*1 OBERG, P. BRUCE CITY OF Appellant, Plaintiff v. BILLINGS, Municipal Corp., Porter, Noel, A Howard D. Rigby Morris, al., and Nathaniel et Defendants Respondents. No. 82-284.
Submitted Jan.
1983.
Decided
Dec.
Peterson, Leckie; argued, Dane Schofield Schofield and respondents. Billings for and defendants opinion the Court. MR. JUSTICE SHEA delivered a appears P. from Oberg, Billings police Bruce officer County District summary the Yellowstone judgment of Billings Police of the upholding Court a determination of insubordina- Oberg guilty Commission that Officer exami- polygraph to take refusing tion for a direct order Police Commission’s nation. The trial court enforced the without Oberg suspended recommendation Officer pe- days, probationary a six-month pay for followed constitutionality of that challenges the Oberg riod. Officer employees of part only of a statute which compelled to take public can be agencies polygraph examinations. five constitu- challenged the statute on Oberg
Officer law exception public He claims that grounds. tional constitutionally guaran- his enforcement violates laws, privacy, protection right of the right equal teed seizure, freedom from from search and freedom unlawful process. due compelled self-incrimination and de- summary judgment We the trial court’s reverse 39-2-304(2), MCA, is an unconstitutional clare that Section employees’ agency law violation Although believe the laws. we of the under the equal protection clause also offends the Constitution, States Amendment to the United Fourteenth of- the statute holding conclusion that we limit to the II, Art. clause under equal protection fends the discussion limit our We therefore our own constitution. remaining not reach the equal protection and do issue issues.
We agreed summarize the statement facts submitted to the trial court. P. Oberg, Billings police Bruce officer ar- complaint police rested citizen who later filed a with the department claiming Oberg that Officer him after struck he was arrested part depart- police handcuffed. As a complaint, ment’s internal investigation of the citizen’s 24, 1979, chief Oberg July formally wrote to Oberg ordered submit to a examination. On 27, 1979, July responded by letter Oberg informing po- lice chief that he refused to submit to the exami- Oberg nation. Officer compliance mandatory asserted that with the chiefs order violated various constitutional rights guaranteed by both the United States and Montana Constitutions.
The Chief of charges Police then filed against Officer Oberg brought Billings matter before Police Commission. The Chief of charged among Police other things Officer Oberg’s comply the order failure with *3 to submit to polygraph a examination constituted insubordination.
The Billings hearing Police Commission held a and later 15, 1979, on October Oberg found Officer of insubor- guilty dination and Oberg disciplined by ordered Officer re- from duty days moval fifteen all wages with forfeiture of period for that together imposition time with the of a six period. month probationary 1979, 19,
On city October the acting administrator issued enforcing order the decision of the commission. On petition December filed a Yellow- Oberg County judicial stone After the District Court for review. pleadings were filed both and the moved for Oberg summary on judgment ground that no issues material presented fact were The the trial court for resolution. granted City’s summary trial court judgment motion for polygraph applied and held that provision officers was constitutional. MCA, involved, 39-2-304(1), provides:
The statute Section prohibited exception. tests “Lie detector — “(1) firm, entity or other business person, corporation, No representative require as a condition for or thereof shall any person or employment employment continuation detec- or form a mechanical lie any take test guilty of a A who section person tor test. violates this misdemeanor.
“(2) public enforce- apply shall not law This section ment agencies.” (2) law public
We hold that Subsection denies of the law viola- agencies equal protection Con- Montana provisions. tion of The state constitutional stitution, II, Art. states: is in- dignity. being human
“Individual dignity of the person violable. No shall be denied firm, corpora- any person, nor
the laws. Neither the state tion, any person against or shall institution discriminate race, account of political rights the exercise of his civil or condition, color, political or sex, culture, social origin or religious ideas.” employers give upholding exception permits
In agencies, tests analysis. The court scrutiny trial applied trial court a strict was al- privacy violation assumed that because a However, we analysis required. leged, scrutiny strict right is a fundamental allegation have held that a mere scrutiny analysis. trigger a strict burdened is insufficient (Mont. 1981), Com’n. & Game Godfrey v. Mont. Fish chal- Here, the plaintiff St.Rep. 631 P.2d failed to but has legislative classification lenged general either the classification lay groundwork a claim suspect crite- right or involved burdened a fundamental *4 free- privacy, include rights Examples ria. fundamental right vote and religion, right to speech, dom of freedom of wealth, are suspect criteria Examples to interstate travel. race, nationality alienage.
Plaintiff gone beyond has not allegation the mere that the required polygraph privacy. test his The right violated against accusations plaintiff unquestionably his involved officer, as police work a reasonably and as such he could not claim police department that not investigate could his upon actions complaint. ques- based He citizen’s could be tioned and required cooperate otherwise with an interde- partmental investigation complaint. on based the citizen’s plaintiff Because we feel any that failed show funda- right statute, mental was substantially by the abridged we determine unnecessary it was apply strict scru- tiny analysis to However, challenged part the statute. even under the less vigorous test that a classifica- requiring tion must relationship bear rational a legitimate gov- purpose, ernmental 39-2-304(2), MCA, still must a challenge fail protection under the equal clause of our state constitution.
