No. 13210 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

GEORGE D. MISKOVICH, 

Plaintiff and Respondent, 

CITY OF HELENA, MONTANA, a Municipal 

Corporation, JACK WILLIAMS, Chief of 

Police of said City of Helena; THE 

POLICE COMMISSION of said City of 

Helena and the members thereof in their 

official capacity as Police Commissioners, 

et al., 

Defendants and Appellants. 

Appeal from: District Court of the First Judicial District, 

Honorable Na t Allen, Judge presiding. 

Counsel of Record: 

For Appellants : 

C. W. Leaphart, Jr. argued, Helena, Montana 

For Respondent : 

Loble, Picotte and Pauly, Helena, Montana 

Gene A. Picotte argued, Helena, Montana 

Submitted: April 21, 1976 

Decided : AIR 2 ,1 :976 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

The City of Helena appeals from a judgment of the district 

court, Lewis and Clark County, Hon. Nat Allen presiding, reversing 

the Helena Police Commission's findings and adjudication and 

restoring policeman George D. Miskovich to the rank of sergeant 

with retroactive pay. 

On April 25, 1974, Sergeant Miskovich an eight year veteran 

of the Helena Police Department, with a spotless record and an 

early appointment to the rank of sergeant, was charged by the 

Chief of Police with three specific episodes, each alleged to constitute "misconduct in office", "conduct unbecoming an officer1' 

and conduct "such as to bring reproach upon the police force". The 

charges were in writing: 

1. Cameron arrest, February 3, 1974 

(a) Striking arrestee Cameron in the face while 

transporting him to police station, breaking Cameron's nose. 

(b) Grabbing Cameron by the hair in the police 

station and pounding his head upon the booking desk on two or 

more occasions. 

(c) Throwing Cameron to the floor and beating him 

with fists after Cameron requested permission to take a breathylizer 

test. 

2. Coldwell arrest, March 4, 1973. 

Putting a "full Nelson" upon an arrestee named Coldwell, 

then releasing Coldwell, grabbing him with one hand and hitting 

him in the face. 

3. St.Marks arrest, June 23, 1973. 

Arresting a woman named Mrs. St. Marks for public drunken- 
ness, and when this woman indicaed that she did not desire to 

go into the police station, grabbing her, pulling her forward and 

"hitting her in the face with her purse", at the same time shouting 

accusations at her and holding her by the hair. 

All three charges were contained in one written document. 

The first occurred about three months prior to charges, the 

remaining two approximately a year before. It specifically recited 

that all charges were brought under section 11-1806(1), R.C.M. 

1947, notifying Miskovich that he would be tried before the 

police commission in accordance with the statute. In the same 

paragraph Miskovich, on those identical charges, was suspended 

without pay and without hearing, effective immediately. This suspension without notice or hearing was expressly done by the Chief of 

Police in accordance with section 11-1806(10), R.C .M. 1947. 

Miskovich filed a mandamus proceeding in the district court, 

Lewis and Clark County, successfully obtaining a writ of mandate 

to forbid the summary suspension beyond the last day of April 1974, 

because the statute provided a maximum suspension under subsection 

(10) of ten days in any one calendar month, and he was suspended 

on April 25. Miskovich appealed this summary five day suspension 

to the $'olice commission, as provided in the statute. That appeal 

was heard on the same evidence as were the charges under subsection 

(I). The police Commission held against Miskovich on the suspension 

appeal, and because the legislature did not provide for a further 

appeal, the summary discipline under subsection (10) became final. 

The Helena Police Commission, a three man body, was officially 

chaired by Commissioner Pfeiffer, who became ill and left the hearing. 

At his departure it was apparently stipulated by all parties that 
Pfeiffer would be excused and would not participate further 

in the case. The parties agree there was a stipulation but the 

specific terms are in doubt. Pfeiffer missed the testimony of 

several witnesses, plus most of the direct examination of Miskovich. He returned to the hearing in the course of Miskovich's 

direct examination, and proceeded to participate in the tommission's 

findings and decision, signing as Chairman of the police Commission. 

The police commission found the charges arising out of the 

Coldwell arrest of March 1973 were not proven. Those arising out 

of the St.Marks arrest of June 1973, were found proven in their 

entirety. Those arising from the Cameron incident of February 

1974 were found proven in part, specifically the use of excessive 

force in backhanding Cameron and slamming his face into the booking 

counter. In accordance with these findings, the commission suspended 

Miskovich an additional thirty days and permanently reduced his 

rank from sergeant to patrolman. 

These penalties were approved by the city manager. The 

statutory action for review in the district court by Miskovich 

ensued. The district court reviewed the record in the manner 

directed by the decision of this Court in a prior proceeding 

by the City of Helena in supervisory control, (City of Helena 

v. District Court, 166 Mont. 74, 530 P.2d 464, 32 St.Rep. 52.), 

reversed the police commission decision and restored Miskovich 

retroactively to his pay, emoluments and rank. This appeal by 

the City of Helena followed. 

