McKamey v. State

No. 94-180

IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

JOSEPH M. McKAMEY,
Plaintiff, Respondent
and Cross-Appellant,
v.

STATE OF MONTANA,
Defendant, Appellant
and Cross-Respondent.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Charles E Erdmann, Erdm.ann Law Office,
.
Helena, Montana

For Respondent:
Timothy J. McKittrick, McXittrick Law Firm,
Great Falls, Montana
w

d D Submitted on Briefs: October 13,
Decided: November 29,
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The State of Montana appeals from a judgment of the District
Court for the Eighth Judicial District, Cascade County. That court
declared unconstitutional a requirement that firefighters employed
by the State of Montana at the Montana Air National Guard base in
Great Falls, Montana, be members of the Montana Air National Guard.
We affirm.
The issues are:
1. Did the District Court err in refusing to dismiss this
case on grounds that it does not constitute a case or controversy?
2. Did the court err in refusing to dismiss on grounds that
McKamey failed to exhaust his administrative remedies?
3. Did the court err in refusing to dismiss on grounds that
the challenged policy is a discretionary military policy over which
district courts have no subject matter jurisdiction?
4. Did the court err in granting McKamey's motion to quash
and for a protective order?
5. Did the court err in granting summary judgment that the
military service requirement is unconstitutional?
6. Did the court err in denying McKamey attorney fees and
costs?
Joseph McKamey is one of nineteen firefighters employed at the
Great Falls International Airport as civilian employees of the
State of Montana, Department of Military Affairs. McKamey's job
includes providing protection for civilian aircraft and for a unit
of the Montana Air National Guard stationed at the airport.

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 Before 1975, these firefighters were federal civilian
employees. In that year, the federal positions were eliminated and
the National Guard Bureau agreed to provide funding to allow the
State of Montana to hire the firefighters as state employees.
Until 1986, the firefighters were scheduled to work "Kelly
shifts" of 24 hours on and 48 hours off. This schedule placed them
on duty for 65 hours in some weeks, 55 hours in other weeks, and 48
hours in the remaining weeks. However, their pay did not vary
according to the hours worked, and they were not paid overtime
compensation.
In 1984, McKamey and nine other firefighters filed a wage
action against the State, claiming their employment arrangement
violated the Montana Wage and Overtime Compensation Act, §§ 39-3-
401 through -409, MCA. In 1985, the United States Supreme Court
ruled that state employees enjoy the protection of the Fair Labor
Standards Act. See Garcia v. San Antonio Metro. Transit Auth.

(1985) r 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016. The
firefighters added that Act as a second basis for their claims.

That action has been settled. S e e S t i m a c v . S t a t e (1991), 2 4 8

Mont. 412, 812 P.2d 1246.
In 1985, the Department of Military Affairs sought approval of
a pay plan for the firefighters at the Great Falls airport which
deviated from the State Compensation Plan. That plan was not
approved. In June of 1986, the Personnel Division of the State of
Montana endorsed an exemption from wage requirements for the
firefighters. This exemption was premised upon a policy requiring

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these firefighters, as a condition of their employment, to be

members of the Montana Air National Guard. Section 2-18-103, MCA,
exempts certain types of positions from the wage requirements of
the State Compensation Plan, among them "officers or members of the
militia."
McKamey and nine other firefighters filed a second wage action
against the State in 1989. The decision in that action is now on
appeal to this Court (Tefft et al. v. State, Montana Supreme Court
Cause No. 94-229).
In February 1992, McKamey filed this action seeking declarato-

ry, injunctive, and equitable relief declaring the State's military

service requirement discriminatory and violative of his employment
rights and the rights of other state employees similarly situated.
Following discovery and briefing, the District Court heard the
parties' cross-motions for summary judgment. The court issued an
extensive memorandum and order granting McKamey's motion for
summary judgment on grounds that the requirement violated the
firefighters' rights to equal protection and to due process. The
court enjoined the State from using the military service require-
ment in any manner relative to McKamey or employees similarly
situated. It ordered each party to pay its own attorney fees and
costs. The State appeals. McKamey cross-appeals on the issue of
attorney fees.
Issue 1
Did the District Court err in refusing to dismiss this case on
grounds that it does not constitute a case or controversy?

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 Because McKamey does not claim he has already suffered a

penalty from the military service requirement, the State maintains

he is not entitled to a declaratory judgment. According to the

State, a declaratory judgment at this point would be an advisory
opinion based on a possible future occurrence. The State maintains

no case or controversy exists, citing cases in which this Court has

ruled that issuance of a declaratory judgment was not proper

because no case or controversy was presented.

