Crabtree v. Montana State Library

NO. 82-226

I N THE SUPREME COURT OF THE STATE OF MONTANA

1983

V I V I A N CRABTREE,

Plaintiff and Respondent,

MONTANA STATE LIBRARY, a n
agency o f t h e S t a t e o f Montana,
a n d SARA PARKER, ( s u b nom. ) ,
i n h e r c a p a c i t y as Montana
State Librarian,

Defendants and A p p e l l a n t s .

Appeal from: D i s t r i c t Court of the 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 County o f Lewis and C l a r k
Honorable Gordon B e n n e t t , J u d g e p r e s i d i n g

Counsel of Record:

For Appellants:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
Roy H . A n d e s , A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
H e l e n a , Montana

For Respondent:

James P. Reynolds argued, Helena, Montana

F o r Amicus C u r i a e :

P a t r i c i a S c h a e f e r , D e p t . o f Admin., H e l e n a , Montana
J a n Van R i p e r , D e p t . o f L a b o r & I n d u s t r y , H e l e n a ,
Montana
Mae Nan E l l i n g s o n , C i t y A t t o r n e y ' s O f f i c e , M i s s o u l a ,
Montana

Submitted: March 1, 1 9 8 3

Filed: JM 1 6 1983
U
 Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The defendants, Montana State Library, et al. (Library),
appeal an order of the Lewis and Clark County District Court
requiring the Library to reopen the hiring process for a
position which they had already filled, and that they give an
absolute preference to any minimally qualified veteran or
disabled civilian over all nondisabled civilian applicants.
The plaintiff, Vivian Crabtree (Crabtree), brought this
action under a veterans and disabled. civilians preference
statute, section 1-0-2-203,MCA, which states:
"Preference in appointment and employment.
(1) In every public department and upon all public
works of the state of Montana and of any county or
city thereof, the following shall be preferred for
appointment and employment: veterans, their spouses
and surviving spouses, and other dependents of
disabled veterans and disabled civilians
recommended by the rehabilitative services division
of the department of social and rehabilitative
services.

" (2) Age, loss of limb, or other physical
impairment which does not in fact incapacitate does
not disqualify any disabled veteran or civilian
provided he or she possesses the business capacity,
competency, and education to discharge the duties
of the position involved."
Crabtree invoked this statute, and pursuant to the
remedy provided for in section 10-2-206, MCA, filed an action
in District Court asserting the statutory preference for
public employment. She alleged that she was a disabled
person, that she qualified for the position, and that the
Library denied her the statutory preference.
Although the Library challenged Crabtree's standing in
trial court and did so initially in the briefs filed before
this Court, at the oral argument of this appeal the Library
conceded that Crabtree had standing to file the lawsuit.
Having conceded the standing issue, two issues remain.
First, the Library contends that the trial court erred by
interpreting the preference in appointment and employment
statute as creating a job entitlement for any minimally
qualified veteran or disabled applicant. Second, the Library
claims that the remedy ordered by the trial court is too
extensive. The trial court reopened the hiring process for
this position by ordering that the position be redefined and
readvertised. We affirm.
Crabtree has been legally blind from birth as a result
of congenital cataracts. She does have some residual vision
and can read printed pages with the help of a device that
magnifies print. She has a Bachelor's degree in social work
from the University of Montana.
In August 1981, the Library announced a position opening
for a coordinator of volunteer services and circulated a
Notice of Position Open throughout the state. According to
the notice, the duties of the job were to design and
implement a state-wide program using volunteer readers to
record library materials for the blind.
In September 1981, Crabtree formally applied for the job
stating on her application that she is legally blind. The
Library concedes that Crabtree was qualified for a hiring
preference because of her condition. The Library received a
total of 46 applications, and four of these applicants
claimed a disabled preference. A preliminary screening of
the applications was done by scoring each applicant on a
rating scale developed by the Library. Points were assigned
in eight categories including voice evaluation, ability to
plan and conduct workshops, ability to identify needs of
handicapped, ability to work well with people, public
relations, organizational skills and self-starting ability,
library skills and training, and consultative skills. After
the preliminary screening, the Library called ten applicants
for a personal interview. Crabtree had scored 50 points a.nd
was called. The three other disabled applicants were also
called. One purpose of the interview was to obtain
additional information from the applicants about their
qualifications. Based on the interview, the Library added
points to an applicant's scores when appropriate. On
September 22, 1981, the State Librarian notified Crabtree
that another person had been hired. Crabtree then filed an
action in District Court.
At the hearing in trial court, a witness for the Library
testified that Crabtree was rejected because she lacked
essential qualifications in voice evaluation, ability to plan
and conduct workshops, public relations, library skills, and
consultative skills. Crabtree testified that the interviewer
failed to ask her questions designed to elicit information
about each of those specific areas. As an example, Crabtree
claims that she was not asked about her speech training. The
person who was eventually hired was given 17 points in the
voice evaluation category because she had three college
speech courses. Crabtree also had three college speech
courses, but was not asked about them and received no points
for voice evaluation.
The Library argues that section 10-2-203, MCA, creates a
preference for veterans or qualified disabled civilians who
are within the pool of truly qualified applicants.
Subsection (1) of the statute provides that a veteran or
disabled civilian " . . . shall be preferred . . . . 11

