Conboy v. State

No. 84-194

I N THE SUPREME COURT OF THE STATE O F b!ONTANA

1984

RICHARD T . CONBOY,

P l a i n t i f f and A p p e l l a n t ,

THE STATE OF MONTANA,
and ETHEL HARRISON, C l e r k
of t h e S u p r e m e C o u r t of t h e
S t a t e of M o n t a n a ,

D e f e n d a n t s and R e s p o n d e n t s .

APPEAL FROM: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of L e w i s & C l a r k ,
T h e H o n o r a b l e H e n r y L o b l e , Judge p r e s i d i n g .

COUNSEL OF RECORD:

For Appellant:

G a r r i t y , R e e g a n & Brown; D o n a l d G a r r i t y argued,
Eielena, M o n t a n a

F o r Respondent:

Luxan & M u r f i t t ; P a t r i c k Melby a r g u e d , X e l e n a ,
Montana

F o r Amicus C u r i a e :

Jack H o l s t r o m , D e p t . of H i g h w a y s , H e l e n a , M o n t a n a
John L . H o l l o w f o r R o d n e y N i c k , H e l e n a , M o n t a n a
R o y A n d e s , A g e n c y L e g a l Services B u r e a u , H e l e n a ,
Montana

Submitted: October 23, 1984

Decided: January 4 , 1 9 8 5

Filed: .jai\t t i - 198%

-
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiff, Richard T. Conboy, appeals from two orders
of the Lewis & Clark County District Court granting partial
summary judgment in favor of defendants cn plaintiff's
complaint for unlawful discharge and violation of the
veterans' preference. We affirm the District Court.
The issues on appeal are:
(1) Were plaintiff's constitutional or statutory rights
violated by his removal from the Office of Deputy Clerk of
the Supreme Court or b~7 the Clerk of Court's failure to
appoint him to that position?
(2) Does plaintiff have a claim of veteran's preference
to the Office of Deputy Clerk of the Supreme Court?
Richard Conboy served in the capacity of Deputy Clerk of
the Supreme Court of Montana from January 1, 1963, until
January 3, 1983, during which time Thomas J. Kearney served
as the Clerk of Court. Conboy ran in the general election of
1982 against Ethel Harrison for the Office of Clerk of Court
and was defeated. Clerk-elect Harrison appointed Phyllis
Neild as Deputy Clerk and both commenced their terms of
office on January 3, 1983.
Following the general election, Clerk-elect Harrison had
notified Conboy that she intended to exercise her right to
appoint the deputy clerk and that, effective January 3, 1983,
Conboy's services would no longer be required. Conboy
informed Harrison by letter dated December 20, 1982, that his
official job description was court attendant and that his
employment could not be summarily terminated. On January 3,
1983, Harrison issued an order removing Conboy's name from
the Clerk of Court's payroll.
Following the November genera1 election but prior to
January 3, 1983, Clerk-elect Harrison initially offered to
appoint a woman who had been recommended by a mutual friend
for the Office of Deputy Clerk. The would-be appointee
declined the appointment. Harrison then offered to appoint
Phyllis Neild as the Deputy Clerk. Ms. Neild had worked in
the Office of the Clerk of the Supreme Court for some time
and Mrs. Harrison knew her prior to the 1987. election. Ms.
Neild accepted the appointment as Deputy Clerk of the Supreme
Court. The record does not indicate exactly when these
offers of appointment were made, nor does it show whether
Cl-erk-elect Harrison appointed Phyllis Neild Deputy Clerk
prior to receiving Mr. Conboy's letter of December 20, 1982.
On April 15, 1983, Conboy filed suit against Ethel
Harrison and the State of Montana claiming that he had been
an employee of the Office of the Clerk of the Supreme Court
for more than twenty years, that he had been unlawfully
discharged based on his political beliefs, age and sex, and
that his discharge violated his employment rights as a
veteran. The District Court permitted plaintiff to file two
amended complaints. All three complaints were unverified.
Defendants filed a motion for summary judgment on both
the unlawful discharge and veteran's preference causes of
action, asserting that there was no genuine issue as to any
material fact and that defendants were entitled to judgment
as a matter of law. Conboy testified as the only witness at
the hearing on defendants' motion for summary judgment. No
affidavits, admissions, answer to interrogatories or
depositions were filed by plaintiff in opposition to defen-
dants' motion. Since the compl-aint and amended complaints
were unverified, Conboy's testimony and the exhibits admitted
at the hearing constituted all of the evidence in behalf of
Conboy before the court at the time it ruled on the motion.
 Conboy testified that he had considered himself to be
the Deputy Clerk of the Supreme Court, that he signed court
documents in that capacity, that he had listed his occupation
as Deputy Clerk and published campaign literature holding
himself out to be the Deputy Clerk, and that he had the
general reputation among the public of being the Deputy Clerlc
of the Supreme Court.
Conboy also testified that it was his understanding that
he was initially hired as a court attendant and that his
employment was subject to approval by the Chief: Justice of
the Supreme Court. However, neither the Court nor any of the
justices is named as a party in this action.
All of the parties concede that Conboy was not appointed
in writing to the Office of Deputy Clerk, pursuant to
S 2-16-205, MCA. The parties also concede that Conboy did
not subscribe, take or file an oath of office as required by
§ 3-2-406, MCA.
The District Court granted partial summary judgment in
favor of defendants on the unlawful discharge count of plain-
tiff's complaint and required a.dditiona1 briefing on the
veteran's preference cause of action. The District Court
later gra.nted partial summary judgment on the second issue
and dismissed plaintiff's complaint.
The District Court held that plaintiff's failure to file
an oath of office, as required by law, invalidated his
alleged appointment as Deputy Clerk and that that office
became vacant upon plaintiff's failure to file within the
statutory time for filing. Although Conboy functioned in the
capacity of Deputy Clerk for nearly 20 years, the Court held
he did so absent a valid appointment a.nd was therefore a de
facto public officer. The court reasoned therefore that
defendant Harrison had the right, at any time, to fill the
vacancy that existed in the Office of Deputy Clerk since the
Clerk of Court's appointment power is plenary under the
statutes. The District Court concluded that plaintiff's
constitutional rights were not violated nor was he illegally
discriminated against.
The District Court further concluded that the Montana
Legislature's repeal of the old veterans' preference statutes
and termination of claims pending under those statutes was
valid. The court reasoned that the statut.ory veterans'
preference was a gratuity repealable at any time, that
plaintiff had no vested right to any preference, and that
Art. 11, sec. 18, Mont. Const. , which requires a two-thirds
vote of the legislature for a waiver of sovereign immunity,
.
did not apply to the legislative repeal of the old preference
law. The District Court concluded that plaintiff was
entitled to no relief whatsoever and dismissed the complaint
with prejudice.

