No. 84-165 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

WILLIAM A. RZIYNES, 

Plaintiff and Appellant, 

CITY OF GREAT FALLS, and 

G. ALLEN JOHNSON, Individually, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Glary & Clary; Thomas 1.1. Clary, Great Falls, 

Montana 

For Respondents: 

David V. Gliko, City Attorney, Great Falls, Montana 

Dzivi, Conklin & Nybo; William Conklin, Great Falls, 

Montana 

Submitted on Briefs: Nov. 2, 1984 

Decided: February 20, 1985 

Filed: Fk. .i ;385 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a d-eclara-tory judgment of the 

District Court of the Eighth Judicial District, State of 

Montana, County of Cascade, whereby the District Court held 

that the proper party to review the decision of the Police 

Commission was the City Manager rather than the City Mayor, 

section 7-32-4153, MCA. 

Two issues are presented for consideration. 

1. Did the District Court err in concluding that the 

City Manager, rather than the elected City Commissioner, was 

the proper party to review the decision of the Police 

Commission? 

2. On the particular facts of this case, did the District Court err in refusing to find that the City Manager 

could review the decision of the Police Commission without 

considering the constitutional safeguards guaranteed to a 

government employee upon the City's attempt to terminate his 

employment? 

This case was submitted to the trial judge in the 

agreed stipulation of facts which are as follows: 

1. Commencing Karch 12, 1973, after a city election, 

the form of government of the City of Great Falls, Montana, 

became a commissioner-manager form as authorized and defined 

in Title 11, Chapter 32 and 33, R.C.M. (1947) , now Title 7, 

Chapter 3, Parts 43 and 44, Montana Code Annotated. The City 

of Great Falls, Montana, has continued to operate under the 

commissioner-manager form of government up to the present 

date. 

2. The general administration of the City of Great 

Falls is also authorized under the provisions of ordinance 
no. 1904. . . which ordinance was regularly adopted by the 

City Commission of the City of Great Falls on March 2, 1.976, 

and set forth in Title I1 of the Official Codes of the City 

of Great Falls. 

3. At all times 1x1-evant to this case, G. Allen Johnson was a duly appointed, qualified, acting City Manager of 

the City of Great Falls. 

4. At all times relevant to this case, Shirley A. 

Kuntz was a duly elected, qualified, acting City Commissioner 

of the Great Falls City Commission and was designated Mayor 

of the City of Great Falls. 

5. On January 13, 1982, Jack Anderson, Chief of Police 

of the City of Great Falls, Montana, filed a complaint before 

the City Commission, the City of Great Falls, Montana, 

against Sgt. William Raynes, charging Sgt. Raynes with conduct unbecoming a police officer, and conduct bringing reproach to the police force. Thereafter, on January 19, 1982, 

Jack Anderson, the Chief of Police of the City of Great 

Falls, filed an amended complaint with the City Commission of 

the City of Great Falls against Sgt. William Raynes to the 

same effect. 

6. The complaint in the amended complaint referred to 

above is signed by both the complainant, Jack Anderson, Chief 

of Police of the City of Great Falls, and G. Allen Johnson, 

City Manager of the City of Great Falls. 

7. G. Allen Johnson was listed as a possible witness 

for the City of Great Falls in the William Raynes proceeding 

before the Great Falls Police Commission, but did not actually testify before the Commission. 

8. On January 12, 1983, the City Commission of the 

City of Great Falls entered its findings of fact, conclusions 
of law, judgment and recommendation in the matter of Sgt. 

William Raynes. 

9. On January 14, 1983, G. Allen Johnson, City Manager 

of the City of Great Falls, filed with the Police Commission 

an order confirming the recommendation of the Police Commission of the City of Great Falls and directing permanent 

discharge of Sgt. Raynes as a police officer of the City of 

Great Falls. In filing the said order, G. Allen Johnson, 

City Manager, purported to act pursuant to section 7-32-4161, 

MCA . 