subsection (2) contains the language " . .. provided he or
she possesses the business capacity, competency, and
education to discharge the duties of the position involved."
~elying on this language, the Library argues that the
legislature did not intend that any minimally qualified
veteran or disabled civilian would be entitled to employment.
Rather, the Library argues, the statute creates a preference
for veterans or qualified disabled civilians who are within
the pool of truly qualified applicants.
Under this interpretation strict equality of
qualifications for the position would not be required, and
the preference would be invoked when applicants are
approximately equal. The Library argues, therefore, that if
an employer reasonably believes that some non-preferred
applicant is substantially better qualified the employer
would have the discretion to hire the best applicant. We
disagree. We do not believe that the legislature intended
the preference to be triggered only when the applicants are
approximately equal. The history of the statute leads us to
the conclusion that the entitlement was intended.
The trial court addressed this issue in a well reasoned
memorandum opinion, which we quote and adopt with approval:
"[tlhe question must be viewed as one of first
impression and its resolution be based mainly on
statutory construction.
"The statute was born in the wake of World War I
and limited its provisions to veterans only.
(Chapter 211, 1 ,
. 1921.) From this earliest
enactment, it was clear the preference was intended
to be absolute. Age, loss of limb or other
physical impairment ' . . .
which does not in fact
incapacitate" would not be deemed disqualification
for preference, provided the veterans possessed
'the business capacity, competency and education to
discharge the duties of the position involved.'
This language persists, unchanged, to this day
(10-2-203(2)) .
Clearly, actual incapacitation to
discharge the duties of the position was the only
ground intended to deprive the veteran of
preference.
- This cannot be construed to be a
relative preference, it is an absolute preference
having nothing whatever to do with the
 qualification of other applicants. This original
section was amended six years later to include
disabled civilians, and the section was not
otherwise altered. (Chapter 133, L. 1927.) In
1937 the section was amended to give it the teeth
it now has in Section 10-2-206. (Chapter 66, L.
1937.) This [section] provided a right of action
to any person entitled to preference who was denied
a position and who felt that ' . . . he is in fact
qualified physically, mentally and possesses
business capacity, competency and education to
discharge the duties of the position applied
for. .. I . Aqain, this lanquaqe remains unchanqed
to date and is not a decl-ar;tion of a relative
preference but an absolute one, viz., if he can
discharge the duty he's entitled to the job. The
legislature has looked at this 'Veterans Preference
Act' at least nine times since 1937 (1943, 1947,
1949, 1955, 1969, 1975, 1977, 1979 and 1981) and
left these original provisions undefiled. There
has not been, and there is not today, any language
in the statute that suggests that the preference is
relative to the qualification of any other
applicant. The only limiting factor is the ability
of the disabled civilian, or veteran, to do the
job.
"The Montana Supreme Court, in 1941, found that the
Anaconda mayor had to give the preference to a
veteran if the veteran were . . . qualified for
the position within the contemplation of the
statute. ' It did not elaborate upon what it felt
the statute contemplated in this regard, but I
believe the case, taken in its entirety, would
support the proposition that the mayor had to hire
the veteran if he could do the job. The court
decided the mayor did not abuse his discretion in
determining the veteran could not handle the job.
(Horvath - Mayor - Anaconda, 112 M. 266).
v. of . .
"Statutory construction and such precedent we have
would give Montana veterans and disabled civilians
who meet the minimum qualifications for a state,
county or municipal job an absolute preference over
all other non-veterans or non-disabled civilians
under Section 10-2-203."
We hold that an absolute preference was intended by the
enactment of section 10-2-203, MCA, and therefore, that the
trial court properly construed the preference in appointment
and employment statute.
Before discussing the remedy ordered by the District
Court, which the Library argues is too extensive, we discuss