The City presents four issues for review: 

(1) Whether the district court exceeded its scope 

of review in reversing the police commission findings on the weight 

of the evidence. 
(2) Whether a policeman subject to charges under 

section 11-1806 (I), R.C.M. 1947, can also be suspended on the 

same charges under section 11-1806 (lo), R.C.M. 1947. 

(3) Whether the district court erred in concluding 

the police commission findings were nul'lified by the absence of 

Commissioner Pfeiffer. 

(4) Whether certain evidentiary rulings of the p'olice 

oommission materially prejudiced Sergeant Miskovich. 

The City contends the district court exceeded its scope 

of review of the police comtrkion proceedings. In support of its 

position the City relies on the Montana Administrative Procedure 

Act, specifically section 82-4216 (7), R.C .M. 1947, which states 

in pertinent part: 

"The court shall not substitute its judgment for that 

of the agency as to the weight of the evidence on 

questions of fact. * * *I1 

First, the Montana Administrative Procedure Act, Title 

82, Chapter 42, is not applicable to the administrative functions 

of metropolitan police commissions. The full title of the Montana 

Administrative Procedure Act, Chapter 2, Laws of Montana 1971, 

Extraordinary Session, reads in pertinent part: 

"An act prescribing .uniform procedures for state 

administrative agencies * * *.'I (Emphasis supplied.) 

The Montana Administrative Procedure Act defines "agency" at section 

82-4202 (I), R.C.M. 1947, as: 

"* * * any board, bureau, commission, department, 

authority or officer of the state government 

authorized by law to make rules and to determine 

contested cases * * *.I1 (Emphasis supplied.) 

Though city police commissions are creations of state 

statute, they are obviously entities of municipal government. 

It is the mayor or city manager who appoints the police commissioners 
with the consent of the city council or commission. The city 

council or city commission determines the compensation of police 

commissioners, section 11-1804, R.C.M. 1947. It is the duty of 

the police commission to oversee the hiring and discipline of 

police officers, the police officers being municipal employees, 

sections 11-1805, 11-1806, R.C.M. 1947. See State of Montana v. 

District, Mont . Y P.2d , 33 St.Rep. 464. 

Since the metropolitan police commission is not a state administrative agency as defined in the Montana Administrative Procedure 

Act, the act is not applicable to the question of the scope of 

district court review of police commission findings. 

The controlling statute is the Metropolitan Police Law, 

Title 11, Chapter 18. Section 11-1806 (7), R.C.M. 1947, states: 

"When a charge against a member of the police force is 

found proven by the board, and is not vetoed by the 

mayor, the mayor must make an order enforcing the decision of the board, or if modified by the mayor, then such 

decision as modified, and such decision or order shall 

be subject to review by the district court of the proper 

county on all questions of fact and all questions of law." 

(Emphasis supplied. ) 

This Court in disposition of a previous application by 

the City of Helena for a writ of supervisory control directed to 

the district court (City of Helena v. District Court, 166 Mont. 

74, 530 P.2d 464, 32 St.Rep. 52,54), interpreted district court 

review of police commission findings in this manner: 

"* * *However, to review the law is to ascertain whether 

the rulings thereon were correct, to review the facts is 

to determine whether the evidence supports the police 

commission findings. This would be similar to the review 

of law and facts as in an equity case. See section 93- 

216, R.C.M. 1947." 

It has long been held by this Court that review of facts in 

an equity case is based on the substantial evidence test. White v. 
Nollmeyer, 151 Mont. 387, 443 P.2d 873; Bender v. Bender, 144 

Mont. 470, 397 P.2d 957; Kyser v. Hiebert, 142 Mont. 466, 385 

P.2d 90. Thus the district court's power to make its own determination as to the weight of the evidence resulting from the 

police commission hearings is analogous to this Court's power 

to do the same in equity cases. Here, the district court determined there was not substantial evidence to warrant the police 

commission findings. 

Upon review of the transcript of the police commission 

hearing, we agree with the district court's determination as to 

the weight of the evidence bearing in mind the two basic principles espoused by this Court in State ex rel. Wentworth v. Baker, 

101 Mont. 226, 53 P.2d 440. In that case, the city council and 

mayor suspended a policeman. After issuing a writ of certiorari 

and holding a hearing, the district court set aside the suspension and 

ordered the policeman reinstated. In reviewing the district court's 

action, this Court first said the district court judgment is presumed 

to be correct and therefore the burden is on the party challenging 

it. Second, in determining whether the challenging party has met 

its burden, this Court has the duty of determining whether or not 

substantial evidence exists in the record to support the charge. 

