NO. 95-240
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
ALLEY,
Plaintiff and Appellant,
FLATHEAD VALLEY COMMUNITY COLLEGE, a
Community College organized by the
voters of Flathead County, Montana, on
April 7, 1967, according to the Com-
munity College Law of the 1965 Montana
Legislative Assembly; HOWARD L. FRYETT,
Individually and as President of Flathead
Valley Community College; DENNIS P. ADAMS,
Individually and as Dean of Educational
Services of Flathead Valley Community
College; LOWELL JAEGER, Individually and
as the Chairman of the Division of
Humanities of Flathead Valley Community
College; and DOES 1 through 5, inclusive,
Defendants and Respondents
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Katherine R. Curtis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
E. Eugene Atherton, E. Eugene Atherton, P.C.,
Kalispell, Montana
For Respondents:
Todd A. Hammer, Warden, Christiansen, Johnson &
Berg, Kalispell, Montana
Submitted on Briefs: August 31, 1995
Decided: September 29, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Frank Talley appeals from a summary judgment entered by the
Eleventh Judicial District Court, Flathead County, on his free
speech claim. We affirm.
The issue is whether the District Court erred in granting
defendants' motion for summary judgment on the free speech claim
and denying Talley's motion for summary judgment on the same claim.
From 1982 until 1989, Talley was employed under a series of
term contracts as a part-time philosophy and religious studies
instructor at Flathead Valley Community College (FVCC). During the
winter of 1989, FVCC cancelled Talley's religious studies class,
but later reinstated it. Talley's classes for spring quarter 1989
were cancelled. From that time forward, FVCC did not rehire
Talley.
Upon learning that his classes for spring 1989 had been
cancelled, Talley asserted his belief that he had a right to
continued employment. He communicated this belief to FVCC1s
president personally, to FVCC through letters from his attorney,
and to the FVCC Board of Trustees personally. Talley's attorney
wrote: " [I]f [Talley] is employed, it will tend to look as though
the college has followed through with its intent to continuously
employ my client."
FVCC responded by letter through its attorney that any claim
by Talley of a continuing right of employment was not supported
under the language of his employment contracts. FVCC's attorney
asked Talley to disavow his expectation of continued employment.
2
"In absence of such a disavowal and acknowledgement, I must advise
[FVCCI . . . not to employ Mr. Talley for the summer quarter and to
employ him very sparingly thereafter." FVCC's counsel cautioned
that Talley's expectation might otherwise ripen into a reasonable
expectation of continued employment.
In October 1989, Talley filed a complaint listing multiple
claims for relief relating to FVCC's failure to rehire him. The
District Court granted summary judgment to defendants on most of
Talley's claims. The court certified its judgment for interlocuto-
ry appeal pursuant to Rule 54(b), M.R.Civ.P. This Court affirmed.
Talley v. Flathead Valley Community College (1993), 259 Mont. 479,
857 P.2d 701. Talley's case then resumed in District Court on his
remaining claims, violation of his right to free speech and
slander.
Both Talley and the defendants moved for summary judgment on
the free speech claim. Talley maintained that FVCC conditioned his
continued employment at FVCC upon his abandonment of his position
that he had a right to continued employment, and, in so doing,
violated his right to free speech. The District Court ruled as a
matter of law that Talley's speech was not constitutionally
protected in this instance because it did not address a public
interest or concern but rather involved private, employment-related
issues. The court therefore granted defendants' motion for summary
judgment.
The case then went to trial on the remaining claim of slander
by defendant Lowell Jaeger. The jury returned a verdict for
Jaeger. Talley now appeals the summary judgment on his free speech
claim.
Did the District Court err in granting defendants' motion for
summary judgment on the free speech claim and denying Talley's
motion for summary judgment on the same claim?
This Court's standard of review of a summary judgment is the
same as the standard initially used by the district court and set
forth at Rule 56(c), M.R.Civ.P. This Court must determine whether
there is a genuine issue of material fact and whether the moving
party is entitled to judgment as a matter of law, based upon the
facts set forth in the pleadings and any depositions, answers to
interrogatories and requests for admissions, and affidavits filed.
Minnie v. City of Roundup (l993),257 Mont. 429, 431, 849 P.2d 212,
214.
In this case, Talley's cross-motion for summary judgment
demonstrates that there are no issues of material fact. The
question is whether, based upon the record, FVCC was entitled to
judgment as a matter of law.
The First Amendment protects speech of public employees upon
matters of public concern. This furthers the purpose of the First
Amendment "to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the
people." Connick v. Myers (1983), 461 U.S. 138, 145, 75 L.Ed.2d
708, 718, 103 S.Ct. 1684, 1689 (citation omitted).
However, except in "the most unusual circumstances," the First
Amendment does not provide immunity for speech concerning matters
only of personal interest to the public employee. Connick, 461
U.S. at 147. This assures government employees the same rights as
those who do not work for the government. Whether an employee's
speech addresses a matter of public concern must be determined by
the content, form, and context of a given statement, as revealed by
the whole record. Connick, 461 U.S. at 147-48. The inquiry into
the protected status of speech is one of law, not fact. Connick,
461 U.S. at 148, n. 7.
Although "most unusual circumstances" were not defined in
Connick, Talley argues that such circumstances are present here.
