Q. 6
The official is exercising discretionary power. As a representative of an agency, the official has the discretion to decide which cases would progress to the prosecution stage and which ones will not. However, in exercise of this power, the official must be guided by certain rules and precedents and for him to recommend that the brother-in-law’s case do proceed to trial then the case must meet the required threshold. The fact that in the ordinary sense the case would not have proceeded to trial means that the official is biased towards the brother-in-law for the reason that the latter is in the process of divorcing the official’s sister thus using his discretion to try and punish the brother-in-law.
The contention at the appeal would be whether the official exceeded his power leading to abuse of discretion by the agency. Here the appellate court must consider the fact that the official was exercising prosecutorial discretion similar to that exercised by the federal prosecutors. As such, the standard review that the court should use in determining in determining the appeal is the official exceeded his mandate thus acting ultra vires and subsequently whether the decision to prosecute the brother-in-law was fair under the circumstances. If the court of appeal finds that the official acted ultra vires his discretion then the decision to prosecute the brother-in-law will be set aside.
Q. 7
The first part of the test is whether SCUM can be a plaintiff. SCUM can be a plaintiff because it is a union thus it can sue if its rights have been violated as per the provisions of 1983 actions for civil rights violations. The 1983 actions provide that claims can be instituted against local authorities or their officials in their capacity as persons.
The Society to Control Unwed Mothers is an union as per the provisions of the 1983 actions thus it can sue the local authority which owns the public park which Ruth has been tasked with the discretion to issue permits and determine their prices as well.
The second test is law deprivation. This means that the plaintiff should show that the official in question acted contrary to the law provision regarding the subject matter and as a result injuries were suffered by the plaintiff. In this case SCUM was not deprived of any benefits as per the law provisions. This is linked to the fact that Ruth had been mandated to charge from $25 to $100 for issuing permits thus she had the discretion to determine the amount which she wished to charge .
Ruth was charged by SCUM for asking $10,000 for permit to use the public park. This as an annual amount was within the range provided by the local authority thus it does not amount to any deprivation under the law. The awarding of damages is the last test. If a plaintiff has suffered any damages, he should be compensated .In this case, SCUM did not suffer any injuries thus no relief should be awarded by any court of law.
In conclusion, SCUM cannot institute any claim as per 1983 claim for civil rights violations.
Q. 8
IN THE WORKERS’ COMPENSATION COURT OF THE STATE OF MONTANA
2012 MTWCC 26
WCC No. 2011-2780
JOHN ERHARD (Petitioner)
Vs.
LIBERTY NORTHWEST INSURANCE CORP. (Respondent/Insurer)
Facts: This case was instituted by the Petitioner in the state of Montana in court dealing with compensation of workers. The plaintiff broke his leg when moving his belongings to a house provided by his employer before he commenced employment in the ranch. As a result he incurred hospital expenses because he had to undergo surgery which prompted him to seek for compensation from the Respondent. The Respondent claimed that the plaintiff was not an employee at the time of the accident thus it was not liable for the accident thus prompting the plaintiff to institute a suit.
Issue: There are three issues to be determined. These are:
- whether Erhard is entitled to apply for liability from Liberty,
- whether Liberty is obligated to pay the hospital bills incurred by Erhard, and
- Whether Erhard is entitled to a refund the cost of the suit and the legal fees.
With regard to the first issue, the court must establish whether there was an employment relationship between Erhard and Liberty. With regard to this issue, the Montana Workers’ Compensation Act is provides the definition of who is an employee. On the second issue, it is dependent on the first issue in that if Erhard is not found to be an employee he will not be entitled to liability from Liberty. Consequently, if Erhard is not an employee then he is not a bona fide party hence he will not be entitled to any costs.
Rule: the Montana Workers’ Compensation Act (WCA) of 2009 is applicable. Sections 39, 71, and 118 of the MCA, provides the definition of an “employee” in part as a person in the state of Montana who is in the service of an employer as defined in Sections 39, 71, 117 of the said Act under any appointment or contract of hire, expressly or implied, oral or written.
Analysis: The Petitioner, Erhard broke his leg while moving into a house provided by his alleged employer who is also the Respondent before his initial work shift. The Petitioner claimed for the workers’ compensation benefits but the Respondent denied such claim that the Petitioner was not within the scope of his employment at the time of his accident. An employee relationship under the WCA is defined as a contract between employer and employee. As such, whether an employment relationship exists between two people is a question of contract law.
The court found that the Petitioner signed the employment form provided by the Respondent but did not present the necessary documents for the Respondent to review and verify. The Petitioner also failed to complete all the portions of the form and did not sign it. Before the start of work in the Broken O Ranch where the Petitioner was going to work he was required to fill a “General Job Description for all Employees” which basically required him to complete all the necessary paperwork and before starting any work. Consequently, the Petitioner suffered the injury prior to the start of his first work shift.
While arriving at a decision, the trial court considered the issues raised by the case. In regard to whether Erhard was entitled to compensation, the court addressed the issue whether he was an employee at the time of the accident. The court relied on Bustell vs. Claim Service Inc. where it was held that the plaintiff was an employee at the time of her accident although the accident occurred before she had started working as an employee of her employer thus she was entitled to compensation by the insurer.
On the issue whether liberty was supposed to compensate the Petitioner, the trial court held that since she was not entitled to liability, thus liberty insurance was under no obligation to compensate him for the hospital bills and benefits. The trial court also held that Erhard was not entitled to any repayments in regard to legal fees and penalty because he had not suffered any harm.
Ruling: The trial court considered the evidence adduced by the Petitioner and the Respondent. The court also considered the definition of an employee and employment relationship provided by Sections 39, 71, 117 of Montana Workers’ Compensation Act. The trial court found that the Petitioner was not an employee within the meaning of the Montana Workers’ Compensation Act.
Judgment: The trial court held that the Petitioner was not entitled to acceptance of liability and that the Respondent was not liable for the payment of the medical bills and indemnity benefits and further that the Petitioner was not entitled to costs, attorney fees, or a penalty in this action.
Opinion: The ruling by the trial court was just and fair. This is linked to the fact that it applied the provisions of “Montana Workers’ Compensation Act” which was the applicable law when the case was instituted. The use of precedents dealing with the similar issues also ensured that the final determination was well informed.
