                                NO.    93-155
           IN THE    SUPREME   COURT OF THE STATE OF MONTANA
                                      1993


WADE E. and BARBARA A. WOITH, et al.,
          Plaintiffs    and    Appellants,

     ".
CASCADE COUNTY TREASURER:
MONTANA DEPARTMENT OF REVENUE,
           Defendants   and    Respondents



APPEAL FROM:    District Court of the Eighth Judicial District,
                In and for the County of Cascade,
                The Honorable R. D. McPhillips, Judge presiding.


COUNSEL OF RECORD:
           For Appellants:
                Robert P. Goff (argued) and Kristen G. Juras,
                Church, Harris, Johnson & Williams,
                Great Falls, Montana
           For Respondents:
                Lawrence G. Allen, Tax Counsel         (Argued), and
                David W. Woodgerd, Chief Legal         Counsel,
                Montana Department of Revenue;         Patrick Paul,
                Cascade County Attorney, Great         Falls, Montana


                                             Submitted:    October 13, 1993
                                                Decided:   November 23, 1993
Filed:
Justice William El. Hunt, Sr., delivered the opinion of the Court.
     Appellants,      Wade and Barbara Woith (Woiths), appeal from an
order of the Eighth Judicial              District      Court,    Cascade   County,
denying them summary judgment and granting summary judgment to
respondents,     Cascade      County   Treasurer      and   Montana   Department   of
Revenue    (DOR).     Woiths are a certified class of Cascade County
taxpayers affected by real property tax appraisal adjustments
implemented by DOR in 1990.
     We reverse and remand.
     The issue is whether Woiths were barred from proceeding under
§§ 15-l-406 through -408 and 15-2-307 through -310, MCA (repealed
1993) in 1990 with a declaratory judgment action to protest House
Bill 703's tax assessment method?
     The District Court found that because Woiths failed to file
administrative      appeals    from    their   1989    property   tax   assessments
pursuant to 5 15-15-102, MCA (1989),               they did not successfully
preserve their appeal.          The court relied on Department of Revenue
v. Barron (1990), 245 Mont. 100, 799 P.2d 533.
     In Barron,      we held that portions of House Bill 703 (ch. 636,
1989 Mont. Laws 1628) relating to stratified-sales assessment ratio
studies (codified at 5 15-7-111, MCA (1989)) were unconstitutional,
and that the values arrived at by using such procedures are
invalid.    Further, we held that the effect of our ruling would be
applied prospectively (after December 31, 1990) and in limiting
language denied relief to taxpayers except as to:



                                          2
        those cases now pending on appeal, or properly appealed
        by the property owners.        (This means those cases
        heretofore appealed within the time provided for taxpayer
        appeals at the local or state level and now pending on
        the grounds of unconstitutionality found to exist in this
        proceeding, and includes those previously appealed on
        those grounds and denied at the county or state level;
        but, no other appeals on the grounds covered herein shall
        be recognized.)
Barron,     799 P.2d at 542.
        Woiths claim that before the deadline for filing appeals
pursuant to § 15-15-102, MCA (1989), had passed, they chose not to
utilize that remedy.          Instead, Woiths claim that in June 1990 they
had chosen to oppose DORIS               tax assessment pursuant to the
alternative remedy in 5s 15-l-406 through -410 and 15-2-307 through
-310,     MCA (1989)..      Section   15-l-406, MCA, provided in pertinent
part:
        Alternative remedy -- declaratory judgment.             (1)   An
        aggrieved taxpayer may, in lieu of proceeding under
        15-l-402, bring a declaratory judgment action in the
        district court seeking a declaration that a tax levied by
        the state or one of its subdivisions was illegally or
        unlawfully imposed or exceeded the taxing authority of
        the entity imposing the tax.
        Similarly, § 15-2-307, MCA, provided:
        Challenge   to assessment rules or procedures.         An
        aggrieved taxpayer may, in lieu of proceeding under
        Title 15, chapter 15, part 1, bring a declaratory
        judgment action in the district        court seeking a
        declaration that a method or procedure of assessment of
        property adopted or utilized by the department of revenue
        is illegal or improper.

        Woiths claim that the District Court inaccurately applied
Barron to them.          We agree.    In the Barron case, on August 3, 1990,
we   accepted DOR's petition            for an original proceeding which
requested a writ of review, a writ of supervisory control, or other

                                          3
appropriate emergency writ for relief from an order of the State
Tax Appeal Board.       That order,           upon the protest of Ms. Barron,
declared   portions    of   HB   703    unconstitutional.       Nowhere in that
proceeding,      or in our later discussion in Barron, did we either
consider taxpayers like those in Woiths' situation, or rule on the
availability or unavailability of alternative statutory remedies.
Although in Barron we denied relief to all taxpayers except as to
those who had filed administrative appeals before October 12, 1993,
we did not limit taxpayers'            alternative    statutory    remedies   then
granted by the Montana Legislature.
     In November 1990, in lieu of using the administrative appeal
process suggested to all taxpayers                  by DOR and available in
§ 15-15-102, MCA (1989),         Woiths permissibly contested HB 703
property   tax    assessments    through       alternative   statutory   remedies.
Therefore,    we hold that Woiths were not barred from utilizing
alternative statutory remedies by our decision in Barron.
     We reverse and remand to the District Court for further
proceedings in accordance with the provisions of this opinion.




