No. 13210 INTHE 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 themembers thereof intheir officialcapacity as Police Commissioners, etal., Defendants and Appellants.

Appeal from: District Court of the First Judicial District, Honorable Nat 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. JusticeGene 

### B. Daly delivered the Opinion of the Court.

The City of Helena appeals froma 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 retroactivepay. On April 25, 1974,SergeantMiskovich 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 chargeswere in writing: 1. Cameron arrest,February 

### 3, 1974 (a) Striking arrestee Cameron in the facewhile transportinghim 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 forpublic drunken-ness, and when thiswoman indicaedthat she did not desire to go into the police station, grabbing her, pulling her forward and "hitting her inthe facewith her purse", atthe same time shouting accusations ather and holding her by the hair. Allthree charges were contained in one written document. The first occurred about three months prior tocharges, the remaining two approximately a year before. It specifically recited that allcharges were brought under section 11-1806(1), R.C.M. 1947, notifyingMiskovich that he would be triedbefore 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 suspensionwithout notice orhearing was expressly done by the Chief of Police inaccordance 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 writof mandate toforbid the summary suspension beyond the last day of April 1974, because the statuteprovided 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, asprovided inthe statute. That appeal

was heard on the same evidence 

### as were the charges under subsection (I). Thepolice Commission held against Miskovich on the suspension appeal, and because the legislature did not provide for a further appeal, the summary disciplineunder 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. Athis departure it was apparently stipulated by allparties thatPfeifferwould be excused and would not participate further in the case. The parties agree therewas a stipulationbut the specific terms are indoubt. Pfeiffermissed the testimony of several witnesses, plus most of the direct examination of Miskovich. He returned to thehearing in the course of Miskovich's direct examination, and proceeded toparticipate in thetommission's findings and decision, signing asChairman of thepolice 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 intheir entirety. Those arising from the Cameron incident of February 1974were found proven inpart, specifically theuse of excessive force inbackhanding Cameron and slamming his face into thebooking counter. In accordance with these findings, the commission suspended Miskovich an additional thirtydays and permanently reduced his rank from sergeant topatrolman. These penalties were approved by the citymanager. The statutory action forreview inthe 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 restoredMiskovich retroactively tohis pay, emoluments and rank. This appealby the City of Helena followed. The City presents four issues for review: (1) Whether the district court exceeded its scope of review inreversing the police commission findings on theweight 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'lifiedby the absence of Commissioner Pfeiffer. 

### (4) Whether certain evidentiary rulings of thep'olice oommissionmaterially prejudiced SergeantMiskovich. 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 theMontana Administrative Procedure Act, specifically section 82-4216 (7), R.C 

### .M. 1947, which states in pertinent part: "The court shallnot substitute its judgment for that of the agency as to theweight of the evidence on questions of fact.

# *

# * *I1 

### First, theMontana Administrative ProcedureAct, Title 82,Chapter 42, is not applicable to the administrative functions of metropolitan police commissions. The full title of the Montana Administrative ProcedureAct, Chapter 

### 2,Laws of Montana 1971, Extraordinary Session,reads in pertinent part: "An act prescribing.uniformprocedures for state administrative agencies

# ** *.'I (Emphasis supplied.) TheMontana Administrative ProcedureAct 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 citypolice commissions are creations of state statute, they are obviously entities ofmunicipal government. It is the mayor or citymanager who appoints the police commissionerswith the consent of the city council or commission. The city council or citycommission 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 theMontana Administrative Procedure Act, the act isnot applicable to the question of the scope of district court review of police commission findings. The controlling statute is theMetropolitan 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 isnot vetoed by the mayor, the mayor must make an order enforcing the decision of the board, or ifmodified by the mayor, then such decision asmodified, and such decision or order shall be subject to review by the district court of the proper county on allquestions of fact and allquestions of law." (Emphasis supplied.) This Court in disposition of a previous applicationby 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, toreview the law is to ascertainwhether 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, 151Mont. 387, 443 P.2d 873; Bender v. Bender, 144 Mont. 470, 397 P.2d 957; Kyser v. Hiebert, 142Mont. 466, 385 P.2d 90. Thus the district court's power tomake 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 therewas not substantial evidence towarrant the police commission findings. Upon review of the transcript of the police commission hearing, we agreewith the district court's determination as to the weight of the evidence bearing inmind the two basic principles espoused by this Court inState ex rel. Wentworth v. Baker, 101Mont. 226, 53 P.2d 440. In that case, the citycouncil and mayor suspended a policeman. After issuing a 

### writof 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 courtjudgment 

### is presumed tobe correct and therefore the burden 

### is on the party challenging it. Second, in determining whether the challenging party has met itsburden, this Court has the duty of determining whether ornot substantialevidence exists in the record to support the charge. As a final statement on this Court's role inreviewing 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 & TrialBoard, 42 Mont. 216,218, 112 P. 69, where the Court said: "The effect of this provision 

