NO. 8 2 - 2 8 4
IN THE SUPREME COURT OF THE STATE OF PlONTAPJA
1983
BRUCE P. OBERG,
Plaintiff and Appellant,
CITY OF BILLINGS, a niunicipal corp.,
HOWARD C. PORTER, NOEL RIGBY and
NATHANIAL W. MORRIS, et al.,
Defendants and Respondents.
APPEAL FROM: The District Court of the Thirteenth Judicial (District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jones, Jones & Work; Blair Jones argued, Billings,
Montana
For Respondents:
Peterson, Schofield & Leckie; Dane Schofield argued,
Billings, Montana
Submitted: January 13, 1983
Decided : December 22, 1983
Filed:
- -.
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Bruce P. Oberg, a Billings police officer appeals from a
summary judgment of the Yellowstone County District Court
upholding a determination of the Billings Police Commission
that Officer Oherg was guilty of insubordination for refusing
a direct order to take a polygraph examination. The trial
court enforced the Police Commission's recommendation that
Officer Oberg be suspended without pay for 15 days, followed
by a six-month probationary period. Officer Oberg challenges
the constitutionality of that part of a statute which
provides that only employees of public law enforcement
agencies can be compe1I.ed to take polygraph examinations.
Officer Oherq has challenged the statute on five
constitutional grounds. He claims that the exception for
public law enforcement agencies violates his constitutionally
guaranteed right to equal protection of the 1-aws, right to
privacy, freedom from unlawful search and seizure, freedom
from compelled self-incrimination and due process.
We reverse the trial court's summary judgment and
declare that section 3 9 - 2 - 3 0 4 ( 2 ) , MCA, is an unconstitutional
viol-ation of public law enforcement agency employees ' right
to equal protection of the laws. Although we believe the
statute also offends the equal protection clause under the
Fourteenth Amendment to the United States Constitution, we
limit our holding to the conclusion that the statute offends
the equal protection clause under Art. 11, 5 4, of our own
constitution. We therefore l i m i t our discussion to the equal
protection issue and do not reach the remaining issues.
We summarize the agreed statement of facts submitted to
the trial court. Bruce P. Oberg, a Billings police officer
arrested a citizen who later filed a complaint with the
police department claiming that Officer Oberg struck him
after he was a.rrested and handcuffed. As a part of the
police department's internal investigation of the citizen's
complaint, the police chief wrote to Oberg on July 24, 1979,
and formal-ly ordered Oberg to submit to a polygraph examina-
tion. On Ju1.y 37, 1979, Oberg responded by letter informing
the police chief that he refused to submit to the polygraph
exahmination. Officer Oberg asserted that mandatory
compliance with the police chief's order violated various
constitutional rights guaranteed by both the United States
and Montana Constitutions.
The Chief of Police then filed charges against Officer
Oherg and brought the matter before the Billings Police
Commission. The Chief of Police charged among other things
that Officer Oberg's failure to comply with the order to
submit to a polyqraph examination constituted
insubordination.
The Billings Police Commission held a hearing and later
on October 15, 1979, found Officer Oberg guilty of
insubordination and ordered that Officer Oberg be disciplined
by removal from duty for fifteen working days with forfeiture
of a-ll wages for that period of time together with the
imposition of a six month probationary period.
On October 19, 1979, the acting city administrator
issued an order enforcing the decision of the police comrnis-
sion . On December 11, 1979, Oberg filed a petition in
Yellowstone County District Court for judicial review. After
t.he pleadings were filed both Cherg and the City moved for
summary judgment on the ground that no issues of material-
fact were presented to the trial court for resolution. The
trial court granted the City's motion for summary judgment
and held that the polygraph provision as applied to police
officers was constitutional.
The statute invol.ved, section 39-2-304 (I.), MCA,
provides:
"Lie detector tests prohibited--exception (1) No .
person, firm, corporation, or other business entity
or representative thereof shall require as a condi-
tion for employment or continuation of employment
any person to take a polygraph test or any form of
a mechanical lie detector test. A person who
~riolates this section is guilty of a misdemeanor.