Before we address the specific issues, it is necessary
to analyze the nature of the Office of Deputy Clerk and the
nature of the office which plaintiff contends he held during
past years.
The parties agree that the Office of Deputy Clerk is a
public office held by appointment of and at the pleasure of
the Clerk of the Supreme Court, who is elected by the people
of Montana. Section 3-2-406, MCA provides:
"The clerk of the supreme court shall appoint a
deputy who, in the absence of the principal or in
the case of vacancy in his office, shall perform
all the duties of office until such disability be
removed or vacancy be filled. Such deputy shall
subscribe, take, and file the oath of office pro-
vided by law for other state officers before enter-
ing upon the performance of his duties."
The term of office of the Clerk of Court is six years.

S e c t i o n 3-2-401, MCA. The t e r m o f o f f i c e o f t h e Deputy C l e r k

i s n o t f i x e d by law. "Every o f f i c e o f which t h e d u r a t i o n i s

n o t f i x e d by law i s h e l d a t t h e p l e a s u r e o f t h e a p p o i n t i n g

power." S e c t i o n 2-16-21 3 (1), MCA. Therefore, t h e Office of

Deputy C l e r k o f t h e Supreme Court i s h e l d a t t h e p l e a s u r e o f

t h e C l e r k o f t h e Supreme C o u r t .

The parties agree that plaintiff was not appointed

Deputy C l e r k i n w r i t i n g a s r e q u i r e d by § 2-16-301 ( 3 ) , MCA.

They a l s o a g r e e t h a t p l a i n t i f f did not subscribe, t a k e and

f i l e t h e o a t h o f o f f i c e a s r e q u i r e d by § 3-2-406, MCA.

From J a n u a r y 31, 1963 u n t i l J a n u a r y 3 , 1983, t h e O f f i c e

of Deputy C l e r k was i n f a c t v a c a n t under S 2-16-501 ( 9 ) , MCA.