10. On January 17, 1983, Shirley A. Kuntz, as the City 

Commissioner of the City of Great Falls who was designated as 

the Mayor of the City of Great Falls, signed and deposited 

with the U.S. mail an order addressed to the City Commission 

of the City of Great Falls, Montana, which order modified the 

recommendation to the City Commission and directed Sgt. 

Raynes be retained as a police officer for the City of Great 

Falls subject to certain conditions and limitations . . . In 

so acting Shirley A. Kuntz, City Commissioner and Mayor, 

purported to act pursuant to section 7-32-4161, MCA. 

11. The order of Shirley A. Kuntz, described in paragraph ten above, was received by the Police Commission of the 

City of Great Falls, Tuesday, January 18, 1983. 

Thereafter the City filed a declaratory judgment action 

appealing the decision of Commissioner Shirley A. Kuntz and 

the District Court held that under section 7-32-4153, MCA, 

the proper party to review the decision of the Police Commission was the City Manager rather than the City Commissioner. 

In addition to the above declaratory judgment action, 

the appellant has appealed the initial decision against him 

by the Great Falls Police Commission. That decision has been 
affirmed by the Eighth Judicial District Court, Cascade 

County, Judge Wheelis sitting, and is now on appeal to this 

Court in Cause No. 84-165. In addition to the above action, 

the appellant has raised various constitutional claims in a 

civil rights suit filed in the U.S. District Court, entitled 

Raynes v. Jack H. And.erson, et al, Cause No. CD-83-62-GI?. 

That case has been dismissed by Judge Batten and is now on 

appeal to the Ninth Circuit Court of Appeals. 

The first issue is: Did the District Court err in 

concluding that the City Manager, rather than an elected City 

Commissioner was the proper party to review the decision of 

the Police Commission. 

The appellant argues that under the commissionermanager form of government set forth in section 7-3-4301, MCA 

et seq., there are elected commissioners and under section 

7-3-4319, MCA, the commissioner who receives the highest 

number of votes is designated "mayor." Further, under section 7-3-4320, MCA, the mayor is "recognized as the official 

head of the municipality . . . " The word "mayor" as used in 

section 7-32-4160, MCA, j.s intended to apply to the person 

who is identified or designated as the chief executive of any 

city or municipality. It is clearly the intent of the Legislature to have the elected official, the person who is the 

official head of the city or chief executive, review the 

decision of the police commission. 

The appellant argues that under the law of this state 

police officers have a right to a fair and impartial hearing 

before they can he terminated once they become members of the 

police force, citing section 7-32-4162, MCA. Additionally 

the only limitation of discipline on what a city manager can 

do to a police officer, is that the city manager cannot 
discharge a police officer without the police officer being 

granted a hearing. Further when this section is read in 

conjunction with section 7-32-4160, MCA, there must be a 

different person in the position of reviewing the decision of 

the police commission. Also under the above section, Montana 

Code Annotated specifically authorizes the "mayor" to modify 

or veto the decision of the police commission. 

Appellant further argues that under the case of Board 

of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 

L.Ed.2d 548, "due process considerations" must be granted to 

government employees when determining whether or not they 

should be terminated. These guidelines are binding on this 

Court as they were on the District Court. Appellant contends 

those guidelines cannot be met when the same party that 

brings charges is listed as a potential witness, sits in on 

the trial of the matter, and then, takes the position that he 

may modify the decision of the police commission that he has 

appointed, if it does not achieve its desired results. We 

find this argument unpersuasive. Contrary to the above 

argument, the City Manager, not the Mayor under the 

commissioner-manager form of government is the chief executive of the City of Great Falls with power to affirm, modify 

or veto the decision of the Police Commission. 

The role of the mayor in a commissioner-manager form of 

government as noted above is defined in Montana Code Annotated sections 7-3-4319, 7-3-4320 and 7-3-4368. These statutes 

narrowly define and limit the role of the mayor in a city 

management form of government. Under our statutes, the 

mayor is the presiding officer of the commission and shall be 

the official head of the municipality for the purposes of 

receiving civil processes, for the purpose of military law, 
and for all ceremonial purposes, section 7-3-4320, MCA. Said 

section 7-3-4320 specifically holds that the mayor "shall 

have no power to veto any measure." 

