No. 91-316
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
JOHN J. STUART and LEE J. TICKELL,
Plaintiffs and Appellants,
-vs-
DEPARTMENT OF SOCIAL AND
REHABILITATION SERVICES, a state
agency within the executive branch
of state government, and the
STATE OF MONTANA,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena,
Montana
For Respondents:
G. Curtis Drake; Keller, Reynolds, Drake, Sternhaqen
& Johnson, Helena, Montana
For Amicus Curiae:
Carter N. Picotte, Attorney at Law, Helena, Montana
(Montana Public Employees' Association)
Submitted on Briefs: March 26, 1992
Decided: January 29, 1993
Filed:
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
John Stuart and Lee Tickell appeal from the grant of summary
judgment to the Montana Department of Social and Rehabilitation
Services (SRS) by the First Judicial District Court, Lewis and
Clark County. We affirm.
The issues are:
1. Did SRS's refusal to pay appellants their accrued
vacation benefits violate the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution?
2. Did SRS's refusal to pay appellants their accrued
vacation benefits violate the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution?
3. Is 5 2-18-617(2), MCA, thestatuteuponwhichSRS relied
when it withheld appellants' accrued vacation benefits, either an
unconstitutional delegation of legislative authority to an
administrative agency or unconstitutionally vague?
In early 1989, SRS began an investigation of sexual misconduct
allegations lodged against Tickell. SRS concluded that improper
conduct had occurred and began formal disciplinary proceedings
against Tickell. Subsequently, the State investigated acts of
vandalism allegedly committed by both Stuart and Tickell against a
former SRS employee. This investigation led to the filing of
criminal mischief charges against Stuart and Tickell.
On July 21, 1989, SRS notified Stuart and Tickell by separate
letters that they would be terminated, effective July 31. Stuart's
letter explained that SRS was terminating him because of the
2
criminal investigation. Tickell's letter cited both the criminal
investigation and the earlier SRS sexual misconduct investigation
as the bases f o r his termination. Stuart and Tickell wrote to SRS
and requested their accrued vacation benefits and compensatory
time. SRS replied by letter, refusing to pay the accrued benefits.
Stuart and Tickell agreed to defer any challenge to the
termination itself until after the conclusion of the criminal
proceedings. On September 20, 1989, a jury found Stuart and
Tickell guilty of criminal mischief. The court sentenced them to
jail terms and monetary fines. Stuart and Tickell then waived any
future challenge to the termination of their employment but
preserved their claim to accrued vacation benefits and compensatory
time.
On October 6, 1989, Stuart and Tickell filed this action in
the District Court. They sought a declaratory judgment that SRS
was obligated to pay them accrued vacation benefits and
compensatory time. SRS subsequently moved for summary judgment,
arguing that the denial of accrued benefits was not subject to
judicial review because Stuart and Tickell had not exhausted their
administrative remedies. Stuart and Tickell filed a cross-motion
for summary judgment. The District Court granted summary judgment
for SRS on June 18, 1990. The court agreed with SRS1scontention
that the declaratory judgment action was premature because Stuart
and Tickell had not exhausted their administrative remedies.
Stuart and Tickell appealed.
We reversed and remanded in Stuart v. Dept. of Social & Rehab.
Sew. (1991), 247 Mont. 433, 807 P.2d 710 (Stuart I). Noting that
"the exhaustion doctrine is not applicable to constitutional
issues," we remanded for further consideration of Stuart's and
Tickell's constitutional claims. Stuart I, 807 P.2d at 713. On
remand, the parties and amicus curiae Montana Public Employees'
Association briefed and argued the constitutional issues. On June
13, 1991, the District Court again granted summary judgment for
SRS. Stuart and Tickell appealed.
I
Did SRSfs refusal to pay appellants their accrued vacation
benefits violate the Double Jeopardy Clause of the Fifth Amendment
to the United States Constitution?
The District Court concluded that appellants' constitutional
guarantee against double jeopardy was not violated when SRS refused
to "cash outu their accumulated vacation leave under 5 2-18-617,
MCA. We begin by considering the statutory context in which the
case arises.
