                             NO.    93-629
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1995


CHARLES M. BICKENHEUSER,
           Plaintiff and Appellant,
     v.
ANNABETH M. FELSMAN, individually and as an
employee of the Department of Family Services,          FED !
                                                          L     23 ,1995
                                                                 .

     and
STATE OF MONTANA,
           Defendants and Respondents.



APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of Missoula,
               The Honorable John S. Hensdn, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               Charles M. Bickenheuser, Pro Se,
               Missoula, Montana
           For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Kelly M. O'Sullivan, Assistant Attorney General,
               Agency Legal Services Bureau, Helena, Montana


                             Submitted on Briefs:       December 1, 1994
                                             Decided:   February 23, 1995
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Appellant Charles M. Bickenheuser, appearing pro se, appeals
from an order of the Fourth Judicial District Court, Missoula
County,    granting   summary    judgment   in   favor   of        respondents
Annabeth M. Felsman and the State of Montana and striking the
affidavits in opposition to summary judgment.
     Af firmed .
     Appellant raises the following issues:
     1.    Did the District Court err in granting respondents'
motion to strike?
     2.    Did the District Court err in granting respondents'
motion for summary judgment?
     Felsman was employed by the Department of Family Services as
a child protective services worker. On December 13, 1990, Felsman
received   a   referral   of    suspected   child   abuse     of    T.B., an
eight-year-oldboy living with his foster parents, Bickenheuser and
his wife. On the same day, Felsman began her investigation of the
alleged abuse.     Felsman interviewed and took photographs of T.B.
She also interviewed Bickenheuser and his wife, who claimed that
they no longer wanted T.B., and that they wanted to close their
foster care license.      Felsman determined that Bickenheuser had
grabbed T.B. by the jaw with sufficient force to leave marks on the
child's face. T.B. was subsequently removed from the Bickenheuser
home.
     Felsman notified Missoula County Detective Hintz of her
investigation of the alleged abuse.    Detective Hintz conducted a
criminal   investigation   simultaneously   with   Felsman's   civil
investigation. Because T.B. had been removed from the Bickenheuser
home, Felsman closed her civil investigation and reported to the
Department of Family Services, concluding that the abuse to T.B.
had been substantiated.
     Detective Hintz interviewed T.B. on December 17, 1990, and
Bickenheuser on December 18, 1990.      On February 28, 1991, the
Missoula County Attorney's Office filed misdemeanor assault charges
against Bickenheuser in justice court alleging that Bickenheuser
grabbed T.B. 's jaw with sufficient force to leave bruises on either
side of T.B.'s face.       The charges against Bickenheuser were
subsequently dismissed for failure to prosecute, and the record was
expunged on motion of Bickenheuser.
     On November 19, 1992, Bickenheuser filed suit against Felsman
and the State of Montana, alleging Felsman recommended that he be
prosecuted for misdemeanor assault because Felsman was concerned
that she or the Department of Family Services would be sued for
negligently placing T.B. with the Bickenheusers. Bickenheuser also
alleged violations of his state and federal constitutional right to
free speech, due process, and equal protection.
     On January 5, 1993, the District Court dismissed the federal
consti.tutiona1 claims against Felsman and the State, but denied
Felsman's motion to dismiss the state constitutional tort claims.
On June 15, 1993, the District Court granted Felsman's motion for
summary      judgment   and     struck   two   affidavits   in   opposition.
     Bickenheuser appeals the District Court's order granting
respondents' motion        to    strike and    their motion      for   summary
judgment .
                                    ISSUE 1
     Did the District Court err in granting respondents' motion to
strike?
     A district court's decision whether to consider an affidavit
in support of, or in opposition to, a motion for summary judgment
is governed by Rule 56(e), M.R.Civ.P.,which provides in pertinent
part that :
     [Sl upporting and opposing affidavits shall be made on
     personal knowledge, shall set forth such facts as would
     be admissible in evidence, and shall show affirmatively
     that the affiant is competent to testify to the matters
     stated therein.
Bickenheuser and his attorney for the misdemeanor assault charge
filed affidavits in opposition to respondents' motion for summary
judgment.      The District Court found that the attorney's affidavit
contained hearsay and inadmissible comments on the evidence.              The
District      Court   found that    Bickenheuser's affidavit contained
matters which were irrelevant and outside the personal knowledge of
the affiant.          As a result, the District Court ordered both
affidavits stricken.
     A review of the record shows that the attorney's affidavit