That s e c t i o n p r o v i d e s t h a t an o f f i c e becomes v a c a n t upon t h e

incumbent's refusal or neglect to file an official oath

within the time prescribed. We therefore conclude that

p l a i n t i f f was n o t t h e d e j u r e , o r l a w f u l l y a p p o i n t e d Deputy

C l e r k o f t h e Supreme C o u r t . A t most, h e was a d e f a c t o o r

a c t i n g Deputy C l e r k d u r i n g t h e p e r i o d o f a p p r o x i m a t e l y t w e n t y

y e a r s i n which h e a c t e d a s Deputy C l e r k .

The g e n e r a l r u l e w i t h r e g a r d t o t h e r i g h t o f removal o f

an o f f i c e r whose t e r m o f o f f i c e i s n o t d e f i n i t e i.s s t a t e d i n

State - Sullivan
v. ( 1 9 3 5 ) , 98 Mont. 425, 438, 4 0 P.2d 995,

998:

"Where p r o v i s i o n i s made f o r t h e appointment o f an
o f f i c e r , b u t no d e f i n i t e t e r m i s p r e s c r i b e d , t h e
a p p o i n t i n g power may remove t h e a p p o i n t e e a t w i l l ,
w i t h o u t n o t i c e o r o p p o r t u n i t y t o be h e a r d . "

I n view of that holding and of 5 2-16-213(1), MCA, which

d e f i n e s t h e t e r m o f t h e o f f i c e o f Deputy C l e r k t o b e " a t t h e

p l e a s u r e o f t h e a p p o i n t i n g power," t h e C l e r k of C o u r t may be

c l a s s e d a s having t h e r i g h t t o remove t h e a p p o i n t e e a t w i l l ,

w i t h o u t n o t i c e o r o p p o r t u n i t y t o be h e a r d . However, we need
n o t s p e c i f i c a l l y r u l e on t h a t p o i n t . S i n c e we c o n c l u d e t h a t

plaintiff did not hold public office under a valid

appointment, his removal from a public office is not a

question before us.

Upon t h e f a c t s o f t h i s c a s e , t h e D i s t r i c t C o u r t c o r r e c t -

l y concluded t h a t t h e O f f i c e o f Deputy C l e r k o f t h e Supreme

Court remained l e g a l l y v a c a n t from t h e e x p i r a t i o n o f t h e t i m e

w i t h i n which p l a i n t i f f was r e q u i r e d t o f i l e an o a t h o f o f f i c e

i n 1963, when h e began s e r v i n g a s t h e d e f a c t o Deputy C l e r k ,

u n t i l 1983 when a d e j u r e Deputy C l e r k was v a l i d l y a p p o i n t e d .

With r e g a r d t o t h e vacancy i n o f f i c e , S t a t e v . S t a f f o r d

( 1 9 3 5 ) , 99 Mont. 8 8 , 93, 43 P.2d 636, 638-39, states:

"Any o f f i c e becomes v a c a n t on t h e happening o f
e i t h e r o f t h e e v e n t s enumerated i n s e c t i o n 511 o f
t h e Revised Codes o f 1921 [now 2-16-501, MCA], t h e
n i n t h o f which i s when t h e p e r s o n e l e c t e d o r ap-
pointed t o t h e o f f i c e refuses o r neglects t o f i l e
h i s o f f i c i a l o a t h o r bond w i t h i n t h e t i m e p r e -
scribed. Such a vacancy must be f i l l e d by t h e
o f f i c i a l a u t h o r i z e d t o do s o , a s soon a-s it o c c u r s ,
a s t h e a p p o i n t i n g power i s p l e n a r y . "

W t h e r e f o r e h o l d t h a t upon t h e f a i l u r e o f t h e p l a i n t i f f
e

t o f i l e an oath of office in 1963, h i s t e r m o f office as

Deputy C l e r k t e r m i n a t e d bl7 s t a t u t e , and t h e C l e r k o f C o u r t

c o u l d a t any t i m e f i l l t h e vacancy by appointment o f a d e

jure officer.

Were plaintiff's constitutional- or statutory rights

v i o l a t e d by h i s removal from t h e O f f i c e o f Deputy C l e r k o f

t h e Supreme C o u r t o r by t h e f a i l u r e o f t h e C l e r k o f C o u r t t o

a p p o i n t him t o t h a t p o s i t i o n ?