In contrast, the power and the authority of the city 

manager under the city manager form of government is broad 

and pervasive as clearly demonstrated in sections 7-3-4314; 

7-3-4361 through 7-3-4363; sections 7-3-4366; 7-3-4402; 

7-3-4403; 7-3-4417; 7-3-4441; and 7-3-4463 through 7-3-4466, 

MCA. These statutes provide that an elected commj.ssion is 

required to appoint a city manager, section 7-3-4361, MCA, 

who shall be the administrative head of the municipal governmen% and be responsible for the efficient administration of 

all departments. Specifically, he/she is empowered to appoint and remove all subordinate officers and employees of 

the departments in both the classified and unclassified 

service. 

With respect to the police department, the statutes 

provide "the police force shall be composed of a chief of 

police and such officers, patrolmen, and other employees as 

the city manager may determine." Section 7-3-4465 (1) , MCA. 

Section 7-3-4465 specfies that certain statutes, including 

Part 41 of Chapter 32, entitled "MunicipaL Police on Force" 

A 

shall govern the police department of all cities under the 

commissioner-form of government. 

The following statutes pertaining to the municipal 

police force clearly mandate the city manager, not the mayor 

is in charge of the police force and makes all decisions 

pertaining to personnel: section 7-32-4103, 7-32-4108, 

7-32-4113, 7-32-4151, and 7-32-4153, MCA. This last statute, 

section 7-32-4153, concerns the meaning of the word "mayor." 

Whenever that word (mayor) is used in sections 7-32-4109 and 
7-32-4155 through 7-32-4163, it is intended to include "city 

manager," "city comrnfssioner," or any other name or designation used to identify or designate the chief executive of any 

city or municipality. 

The foregoing listing of statutes specifically granted 

to the city manager in those cities operating under the 

commissioner-manager form of government the power to appoint 

members of the police force; the power to revoke such appointments during the probationary period subject to the 

provision of the state law requiring hearings before the 

police commission; and the power to suspend or remove any 

member or officer of the police force. There is no similar 

power granted to a mayor under the commissioner-manager form 

of government. 

Tt is obvious that the above statutes are intended to 

govern the municipal police force of any city, regardless of 

the form of government adopted by that city. See sections 

7-32-3102 and 7-3-4465, MCA. Because these statutes are 

intended to apply to all forms of municipal government where 

the powers of mayor vastly differ, section 7-32-4153, MCA 

cited above, provide that when the term "mayor" is used in 

section 7-32-4155 through 7-32-4163, the term is intended to 

refer to whatever officer is the chief executive of the city 

depending upon the form of municipal government adopted by 

that city. Section 7-32-4153 applies to section 7-32-4160 

and 7-32-4161 authorizing the mayor to enforce, modify or 

veto the decision of the police commission after hearings 

against a police officer. However under the 

commissioner-manager form of government the term "mayor" as 

used in the statutes means the city manager. Any other inter- 
pretation would be clearly inconsistent with the statutory 

provisions and we find the appellant's contentions erroneous. 

Tde find that under our statutes above quoted, the mayor 

has no basis whatever upon which to claim that he/she is the 

"chief executive" of the city, as that term is employed in 

section 7-32-4153 defining the term "mayor" for the purposes 

of the municipal police force. The mayor acting alone has no 

appointive, discharge, or supervisory power or authority over 

any employee, and clearly lacks the authority necessary for 

one to be considered the chief executive of a municipality. 

fn the commissioner-manager form of government the mayor's 

primary duty is to serve as a voting member of the commission, which enacts the ordinances and sets the general policy 

of the city. As such, the mayor is clearly a I.egislative and 

not an executive officer. 