Section 27-8-201, MCA, grants Montana COUrts the power to

render declaratory judgments:

Scope of power to render declaratory judgments. Courts
of record within their respective jurisdictions shall
have power to declare rights, status, and other legal
relations whether or not further relief is or could be
claimed. No action or proceeding shall be open to
objection on the ground that a declaratory judgment or
decree is prayed for. The declaration may be either
affirmative or negative in form and effect, and such
declarations shall have the force and effect of a final
judgment or decree.

Section 27-8-202, MCA, provides:

Who may obtain declaratory judgment. Any person inter-
ested under a . . . written contract . . . or whose
rights, status, or other legal relations are affected by
a . . . contract . . . may have determined any question
of construction or validity arising under the instrument
. . . and obtain a declaration of rights, status, or
other legal relations thereunder.

Section 27-8-203, MCA, states that a contract may be construed

either before or after there has been a breach thereof. In

addition, 5 27-8-205, MCA, provides:

The enumeration in 27-8-202 through 27-8-204 does not
limit or restrict the exercise of the general powers
conferred in 27-8-201in any proceeding where declaratory
relief is sought in which a judgment or decree will
terminate the controversy or remove an uncertainty.
Pursuant to the above statutes, it is not necessary that McKamey
have already suffered an injury before seeking relief in the form
of a declaratory judgment.
McKamey filed an affidavit with the District Court in which he
states that one of the other firefighters, Edward Peters, was
terminated from his employment as a firefighter after he retired
from the Montana Air National Guard. McKamey states that the
reason given for Peters' termination was the military service

requirement. In his affidavit, McKamey goes on to say that, based
on Peters' experience, he feels his own right to retire from the
Montana Air National Guard has been threatened. He states that if
his employment is terminated, his family will have no income,
insurance, or other benefits, and his pension benefits will be
severely reduced.
This Court has stated that a declaratory judgment suit against
a government entity must be supported by allegations of past,
present, a threatened injury to a property or civil right, and the
alleged injury must be distinguishable from the injury to the
public generally. Stewart v. Bd. of Cty. Com’rs of Big Horn Cty.

(1977) I 175 Mont. 197, 201, 573 P.2d 184, 186. Under the adminis-
trative policy now in effect, McKamey's civilian employment as a
firefighter is threatened if he resigns or retires from the Montana
Air National Guard. The existence of a case or controversy is
amply demonstrated by the multiple lawsuits concerning the
firefighters' employment status.

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 We hold that the requirement of a threatened injury has been
met and that a case or controversy exists. We further hold that
the District Court did not err in refusing to dismiss this action
as inappropriate for declaratory judgment.
Issue 2
Did the court err in refusing to dismiss on grounds that
McKamey failed to exhaust his administrative remedies?
The State argues district courts are without discretion to
proceed under the Uniform Declaratory Judgments Act where the
claimant has available administrative remedies, citing Roeber v.
State, Dept. of Institutions (1990), 243 Mont. 437, 795 P.2d 424.
However, when a claimant raises a bona fide constitutional claim in
a declaratory judgment action, the exhaustion doctrine does not

apply. Mitchell v. Town of West Yellowstone (1988), 235 Mont. 104,
109-10, 765 P.2d 745, 748. We hold that the District Court did not
err in denying the State's motion to dismiss.
Issue 3

Did the court err in refusing to dismiss on grounds that the
challenged policy is a discretionary military policy over which
district courts have no subject matter jurisdiction?
Citing Martelon v. Temple (10th Cir. 1984), 747 F.2d 1348,
cert. denied, 471 U.S. 1135, and Olson v. Nat. Guard (1972), 160
Mont. 387, 503 P.2d 24, the State maintains that the military
service requirement is a discretionary state military policy and,
as such, is outside the jurisdiction of the courts.
However, there are exceptions to this rule.

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 [W]hen presented with claims of judicially cognizable
injury resulting from military intrusion into the
civilian sector, federal courts are fully empowered to
consider claims of those asserting such injury; there is
nothing in our Nation's history or in the Court's decided
cases, including our holding today, that can properly be
seen as giving any indication that actual or threatened
injury by reason of unlawful activities of the military
would go unnoticed or unremedied.
Laird v. Tatum (1972), 408 U.S. 1, 15-16, 92 S.Ct. 2318, 2327, 33

L.Ed.2d 154, 165.