our holding in relation to the issues raised by amicus, all
of whom seek reversal of the District Court order. While it
is not our custom to address separately issues not raised by
the parties, we depart from that practice here because of the
widespread impact that the Library and amicus argue our
opinion will have on the hiring practices within state and
local levels of government. The Department of Labor and
Industry argues that an absolute entitlement ruling runs
afoul of the Human Rights Act, specifically section 49-1-102,
MCA, which prohits "discrimination because of race, creed,
religion, color, sex, physical or mental handicap, age, or
national origin." The main argument - -
is that the preference
statute, so construed, discriminates against females because
the vast majority of the military who would be entitled to
the preference, is comprised of men. The Department of
Administration argues that the order runs afoul of the
Governmental Code of Fair Practices, and specifically section
49-3-201 (1), MCA, which provides in part that government
agencies shall appoint personnel "on the basis of merit and
qualification^.^ The Department of Administration further
argues that hiring on the basis of "minimum qualifications"
will cause nothing but headaches for the personnel
departments of the government. Finally, the City of Missoula
and the League of Cities and Towns argue also that the order
runs afoul of the Human Rights Act (section 49-1-102, MCA,
supra) and that the hiring of personnel based on minimum
qualifications will result in the cities being flooded with
claims of liability based on the emerging tort of negligent
hiring.
We view the veterans and disabled civilians preference
statute as being in essence an affirmative action program--a
program designed to confer certain benefits on those classes
covered. The statute covers female veterans as well as male
veterans; it covers all disabled civilians. As such, the
statue does not single out women to discriminate against. The
statute protects women as well as it protects men. Indeed,
although it may be true that more men than women are
veterans, it follows that more spouses of veterans are women.
Spouses are also entitled to the preference, regardless of
sex. Insofar as the veterans preference is concerned, in
construing a Massachusetts veterans' preference act, the
United States Supreme Court aptly summarized the purpose of
the preference: "The law remains what it purports to be: a
preference for veterans of either sex over nonveterans of
either sex, not for men over women." Personnel Administrator
of Mass. v. Feeney (1979), 442 U.S. 256, 280.
In Feeney, the Supreme Court interpreted a statute
granting preferences only to members of the military. The
Montana statute goes further to extend the preference to
women by including spouses and dependen.ts of veterans as well
as disabled civilians. Clearly, the Montana statute is even
further from running afoul of equal protection
considerations.
The Department of Administration claims that the
District Court's order prevents it from discharging its
duties under section 2-18-102(1) (b), MCA, that of
"foster[ing] and develop [ing] programs for recruitment and
selection of capable persons" for state positions. The
Department is also charged with implementing and maintaining
the State's Equal Employment Opportunity and Affirmative
Action programs. Section 49-3-201, MCA. The Department
argues that the District Court's order conflicts with section
49-3-201(1), MCA, which provides that:
 "State and local government officials and
supervisory personnel shall recruit, appoint,
assign, train, evaluate, and promote personnel on
the basis of merit and qualifications without
regard to race, color ,religion, creed, political
ideas, sex, age, marital status, physical or mental
handicap, or national origin. " (Emphasis added. )
We do not, however, view section 49-3-201, MCA, as
conflicting with the preference in appointment and employment
statute. The Department acknowledges that it has a duty to
implement and maintain affirmative action programs, and we
view the preference statute as simply being an affirmative
action program. Although the Department argues that the
absolute preference conflicts with section 49-3-201, the
Department does not begin to suggest that section 49-3-201
would likewise bar a relative preference such as argued for
by the Library. If section 49-3-201 would not conflict with
a relative preference we see no reason why it must conflict
with an absolute preference. The preferences in section
10-2-203 were granted by the legislature, and they must be
