                                                                                      July 10 2012


                                        DA 11-0344

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       2012 MT 149



ARTHUR F. ROONEY,

              Plaintiff, Appellant, and Cross-Appellee,

         v.

CITY OF CUT BANK,

              Defendant, Appellee, and Cross-Appellant.



APPEAL FROM:          District Court of the Ninth Judicial District,
                      In and For the County of Glacier, Cause No. DV 08-56
                      Honorable Laurie McKinnon, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Linda Deola; Morrison, Motl & Sherwood, PLLP; Helena, Montana

               For Appellee:

                      Kevin C. Meek, Jordan Y. Crosby; Ugrin, Alexander, Zadick &
                      Higgins, P.C.; Great Falls, Montana



                                                 Submitted on Briefs: April 5, 2012

                                                            Decided: July 10, 2012


Filed:

                      __________________________________________
                                       Clerk
Justice Beth Baker delivered the Opinion of the Court.



¶1     The Ninth Judicial District Court, Glacier County, entered judgment for the City

of Cut Bank on Arthur F. Rooney’s complaint that he was wrongfully terminated from

employment as a City police officer.      Rooney appeals the court’s decision that his

termination did not violate Montana’s Wrongful Discharge From Employment Act

(WDEA). The City cross-appeals the District Court’s earlier interlocutory order denying

the City’s motion to dismiss the WDEA claim. Because we reverse the interlocutory

ruling, we do not reach the issues raised by Rooney, but affirm the District Court’s

judgment in favor of the City on this alternative ground.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2     Rooney worked for eight years with the City’s police department, where he

attained the rank of captain and senior officer.         In the early morning hours of

December 1, 2007, two junior officers observed Rooney apparently sleeping in his patrol

car while on duty. They notified the City’s Chief of Police of what they had observed.

After investigating, the Chief recommended to the City’s Mayor that Rooney’s

employment be terminated. The Mayor terminated Rooney’s employment.

¶3     Rooney then appealed to the City’s Police Commission pursuant to § 7-32-4155,

MCA. The Police Commission held an evidentiary hearing at which Rooney represented

himself. The Commission took judicial notice that sleeping on duty is considered neglect

of duty under the Cut Bank Police Department Rules of Conduct and that violations of

Cut Bank Police Department policies and procedures, with which officers are required to
                                             2
be familiar, may result in disciplinary action up to and including termination of

employment.

¶4     The two junior officers who reported observing Rooney sleeping testified that they

saw him sitting in his patrol car parked on a city street, with his head laid back against the

headrest, his eyes shut, and his mouth partly open. They circled around the block and

proceeded back to Rooney’s location, sounding their patrol car’s air horn as they

approached. They then pulled up adjacent to Rooney’s car, where he appeared still to be

sleeping. They did not stop. Several minutes later, they heard Rooney checking in with

dispatch on his police radio and saying he was going home.

¶5     Cut Bank Chief of Police Jason Abbott testified that he conducted an internal

investigation of the two junior officers’ report.       During that investigation, Rooney

admitted to Abbott that he may have dozed off a little, as a result of taking sinus

medication that night and also running the patrol car’s heater. Abbott testified that

Rooney had not previously reported being sick or any problems with the police car or its

heater. Another deputy told Abbott he had observed Rooney dozing on duty the evening

after the two junior officers observed him. Prior to these incidents, Rooney had seven

unrelated disciplinary actions for deficiencies such as not responding to calls and

spending time at home while on assigned duty shifts.

¶6     Both Chief Abbott and the Mayor of the City of Cut Bank testified that

termination was an appropriate disciplinary action for Rooney’s sleeping on the job,

taking into consideration Rooney’s personnel history and his supervisory role in a police

department in which the majority of the officers were rookies. Abbott testified that, in
                                              3
light of those factors, he did not view demotion or suspension as viable disciplinary

alternatives.   Rooney’s entire personnel file, which also included twelve letters of

commendation, was introduced into evidence.

¶7     Two Bell Motor Company employees testified on Rooney’s behalf. They told the

Police Commission that, on January 11, 2008, they serviced the patrol car Rooney had

used before he was terminated and discovered an exhaust leak in it. Their last prior

servicing of the vehicle had been in November of 2007. Both Bell Motor Company

employees testified they could not say whether the leak would have resulted in exhaust

fumes in the car.

¶8     Rooney also presented testimony by Cut Bank Police Officer Tim Seifert, who had

used Rooney’s patrol car after Rooney was terminated. Seifert testified there were

several mornings when he had trouble staying awake while using the car, during which

he could smell a slight odor of exhaust.

¶9     The Police Commission concluded substantial evidence supported the Mayor’s

decision to terminate Rooney’s employment. In its written findings, conclusions, and

order, the Police Commission stated it would have preferred a more incremental approach

to discipline of Rooney, such as a suspension from duty, education or counseling, or an

improvement plan. However, the Police Commission concluded there was substantial

evidence that Rooney committed acts that constituted neglect of duty as a Cut Bank

police officer and that substantial evidence had been provided to support the

appropriateness of the disciplinary action taken against Rooney.