As the above quotation indicates, courts will intervene when

a military decision intrudes into the public sector. The opinion

in Martelon illustrates this point. The Martelon opinion was

dependent on the court's determination that the plaintiffs' claims

were "clearly related to military employment.t1 Martelon, 747 F.2d

at 1350. The court contrasted Martelon with a New Jersey case in

which a federal district court intervened after finding that the

plaintiffs' claims were incident to their civilian, not their

military, employment.

In the present case, we agree with McXamey's assessment that

the State has not demonstrated that the military service require-

ment is related to military policy. The State concedes that the

military service requirement is not imposed on firefighters in
other states. In fact, a 1993 Federal Air National Guard Bureau
operational guide, a copy of which Mcliamey filed in connection with

his motion for summary judgment, states: "MANDATORY MILITARY
MEMBERSHIP FOR O&M FIREFIGHTERS IS NOT RECOMMENDED."

We hold that the District Court did not err in refusing to

dismiss this case on grounds that the challenged policy is a

8
discretionary military policy over which district courts have no
subject matter jurisdiction.
Issue 4
Did the court err in granting McKamey's motion to quash and
for a protective order?
This issue relates to requests by the State for production of
documents at the depositions of three witnesses for McKamey. The

witnesses were members of the firefighters' union to which McXamey
belongs. The State asked those three witnesses to produce, at
their depositions:
Correspondence of any kind between yourself and the State
of Montana from 1974 through the present: correspondence
of any kind between yourself and the Montana Air National
Guard from 1969 through the present; all bills, reports,
business records and minutes of meetings, information
letters or other documents of the Great Falls Airport
Firefighters Association, International Association of
Firefighters Local #3261; billing statements from
McKittrick Law Firm to this Union and all check stubs,
registers, cancelled checks, or receipts showing payment
for services of McKittrick Law Firm for the last 4 years.
Arguing that the requested materials were irrelevant to a declara-
tory judgment action and that the requests were overbroad and
unlikely to lead to discoverable evidence, McKamey moved to quash
and for a protective order. He further argued that the request
violated his right to privacy and invaded privileged business of
the firefighters' union. Additionally, he alleged that the time
allotted for responding to such requests was less than the thirty
days required under Rules 30(b)(5) and 34(b), M.R.Civ.P.
Our standard of review concerning a district court's ruling on
a discovery matter is whether the district court abused its

9
discretion. State of Or. ex rel. Worden v. Drinkwalter (1985), 216
Mont. 9, 12, 700 P.2d 150, 152. The above discovery request is
overbroad in several respects. As McKamey points out, it would
require production of twenty years' worth of correspondence with
the State of Montana and four years' worth of correspondence with
the named law firm, none of which may have anything whatsoever to
do with this action. We hold that the District Court did not abuse
its discretion in granting McKamey's motion to quash and for a
protective order.
Issue 5
Did the court err in granting summary judgment that the
military service requirement is unconstitutional?
Here, we consider arguments raised by the State under two
issues: whether there exist material issues of fact precluding
summary judgment, and whether the District Court erred in declaring
the military service requirement unconstitutional as a matter of
law.
We first explore whether material issues of fact exist. The
State argues that the date on which the military service require-
ment was adopted is a material fact as to which there is a dispute.
The State views this date as a material fact because McKamey has
argued that the military service requirement was adopted in
retaliation for the wage and hour claim filed against the State by
McKamey and other firefighters.
The District Court found overwhelming evidence that military
service, while encouraged, was not mandatory for the firefighters

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prior to 1986. However, if summary judgment is proper regardless

of the retaliatory nature of the military service requirement, then

the date on which that requirement was adopted is not a material
fact barring summary judgment. McKamey's claim of unconstitu-

tionality does not depend on the retaliatory nature of the military

service requirement. We conclude that the retaliatory nature of
the military service requirement is not a fact material to

determination of the constitutionality of the military service
requirement.

The principal purpose of the Equal Protection Clause, Amend. f‘

XIV, U.S. Const., and Art. II, Sec. 4, Mont. Const., is to ensure

that persons who are citizens of this country are not subject to

arbitrary and discriminatory state action. Godfrey v. Mont. State

Fish & Game CornIn (1981), 193 Mont. 304, 306, 631 P.2d 1265, 1267.
Courts examine the right to equal protection under three levels of

scrutiny--strict scrutiny for classifications which infringe
fundamental rights or involve suspect classifications, such as race

or national origin: middle tier analysis in specific limited
situations requiring a somewhat heightened scrutiny; and rational

basis analysis, for all other classifications. Meech v. Hillhaven

West, Inc. (1989), 238 Mont. 21, 44-45, 776 P.2d 488, 502.

