                                                                                               May 26 2015


                                           DA 14-0683
                                                                                            Case Number: DA 14-0683

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 143



COREY HANSEN,

              Plaintiff and Appellant,

         v.

BOZEMAN POLICE DEPARTMENT,
and Does 1-15, inclusive,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DV-12-778A
                        Honorable Holly Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Michael J. San Souci, San Souci Law Office, Bozeman, Montana

                For Appellees:

                        Michael J. Lilly, Berg, Lilly & Tollefsen, P.C., Bozeman, Montana



                                                     Submitted on Briefs: April 8, 2015
                                                                Decided: May 26, 2015


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Corey Hansen appeals from the District Court’s orders denying leave to file an

amended complaint and granting summary judgment to the Bozeman Police Department.

We affirm.

¶2     Hansen presents the following issues for review:

¶3     Issue One: Did the District Court err in denying Hansen’s motion for leave to file
       an amended complaint?

¶4     Issue Two: Did the District Court properly grant summary judgment to the
       Bozeman Police Department?

                                    BACKGROUND

¶5     Corey Hansen is a veteran who suffers from service-connected physical

conditions, including a seizure disorder.       He has a service dog that alerts him to

oncoming seizures. In 2011 Hansen and a few friends planned a visit to the C’Mon Inn, a

hotel in Bozeman, Montana. Hansen had a reservation and had stayed at the hotel with

his service dog in the past. He left copies of the certification papers for his service dog

on file at the hotel. Those papers were still on file in September 2011 when Hansen

arrived to check in, accompanied by his service dog wearing the appropriate

identification vest.

¶6     The C’Mon Inn staff refused to allow Hansen to register at the hotel because he

was accompanied by his service dog. The hotel’s reason for excluding Hansen was that

dogs are not allowed on the premises. This refusal persisted after Hansen explained that

he had a disability that required the presence of the service dog; that the presence of the


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service dog had been noted when the reservation was made; that he had stayed there in

the past with his dog; and that the dog’s papers were on file at the hotel. Eventually

Hansen called 911 and complained that the hotel was violating his rights and

discriminating against him by refusing him entry. A hotel employee also called 911 to

ask that Hansen be removed from the premises.

¶7    Three Bozeman Police Department officers responded. They first interviewed

Hansen and his friends, and then the C’Mon Inn manager. The manager claimed that

Hansen had become “disorderly” when employees questioned him about his service dog

and asked that Hansen be removed from the premises. The officers told Hansen that he

would have to leave, but suggested other motels that would allow him to stay with his

dog and obtained a C’Mon Inn business card so that Hansen could file a complaint if he

wished.

¶8    Hansen filed a complaint against the hotel with the Montana Human Rights

Bureau.   After an investigation and an evidentiary hearing, the hearing examiner

determined that the C’Mon Inn had discriminated against Hansen and had violated his

rights under the Montana Human Rights Act. The hearing examiner awarded Hansen

$15,000 in damages against the C’Mon Inn.

¶9    Hansen filed a separate Human Rights complaint against the Bozeman Police

Department. The Human Rights Bureau investigated and concluded that the police did

not discriminate against him. The Human Rights Commission upheld that conclusion




                                            3
and issued a right to sue notice.1 Hansen filed the present action against the Bozeman

Police Department, contending that the responding officers themselves violated the

Human Rights Act when they “aided, abetted and facilitated” the C’Mon Inn’s

discrimination against him.

¶10   Hansen appeals from the District Court’s refusal to allow him to amend his

complaint and from the subsequent order granting summary judgment to the Bozeman

Police Department. We affirm.

                                 STANDARD OF REVIEW

¶11   This Court reviews a district court’s decision on a motion under Rule 15,

M. R. Civ. P. to file an amended pleading to determine whether there was an abuse of

discretion. Seamster v. Musselshell County Sheriff’s Office, 2014 MT 84, ¶ 6, 374 Mont.

358, 321 P.3d 829.

¶12   This Court reviews a district court’s decision on a motion for summary judgment

de novo, using the same criteria as the district court under Rule 56 M. R. Civ. P.

Passmore v. Watson, 2014 MT 287, ¶ 9, 376 Mont. 529, 337 P.3d 84.

                                        DISCUSSION

¶13   Issue One: Did the District Court err in denying Hansen’s motion for leave to file
      an amended complaint?

¶14   Hansen filed the complaint in this action on October 18, 2012, and moved for

leave to file an amended complaint on June 3, 2014, proposing to include a new claim

that the Bozeman Police Department negligently trained and supervised its officers. The


      1
          We have not located copies of these documents in the record on appeal.
                                                4
deadlines for the close of discovery and for amendment of pleadings had been set in a

stipulated scheduling order and had already passed. Hansen contended that he did not

learn of the facts to support the new claim until he deposed the responding officers the

last day of the discovery period. Bozeman objected to the motion.

