February 26 2008
DA 07-0049
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 67
DOUGLAS L. BEAN, TERRY L. BOULE, DOUGLAS J. CASSON, LOUIS E.
COSTANTINO, JAMES A. DIXON, BRIAN W. DUVE, TONY L. EHNES,
GLENN G. GASVODA, ERICK C. GILBERT, CURT K. GRAVES, BRIAN G.
KNOWLES, DAVID M. LEE, JOSEPH M. MCKAMEY, DOUGLAS E.
MAHONEY, DAVID W. PATCH, BILLY C. PLUNKETT, ROBERT L.
RUTHERFORD, EZRA D. SCHEI, RICHARD A. SCHMIDT, JERRY L.
SCHULTZ, RICK R. SILVA, DARNELL A. STUCKER, JACKIE L. WILLIARD,
JR., RAYMON A. YODER, and ANTHONY K. HERING, SR.,
Plaintiffs and Appellees,
v.
STATE OF MONTANA, and the MONTANA PUBLIC EMPLOYEE
RETIREMENT ADMINISTRATION,
Defendants and Appellants.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADV 2004-707
Honorable Dorothy McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Hon. Mike McGrath, Attorney General; Jon Ellingson, Assistant Attorney
General, Helena, Montana
For Appellees:
Baldwin Robertson and Kurt Rumsfeld, Woodley & McGillivary,
Washington, D.C.
Timothy J. McKittrick, McKittrick Law Firm, Great Falls, Montana
Submitted on Briefs: January 16, 2008
Decided: February 26, 2008
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 The State of Montana and the Montana Public Employee Retirement Administration
(collectively State) appeal from two orders of the First Judicial District Court, Lewis and
Clark County, concluding that § 19-13-210(2), MCA, violates the equal protection rights of
Douglas L. Bean, et al. (Bean) under the Montana Constitution and awarding attorney fees
and costs to Bean. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Senator Jon Tester introduced Senate Bill 289 (SB 289) at the 2001 Montana
Legislative Session. Mont. Sen. 289, 57th Leg., Reg. Sess. (Jan. 22, 2001). SB 289
proposed amendments to § 19-13-210, MCA. The bill provided for the transfer of the
firefighters employed by the Montana Air National Guard (Guard) from the Public
Employees Retirement System (Public System) into the Firefighters’ Unified Retirement
System (Firefighters’ System).
¶3 SB 289 came before the Senate State Administration Committee on January 29, 2001.
Senator Tester testified that Guard firefighters participated in the Public System. Senator
Tester explained that the Guard firefighters sought membership in the Firefighters’ System
because it provides benefits specifically geared towards firefighters. Senator Tester stated
that SB 289 automatically enrolled Guard firefighters hired on or after October 1, 2001, into
the Firefighters’ System. The original version of SB 289 that Senator Tester had introduced
also included a provision that gave Guard firefighters hired before October 1, 2001, the
option of transferring from the Public System into the Firefighters’ System.
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¶4 Roger Hagan (Hagan), representing the Great Falls Airport Firefighters Association,
also testified before the Senate Finance and Claims Committee. Hagan asserted that SB 289
corrected a “longstanding inequity” between Guard firefighters and other firefighters in the
state of Montana. Hagan testified that Guard firefighters had to participate in the Public
System while firefighters of first and second class cities in Montana obtained superior
benefits through the Firefighters’ System.
¶5 Hagan testified that Guard firefighters constituted federal employees before 1975.
They participated in a retirement system specific to firefighters under the Federal Civil
Service Program. Hagan explained that Guard firefighters became state employees in 1975.
Guard firefighters joined the Public System when they became state employees. Hagan
testified that Guard firefighters would remain ineligible for the special benefits available
under the Firefighters’ System in Montana unless the legislature enacted SB 289.
¶6 The original version of SB 289 included a fiscal note that projected general fund
expenditures of $200,967 for fiscal year 2002 and $313,508 for fiscal year 2003. SB 289
underwent revisions during the 2001 Legislative Session. An initial amendment to SB 289
delayed the transfer option for existing Guard firefighters from the Public System into the
Firefighters’ System until April 1, 2003. The delayed transfer option for existing Guard
firefighters reduced the general fund expenditures. The fiscal note attached to the amended
bill projected general fund expenditures of $6,300 for fiscal year 2002 and $89,060 for fiscal
year 2003.
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¶7 The final version of SB 289 provided that only those firefighters hired by the Guard
on or after October 1, 2001, would participate in the Firefighters’ System. Firefighters
employed by the Guard before October 1, 2001, would remain in the Public System. The
fiscal note for this version of the bill, which assumed one new hire each year, projected
general fund costs of $6,522 for fiscal year 2002 and $18,171 for fiscal year 2003. Senator
Tester brought this final version of SB 289 before the House State Administration
Committee on March 28, 2001. Proponents of the bill testified that the amended version
constituted a start toward enrolling the Guard firefighters in the Firefighters’ System. The
Legislature passed the final amended version of SB 289 and the Governor signed it into law.
