No. 84-181
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
CHARLES F. FEMLING,
Plaintiff and Appellant,
MONTANA STATE UNIVERSITY, an agency
of the State of Montana, et al.,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ted J. Doney argued, Helena, Montana
For Respondent :
LeRoy H. Schramrn argued, Office of Commissioner of
Higher Education, Helena, Montana
Roger N. Flair, Montana State University, Rozeman,
Plontana
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%ibmitted: October 22, 1 9 8 5
Decided: February 7, 1986
Fktr -
Filed: --
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Charles F. Femling appeals from an order of the Gallatin
County District Court which dismissed his complaint for
veterans' preference in hiring. We affirm the order of the
District Court.
The issues raised on appeal are:
1. Did the retroactive repeal of the Montana veteran's
preference statutes (hereinafter, the repealer) deprive Mr.
Femling of an accrued cause of action in violation of the due
process clauses of the Montana and United States
Constitutions?
2. Did the repealer deprive Mr. Femling of a remedy for
an injury in violation of art. 11, sec. 16, Mont. Const.?
3. Did the repealer deprive the courts of jurisdiction
in violation of the doctrine of separation of powers?
4. Did the repealer provide for sovereign immunity from
accrued causes of action without a vote of two-thirds of the
members of each house as required by art. 11, sec. 18, Mont.
Const. ?
5. Did the repealer violate art. 11, see. 35, Mont.
Const. and the due process clauses of the Montana and United
States Constitutions by retroactively depriving Mr. Femling
of a vested right and entitlement to be employed?
Charles Femling applied in August, 1983 for a position
at Montana State University (MSU). He claimed entitlement to
the then statutory veterans' preference in employment but was
not interviewed for the job. A nonveteran was hired.
On December 19, 1983, Femling petitioned the District
Court for an order for MSU to show cause why he should not be
employed and given lost wages and benefits. His amended
petition set forth his qualifications for the position for
which he applied, and alleged that he was a qualified
applicant, that he was a veteran, that he was not hired, that
he was physicall-y and mentally qualified for the job, and
that he possessed the business capacity, competency, and
education to discharge the duties of the position. On
December 20, 1983, the day after Femling filed his petition,
the Governor signed the repealer, which retroactively
extinguished pending claims for violations of the former law.
MSU moved for dismissal based upon the new law. Femling
argued to the District Court that the new law was
unconstitutional on several grounds. He asserted that the
new law denied his constitutional rights to access to the
courts, due process and equal protection. In addition, he
asserted that the law was unconstitutional in that it
impaired obligations of contract, provided immunity to the
State without a required two-thirds vote of both houses, and
violated the veterans' preference section of the Montana
Constitution. He also claimed the new law was illegal
because the bill addressed more than one subject and was
altered to change its purpose during the Special Session.
MSU also moved for dismissal of Femling's petition on
the ground that it failed to state a claim on which relief
could be granted. MSU argued the new veterans' preference
statute constituted a valid repeal of the old laws.
The District Court granted MSU's motion and dismissed
Femling's petition with prejudice. The District Court held
that :
(1) The veterans' preference under the old Montana
statute was a gratuity.
(2) The gratuity had not vested.
(3) A gratuity may be repealed by the Legislature.
(4) The legislature could abrogate Mr. Femlings's cause
of action against the State.
(5) MSU is exempt from the preference by legislative
enactment.
From t h i s o r d e r , M r . Femling a p p e a l s .
Did t h e r e p e a l e r d e p r i v e M r . Femling o f a n a c c r u e d c a u s e
of action i n violation of t h e due p r o c e s s clauses of the
Montana a n d U n i t e d S t a t e s C o n s t i t u t i o n s ?
I n Crabtree v. Montana S t a t e L i b r a r y (Mont. 1983) , 665
P.2d 231, 40 St.Rep. 963, this Court determined that the
statutory veterans' preference in employment was absolute.
In response to the Crabtree decision, the 1983 Special
Session Legislature retroactively repealed the absolute
preference a.nd enacted a tie-breaker preference. The
repealer states:
This repeal applies retroactively t o bar
any c l a i m o f v i o l a t i o n o r a p p l i c a t i o n o f
10-2-201 t h r o u g h 10-2-206 t h a t h a s n o t
b e e n r e d u c e d t o judgment, w h e t h e r o r n o t
t h e judgment i s f i n a l , o n [ t h e e f f e c t i v e
d a t e o f t h i s a c t ] . Claims u n d e r 10-2-201
t h r o u g h 10-2-206 t h a t h a v e b e e n r e d u c e d
t o judgment, w h e t h e r o r n o t t h e judgment
i s f i n a l , on [ t h e e f f e c t i v e d a t e o f t h i s
a c t ] a r e enforceable.
