                               /3&4
                           No. ft36%F

          IN TKE SUPREME COURT OF THE STATE OF MONTANA
                              1977



SCHOOL DISTRICT NO. 7, BOZEMAN, MONTANA;
OPHIR SCHOOL DISTRICT NO. 72, GALLATIN
COUNTY, MONTANA ; WILLOW CREEK SCHOOL
DISTRICT No. 15, GALLATIN COUNTY, MONTANA;
THREE FORKS SCHOOL DISTRICT No. 24, GALLATIN
COUNTY, MONTANA,
                         Plaintiffs and Respondents,
          VS.

HUMAN RIGHTS COMMISSION, STATE OF MONTANA,
AND RAYMOND D. BROWN, Administrator
thereof,
                        Defendants and Appellants.


Appeal from: District Court of the Eighteenth Judicial District,
             Honorable Nat Allen, Judge presiding.

Counsel of Record:

     For Appellant:
                                     .
                        Rosemary B Zion, Helena, Montana
     For Respondent:
                       Donald E. White
                       County Attorney's Office, Bozeman, Montana
                       Brian Sullivan, argued, Bozeman, Montana


                                            Submitted: June 7, 1977
                                             Decided : 2a
                                                           -    I
                                                               d.
         dL14   1'""
Filed:

                              Clerk.
 Mr. Justice Frank I. Haswell delivered the Opinion of the Court.


     Defendants appeal from an order of the district court,

Gallatin County, denying their motion for change of venue to

Lewis and Clark County.

     Plaintiffs are four school districts in Gallatin County.

They brought an action against the defendants, Human Rights

Commission, State of Montana, and Raymond D. Brown, its adminis-
trator, seeking a writ of prohibition, or in the alternative to
quash defendants' interrogatories. The action sought to halt
proceedings of the defendants in investigating complaints filed
with the Commission concerning alleged discriminatory practices

of the school districts in violation of what we will call the

anti-discrimination act, section 64-301, et.seq., R.C.M.     1947.

The petition alleges defendants' submission of interrogatories

and attempted interrogation of administrators of plaintiff school

districts violates plaintiffs' constit~tionalrights against self-

incrimination under the federal and state constitutions. Fifth

Amendment, United States Constitution; Art.11, Section 25, 1972
Montana Constitution.
    The district court entered an order prohibiting defendants

from compelling plaintiffs to answer the interrogatories sent

to them and quashing the interrogatories during the pendency of
the action, and set a hearing on making the order permanent.
     Thereafter, among other things, defendants filed a motion
for change of venue to Lewis and Clark County.   Following sub-
mission of briefs, the district court denied defendants' motion

for change of venue.    Defendants appeal from that order.
       The i s s u e on appeal i s whether venue i s properly i n G a l l a t i n

County o r Lewis and Clark County.

       Defendants contend t h a t venue properly l i e s i n Lewis and

Clark County under s e c t i o n 93-2902(2), R.C.M.                       1947, because t h a t

i s where " t h e cause, o r some p a r t t h e r e o f , arose".                  They claim

t h e s i t u s of o f f i c i a l a c t s of a public agency o r o f f i c i a l i s i n

t h e county of o f f i c i a l residence which                 i s t h e decision-making

hub from which a l l o f f i c i a l a c t s emanate, h e r e Lewis and Clark

County.       Defendants view p l a i n t i f f s ' p e t i t i o n a s an a c t i o n t o

l i m i t o r e x t i n g u i s h t h e i r s t a t u t o r y i n v e s t i g a t i v e powers; thus

they contend t h a t t h e underlying question i s whether they may

e x e r c i s e t h e i r i n v e s t i g a t i v e powers a t a l l and not whether t h e

e f f e c t s of t h e i r a c t i v i t i e s a r e f e l t i n G a l l a t i n County.

