Appendix — Eklund v. Wheatland County

Ss

upremo fs U.S.

09-426 OCT & - 2099

No.

OFFICE OF THE CLERK

In the

Supreme Court of the United States

DONALD S. EKLUND,

Petitioner,

v.

WHEATLAND COUNTY, AND ITS SHERIFF,

JAMES ROSENBERG,

Respondents.

On Petition For A Writ of Certiorari To The

Supreme Court of the State of Montana

APPENDIX FOR

PETITION FOR A WRIT OF CERTIORARI

Thomas E. Towe

Counsel of Record

For Petitioner

2525 6 Avenue North

PO Box 30457

Billings, MT 59107

(406) 248-7337

APPENDIX

Donald S. Eklund, Plaintiff and Appellant, v. Wheatland

County, and its Sheriff, James Rosenberg, Defendant and

Appellees. tn the Supreme Court of the State of Montana,

Cause No. DA 08-0329, Opinion decided July 9, 2009.

Donald S. Eklund, Plaintiff v. Wheatland County and its

Sheriff James Rosenberg, Defendants. In the Montana

Fourteenth Judicial District, Wheatland County, Montana,

Cause No. DV 01-13, Order Denying Motions for Judgment

Notwithstanding Verdict and for New Trial

Donald §. Eklund, Plaintiff v. Wheatland County and its

Sheriff, Steve Riveland, Defendants. In the Montana

Fourteenth Judicial District, Wheatland County, Montana,

Cause No. DV 01-13, Order Denying Plaintiff's Motion for

Change of Venue.

Donald §. Eklund, Plaintiff v. Roy Trost, Lynn Hamilton,

Custodian for Roy Trost; Carl Moody; Wheatland County

and its Sheriff Steve Riveland; and Yellowstone County and

its subordinate Yellowstone County, Youth Service Center;

Donna Marmon, Juvenile Probation Officer, and her

employers, Golden Valley County, Wheatland County,

Meagher County and Musselshell County, Defendants. In

the Montana Fourteenth Judicial District Court, Wheatland

County, Montana, Cause No. DV 01-13, Plaintiff's Motion

for Change of Venue and Brief in Support

App. 1

DA.98-0329

IN THE SUPREME COURT OF THE STATE OF

MONTANA

2009 MT 231

DONALD S. EKLUND,

Plaintiff and Appellant,

Vv.

WHEATLAND COUNTY, and

its Sheriff, JAMES ROSENBERG,

Defendant and Appellees.

APPEAL FROM: District Court of the Fourteenth

Judicial District In and For the

County of Wheatland, Cause No.

DV 01-13 Honorable Katherine M

Irigoin, Presiding Judge

COUNSEL OF RECORD:

For Appellant::

Thomas E. Towe, Towe, Ball, Enright,

Mackey & Sommerfeld, PLLP,

Billings, Montana

For Appellees:

Norman H. Grosfield and Dee Ann G.

Cooney, Grosfield Law Firm,

Helena, Montana

App. 2

Submitted on Briefs:

May 13, 2009

Decided: July 9, 2009

Filed:

Clerk

Justice Brian Morris delivered the Opinion of the

Court.

{1 We reversed the summary judgment issued in

favor of wheatland Count and its sheriff in Eklund v.

Trost, 2006 MT 333, 335 Mont. 112, 151 P.3d 870,

(Eklund I) and remanded the case to the District

Court. The case proceeded to trial and from those

proceedings Donald Eklund (Eklund) filed this

timely appeal. We affirm.

42 Eklund raises the following issues on appeal:

43 Issue 1: Whether §3-15-302(2), MCA violates

provisions of the Montana and United States

Constitutions.

74 Issue 2: Whether the District Court erred

when it denied Eklund’s motion for change of

venue.

75 Issue 3: Whether the District Court erred

when it refused to allow the jury to consider

the source of payment for any damages that

might be awarded.

App. 3

{6 Issue 4: Whether the District Court erred

when it refused to strike a prospective juror

for cause.

{7 Issue 5: Whether the District Court erred

when it denied Eklund’s motion for judgment

notwithstanding the verdict, or motion for new

trial.

78 We discussed at length the facts giving rise to

the matter in Eklund I, specifically [96-19. We will

repeat here only those facts pertinent to this appeal.

{9 Eklund attempted to change the venue of the

trial following our remand in Eklund I. He argued

that the amount of damages that he sought would

affect the potential jurors. He reasoned that the

jurors most likely would be taxpayers in Wheatland

County who would be saddled with the cost of any

judgment against Wheatland County. Eklund feared

that the juror’s concerns of potentially higher taxes

to pay the award would prejudice him. The District

court denied Eklund’s motion

{10 Eklund raised the issue of who would be liable

for judgment against Wheatland County during voir

dire. Eklund attempted to have potential juror

Wayne Butts (Butts) removed -for cause. Butts

owned a particularly large tract of land in the

county. Butts expressed concerns from where the

money for a potential verdict would come. Counsel

for Wheatland County objected to the removal of

Butts. The Court allowed the parties to question

Butts further before denying Eklund’s motion.

App. 4

Eklund eventually removed Butts from the panel

with a preemptory challenge.

{11 Eklund attempted to inform the jurors of

Wheatland County’s pooling arrangements

(insurance coverage) regarding the satisfaction of

any verdict. The court did not allow Eklund to

question the potential jurors directly about the

source of the money available to cover any judgment

against Wheatland County during voir dire, during

the presentation of evidence, and through the

issuing of jury instructions. The court also denied

Eklund’s attempts to present evidence of the pooling

arrangements to the jurors.

{12 The issue arose again during the settling of jury

instructions. The court instructed the jury that they

could not consider whether the county could afford to

pay an award in determining damages. The court

also instructed the jury not to consider whether an

award would raise taxes and whether an award

would serve as a windfall for Eklund.

q¥i3 The jury returned a verdict in favor of

Wheatland County. Eklund moved for a judgment

notwithstanding the verdict. Eklund asserted that

he had presented overwhelming evidence to

demonstrate the county’s liability. Eklund also

argued that this overwhelming evidence to

demonstrate the county’s liability. Eklund also

argued that this overwhelming evidence, in

conjunction with various alleged errors made by the

trial court, required the court to grant the motion.

Eklund moved in the alternative for a new trial. The

court denied both requests. Eklund appeals.

App. 5

STANDARDS OF REVIEW

914 We presume statutes to be constitutional and it

is the duty of the Court to avoid any

unconstitutional interpretation if possible.

