                              No.    94-616
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1995


CAROL LEWIS,
          Plaintiff and Appellant,
     v.
ALCOHOL AND DRUG SERVICES OF
CENTRAL MONTANA, A MONTANA
CORPORATION, ITS AGENTS AND
EMPLOYEES, AND GREGORY WONNACOTT,
          Defendants and Respondents.




APPEAL FROM:   District Court of the Tenth Judicial District,
               In and for the County of Fergus,
               The Honorable Peter L. Rapkoch, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                Sarah Arnott Ozment, Attorney at Law, Livingston,
                Montana
                Suzanne Nellen,     Attorney at Law, Bozeman, Montana

           For Respondents:
                James L. Stogsdill, Attorney at Law, Lewistown,
                Montana
                Mark Higgins; Ugrin, Alexander, Zadick & Higgins,
                Great Falls, Montana



                                    Submitted on Briefs:   June 29, 1995
                                                Decided:   September 7, 1995
Filed:



                                    Clerk
Justice   Karla    M. Gray delivered the Opinion of the Court.


        Carol Lewis (Lewis) appeals from the final judgment entered by
the Tenth Judicial District Court, Fergus County, on its order
granting the motion for summary judgment of Gregory Wonnacott and
Alcohol and Drug Services of Central Montana and denying her cross-
motion.     We affirm.
        We restate the dispositive issues on appeal as follows:
        1.   Did the District Court err in granting summary
        judgment to Gregory Wonnacott on the basis of qualified
        immunity from monetary damages?
        2. Did the District Court err in addressing the issue of
        whether Lewis' claims against Alcohol and Drug Services
        of Central Montana also were barred?
        3.   Did the District Court err in granting summary
        judgment on Lewis' claims for injunctive and declaratory
        relief?

        Carol Lewis was arrested for driving under the influence of
alcohol in August of 1986; she pled guilty to the offense in the
City Court of Lewistown, Montana.             City Judge Robert Brassey fined
Lewis $300 and sentenced her to 60 days in jail, with 59 days
suspended on condition that Lewis follow the recommendations of an
Alcohol and Drug Services of Central Montana (Alcohol Services)
counselor with regard to alcohol treatment.
        Lewis'    counselor at Alcohol Services was Gregory Wonnacott
(Wonnacott).         He originally recommended inpatient treatment for
Lewis     but, at her urging, allowed her to try outpatient treatment.
When the outpatient treatment proved unsuccessful, Lewis agreed to
attend an inpatient       treatment   program at Hilltop Recovery (Hilltop)
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in Havre,    Montana.     She left the 28-day program after 7 days.
     AS a result of Lewis'                failure to complete the program,
Wonnacott wrote a letter to City Judge Brassey on October 24, 1986.
He indicated that Lewis had not            met   the condition of her suspended
sentence     requiring her to complete the                   course of    treatment
recommended by Alcohol Services.               He advised that, on that basis,
he was      "referring     this     case back to your court with the
recommendation that Ms. Lewis suffer the natural consequences of
her actions and be made to serve part or all of the remaining 59
days of suspended jail           time."    The City Court issued an order to
show cause why Lewis' suspended sentence should not be revoked and
scheduled a hearing.
     Shortly       thereafter,     Lewis filed the present action against
Wonnacott and Alcohol Services seeking declaratory, injunctive and
monetary relief.        The apparent thrust of her multi-coun,t           complaint
was that she was being required to involuntarily undergo alcohol
treatment,        under the potential penalty of serving jail time,
without     the    procedural    protections      of   the   statutory   involuntary
alcohol commitment procedures.             Lewis also argued that Wonnacott's
recommendation        regarding     revocation of her suspended sentence
violated her statutory and constitutional rights.                   She prayed for
a declaration that § 61-E-714(4), MCA, is unconstitutional on its
face and as applied under a variety of theories, including due
process, equal protection and cruel and unusual punishment; for an
injunction preventing Alcohol Services from recommending jail                   time

for her failure to voluntarily attend inpatient alcohol treatment;

