### No. 13115 IN

### THE 

### SUPREME COIJRT OF THE STATE OF MONTANA 19 7 5

In theMatter 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: ForAppellant: 

### 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 

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

This 

### is an appeal from 

### a declaratoryjudgment by the districtcourt, Cascade County. The judgment directed that the police commission of the cityof 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 cityof Great Falls, 

### is charged with the theft of two bicycles from the Great Falls police department storage garage during themonth of Octo

### ber 1974. Charges were brought under section 11-1806, R.C.M. 1947, before the police commission of the cityof GreatFalls and Dewar 

### was suspended from his duties on December 26, 1974. A hearing commenced before the police commission on February 19, 1975. Atthe hearing, Sergeant James Cook of the Great Falls police department testified that he firstinitiated 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 toidentify the unnamed police officer who originallyrelated the rumor. The police commission ordered Sgt. Cook toreveal the identity of the informer. A motion 

### wasmade by the cityattorney tocontinue the hearing toa later dateand submission of briefs was ordered by the police commission 

### as towhether the identity of the informer had tobe disclosed. On March 10, 1975, the hearing reconvened. Sgt. Cookwas again ordered by the police commission torespond and disclose the identity of the informant, he refused. Upon motion of the cityattorney, the police commission granted a recess toallow the cityattorney to secure 

### a determination from the district court as towhether the police commission had the authority to order a witness toanswer a question propounded tohim. The city then made application to the district court, Cascade County, for a 

### writof certiorari or other appropriate 

### writ, on March 19, 1975. The court granted leave to filethe affidavit for a 

### writof 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 forApril 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 toquash the order to show cause and todismiss the application for the 

### writof certiorariwas filed by Officer Dewar. A hearing was held on the order to show cause and themotion to quash. The court took the

### matter under advisement. On May 21, 1975, the district court deemed "declaratory judgment themore appropriate remedy" and issued findings of fact and conclusions of 

### law, wherein the court concluded: 

### 1. That the only issueproperly 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 todisclosure should be sustained. Officer Dewar appeals from the declaratory judgment. The matters just related appear initially tobe deceptively simple but on further examination 

### we have a multitude of legalproblems 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 districtcourt 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 districtcourt was not raised as an issue by appellant, but was briefed and argued by the cityand amicus curiae. The issues this Court 

### willconsider relate to 

### (1)the power of the police commission to compel a witness totestify; and (2) whether a 

### writof certiorari or a declaratory judgment properly 

### lies in this proceeding. The police commission 

### isa creature of statutepromulgated by the legislativebranch of the government and directed tothe administrative branch of government; to be administered by the administrative or executive branch inconnection with the operation of municipal police departments. The factthat 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 sectionread: 

### "(1)The police commission shall have the jurisdiction, and it shall be itsduty tohear, try and decide allcharges brought by any person or persons against any member or officer of the police department 

## * * 

## *.

"(3) It is the duty of the police commission atthe time 

### set for hearing a charge against a police officer, to forthwith proceed tohear, try and determine the charqe accordinq to the rules of evidence applicable tocourts of record in the stateof Montana. 

## * * * "(4) The chairman, or acting chairman, of the police commission, shall have power to issue subpoenas, attested in 

### its name, tocompel the attendance of witnesses atthe hearing and any person duly served with a subpoena 

### is bound to attend inobedience thereto, and the police commission shall have the same authority to enforce obedience tothe subpoena, and topuni the disobedience thereof, as

### ispossessed by a judqe of the districtcourt in like

### cases, provided, however, that punishment for disobed ience 

### is subject toreview by the district court of the proper county.



### "(6) Such action of the police commission shall, however,be subject tomodification orveto by the mayor, made inwriting, 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 tomodification or veto by themayor nor subject toany review but 

### is final and conclusive. "Where the police commission decides the charge proven, themayor, within five (5) days from the date of the filingof such findings and decision with the cityclerk, may modify or veto such findings and decision. "(7) When a charge against a member of the police force 

### isfound proven by the board, and 

### is not vetoed by the mayor, themayor must make an order enforcing the decision of the board, or if modified by themayor, then such decision 

### as modified, and such decision or order shallbe subject toreview by the districtcourt of the proper county on all questions of fact and allquestions of 