¶15   The District Court concluded that Hansen had unduly delayed both deposing the

officers and filing the motion to amend. Further, Hansen’s claims had been through two

Human Rights proceedings, including investigations and a hearing. The District Court

therefore concluded that Hansen’s claim that he did not have information on a failure to

train issue was “disingenuous.”    Additionally, while Hansen did not request a new

pretrial scheduling order, the new claim would require additional discovery and

designation of expert witnesses. The District Court determined that the motion for leave

to amend was therefore untimely and prejudicial to Bozeman, and should be denied.

¶16   We find that the District Court thoroughly considered the positions of the parties

and the context of the case to determine that leave to amend should not be granted.

Determining whether to grant leave to amend is within the discretion of a district court,

which acts arbitrarily if it acts without employing conscientious judgment, or exceeds the

bounds of reason in view of all the circumstances. Campbell v. Bozeman Investors, 1998

MT 204, ¶ 34, 290 Mont. 374, 964 P.2d 41. Hansen has not demonstrated that the

District Court abused its discretion, and the decision to deny leave to file the amended

complaint is affirmed.




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¶17    Issue Two: Did the District Court properly grant summary judgment to the
       Bozeman Police Department?

¶18    Hansen’s complaint alleged two claims for relief: that the responding officers

discriminated against him by violating § 49-2-302, MCA (part of the statues referred to

as the Montana Human Rights Act), and by violating the Federal Americans With

Disabilities Act. The District Court granted summary judgment to Bozeman on both

claims, concluding that neither Act required that the officers enforce Hansen’s asserted

rights against the C’Mon Inn. The essential facts are not in dispute and therefore there is

only an issue of law.

¶19    Montana law provides that it is an unlawful discriminatory practice for a public

accommodation to refuse service to a person “because of a physical or mental disability.”

Section 49-2-304, MCA. As noted, the Human Rights Bureau, in a separate proceeding

and after hearing, determined that the C’mon Inn violated § 49-2-304, MCA, by refusing

to provide a room to Hansen. Hansen contends that the Bozeman police officers were

required to materially assist him at the scene in his dispute with the hotel personnel. At

the hearing on summary judgment, Hansen’s attorney argued that the officers responded

to the situation with the wrong attitude, that they did not try to get the hotel to reconsider

its position, and that they did an inadequate investigation. He did not contend that the

officers should have forced the hotel to give Hansen a room. The officers, he said, were

required “to at least attempt to enforce his rights.”

¶20    The District Court considered these arguments and the Human Rights statutes and

was unable to find support for these contentions, concluding that officers responding to a


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911 call are not required to force another to make a reasonable accommodation to a

person with disabilities. Rather, Hansen’s statutory remedy, which he utilized, was to

pursue a claim under the Human Rights statues. Montana law, § 49-2-501 to -504, MCA,

provides that the duty to enforce the Human Rights Act rests with the Montana

Department of Labor and Industry (Department).              Persons “aggrieved by any

discriminatory practice” may file a complaint with the Department, § 49-2-501, MCA,

which is the exclusive remedy to address unlawful discrimination in Montana. Section

49-2-512(1), MCA; Edwards v. Cascade County Sheriff, 2009 MT 451, ¶ 69, 354 Mont.

307, 223 P.3d 893.

¶21    When an aggrieved person files a complaint, the Department is required to

investigate and attempt to informally settle the dispute. Section 49-2-504(1), (2), MCA.

The Department must issue a finding based upon the facts of the case as to whether there

is reasonable cause to believe that unlawful discrimination has occurred.          Section

49-2-504(7), MCA; Reeves v. Dairy Queen, 1998 MT 13, ¶ 28, 287 Mont. 196, 953 P.2d

703. The Department may determine that the facts either support the claim or that they

do not. Section 49-2-504(7)(b), (c), MCA. If there is reasonable cause to believe that

there was discrimination, the matter is referred to a contested case hearing. Section 49-2-

505, MCA. The hearing officer issues a decision and either party may appeal to the

Human Rights Commission. Section 49-2-505(3) to (5), MCA. The Human Rights

Division hearings officer may provide appropriate relief to the aggrieved party,

§ 49-2-506, MCA, which may be enforced by petition to district court, § 49-2-508, MCA.



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¶22    The express allegation in Hansen’s complaint was that Bozeman itself violated the

Human Rights Act when it “aided and abetted” the C’Mon Inn’s discriminatory conduct.

Hansen’s claim is based upon § 49-2-302, MCA:

       It is unlawful for a person, educational institution, financial institution, or
       governmental entity or agency to aid, abet, incite, compel or coerce the
       doing of an act forbidden under this chapter or to attempt to do so.

The Montana Human Rights Act does not contain a definition of the terms “aid, abet,

incite, compel or coerce” as used in § 49-2-302, MCA. The District Court and the parties

relied upon the Restatement of Torts for a definition of “aiding and abetting”:

       For harm resulting to a third person from the tortious conduct of another,
       one is subject to liability if he
              (a) does a tortious act in concert with the other or pursuant to a
       common design with him, or
              (b) knows that the other’s conduct constitutes a breach of duty and
       gives substantial assistance or encouragement to the other so to conduct
       himself, or
              (c) gives substantial assistance to the other in accomplishing a
       tortious result and his own conduct, separately considered, constitutes a
       breach of duty to the third person.