Montanans for Responsible Use of School Trust v.

State of Montana ex rel. Board of Land

Commissioners, 1999 MT 263, 711, 296 Mont. 402,

989 P.2d 800. A statute will be upheld on review

except when proven to be unconstitutional beyond a

reasonable doubt. School Trust, {11.

{15 We review for an abuse of discretion a district

court’s ruling on a motion for change of venue. State

v. Pease, 227 Mont. 424, 433, 740 P.2d 659, 664

(1987). We will not overturn a district court’s ruling

on admissibility of evidence absent a showing of

abuse of discretion. Christofferson v. City of Great

Falls, 2003 MT 189, 78, 316 Mont. 469, 74 P.3d

1021. The same abuse of discretion standard applies

to jury instructions. Edie v. Gray, 2005 MT 224,

q12, 328 Mont. 354, 121 P.3d 516. We likewise

review for abuse of discretion a district court’s denial

of a challenge for cause of a potential juror. Crail

Creek Associates, LLC v. Olson, 2008 MT 209, 413,

344 Mont. 321, 187 P.3d 667.

¥i6 When reviewing a motion for judgment

notwithstanding the verdict, we view all of the

evidence in a light most favorable to the non-moving

party. Okland v. Wolf, 258 Mont. 35, 38, 850 P.2d

302, 304 (1993). The court may grant the motion

only if it appears that the non-moving party cannot

recover upon any view of the evidence, including

legitimate inferences to be drawn from it. Oklund,

App. 6

258 Mont. At 38, 850 P.2d at 304. We determine

whether substantial credible evidence supported the

verdict when reviewing a district court’s refusal to

grant a new trial based upon alleged insufficiency of

the evidence. Payne v. Knutson, 2004 MT 271, 425,

323 Mont. 165, 99 P.3d 200.

DISCUSSION

{@17 Issue 1: Does §3-15-302(2), MCA, violate

provisions of the Montana and United States

Constitution?

{18 Eklund asserts that concern by jurors regarding

the size of the potential verdict denied him a fair

trial and violated due process. Section 3-15-302(2),

MCA, provides that the inhabitants of the county

may serve as jurors if otherwise competent and

qualified according to the law when a county is an

interested party in a trial. A person is competent to

serve on a jury if they are 18 or older, a resident of

the area for 30 days, and a United States citizen.

Section 3-15-301, MCA.

¥19 We previously have addressed this residency

issue and held that being a taxpayer of a county or

district that is a party does not provide a reason for

disqualification. Carter County v. Cambrian Corp.,

143 Mont. 198, 387 P.2d 904 (1963); School District

No. 1 v. Globe and Republic Ins. Co. 142, Mont. 220,

383 P.2d 482 (1963). The potential jurors at issue in

Carter County and School District 1 had remote

potential interests in the outcome of the case due to

the possibility of increased taxes to cover a potential

award against the governmental entity. We rejected

App. 7

challenges in both cases that the jurors’ status as

taxpayers of the county of district could constitute

grounds for disqualification.

{20 Eklund provides little support other than his

repeated concern that allowing jurors to serve who

fear that they would be liable for satisfaction of the

verdict is unconstitutional. Eklund cites no

authority to support his claim that simply being a

taxpayer constitutes -a disqualifying interest.

Eklund has failed to establish beyond a reasonable

doubt that {3-15-302(2), MCA, violates his

constitutional right to a fair trial and due process of

law. School Trust, 11.

{21 Issue 2: Did the District Court err when it

denied Eklund’s Motion for Change of Venue?

9122 A judge must change the place of trial when

there exists a reason to believed that an impartial

trial cannot be held or when the convenience of

witnesses and the ends of justice would be promised.

Section 25-2-201(2)-(3), MCA. Eklund asserts that

ample reason exists to believe that an impartial jury

could not be achieved in Wheatland County. Eklund

further assets that, as each juror was either a

taxpayer or related to a taxpayer, each juror had an

interest in the outcome.

423 A party seeking to overturn a denial of change of

venue must show that a fair and impartial trial

could not have been had. School distr. No. I, 142

Mont. at 223, 383 P.2d at 484. The legislature did

not intend that simply being a taxpayer would

App. 8

disqualify a person from-sitting:on the jury. School

Distr. No. 1, 142 Mont. At 225, 383 P.2d at 485.

{24 Counsel for Eklund and Wheatland County

established during voir dire that the potential jurors

were willing to return a verdict in favor of Eklund if

the facts necessitated such a finding. The jurors also

admitted they would be willing to return a large

verdict if the evidence supported one. Nothing from

voir dire leads us to believe that the jury would have

been unwilling to deliver a verdict in Eklund’s favor.

Some jurors admittedly expressed concerns about

the source of the verdict award, but none of the

jurors stated that this concern would affect their

impartiality.

725 Eklund cites multiple cases from other

jurisdictions in support of his argument. We find

these cases to be distinguishable from the issue at

hand. For example Eklund cites Wheeler v. Cobbs &

Mitchell Col, 253 P.5 (Ore. 1927), in which the court

held that taxpayers are absolutely disqualified from

serving on a jury when the county is a party.

Eklund fails to inform that this rule of law no longer

applies in Oregon as evident by the decision in State

ex rel. Douglas County v. Sanders, 655 P.2d 175

(Ore. 1982). The court in Douglas County

specifically held “that county residents are not

disqualified from serving as jurors solely because the

county has a pecuniary interest in the outcome.”

Douglas County, 655 P.2d at 175.

G26 Eklund also relies on an old case from North

Dakota. In Sheridan County v. Davis, 240 N.W. 867

(N.D. 1932), the North Dakota court determined that

App. 9

the jury panel’s status as taxpayers implied bias on

the entire jury pool. The court reversed a denial of a

motion for change of venue.. Sheridan County, 240

N. W. At 871. The court in Linington v. McLean

County, 150 N.W.2d 239 (N.D. 1967), also refused to

reverse a district court’s decision to grant a motion

for change of venue. The court cited that fact that

“the trial court after weighing all of the allegations

and the contentions” reached the conclusion the

people of McLean County were sympathetic to

McLean County and for this an other reasons

granted a motion for change of venue.