       They c i t e Lunt v. Division of Workmen's Compensation (1975),

167 Mont. 251, 537 P.2d 1080, i n support of t h e i r venue claim,

and contend t h a t Guthrie v. Department of Health and Environ-

mental Sciences, e t a l . (1977),                         Mont   .          , 561     P.2d 913,

34 St.Rep.       155, does not r e q u i r e a c o n t r a r y r e s u l t .         Additionally,

they claim t h a t public policy a g a i n s t d i s s i p a t i n g t h e time and

resources of s t a t e agencies i n defending t h e i r a c t i o n s a t f a r -

flung l o c a t i o n s throughout t h e s t a t e of Montana supports t h e i r

p o s i t i o n on venue.      They deny t h a t p l a i n t i f f s ' r i g h t a g a i n s t s e l f -

incrimination i s involved i n determining venue; they say such

c o n s t i t u t i o n a l r i g h t can only be a s s e r t e d by a n a t u r a l person

and n o t a governmental e n t i t y [United S t a tes v: White (1944),

322 U.S.      694, 64 S.Ct.          1248, 88 L ed 15421 and t h e r i g h t cannot

be invoked a s a general b a r t o inquiry, b u t can only be a s s e r t e d

t o s p e c i f i c d i s c l o s u r e s sought [Kastigar v. United S t a t e s (1972),

406 U.S.      441, 92A S.Ct.          1653, 32 L ed 2d 2121.
       P l a i n t i f f s , on the other hand, agree t h a t section 93-2902

governs venue i n t h i s a c t i o n , but disagree a s t o the nature of

t h e i r a c t i o n and where i t a r i s e s .   They view t h e i r a c t i o n a s

fundamentally one t o e s t a b l i s h and give e f f e c t t o t h e i r c o n s t i t u -

t i o n a l r i g h t against self-incrimination.            They a s s e r t t h a t a l l

of the conduct of defendants which they seek t o p r o h i b i t occurred

i n G a l l a t i n County; t h a t i s where t h e cause of a c t i o n arose,

and t h a t i s where venue l i e s .         They c i t e Guthrie v. Department

of Health and Environmental Sciences, supra; and the California

case Cecil v. Superior Court (1943), 59 C.A.2d                       793, 140 P.2d 125,

i n support of t h e i r position.

       The s t a t u t e c o n t r o l l i n g venue i n t h i s case i s s e c t i o n 93-

2902, which provides i n p e r t i n e n t p a r t :

       "Actions f o r t h e following causes must be t r i e d i n
       the county where t h e cause, o r some p a r t t h e r e o f ,
       arose    * * *.

            "2. Against a public o f f i c e r , o r a person s p e c i a l l y
       appointed t o execute h i s d u t i e s , f o r an a c t done by him
       i n v i r t u e of h i s o f f i c e ; o r against a person who, by h i s
       command o r i n h i s a i d , does anything touching t h e d u t i e s
       of such officer."

A "public o f f i c e r " within the meaning of t h i s s t a t u t e encompasses

a governmental agency which can only a c t through i t s public

o f f i c e r s and employees.       Lunt v. Division of Workmen's Compensa-

t i o n , supra.    Thus defendant Human Rights Commission, a s well a s

defendant Brown i t s administrator, i s a public o f f i c e r within t h e

meaning of t h i s s t a t u t e .

       The crux of venue i n t h i s case i s where "the cause, o r some

p a r t thereof, arose" within the meaning of s e c t i o n 93-2902.                      Prior

decisions of t h i s Court have a l l turned upon t h i s question with

varying r e s u l t s , depending upon our view of the nature of the

a c t i o n involved i n each case.
     In Montana-Dakota Utilities Co. v Public Service Commission
                                      .

(1940), 111 Mont. 78, 107 P.2d 533, an action to enjoin enforcement

of an order of the Commission reducing utility rates for natural

gas service in Valley and Phillips Counties, this Court held
that venue was properly in Valley County where the action was
originally filed, rather than Lewis and Clark County the official
residence of the Commission and the place where the order was

issued. Venue was determined-underthe statutory predecessor of

section 93-2902 on the basis that plaintiff sought relief from

operation of the order which would occur in Valley and Phillips
Counties where the cause of action arose.

     State ex rel. Fulton v. District Court (1961), 139 Mont.

