NO. 89-21 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

RONALD L. BURGESS, 

Plaintiff and Appellant, 

-vsSTATE OF MONTANA, 

Defendant and Respondent. 

APPEAL FROM: ~istrict Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ronald L. Burgess, pro se, Bozeman, Montana 

For Respondent: 

Fred W. Robinson, Dept. of ~ish, wildlife and Parks, 

Helena, Montana 

Submitted on Briefs: April 6, 1989 

Decided: May 11, 1989 
Mr. 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.ce Court 

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 him with 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 State moved 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.on for 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 judicata bound 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 

(2d ed. 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 that because he is plaintiff here and the 

State is defendant, and previously he was defendant, and the 

State was plaintiff, the parties 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 or which 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 the prior action. 
The second contention also fai.1~. In applying the rule 

of res judicata, "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 if an appeal lies. 

46 Am. Jur. 2d Judgments --- S 529 (2d ed. 1969). Burgess and 

the State were parties to the previous action and they bear 

the same relationship to the issue Burgess seeks to litigate, 

i .e. , the constitutionality of the statute. The necessary 

elements for finding res judicata exist in this case. Brault 

v. Smith (1984), 209 Mont. 21, 679 P.2d 236. We affirm the 

lower court. 

We Concur: A/ 

- 

~hikf Justice