                                No. 8 7 - 4 0 3
               IN THE STJPREME COURT OF THE STATE OF MONTANA
                                     1988



JOHN E. WRIGHT,
                 Plaintiff and Appellant,


STATE OF MONTANA, MICHAEL GREELY,
Attorney General of the State of
Montana; RAY HOUGHTON; CITY OF
BOZEMAN, a Municipal corporation;
and EDWARD MALONE,
                 Defendants and Respondents.



APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
        For Appellant:
                 J. David Penwell, Bozeman, Montana
        For Respondent :
                 Leanne M. Schraudner, Lilly, Andriolo and Schraudner;
                 Bozeman, Montana,
                 G. Curtis Drake, Keller, Reynolds, Drake, Sterhagen
                 and Johnson; Helena, Montana
                 John Maynard, Tort Claims Division, Helena, Montana



                                     Submitted on Briefs:   February 18, 1 9 8 8
                                        Decided:

Filed: A P R 6 - 1988
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                                    Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


     This is an appeal from an order by the District Court,
Eighteenth Judicial District, Gallatin County, granting
summary judgment in favor of respondents. We affirm.
     Appellant's issue on appeal restated is:
     Did the District Court err in granting summary judgment
for all defendants when there existed a material issue of
fact?
     On January 20, 1984, plaintiff John Wright was arrested
for violations of § 45-8-101, MCA, disorderly conduct, and S
45-6-203, MCA, criminal trespass, while attempting to renew
his expired Montana driver's license at the Licensing Bureau
offices in Bozeman.    Wright entered the Bureau offices in
midmorning with the intention of renewing his expired
license.   He was first waited upon by examiner Rena Knapp,
who informed him that because his license was past 90 days
expired, he was required to pass a complete driving
examination before being issued a new license. Wright took
and successfully passed the written exam and then was
required by Knapp to fill out the standard application form
called a DL-40.   The form he filled out contained a clause
that required the disclosure of his Social Security number.
Although Montana law no longer mandates the use of a Social
Security number, many of the old forms are still being used.
Either Knapp or examiner Ray Houghton asked him what his
number was.   He indicated he did not wish to disclose his
Social Security number and there is testimony that he replied
by saying, "Hell, no." Additional testimony indicates he was
given a random number.
     At   this point, examiner Houghton took over the
application of Wright. After apparently completing the rest
of the form, Wright left the office and returned with the
vehicle he wished to use for the driving portion of the exam.
Before he left he was advised by Houghton to be sure to bring
back adequate proof of insurance.
     Wright returned but with what Houghton thought to be
inadequate proof of insurance, and he refused to allow Wright
to finish the exam because an examiner is prohibited from
getting into a vehicle without adequate proof of insurance.
A loud argument ensued and ended when Wright called Houghton
a "horse's ass." Houghton then told Wright not to come back
that day as he would not be waited upon further.       Wright
left, attempting to slam the office door as he went. Wright
did return later that day and tried to use an office phone
restricted to office business only. Having several customers
and not wanting a disturbance, Houghton called the police and
Wright was arrested after refusing the police officer's
request to leave.    He was taken to the detention center,
booked, and released on bail.       The next Monday, Wright
returned to the Bureau office, showed adequate proof of
insurance and was given the driving portion of the exam by
Houghton.   He passed and was given a new driver's license.
All charges were later dismissed.    It should be noted that
Wright's renewed license does not contain his Social Security
number.
     Wright brought suit for false arrest and other claims
against the State of Montana, Houghton, City of Bozeman and
the arresting officer, Ed Malone.     All defendants filed a
motion for summary judgment which was granted July 29, 1987.
In its order, the District Court noted the lack of any
evidence submitted in opposition to the motion and found no
material issue of fact existed. Plaintiff appeals.
     Appellant argues that the court ignored the existence of
two issues of fact at the time it entered summary judgment.
First, appellant disputes whether there was probable cause to
arrest and second, whether Wright was arrested because he was
required to give his Social Security number as a condition
precedent to obtaining his driver's license. We will address
the second issue first.
       The standard of review for an order for summary judgment
is the same as that used by the District Court under Rule 56,
M. R. Civ. P.  Mayer Bros. v. Daniel Richard Jewelers, Inc   .
 (Mont. 1986), 726 P.2d 815, 816, 43 St.Rep. 1821, 1822. If
the record does not show an issue of material fact exists the
movant is entitled to summary judgment as a matter of law.
Rule 56 (c), M.R.Civ.P.
       The burden of proof requirements for summary judgment
have been set forth by this Court on innumerable occasions.
The initial burden is on the party seeking summary judgment.
Once that burden is met the party opposing the motion must
present evidence substantial and material enough to raise a
genuine issue of fact. B.M. By Berger v. State (Mont. 19851,
698 P.2d 399, 401, 42 St.Rep. 272, 274.
       Further, we have stated that a party opposing a motion
for summary judgment may not rest upon his pleadings but has
an affirmative duty to bring forth sworn testimony or
affidavits which show a genuine issue. Mere allegations are
insufficient to raise a genuine issue of fact. Mayer Bros. ,
726 P.2d at 817; B.M. By Berger, 698 P.2d at 401; Conboy v.
State (Mont. 1985), 693 P.2d 547, 551, 42 St.Rep. 120, 125.
       The appellant presented no evidence to the District
Court in opposition of respondent's motion for summary
judgment. No affidavits were filed. Wright's own deposition
was not filed until a month after the court's judgment. The
court need not consider untimely filed documents in
proceedings for summary judgment.    Marcus Daly Memorial
Hospital v. Borkoski (Mont. 1981), 624 P.2d 997, 1000, 38
St.Rep. 322, 325.
     Appellant argues that a negotiation session between the
parties transcribed by a court reporter can be considered by
the District Court. We hold that because this is not sworn
testimony the District Court need not consider it in
proceedings for summary judgment.
     The relevant depositions in the District Court file are
all consistent on the point of Wright's Social Security
number.   Both Knapp and Houghton testified that Wright was
not required to use his Social Security number and was in
fact assigned a random number. There is no opposing evidence
that shows he was forced to use his Social Security number.
That number is not on his driver's license.           Knapp ' s ,
Houghton's and Malone's depositions are consistent in showing
that the conflict arose over Wright's lack of proof of
insurance.      Even   if  Wright's   deposition   showed     an
inconsistency it was not before the court and cannot be
considered. The appellant failed to carry his burden and the
District Court made its decision accordingly.
     Appellant also argues that whether officer Malone had
probable cause to arrest Wright is a question of fact which
the appellant is entitled to present to a jury. The general
rule is that where the facts are undisputed the question of
whether an arrest was legal or illegal becomes a question of
law for the court.    32 Am. Jur.2d False Imprisonment, S 96.
     Since no material fact exists the respondents were
entitled to summary judgment as a matter of law.             We
therefore affirm the District Court's order for summary
judgment.
Justices
Mr. Justice John C. Sheehy, dissenting:



