "fit that of an abuse victim."

The Hearing Examiner essentially stated that the testimony of

Killham and Hutchinson was made credible after impeachment by the

expert's testimony. As we have held above, the testimony of the

expert concerning general statements about the behavior of victims

of sexual abuse was error. The District Court correctly concluded

2 1
that the Hearing Examiner's findings that Hutchinson and Killham

were victims of abuse are not supported by substantial evidence in

the record.

The District Court reviewed the entire record to determine

whether substantial evidence supported the Hearing Examiner's

findings. Only by reviewing the entire record would the District

Court have been able to come to the conclusions thoroughly outlined

in the court's detailed order supporting the decision to reverse

the Board's decision. The court looked for reliable, probative and

substantial evidence as directed by § Z-4-702, MCA, to support them

and found such evidence either lacking or not considered by the

Hearing Examiner in forming his conclusions. When the expert's

testimony is properly disregarded, the other findings of the

Hearing Examiner do not support a conclusion that Thompson is not

of good moral and professional character.

Because the Hearing Examiner's findings and the Board's order

were based on improper evidence in the form of expert testimony and

the clearly erroneous findings that Killham's and Hutchinson's

allegations were true because their credibility was restored, the

Board's order cannot stand. The Hearing Examiner's findings and

conclusions in this case contain sufficient independent statements

from which the District Court could reverse the Board's decision

without requiring new findings and conclusions from the record.

We hold the District Court did not err in concluding that the

Board's decision was not supported by substantial credible evidence

and should be reversed.

22
Affirmed.

We Concur:

Chief Justice

Justices

Justice W. William Leaphart did not participate in this decision

because he was not on the Court at the time of its submission.

23
March 23, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, t

following named:

KATHLEEN F. HOLDEN

Special Assistant Attorney General

P.O. Box 202501

Helena, MT 59620-2501

Torger S. Oaas

Attorney at Law

P.O. Box 16

Lewistown. MT 59457

El’ izaoern * ‘* A. ’BestBEST LAW OFFICES, P.C.

Box 2114

Great Falls, MT 59403-2114

HON. JOSEPH P. MAZUREK, Attorney General

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215 N. Sanders

Helena, MT 59620

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Attorney at Law

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ED SMITH

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STATE OF MONTANA

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COURT

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