                                           3
for damages under 42 U.S.C. § 1983; for punitive damages; and for
costs and attorney fees pursuant to 42 U.S.C. § 1988.               Proceedings
in the underlying City Court action were stayed on stipulation of
the parties, pending resolution of this case.                  As a result, the
City Court has taken no action regarding the revocation of Lewis'
suspended sentence.
      The parties filed cross-motions for summary judgment.                  The
thrust of the Wonnacott and Alcohol Services motion was that they
were immune as to Lewis' state law and federal civil rights claims.
The thrust of Lewis' motion was that her procedural due process
rights were violated by the defendants'                actions and that any
immunity to which they might be entitled would extend to monetary
damages only.      Lewis abandoned many of the claims asserted in her
second amended complaint.
      The District Court subsequently entered findings of fact,
conclusions of law and an order granting the defendants' motion for
summary judgment, denying Lewis' cross-motion for summary judgment,
and   dismissing     Lewis'    claims       for    monetary,    injunctive   and
declaratory relief with prejudice.                Judgment was entered on the
order.   Lewis appeals.
                              Standard of Review
      Our review of an order granting or denying a motion for
summary judgment is de nova and we utilize the same criteria as the
district court.     Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont.
441, 444,   872 P.2d 330, 331-32.           Summary judgment is proper only
when no genuine issue of material fact exists and the moving party

                                        4
is     entitled to    judgment as a matter of law.             Rule   56(c),
M.R.Civ.P.;    Spain-Morrow,     872 P.2d at 331-32.
        Here, the District Court granted summary judgment to Wonnacott
on the basis of qualified immunity.         The availability of immunity
is a question of law.         Mitchell v. Forsythe (1985), 472 U.S. 511,
528,    105 S.Ct. 2806, 2816, 86 L.Ed.2d 411, 426.         Thus,   we review
the court's conclusion that Wonnacott is entitled to qualified
immunity to determine whether it is correct.           Steer, Inc. v. Dep't
of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.
        1.   Did the District Court err in granting summary
        judgment to Wonnacott on the basis of qualified immunity
        from monetary damages?
        As noted above, Lewis abandoned many of her claims prior to
the District Court's determination of the parties' motions for
summary judgment.          Her remaining claims are based on 42 U.S.C. §
1983, which provides, in pertinent part:
        Every person who, under color of any statute, ordinance,
        regulation, custom, or usage, of any State or Territory
        or the District of Columbia, subjects, or causes to be
        subjected, any citizen of the United States or other
        person within the jurisdiction thereof to the deprivation
        of any rights, privileges, or immunities secured by the
        Constitution and laws, shall be liable to the party
        injured in an action at law, suit in equity, or other
        proper proceeding for redress.
Lewis     argues   that,    by failing to utilize Montana's statutory
involuntary alcohol commitment procedures prior to notifying the
court of her failure to complete the Hilltop program, Wonnacott
infringed on her liberty interest and violated her Fourteenth
Amendment due process rights.         The District Court determined that
Wonnacott was entitled to qualified immunity from Lewis' 5 1983

                                       5
claims for monetary damages.
     We recently have             addressed the issue of an official's
entitlement to qualified immunity from an action alleging a
violation of a plaintiff's civil rights under 42 U.S.C. § 1983. In
Sacco v. High Country Independent Press (Mont. 1995), 896 P.2d 411,
415, 52 St.Rep.     407, 415, we applied the two-part test promulgated
by the United States Supreme Court in Harlow v. Fitzgerald (1982),
457 U.S. 800,       102 S.Ct 2727,     73 L.Ed.2d 396.      Under that test,
government     officials      performing    discretionary     functions       are
shielded from liability for civil damages only where their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have knowledge.               Sacco,
896 P.2d at 415.         We also determined that the "reasonable person"
part of       the   test     must be    analyzed   under     the    "objective
reasonableness" standard set forth in Malley v. Briggs (1986), 475
U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271.          Sacco,   896 P.2d at 415.
We will apply the Harlow test to the case presently before us.
     First,    we determine whether Wonnacott's actions violated one
of Lewis' clearly established rights.          If not, our inquiry is over
because the first part of the Harlow test is not satisfied.               If so,
we determine whether a reasonable person in Wonnacott's position
would have known that his conduct violated that right.
     It is clear that Wonnacott's notification to the court of
Lewis' failure to complete the Hilltop program violates no statute.
Section     53-24-302,     MCA,   upon which much of Lewis'        argument    is
premised,     sets forth the procedures by which the State of Montana