573, 366 P.2d 435, an original petition seeking a writ of prohibi-

tion to restrain the district court of Cascade County from further
proceeding with an action against the State Board of Equaliza-

tion relating to its regulations concerning the corporation license

tax, contains dictum to the effect that section 93-2902 requires

the action to be filed in Lewis and Clark County, the official
residence of the Board and the place where the regulations were
issued.
     Gildroy v. Anderson (1972), 159 Mont. 325, 497 P.2d 688,
was an action for injunction to prevent the governor of Montana

from implementing an executive order establishing multi-county

planning and administration districts and changing the composition
of existing districts. We held venue properly belonged in Lewis
and Clark County, the county of the governor's official residence,
rather than Musselshell County, one of the affected counties. We

construed the objective of plaintiff's complaint as a challenge to

an official act of the governor, allegedly exceeding his power and
a u t h o r i t y v i s - a - v i s t h e s t a t e l e g i s l a t u r e , r a t h e r than a

challenge t o t h e merits of t h e operation of t h e executive o r d e r

i n r e d i s t r i c t i n g t h e a f f e c t e d counties.

        I n Lunt v. Division of workmen's Compensation, supra, an

a c t i o n f o r a w r i t of mandate t o compel t h e s t a t e agency t o s e t

a hearing on p e t i t i o n e r ' s claim f o r worker's compensation bene-

f i t s , we held venue property belonged i n Lewis and Clark County,

t h e s i t u s of t h e agency's o f f i c e , r a t h e r than Yellowstone County

where t h e a c t i o n was f i l e d , because t h e a c t i o n only involved a

f u n c t i o n of t h e agency's o f f i c e s i n Lewis and Clark County.

        F i n a l l y , i n Guthrie v. Montana Department of Health and

Environmental Sciences e t a l . , surpa, w e again looked t o t h e

n a t u r e of t h e a c t i o n i n holding t h a t venue properly l a y i n Teton

County r a t h e r than Lewis and Clark County.                          This was an a c t i o n by

r e c r e a t i o n a l and business u s e r s of land i n Teton County near a

subdivision development a g a i n s t t h e S t a t e Department of Health,

t h e Teton County Commissioners and t h e subdivision developers.

The a c t i o n sought an i n j u n c t i o n a g a i n s t t h e defendants t o r e s t r a i n

f u r t h e r a c t i o n t h a t would p h y s i c a l l y a l t e r t h e land i n t h e sub-

division        u n t i l s a n i t a r y r e s t r i c t i o n s were properly l i f t e d and

p l a t approval properly secured.                    W construed t h e n a t u r e of t h e
                                                       e

a c t i o n a s seeking t o r e s t r a i n a l l e g e d i r r e p a r a b l e harm t o Teton

County land.           Accordingly, we held Teton County was where t h e

a c t i o n a r o s e and where venue was proper.

       The r o o t of t h e venue i s s u e i n t h e i n s t a n t case i s t h e con-

f l i c t i n g view of t h e p a r t i e s a s t o t h e n a t u r e of t h e a c t i o n .

P l a i n t i f f s contend t h e i r a c t i o n fundamentally involves t h e i r con-

s t i t u t i o n a l r i g h t a g a i n s t s e l f - i n c r i m i n a t i o n being denied them

by conduct of defendants i n G a l l a t i n County.                        Defendants claim
plaintiffs' action is basically an attack seeking destruction

or at least limitation of their statutory powers and authority

to investigate complaints of discrimination under the act.

     The merits of plaintiff&' action are not before us.   Conway

v. Fabian, 103 Mont. 574, 63 P.2d 1022. Venue must be deter-
mined on the basis of the allegations in plaintiffs' petition.

Johnson v. Clark, 131Mont. 454, 311 P.2d 772.     In our view,

the gist of plaintiffs' petition is that their constitutional

right against self-incrimination is allegedly being infringed
upon by defendants' investigatory activities and conduct in

Gallatin County which they seek to arrest by a writ of prohibi-
tion.   Plaintiffs' attack is not upon the statutory power and

authority of the Commission to investigate complaints under the
anti-discrimination act.   Rather it is an attack on the Comis-
sion's method or manner of exercising those powers in conducting

its investigation in Gallatin County, in alleged violation of

constitutional guarantees. The attack is not upon the statutory

powers of the Commission, but upon the conduct of defendants in

Gallatin County in the exercise or operation of those powers.