Plaintiff contends that his employment could not be

t e r m i n a t e d b e c a u s e o f h i s p o l i t i c a l b e l i e f s , a g e o r sex, and

that it constituted unlawful discrimination for the same

r e a s o n s n o t t o r e a p p o i n t him a s Deputy C l e r k . He c o n t e n d s

t h a t f a i l u r e t o f i l e an oath of public o f f i c e did not place
him outside the protection of the state and federal
coi~stitutions and statutory prohibitions against employment
discrimination.
The only indication in the record that any discrimina-
tion might have occurred are the allegations in pla.intiffls
complaint. The deposition of Ethel Harrison, filed with the
District Court prior to defendants' motion for summary judg-
ment, contains sworn statements that Harrison "never even
considered him [Conboy] as wanting to stay. He was never in
my thinking." Conboy's testimony does not contradict this
statement, nor does it in a.ny manner support the al-legations
of discrimination contained in his complaint.
Rule 56 (e), M. R. Civ. P. provides in part that:
".. . When a motion for summary judgment is made
and supported as provided in this rule, an adverse
party may not rest upon the mere allegations .. .
of his pleading, but his response, by affidavits or
as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine
issue for trial. If he does not so respond, summa-
ry judqment, if appropriate, shall be entered
against him."
In opposing defendants ' motion for summary judgment,
plaintiff made only one reference to his allegations of
discrimination by Clerk-elect Harrison. He testified as
follows:
"Q. Are you familiar with the allegation in para-
graph six [of the second amended complaint] that
the defenda.nts replaced plaintiff, you, with a
woman more than 10 years your junior? You familiar
with that allegation?
"A. Yes."
No evidence of discrimination was put forth in opposi-
tion to defendants' motion for summary judqment. Mrs. Harri-
son had indicated in her deposition prior to the hearing that
Mr. Conboy's political affiliation played no part in her
decision not to reappoint him and that she never considered
him in the first place. The record contains no evidence
tending to indicate that p3-aintiff's sex, age or political
beliefs may have been a basis for any discrimination by
Harrison.
Plaintiff could not rest on the mere allegations of
discrimination contained in his complaint. Rule 56 (e),

"Failure of the party opposing the motion to either
ra.ise or demonstrate the existence of a genuine
issue of material fact, or to demonstrate that the
legal issue should not be determined in favor of
the movant, is evidence that the party's burden was
not carried. Summary judgment is then proper, the
court being under no duty to anticipate proof to
establish a material and substantial issue of
fact." State ex rel. Burlington North., Inc. v.
District Ct. (1972), 153 Mont. 295, 300, 496 P.2d
1152, 1155.
In the absence of a factual. sh0win.g of discrimination,
we do not rule upon whether it may be unlawful for an elected
public officer to discriminate on the basis of sex, age or
political affiliation in the discharge or appointment of
deputy.
We affirm the summary judgment in favor of defendants on
the unlawful discharge count of plaintiff's complaint.

Does plaintiff have a claim of veteran's preference to
the Office of Deputy Clerk of the Supreme Court?
The second count of Conbov's amended complaint alleged
that he was entitled to the veterans' preference in employ-
ment. He further alleged that the Montana Legislature 's
repea.1 of certain sections of the Act was invalid. He
asserts that he was entitled to an absolute preference in
appointment based on the fact that Art. 11, sec. 18, Mont.
Const. requires a two-thirds vote of each house to exempt the
State from suit and that the Veterans' Preference Act
repealer failed to pass both houses by the requisite
two-thirds vote.
 The D i s t r i c t Court r u l e d t h a t t h e v e t e r a n s ' preference

was a gratuity, r e p e a l a b l e a t any t i m e , t h a t t h e preference

was n o t p r o p e r l y w i t h i n t h e p r o v i n c e o f Art. 11, s e c , 18,

Mont. Const., and t h a t t h e r e f o r e a two-thirds v o t e of the

l e g i s l a t u r e was n o t r e q u i r e d i n o r d e r t o r e p e a l t h e o l d law.