427 Here we fact a situation where the District court

denied a motion for a change of venue. We review

this denial for an abuse of discretion. Pease, 227

Mont. At 433, 740 P.2d at 664. The District Court

weighted all of the allegations and contentions

before reaching the conclusion that the citizens of

Wheatland County could be fair and impartial

jurors. Nothing in record leads us to believe that the

District Court abused its discretion in determining

that the jury could be fair and impartial. We decline

to imply bias based solely on the juror’s status as

taxpayers. The District Court did to abuse its

discretion in denying a change of venue.

428 Issue 3: Did the District Court err when it

refused to allow the jury to consider the source

of payment for any damages that might be

awarded?

429 Evidence of insurance generally may not be

admitted upon the issue of whether a party acted

negligently or otherwise wrongfully. Evidence of

App. 10

insurance may be admitted, however, when offered

to prove agency, ownership, control, bias or prejudice

of a witness. M. R. Evid. 411. Eklund does to argue

that evidence of insurance would have been offered

to prove agency ownership, control, bias or prejudice.

Eklund sought to offer evidence regarding

Wheatland County’s insurance coverage to alleviate

the fears voiced by some jurors regarding what party

would be responsible to pay an award.

130 A jury determining liability and fixing damages

may not consider the method of satisfying a

judgment. Wollaston v. Burlington Northern, Inc.,

188 Mont. 192, 206, 612 P.2d 1277, 1284 (1980). The

plaintiff in Wollaston submitted a proposed jury

instruction regarding insurance to eliminate the

“jury-taxpayer” problem in an action in which

Sanders County was a co-Defendant. Wollaston, 188

Mont. At 206, 612 P.2d at 1284. The district court

had instructed the jury that they were “not to

consider in what manner the Defendant Sanders

County meets its obligation as a judgment if

rendered.” Wollaston, 188 Mont. At 206, 612 P.2d at

1284. The Court held the district court properly had

instructed the jury on this matter and that further

instruction about possible sources might have lead to

speculation on issues not before the jury. Wollaston,

188 Mont. At 206, 612 P.2d at 1284.

¥31 Similar to Wollaston, the District Curt adopted

Eklund’s proposed instruction that the jury should

not consider whether Wheatland County could afford

any award or the source of any award. The court

removed mention of “insurance” from the proposed

App. 11

instruction in a manner similar to the instruction

provided in Wollaston.

{32 Eklund relies on Goodnough v. State, 199 Mont.

9, 647 P.2d 364 (1982), to support his argument that

the court erred in not allowing him to mention

insurance during voir dire. We held in Goodnough

that it is appropriate for counsel to question

potential jurors during voir dire about their beliefs

as taxpayers and their concerns on the financial

outcome of the case. Goodnough, 199 Mont. At 19,

647 P.2d at 369.

433 The District Court allowed Eklund’s counsel to

question the jury during voir dire in a manner

similar to the type of questioning affirmed by this

Court in Goodnough. Eklund had ample opportunity

to question the potential jurors about whether their

status as taxpayers would allow them to be fair and

impartial. Eklund’s counsel questioned the jurors

about the possibility of having to issue a large award

that would affect their ability to serve. Eklund’s

argument might carry more weight if the jury had

issued a small award to Eklund in the face of

evidence that established that Eklund had suffered

severe injuries as a result of Wheatland County’s

negligence. The jury found no liability on the part of

Wheatland County.

434 The Dissent chides our lack of citation to Jenks

uv. Bertelsen, 2004 MT 50, 320 Mont. 139, 86 P.3d 24.

In Jenks, defense counsel repeatedly discussed the

fact that the Plaintiff had contacted a lawyer shortly

after the accident. Jenks, 414. The Plaintiff sought

to introduce evidence of the fact that she has

App. 12

retained the lawyer to assist with negotiations with

the defendant’s insurance adjustor over the damage

to her truck. Jenks, [15. We noted that the district

court should evaluate the admissibility of evidence of

insurance on a case-by-case basis under the facts

and circumstances of each case. Jenks.

(25. We found no abuse of discretion in the district

court’s decision to allow the shortly after the

accident without any direct mention of insurance.

Jenks, (28. The district court concluded that this

course would remedy any prejudice caused by the

defense counsel’s repeated reference to the plaintiffs

decision to retain a lawyer without permitting “ the

insurance bulldozer to be brought in to level the

playing field.” Jenks, [27,

435 The District Court here determined that it

would not allow mention of insurance absent an

exception to M. R. Evid. 411. Juror Butts initially

raised the topic of insurance during voir dire. Juror

Butts speculated that Wheatland county must

possess some insurance, but he voiced concern as to

whether the policy limits would cover the: full

amount of the verdict. Neither the court, nor the

parties, took any step to disabuse Juror Butts, or the

other members of the jury pool, that Wheatland

County possessed some insurance coverage. The

District Court did instruct the jury not to consider

whether the County could afford to pay an award in

determining damages. The court also instructed the

jury not to consider whether an award would raise

taxes and whether an award would provide a

windfall to Eklund. Similar to Jenks, we cannot say

that the solution crafted by the District Court to

12

App. 13

address concerns raised by the jurors regarding who

would be responsible for any award without

expressly discussing Wheatland County’s insurance

coverage rose to the level of an abuse of discretion.

Wollaston, 188 Mont. At 206, 612 P.2d at 1284.

136 The District Court also did not abuse its

discretion when it restricted the depth of questioning

regarding the availability of insurance during voir

dire.

137. Issue 4: Did the District Court err when it

refused to strike a prospective juror for cause?

738 A court may remove the cause members of a

potential jury panel if they can be shown to have an

interest in the action, an unqualified opinion or

belief as to the merits of the action, or can be shown

to have bias. Section 25-7-223(5)-(7), MCA. Voir

Dire questioning revealed that juror Butts had a

problem with suits against Wheatland County. He

explained his concerns that, as a taxpayer, he could

be responsible through increased taxes for any

verdict returned against the county. Juror Butts

reiterated his concern throughout voir dire regarding

the source of an award. Juror Butts also

maintained, however, that the could be fair and

impartial. At no point during voir dire did juror

Butts state that he was unwilling to be fair or that

he would be biased. Juror Butts stated that he

would follow the instructions and law given to him

by the judge.

739 Eklund cites multiple cases where a juror

demonstrated bias against one party and the court

13

App. 14

removed for cause the potential juror. See Mahan v.

Farmers Union Central Exchange, Inc., 235 Mont.

410, 768 P.2d 850 (1989); Crail Creek. The potential

jurors in these cases demonstrated actual bias.