Chapter 18 of Title 2 of the Montana Code Annotated is
entitled State Employee Classification, Compensation, and Benefits;
it expresses in statutory format the employment policy of the State
of Montana, as enacted by the Montana Legislature, which applies to
employees of the State. Part 6 thereof contains the provisions
relating to vacation leave which are relevant to the case before
us.
section 2-18-611, MCA, establishes the right of certain public
employees to earn annual vacation leave credits. Such vacation
leave credits are earned and accrued from the first day of
employment for employees entitled to earn them at all. Id. The
statute goes on to specify certain employees who are not entitled
to earn such credits and provides for nonaccrual of credits during
any leave-without-pay period. a. Finally, 5 2-18-611(1), MCA,
imposes a specific condition on when earned vacation credits can be
exercised; namely, an employee is not entitled to any vacation
leave with pay until she or he has been continuously employed for
a period of six months. This single statute makes it clear from
the outset that no absolute right to earn or exercise vacation
leave credits exists; any entitlement to earn or exercise vacation
leave credits is purely a matter of statute. Indeed, the
legislature further conditioned the exercise of vacation leave
benefits in 5 2-18-616, MCA, by providing that the dates when
vacation leave can be taken are to be determined by agreement
between the State and the employee.
The Montana legislature enacted additional statutory
provisions regarding vacation leave in 5 2-18-617, MCA, the statute
at issue here. Specifically, the legislature adopted a "use it or
lose itM approach to accumulating earned vacation leave; vacation
leave in excess of the amount the statute authorizes to be
accumulated is forfeited. a. Finally, the legislature granted
employees an entitlement to "cash out" accumulated vacation leave
at the time their service terminates under certain conditions:
first, that the employee has worked the qualifying period of time;
and second, that employment terminates for reasons "not reflecting
discreditw on the employee. a. Absent 5 2-18-617, MCA, no right
whatsoever would exist whereby employees could either accumulate
vacation leave or ''cash outu unused l e a v e on t e r m i n a t i o n of
employment. The legislature, having created these rights, elected
to condition them.
It is clear that appellantsg vacation leave credits were
earned and accrued over the p e r i o d of t h e i r service pursuant to the
statutory provisions and that they had worked the qualifying period
of time. They remained free to exercise their vacation credits
subject only to the statutory requirement that the dates be
agreeable to the employer. Appellants do not dispute, and have not
disputed throughout these lengthy proceedings, S R S t s determination
that their termination of employment was for reasons reflecting
discredit upon themselves. Thus, it i . also clear that appellants
s
do not meet the second precondition to entitlement to "cash out"
accumulated vacation leave imposed by 5 2-18-617, MCA: their
termination was not for reasons %ot reflecting discredittton
themselves. Having failed to satisfy the statutory prerequisite to
entitlement, we conclude that appellants were not entitled to
compensation for accumulated vacation leave.
Notwithstanding this failure, appellants assert that
application of S 2-18-617, MCA, violates their constitutional.
guarantee against double jeopardy. We disagree.
The Fifth Amendment to the United States Constitution provides
that no person shall be "subject for the same offense to be twice
put in jeopardy of life or limb. .. .I1 Double jeopardy protects
citizens from a second prosecution for the same offense after
acquittal; a second prosecution for the same offense after
conviction; and multiple punishments for the same offense. North
Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076,
23 L.Ed.2d 656, 664-65. The United States Supreme Court has held
that, under certain circumstances, civil as well as criminal
sanctions may constitute prohibited double punishment. United
States v. Halper (1989), 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d
487.
Relying on Hal~er,appellants contend that application of 5 2-
18-617, MCA, to prevent their "cash outw entitlement constitutes a
civil sanction or penalty and the sanction serves a punishment or
retribution goal rather than the remedial purpose of compensating
the State for its loss. Specifically, they argue that the
withholding of their accrued benefits is a civil sanction
constituting unconstitutional double punishment because they
already have been subjected to criminal sanctions in the criminal
mischief prosecution. It is this relationship between their
criminal convictions and SRS1s refusal to pay their accrued
vacation leave that appellants argue converts their failure to
satisfy a statutory precondition to cashing out vacation leave into
a violation of double jeopardy under Halper.
