                                                                                            October 13 2015


                                            DA 15-0320
                                                                                            Case Number: DA 15-0320

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2015 MT 297N



OBER E. SPEAR,

              Plaintiff and Appellant,

         v.

MONTANA PUBLIC EMPLOYEE
RETIREMENT ADMINISTRATION
and the STATE OF MONTANA,

              Respondents and Appellees.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DV 10-1326
                        Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Ober E. Spear (self-represented); Billings, Montana

                For Appellees:

                        Melanie A. Symons, Special Assistant Attorney General; Helena, Montana

                        Timothy C. Fox, Montana Attorney General, Matt Cochenour, Assistant
                        Attorney General; Helena, Montana



                                                     Submitted on Briefs: August 26, 2015
                                                                Decided: October 13, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Ober E. Spear appeals from the order of the Montana Thirteenth Judicial District,

Yellowstone County, granting summary judgment in favor of the Montana Public

Employee Retirement Administration (MPERA) and the State of Montana. We affirm.

¶3     Spear was employed by the Montana Highway Patrol (MHP) as a highway patrol

officer from 1958 to 1962. When he left MHP he applied for, and was denied, disability

retirement with the State Highway Patrol Board. The denial of that application was

upheld in this Court on January 10, 1967. Spear v. State Highway Patrol Ret. Bd.,

149 Mont. 7, 422 P.2d 348 (1967). On November 27, 1964, Spear was notified that he

would not be reinstated as a patrolman because he was not of sound and active physical

condition. In addition, MHP Colonel Mike Tooley certified on August 31, 2009, that

Spear was no longer an employee of the MHP and had not been with the patrol during

Tooley’s tenure which began in 1982.

¶4     In July 2010, pursuant to advice from its legal department, MPERA began making

“required minimum distribution” (RMD) payments to Spear.             MPERA determined

that, based on Spear’s age, his RMD payments should have commenced on or before



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April 1, 2000, and continued every year thereafter. Under this calculation, MPERA paid

out Spear’s benefits by check in July 2010.

¶5    Spear refused to cash the check and instead filed a complaint against MPERA in

the Thirteenth Judicial District in Yellowstone County alleging wrongful disbursement of

his retirement account funds. In the suit Spear also claimed he was still an employee of

the MHP and retained his status as an injured trooper on leave. Spear requested punitive

damages for “malicious” payment of his retirement benefits.

¶6    On June 25, 2013, MPERA moved for summary judgment arguing the facts

showed without dispute that Spear was no longer employed by the MHP, that MPERA is

required to pay retirement benefits to Spear under state and federal law, that payment of

those benefits was not malicious, and finally, Spear’s employment status was settled in

this Court in Spear v. State of Montana, 2012 MT 161N. The District Court granted

summary judgment in MPERA’s favor on April 20, 2015.

¶7    We review de novo a district court’s grant of summary judgment using the same

standards as the district court under M. R. Civ. P. 56. Tin Cup Cnty. Water v. Garden

City Plumbing & Heating, Inc., 2008 MT 434, ¶ 21, 347 Mont. 468, 200 P.3d 60.

Accordingly, a moving party is entitled to summary judgment when no genuine issues of

material fact exist and the moving party is entitled to judgment as a matter of law.

Wagner v. Woodward, 2012 MT 19, ¶ 16, 363 Mont. 403, 270 P.3d 21.

¶8    On appeal, Spear contends that the District Court erred when it determined he was

no longer an employee of the MHP and MPERA properly disbursed payments to Spear

from his MHP retirement account. To support his argument, Spear insists that he was

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permanently appointed as a MHP officer, that he never resigned, and he remains on leave

without pay.      Spear also argues that payment of his MPERA retirement benefits is

wrongful because he is still an employee of the MHP on leave without pay. Spear

believes that acceptance of his retirement would be an admission that he is no longer an

officer.

¶9         MPERA counters that the determination regarding Spear’s employment status

was made in Spear and that the issue has already been determined under stare decisis.

Spear, ¶ 10. MPERA also contends that pursuant to I.R.C. § 401(a)(9) (26 U.S.C.

§ 401(a)(9)) and §§ 19-2-908 and 19-2-1007, MCA, MPERA was required to commence

distribution payments to Spear.

¶10    On review of the record, we find no reason to revisit Spear’s employment status

with MHP. Based upon our decision in the 2012 Spear case, Spear is not a current

employee of the MHP because his employment was “terminated” in 1962. Spear, ¶ 10.

Spear’s arguments on appeal fail to raise any new issue regarding our prior determination

regarding his employment.

¶11    Next, we agree with MPERA’s argument that, as fiduciaries of the public

retirement system, MPERA properly followed state and federal law when it paid benefits

to Spear as a former employee of the MHP. Under § 19-2-908(1)(a), MCA, MPERA

may “on its accord and without a written application, begin benefit payments to a

member or beneficiary in order to comply with section 401(a)(9) of the Internal Revenue

Code.” Operating under its duty and this statute, MPERA correctly commenced payment

of Spear’s benefits because he was no longer working at the MHP. MPERA’s actions

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were proper because it was acting to comply with federal tax law requirements regarding

retirement benefit payments. Spear’s allegation that he was not terminated in 1962, that

he is still an employee, and thus cannot receive retirement benefits because he is an

officer on leave without pay, is not substantiated by facts or law. The determination in

our 2012 Spear decision found the opposite conclusion. Spear, ¶ 10. Spear raises no

genuine issue of material fact demonstrating a mistake with MPERA’s determination to

pay out his benefits. Therefore, we conclude that MPERA correctly dispersed Spear’s

benefits as required by federal and Montana law.

¶12     Based on the briefs and record in this case the District Court properly granted

summary judgment pursuant to M. R. Civ. P. 56, because the Court correctly applied the

law to the undisputed facts. Spear’s employment was terminated in 1962 and MPERA

has properly disbursed Spear’s retirement benefits according to federal and Montana law.

¶13    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s ruling was not an

abuse of discretion.

¶14    Affirmed.

                                               /S/ MICHAEL E WHEAT
We Concur:

/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE

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