# Appendix — Eklund v. Wheatland County

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1095%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 936

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1095%3A2. Public record. Not legal advice.