Smith v. County of Missoula, 99-330.

• Citation: 992 P.2d 834,1999 MT 330
• Decision Date: 23 December 1999
• Docket Number: No. 99-330.,99-330.
• Parties: Jeff M. SMITH, Jr., Petitioner and Appellant, v. COUNTY OF MISSOULA and Missoula County Sheriff's Office, Respondents and Respondents.
• Court: United States State Supreme Court of Montana

992 P.2d 834

1999 MT 330

Jeff M. SMITH, Jr., Petitioner and Appellant, v. COUNTY OF MISSOULA and Missoula County Sheriff's Office, Respondents and Respondents.

No. 99-330.

Supreme Court of Montana.

Submitted on Briefs September 30, 1999.

Decided December 23, 1999.

Samuel M. Warren, St. Peter & Warren, P.C.; Missoula, Montana, For Appellant.

Michael Sehestedt, Missoula Deputy County Attorney; Missoula, Montana, For Respondents.

Justice TERRY N. TRIEWEILER delivered the opinion of the Court.

¶ 1 The Petitioner, Jeff Smith, Jr., applied to the District Court for the Fourth Judicial District in Missoula County for a writ of mandate to compel the Missoula County Sheriff to issue to him a concealed weapon permit, and also appealed the sheriff's decision to deny his application for a concealed weapon permit. The District Court denied his application for a writ of mandate, and following a hearing, the District Court denied his appeal. Smith appeals both decisions of the District Court. We affirm the judgment of the District Court.

¶ 2 The following issues are presented for review:

¶ 3 1. Did the District Court abuse its discretion when it admitted evidence from Smith's criminal file after the County failed to respond to Smith's combined discovery requests? ¶ 4 2. Did the District Court abuse its discretion when it admitted evidence from Smith's criminal file which was confidential criminal justice information?

¶ 5 3. Did the District Court err when it concluded that the sheriff had no legal duty to issue Smith a concealed weapons permit?

¶ 6 4. Did the District Court err when it denied Smith's application for a writ of mandate?

FACTUAL BACKGROUND

¶ 7 In October 1995, Jeff Smith, Jr. applied for a concealed weapon permit. The Missoula County Sheriff denied Smith's application by letter dated April 29, 1996. The letter stated:

Dear Mr. Smith:

We will not be issuing you a concealed weapon permit. During our background investigation it appears:

1. You failed to list your entire criminal history.

2. There is a City Police Department report regarding an incident in June of 1993 [At the hearing the District Court determined that "June of 1993" was a typographical error, and should have been "November of 1993."] in which a number of actions by you created fear of bodily harm to several victims. This caused city and county officers, and a deputy county attorney considerable concern about the suitability of the issuance of a concealed weapons permit.

After consulting with the Missoula County Attorney, I believe a concealed weapon permit should not be issued. You, of course, may elect to appeal this to a District Court Judge.

(Emphasis added.) Smith then submitted another application on April 23, 1997. Receiving no response, Smith filed an application for a writ of mandate in the District Court on August 20, 1997. The sheriff again denied Smith's application by letter dated August 21, 1997, which stated:

Dear Mr. Smith:

First, I owe you an apology for our failure to complete your application for a concealed weapons permit in a timely manner.

After conferring with County Attorney Dusty Deschamps I am going to continue my denial of issuance of a permit. You of course are aware that you have the right to appeal my decision through the District Courts.

The District Court denied Smith's application for a writ of mandate on October 30, 1997.

¶ 8 On March 19, 1998, Smith filed an amended complaint in District Court, in which he asked the District Court to grant his application for a concealed weapon permit. On July 30, 1998, Smith served the County with combined discovery requests, which included the following:

REQUEST FOR ADMISSION NO. 3: Please admit that your letter of August 21, 1997 ... completely and accurately states the basis for your denial of his April 23, 1997, application.

....

REQUEST FOR ADMISSION NO. 5: Please admit that you fully and completely stated the reasons for your denial of Petitioner's previous application in "Exhibit "C" [which was the sheriff's letter of April 29, 1996].

The County did not respond. A hearing was held in the District Court on February 23, 1999. At the hearing, the County moved for the admission of evidence from Smith's criminal file. Smith objected to the evidence. He argued that because the State failed to answer his discovery requests, no evidence of his criminal history was admissible.

