FEMLING v MONTANA STATE UNIVERSITY
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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 - %ibmitted: Decided: Fktr Filed: - -- Clerk October 22, 1 9 8 5 February 7, 1986 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 veterans' preference in hiring. complaint for 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 repealer, the which retroactively extinguished pending claims for violations of the former law. MSU moved for dismissal based upon the new law. argued to the District Court that unconstitutional on several grounds. the new Femling law was He asserted that the new law denied his constitutional rights to access to the courts, due process and equal protection. asserted that the law was In addition, he 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 Constitution. He section of the Montana 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 . of action i n violation of Femling o f a n a c c r u e d c a u s e 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. P.2d 231, 40 Montana S t a t e L i b r a r y St.Rep. statutory veterans' In response Session to a.nd this preference Court determined in Crabtree the Legislature preference 963, employment was decision, retroactively enacted a 1983) , 665 (Mont. the the absolute. 1983 repealed tie-breaker that the Special absolute 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, Compiler's MCA, Ch. Sp. 1, Comments to Mont. L. Sections 1983, 10-2-201 set out through in the 10-2-206, 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 19851, claims." Nick v. Montana - P.2d -, 42 St.Rep. The fourteenth Constitution and 11, Hywys. of (Mont. 1926. amendment art. Dept. to sec. the 17, United in the States 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. S 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 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. to a right vested in the veterans. It did not amount 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 received. Nick, 42 St.Rep. at 1930. by gratuities may be unless . . . and until it is actually " [B]enefits conferred 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 cert. - den. 4 2 4 U.S. (9th C i r . 19751, 523 F - 2 d 935, 940, 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 cause employment does not 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 . Femling's Mr. 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 violate of Mr. Femling's claim t o t h a t g r a t u i t y did not 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 . an " i n j u r y of p e r s o n , White v . 507, 1 6 t o a p p l y , t h e r e must have been property o r character. S t a t e (lilont. 1 9 8 3 ) , 661 P.2d 510: "The language 'every " As stated i n 1272, 1275, 4 0 St.Rep. i njury recognized. cornpensable components o f i n j u r y ' embraces . . ." all The veterans' preference statutes were and are enforceable by court order reopening the selection process. Sections Neither 10-2-206, MCA the recognized statutory violation (1981) and law nor of the the 10-2-226, MCA common (1985). law has preference ever statutes as Jensen v. State, Dept. of compensable in money damages. 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. contends that the repealer has unlawfully deprived District Court of jurisdiction over this case. He the MSU argues that this Court has acknowledged that a statute may wipe out pending causes of action. Concrete Co. Continental Oil Co. v. Montana (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. legislature could repeal majority vote at any time. St-Rep. at 1933. immunity. the veterans' preference The by a Conboy, 693 P.2d at 552; Nick, 42 The repealer does not provide for sovereign 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 applicable statutory law. to flout the 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. 621, 495 P.2d repeal accrued of Stucki 571, 573. section statutory 17. ) , 94 Idaho Giving retroactive effect to the 10-2-203, MCA right. Loveland (19 deprives Femling It was no longer a of a-n 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.
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