"(2) This section shall not apply to public law
enforcement agencies."
F e hold that subsection (2) denies employees of public law
J
enforcement agencies equal protect.ion of the law in violation
of state constitutional provisions. The Montana
Constitution, Art. 11, 5 4, states:
"Individual dignity. The dignity of the human
being is inviolable. No person shall be denied the
equal protection of the laws. Neither the state
nor any person, firm, corporation, or institution
shall discriminate against any person in the exer-
cise of his civil or political rights on account of
race, color, sex, culture, social oriqin or condi-
tion, or political or religious ideas."
In upholding the exception that permits employers to
give polygraph tests to public law enforcement agencies, the
trial court applied a strict scrutiny analysis. The trial
court assumed that because a right of privacy violation was
alleged, a strict scrutiny analysis was required. However,
we have held that a mere all.egation that a fundamental right
is burdened is insufficient to trigger a strict scrutiny
analysis. Godfrey v. Movt. State Fish & Game Com'n. (1981),
- Mont . -, 631 P.2d 1265, 38 St.Rep. 661. Here, the
plaintiff has challenged a general legislative classification
but has failed to lay the groundwork for a claim that the
classification either burdened a fundamental right or
involved a suspect criteria. Examples of fundamental riahts
include privacy, freedom of speech, freedom of religion,
right to vote and right to interstate travel. Examples of
suspect criteria are wealth, race, nationality and alienage.
Plaintiff has not gone beyond the mere allegation that
the required polygraph test violated his riqht to privacy.
The accusations against plaintiff unquestionably involved his
work as a police officer, and as such he could not reasonably
claim that the police department could not investigate his
actions based upon a citizen's complaint. He could be
questioned and otherwise required to cooperate with an
interdepartmental investigation based on the citizen's
complaint. Because we feel plaintiff has failed to show that
any fundamental right. was substantially abridged by the
statute, we determine that it was unnecessary to apply the
strict scrutiny analysis to the challenqed part of the
statute. However, even under the less vigorous test
requiring that a classification must bear a rational
relationship to a legitimate governmental purpose, section
39-2-304(2), MCA, still must fail a challenge under the equal
protection clause of our state constitution.
This Court cannot determine whether this classification
hears a rational relationship to a legitimate governmental.
purpose because there is no expressed purpose for the
classification on the face of the statute or in the statute's
legislative history. For that reason, the challenged part of
the statute is overbroad and vague on its face, and an
unconstitutional violation of the plaintiff's right to equal
protection of the law.
Subsection (1) of the statute is a directive to all
employers in this state--private and pub1i.c--telling them
that they cannot subject a prospective employee or an
employee to polygraph examination, either as a condition of
gaining employment or as a condition of retaining employment.
The intent is crystal clear. Subsection ( 2 ) , however, is
different. That subsection creates a class of people who for
some undeclared reilson are not to receive the protection
against compelled polygraphs provided in subsection (1).
While the courts are seldom concerned with the wisdom of
legislation, the purpose of the legislation is of vital
concern where the constitutionality of a statute is
challenged as a denial of equal protection. Did the
legislature intend, for example, that not only police
officers, but other law enforcement employees such as
secretaries, clerks, dispatchers, meter maids and dogcatchers
he subject to the requirements of a polygraph examination?
All these people are as much employees of law enforcement
agencies as are pol-jce officers.
No rational basis is discernible from the statute that
would justify excluding employees of "publj-c law enforcement
agencies" from the protection given to all other private and
public employees in this state. The exclusion gives no limit
of the classification's sccpe, and the legislative history is
so scant that it provides no substantive background regarding
the purpose or scope of the classification.
The City would have us read the exclusion as zpplying
only to police officers, but we cannot read the exclusion so
narrowly. Rather, it must he read to include all empl-oyees
of public law enforcement agencies. To hold that all these
employees were not entitled to the benefit of the statute
would make them second cl-ass citizens. The loose wording and
absence of enforcement guidelines from which a purpose for
the classification might be discerned, make this statute
unconstitutional on its face.