given full effect.
The Department of Administration also argues that the
term used by the District Court in its order--"minimum
qualifications" or "minimally qualifiedw--is a term of art
used by personnel specialists and therefore that it will
cause nothing but headaches for the personnel divisions of
state government. Crabtree agrees that the term used by the
trial court may at first glance be confusing and ambiguous,
but suggests that the terms were meant to be a short-hand
method of designating compliance with the statutory
requirement that the applicant possess the "business
capacity, competency, and education to discharge the duties
of the position involved." Section 10-2-203(2), MCA. We
agree. The minimum qualifications are simply those
qualifications of capacity, competency and education as
defined by the agency for doing the particular job. If,
therefore, a preferred applicant meets those qualifications,
he has met the "minimum qualifications" for the position and
must be hired.
Amicus City of Missoula and Montana league of Cities and
Towns argue also that an absolute preference conflicts with
the Human Rights Act because it discriminates against women
who comprise an inordinately small part of the military. We
have already rejected this argument in discussing the
arguments of the Department of Labor and Industry. The
second argument of the local governments is tha-t an absolute
preference would expose local governments to an endless
barrage of lawsuits based on the emerging tort of negligent
hiring. This argument is based on the unfounded assumption
that the preferred applicant would not be required to be
qualified for the particular job. We have held, however,
that the applicant who gets the job, even though entitled to
a preference, must still be qualified for the job. Section
10-2-203, MCA, clearly sets forth that requirement.
The Library next contends that the remedy ordered by the
trial court is too extensive. The trial court ordered the
Library to redefine and readvertise the position and to
reopen the entire hiring process for this position. The
Library contends that the trial court's order goes beyond the
remedy provided by section 10-2-206 which authorizes a
district court hearing to show cause why the person entitled
to a preference should not be employed, after which the court
may order the appointing authority to comply with the law in
giving the preference. The Library contends that the
statutory remedy is limited to the petitioner, but that the
trial court has improperly enlarged the remedy to include a
class of applicants for the reopened position.
The trial court, however, was not faced with a situation
where the library position had been properly advertised
according to job description and the rating scale used in the
selection process. Rather, the job advertisement notice gave
all applicants hardly any idea of what factors would be
considered in the selection process. Given this situation,
it was only fair that not only Crabtree, but that all
applicants be given another opportunity to apply for the
position with the knowledge of what factors would be relied
on in the selection process.
The trial court looked at the minimum requirements set
forth in the Library's Notice of Position Open and found
little correlation between the job description and the rating
scale used in the selection process. For example, the notice
of position open places a heavy emphasis on library skills
and training. However, library skills and training are only
given four points out of 100 on the evaluation sheet. None
of the three finalists, including the person selected,
received any points for library skills and training. On the
other hand, voice evaluation skills and ability to conduct
workshops were given a great deal of weight on the rating
scale, but were not specifically mentioned in the Notice of
Position Open. The trial court found other deficiencies with
the hiring process which we need not point out here. We
agree with the trial court's conclusion that the minimum
qualifications for the position were never clearly
determined, were not communicated by the Notice of Position
Open, and therefore could not have been used as a basis for
evaluating Crabtree's application or in according her
preference.
We hold that the remedy ordered by the trial court is
the only way for Crabtree and other applicants to be given a
meaningful opportunity to demonstrate their qualifications
and for the Library to comply with the preference in
appointment and employment statute.
The order of the Distri