### is that a decision of the examining and trialboard on questions of fact 

### is finaland conclusive on allcourts if there isany substantial evidence to support it. Whether there 

### isor not is a question in the first instance for a district court to decide. A charge without substance isno charge, and a finding without substantial evidence as itsbasis 

### isno 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 actionwithin themeaning 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 therewas 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 stationMiskovich engaged in an unprovoked attack against him ata time when he was handcuffed. Cameron claimed Miskovich's attackbroke 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 localbar prior to his arrest. Officer Sebens, present atthe time of Cameron's arrest, testified Cameron resisted arrestbut thatMiskovich engaged inno police brutality at that time. Officer Crawford, alsopresent atthe 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 feltcompelled tobackhand Cameron in the face toprotect himself. Upon his arrival atthe station, Cameron testified that Miskovich continued toabuse him, atone point grabbing him by the hair and slamming his face into thebooking counter. OfficersValiton 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 thebooking counter atthe time of the alleged face slamming incident, directly contradicted the testimony of these two officers, statingCameron was sounruly that Miskovich held his head to the booking counter tocalm him down. She explicitly stated that atno time didMiskovich 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 inBroadwater County. The victim of that felony testified that no police investigation or disciplinaryactionwas to be taken against Officer Stradleyuntil 'I* 

# * *after the Miskovich

case was taken care of

# ** *'I. The victim testified further that this was the reaction, even though 

### heinformed the authorities of

a signed confession by Officer Stradley on the matter. Officer Eielena Stradleyhas sincebeen removed from thelpolice department. Finally, :inview of the alleged charge of excessive violence inflicted on Cameron by Miskovich, evidence as toCameron'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 thathe told Miskovich on the day of the arrest that Cameron did not appear tobe 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 commissionas to charges againstMiskovich 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 Brysonwho assistedMiskovich in arresting the St. Marks woman testified that upon arriving at the police station, Miskovich proceeded to grab thewoman by the hair and pull her down an entrance ramp, at the same time striking her in the facewith her purse. Miskovich testified he felt compelled to strikeher oncewith her purse because shewas kicking and biting and had takenhis thumb in hermouth and refused to let go.Further scrutiny of Officer Bryson's testimony reveals (1) he admitted the woman had been drinking, 

### (2) itwas necessary for both officers to exert force to accomplish the arrest and place her in the patrol car,and 

### (3) thewoman 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, andwas 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 commissionhearing. On the basis of this evidence the police commission findings as to the St. Marks incidentwere not supported by substantial evidence. This type of case should properly be decided on the merits if at

### allpossible. Thiswe have done and consequently an in depth discussion of the procedural due process issues raised is not necessary to the disposition of this matter--butwe 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 suspendedpursuant to subsection 

### (10) of section 11-1806,R.C.M. 1947. Utilizing the same charges used to justify his suspension,hewas 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 chargesbrought 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

aremutually exclusive,and thereforeace chargeswere brought under subsection (lo), those same charges could not be used to institute proceedings under subsection 

### (1). The City contends that suspensionpending 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 themode of such suspension,considering the applicable statute. While subsections 

### (1) through (9) and subsection (lo), of section 11-1806, all dealwith matters of police discipline, it is apparent the procedure and remedies available under subsections (1) through (9) aremore detailed in their due process protections than thoseunder subsection 

### (10). Inparticular, 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 suspensiongiven by the mayor or the chief ofpolice, with the approval of themayor. In addition, suspensionunder subsection 

### (10) can only be for ten days in any onemonth,with the only appeal of that suspension being to

### the police commission since subsection 

### (10) doesnot provide for judicial review. In construing a statutory situation such as exists here, this Court inAdair v. Schnack, 117Mont. 377, 386, 161 P.2d 641,quoted with approval from the California case Peoplev. 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, 122Mont. 9,20, 195 P. 2d 989, the Court said: "A fundamentalrule of construction is that, if possible, effect shallbe given to all parts of a statute. 

# ***And each part of a statutemust be given a reasonable constructionwhichwill 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 intelligentmeaning 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 aremutually exclusivewith 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 seriousnature, chargeswhich 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 withvarious procedural safeguards and the right tojudicial review, and the other of a more summary naturewithno right of judicial review. 

### It 

### is such "absurd and unjust consequences" alluded to in StateBoard of Equalization v. Cole, supra, that this Court strives to avoid. However, we emphasize thisholding 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 agreewith 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 toparticipate in 

### its finaldecision. 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 thismay not always be true 

### as the statutedoes not require that

a record be kept. City of Helena 

### v. District Court, 166Mont. 74, 530 P.2d 464, 32 St.Rep. 52. Finding no abuse of discretion and sufficient substantial evidence to support the districtcourt, we affirm thejudgment toreinstate respondent police officer to sergeant's rank with retroactive and other.We 

### concur:

Justices

/' 

# i

# dlu!f,JA

fi611." Robert

# JI.' Nelson, District g 

### for chief Justice



### Mr. Justice John Conway Harrison dissenting: 

## n I dissent.

1