NO. 89-21 INTHE SUPREME COURT OF THE STATE OFMONTANA 1989

RONALD L. BURGESS, Plaintiff and Appellant,-vsSTATE OF MONTANA, Defendantand Respondent.

APPEAL FROM: ~istrict Courtof theFirstJudicialDistrict, Inand for the Countyof Lewis & Clark, TheHonorableThomasHonzel, Judge presiding. COUNSEL OF RECORD: ForAppellant: Ronald L. Burgess, pro se, Bozeman, Montana For Respondent: FredW. Robinson, Dept. of ~ish, wildlife and Parks, Helena, Montana

Submittedon Briefs: April6, 1989 Decided: May 11, 1989Mr. Justice ?. C, McDonough delivered the Opinion of the Court. This appeal concerns the forfeiture of a bond posted by appellant Burgess for the alleged violation of game laws. Burgess First litigated the forfeiture in the Justi.ceCourt and then the District Court of the Fourteent-h Judicial District, County of Meagher. Burgess never appealed this decision. The further presentation of the issue was in a subsequent action before the District Court of the First Judicial District, Lewis & Clark County. The First Judicial District Court held that res judicata barred the claim made by Burgess. This is the decision on appeal. We affirm. The citation against Burgess charged himwith possessing more than the legal limit of elk. Burgess posted and forfeited a $700 bond by failing to appear as required by the citation. Close to a year later, Burgess moved the Justice Court to declare the forfeiture unconstitutional because forfeited bonds from citations for game violations partially fund the game warden's retirement account. See 

### S 19-8-504, MCA

# . The Justice Court denied the motion, and Burgess appealed to the District Court. The District Court affirmed the decision of the Justice Court. Burgess never appealed this decision. The current action was brought by Rurgess, acting pro se, to once again test the constitutionality of S 19-8-504, MCA. The Statemoved to dismiss based on res judicata. The District Court of the First Judicial District denied the motion. However, shortly thereafter the District Court granted the St-ate' s rnoti.onfor summary judgment based on res -jud.icata.Burgess presents one issue: Should the action brought to determine the constitutionality of S 19-8-504, MCA, be dismissed due to the doctrine of res judicata? Burgess argues initially that the First ~udicial District Court erred in granting the motion for summary judgment because its denial of the State's motion to dismiss on the issue of res judicatabound the lower court as the law of the case. This argument fails because the order denying the motion to dismiss was interl..ocutory,and interlocutory orders can be changed without violating the law of the case doctrine. See 56

### Am. Jur. 2d Motions, Rules, and Orders 

### 5 42 (2ded. 1971). The second argument by Rurgess goes to the requirements for finding that. a claim is barred by the doctrine of res judicata. Burgess contends that the issues in this action are difFerent from the issues previously litigated. According to Rurgess, in the first action he claimed only that the statute at issue violated the federal constitution. Here,a different issue appears,Rurgess contends,because he 

### is claiming that the statute violates the state constitution. Burgess also claims thatbecause he is plaintiff here and the State is defendant, and previously he was defendant, and the Statewas plaintiff, theparties are not the same. The first contention by Burgess on res judicata fails because:
[Olnce a party has had full opportunity to present a claim or issue For judicial decision in a given proceeding, the judgment of that court will he deemed final as to all claims or issues which have been raised orwhich fairly could have been raised. State 

### v. Perry (Mont. 19881, 758 P.2d 268, 273, 45 St.Rep. 1192, 1198. Rurgess had a full and fair opportunity to litjsate the constjtutional issue in theprior action.The second contention also fai.1~.In applying therule of resjudicata, "parties"means:

all persons who have a direct interest in the subject matter of the action and have a right to control the proceedings, defend, examine the witnesses, and appeal ifan appeal lies. 46 Am. Jur. 2d Judgments 

### --- S 529 (2d ed. 1969). Burgess and the Statewere parties tothe previous action and they bear the same relationshiptotheissueBurgess seeks tolitigate, i.e.

## , the constitutionality of the statute. The necessary elements for findingres judicata existinthiscase. Brault
v. Smith (1984), 209 Mont. 21, 679 P.2d 236. We affirm the lowercourt.

We Concur: A/ 

# - ~hikf Justice