Section 14, Ch. 1, Sp. L. Mont. 1983, set out in the
Compiler's Comments to Sections 10-2-201 through 10-2-206,
MCA, which w e r e r e p e a l e d i n 1985. A t t h e t i m e o f t h e S p e c i a l
Session, approximately f o u r t e e n l a w s u i t s w e r e pending aga-inst
the State for alleged violation of t h e absolute preference i n
employment. The l e g i s l a t i v e h i s t o r y o f t h e r e p e a l e r "shows
t h a t t h e l e g i s l a t u r e was u n e q u i v o c a l i n i t s aim t o b a r t h o s e
pending claims." Nick v. Montana Dept. of Hywys. (Mont.
19851, - P.2d -, 42 St.Rep. 1926.
The fourteenth amendment to the United States
Constitution and art. 11, sec. 17, in the Montana
C o n s t i t u t i o n p r o v i d e t h a t t h e S t a t e may n o t d e p r i v e a p e r s o n
of life, liberty or property without due p r o c e s s of law.
Femling a s s e r t s t h a t h i s c a u s e o f a c t i o n a g a i n s t M U f o r
S
failure to hire and violation of the preference statute
accrued when the University hired a nonveteran. He argues
that cause of action became a vested property right upon the
filing of his complaint. He contends that the legislature
could not repeal the law without substituting another remedy
to protect his vested right to the absolute preference in
employment.
"A citizen can have no vested right in a general law
which can preclude its amendment or repeal, and there is no
implied promise on the part of the state to protect its
citizens against incidental injury occasioned by changes in
the law." Stanford v. Coram (1903), 28 Mont. 288, 293, 72 P.
655, 656. As we noted in Conboy v. State (Mont. 1985), 693
P.2d 547, 42 St.Rep. 120, a veteran acting under the absolute
veterans' preference statute did so in contemplation of the
legislature's power of repeal. Statutes may be replaced at
any time, and a person acting under a statue is "deemed to
have acted in contemplation of this power of repeal."
Section 1-2-110, MCA.
For substantive due process protections to apply,
Femling's claim to the absolute preference must be a vested
right. In Conboy, we stated that the preference statute was
a gratuity given to veterans by the State. It did not amount
to a right vested in the veterans. Conboy, 693 P. 2d at 552.
We reaffirmed this conclusion in Nick v. Montana Dept. of
Hywys. (Mont 1985), - P.2d -, 42 St.Rep. 1926.
A veteran does not have a reliance interest in the
veterans' preference unless and until it is actually
received. Nick, 42 St.Rep. at 1930. " [B]enefits conferred
by gratuities may be . . . withdrawn at any time . . ."
Lynch v. United States (1934), 292 U.S. 571., 577. The Ninth
Circuit Court of Appeals has characterized a claim to an
unreceived gratuity as a "floating expectancy":
[FJ] h a t e v e r anticipations a serviceman
entertained . . with respect to
p r e f e r e n t i a l advantage i n t h e f e d e r a l
c i v i l s e r v i c e w e r e no more t h a n some
f l o a t i n g e x p e c t a n c y e n t i r e l y dependent
upon t h e government's bounty. A c l a i m of
u n c o n s t i t u t i o n a l d e p r i v a t i o n c a n n o t be
b u i l t upon t h i s f o u n d a t i o n .
Monaco v. United S t a t e s (9th C i r . 19751, 523 F - 2 d 935, 940,
- den. 4 2 4
cert. - U.S. 914.
The g i v i n g o f a government g r a t u i t y d o e s n o t change t h e
nature of t h e g r a t u i t y . The g i v i n g o f a v e t e r a n s ' p r e f e r e n c e
in employment does not cause that preference t o become a
private vested r i g h t .
W e c o n c l u d e t h a t t h e f i l i n g of a c l a i m t o a government
g r a t u i t y does n o t change t h a t g r a t u i t y i n t o a v e s t e d r i g h t .
Mr. Femling's claim to and expectancy of a veterans'
p r e f e r e n c e do n o t t r a n s f o r m a g r a t u i t y i n t o a p r o t e c t a b l e ,
vested right.
W e h o l d t h a t t h e r e p e a l o f t h e p r e f e r e n c e g r a t u i t y and
dismissal of Mr. Femling's claim t o t h a t g r a t u i t y did not
violate t h e due p r o c e s s c l a u s e s o f t h e Montana and United
States Constitutions.
Did t h e r e p e a l e r d e p r i v e M r . Femling o f a remedy f o r an
i n j u r y i n v i o l a t i o n o f a r t . 11, s e c . 1 6 , Mont. C o n s t . ?
A r t i c l e 11, s e c . 1 6 , Mont. Const. p r o v i d e s i n p e r t i n e n t
part :
C o u r t s o f j u s t i c e s h a l l be open t o e v e r y
p e r s o n , and speedy remedy a f f o r d e d f o r
every i n j u r y of person, property, or
character.
