                                                 NO.     89-21

                    I N THE SUPREME COURT O F THE STATE O F MONTANA

                                                     1989




RONALD L .     BURGESS,

                      P l a i n t i f f and A p p e l l a n t ,
          -vs-
STATE O F MONTANA,

                      D e f e n d a n t and R e s p o n d e n t .




A P P E A L FROM:     ~ i s t r i c C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
                                     t
                      I n and f o r t h e C o u n t y of L e w i s & C l a r k ,
                      T h e H o n o r a b l e T h o m a s H o n z e l , Judge p r e s i d i n g .

COUNSEL O F RECORD:

          For Appellant:

                      R o n a l d L.   B u r g e s s , pro s e , B o z e m a n , M o n t a n a

          For R e s p o n d e n t :

                      Fred W. R o b i n s o n , D e p t .         of ~ i s h , i l d l i f e and P a r k s ,
                                                                             w
                      Helena, Montana




                                                     S u b m i t t e d on B r i e f s :   A p r i l 6 , 1989

                                                         Decided:            M a y 11, 1 9 8 9
Mr. Justice ?.   C, McDonough delivered the Opinion of the
Court.

     This appeal concerns the forfeiture of a bond posted by
appellant Burgess for the alleged violation of game laws.
Burgess First litigated the forfeiture in the Justi.ce Court
and then the District Court of the Fourteent-h Judicial
District, County of Meagher.    Burgess never appealed this
decision.   The further presentation of the issue was in a
subsequent action before the District Court of the First
Judicial District, Lewis & Clark County. The First Judicial
District Court held that res judicata barred the claim made
by Burgess.   This is the decision on appeal.      We affirm.
     The citation against Burgess charged him with possessing
more than the legal limit of elk.        Burgess posted and
forfeited a $700 bond by failing to appear as required by the
citation. Close to a year later, Burgess moved the Justice
Court to declare the forfeiture unconstitutional because
forfeited bonds from citations for game violations partially
fund the game warden's retirement account. See S 19-8-504,
MCA .   The Justice Court denied the motion, and Burgess
appealed to the District Court. The District Court affirmed
the decision of the Justice Court.      Burgess never appealed
this decision.
      The current action was brought by Rurgess, acting pro
se, to once again test the constitutionality of S 19-8-504,
MCA. The State moved to dismiss based on res judicata. The
District Court of the First Judicial District denied the
motion.     However, shortly thereafter the District Court
granted the St-ate' rnoti.on for summary judgment based on res
                   s
-jud.icata.
    Burgess presents one issue:  Should the action brought
to determine the constitutionality of S 19-8-504, MCA, be
dismissed due to the doctrine of res judicata?
       Burgess argues initially that the First ~udicial
District Court erred in granting the motion for summary
judgment because its denial of the State's motion to dismiss
on the issue of res judicata bound the lower court as the law
of the case. This argument fails because the order denying
the motion to dismiss was interl..ocutory, and interlocutory
orders can be changed without violating the law of the case
doctrine. See 56 Am. Jur. 2d Motions, Rules, and Orders 5 42
( 2 d ed. 1971).
       The second argument by Rurgess goes to the requirements
for finding that. a claim is barred by the doctrine of res
judicata. Burgess contends that the issues in this action
are     difFerent  from the    issues previously    litigated.
According to Rurgess, in the first action he claimed only
that the statute at issue violated the federal constitution.
Here, a different issue appears, Rurgess contends, because he
is claiming that the statute violates the state constitution.
Burgess also claims that because he is plaintiff here and the
State is defendant, and previously he was defendant, and the
State was plaintiff, the parties are not the same.
     The first contention by Burgess on res judicata fails
because :

     [Olnce a party has had full opportunity to present
     a claim or issue For judicial decision in a given
     proceeding, the judgment of that court will he
     deemed final as to all claims or issues which have
     been raised or which fairly could have been raised.
State v. Perry (Mont. 19881, 758 P . 2 d 268, 273, 45 St.Rep.
1192, 1198.   Rurgess had a full and fair opportunity to
litjsate the constjtutional issue in the prior action.
         The second c o n t e n t i o n a l s o f a i . 1 ~ . I n a p p l y i n g t h e r u l e
of r e s judicata,               " p a r t i e s " means:


         a l l p e r s o n s who have a d i r e c t i n t e r e s t i n t h e
         s u b j e c t m a t t e r o f t h e a c t i o n a n d have a r i g h t t o
         control            the   proceedings,          defend,        examine the
         w i t n e s s e s , and a p p e a l i f an a p p e a l l i e s .

46 Am.       Jur.              ---
                       2d Judgments S 5 2 9                 (2d e d .   1969).      B u r g e s s and
t h e S t a t e w e r e p a r t i e s t o t h e p r e v i o u s a c t i o n and t h e y bear
t h e same r e l a t i o n s h i p t o t h e i s s u e B u r g e s s s e e k s t o l i t i g a t e ,
i .e.   ,   the constitutionality of                        the statute.         The n e c e s s a r y
e l e m e n t s f o r f i n d i n g res j u d i c a t a e x i s t i n t h i s c a s e .     Brault
v.   Smith ( 1 9 8 4 ) , 2 0 9 Mont.             21,    679 P.2d 2 3 6 .         W e affirm the
lower court.




W Concur:
 e                         A/

        -
        ~ h i k fJ u s t i c e
