No. 13115 

IN THE SUPREME COIJRT OF THE STATE OF MONTANA 

19 7 5 

In the Matter of: 

CHARGES AGAINST ROBERT DeWAR , Police Officer. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable LeRoy L. McKinnon, Judge presiding. 

Counsel of Record: 

For Appellant : 

John M. McCarvel argued, Great Falls, Montana 

For Respondent: 

Larsen and Gliko, Great Falls, Montana 

David V. Gliko argued, Great Falls, Montana 

Swanberg, Koby, Swanberg & Matteucci, Great Falls, 

Montana 

A. G. Matteucci argued, Great Falls, Montana 

Filed : kph ; -&?6 

Submitted: November 10, 1975 

Decided :@R 

1976 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a declaratory judgment by the 

district court, Cascade County. The judgment directed that 

the police commission of the city of Great Falls proceed with 

its hearing of charges against Robert Dewar, a Great Falls city 

police officer, without requiring the disclosure of the identity 

of an informant. Officer Dewar appeals from that judgment. 

Robert Dewar, a police officer with the city of Great 

Falls, is charged with the theft of two bicycles from the Great 

Falls police department storage garage during the month of October 1974. Charges were brought under section 11-1806, R.C.M. 

1947, before the police commission of the city of Great Falls 

and Dewar was suspended from his duties on December 26, 1974. 

A hearing commenced before the police commission on 

February 19, 1975. At the hearing, Sergeant James Cook of the 

Great Falls police department testified that he first initiated 

his investigation of Officer Dewar when an unidentified police 

officer told him that there was rumor Officer Dewar had stolen 

some bicycles. Subsequently, Sgt. Cook's investigation led him 

to interview several other police officers, one of whom admitbed 

stealing a bicycle from the police storage garage and implicated 

Officer Dewar. The names of the interviewed police officers 

were revealed. During the questioning of Sgt. Cook by defense 

counsel for Robert Dewar, Cook refused to identify the unnamed 

police officer who originally related the rumor. The police 

commission ordered Sgt. Cook to reveal the identity of the informer. A motion was made by the city attorney to continue the 

hearing to a later date and submission of briefs was ordered by 

the police commission as to whether the identity of the informer 

had to be disclosed. 

On March 10, 1975, the hearing reconvened. Sgt. Cook 
was again ordered by the police commission to respond and disclose 

the identity of the informant, he refused. Upon motion of the 

city attorney, the police commission granted a recess to allow 

the city attorney to secure a determination from the district 

court as to whether the police commission had the authority to 

order a witness to answer a question propounded to him. 

The city then made application to the district court, 

Cascade County, for a writ of certiorari or other appropriate 

writ, on March 19, 1975. The court granted leave to file the 

affidavit for a writ of certiorari or other appropriate writ 

and ordered the police commission to show cause why such writ 

should not issue. The hearing on the order to show cause was 

set for April 9, 1975, before the Hon. LeRoy L. McKinnon. 

Briefs were filed in the district court by the city, 

Officer Dewar, and an amicus curiae brief on behalf of Sgt.Cook. 

A motion to quash the order to show cause and to dismiss the 

application for the writ of certiorari was filed by Officer Dewar. 

A hearing was held on the order to show cause and the motion to 

quash. The court took the matter under advisement. On May 21, 

1975, the district court deemed "declaratory judgment the more 

appropriate remedy" and issued findings of fact and conclusions 

of law, wherein the court concluded: 

1. That the only issue properly before the court was 

that of disclosure or nondisclosure of the identity of an informant or tipster. 

2. That under the circumstances of the case, the identity 

of the informant or tipster was irrelevant and immaterial, and 

the objection to disclosure should be sustained. 

Officer Dewar appeals from the declaratory judgment. 

The matters just related appear initially to be deceptively 

simple but on further examination we have a multitude of legal 
problems which go to the very heart and the integrity of the 

police commission proceedings, as set out in section 11-1801, 

et. seq., R.C.M. 1947. 

First, the initial issue taken to the district court 

from the commission was never ruled upon but has been raised 

as an issue on appeal to this Court. The question ruled upon 

by the district court was not raised as an issue by appellant, 

but was briefed and argued by the city and amicus curiae. 

The issues this Court will consider relate to (1) the 

power of the police commission to compel a witness to testify; 

and (2) whether a writ of certiorari or a declaratory judgment 

properly lies in this proceeding. 