{40 For example in Mahan, one potential jury

exhibited a fixed scruple against punitive damages,

while the other stated he preferred management

over employees in disputes. Mahan, 235 Mont. at

418, P.2d at 855. Juror Butts expressed some

concern regarding the source of the money. Juror

Butts did not express a fixed view against damages

being awarded to the Plaintiff in a negligence action.

Juror Butts also did not express favoritism for one

side over the other in such a dispute.

441 The potential juror in Crail Creek likewise gave

responses that reflected a biased state of mind. The

potential juror admitted that she was inclined to

favor contractors and that she did not know if she

could set aside her bias. Crail Creek, (20. Juror

Butts never expressed a bias toward either party. In

fact, juror Butts, maintained that he could be

impartial. When questioned about following the law

and instructions, juror Butts replied, “I’m going to do

the best of my ability what I’m instructed to do.”

942 The trial judge stood in the best position to

detect whether juror Butts demonstrated actual bias

against Eklund. Juror Butts’s hesitance regarding

the size of a potential verdict does not lead us to

believe that he would have been biased or would

have failed to follow the law and instructions. The

District Court did not abuse its discretion in denying

the motion to remove juror Butts for cause.

14

App. 15

443 Issue 5: Whether the District Court erred

when it denied Eklund’s motion for judgment

notwithstanding the verdict (JNOV), or motion

for new trial.

{44 A court may grant a motion for direct verdict, or

a motion for a JNOV, only when there is a complete

absence of any evidence to warrant submission to a

jury. Ryan v. City of Bozeman, 279 Mont. 507, 510,

928 P.2d 228, 229-30 (1996). Wheatland County

points to evidence in the record that warranted

submission of the case to the jury.

9745 Undersheriff Les Christensen (Christensen)

testified that he first saw the vehicle that crashed

into Eklund about three miles east of Harlowton.

Christensen’s attempts to stop the vehicle proved

futile. The speeding vehicle crashed soon after

entering Harlowton. Christensen had slowed for

safety purposes at the time of the crash. But he had

kept the fleeing vehicle in sight. Christensen

testified that about four minutes had passed from

the time that he first saw the vehicle until he called

for an ambulance after the crash. Christensen also

testified that he did not form a road block, or take

other drastic measures to stop the speeding vehicle.

746 Christensen’s passenger, Montana Highway

Patrolman James Rosenberg (Rosenberg), testified

that Christensen had followed proper procedures for

a high speed pursuit. Katherine Parks (Parks)

witnessed the stolen vehicle approach town followed

by Christensen. Parks testified that the stolen

vehicle was traveling at a high rate of speed, but

15

App. 16

that the police vehicle did not appear to be going

nearly that fast.

447 In light of this testimony, Eklund cannot make

the necessary showing that there was a complete

absence of credible evidence to support the verdict in

favor of Wheatland County. Counsel for Wheatland

County elicited sufficient testimony regarding the

timing and policies followed by the officers in

pursuit. The District Court did not err when it

denied Eklund’s motion for JNOV and his request

for a new trial motion.

9748 Affirmed.

/S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH

/S/ JOHN WARNER

/S/ JIM RICE

Justice Patricia O. Cotter dissents.

4749 I dissent from the Court’s resolution of Issue

Three. I would reverse and remand for a new trial.

4750 The District Court erred when, citing M. R.

Evid. 411, it completely prohibited any mention of an

insurance or pooling arrangement. In Jenks uv.

Bertelsen, 2004 MT 50, 320 Mont. 139, 86 P.3d 24,

cited prominently by Eklund but not in my judgment

adequately considered in the Court’s analysis, we

noted that under our previous case law there are a

number of exceptions to the general prohibition

against injection insurance issues into a case under

16

App. 17

M. R. Evid. 411. See Jenks, {123-24. We cautioned

that such cases “do not represent an exhaustive

survey... .” Jenks, [25. When the District Court

issued a prohibition on any mention of insurance

prior to trial, it did so under the evident assumption

that the exceptions to M. R. Evid. 411 were fully

codified, and that failure to meet a specifically

enumerated exception to M. R. Evid. 411 prohibited,

ipso facto, any mention of insurance. The District

Court’s approach to this issue was contrary to Jenks.

“In the final analysis, Rule 411, M.R. Evid., and the

exceptions thereto, do not present a clear mandate of

either admitting or denying evidence of liability

insurance. What is clear, however, from a review of

the case law, is that district courts have broad

discretion in determining the admissibility of

evidence pertaining to liability insurance .. .

Jenks, 25. Thus, district courts should evaluate the

admissibility and effect of a mention of insurance on

a case-by-case basis under the facts and

circumstances then presented to the court. Jenks,

725.

751 The facts and circumstances presented in this

case called for an exercise of discretion in favor of

revealing the existence of insurance. Eklund sought

to disclose the existence of an insurance pooling

arrangement to allay the concerns of the citizens of

this small county about the potential impact of a

sizeable verdict upon them. However, he was

prohibited by the District Court from doing so, and

was instead only permitted to inquire whether any of

the jurors’ status as taxpayers would affect their

ability to render a judgment against Wheatland

County. In other words, he was allowed to raise

App. 18

their worries but not relieve them. When Eklund’s

counsel attempted during voir dire to walk this fine

line, one of the potential jurors, Butts, zeroed in

quickly on the forbidden topic. He said:

Wheatland County, which is made up of

people that live here. And we're

certainly insured by an _ insurance

company, I would think, that might be

responsible for all of the money. I don’t

know how much of that would be

passed onto the citizens or residents of

the county. I mean I don’t know, so I’m

a little apprehensive. And, you know,

Tll follow the law and what I’m

instructed to do the best that I can, but

some of us have ingrained prejudices

already that may taint our decision or

judgment. And I’m not trying to be

difficult here. I’m just trying to be

honest okay.

The question was thus early and squarely presented

in the presence of the entire panel: Do we have

insurance, and is it enough? Yet, the District Court

would not allow the question to be answered, placing

Eklund in an even worse position than he occupied

before the answer was given.

452 Remarkably, the District Court denied Eklund’s

request to have this juror dismissed for cause, even

though he clearly indicated that he had an

“ingrained prejudice” on the issue of the source cf

payment for any judgment against Wheatland

County. This candid statement from the juror was

18

App. 19

an unequivocal demonstration of concern at best,

and bias at worst, especially given Eklund’s inability

to allay the spoken concerns. Under other

circumstances, I would conclude that the District

Court committed reversible error by failing to

dismiss Butts for cause. Here, however, I doubt that

excusing him for cause would have made any

difference, once the entire panel] heard the insurance

question asked but go unanswered.