consists almost exclusively of hearsay. In paragraphs 1 and 2, the
affiant offers alleged statements made by Felsman to Detective
Hintz and County Attorney Deschamps, which were subsequently
related to the attorney by Hintz and Deschamps, as evidence to
prove the truth of the assertion that Felsman was concerned that
she was going to be sued.     These statements are not based on
personal knowledge, and are hearsay.      Rule 801(c), M.R.Evid.
Similarly, Bickenheuser's affidavit lacks personal knowledge,
contains hearsay, and offers statements not related to the issue on
which summary judgment was granted. We have held that an affidavit
in support of or in opposition to a motion for summary judgment
should be   stricken by the district court when the affidavit
contains statements not based on personal knowledge, and/or not
related to the issue on which summary judgment is granted.   Eberl
v. Scofield (lggO), 244 Mont. 515, 519, 798 P.2d 536, 538; see also
Thornton v. Songstad (1994), 236 Mont. 390, 399, 868 P.2d 633, 638.
     We conclude that the affidavits do not meet the requirements
of Rule 56(e), M.R.Civ.P., and fail to properly raise the disputed
issues of material fact that Bickenheuser claims were central to
his case. We hold, therefore, that the District Court did not err
in granting respondents' motion to strike the affidavits of
Bickenheuser and his attorney.
                              ISSUE 2
     Did the District Court err in granting respondents' motion for
summary judgment?
       "Our standard of review on a grant of summary judgment is
identical to that of a trial court's."        Cooper v. Sisters of
Charity (1994), 265 Mont. 205, 207, 875 P.2d 352, 353.       Summary
judgment is only proper when there is no genuine issue of material
fact, and the moving party is entitled to judgment as a matter of
law.    Rule 56 (c), M.R.Civ.P. Spain-Morrow Ranch, Inc. v. West
                              ;

(1994), 261 Mont. 441, 442, 872 P.2d 330, 332. The burden of proof
rests with the party seeking summary judgment to provide the court
with evidence which excludes any real doubt as to the existence of
a genuine issue of fact.    Berens v. Wilson (1990), 246 Mont. 269,
271, 806 P.2d 14, 16.     Only after the moving party has met this
burden of proof does the burden shift to the nonmoving party to
show that a genuine issue of fact exists.    Morton v. M.W.M., Inc.
(1994), 263 Mont. 245, 249, 868 P.2d 576, 579.     "When raising the
allegations that disputed issues of fact exist, the nonmoving party
has an affirmative duty to respond by affidavits or other sworn
testimony containing material facts that raise genuine issues;
conclusory or speculative statements will not suffice." Koepplin
v. Zortman Mining (Mont. 1994), 881 P.2d 1306, 1309, 51 St. Rep.
881, 882.
       Bickenheuser filed a tort action against respondents, alleging
that Felsman recommended prosecuting Bickenheuser because she
feared Bickenheuser would sue for negligent placement of T.B. Once
Felsman received the referral of suspected child abuse from T.B.'s
school, she had a statutory duty under 5 41-3-202(1) and    (3),   MCA,
to investigate the allegations and advise the county attorney of
the investigation.       There is nothing in the record to show that
when Felsman informed Deputy Missoula County Attorney, Anderson of
her investigation that she made any recommendation as to what his
charging decision should be. Anderson testified that he would not
have accepted any such recommendation had she made one.             Anderson
did not file criminal charges against Bickenheuser.               Misdemeanor
assault charges were filed against Bickenheuser by County Attorney
Robert Deschamps. Deschamps testified that his charging decision
was based on his review of Anderson's internal memoranda and the
investigation file prepared by the Missoula County Sheriff's Office
and    was   undertaken    in   the   exercise   of   his     independent,
prosecutorial discretion. Felsman testified that Deschamps did not
speak with her or review her investigation files prior to charging
Bickenheuser.
       Following   the    defense's   presentation    of    the     foregoing
testimony, the burden shifted to Bickenheuser to establish a
genuine issue of fact.          In Issue 1, we determined that the
affidavits of Ranney and Bickenheuser did not meet the requirements
of Rule 56(e), M.R.Civ.P., and were properly stricken. Therefore,
Bickenheuser failed to meet his affirmative duty to respond by
affidavit or other sworn testimony containing material facts that
raise genuine issues.       As there is no genuine issue of material
fact, respondents are entitled to summary judgment as a matter of
law.
     We hold that the District Court did not err in granting
respondents' motion for summary judgment.
     Af firmed.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.



                                         Justice

We concur:
                                       February 23, 1995

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


CHARLES M. BICKENHEUSER
1105 Haaglund Dr. No. Six
Missoula, MT 59802


HON. JOSEPH P. MAZUREK
Kelly M. O'Sullivan
Agency Legal Services
Justice Bldg.
Helena, MT 59620-1402

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