The police commission is a creature of statute promulgated 

by the legislative branch of the government and directed to the 

administrative branch of government; to be administered by the 

administrative or executive branch in connection with the operation 

of municipal police departments. The fact that the police commission performs a so-called quasi-judicial function does not 

change the character of the body or its proceedings or place it 

within the judicial branch. Nor is there a review or appeal by 

or to the judicial branch of government, unless provided by 

legislative enactment. State ex rel. Holt v. District Court, 

103 Mont. 438, 63 P.2d 1026. 

The code section of the Metropolitan Police Law which 

bears on this controversy is section 11-1806, R.C.M. 1947. The 

pertinent parts of that section read: 

" (1) The police commission shall have the jurisdiction, and it shall be its duty to hear, try 

and decide all charges brought by any person or 

persons against any member or officer of the 

police department * * *. 

"(3) It is the duty of the police commission at 
the time set for hearing a charge against a 

police officer, to forthwith proceed to hear, 

try and determine the charqe accordinq to the 

rules of evidence applicable to courts of record 

in the state of Montana. * * * 

" (4) The chairman, or acting chairman, of the 

police commission, shall have power to issue 

subpoenas, attested in its name, to compel the 

attendance of witnesses at the hearing and any 

person duly served with a subpoena is bound to 

attend in obedience thereto, and the police 

commission shall have the same authority to 

enforce obedience to the subpoena, and to puni 

the disobedience thereof, as is possessed by a 

judqe of the district court in like cases, 

provided, however, that punishment for disobed 

ience is subject to review by the district court 

of the proper county. 

" (6) Such action of the police commission shall, 

however, be subject to modification or veto by 

the mayor, made in writing, giving reasons therefor, 

which shall become a permanent record of the police 

commission, provided, however, that where and when 

the police commission decides the charge not proven 

the decision is not subject to modification or 

veto by the mayor nor subject to any review but 

is final and conclusive. 

"Where the police commission decides the charge 

proven, the mayor, within five (5) days from the 

date of the filing of such findings and decision 

with the city clerk, may modify or veto such findings and decision. 

"(7) 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. 

"(8) The district court of the proper county shall 

have jurisdiction to review all questions of fact 

and all questions of law in a suit brought by any 

officer or member of the police force, but no suit 

to review such hearing or trial or for reinstatement to office shall be maintained unless the same 

is begun within a period of sixty (60) days after 

the decision of the police commission or order of 

the mayor has been filed with the city clerk." 

(Emphasis added. ) 

As noted in subsection (7), section 11-1806, the final 

decision of the police commission is subject to review by the 
mayor or head of the administrative or executive branch of 

the municipality. The mayor has been given the authority to 

veto, amend or affirm the actions of the police commission, 

unless the police officer is acquitted of the charges brought 

against him. This seems to be the termination of the review 

process. 

Subsection (8), section 11-1806, provides a remedy for 

the policeman if he is dissatisfied with the administrative 

process of review by the mayor. He is authorized to file - his 

separate action in the appropriate district court for a review 

of the facts and the law. 

Subsection (3) , section 11-1806, provides the commission 

shall proceed according to the rules of evidence applicable to 

courts of record. Subsection (4), provides the authority for the 

chairman to issue subpoenas, to compel the attendance of witnesses 

at a hearing and to punish disobedience with the same authority 

as possessed by a judge of the district court in like cases. 

However, punishment for disobedience is subject to district court 

review. 

Therefore, we have an independent administrative commission with exclusive jurisdiction to hear and determine charges 

brought against municipal police officers, which is a quasijudicial function; State ex rel. Mueller v. District Court, 87 

Mont. 108, 285 P. 928. The grant of powers by the legislature 

to the commission in subsections (3) and (4), section 11-1806, 

would be meaningless without the corresponding power to compel 

testimony once a reluctant witness has been brought before the 

commission; we find this to be the intent of the legislature. 

The power to compel testimony must also be subject to the same 

restrictions as those that guide a district court in the trial 

of like cases. 

The holding in Holt and similar cases would indicate 
the judiciary generally should be less inclined to inject themselves into administrative proceedings directly by writ or 

declaration and particularly those in progress, unless there 

appears to be clear legislative authority to intervene. Intervention in affairs of the executive branch should be carefully 

considered in any case and much more carefully than those matters 

solely within the judicial branch. 