¶ 9 Smith's criminal file contained evidence that Smith was involved in an incident in November 1993; and that, as a result of the incident, Smith was charged with a number of felonies, to which he pled guilty and received a deferred imposition of sentence. After he satisfied the conditions of his deferred sentence, the District Court dismissed the State's charges against him.

¶ 10 On April 15, 1999, the District Court filed its findings of fact and conclusions of law. The District Court found that the sheriff denied Smith's applications because Smith posed a threat to the peace and good order of the community; that he was involved in a violent incident in 1993, for which he pled guilty to a number of crimes; and that Smith's first application failed to disclose other criminal history. The District Court denied Smith's application for a permit to carry a concealed weapon.

STANDARD OF REVIEW

¶ 11 We review a district court's findings of fact to determine whether they are clearly erroneous. See Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906 (citing Columbia Grain Int'l v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 678). We review a District Court's evidentiary rulings to determine whether there has been an abuse of discretion. Unmack v. Deaconess Med. Ctr., 1998 MT 262, ¶ 6, 291 Mont. 280, ¶ 6, 967 P.2d 783, ¶ 6.

ISSUE 1

¶ 12 Did the District Court abuse its discretion when it admitted evidence from Smith's criminal file after the County failed to respond to Smith's combined discovery requests?

¶ 13 Smith contends that the District Court abused its discretion when it admitted his criminal file as evidence. He argues that, during discovery, he asked the County to admit that the basis for the sheriff's denial of his applications was exclusively found in the sheriff's two letters, and that because the County failed to respond and his requests were deemed admitted, the County was precluded from introducing evidence from his criminal file at the hearing. However, we conclude that introduction of the file was not inconsistent with the sheriff's letters.

¶ 14 The sheriff's letter stated a number of reasons Smith's application for a concealed weapon permit was denied, including: a police report of an incident from 1993, and Smith's failure to list his entire criminal history. The evidence relating to Smith's criminal file from 1993 was not admitted as an additional reason for the sheriff's denial of his application, rather it was introduced as evidence of Smith's conduct in 1993 and to establish Smith's criminal history, both of which were reasons given by the sheriff for denial of Smith's application.

¶ 15 Smith also contends that because the County failed to answer his interrogatories, the County was precluded from using the information sought by the interrogatories at trial. Specifically, Smith points to Interrogatory No. 8, which asks:

To the extent that the reasons for the denial of Petitioner's Applications are not fully set forth in [the sheriff's two letters of denial], please state each and every fact, allegation or reasons upon which you relied in denying said Application dated April 23, 1997.

Smith argues that because the County failed to answer this interrogatory, the District Court improperly admitted evidence from Smith's criminal file. However, there were remedies other than exclusion of the evidence for the County's omissions.

¶ 16 A party must respond to an interrogatory either by answer or objection. Rule 33(a), M.R.Civ.P. If a party fails to respond to an interrogatory, the opposing party may move for an order pursuant to Rule 37(a), M.R.Civ.P., to compel discovery. A party may also move for discovery sanctions. See Rule 37(d), M.R.Civ.P. The district court, however, can only order discovery sanctions upon a motion. Rule 37(d), M.R.Civ.P., provides:

If a party ... [fails] (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, ... the court in which the action is pending on motion may make such orders in regard to the failure as are just.

Rule 37(d), M.R.Civ.P. (emphasis added).

¶ 17 In this case, Smith did not move to compel an answer, nor did he move for discovery sanctions pursuant to Rule 37(d), M.R.Civ.P. Neither is this a situation where evidence was offered which was inconsistent with information provided in the sheriff's letters. We conclude that the District Court did not abuse its discretion when it admitted evidence from Smith's criminal file despite the County's failure to respond to Smith's combined discovery requests.

ISSUE 2

¶ 18 Did the District Court abuse its discretion when it admitted evidence from Smith's criminal file which was confidential criminal justice information?

¶ 19 The legislature enacted § 45-8-321, MCA, to permit qualified individuals to carry a concealed weapon. Section 45-8-321(2), MCA, grants the sheriff discretion to deny an application for a concealed weapon permit when the sheriff has reasonable cause to believe the applicant has a mental disability or illness; or the applicant may be a threat to the peace and good order of the community.

¶ 20 Smith contends that the sheriff improperly relied on evidence from his criminal file to establish reasonable cause to deny his application for a concealed weapons permit, because the District Court dismissed the charges against him and ordered his records expunged. Smith suggests that once the District Court ordered his records expunged, those records could not be used for any purpose.

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