We concur:

Chief Justice
Mr. C h i e f J u s t i c e F r a n k I . d a s w e l l s p e c i a l l y concurring:

I concur that the statute in question mandates an

a b s o l u t e p r e f e r e n c e f o r q u a l i f i e d d i s a b l e d p e r s o n s and w i t h

t h e remedy o r d e r e d by t h e m a j o r i t y .

M quarrel
y is t h a t t h e m a j o r i t y o p i n i o n g o e s beyond

t h e i s s u e s r a i s e d by t h e l i t i g a n t s i n t h i s case a n d r u l e s o n

e x t r a n e o u s matters raised by amici for the first time on

appeal. T h i s C o u r t h a s h e l d on many o c c a s i o n s t h a t i t w i l l

not address issues ralsed for the first time on appeal,

S p e n c e r v. Robertson ( 1 9 6 8 ) , 1 5 1 Mont. 507, 445 P.2d 48;

C l a r k v . W o r r a l l ( 1 9 6 5 ) , 1 4 6 Mont. 3 7 4 , 406 P.2d 822; S t a t e

Highway Comm. v. M i l a n o v i c h ( 1 9 6 3 ) , 1 4 2 Mont. 4 1 0 , 384 P.2d

7 5 2 ; n o r w i l l i t c o n s i d e r new a r g u m e n t s a n d new t h e o r i e s o f

r e l i e f r a i s e d f o r t h e f i r s t t i m e o n a p p e a l , A k h t a r v . Van d e

Wecering ( 1 9 8 2 ) , Mont. , 642 P.2d 1 4 9 , 39 St.Rep.

400.

Furthermore, this Court has consistently held that

a m i c l c a n n o t r a i s e i s s u e s n o t r a i s e d by t h e p a r t i e s a n d s u c h

i s s u e s w i l l n o t b e a d d r e s s e d by t h i s C o u r t . S t a t e ex r e l .

Department of H e a l t h and E n v i r o n m e n t a l S c i e n c e v. La S o r t e

( 1 9 7 9 ) , 1 8 2 Mont. 267, 596 P.2d 477; Department of SRS v .

Angel & Fisher ( 1 9 7 8 ) , 1 7 6 Idont. 293, 577 P.2d 1223; S t a t e

ex r e l . Kvaalen v. G r a y b i l l ( 1 9 7 2 ) , 1 5 9 Mont. 1 9 0 , 496 P.2d

1 1 2 7 ; S t a t e e x r e l . B e n n e t t v . Bonner ( 1 9 5 0 ) , 1 2 3 Mont. 414,

214 P.2d 7 4 7 .

The reasons for these rules are manifold: (1) The

t h e o r i e s a n d a r g u m e n t s i n t h e c a s e s h o u l d n o t b e c h a n g e d by

a m i c i a t t h e e x p e n s e o f t h e litigants by i n j e c t i n g new a n d

e x t r a n e o u s i s s u e s i n t h e case. ( 2 ) The t r i a l c o u r t had n o

opportunity to hear argument, consider or rule upon new
issues raised for the first time on appeal. (3) The ever-

present danger that issues and arguments not considered in
the trial court and not considered significant or control-
ling by the litigants themselves will not be adequately
briefed or argued on appeal.
For these reasons, I would adhere to the salutary rule
heretofore expressed and observed by this Court.

Chief Justice
&