He asserts that the elimination of his classes at FVCC was a matter
of public concern; that he spoke out publicly as well as privately
about it; and that after his last contract with FVCC expired, he
was an ordinary public citizen and his c r r l r t about FVCC were no
onreis
longer subject to the threshold inquiry from Connick.
Talley submitted to the court copies of letters between FVCC's
attorney and his attorney, and defendant Howard Fryett's responses
to interrogatories and requests for admissions. He submitted his
own affidavit, in which he recounted his "quest for due process."
He also submitted a copy of an April 1989 article from the local
newspaper, describing an FVCC board meeting. The headlined result
of the meeting was an increase in tuition fees. The article
included a paragraph stating that Talley had appeared before the
board to protest the elimination of his classes and to threaten a
lawsuit.
Talley cites as comparable to this case Trotman v. Board of
Trustees of Lincoln University (3rd Cir. 1980), 635 F.2d 216, in
which James Trotman successfully sued Lincoln University for
failing to renew his teaching contract. Trotman was decided prior
to Connick, and the Connick distinction between matters of public
concern and matters of private concern was not addressed therein.
The Trotrnan opinion does, however, allude to the widespread nature
of the dispute between teachers and the administration of Lincoln
University. Trotman, 635 F.2d at 219.
The Fifth Circuit Court of Appeals has ruled that grievances
or complaints about the subject of class scheduling are not a
matter of public concern, but are instead personal or private
employment-relatedgrievances not withinconstitutionally-protected
"free speech" claims under the First Amendment. See Dorsett v. Bd.
of Tr. for St. Colleges & Univ. (5th Cir. 1991), 940 F.2d 121. In
Dorsett, a tenured associate math professor brought a 42 U.S.C. 5
1983 civil rights claim against university officials for alleged
harassment and violation of First Amendment rights. The professor
alleged that he had been denied summer employment by the adminis-
tration in retaliation for publicly supporting another professor
who refused to lower academic standards. He alleged that his
exercise of free speech on matters of public education caused the
retaliation. The court disagreed
Communication . . . rises to the level of public concern
if a person speaks primarily as a citizen rather than as
6
an employee. We must assess, therefore, Dorsett's
motivation in complaining to the administration. After
reviewing the summary judgment evidence, we conclude that
Dorsett's complaints at the time of the alleged harass-
ment reflected predominantly his concerns about the
assignment of summer and overload classes to himself and
to his friends in the department. These concerns are
matters of private, not public, interest.
Dorsett, 940 F.2d at 124 (citations omitted)
In the present case, the record does not establish that FVCC1s
failure to rehire Talley was a matter of public debate or interest
in the community at large. The record, however, does establish
that Talley's primary motivation for his statements was his desire
for more teaching contracts for himself. We conclude that Trotman
is not persuasive authority for Talley's position in this case. We
further conclude that Talley has not demonstrated "most unusual
circumstances" justifying an exception from the general rule set
forth in Connick and applied in Dorsett.
Talley also makes an argument concerning interference with his
freedom of thought. However, it was Talley's statements, not his
thoughts, which FVCC asked him to disavow.
Finally, Talley points out that the District Court did not
grant summary judgment on the free speech claim prior to the first
appeal, and that in its opinion on LhaL appeal, Lhis Court wrote:
We conclude that the only constitutional claim which has
merit under the pleadings is the claim of denial of free
speech according to the First Amendment to the United
States Constitution and the attendant 5 1983 claim.
Tallev, 857 P.2d at 708. He argues that this represented a ruling
that his free speech claim must be allowed to proceed to trial.
The District Court's failure to grant summary judgment on the
free speech claim was not an issue before this Court in the first
appeal. In that opinion, we further stated: "No summary judgment
being issued, [the free speech] claim is still alive." Tallev, 857
P.2d at 708. The language cited by Talley was not a ruling on the
merits of the free speech claim; it was merely dicta.
In the current appeal, in contrast, the propriety of summary
judgment on the free speech claim is the issue before this Court.
We have now reviewed the summary judgment, and we hold that entry
of summary judgment for defendants on the free speech claim was
correct.
Af firmed
Chief Justice
We concur:
Justice William E. Runt, Sr., respectfully dissents:
I do not agree with the conclusion of the majority that the
language of our opinion in Tallev, 857 P.2d at 708, is dicta, when
this court wrote:
We conclude that the only constitutional claim which has
merit under the pleadings is the claim of denial of free
speech according to the First Amendment to the United
States Constitution and the attendant 1983 claim.
Tallev, 857 P.2d at 708. Our conclusion was a ruling on the merits
of the free speech claim. I would reverse the summary judgment by
the District Court and allow the matter to go to trial.
i
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1
Justice