In this case, the District Court determined that the military

service requirement did not meet the lowest of the three levels of

scrutiny--the rational basis test. The inquiry under the rational

basis test is whether the classification is rationally related to

a legitimate government interest. Meech, 776 P.2d at 502-03.

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In its analysis, the District Court reasoned:

[Elvidence which establishes that there is no rational
basis for the military requirement policy is that the
State of Montana treats its firefighters differently than
other states in the country. If national security were
the basis for mandatory membership in the Guard, then it
is only logical that every state in the Union would
require its firefighters to be members of the Guard. It
is admitted by the State of Montana that mandatory
membership in the Guard is a state by state decision.
Since other states such as South Dakota, New Hampshire,
Oregon and Iowa do not require its [sic] firefighters to
be members of the Guard, it is apparent that national
security is not a rational basis for guard membership.

As recently as October 19, 1993, the Federal
National Guard Bureau in its Operational Guide for Air
National Guard Operations and Maintenance Firefighters
specifically stated on page 7, item 16A that:
"MANDATORY MILITARY MEMBERSHIP FOR O&M FIRE-
FIGHTERS IS NOT RECOMMENDED."

Since the Federal National Guard Bureau has taken
the affirmative stance that they do not recommend
mandatory military membership, the State of Montana
cannot establish a rational basis for the requirement.
Furthermore, the State of Montana's own Fire Chief Ball,
at the Great Falls Airport, stated in his letter dated
February 27, 1992 to Major Shick, LTC Mortag and Mr.
Booker that:

"C!. Mandators Membership in ANG: Since there
is no longer an alert requirement, the reasons
for requiring fire fighter MANG membership is
no longer valid. If State employees are not
members of the ANG, it would make deployments
and activations less of a scheduling problem.
If fire fighters were not required membership,
there would be more openings for traditional
Guardsmen. Eliminating current policy of
mandatory enlistment in the ANG can be impact
bargained into the present contract with IAFF
and show no liability or admission of guilt by
any party."

Both the National Guard Bureau and the State's own
fire chief have stated that there is, in fact, no
rational basis for [the] mandatory military requirement.

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 The State also argues that because of the secret
nature of the military business, the firefighters need
special security clearances and thus, must be members of
the National Guard. To obtain a special security
clearance, military membership is not a prerequisite.
. . . There is no rational basis in terms of security
clearance to require membership in the National Guard.
There was evidence presented that at least two employees
at the Great Falls Airport came in contact with classi-
fied military information and those employees were not
required to be members of the Guard.
In short, the State failed to offer any compelling evidence that
the military service requirement is rationally related to a
legitimate government interest.
Similarly on appeal, the State has not offered any persuasive
argument or evidence that the military service requirement is
rationally related to a legitimate government interest. Instead,
the evidence overwhelmingly supports the conclusion that the
requirement's sole purpose is to circumvent the wage and overtime
standards set forth in the Fair Labor Standards Act and the Montana
Wage and Overtime Compensation Act.
We hold that the District Court did not err in ruling that the
military service requirement fails to meet equal protection stan-
dards under the rational basis test, and is thus violative of both
the United States and the Montana Constitutions. Having so ruled,
we need not address the District Court's conclusion that the
military service requirement also violates due process require-
ments.
Issue 6
Did the court err in denying McKamey attorney fees and costs?

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 Sections 25-10-711 and 27-8-311, MCA, are the authority under

which McKamey argues he should have been awarded his attorney fees

and costs. Section 25-10-711, MCA, allows the award of attorney

fees to a party who prevails in a claim against a government entity

in which "the court finds that the claim or defense of the state,

political subdivision, or agency that brought or defended the

action was frivolous or pursued in bad faith."

Section 27-8-311, MCA, allows the court to allow such costs in

a declaratory judgment action "as may seem equitable and just."

There is no provision for an award of attorney fees in an action

for declaratory judgment. State ex rel. Dept. of Health v. Lincoln

Cty. (1978), 178 Mont. 410, 418, 584 P.2d 1293, 1297-98.

An award of attorney fees and costs is within the discretion

of the trial court. Armstrong v. State, Dept. of Justice (1991),

250 Mont. 468, 469, 820 P.2d 1273~, 1274. After reviewing the
record, we conclude the District Court did not abuse its discretion

in determining that the State's defense was not frivolous or

pursued in bad faith, and in denying McKamey's request that he be

awarded his attorney fees and costs.

Affirmed.

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We concur:

Justices

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