Halper falsified 65 ~edicareforms to obtain overpayment in
the total amount of $585. The government successfully prosecuted
Halper for fraud and he was sentenced to prison and fined. After
the conclusion of the criminal proceedings, the government
commenced an action for a statutory civil penalty under the False
Claims Act which--based solely on the $2,000 penalty per violation
imposed by the Act--would have amounted to $130,000 in addition to
the previous criminal sentence of imprisonment and fines, Halper,
490 U.S. at 437-38,
The specific issue before the Court in Halper was whether and
under what circumstances a civil penalty may constitute punishment
for purposes of the Double Jeopardy Clause. Id. at 446. It was
undisputed in Hal~erthat the government was seeking to enforce an
actual statutory civil sanction or penalty against a person already
subjected to criminal punishment for the same conduct. The
unanimous Court held that the double jeopardy clause prohibits
subjecting a defendant who has been punished in a criminal
prosecution "to an additional civil sanction to the extent that the
second sanction may not fairly be characterized as remedial, but
only as a deterrent or retribution.I1 - at 449.
Id.
Halaer is i n a p p o s i t e here. Unlike Kal~er,our analysis begins
with the question of whether a civil sanction existed here; that
is, whether 5 2-18-617(2), MCA, constitutes a civil sanction.
In Ral~er, the subsequent proceeding specifically was
undertaken to impose a statutory civil sanction. "Sanctionu is
defined by Websterfs Third New International Dictionary as " t h e
detriment, loss of reward, or other coercive intervention that is
annexed to a violation of a law as a means of enforcing the law. .
. . If The facts in Halaer clearly met this definition: the
"detrimentn1 Halper, in the guise of the subsequent remedy sought
to
by the government, was "annexed to a violationw of the False C l a i m s
Act as a means of enforcing that law. In other words, Kalperls
conduct violated two separate laws--one criminal and one civil--and
the government sought to enforce both in separate proceedings.
In the case before us, there is no subsequent proceeding
seeking an additional remedy. The detriment to appellants--lack of
entitlement to "cash outr1their vacation leave--was not annexed to
a violation of any law. Indeed, the 'ldetrimentl1was caused solely
by appellantsq failure to satisfy the statutory precondition that
employment terminate for reasons not reflecting discredit on
themselves. Failure to satisfy a condition does not equate to
violating a law and facing an additional enforcement proceeding.
We conclude that the refusal to compensate appellants for their
unused vacation leave did not constitute a civil sanction. For
that reason, Halper does not apply and w e need not address the
additional H a l p e r considerations.
We h o l d that the District Court did not err in concluding that
appellants1 constitutional guarantee against double jeopardy was
not violated.
I1
Did SRS's refusal to pay appellants their accrued vacation
benefits violate the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution?
Stuart and Tickell argue that because they are the only SRS
employees who have ever been refused accrued benefits upon
termination, the refusal by SRS to pay over their benefits
constitutes a violation of the Equal Protection Clause of the
United States Constitution. However, the Equal Protection Clause
is not violated solely because all similarly situated persons are
not treated identically. The injured party must also establish
t h a t the discrimination is based on 'Itanimpermissible ground such
as race, religion or exercise of . .. constitutional rights. ' I 1
United States v. Kidder (9th Cir. 1989), 869 F.2d 1328, 1336,
quoting United S t a t e s v. Moody ( 9 t h Cir. 19851, 7 7 8 F.2d 1380,
1386, amended on other qrounds, 791 F.2d 707 (9th Cir. 1986).
Stuart and Tickell assert that SRS based its decision to
withhold their benefits on an impermissible ground--their attempted
exercise of constitutional rights. They claim that SRS
discriminated against them because (1) they refused to plead guilty
to the criminal charges; and (2) they campaigned for gubernatorial
candidate Tom Judge.
I n considering whether the record reveals genuine issues of
material fact, the trial court is limited to pleadings,
depositions, answers to interrogatories, admissions, and
affidavits. Rule 56(c), M.R.Civ.P. We have reviewed these
portions of the District Court record and find no evidence to
support either of appellants1 assertions.
In Small v. McRae (1982), 200 Mont. 497, 522, 651 P.2d 982,
995, we noted that "it should be kept in mind that the bare
assertions found in appellant's briefs are not sufficient to defeat
a motion for summary judgment." Therefore, we conclude that the
District Court did not err in entering summary judgment dismissing
appellants' allegation that SRS1s conduct violated the Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution.