                                            4
¶10    Rooney then filed the present, two-count action in the District Court. He asserted

a claim of wrongful discharge under the WDEA and, in the alternative, sought judicial

review of the Police Commission’s decision by the District Court as allowed under § 7-

32-4164(2), MCA. The judicial review claim proceeded first, following the filing of

Rooney’s opening brief in support of his appeal. The City filed a brief in which it argued

(1) substantial evidence supported the Police Commission’s findings and conclusions,

which should therefore be affirmed, and (2) Rooney’s discharge was statutorily exempt

from the WDEA under § 39-2-912, MCA, because of the availability of the statutory

police commission remedy. Rooney filed a response. The District Court affirmed the

Police Commission’s decision based on the briefing. The court held, however, that

Rooney’s WDEA claim was distinct from the appeal of the Police Commission decision,

and it denied the City’s motion to dismiss the WDEA count of the complaint.

¶11    The City then filed a motion for relief from the District Court’s order, in which it

argued the WDEA claim should be dismissed under the doctrine of issue preclusion. The

District Court denied that motion, and the WDEA claim eventually proceeded to bench

trial. After trial, the District Court entered findings, conclusions, and judgment that

Rooney’s discharge was not wrongful under the WDEA.

¶12    Rooney appeals, and the City cross-appeals. As noted, because the issue raised by

the City on cross-appeal is dispositive, that is the only issue we address.

                               STANDARD OF REVIEW

¶13    We review de novo a district court’s decision on a motion to dismiss. Grizzly Sec.

Armored Express, Inc. v. Armored Group, LLC, 2011 MT 128, ¶ 12, 360 Mont. 517, 255
                                              5
P.3d 143. A motion to dismiss must be construed in the light most favorable to the

plaintiff. Grizzly Sec., ¶ 12.

                                     DISCUSSION

¶14      Did the District Court err in denying the City’s motion to dismiss the WDEA

claim?

¶15      The City first argues that Rooney’s discharge is exempt from the WDEA under the

WDEA’s own terms, because another statutory remedy was prescribed—under the police

commission statutes—for Rooney’s wrongful termination.          See § 39-2-912, MCA.

Rooney claims that, unlike the WDEA statutes, the police commission statutes provide no

potential remedy of an award for lost wages. He argues that the police commission

process is not an exclusive remedy for an officer claiming wrongful discharge.

¶16      This Court has recognized that once a police officer completes his probationary

period of employment, the officer benefits from the protections of the WDEA and may

bring a wrongful discharge suit. Ritchie v. Town of Ennis, 2004 MT 43, ¶ 25, 320 Mont.

94, 86 P.3d 11. While § 7-32-4164, MCA, extends to police officers the “right to appeal”

their discharge by the mayor, nothing in the police commission statutes makes appeal to

the police commission the sole remedy for a police officer’s alleged wrongful discharge.

We have not viewed the police commission statutes as exclusive of the WDEA, but have

recognized that both apply to the employment of police officers. Hobbs v. City of

Thompson Falls, 2000 MT 336, ¶¶ 17-18, 303 Mont. 140, 15 P.3d 418; Ritchie, ¶ 25.

This does not, however, conclude the analysis. The City further argues that, even if the

WDEA afforded relief to Rooney, his WDEA claim is barred by res judicata and
                                            6
collateral estoppel following the District Court’s upholding of the Police Commission’s

order on judicial review. We agree.

¶17    Issue preclusion and claim preclusion—also known as collateral estoppel and res

judicata, respectively—bar a party from re-litigating an issue that already has been

litigated and decided in a prior suit. We apply a four-element test to determine whether

re-litigation of an issue is barred:

       1. Was the issue decided in the prior adjudication identical to the issue
       raised in the action in question?

       2. Was there a final judgment on the merits in the prior adjudication?

       3. Was the party against whom preclusion is asserted a party or in privity
       with a party to the prior adjudication?

       4. Was the party against whom preclusion is asserted afforded a full and
       fair opportunity to litigate the issue that may be barred?

McDaniel v. State, 2009 MT 159, ¶ 28, 350 Mont. 422, 208 P.3d 817. Preclusion extends

to all questions essential to a judgment and actively determined by a prior valid

judgment. It bars re-litigation of determinative facts that were actually or necessarily

decided in a prior action, even if they were previously decided under a different legal

theory. Rafanelli v. Dale, 1998 MT 331, ¶¶ 12, 14, 292 Mont. 277, 971 P.2d 371. When

the exhaustion of administrative remedies produces an administrative decision that is

upheld on judicial review, principles of issue and claim preclusion properly may be

applied to redundant claims made under other laws. Parini v. Missoula County High Sch.

Dist., 284 Mont. 14, 23, 944 P.2d 199, 204 (1997).




                                            7
¶18    Rooney does not deny that the third element of preclusion is established, because

the parties are identical. He raises several arguments, however, relating to the first,

second, and fourth elements: whether the issues were identical, whether a final judgment

was entered on the merits in the Police Commission matter, and whether he has been

afforded a full and fair opportunity to litigate the issues.