153 The effect that this statement had on Eklund’s

right to receive a fair trial cannot be overstated.

After Butts made his statement, the District Court

gave no corrective instruction or admonishment, and

then rejected attempts to have this juror removed for

cause. This was a clear signal to the members of the

jury that their questions about where the money

would come from, and the extent to which any

insurance arrangement would cover them, would not

be answered, and further that having such worries

would not disqualify them from serving on the panel.

In fact, a second juror voiced these same unanswered

concerns. That juror was seated.

154 Once these overt concerns about whether there

was any insurance to protect the county were laid

before the entire jury panel, the District Court

should have reevaluated its position with regards to

the mention of insurance. I conclude that the

District Court’s blanket prohibition on any mention

of insurance constituted an abuse of discretion at

this point, and was unreasonable in light of Eklund’s

constitutional right to a fair and impartial trial.

Jenks and M. R. Evid. 411 clearly allowed the

District court to take corrective action and briefly

19

App. 20

explain the insurance arrangement, since it would

be done not to prove negligence or wrongful action on

behalf of Wheatland County, but only to ensure that

the jury’s concerns were allayed sufficiently to allow

Eklund a fair and impartial trial.

"155 At the conclusion of trial, the District Court

gave the following jury instructions:

In determining the amount of damages,

you may not consider, even a little, the

following:

1) Whether the Defendant can afford

it.

2) Whether it might raise your taxes.

3) Whether it is a windfall.

956 As an initial matter, I find it hard to reconcile

the District Court’s instruction that jurors were to to

consider “even a little” whether a judgment against

Wheatland County would raise their taxes, with its

denial of Eklund’s request to have Butts dismissed

for cause. For not only did this juror consider the

issue significant “ingrained prejudice” and would

have an impact on his deliberation. These two

rulings are simply irreconcilable in my judgment.

157 The greater problem is that his instruction

compounded the prejudice to Eklund, who sought to

have the prospect of insurance at least mentioned in

the list of factors “not to be considered.” Essentially,

the instruction highlights the three negative

prospects that a verdict for the Plaintiff would

present—one, we can’t afford this; second, it might

raise our taxes; and third, the Plaintiff may reap a

20

App. 21

windfall at our expense. In highlights no potentially

saving factors, like the existence of insurance, again

making matters worse for Eklund.

758 In sum, the handling of voir dire, the

restrictions on Eklund, and the District Court’s

instruction combined at best to leave the jury panel

actively worried throughout trial about what a

verdict might mean to their pocketbooks. At worst,

the refusal to address the jury’s concerns and the

ensuing refusal to mention insurance in the

instruction may well have left the impression that no

insurance existed at all. Either way, Eklund was

prejudiced.

{59 At a fundamental level, the District Court’s

unreasonable disregard to the jury’s concerns placed

Eklund, an innocent and badly injured citizen, at a

severe disadvantage. Leaving the front-burner

question of how a verdict might be satisfied

unresolved in the minds of the jurors from this small

rural town prevented him from having his case

decided on the merits. While similar concerns

seldom arise in larger states, or even within larger

counties in Montana, there they were open and real.

The District Court should have weighed the

“competing concerns,” and employing its

“conscientious judgment,” see Jenks, (28, should

have either allowed Eklund to reference an

insurance agreement, or told the jury directly that

an arrangement of some sort existed. After all,

Eklund himself is a taxpayer too and deserves, as do

all the citizens of this state, the opportunity for a

fair and impartial trial. I believe the District Court’s

rulings in this case unreasonably denied him this

21

App. 22

right and constituted an abuse of discretion. I would

revers and remand for a new trial and respectfully

dissent from the Court’ failure to do so.

/S/ PATRICIA COTTER

App. 23

KATHERINE M. IREGOIN

District Judge, Department 2

Seventh Judicial District

201 West Main Street

Sidney, MT 59270

Telephone: (406) 433-5939

Facsimile: (406) 433-6879

MONTANA FOURTEENTH JUDICIAL

DISTRICT COURT

WHEATLAND COUNTY

DONALD S. EKLUND, )

) Cause No. DV 01-13

Plaintiff, )

) Judge Katherine M.

vs. ) Irigoin

)

WHEATLAND COUNTY ) ORDER DENYING

and its Sheriff, ) MOTIONS FOR

JAMES ROSENBERG )JUDGMENT

) NOTWITHSTANDING

) VERDICT AND FOR

) NEW TRIAL

Defendants. )

Pursuant to Mont. R. Civ. P. Rule 59(g), the

Plaintiff filed timely Motions for Judgment

Notwithstanding Verdict and for New Trial. The

Defendants filed an Answer Brief opposing the

Motions. The Plaintiffs filed a reply brief. The

matter is fully briefed, and the Court is prepared to

rule.

App. 24

The Defendants’ position being more

persuasive, IT IS HEREBY ORDERED that the

Plaintiffs Motions for Judgment Notwithstanding

Verdict and for a New Trial are DENIED.

DATED this 15" day of June, 2008.

Katherine M. Irigoin

District Court Judge

I hereby certify that I have

mailed a true copy of this

document to Thomas

Towe, Norman Grosfield

by depositing same in the

U.S. Mail this 6" day of

April 2007, J. Hill, Clerk of

the District Court

App. 25

MONTANA FOURTEENTH JUDICIAL

DISTRICT COURT

WHEATLAND COUNTY

DONALD S. EKLUND, _)

) Cause No. DV 01-13

Plaintiff, )

) Judge Katherine M.

vs. ) Irigoin

)

WHEATLAND COUNTY ) ORDER DENYING

and its Sheriff, ) PLAINTIFF’S MOTION

STEVE RIVELAND ) FOR CHANGE OF

) VENUE

Defendants. )

In 2001, the Plaintiff, Donald S. Eklund

(“Eklund”), filed suit in Wheatland County against

various defendants for claims related to injuries he

suffered when he was struck by a motor vehicle in

Harlowton. The defendants were released from

liability based upon summary judgment or trial

verdict. Eklund appealed from the orders granting

summary judgment and from evidentiary orders

surrounding the jury trial. On December 14, 2006,

the Montana Supreme Court affirmed the release. of

all defendants except Wheatland County and its

Sheriff Steve Riveland. The Clerk of the Supreme

Court issued Remittitur on January 5, 2007, a copy

of which Eklund received on January 8, 2007.