### law. "(8) The district court of the proper county shall have jurisdiction toreview allquestions of fact and allquestions of law in

### a suitbrought by any officer ormember of the police force, but no suit toreview such hearing or trial or for reinstatement tooffice 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 themayor has been filedwith the cityclerk." (Emphasis added.) As noted in subsection (7), section 11-1806, the final decision of the police commission is subject toreview by themayor or head of the administrative or executive branch of themunicipality. 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 tobe the termination of the review process.Subsection (8), section 11-1806, provides a remedy for the policeman if he 

### isdissatisfiedwith the administrative process of review by themayor. He is authorized tofilehis 

### - separate action inthe 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, tocompel the attendance of witnesses at a hearing and topunish disobedience with the same authority

aspossessed by a judge of the district court inlike cases. However, punishment for disobedience 

### is subject todistrict court review. Therefore, we have an independent administrative commission with exclusivejurisdiction tohear and determine charges brought againstmunicipal 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 tothe commission in subsections (3) and (4), section 11-1806, would be meaningless without the corresponding power tocompel testimony once a reluctant witness has been brought before the commission; we find this to be the intent of the legislature. The power tocompel testimony must alsobe subject tothe same restrictions 

### as those that guide a district court inthe trial of like cases. The holding inHolt and 

### similarcases would indicate

### thejudiciary generally should be less 

### inclined toinject themselves into administrative proceedings directlyby writ

### or declaration and particularly those inprogress, unless there appears tobe clear legislative authority to intervene. Intervention inaffairsof the executive branch should be carefully considered inany 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, 

### 19P.2d 220, this Court set out threerequisites tobe 

### met in the consideration of an application for a 

### writof certiorari:

(1)

### Excess of jurisdiction inthe courtmaking the order complained of; (2) 

### absence of theright of appeal; and (3) 

### lack of any plain, speedy and adequate remedy other than the writ

### of certiorari. There does not appear tobe any showing that the commission acted inexcess of its

### jurisdiction inthis

### matter and the district court 

### seems toagree inasmuch asthe court avoided the

### writand entered its 

### findings and conclusions asa declaratory judgment. We find no reason toburden this opinion with a 

### further discussion of other considerations involved inthe granting of a 

### writof certiorari, except tocomment that inany case thisprocedure is 

### not proper where the proceedings tobe reviewed arepending or undetermined. State ex rel. Johnston v. District

### Court, supra; 14

### C.J.S. Certiorari 820a. The declaratory judgment which 

### was issued inthematter

seems 

### tobe a product of practicality inan effort torender some kind of guidance toan administrative body boggled ina tempest blown somewhat out of proportion to its 

### overall value tothe proceedings then under consideration. There is 

### no Montana law on thisparticular situation because it is 

### generally conceded inthe law that this is

### not the officeof a declaratoryjudgment. Declaratory judgment is 

### a remedythat 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 toadjudicate rights of parties who have not otherwise been given an opportunity tohave those rights determined. However, it 

### is not the true purpose of the declaratory judgment toprovide 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 administrativebodies exists. Board of County Commissioners v. Buch, 190 Md. 394, 58 A.2d 672, and cases cited therein.Similarly inFlorida 

### it iswell established (Cityof Miami 

### v. Eldredge, Fla., 126 S.2d 169, 170) that the declaratory judgment statute: 

### " 

## * 

## * * is no substitutefor an established procedure for appeal orreview 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 toobtain relief from rulings within the jurisdiction of administrative bodies or commissions inthe process of exercising their quasijudicial functions and/or powers. The declaratory judgment inthismatter 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 asa matter of law. Rather the districtcourt ruled the matter irrelevant asa matter of fact. The 

### lawhas been briefedto the commission and the following statement inRoviaro v. United States, 353 U.S. 53, 62, 

### 77 S.Ct. 623, 628, 

### 1L 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 inthismatter: "'We believe that no fixed rulewith respect todisclosure 

### isjustifiable. The problem 

### is one that 

### calls for balancing the public interest inprotecting the flow of information against the individual's right toprepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the 

### crimecharged, 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 astorelevance. The short exchange between the cityattorney 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 

### lawfor guidance pr conclusion.

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Justices