                                        6
may seek to involuntarily commit an alcoholic.        Application of the
statute is confined, by its terms,       to the involuntary commitment
process.     Thus, the statute is inapplicable to the situation before
us which involves the potential revocation of a suspended sentence
on the basis that the convicted defendant failed to meet one of the
conditions     of her suspended     sentence.     Moreover,    Wonnacott's
notification complied with the specific mandate of 5 61-E-714(4),
MCA, that he notify the court of Lewis' failure to complete the
recommended,    and agreed upon, program.
       Wonnacott's notification still could satisfy the first part of
the Harlow     test,    however, if it violated Lewis'          Fourteenth
Amendment due process rights.       In this regard, Lewis asserts, and
we agree,     that we must first determine whether due process is
necessary and, if so, the nature of the process that is due.           Nor
do we disagree with Lewis' contention that risk of jail time and/or
involuntary inpatient alcohol or rehabilitation treatment triggers
a liberty interest to which due process applies.              See Wolff v.
McDonnell (1974),      418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935; Dow
v. Circuit Court of the First Circuit (9th Cir. 1993), 995 F.2d
922.    There is no question but that process is due Lewis.            The
questions are what process is due and when must it be provided.
       Lewis argues that, under Dow,     she is entitled to due process
prior to being involuntarily committed.         Again, we do not disagree
with the correctness of the stated legal principle; we do disagree
with its applicability here.       If the State of Montana were seeking
to involuntarily commit Lewis as an alcoholic,                she would be

                                     7
entitled to the process and procedural safeguards contained in 5
53-24-302, MCA.       However,    neither the State of Montana nor any
individual is seeking Lewis'        involuntary          commitment    pursuant     to
that statute.      This case involves a suspended sentence under a DUI
conviction and a potential revocation of that suspended sentence.
Thus, we reject Lewis' argument that due process required Wonnacott
to utilize the § 53-24-302, MCA, procedures prior to notifying the
court of her failure to complete the Hilltop program.                  We conclude
that 5 53-24-302, MCA, is inapplicable here.
       The process due Lewis is contained in the statute governing
the revocation of a suspended sentence.                  That statute requires,
among other things, that a defendant be given the opportunity to
appear, present evidence and question adverse witnesses.                      Section
46-18-203(4), MCA. As a general rule, a hearing is necessary prior
to     any    revocation,   and   the       prosecution      must     prove    by    a
preponderance of the evidence that a term or condition of the
suspended sentence has been violated.               Section 46-18-203(5) and
(6),   MCA.    The court may revoke the suspended sentence only if it
finds, based on a preponderance of the evidence, that the defendant
has violated a term or condition of that suspended sentence.
Section 4618-203(7), MCA.            Here,      Lewis'     commencement       of the
present case has delayed--for nearly a decade--further proceedings
on the possible revocation of her suspended sentence.                    Thus, the
process due her has neither become applicable nor been infringed.
        Lewis relies on Zinermon v. Burch (1990), 494 U.S. 113, 110
s.ct. 975, 108 L.Ed.2d 100, in support of her contention that her

                                        8
due process rights are being violated by Wonnacott's actions and
the procedures being utilized in this case.               Zinermon does not
support her contention.
        In   Zinermon, an actual deprivation of liberty had occurred, in
the context of an involuntary commitment of a mentally ill person,
without the predeprivation due process which the Supreme Court held
could, and should, have been provided.          Zinermon, 110 S.Ct. at 990.
Here,    no deprivation or infringement of a liberty interest of
Lewis' has occurred. Moreover, as noted above, no effort is being
undertaken to involuntarily commit Lewis to alcohol treatment; this
case    involves only an alleged           violation of a condition of a
suspended sentence with which Lewis agreed to comply.                        The
statutory     procedural   requirements     applicable   to   the    involuntary
commitment   of alcoholics are not applicable, either directly or
indirectly,      and the procedural        safeguards to which Lewis is
entitled during the revocation proceedings have not yet come into

play.
        Lewis also asserts that Wonnacott's recommendation to the
court that her suspended sentence be revoked violates her rights in
some    fashion.      We   disagree.       While no statute         specifically
authorizes Wonnacott to make a sentencing recommendation, no
statute specifically prohibits such a recommendation.                  Thus, the
recommendation does not violate Lewis' statutory rights.               Nor do we
see how Wonnacott's mere recommendation that the court require
Lewis to serve all or part of the suspended 59 days' jail time can
constitute a violation of Lewis' right to due process.                  Only the