As a final statement on this Court's role in reviewing a proceeding 

such as this and by way of introduction to discussion of the 

evidence in the instant case, we note the police discipline case 

Bailey v. Examining & Trial Board, 42 Mont. 216,218, 112 P. 69, 

where the Court said: 

"The effect of this provision is that a decision 

of the examining and trial board on questions of fact 

is final and conclusive on all courts if there is any 

substantial evidence to support it. Whether there is 
or not is a question in the first instance for a 

district court to decide. A charge without substance 

is no charge, and a finding without substantial 

evidence as its basis is no finding. One of the 

essential requirements of law is that a charge shall 

be brought against the officer and that such charge 

shall embody facts sufficient to constitute a cause 

of action within the meaning of the Act. Another is 

that, before the charge can be sustained, some 

substantial evidence must be given in support of it. 

9: * *" 

Turning to the testimony presented at the police commission 

hearing, we note this testimony in support of the holding that 

there was not substantial evidence to support the police commission 

findings : 

(1) As to the charges stemming from the Cameron incident, 

Cameron testified that enroute to the police station Miskovich 

engaged in an unprovoked attack against him at a time when he was 

handcuffed. Cameron claimed Miskovich's attack broke his nose. 

However other testimony reveals the incident may not have been 

quite as Cameron pictured it. Cameron testified that he had spent 

three to four hours in a local bar prior to his arrest. Officer 

Sebens, present at the time of Cameron's arrest, testified Cameron 

resisted arrest but that Miskovich engaged in no police brutality 

at that time. Officer Crawford, also present at the time of 

Cameron's arrest, verified Officer Sebens' testimony. Miskovich 

testified Cameron was abusive, unruly, and resisted arrest and during 

the drive to the police station, Cameron kicked him in the chest, 

momentarily stunning him, so that he felt compelled to backhand 

Cameron in the face to protect himself. 

Upon his arrival at the station, Cameron testified that 

Miskovich continued to abuse him, at one point grabbing him by 

the hair and slamming his face into the booking counter. Officers 
Valiton and Stradley confirmed Cameron's story on this point. 

However, once again other testimony would tend to cast substantial 

doubt on this particular version of the incident. Bonnie Goltz, 

working as a dispatcher near the booking counter at the time of 

the alleged face slamming incident, directly contradicted the 

testimony of these two officers, stating Cameron was so unruly 

that Miskovich held his head to the booking counter to calm him 

down. She explicitly stated that at no time did Miskovich slam 

Cameron's head against the counter. 

In addition, one of the officers who testified for the City, 

Officer Stradley, was under investigation in connection with an 

alleged felony in Broadwater County. The victim of that felony 

testified that no police investigation or disciplinary action was to 

be taken against Officer Stradley until 'I* * *after the Miskovich 

case was taken care of * * *'I. The victim testified further that 

this was the reaction, even though he informed the authorities of 

a signed confession by Officer Stradley on the matter. Officer 

Eielena 

Stradley has since been removed from thelpolice department. 

Finally, :in view of the alleged charge of excessive violence 

inflicted on Cameron by Miskovich, evidence as to Cameron's actual 

physical condition subsequent to the alleged incident is of the 

utmost importance. Officer Grant ~ohnson, a witness for the city 

and the officer in charge of the shift on the day of the arrest, 

stated on cross-examination that he told Miskovich on the day of 

the arrest that Cameron did not appear to be injured. A close 

examination of the photo of Cameron taken the day of his arrest 

and marked Miskovich Exhibit 2, shows no marks on the prisoner 

compatible with the alleged violence purportedly inflicted on 

Cameron's head and face. 
In view of the foregoing evidence, we hold the findings of 

the police commission as to charges against Miskovich stemming 

from the Cameron arrest are not supported by substantial evidence, 

(2) The police commission findings as to the St. Marks 

arrest of June 1973. Officer Bryson who assisted Miskovich in 

arresting the St. Marks woman testified that upon arriving at the 

police station, Miskovich proceeded to grab the woman by the 

hair and pull her down an entrance ramp, at the same time striking 

her in the face with her purse. Miskovich testified he felt compelled to strike her once with her purse because she was kicking 

and biting and had taken his thumb in her mouth and refused to 

let go. 

Further scrutiny of Officer Bryson's testimony reveals 

(1) he admitted the woman had been drinking, (2) it was necessary 

for both officers to exert force to accomplish the arrest and 

place her in the patrol car, and (3) the woman attempted to jump 

out of the patrol car on the way to the station. 

Mrs. St. Marks plead guilty to a charge of resisting arrest, 

paid a $50 fine, and was given a suspended jail sentence. She also 

plead guilty to a charge of drunkenness and paid a fine of $25. 

Further, she failed to appear at the commission hearing. On the 

basis of this evidence the police commission findings as to the 

St. Marks incident were not supported by substantial evidence. 