Restatement (Second) of Torts, § 876. Assuming that this definition applies, Bozeman

does not qualify as an aider or abettor of C’Mon Inn’s discrimination. Most obviously,

the hotel had already discriminated against Hansen by refusing to register him before the

officers arrived. There is nothing but speculation to support a contention that the C’Mon

Inn staff would have reversed its decision if only the officers had done or said something

different. And, it is notable that the C’Mon Inn organization continued its resistance to

Hansen’s claim through the investigation and the evidentiary hearing that resulted in an

adverse decision.


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¶23    There is also no material support for the contention that the responding Bozeman

officers committed a discriminatory act “in concert with” or as part of a “common

design” with the hotel, or that the officers gave “substantial assistance or encouragement”

to the hotel to discriminate against Hansen.        While Hansen sees assistance and

encouragement in the officers’ ultimate request that he leave the hotel and seek a room

elsewhere, there is no showing that this was anything more than their good faith effort to

diffuse the impasse between Hansen and the hotel staff.        Last, the officers did not

discriminate against Hansen through their own separate conduct. Therefore, we find no

evidence to support a contention that they aided or abetted C’Mon Inn’s conduct.

¶24    We agree with the District Court’s conclusion that the Human Rights Act on its

face does not make law enforcement officers responsible for remedying unlawful

discrimination following the aggrieved party’s call to 911. To the contrary, the law sets

out clear procedures and remedies to address and correct discrimination.            While

§ 49-2-601, MCA, makes engaging in willful discrimination a misdemeanor, nothing in

that section evidences an intent to allow or require law enforcement officers to supplant

the statutes providing for enforcement of protections against discrimination in Montana.

Hansen is unable to concretely describe the parameters of a law enforcement officer’s

responsibility in a situation like the one in this case. See McDonald v. DEQ, 2009 MT

209, 351 Mont. 243, 214 P.3d 749 (determining the parameters required for employer’s

accommodation of employee’s service dog).

¶25    Hansen sued under the Human Rights Act, and we find no basis therein to require

law enforcement officers to investigate and determine the merits of discrimination

                                            9
disputes. Determination of whether there has been unlawful discrimination can involve

intricate issues of law and proof. Reeves, ¶¶ 10-18, 21; BNSF v. Feit, 2012 MT 147, ¶ 8,

365 Mont. 359, 281 P.3d 225. These are not the kinds of situations that are suited to

resolution by officers responding to a 911 call.       These are, however, the kinds of

situations commonly considered and disposed of under the investigation, hearing and

enforcement provisions in Montana law.

¶26    We reach a similar conclusion under the Federal Americans with Disabilities Act.

Under the ADA, 42 USCA § 12132, “no qualified individual with a disability” may be

“excluded from participation or be denied the benefits of the services, programs or

activities of a public entity, or be subject to discrimination by any such entity.” Like the

Montana Human Rights Act, the ADA does not contain any express requirement that the

officers enforce or vindicate whatever rights Hansen had against the hotel.

¶27    The parties agree that Bozeman is subject to the requirements of that statute.

Sheehan v. San Francisco, 743 F.3d 1211 (9th Cir. 2014). This certainly prohibits

Bozeman from itself unlawfully discriminating against citizens, but it does not also carry

an obligation to enforce citizens’ rights as against third parties.2 The District court

concluded as follows:

       There’s no dispute that police officers are subject to the ADA and that Mr.
       Hansen was qualified to participate or receive the benefit of the Bozeman
       Police Department services. But the Court does not find that, first of all,
       there are sufficient allegations either in the Complaint or as even
       supplemented through the briefing that he was denied the benefit of the


       2
        Law enforcement agencies are subject to non-discriminatory requirements of Montana
law. Section 49-2-308, MCA; Edwards, ¶ 62.
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       Police Department services or that he was specifically discriminated against
       by the Bozeman Police Department by reason of his disability.

We agree with the District Court’s assessment of the ADA claim.

¶28    There is no evidence that Bozeman denied any services to Hansen, aside from his

contention that the officers were required to do something more than they did to assist

him in his dispute with the C’Mon Inn. The officers responded promptly to Hansen’s 911

call; they assessed the situation, interviewing Hansen first; and they tried to assist Hansen

to find some other place to stay. While the officers did not do what Hansen says they

should have done, they did not discriminate against Hansen because of his disability.

They had no obligation to force the C’Mon Inn to provide him a room or to negotiate on

his behalf.

¶29    The District Court properly exercised its discretion in denying Hansen’s motion

for leave to file an amended complaint and properly granted summary judgment to the

Bozeman Police Department.

¶30    The District Court is affirmed.


                                                  /S/ MIKE McGRATH


We Concur:

/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT




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