2001 Mont. Laws 1382. The final amended version of SB 289 denied approximately
twenty-two existing Guard firefighters the option of transferring into the Firefighters’
System.
¶8 Bean filed an action in District Court on September 24, 2004, alleging that § 19-13-
210(2), MCA, violated certain Guard firefighters’ right to equal protection under the
Montana Constitution. Bean and the State filed cross-motions for summary judgment. The
District Court granted summary judgment in favor of Bean, declaring unconstitutional § 19-
13-210(2), MCA. The District Court awarded costs and attorney fees to Bean. The State
appeals.
STANDARD OF REVIEW
¶9 We review de novo a grant of summary judgment using the same criteria applied by
the district court. Farrier v. Teacher’s Retirement Bd., 2005 MT 229, ¶ 10, 328 Mont. 375,
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¶ 10, 120 P.3d 390, ¶ 10. We limit our review to questions of law where the material facts
remain uncontroverted. Farrier, ¶ 10.
DISCUSSION
¶10 Bean asserts that § 19-13-210(2), MCA, violates his right to equal protection under
the Montana Constitution by providing superior retirement benefits for newly hired Guard
firefighters while denying those superior retirement benefits for existing Guard firefighters.
Bean argues that, but for the date of hire, Guard firefighters hired on or after October 1,
2001, and firefighters hired before that date constitute similarly situated classes. Bean
argues that no legitimate governmental purpose exists for providing differing benefits to
these similarly situated firefighters.
¶11 Article II, Section 4, of the Montana Constitution ensures that “[n]o person shall be
denied the equal protection of the laws.” Article II, Section 4, like the Fourteenth
Amendment of the United States Constitution, requires the law to treat similarly situated
individuals in a similar manner. Farrier, ¶ 14. Indeed, Montana’s Constitution provides
even more individual protection than that of the Equal Protection Clause set forth in the
United States Constitution. Farrier, ¶ 14.
¶12 We start with the presumption that all legislative enactments comply with Montana’s
Constitution. Powell v. State Compensation Ins. Fund, 2000 MT 321, ¶ 13, 302 Mont. 518,
¶ 13, 15 P.3d 877, ¶ 13. The party challenging a statute bears the burden of establishing the
statute’s unconstitutionality beyond a reasonable doubt. Farrier, ¶ 13. We construe statutes
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narrowly to avoid a finding of unconstitutionality, and we resolve any questions of
constitutionality in favor of the statute. Farrier, ¶ 13.
¶13 We first must identify the classes involved when analyzing an equal protection
challenge. Farrier, ¶ 15. A statute does not violate the right to equal protection simply
because it benefits a particular class. Farrier, ¶ 15. A statute may impose different
treatment upon differing groups or classes of people. Powell, ¶ 22. An equal protection
challenge fails if the groups at issue do not constitute similarly situated classes. Powell,
¶ 22.
¶14 The District Court found that § 19-13-210(2), MCA, differentiated between two
similarly situated classes of employees. The court noted that Guard firefighters hired on or
after October 1, 2001, performed the same duties, faced the same job hazards, and worked in
the same positions as Guard firefighters hired before that date. The District Court, citing our
decision in Gulbrandson v. Carey, 272 Mont. 494, 901 P.2d 573 (1995), found that the date
contained in the statute created two classes of employees. The court determined that the
statute’s cut-off date did not render dissimilar the two groups of firefighters.
¶15 The Court faced the question in Gulbrandson of whether a statute violated the right to
equal protection when it provided superior retirement benefits to judges retiring after a date
established by statute. Gulbrandson, 272 Mont. at 502, 901 P.2d at 578. Gulbrandson
challenged the statute that provided greater retirement benefits to judges who retired after
July 1, 1991. Gulbrandson, 272 Mont. at 497, 901 P.2d at 575. The Court determined in
Gulbrandson that a rational relationship existed between the cut-off date in the statute and
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the legitimate government interest of encouraging extended judicial service. Gulbrandson,
272 Mont. at 504-05, 901 P.2d at 580.
¶16 The Court examined the statute at issue in Gulbrandson under the rational relationship
test that we employ in our equal protection analysis. Gulbrandson, 272 Mont. at 503, 901
P.2d at 579. The Court determined that no equal protection violation existed in light of the
statute’s classifications. Gulbrandson, 272 Mont. at 504, 901 P.2d at 579-80. The Court
recognized that the cut-off retirement date set by the statute functioned “not unlike most
legislation which, by its very nature, contains or produces classifications regarding benefits,
applicability and the like by virtue of a change in statute at a particular point in time.”