     Chief Justice




                                          4
Justice Terry N.    Trieweiler    specially      concurring.
        I concur with the result of the majority opinion, but not with
its method of arrival.
        I disagree wi.th the majority's conclusion that our decision in
DeparimentofRevenuev.Ban-on (1990), 245 Mont. 100, 799 P.2d 533, did

not bar refunds     :Eor   taxpayers like the plaintiffs who chose to
proceed pursuant .to §§ 15-l-406 and 15-2-307, MCA (1989).
        In language with which I strongly disagree, this Court made
very clear that while the appraisal method provided for in House
Bill 703 was       unconstitutional,       its    ruling   would be   applied
prospectively except for taxpayers who had objected to the
assessment by administrative appeal pursuant to 5 15-15-102, MCA
(1989).
        In language that could not be more clear, this Court held
that:
              Because of the statewide effect of this decision,
        because of the short period of time remaining for state
        and county offices to perform their duties in connection
        with the collection of property taxes for the year 1990,
        and the extenuating exigencies which would otherwise be
        created by an immediate effect of this decision, we
        hereby delay the effective date of this decision, and
        make its effect prospective only to December 31, 1991,
        extent for those cases now nendinq on anneal, or nronerlv
        annealed bv the nronertv owners. (This means those cases
        heretofore appealed withinthetime provided for taxpayer
        anneals at the local or state level and now pendinq on
        the grounds of unconstitutionalitv found to exist in this
        proceedinq, and includes those previouslv annealed on
        those qrounds and denied at the county or state level;
        but, no other apneals on the grounds covered herein shall
        be recoqnized.) The effect of this prospective stay is
        that as to all property affected by the stratified sales
        assessment ratio studies, except those herein stated, the
        values for tax purposes for the tax year 1990 shall be

                                       6
          those found and applied by the DOR under said studies.
          [Emphasis added].
Barron,     799 P.2d at 542.

          The taxpayers who brought this action had not commenced
administrative appeals at the time of this Court's decision in
.Barron .    They clearly were among that class of people whose property

values for tax purposes during the year 1990 were to be based,
according to our opinion, on the stratified sales assessment ratio
studies.
          However, I would reverse that part of the Ban-on decision which

limited the constitutional protection afforded by that decision to
those taxpayers identified in that decision.
          By affording the protection of our Constitution to those who
challenged         the    DOR's     method   of    assessment pursuant to one
statutorily        authorized       procedure, and denying the Constitution's
protection to those who chose to challenge the same assessment
method by an equally valid statutory procedure, I conclude that the
above quoted portion of the Barron decision denied the plaintiffs in

this        case   full     legal    redress in      violation of       Article II,
Section 16, of the Montana Constitution, denied them due process in
violation of Article II, Section 17, of the Montana Constitution,
and denied them equal protection of the law in violation of
Article II, Section 4, of the Montana Constitution.
          Furthermore, by its "selective prospective" application of our
constitutional           protections,    this     Court,   in Barron,   violated   the


                                             7
principles for application of constitutional law set forth by the
United States Supreme Court in James B. Beam Distilling Company v. Georgia

(1991) I 111 s. ct. 2439, 115 L. Ed. 2d 481.
     The DOR's position on appeal           is that we can afford the
protection of Montana's constitutional rights to those who seek
enforcement of those rights      by   one allowable statutory method, and
deny those same rights to people who seek their protection through
an equally allowable,      but    different,    statutory   method.   This
argument exalts form over substance, and if accepted, would make a
sham of the Constitution, which must prevail over all statutory
enactments.   The fundamental fault with the Barron decision is the

notion that constitutional rights can be selectively applied.
Those rights belong to everyone by virtue of their citizenship in
the State of Montana.
     Therefore,    while I concur in the result of the majority
opinion, I disagree with its reasoning.         I would reverse that part
of the Barron decision which made its application prospective except

for those people who had filed appeals through the administrative
process, and would hold, as we are required to by the U.S. Supreme
Court's decision in JamesB.Beam, 111 S. Ct. at 2448, that "when the

court has applied a rule of law to the litigants in one case it
must do so with respect to all others not barred by procedural

requirements or resjudicata.”



                                               J$st'ice

                                       8
                                   November 23. 1993

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Robert P. Goff and K&en G. Juras
Church, Harris, Johnson & Williams
P. 0. Box 1645
Great Falls, MT 59403

David W. Woodgerd, Chief Legal Counsel
Lawrence G. Allen, Counsel
Montana Department of Revenue
Mitchell Building
Helena, MT 59620

Patrick L. Paul
County Attorney
Cascade County Courthouse
Great Falls, MT 59403


                                                ED SMITH
                                                CLERK OF THE SUPREME COURT
                                                STATE OF MONTANA