The City argues that the statute must at least permit
the administering of polygraph examinations to police
officers. Police officers may be placed in a special. class
for purposes of administering polygraph examinations, the
City argues, because they occupy a particularly high position
of public trust, and it is the goal of the City to maintain
law enforcement aqencies of the highest integrity. But this
argument is no less true for all governmental departments and
agencies. Still, under the statute, no government employee
or prospective government employee can be compelled to take a
pol-ygraph examination unless he was applying for a job with
or had a job with a "public law enforcement agency."
We are not tempted to create second class citizenship
for police officers by redefining and tail-orinq the term
"public law enforcement agencies" to apply only to police
officers. It would not be fair for this Court to save the
statutory exception by dreaming up a rational relationship to
some governmental purpose by filling the v0j.d left by the
legislature and declaring that the necessity of maintaining
high standards in our pol-ice officers is justification for
the statutory exception. The first part of the statute is a
clear declaration of public policy that forbids employer use
of polygraph examinations as a tool for conditioning
employment or continued empl oyment . If this blanket
statutory protection to all employees is to be withdrawn from
a class of employees, it is the legislature, not this Court,
that must define that class and set forth the policy behind
denying the protection expressly granted to all other
employees in this state.
In arguing the maintenance of public trust in police
officers as a justification for giving them polygraph
examinations, the City has had to speculate that this was the
purpose behind the amendment to the statute. We also would
be required to speculate on the purpose behind the amendment.
The statute, before it was amended to include subsection ( 2 ) ,
was clearly intended to benefit all private and public
employees and to act as a bar to employer use of polygraph
for employees or prospective employees. Under these
circumstances we are neither equipped nor inclined to define
the purpose behind the "publ-ic law enforcement agencies"
exception. In a dissent to Schulte Co. v. Gangi (1946), 328
I..
JS 108, 121-122, 66 S.Ct. 869, 90 L,.Ed. 1045, Justice
Frankfurter wrote that "the 'policy1 of a statute should be
drawn out of its terms as nourished by their proper
environment, and not, like nitrogen, out of the air." We
believe this to be especially so where the legislature has
enacted legislation for the benefit of all private and public
employees of this state, but then creates a special class
that is not entitled to the protection of the statute. It is
not our role to breathe life into a statute that is
unconstitutional on its face. We will not grab out of the
air what we consider to be an acceptable judicial
rationalization of legislative action. The legislature must
declare the policy and purpose behind its laws. Here, it has
failed to do so.
We cannot doubt that police officers occupy a position
of public trust in our society, but this fact does not
breathe life into an ambiguous statute whose enforcement is
sought exclusively against police officers. By the clear
wording of the statute, secretaries, clerks, di~patchers,
meter maids and dogcatchers are as much employees of public
law enforcement agencies as are police officers, but they do
not occupy the same position of power and concomitant trust
that must reside in our police forces. To hold that all
"public law enforcement agencies" can be compelled, under the
statute, to take a polyqraph examination, would be to stamp
them all as second class citizens. And an interpretation
restricting the classification to police officers would stamp
an even smaller cl-ass as second class citizens.
Other states have adopted similar legislation regulating
the use of lie detectors in the employment context. Some of
these states have also provided exceptions to the ban on the
use of lie detectors and some have even singled out law
enforcement agencies. Regardless of the purpose behind such
a classi.fication by other states, when our legislature has
failed to declare its purpose for a statutorily created
classification, we will not look to other jurisdictions. We
cannot rely on the purpose behind similar legislation in
other states to save an ambiguous statute in our own state
when our legislature has failed to declare its purpose behind
the statute. Interestingly, California has specificall-v
provided that no "public safety officer" can be compelled to
take a polygraph test a.nd the officer's refusal cannot in any
way affect his employment status. See, Cal. Gov't. Code $
3307 (West 1971).