I11
Is § 2-18-617(2), MCA, the statute upon which SRS relied when
it withheld appellants' accrued vacation benefits, either
unconstitutionally vague or an unconstitutional delegation of
legislative authority to an administrative agency?
Section 2-18-617(2), MCA, pursuant to which appellants'
benefits were withheld, provides:
An employee who terminates his employment for reason
not reflectins discredit on himself shall be entitled
upon the date of such termination to cash compensation
for unused vacation leave, assuming that the employee has
worked the qualifying period set forth in 2-18-611.
[Emphasis added.]
Appellants contend that the phrase "reflecting discredit on
himselfn lacks specificity because it is susceptible to a number of
different interpretations. This asserted lack of specificity
provides the foundation for appellants1 alternative constitutional
attacks; namely, that the statute is unconstitutionally vague or
11
that it is an unconstitutional delegation of legislative power
without the necessary standards. We decline to address the merits
of these arguments in this case because we conclude that appellants
lack standing to assert them.
In Hoffman Estates v. Flipside, Hoffman Estates (1982), 455
U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362, the United States Supreme
Court considered the problem of third-party standing in an attack
on a local ordinance that purported to regulate "head shops."
Hoffman Estates had passed an ordinance that regulated the sale of
items "designed or marketed for use" with marijuana or other
illegal drugs. Hoffman Estates, 455 U.S. at 491, 102 S.Ct. at
1190, 71 L.Ed.2d at 367. The Flipside contended that the ordinance
violated the First Amendment freedom of speech clause and the
Fourteenth Amendment due process clause because the phrase
"designed and marketed for use" was both over-broad and vague.
Hoffman Estates, 455 U.S. at 493, 102 S.Ct. at 1191, 71 L.Ed.2d at
368.
The Court said:
In a facial challenge to the overbreadth and
vagueness of a law, a court's first task is to determine
whether the enactment reaches a substantial amount of
constitutionally protected conduct. If it does not, then
the overbreadth challenge must fail. The court should
then examine the facial vagueness challenge and, assuming
the enactment implicates no constitutionally protected
conduct, should uphold the challenge only if the
enactment is impermissibly vague in all of its
applications. A plaintiff who ensaqes in some conduct
that is clearly proscribed cannot complain of the
vasueness of the law as a~pliedto the conduct of others.
A court should therefore examine the complainant's
conduct before analyzing other hypothetical applications
of the law. [Emphasis added.]
Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. at 1191, 71 L.Ed.2d
at 369. The Court concluded that because The lip side sold at
least some of the items prohibited by the ordinance, the ordinance
was not vague as applied to The lip side. Hoffman Estates, 455
U.S. at 502, 102 S.Ct. at 1195, 71 L.Ed.2d at 374.
Stuart and Tickell lack standing under Hoffman Estates. With
respect to the facial vagueness analysis, Stuart and Tickell must
show that this statute is impermissibly vague as it applies to
them. They may not do so by showing that it is vague "as applied
to the conduct of others.It See Hoffman Estates, 455 U.S. at 495,
102 S.Ct. at 1191, 71 L.Ed.2d at 369. Appellants1 unconstitutional
delegation attack meets the same fate, premised as it is on lack of
specificity and definiteness. We have held on numerous occasions
that a person neither injured nor jeopardized by the operation of
a statute cannot challenge its constitutionality. See State v.
Kirkland (1979), 184 Mont. 229, 235, 602 P.2d 586, 590 (citing
cases).
Although it may be unclear what "reflecting discredit on
himselfn means in other circumstances, it is quite clear that in
this case the conduct for which Stuart and Tickell were c o n v i c t e d
reflected discredit upon them. At no point in this litigation have
they argued otherwise. This failure to allege and prove exactly
how they were unfairly swept into the operation of a possibly vague
statute precludes us from addressing this issue on its merits.
We note appellants1 assertion that we held in Stuart I that
they did have standing to raise these constitutional issues and,
therefore, that Stuart I is the law of the case with regard to
standing. Appellants' interpretation of Stuart I is erroneous.
In Stuart I, the district court determined that the failure of
Stuart and Tickell to exhaust their administrative remedies
precluded constitutional challenges to g 2-18-617, MCA. We
reversed, stating that they were not precluded from challenging the
statute's constitutionality nsolely on the basis that they failed
to exhaust their administrative remedies." Stuart I, 807 P.2d at
713 (emphasis added). We neither addressed nor determined the
standing issue.