                                       9
court itself can act on Lewis' alleged violation of a condition of
her suspended sentence, because the court is the only entity which
is   authorized to       sentence a   criminal defendant or revoke a
suspended    sentence.    See §§ 46-18-201 and 46-18-203, MCA.   Thus,
while the better practice may be to refrain from doing so, making
a recommendation does not rise to a constitutional violation.
      We conclude that neither Wonnacott's notification nor his
recommendation violated any of Lewis' clearly established statutory
or constitutional rights and, thus,        that the first part of the
Harlow test has not been satisfied; as a result, we need not
analyze the second part.       We hold that the District Court did not
err in concluding that Wonnacott was entitled to qualified immunity
against Lewis'    5 1983 claim for monetary damages and in granting
summary judgment to Wonnacott on that basis.

      2. Did the District Court err in addressing the issue of
      whether Lewis' claims against Alcohol Services also were
      barred?
      In granting Wonnacott and Alcohol Services' motion for summary
judgment,    the District Court determined that, because the claims
against Alcohol Services were wholly derivative of those against
Wonnacott,    Alcohol Services also was entitled to immunity from
Lewis' § 1983 claims.       The court relied on City of Great Falls v.
Price (19891, 238 Mont. 99, 775 P.2d 1260.       While Lewis does not
challenge the court's legal analysis, she asserts error in this
regard on the basis that the "issue was not raised in summary
judgment."     We disagree.
      Lewis filed her original complaint in this action on December
                                      10
4 , 1986.       In it, she asserted claims against Alcohol Services and
against Wonnacott in both his individual capacity and his capacity
as director of Alcohol Services.                   Most of the allegations in the
complaint referenced "defendants" without specifying either or both
of them.        Her references to Alcohol Services' "actions" make it
clear that she was attributing Wonnacott's actions to Alcohol
Services because of               his employment position there;                 the only
"actions" of Alcohol Services which are at issue here are those
taken     by    Wonnacott.        The allegations in Lewis'              first       amended
complaint,        filed March 11, 1987, do not differ in these regards.
The same is substantially true concerning the allegations in Lewis'
second amended complaint, filed March 31, 1987.
        On October 22, 1990, Wonnacott and Alcohol Services filed a
joint motion for summary judgment.                     The primary thrust of the
motion      and     supporting brief was that Wonnacott and Alcohol
Services,         "his   employer at the time,"              were   immune    from    suit.
Indeed,        the defendants argued affirmatively that "[ulnder the
discussion set forth above,             and the clear mandate of the United
States      Supreme      Court,    Gregory Wonnacott and Alcohol and Drug
Services of Central Montana, whose liability is simply derivative,
are entitled to qualified immunity . . . .'I
        On the basis of the pleadings of record, we conclude that the
issue     was      raised during        the        summary    judgment       proceedings.
Therefore,         we hold that the District Court did not err in
addressing the issue.



                                              11
     3.   Did the District Court err in granting summary
     judgment on Lewis' claims for injunctive and declaratory
     relief?
     Lewis makes a passing argument that, even if the defendants
were entitled to qualified immunity, that immunity would extend to
monetary damages only.    On this basis, she seems to assert that the
District Court erred in granting summary judgment on immunity
grounds with regard to her claims for injunctive and declaratory
relief.
     The fundamental problem with Lewis' argument is that the
District Court did not grant summary judgment regarding her claims
for injunctive and declaratory relief on the basis of qualified
immunity.    Rather, the court determined that no genuine issue of
material fact existed concerning the viability of those claims
because Lewis did not sustain her burden of establishing the
unconstitutionality of § 61-8-714(4), MCA.
     A party asserting error by a district court must present
argument, buttressed by citation to legal authorities.      Rule 23,
M.R.App.P.    Here,   Lewis asserts error concerning a determination
never made by the District Court. We cannot conclude, on the basis
of any arguments or authorities presented by Lewis,         that the
District Court erred in granting summary judgment on Lewis' claims
for injunctive and declaratory relief.
     Affirmed.
     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

                                   12
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.




We concur:




             J$tlces




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