Had the legislature provided any evidence that the
statute was only to apply to police officers because of their
positions of high public t.rust and integrity, we would have
no trouble upholding the statute under the rational
relationship test. However, such a statute could still he
attacked under the strict scrutiny test. It would be up to
the challenging officer to provide evidence that a
fundamental riqht, such as invasion of privacy, would be
violated. It would then be up to the state or local
government to show a compelling public interest to justify
the invasion. Art. 11, S 4 of our state constitution
provides for the protection of every citizen's "individual
dignity." It cannot be doubted that subjecting one to a lie
detector test is an affront to one's dignity and unless
strictly structured can be an invasion of privacy. The
legislators were concerned with the types of questions that
can be used by polygraph examiners to establish a response
pattern and this concern was expressed in committee hearings
preceding the passage of this statute. (See House Committee
on Labor and Employment Committee Minutes, January 25, 1974.)
We cannot assume that in sdministering a polygraph
examination a.31 questions would be confined to
employment-related matters. Assuming furthermore, that a
statutory exception were enacted to specifical-ly exclude
policy officers from the general statutory protection granted
all other employees in this state, we doubt that such an
exception would survive a sustained attack under the strict
scrutiny test.
Although we declare section 39-2-304(2), MCA, to be
unconstitutional because it denies to plaintiff equal
protection of the Law, we emphasize nonetheless that
employees of law enforcement agencies can be questioned or
otherwise required to cooperate in interdepartmental
investigations. The accusations against plaintiff involved
his work as a police officer, and as such he could not
reasonably claim that the police department could not
investigate his actions based on a citizen's complaint.
However, the police department's order that plaintiff take a
polygraph examination viol-ated plaintiff's right to equal
protection of the law.
The order of the District Cou
We Concur:
Chief Justice
Justices
Mr. Justice Frank R. Morrison, Jr. specially concurring:
I concur in the result but disagree with "rational
basis" as the premise for this result.
The Montana State Constitution, Article 11, Section 10,
provides :
"The right of indj-vidual privacy is essential to
the wel-1-being of a free society and shall not be
infringed without the showing of a compelling state
interest."
Subsection 2 of section 39-2-304 subjects employees of public
law enforcement agencies to an invasion of their right to
privacy by allowing employers to require them to submit to
polygraph examinations. It is difficult to conceive of a
greater privacy invasion and although it could he argued
there is a compelling state interest to require police
officers to su.bmit to polygraph examinations there is no
compelling state interest requiring all employees of public
law enforcement agencies to so submit.
This case involves the implication of a fundamental
right, that is the right of privacy, and therefore strict
scrutiny attaches. White v. State (Mont. 1983), 661 P.2d
1272, 40 St.Rep. 507.
I agree with the majority opinion that there is no
justifiable basis for this class legislation. However, it is
important to note that our State Constitution, in this case,
extends greater protection than does the Federal
Constitution. There is a specific privacy provision in our
State Constitution which implicates a fundamental right and
requires a strict scrutiny analysis. This may or may not be
true under the Federal Constitution. We accorded a broader
equal protection in White v. State, supra, on the basis of
constitutional language present in the Montana State
Constitution but not present in the Federal Constitution.
The same rationale applies here and provides a solid basis
for turning this case on the State Constitution rather than
the Federal Constitution.
Subsection 2 of section 39-2-304, MCA , is
unconstitutional and must he stricken from the statute.
Subsection 1 of the same statute provides that no employee
shall be subjected to a polygraph examination and this
language protects Bruce P. Oberg, the appellant.
Mr. Chief Justice Frank I. Haswell, dissenting:
I would hold section 39-2-304 ( 2 ) , MCA, constitutional
on its face and as applied to the facts of this case.
At the outset, Officer Oherg lacks standing to attack
the statute on the ground that it requires other employees of
I-aw enforcement agencies (such as secretaries, clerks, dis-
patchers, meter maids and dog catchers) to submit to poly-
graph examinations. The normal rule is that constitutional
rights are personal and a person cannot defeat a statute on
the ground that it might in other applications violate the
rights of third persons. United States v. Raines (1960), 362
U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524; Broderick v. Oklahoma
(1973), 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830; Wurtz v.