In State ex rel. Johnston v. District Court, 93 Mont. 

439, 444, 19 P.2d 220, this Court set out three requisites to be 

met in the consideration of an application for a writ of certiorari: 

(1) Excess of jurisdiction in the court making the order complained 

of; (2) absence of the right of appeal; and (3) lack of any plain, 

speedy and adequate remedy other than the writ of certiorari. 

There does not appear to be any showing that the commission 

acted in excess of its jurisdiction in this matter and the district 

court seems to agree inasmuch as the court avoided the writ and 

entered its findings and conclusions as a declaratory judgment. 

We find no reason to burden this opinion with a further discussion 

of other considerations involved in the granting of a writ of 

certiorari, except to comment that in any case this procedure is 

not proper where the proceedings to be reviewed are pending or 

undetermined. State ex rel. Johnston v. District Court, supra; 

14 C.J.S. Certiorari 820a. 

The declaratory judgment which was issued in the matter 

seems to be a product of practicality in an effort to render some 

kind of guidance to an administrative body boggled in a tempest 

blown somewhat out of proportion to its overall value to the 

proceedings then under consideration. 

There is no Montana law on this particular situation because it is generally conceded in the law that this is not the 

office of a declaratory judgment. Declaratory judgment is a remedy 
that declares the rights and duties of the parties. 

The purpose of declaratory relief is to liquidate uncertainties and controversies which might result in future 

litigation and to adjudicate rights of parties who have not 

otherwise been given an opportunity to have those rights determined. However, it is not the true purpose of the declaratory 

judgment to provide a substitute for other regular actions. 22 

Am Jur 2d, Declaratory Judgment §§ 1, 2, 6. 

Other jurisdictions have denied the remedy of declaratory judgment where appeal by statute or otherwise from the 

actions of administrative bodies exists. Board of County Commissioners v. Buch, 190 Md. 394, 58 A.2d 672, and cases cited 

therein. 

Similarly in Florida it is well established (City of 

Miami v. Eldredge, Fla., 126 S.2d 169, 170) that the declaratory 

judgment statute: 

" * * * is no substitute for an established procedure 

for appeal or review of decisions of judicial 

tribunals, or of boards or administrative officials 

exercising judicial or quasi-judicial powers." 

No jurisdictions that could be found considered, much 

less approved, the declaratory judgment as a vehicle to obtain 

relief from rulings within the jurisdiction of administrative 

bodies or commissions in the process of exercising their quasijudicial functions and/or powers. 

The declaratory judgment in this matter was improperly 

issued and is hereby vacated and of no effect. 

The matter of the identity of the original informer who 

spoke to Sgt. Cook is not squarely before this Court, even though 

the law on disclosure was presented together with other arguments. 

The question was not accepted or a decision given by the district 

court as a matter of law. Rather the district court ruled the 

matter irrelevant as a matter of fact. The law has been briefed 
to the commission and the following statement in Roviaro v. 

United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628, 1 L ed 2d 

639, cited in State ex rel. Offerdahl v. District Court, 156 

Mont. 432, 436, 481 P.2d 338, seems to furnish sufficient 

guidance in this matter: 

"'We believe that no fixed rule with respect 

to disclosure is justifiable. The problem is 

one that calls for balancing the public interest 

in protecting the flow of information against 

the individual's right to prepare his defense. 

Whether a proper balance renders nondisclosure 

erroneous must depend on the particular circumstances of each case, taking into consideration 

the crime charged, the possible defenses, the 

possible significance of the informer's testimony, and other relevant factors.'" 

An examination of the transcript of the proceedings before 

this Court discloses no facts upon which a proper ruling could be 

made as to relevance. The short exchange between the city attorney 

and defense attorney only contains the conclusion of counsel on 

the one hand that it would be damaging to the department if the 

identity was revealed. Counsel for Officer Dewar asserted that 

the answer by Sgt. Cook would determine if any further witnesses 

would be called by the defense and until the matter was settled 

the defense could not proceed. 

The declaratory judgment of the district court is vacated. 

The police commission is directed to establish the facts upon 

which the parties rely to support their respective positions by 

offer of proof or memorandum, and based on the facts received 

and ruling case law for guidance pr 

conclusion. 

/ ii I 

P 

Justices