On the question of the power of the mayor under the 

comissioner-manager form of government to veto the decision 

of the police commission, we adopt the holding of the West 

Virginia Supreme Court in the case of State ex rel. Dieringer 

. Bachman (W.Va. 1948), 48 S.E.2d 420, 422. In that case, 

the court found the mayor was not a necessary pa.rty. We find 

here that the city manager is the "chief executive" of the 

City of Great Falls, and the only official empowered to 

affirm, modify or veto the decision of the police commission. 

The second issue is whether the District Court erred in 

refusing to consider appellant's procedural due process claim 

as it related to this declaratory judgment action. The 

appellant alleges that the District Court refused to consider 

the appellant's constitutional claims as they related to this 
declaratory judgment action. His argument that he attempted 

to get the District Court to consider his declaratory judgment, was a unique factual situation that required the District Court to conclude differently than it might otherwise 

have been able to do as it related to issue one. The appellant argues that the Board of Regents v. Roth (1972), 408 

ifa 

U.S. 564, 982- S.Ct. 2701, 33 L.Ed.2d 548, sets forth the 

criteria which must be met in order for a government employee 

to have been given his constitutional rights before his 

employment can be terminated. We find no merit to this 

argument. 

The appellant's constitutional claim was not properly 

before the court in this declaratory judgment action. A 

declaratory judgment proceeding is primarily intended to 

determine the meaning of a law or a contract and to adjudicate the rights of the parties therein, but not to determine 

controversial issues of fact such as the existence or denial 

of procedural due process; see, State ex rel. Industrial 

Indemnity v. District Court (19751, 169 Mont. 10, 544 P.2d 

438; and In the Matter of Dewar (1976), 169 Mont. 437, 548 

P.2d 149. Here the appellant sought judicial review of a 

proceeding before the Great Falls Police Commission in another a.ction filed before the Eighth Judicial District Court, 

and that matter is now on appeal to this Court, Cause No. 

84-163. In addition, he raises various constitutional issues 

in a civil rights action filed with the United States District Court, and that matter is now on appeal in the Ninth 

Circuit Court of Appeals. Accordingly, we hold that the 

court did not err in refusing to consider the appellant's 

constitutional claims. Instead, it addressed the specific 

declaratory relief sought by the appellant in its petition 
which was whether the Mayor or the City Manager of the City 

of Great Falls is a party entitled under the statues to 

affirm, modify, or veto a decision of the Police Commission 

discharging the appellant. 

The judgment of the District Court is affirmed. 
Mr. Justice Frank B. Morrison, Jr., specially concurring. 

I concur in the result but disagree with the rationale. 

Particularly, I take exception to this language: 

"A declaratory judgment proceeding is primarily 

intended to determine the meaning of a law or a 

contract and to adjudicate the rights of the parties therein, but not to determine controversial 

issues of fact such as the existence or denial of a 

procedural due process; . . ." 

The majority's language is confusing at best. Hopefully 

no one will read this language and think that constitutional 

interpretation cannot be made in a declaratory judgment 

action. In fa.ct, that is exactly how many important constitutional questions are answered. See Grossman v. State 

Department of Natural Resources (Mont. 1984), 682 P.2d 1319, 

41 St-Rep. 804; Committee for an Effective Judiciary v. State 

of Montana (Mont. 1984), 679 P.2d 1223, 41 St-Rep. 581. 

Likewise, we should not give the impression that declaratory judgment actions foreclose determining controversial 

issues of fact. Whether fact issues are controversial makes 

no difference. Some fact issues, such. as intent, are resolved in declaratory judgment actions. 

This language indicates we think the existence or denial 

of procedural due process is a fact question. Whether or not 

a particular ordinance, statute, or administrative regulation, affords procedural due process is a question of law, 

not a question of fact. 

The courts have every right to review procedural due 

process and should do so here. The issue has not had an 

adequate hearing and has not been considered by a majority of 
our members. However, I believe tha.t the procedural due 

process rights of plaintiff were afforded in this case and 

therefore I concur in the result. 

\ 

I concur in the foregoing special concurrence of Mr. ~ustice 

Frank B. Morrison, Jr.