The history of the Veterans and Handicapped C i t i z e n s

Employment Preference Act, § 10-2-201, et seq., MCA, from

1921 until 1983 was r e c e n t l y s e t f o r t h i n J e n s e n v. State,

Dept. of Labor and Industry (Mont. 1 9 8 4 ) , 689 P.26 1231,

1235, 4 1 St.Rep. 1971, 1975-76. T h a t Act gave a n a b s o l u t e

preference in appointment and employment to veterans and

disabled civilians. C r a b t r e e v. Montana S t a t e L i b r a r y (Mont.

1 9 8 3 ) , 665 P.2d 231, 40 St.Rep. 963.

I n December 1983, t h e Montana L e g i s l a t u r e met i n s p e c i a l

session, repealed the old law and enacted a new V e t e r a n s

P r e f e r e n c e Act, which was s i g n e d i n t o law by t h e Governor and

became e f f e c t i v e on December 2 0 , 1983. S e c t i o n 1 4 o f t h e new

law s t a t e s t h a t S S 10-2-201 through 10-2-206, MCA a r e re-

p e a l e d and t h a t t h i s r e p e a l a p p l i e s r e t r o a c t i v e l y t o b a r any

c l a i m o f v i o l a t i o n o f t h o s e s e c t i o n s t h a t h a s n o t been re-

duced t o judgment by December 20, 1983. S. 2 , 4 8 t h Leg., 1st

Spec. S e s s . , 1983 Mont. Laws 1. P l a i n t i f f ' s claim of v i o l a -

t i o n o f t h e Act was reduced t o judgment a g a i n s t him on A p r i l

1 4 , 1984.

Plaintiff's letter of December 20, 1983 i s the only

communication o f r e c o r d by p l a i n t i f f t o defendant. In h i s

l e t t e r t o Clerk-elect Harrison, p l a i n t i f f d i d not claim t h e

v e t e r a n s ' p r e f e r e n c e n o r make any mention o f h i s s t a t u s a s a

veteran. As a result, t h e r e i s n o t h i n g i n t h e r e c o r d t o show

that. p l a i n t i f f claimed a preference at the t i m e that the

Deputy C l e r k was being selected. The first reference to

veterans' p r e f e r e n c e was i n p l a i n t i f f ' s c o m p l a i n t , f i l e d on
April 15, 1983. Nonetheless, the District Court ruled on the
question of plaintiff's entitlement to veterans1 preference
in appointment.
In substance, the District Court held that the veterans1
preference was a government gratuity which was repealable by
the legislature at any time by a. majority vote. We adopt the
analysis of veterans' preference rights in State ex rel.
Dolan v. Civil Service Bur. of St. Paul (Minn. 1972), 3-97
EJ.W.2d 711, 714, where the Minnesota Supreme Court stated:
"Veterans1 preference rights are not rights that
have been earned through years of service to the
state. They are a gratuity, given to the class of
persons to show the state's appreciation for ser-
vice in the Armed Forces of the United States, and
they do not amount to vested rights in the recipi-
ents.. .. Therefore, a veterans' preference right
can be adjusted when and as the 1-egislature sees
fit without violating any vested rights.'I
(Citations omitted)
We hold that the veterans' preference rights granted under
the repealed portion of the Veterans Preference Act are not
rights earned through years of service to the state, but are
a gratuity given to citizens of Montana by the State to show
its appreciation for service in the Armed Forces. They do
not amount to rights vested in the veterans.
We further point out. that in repealing the old veterans'
preference law, §§ 10-2-201 through 10-2-206, MCA, the legis-
lature was not faced with any statutory or constitutional
1-imitations on its rights of repeal. There is no provision
in that Act or in the Montana Constitution limiting the
legislature's right to repeal the preference. In addition,
5 1.-2-110, MCA, provides:
"Any statute may be repealed at any time except
when it is otherwise provided therein. Persons
acting under any statute are deemed to have acted
in contemplation of this power of repeal."
We conclude that the legislature properly could repeal the
veterans' preference by a majority vote at any time and that
veterans acting under the old law are deemed to have acted in
contemplation of that power of repeal on the part of the
legislature.
We hold that plaintiff did not have a claim of veterans'
pre5erence to appointment to the Office of Deputy Clerk of
the Supreme Court.

We affirm the dismissal of the plaintiff's complaint.

We concur:

34 dd,pawgo
Chief Justice

Justices

Mr. Justice Frank B. Morrison, Jr., specially concurring:
I concur in the result for the reason that the record
does not present a genuine issue of material fact.