This type of case should properly be decided on the merits 

if at all possible. This we have done and consequently an in depth 

discussion of the procedural due process issues raised is not 

necessary to the disposition of this matter--but we will comment 

briefly for clarification of these issues. 
Appellant City's second issue seeks a clarification of 

section 11-1806, R.C.M. 1947 as to subsections (1) and (10). 

Miskovich was suspended pursuant to subsection (10) of 

section 11-1806, R.C.M. 1947. Utilizing the same charges used 

to justify his suspension, he was then subjected to a police 

commission hearing pursuant to subsection (1) of section 11-1806. 

The City contends subsection (10) is a proper means of suspending 

a policeman pending charges brought under subsection (I), it argues 

that the power of suspension is incident to the power of removal. 

Miskovich, on the other hand, contends the applicable subsections 

are mutually exclusive, and thereforeace charges were brought 

under subsection (lo), those same charges could not be used to 

institute proceedings under subsection (1). 

The City contends that suspension pending hearing on the 

charges is a perfectly legitimate administrative exercise. We 

agree. However, that principle is not dispositive of the issue. 

The question here is the mode of such suspension, considering 

the applicable statute. 

While subsections (1) through (9) and subsection (lo), of 

section 11-1806, all deal with matters of police discipline, it 

is apparent the procedure and remedies available under subsections 

(1) through (9) are more detailed in their due process protections 

than those under subsection (10). In particular, contrary to subsections (1) through (9), subsection (10) does not provide for 

written notice of charges or a hearing prior to suspension, rather 

the only action required is a notice of suspension given by the 

mayor or the chief of police, with the approval of the mayor. In 

addition, suspension under subsection (10) can only be for ten days 

in any one month, with the only appeal of that suspension being to 
the police commission since subsection (10) does not provide 

for judicial review. 

In construing a statutory situation such as exists here, 

this Court in Adair v. Schnack, 117 Mont. 377, 386, 161 P.2d 

641, quoted with approval from the California case People v. 

Campbell, 110 Cal.App. 783, 291 P. 161, 162: 

"'It is a settled rule of statutory construction 

that, where different language is used in the same connection in different parts of a statute, it is presumed 

the legislature intended a different meaning and effect. "I 

In State Board of Equalization v. Cole, 122 Mont. 9, 20, 195 P. 

2d 989, the Court said: 

"A fundamental rule of construction is that, if 

possible, effect shall be given to all parts of a statute. * * * And each part of a statute must be given a reasonable construction which will enable it to be harmonized with other provisions * * * and give it vitality 

and make operative all of its provisions. * * * Statutes I should be so construed as to give a sensible and intelligent meaning to every part and avoid absurd and 

unjust consequences. Section 516, Lewis' Sutherland 

Stat.Const. (2d ~d.)' * * *.I' (Emphasis supplied.) 

Accordingly, in view of provisions in section 11-1806, 

subsections (1) through (9) and subsection (lp), R.C.M. 1947, 

we hold they are mutually exclusive with subsection (10) intended 

to deal with minor disciplinary matters capable of being handled 

within the police department and subsections (1) through (9) 

intended for charges of a more serious nature, charges which could, 

if proven, lead to discharge from the police force. Therefore, 

a policeman charged under section 11-1806, subsection (lo), cannot 

also be subject to identical charges under section 11-1806, subsection (1). To construe this statute otherwise would be to hold 

the legislature intended to subject the policeman, on one set of 

charges, to two proceedings before the police commission, one with 
various procedural safeguards and the right to judicial review, 

and the other of a more summary nature with no right of judicial 

review. It is such "absurd and unjust consequences" alluded 

to in State Board of Equalization v. Cole, supra, that this 

Court strives to avoid. However, we emphasize this holding does 

not mean a police officer cannot be suspended pending a hearing 

on charges but only that the same charges may not be used to 

effect both suspension under subsection (lo), and the initiation 

of the formal hearing process under subsection (1). 

We agree with the position that a member of an administrative tribunal who was absent from a portion of the adjudicative 

proceedings before that tribunal should not be allowed to participate in its final decision. This would be particularly important as it pertains to a police commission. Here, there was 

a transcript record of the proceedings before the commission but 

this may not always be true as the statute does not require that 

a record be kept. City of Helena v. District Court, 166 Mont. 74, 

530 P.2d 464, 32 St.Rep. 52. 

Finding no abuse of discretion and sufficient substantial 

evidence to support the district court, we affirm the judgment 

to reinstate respondent police officer to sergeant's rank with 

retroac tive and other. 
We concur: 

Justices 

/' 

i dlu! 

fi611." Robert JI.' f,JA Nelson, District 

g for chief Justice 

Mr. Justice John Conway Harrison dissenting: 

n 

I dissent. 

1