¶19    Under the police commission statutes, a Montana police officer is entitled to

challenge employment issues, including termination.            See § 7-32-4155(1), MCA.

Proceedings before a police commission are subject to the rules of evidence for courts of

record. Section 7-32-4155(2), MCA. The police officer has the right to be present at the

hearing in person and by counsel, and to present evidence. Section 7-32-4157, MCA.

The police commission exists, in part, to “provid[e] a means for an appointed officer to

actually retain his or her position of employment or avoid unreasonable supervisory

decisions.” Ritchie, ¶ 23. A police commission has the power to “sustain, modify, or

overrule the disciplinary order.” Section 7-32-4160, MCA. The police officer has a right

to appeal the police commission’s decision to the district court, which “has jurisdiction to

review all questions of fact and all questions of law.” Section 7-32-4164(2), MCA. On

judicial review, “[t]he function of the district court is to review the law to determine

whether the rulings of the commission are correct and to review the facts to determine

that they are supported by substantial evidence.” Wolny v. City of Bozeman, 2001 MT

166, ¶ 14, 306 Mont. 137, 30 P.3d 1085.

¶20    Rooney’s complaint in the District Court asserted that he was terminated in

retaliation for reporting the Mayor’s failure to handle criminal justice information
                                               8
correctly. At the bench trial on his WDEA claim, he also introduced evidence that the

City had been inconsistent and applied a double standard in applying discipline as

between him and former Cut Bank Chief of Police Murray. Rooney contends, and the

District Court agreed, that these claims were not part of the Police Commission

proceedings.

¶21    If a new legal theory or factual assertion in an action is related to the subject

matter of a prior action and is relevant to the issues that were litigated and adjudicated in

the prior action, “so that it could have been raised,” then the judgment in the first action

is conclusive as to that legal theory or factual assertion, despite the fact that the theory or

assertion was not expressly pleaded or otherwise urged. McDaniel, ¶ 33 (emphasis in

original). Rooney did not raise his retaliation and double standard claims before the

Police Commission and has shown no legal reason why he could not have done so, given

the Commission’s broad authority to review an officer’s discipline. We conclude that

Rooney’s failure to present those theories to the Police Commission did not prevent the

District Court from giving preclusive effect to the Police Commission’s decision

regarding the propriety of his termination.

¶22    Rooney points out that the issue decided by the Police Commission was whether

substantial evidence supported termination of his employment, as distinguished from

whether there was good cause to terminate him. However, we have held that the good

cause provisions of the WDEA are applicable to any termination of a non-probationary

police officer. See Hobbs, ¶¶ 17-18. The District Court expressly determined that

substantial evidence was presented supporting Rooney’s termination for neglect of duty.
                                              9
By upholding the Police Commission’s decision, the District Court decided the

determinative facts underlying the issue of good cause for Rooney’s termination. See

Rafanelli, ¶ 12.

¶23    Finally, Rooney argues that the Police Commission did not enter a judgment on

his claim. While the Police Commission did not enter a judgment, the District Court did,

when it affirmed the Police Commission’s decision. Rooney chose not to appeal the

District Court’s ruling affirming the Police Commission’s decision. In a comparable

situation in Parini, we affirmed a district court’s dismissal of a student’s claim that he

had been misdiagnosed and placed as a special education student.            We ruled that

re-litigation was barred by principles of res judicata, because the claim already had been

rejected in administrative proceedings before the Office of Public Instruction, which had

then been judicially affirmed. Parini, 284 Mont. at 23, 944 P.2d at 204-05. Thus, where,

as here, the officer seeks judicial review of the police commission’s decision and the

court upholds the discharge, principles of issue and claim preclusion bar further litigation

of the same or redundant claims.

                                     CONCLUSION

¶24    Rooney took advantage of the statutory police commission process, including the

hearing before the Police Commission at which he cross-examined the City’s witnesses

and presented evidence on his own behalf. The issue in the Police Commission decision

was identical to the key issue in Rooney’s WDEA claim: namely, whether the City

wrongfully terminated Rooney’s employment with the Cut Bank Police Department.

Rooney did not appeal the District Court’s ruling on judicial review of the Police
                                            10
Commission’s decision.       We conclude that Rooney was afforded full and fair

adjudication of his claims in the proceedings before the Police Commission. When the

City moved for relief from the District Court’s order ruling that the WDEA claim was

distinct from the appeal of the Police Commission decision, it was correct that issue

preclusion applied.

¶25    Rooney’s WDEA claim should have been dismissed because the issues already

had been determined in the proceedings before the Police Commission, which decision

the District Court affirmed. We may uphold a judgment on any basis supported by the

record, even if the district court applied a different rationale. See e.g. Parini, 284 Mont.

at 21-22, 944 P.2d at 203.

¶26    The District Court’s judgment in favor of the City is affirmed.



                                                 /S/ BETH BAKER


We concur:


/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




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