App. 26

On January 8, 2007, the date that he received

the Remittitur, Eklund mailed to opposing counsel

and others Plaintiffs Motion for Change of Venue

and Brief in Support. The Motion was filed January

10, 2007. On January 22, 2007, the Defendants,

Wheatland County and its Sheriff, Steve Riveland

(“Wheatland County”), filed their answer brief

opposing the motion for change of venue. On

February 15, 2007, Eklund filed Plaintiffs’ Notice to

the Court, attached to which were two articles

published in the official newspaper of Wheatland

and Golden Valley Counties: A January 11, 2007,

article covering the Montana Supreme Court’s

decision, and a February 8, 2007, article covering

Eklund’s motion for change of venue. On February

8, 2007, Eklund file his reply brief. The Court deems

the matter submitted and is prepared to rule.

I. Eklund’s Motion for Change of

Venue was Timely Filed.

Eklund argues that venue should be changed

pursuant to §25-2-201(2), MCA. In particuiar,

Eklund argues that “there is reason to believe that

an impartial trial cannot be had” in Wheatland

County, the county which is otherwise the proper

count for venue, because most, if not all, of the jurors

will be Wheatland County taxpayers prejudiced by

the possible financial considerations regarding

increased taxes.

Eklund furtner argues that, pursuant to

Mont. R. Civ. R. 12(b)(iii), the time period for filing a

motion for change of venue is extended to 20 days

after the January 5, 2007, Remittitur, not 20 days

App. 27

after the Montana Supreme Court’s December 14,

2006 decision. As competent proof of the extended

filing triggering event, Eklund offers the Montana

Supreme Court’s decision. Eklund argues that the

Montana Supreme Court decision affords good cause

to believe that an impartial trial cannot be had

under 925-2-201(2), MCA, because it affirms the

reduction from 11 defendants, including some non-

local defendants, to two local defendants, and a

judgment against only local defendants is more

likely to result in increased taxes.

Wheatland County argues that, because

Eklund did not file his motion for change of venue

within 20 days of the Montana Supreme Court’s

December 14, 2006, decision, it was not timely filed

under Mont. R. Civ. P. 12(b)(iii). Eklund argues

convincingly that the 20-day extended filing period

should begin from the issuance of the Remittiture,

not the filing of the Montana Supreme Court

decision because the district court lacked jurisdiction

until remittitur was issued. In this case, the parties

had the right to Petitioner for rehearing within 10

days after the December 14, 2006, Montana

Supreme Court decision. Mont. R. App. P. 34. A

petition for rehearing would consequently have to be

filed on or before January 4, 2007. Remittitur was

issued January 5, 2007, consistent with Mont. R.

App. P. 35(b) that remittitur “shall be issued

promptly upon expiration of time for filing petition

for rehearing . . .” Eklund did not file his motion for

change in venue late when he filed it within 20 days

of the issuance of the January 5, 2007, Remittitur.

App. 28

II. Taxpayers as Jurors Do Not Prevent an

Impartial Trial

The “proper place of trial for an action against

a public officer” like a sheriff “is the county where

the cause or some part thereof arose.” §25-2-126(2),

MCA. Here, Eklund claims he was injured by the

crash in Wheatland County and does to deny that

the Sheriff was acting in his official capacity.

Wheatland County consequently is the proper county

statutorily in which to sue Wheatland County and

its Sheriff. The inhabitants of a county are

competent jurors on an action in which the county is

interested if the inhabitants are otherwise

competent and qualified to act as jurors. §3-15-

302(2), MCA.

The Fourth Amendment of the Constitution of

the United States and Section 17, Article II,

Constitution of Montana, guarantee the right to a

fair trial by an impartial tribunal as part of due

process. Montana has not yet determined that

taxpayers are not impartial in cases involving local

governmental entities or elected officials. On the

contrary, the Montana Supreme Court has affirmed

the denial of a motion to change venue based on the

possible effect of juror-taxpayerse’ “pecuniary

interests” and local prejudice. School Dist. No. 1 v.

Globe & Republic Ins. Co. (1963), 142 Monit. 220, 383

P.2d 482. As convincing as contrary law from other

jurisdictions may be, it is not present Montana law.

App. 29

ORDER

Plaintiffs Motion for Change of Venue is

therefore denied.

DATED this 29" day of March, 2007.

Katherine M. Irigoin

District Court Judge

I hereby certify that I have

mailed a true copy of this

document to Thomas

Towe, Norman Grosfield

by depositing same in the

U.S. Mail this 6" day of

April 2007, J. Hill, Clerk of

the District Court

App. 30

THOMAS E. TOWE, ESQ.

TOWE, BALL, ENRIGHT, MACKEY

& SOMMERFELD, P.L.L.P.

2525 Sixth Avenue North

P. O. Box 30457

Billings, MT 59107-0457

(406) 248-7337 (Office)

(406) 248-2647 (Facsimile)

Attorneys for Plaintiff.

MONTANA FOURTEENTH JUDICIAL DISTRICT

COURT

WHEATLAND COUNTY, MONTANA

DONALD S. EKLUND, YNo. DV-01-13

)

)Judge Katherine Irigoin

Plaintiff )

)

Vs. YPLAINTIFF’S MOTION

JFOR CHANGE OF

ROY TROST, LYNN VENUE AND

HAMILTON, YBRIEF IN SUPPORT

Custodian for Roy Trost; )

CARL MOODY; )

WHEATLAND COUNTY )

COUNTY and its SHERIFF)

STEVE RIVELAND; and _ )

YELLOWSTONE COUNTY)

and its subordinate )

YELLOWSTONE COUNTY )

YOUTH SERVICE CENTER)

App. 31

DONNA MARMON, Juvenile)

Probation Officer, and her )

employers, GOLDEN )

VALLEY COUNTY, )

WHEATLAND )

COUNTY, MEAGHER )

COUNTY, and )

MUSSELSHELL )

COUNTY, )

)

)

Defendants.

The Plaintiff, DONALD S. EKLUND, and

moves the Court for a change in venue. See Brief in

support of this motion that follows.

Norm Grosfield, counsel for Wheatland

County and its Sheriff, Steve Riveland, has indicated

that he probably will oppose this motion.

BRIEF IN SUPPORT OF MOTION

I,

FACTUAL AND PROCEDURAL

BACKGROUND.