The cause of action arose in Gallatin County because the conduct

of defendants there allegedly violated constitutional rights of

Gallatin County residents and entities.    Thus venue properly lies

in Gallatin County under section 93-2902. Public policy considera-
tions do not change our view.
    We have considred the remaining contentions of defendants
but consider them irrelevant to venue.    They attack the merits
of plaintiffs' petition, which is not before us on this appeal

    The order of the district court denying a change of venue to

Lewis and Clark County is affirmed.



                                      Justice.
We Concur:




Justices.
M r . J u s t i c e Daniel J       . Shea   s p e c i a l l y concurring :


        I concur i n t h e venue decision and t h e Court's r e f u s a l

t o consider t h e merits of defendants' claim t h a t p l a i n t i f f s

a s e n t i t i e s , were a s s e r t i n g c o n s t i t u t i o n a l r i g h t s t h a t belonged

only t o i n d i v i d u a l s .    The d i s t r i c t c o u r t has n o t y e t r u l e d on

t h a t question.         However, t h e d i s t r i c t c o u r t and t h i s Court

should have considered t h e obvious c o n f l i c t of i n t e r e s t which t h e
       attorney
county/has i n a s s e r t i n g s e l f - i n c r i m i n a t i o n r i g h t s f o r h i s c l i e n t s .

        The c o n f l i c t i s between h i s function a s prosecuting a t t o r n e y

of G a l l a t i n County and h i s function a s c i v i l l e g a l advisor t o

t h e school d i s t r i c t s and t r u s t e e s .       One of those functions must

p r e v a i l , and s i n c e t h e county would be without a prosecutor

i f he chose h i s duty t o be c i v i l a d v i s o r t o t h e school d i s t r i c t s

and t r u s t e e s , t h e duty t o prosecute must p r e v a i l .                 The school

d i s t r i c t s involved should h i r e an independent lawyer.

        Under s e c t i o n 16-3101, R.C.M.              1947, it i s t h e function of

each county a t t o r n e y t o "conduct on behalf of t h e s t a t e , a l l

prosecutions f o r p u b l i c o f f e n s e s        * * *."       The a n t i - d i s c r i m i n a -

t i o n a c t , s e c t i o n 64-312, R.C.M.          1947, provides t h a t a w i l l f u l

v i o l a t i o n of t h e a c t , whether i n committing a p r o h i b i t e d a c t

o r i n i n t e r f e r i n g with t h e a c t i v i t i e s of t h e Human Rights Commis-

s i o n , i s a misdemeanor f o r which one can be f i n e d and j a i l e d .

Therefore, any v i o l a t i o n of t h i s a c t may u l t i m a t e l y f a l l i n t h e

l a p of t h e county a t t o r n e y t o prosecute.                I n f a c t , t h e r e i s no

o t h e r o f f i c i a l who can b r i n g a c r i m i n a l prosecution under t h e

anti-discrimination a c t .               Under these circumstances t h e county

a t t o r n e y has no r i g h t t o prevent t h e d i s c l o s u r e of evidence

which may be incriminating.                    Rather, i t i s h i s duty t o o b t a i n
the evidence and to prosecute if he determines there is a

criminal violation. To allow him to proceed in this case is to
strip the people of Montana of a prosecutor in Gallatin County

for criminal proceedings under the anti-discrimination act.
     Section 75-8305.1, R.C.M. 1947, expressly provides school

districts may hire independent counsel in the event of a conflict
of interest.   The county attorney should advise the school boards
they should retain independent counsel if they desire to raise

the privilege against self-incrimination as a defense to the

interrogatories propounded by the Human Rights Commission.    If

the county attorney will not voluntarily withdraw from the case,

the district court should order that he withdraw and that

plaintiffs hire independent counsel.




                                                   - -
                                                   2

                                   Justice.