Affirmed.
Chief Justice
Justice Terry N. Trieweiler dissenting.
I concur with the majority's disposition of Issues I1 and 111.
I dissent from the majority's resolution of Issue I.
No matter how bad a person's conduct, the United States
Constitution provides that he or she can only be punished once for
the same crime. In this case, plaintiffs were punished in the
criminal justice system for their crime, and then punished a second
time when t h e y were denied their accrued benefits based on the
exact same conduct.
Even though the majority tries to finesse this issue by
constructing a Mconditional benefit*, the fact is that plaintiffs
had benefits coming to them which they would have received were it
not for their misconduct. To categorize the denial of their
benefits as anything other than a penalty is a weak effort to exalt
form over substance.
In United States v. Nai'per (1989), 490 U. S . 435, 109 S . Ct. 1892, 104
L.Ed.2d 487, ~ustice Blaclunun, writing for a unanimous Supreme
Court, concluded that the government's $130,000 civil recovery was
disproportionate to its actual damages and said that:
We therefore hold that under the Double Jeopardy Clause
a defendant who already has been punished in a criminal
prosecution may not be subjected to an additional civil
sanction to the extent that the second sanction may not
fairly be characterized as remedial, but o n l y as a
deterrent or retribution.
. . . Where a defendant previously has sustained a
criminal penalty and the civil penalty sought in the
subsequent proceeding bears no rational relation to the
goal of compensating the government for its loss, but
rather appears to qualify as "punishmentH in the plain
meaning of the word, then the defendant is entitled to an
accounting of the Government's damages and costs to
determine if the penalty sought in fact constitutes a
second punishment.
The District Court did not address this issue because it
concluded that the right to receive accrued benefits is merely
conditional and the denial of that right is, therefore, not a
sanction, The majority , by discussing preconditions to ggcashing
outgiaccumulated vacation benefits, adopts the District Court's
line of reasoning. I disagree.
Under § 2-18-611 (1), MCA, the employee begins earning vacation
credits on the first day of employment. 1 agree with the
California Supreme Court that the right to Wacation [benefits]
'vests as the labor is rendered. S a t z v. Plastic Dress-Up Co. (Cal
use .
l982), 647 P.2d 122, 128.
In Suastez, the plaintiff sought recovery of vacation benefits
under a California statute that prohibited employers from providing
for the forfeiture of Vestedg1
vacation time. It was the company's
policy that vacation pay did not vest until the anniversary of the
employee1s employment. After surveying case law from several
jurisdictions, the California court concluded that vacation pay is
a form of Itdeferred compensation," Suastez, 647 P.2d at 125. It
then compared vacation pay to pension benefits and held that some
of the rights to the benefits vest at the same time as the labor is
rendered, even though the full bundle of rights is not available
until later and mav be subject to forfeiture. Suastez, 647 P.2d at
125-126. Forfeiture prevents the accrual of the whole bundle of
rights, but it does not prevent at least some of the rights from
vesting at the time the employee performs services for the
employer. Suastez, 647 P.2d at 126.
Thus, the denial of accrued vacation benefits in this case is
a denial of Stuart and Tickell's vested rights. Benefits which
began to accrue on the day they began work were taken from them
based on the fact that they were terminated for misconduct. This
is clearly a *'sanctionw and because it occurred after the
imposition of criminal sanctions, it requires analysis under Halper.
Halper requires a determination of whether "the civil penalty sought
in the subsequent proceeding bears [a] rational relation to the
goal of compensating the government for its loss." Halper, 490 U.S.
at 449.
Here the District Court made no such determination. The
record is devoid of any evidence that SRS sustained any loss
because of its employees1 conduct, and if so, how the value of that
loss compares to the value of the benefits that were forfeited.
Accordingly, I would reverse the summary judgment entered by the
District Court and remand this case for a determination by the
District Court of SRS's damages and whether the denial of all of
plaintiffs1 accrued vacation benefits "bears [a] rational relation"
to those damages.
For these reasons I dissent from the majority opinion.
Justice William E. Hunt, Sr.:
I concur in the dissent of Justice Trieweiler.