This case was filed in Wheatland County

against numerous Defendants because the accident

took place in the City of Harlowton. The defendants

at that time were Roy Trost, the minor who caused

the accident, Lynn Hamilton, his mother, Carl

Moody, his grandfather whose vehicle he was

driving, Wheatland County and Steve Riveland, its

Sheriff, Yellowstone County Youth Services Center.

Later, Donna Marmon, Golden Valley County,

Wheatland County, Meagher County and

Musselshell County were joined as Defendants.

Initially, Carl Moody was dismissed as a party on a

App. 32

motion for summary judgment as was Wheatland

County and its Sheriff, Steve Riveland Later,

Donna Marmon and Golden Valley County,

Wheatland County, Meagher County and

Musselshell County, Donna Marmon’s employers,

were dismissed on motions for summary judgment.

Lynn Hamilton and Roy Trost settled for

approximately $20,500.00 (the amount in Roy Trost’s

trust fund and a minor contribution from Lynn

Hamilton). The case then went to trial against

Yellowstone County Youth Services Center.

The trial resulted in a defense verdict. On

appeal, the Montana Supreme Court affirmed the

actions releasing Donna Marmon and the four

counties that employed her and the verdict of the

jury in favor of Yellowstone County Youth Services

Center, but reversed the Summary Judgement

granted in favor of Wheatland County and its

Sheriff, Steve Riveland, regarding the high speed

chase through the City of Harlowton. On remand,

the only case that remains is Wheatland County and

its Sheriff, Steve Riveland, regarding the high speed

chase through town.

Deputy Sheriff Lesley Christensen, initially

heard the bulletin while on an errand to Judith Gap.

When it was determined that the car was headed

toward Harlowton, he went toward Roundup to

intercept it. When he saw the vehicle a couple of

miles out of Harlowton coming toward him he

attempted to stop it, but it went right on by. He

turned around and with his siren going and red

lights flashing, he chased Trost all the way into town

and through the edge of town and into the main part

App. 33

of town where the highway crosses the main

business street.

Officer Lesley Christensen went past the city

limit sign, which is posted at 45 mph. As he neared

the IGA grocery store, he noticed that he was

traveling somewhere between 75 and 80 miles per

hour, and the suspects were not slowing down or

pulling over. He stated that as they continued into

town he kept hoping the suspects would stop, but

they did not. As he neared the IGA grocery store, he

started to slow down because “I realized that we

were going way too fast in town and that someone

was going to get hurt.” Exhibit K. Officer James

Rosenberg, a highway patrol that was riding with

Lesley Christensen at the time, estimated they were

traveling 75-80 miles per hour when they entered

town. Exhibit L.

There is also evidence that Christensen knew

the driver of the truck was a juvenile and that he

realized that the truck driven by juveniles was not

likely to stop when things got dangerous. Exhibit M.

The Wheatland County Sheriffs Office has a policy

manual which describes procedures for pursuit. It is

Plaintiffs contention that Officer Christensen failed

to comply with this procedure.

While traveling at a high rate of speed

through town, Roy Trost, driving a stolen pickup,

clipped the front end of another car, and careened

across the road and across the parking lot ultimately

striking Donald S. Eklund in the parking lot just as

he was getting out of his truck to go into the barber

shop to get a haircut. Eklund was tossed into the air

App. 34

and landed on the hard surface parking lot after the

vehicles went on through. Thus, he defied all odds

by surviving the accident, but he did lose his spleen,

suffered a collapsed lung, numerous serious

puncture wounds, lacerations, abrasions, and many

other serious and permanent injuries.

Il.

ARGUMENT

A. THE MOTION FOR CHANGE OF

VENUE IS TIMELY.

The time for filing a motion for change of

venue is set forth in Rule 12(b)iii) of the Montana

Rules of Civil Procedure and it reads as follows:

iii. Any request for change

in place of trial for grounds

2 and 3 of § 25-2-201,

MCA, must be presented

by motion within 20 days

after the answer to the

complaint, or to the cross-

claim where a cross-claim

is filed, or the reply to any

answer, in those cases in

which a reply is

authorized, has been filed;

except that whenever at

some time more than 20

days after the last

pleading has been filed an

event occurs which

thereafter affords good

cause to believe that an

: tial trial )

App. 35

be had under ground 2

of said §25-2-201, and

competent proof is

submitted to the court that

such cause of impartiality

did not exist within the 20-

day period after the last

pleading was filed, then

Rule 12(b)(iii) of the Montana Rules of Civil

Procedure (emphasis supplied.)

Plaintiff contends that the Decision of the

Montana Supreme Court in which all complaints

and claims against parties other than Wheatland

County where upheld leaving Wheatland County as

the only Defendant, is an event that affords good

cause to believe an impartial trial cannot be had in

Wheatland County. This motion is being filed within

20 days of that event.

Plaintiff contends that an impartial trial

cannot be had in Wheatland County in a case

against Wheatland County and its Sheriff, Steve

Riveland, because the jurors will be primarily, if not

all, taxpayers of Wheatland County and will be

affected in their pocketbooks by the judgment. They

cannot be impartial. It will not be possible to find

sufficient jurors who are not taxpayers within

App. 36

Wheatland County and, consequently, there is a

huge bias or problem. Plaintiff cannot possibly

receive an impartial jury in Wheatland County if all

jurors are taxpayers of Wheatland County. See

Plaintiffs argument in the next issue. Obviously,

while other parties existed, the focus would not be on

the taxpayers of Wheatland County. Now, however,

because of the action of the Montana Supreme

Court, the only Defendant remaining is Wheatland

County. The Decision of the Montana Supreme

Court is an event which affords good cause to believe

an impartial trial cannot be held in Wheatland

County and, therefore, Rule 12(b\iii) applies to this

situation.

B. AN IMPARTIAL JURY CANNOT BE

OBTAINED IN WHEATLAND

COUNTY ANYMORE.

Unlike the initial case against numerous

Defendants in various Counties - initially there were

nine separate Defendants, including Wheatland

County and its Sheriff, Steve Riveland - now there is

but one Defendant, namely, Wheatland County. The

change of venue statue reads as follows:

When change of venue

required. The court or

judge must, on motion,

change the place of trial in

the following cases:

(1) when the county

designated in the

App. 37

complaint is not the proper

county;

(2) when there is reason to

believe that an impartial

trial cannot be had

therein;

(3) when the convenience

of witnesses and the end of

justice would be promoted

by the change.