     In Hamlet's soliloquy, one of the "whips and scorns"
which led the great Dane to consider whether death was better
than life was "the insolence of office." In those few words,
the Bard managed to express the aggravations and futilities
pressed on any of us when public officials vent their sour
stomachs in performing their duties. The authority to wear a
badge or to wield a pen in power over others seems to fuel in
us a sense of mastery, and not of service.     It is a common
failing, and all of us public servants succumb to it at some
point.
     It is an insolence of office in us to disregard the rule
of law applicable to a summary judgment in this case. That
rule is that a summary judgment does not lie where there are
genuine issues of material fact.
     This Court assumes without question that the version of
incidents propounded by the public officers in this case is
the only version.   It ignores the opposite version posed by
the plaintiff, that he went to a public building to renew his
driver's license; that his Social Security number was
demanded; that he later produced proof of insurance but that
the examiner refused to issue him a license that day, and
told him to return on the following Monday; and that the
examiner called the police and had him arrested; that the
charges against him were disorderly conduct and criminal-
trespass; and that both of these charges were later
dismissed.   In short, he went to a public building for a
driver's license and wound up handcuffed and led off to the
police station.
     The real question in this case is whether there was
probable cause for Wright's arrest.   If his arrest was
groundless, he    has  a  cause of action against the
perpetrators.  Neither the District Court nor this Court
addresses that question.  The deposition testimony of Rena
Knapp is strong evidence that his arrest was groundless. She
describes how the examiner (without any authority to do so)
told Wright not to return for his license that day.
     When Wright returned, with his proof of insurance, the
examiner immediately, without exchanging a word with Wright,
telephoned for the police. Rena Knapp describes the interval
until the policeman came as no shouting and no threatening by
Wright. When the policeman came and asked what the problem
was, the examiner said that Wright had been asked to leave,
and would not, and that the examiner wanted Wright out of the
office; "that he would no longer be helped that day." There
appears no justification for refusal to help Wright on that
day, since he had paid for his license, successfully taken
the written exam, and had insurance papers which entitled him
to a test drive.    For reasons of his own, it appears the
patrolman was punishing Wright.     Without any struggle or
tumult, Wright was handcuffed and taken out of a public
building where he had a right to be, and groundlessly charged
with crimes.
     There are in this case genuine issues of material fact,
and summary judgment was improper. I would reverse.