Risley et al. (9th Cir. 1983), - F.2d - (Cause 82-3352,
decided November 8, 1983).
Secondly, the legislature is not required to express
the policy and purpose behind its laws in order to withstand
an equal protection attack based on an alleged discriminatory
classification. Examples abound in Montana case law uphold-
ing legislative classifi.cations absent an expressed purpose
and policy for the classification: Linder v. Smith (Mont.
1981), 629 P.2d 1187, 38 St.Rep. 912 (upholding constitution-
ality of Montana Medical Legal Panel Act); Matter of Montana
Pac. Oil & Gas Co. (Mont. 1980), 614 P.2d 1045, 37 St.Rep.
1238 (upholding constitutionality of legislative classifica-
tion applicable to all mineral producers holding unclaimed
interests in minerals); State v. Gafford (1977), 172 Mont.
380, 563 P.2d 1129 (upholding constitutionality of classifi-
cation of prior convicted felons for special treatment);
Rurritt v. City of Butte (1973), 161 Mont. 530, 508 P.2d 563
(establishing different classifications between resident
freeholders and nonresident freeholders or resident
nonfreeholders with respect to an annexation statute).
Finally, I would hold that a rational relationship to a
legitimate state interest exists in this case for classifying
and treating "employees of law enforcement agencies" differ-
ently from other public employees.
This Court has recognized that "[tlhe similar provi-
sions of the equal protection clauses of the United States
and Montana Constitutions provide generally equivalent but
independent protection in their respective jurisdictions."
Emery v. State (1978), 177 Mont. 73, 580 P.2d 445, cert.
denied, 439 U.S. 874, 99 S.Ct. 210, 58 L.Ed.2d 187. No basis
can be found in the proceedings of the Montana Constitutional
Convention to indicate an intention to treat our equal pro-
tection guarantee any differently than its counterpart in the
United States Constitution. One who attacks a statute as
violating equal protection has the burden of proving that the
classification is arbitrary. State v. Jack (1975), 167 Mont.
456, 539 P.2d 726. Officer Oberg has failed to do so.
A rational basis exists for the exclusion of public l.aw
enforcement agencies from the prohibition on the use of lie
detector tests. That rational basis is the use of the lie
detector in internal investigations for the maintenance of a
police department that "is of the highest integrity and
beyond suspicion." Eshelman v. Rlubaum (1975), 114 Ariz.
376, 560 P.2d 1283, 1285. See also, McCain v. Sheridan
(1958), 160 Cal.App.2d 174, 324 P.2d 923; Fichera v. State
Personnel Board (1963), 217 Cal.App.2d 613, 32 Cal.Rptr. 159;
Coursey v. Board of Fire and Police Commissioners (1967), 90
Ill.App.2d 31, 234 N.E.2d 339; Roux v. New Orleans Police
Department (La.App. 1969) , 223 So. 2d 905; Seattle Police
Officers' Guild v. City of Seattle (1972), 80 Wash.2d 307,
494 P.2d 485; Richardson v. City of Pasadena (Tex.Civ.App.
1973), 500 S.W.2d 175; Dolan v. Kelly (1973), 348 N.Y.S.2d
478; Raker v. City of Lawrence (Mass. 1979), 409 N.E.2d 710;
State Department of Highway Safety, Etc. v. Zimmer (Fla.
1981), 398 So.2d 463.
About ten states, including Montana, have passed simi-
lar legislation regulating the use of polygraph tests in
employment situat.j.ons. See, Alaska Stat. S 23.10.030; Cal.
Labor Code S 432.2 (West 1971); Cal. Gov't Code S 3307 (West
1971); Conn. Gen. Stat. $ 31-51 (1983); 19 el. Laws 704
(1979); Hawaii Rev. Stat. $ 378-21 (1976); Idaho Code S $
44-903, 904 (1977); Md. Ann. Code Art. 100, S 95 (1978);
Mass. Gen. La.ws Ann. Ch. 149, (5 19B (West 1982); Or. Rev.