In order for a r t . 11, s e c . 1 6 t o a p p l y , t h e r e must have been
an " i n j u r y of p e r s o n , property o r character. " As stated i n
White v . S t a t e (lilont. 1 9 8 3 ) , 661 P.2d 1272, 1275, 4 0 St.Rep.
507, 510: "The language 'every i njury ' embraces all
recognized. cornpensable components o f i n j u r y . . ."
The veterans' preference statutes were and are
enforceable by court order reopening the selection process.
Sections 10-2-206, MCA (1981) and 10-2-226, MCA (1985).
Neither the statutory law nor the common law has ever
recognized violation of the preference statutes as
compensable in money damages. Jensen v. State, Dept. of
Labor and Industry (Mont. 1984), 689 P.2d 1231, 1234-35, 41
St.Rep. 1971, 1976.
We conclude that violation of the preference statute
does not result in a compensable injury within the meaning of
art. 11, sec. 16, Mont. Const. Therefore, the repeal of the
preference statute did not deprive Mr. Femling of a remedy
for an injury. We hold that the repeal of the preference
statute did not violate art. 11, sec. 16, Mont. Const.
111.
Did the repealer deprive the courts of jurisdiction in
violation of the doctrine of separation of powers?
Mr. Femling contends tha-t the doctrine of separation of
powers prohibits the legislature from depriving the courts of
jurisdiction over an action which has already been filed. He
contends that the repealer has unlawfully deprived the
District Court of jurisdiction over this case. MSU argues
that this Court has acknowledged that a statute may wipe out
pending causes of action. Continental Oil Co. v. Montana
Concrete Co. (1922), 63 Mont. 223, 207 P. 116. MSU also
argues that the bill repealing the Montana preference statute
was drafted without reference to court jurisdiction, properly
leaving interpretation of tha-t issue to the courts.
Mr. Femling has acknowledged that this issue was not
raised before the District Court. Because it was not raised
below, we will not consider it on appeal. Dodd v. City of
East Helena (1979), 180 Mont. 518, 523, 591 P.2d 241, 244.
IV.
Did the repealer provide for sovereign immunity from
accrued causes of action without a vote of two-thirds of the
members of each house as required by art. 11, sec. 18, Mont.
Const. ?
This issue has been decided in two previous cases. The
legislature could repeal the veterans' preference by a
majority vote at any time. Conboy, 693 P.2d at 552; Nick, 42
St-Rep. at 1933. The repealer does not provide for sovereign
immunity. It simpl-y revokes a gratuity. We reaffirm our
holding that the legislature properly repealed the veterans'
preference.
v.
Did the repealer violate art. 11, sec. 35, Mont. Const.
and the due process clauses of the Montana and United States
Constitutions by retroactively depriving Mr. Femling of a
vested right and entitlement to be employed?
Art. 11, sec. 35, Mont. Const. provides:
The people declare that Montana servicemen,
servicewomen, and veterans may be given special
considerations determined by the legislature.
As we discussed under issue one, the fourteenth amendment to
the United States Constitution and art. 11, sec. 17, in the
Montana Constitution provide that the state may not deprive a
person of life, liberty, or property without due process of
law.
This issue, which we find nearly identical to issue one,
was addressed in both Conboy and Nick. We have held that the
veterans' preference was a government gratuity, and not a
right vested in the veterans, Conboy, 633 P.2d at 552. We
have also held that art. 11, sec. 35, Mont. Const. is a
permissive provision, and does not provide an independent
ground for finding that the veterans' preference is more than
a gratuity. Nick, 42 St.Rep. at 931. Recause the preference
is a gratuity, and not a life, liberty, or property right,
the repealer does not violate the due process clause of
either the State or the Federal Constitution, and it does not
deprive Mr. Femling of a right or entitlement to be employed.
The District Court's order granting MSU's motion to
dismiss is therefore affirmed.
We concur: /
&q.*/, 4 ~ 2
Hbn. Thomas M. McKStrick,
district Judge, sitting in place
of Mr. Justice Wm. E. Hunt, Sr.
Nr. Justice Frank B. :lorrison, Jr. :
As the issues are framed, I concur in the result.
However, I do not agree with a t is said in the majority
opinion.
Mr. Justice John C. Sheehy, dissenting:
I dissent.
We should not approve on any ground an outright refusal
of state employees in managerial position to flout the
applicable statutory law. At the time Femling applied for
state employment at the University, he had a statutory right
to preference, which he claimed. His right to that
employment became vested with his claim for preference. The
statute granting veterans' preference should have been then
obeyed.
An accrued sta-tutory right of action is a vested right
and is to be protected. Stucki 17. Loveland (19 ) , 94 Idaho
621, 495 P.2d 571, 573. Giving retroactive effect to the
repeal of section 10-2-203, MCA deprives Femling of a-n
accrued statutory right. It was no longer a possible
gratuity, once he established his claim and right to the
gratuity. His preference vested, but is now stripped away.
I would reverse with instructions to accord him his rights as
a veteran.