§25-2-201, MCA. Plaintiff invokes both (2) and (3).

First, there is reason to believe that an impartial

trial cannot now be held in Wheatland County

because the only Defendant is Wheatland County

and virtually all jurors will be taxpayers of

Wheatland County specifically affected in their

pocketbook by their decision of themselves, the jury.

Secondly, the ends of justice would be promoted by a

change for this same reason.

The bias to Plaintiff in requiring Plaintiff to

go to trial in a county in which the jurors are made

up of taxpayers who will be directly affected by the

outcome of the case should be obvious. Whether or

not the County is insured for such damages, the

taxpayers are bound to be affected. If the County is

fully insured there may well be an increase in

premiums or a problem in obtaining additional and

future insurance. If the County is not insured fully,

there will be payments out of the general fund to pay

for any verdict. This is not an idle concern in as

much as Plaintiff has been claiming total damages of

App. 38

$1,534,676.15. (That number was presented prior to

the Montana Supreme Court Decision and may need

to be updated.) Any request of that nature will scare

any taxpayer. Any logical'and reasonable taxpayer

will assume their own taxes will be affected whether

they are fully insured or not because the numbers

are so large. Because it affects each taxpayer’s own

pocketbook, there is no way a taxpayer can be an

impartial or unbiased jurors. Even tenants who own

no real estate of their own will be affected because

increased taxes will affect the rent they pay.

Consequently, there is no way to avoid the bias from

any jury selected in Wheatland County. It would be

like asking stockholders to be jurors in a $1.5 million

case against a _ corporation. It would be

fundamentally unfair.

It is true that Montana generally rejects the

notion that County taxpayers would be biased jurors

in a case in which the County is a party because the

County taxpayers risk higher taxes if the County

loses. In effect, the Courts in this State have held

that taxpayer status is not grounds for juror

disqualification. See Goodnough v. State, 199 Mont.

9, 18, 647 P.2d 364, 369 (1982); Keith v. Liberty

County Hosp. and Nurs. Home, 183 Mont. 39, 41,

598 P.2d 203, 204 (1979) and cases cited therein.

First, none of the cases include claims as large or as

serious as the claim in this case and the Montana

Supreme Court may not consider either as good

precedent in the instant case. Second, a closer look

at these and other cases indicate that courts are not

prohibited from granting a motion for change of

venues. It is simply that their discretion will be

considered abused by denying the motion or that the

App. 39

motion was not timely filed. See Keith, 183 Mont. at

40, 598 P.2d at 204 (Plaintiff waived her right to a

change of place of trial for failure to timely move

therefore.); Goodnough, 199 Mont. at 19, 647 P.2d at

369 (the trial court committed error in not allowing

Plaintiffs to question perspective jurors about their

beliefs as taxpayers concerning the financial

outcome of the case, but this error was harmless

because the jury returned a verdict for the

Defendant and did not need to reach the question of

damages); Mannix v. Butte Water Co., 259 Mont. 79,

88, 854 P.2d 834, 841 (1993) (the lower court did not

abuse its discretion in denying plaintiffs motion for

change of venue especially where the taxpayer issue

was not the only basis on which the respondents

relied or on which the district court based its

decision); Carter County v. Cambrian Corp., 143

Mont. 193, 194-95, 99, 387 P.2d 904, 904-05, 907

(1963) (The district court did not abuse its discretion

in denying a motion for change of venue where the

defendants sought a change of venue in an action by

the county against them for damages to a bridge.

The amount in controversy was a mere $50,000.00.)

By contrast, in other jurisdictions the issue is

recognized. See Olson v. City of Sioux Falls, 63 S.D.

563, 262 N.W. 85 (1935) (Order granting change of

venue was affirmed); Sheridan County v. Davis, 61

N.D. 744, 240 N.W. 867, 871 (1932) (Although the

jurors may not be subject to challenge for cause, a

wise discretion in deciding a motion for a change of

place of trial might require a transfer of a case,

where it appears that every perspective juror will

have a small interest as a taxpayer averse to the

moving party). In the latter case, the Court stated:

10

App. 40

However, though no juror

might have been subject to

challenge for cause, it does

not follow that the Court

wisely exercised its

discretion in denying the

application for a change of

place of trial. It is one

thing to hold that a juror

may not be challenged for

cause on a count of a very

small interest which he

may have as a taxpayer,

but quite another thing to

conclude that an entire

jury of taxpayers, each of

whom is interested to a

small degree adversely to

the defendant, gives that

assurance of a fair trial to

which every litigant is

entitled.

Sheridan County, 240 N.W. at 871. On that basis,

the Supreme Court of North Dakota reversed the

judgment because the defendants did not have a fair

trial.

It is respectfully submitted the same applies

in the instant case, only worse. Because the sums of

money claimed are so large, it is bound to have an

impact. There is no way the jury can be unbiased

under these circumstances. Clearly, thev will

perceive, whether actual or not, that they will have

to dig into their own pockets to pay the judgment if

11

App. 41

the amounts requested are awarded. Thus, because

the damages are so great in the instant case, it is not

possible for Plaintiff to obtain a fair and impartial

jury made up of taxpayers from Wheatland County.

This Court must exercise its discretion and grant the

motion for change of venue.

RESPECTFULLY SUBMITTED this 8” day of

January, 2007.

TOWE, BALL, ENRIGHT, MACKEY

SOMMERFELD, F.L.L.P.

By: /s/ Thomas E. Towe

THOMAS E. TOWE

Counsel for Plaintiff

TIF TE E E

The undersigned hereby certifies that on the

8th day of January, 2007, a true and correct copy of

the foregoing Plaintijfs Motion for Change of Venue

and Brief in Support was duly served by United

States Mail, postage prepaid, upon the following:

KEVIN GILLEN, ESQ.

Deputy Yellowstone County Attorney

P. O. Box 35025

Billings, MT 59107-5025

NORMAN H. GROSFIELD, ESQ.

Utick & Grosfield

P.O. Box 774

Helena, MT 59624

12

App. 42

STEVEN MILCH, ESQ.

Crowley Law Firm

P. O. Box 2529

Billings, MT 59103-2529

THE HONORABLE KATHERINE IRIGOIN

201 West Main Street

Sidney, MT 59270

TOWE, BALL, ENRIGHT, MACKEY &

SOMMERFELD, P.L.L.P.

By:/s/ Thomas E. Towe inaliaoas

Thomas E. Towe

13