Stat. S§ 659.225, 659.227; R. I. Gen. Laws S 28-6.1-1 (1979);
Wis. Stat. 111.37 (1974). Of those nine other states, five
states (Ala.ska, California, Connecticut, Idaho and Maryland)
have enacted. specific exclusions for a cl.a.ssof employees.
The exclusions range from police departments and law enforce-
ment agencies to federal agencies. In each instance, the
state legislature recognized a rational basis for such
classification.
The compelling interest which necessitates the classi-
fication was succinctly described by the Supreme Court of
"A police department is a highl-y-sensi-
tive agency entrusted and charged with
the duty of protecting the community it
serves from the evils of crime and cor-
ruption. To efficiently and effectively
acccmplish its mission it requires the
respect and regard of the public, and
when it has reason to believe that some
of its members may be engaging in disrep-
utable practices, it has a valid interest
in purging itself of such practices
through internal departmental procedures
and the right to require the full cooper-
ation of its membership to this end."
Seattle Police Officers' Guild v. City of
Seattle (1972), 80 Wash.2d 307, 494 P.2d
485, 490.
Public law enforcement officials occupy a unique
position in tha.t they are empowered to do certain acts which
can have va.st and far-reaching consequences. They are empow-
ered to deprive persons--if even for only a short time--of
the most cherished of all rights, the right of freedom. They
are empowered to point an accusing finger at persons, and the
weight of their authority leaves little room for challenge.
They have the power, within certain confines, to take physi-
cal liberties with individuals. In short, they have an
authority which no one else, public or private, has. When
those officials come under fire for alleged irregularities in
the performance of their duties, the cloud which results is
potentially damaging not only to the official against whom
the allega.tion is made, but to the orga.nization as a whole.
When a cloud. hangs over such an organization, its efficiency
deteriorates and its effectiveness diminishes. As has been
recognized:
". . . a member of the police force must
be above suspicion of violation of the
very laws he has sworn and empowered to
enforce ... [policemen] can perform
their duties only if they merit the trust
and confidence of the mass of law-abiding
citizens. Whatever weakens that trust
tendls to destroy our system of law en-
forcement. " McCain v. Sheridan (Cal.
1 9 5 8 ) , 324 P.2d 923, 926.
In this respect, employees of law enforcement agencies
differ substanti.aX1.y
from other public employees.
The statute provides a reasonable classification that
properly included Oberg and in so doing did not offend equal
protection guarantees. State v. Turk (Mont. 1982), 643 ~ . 2 d
224, 39 St.Rep. 584. It has not been challenged by anyone
outside the intended class.
Nor, as applied to Oberg, did its application require
Oberg to incriminate himself to discuss matters of individual
privacy or to allow unlawful search or seizure of Oberg for
the purpose of acquiring incriminating evidence. Oberg was
informed that the test would be used for the purpose of an
internal investigation of a citizen's complaint. There is no
indication that the questions he would have been asked would
not have been related specifically and narrowly to the per-
formance of his official duties or that the results would
have been used against him in a subsequent criminal proceed-
ing. Under Garrity v. New Jersey (1967), 385 U.S. 493, 87
S.Ct. 616, 17 LI.Ed.2d 562; Gardner v. Broderick (1968), 392
U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082, 20 L.Ed.2d 1082;
and, Uniformed Sanitation Men Assn., Inc. v. Sanitation
Commissioner of the City of New York (1968), 392 U.S. 280, 88
S.Ct. 1917, 20 L.Ed.2d 1989, such result would not be
admissible.
To hold otherwise, reduces those who complain of police
brutality to the status of second-clzss citizens by withhold-
ing normal investigative tools from use against police
officers .
I would affirm.
%&
4 Chief Justice
.
I concur
/""
the foregoing dissent of the Ch' f Justice.