Gulbrandson, 272 Mont. at 504, 901 P.2d at 579-80. The Court also noted that the statute
operated equally upon those within each class: the statute denied the benefit increase equally
for all judges retiring before the statutory deadline, while it increased benefits equally for all
judges retiring after the deadline. Gulbrandson, 272 Mont. at 504, 901 P.2d at 580.
¶17 Section 19-13-210(2), MCA, restructured the retirement system for Guard firefighters
by creating one class of firefighters hired on or after October 1, 2001, and one class
consisting of all Guard firefighters hired before that date. Like the cut-off date that the Court
examined in Gulbrandson, the date set forth in § 19-13-210(2), MCA, created two dissimilar
classes of firefighters. See e.g. Wilkes v. State Fund, 2008 MT 29, ¶¶ 20, 26, 341 Mont. 292,
¶¶ 20, 26, ___ P.3d ___, ¶¶ 20, 26.
¶18 We have recognized on several occasions that “[a]ll things must have a period of
adjustment, and such classification is not ‘arbitrary classification.’” E.g. Montana Land Title
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Ass’n v. First American Title, 167 Mont. 471, 475, 539 P.2d 711, 713 (1975) (citations
omitted). Here the legislature enacted a revision to the Firefighters’ System that involves a
period of adjustment until all Guard firefighters gain membership in the Firefighters’
System. This Court previously has approved legislative alterations of statutory rights and
responsibilities, noting that “[t]he constitutional provisions against discrimination do ‘not
forbid statutes and statutory changes to have a beginning, and thus to discriminate between
the rights of an earlier and later time.’” State v. Abstracters Board of Examiners, 99 Mont.
564, 581, 45 P.2d 668, 672 (1935) (quoting Justice Holmes in Sperry & Hutchinson Co. v.
Rhodes, 220 U.S. 502, 505, 31 S. Ct. 490, 491 (1911)). The alleged distinction will end once
all Guard firefighters hired before October 1, 2001, have retired.
¶19 Furthermore, the legislature may approach a problem in a piecemeal fashion,
“applying the legislation to one phase of the problem and not affecting others.” Arneson v.
State, by Dept. of Admin., 262 Mont. 269, 274-75, 864 P.2d 1245, 1248 (1993). The 2001
Legislature recognized the fact that leaving Guard firefighters in the Public System while
other public firefighters participated in the Firefighters’ System created an inequitable
situation. Rather than approaching this inequity with an immediate and comprehensive
solution, however, the legislature chose to correct this imbalance by phasing Guard
firefighters into the Firefighters’ System.
¶20 Section 19-13-210(2), MCA, represents a legislative choice to provide a prospective
retirement solution for all newly hired Guard firefighters without affecting the retirement
expectations of existing Guard firefighters. Section 19-13-210(2), MCA, operates equally
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upon members of each class of firefighters. All Guard firefighters hired before October 1,
2001, remain in the Public System, while all Guard firefighters hired on or after the statutory
date participate in the Firefighters’ System. Section 19-13-210(2), MCA. The legislative
approach to correcting the “longstanding inequity” between Guard firefighters and other
public firefighters set forth in § 19-13-210(2), MCA, did not violate Bean’s right to equal
protection.
¶21 We reverse the District Court’s orders granting summary judgment and awarding
attorney fees and costs to Bean.
/S/ BRIAN MORRIS
We Concur:
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
Justice Patricia O. Cotter concurs.
¶22 I concur in the Court’s decision. I do so for the reasons set forth therein, and because,
as a practical matter, the end result if we affirm the District Court’s decision would be that
none of the firefighters employed by the Guard would receive the benefit of participating in
the Firefighters’ System. While I agree with the firefighters that the result reached by the
Legislature is imperfect, it nonetheless is a step in the right direction—i.e., the newly hired
firefighters will now have the opportunity to receive better benefits.
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¶23 In Henry v. State Compensation Ins. Fund, 1999 MT 126, 294 Mont. 449, 982 P.2d
456, we concluded that depriving workers suffering occupational diseases of the opportunity
to receive rehabilitation benefits was not justifiable solely on the basis of economic factors,
citing our decision in Heisler v. Hines Motor Co., 282 Mont. 270, 937 P.2d 45 (1997), for the
proposition that cost control alone cannot justify offering services to some while denying
them to others. Henry, ¶ 40. In this connection, it bears noting that the cost control factor
was offered by the State in Henry as a justification for limiting some workers’ rights or
benefits. Here, by contrast, the State has accomplished through legislation an improvement
of some workers’ benefits. While I do not condone piecemeal increases in benefits if a
wholesale increase is both an available and affordable alternative, it would be counter-
productive were we to say here that, because the State could not provide increased benefits
for all firefighters at once, none should get them. Yet, this would be the result were we to
affirm. I therefore concur.
/S/ PATRICIA COTTER
Justice James C. Nelson joins in the Concurrence of Justice Patricia O. Cotter.
/S/ JAMES C. NELSON
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