This Court cannot determine whether this classification bears a rational relationship legitimate governmental to a purpose because expressed there is no purpose for the clas- sification on face legis- statute or in the statute’s history. lative For reason, the challenged part of the face, is vague overbroad and an unconsti- tutional plaintiff’s violation of equal protection of the law. (1) employers
Subsection the statute is directive to all private they them telling state — — cannot subject prospective employee employee examination, em- gaining either a condition of ployment employment. or as a retaining condition of crystal (2), however, intent clear. Subsection is different. That subsection un- people creates a class who for some against declared reason to receive the (1). compelled polygraphs provided in While the Subsection courts are seldom of legislation, concerned with the wisdom legislation is vital concern where constitutionality challenged of a statute is as a denial of *5 protection. example, legislature intend, for Did the only police officers, em- that not but other law enforcement ployees dispatchers, secretaries, clerks, meter maids such as poly- dogcatchers subject requirements a and to the of be employees graph people All as much examination? these police agencies of law as are officers.
No basis is from the statute that rational discernible justify “public excluding employees would of law enforce- agencies” protection pri- given to ment from the all other gives public employees and The exclusion vate this state. scope, legislative limit of the his- no the classification’s tory background is so no scant that it substantive regarding scope of classification. the or the applying City as
The would have us read the exclusion police only officers, read the exclusion so but we cannot employees narrowly. Rather, to include all it must be read public agencies. all these To hold that law enforcement of the statute were not entitled to benefit wording The them second citizens. loose make class pur- guidelines from which and absence of enforcement pose might discerned, make his for the classification be face. statute unconstitutional permit City argues the statute must at least police administering polygraph officers. examination may special purposes placed Police in a class for officers be City argues, administering polygraph examinations, the public position they occupy particularly high because goal trust, law enforce- it is the maintain integrity. argument highest But ment agencies. departments governmental less no true for all employee pro- government or Still, statute, no under compelled spective government employee to take can be job applying for a he was examination unless agency.” “public job or law enforcement with had a with a citizenship tempted class We are not to create second “public tailoring police by redefining the term officers apply only agencies” officers. It would not be fair this Court to save the ex- statutory ception by up dreaming relationship gov- a rational to some purpose by filling ernmental the void left and declaring that necessity high stan- maintaining dards justification statutory officers is for the exception. part The first of the statute is a clear declaration policy employer that forbids use of ex- aminations conditioning employment tool for con- employment. tinued If statutory protection this blanket all employees is to withdrawn from employees, a class of Court, it is legislature, not this that must define that class and set forth policy behind denying the *6 expressly granted all employees to other state.
In arguing the public police maintenance of trust of- ficers as justification giving for them examina- tions, the speculate has had pur- to this was the pose behind the amendment the statute. We also would be required speculate purpose on the behind the amend- statute, ment. The before it was amended to include Sub- (2), section clearly intended to all private benefit and public employees and employer to act as a bar to use of polygraph for employees prospective employees. or. Under these circumstances we equipped are neither nor inclined define purpose behind “public Gangi Schulte agencies” In Co. v. exception. a dissent 108, 121-122, U.S. 66 S.Ct. 90 L.Ed. Justice Frankfurter wrote that “the ‘policy’ of statute should be drawn its by out of terms as their nourished environment, proper not, like of air.” nitrogen, out We believe this to especially be so where the has legislature enacted legislation private of public the benefit employees state, of this special but then creates a class that is not entitled to the It is our statute. not role to breathe into life a statute that is unconstitutional its will grab face. We out of the air what we consider to be acceptable an judicial ac- legislative rationalization tion. The legislation purpose policy must declare the Here, it to do so. its laws. has failed behind occupy position police officers We cannot doubt breathe public but this fact does not society, trust sought whose enforcement ambiguous life into wording police By the clear exclusively against officers. dog- secretaries, maids and statute, dispatchers, meter law as much catchers are officers, they occupy do not police but agencies as re- that must concomitant trust position power same law en- “public To hold that all side in our forces. statute, compelled, can under agencies” forcement them all examination, stamp would be take a restricting interpretation And an as second class citizens. an even stamp officers the classification as second class citizens. smaller class regulating adopted legislation similar Other states have Some employment context. of lie in the use detectors on the exceptions to the ban provided these states have also law en- singled even out of lie some have use detectors and such purpose behind Regardless agencies. forcement states, when our a classification other statutorily classi- created failed to declare We cannot fication, jurisdictions. will not look to other we in other legislation purpose behind similar rely on the when in our own state ambiguous statute states to save an *7 behind has failed to declare provided specifically Interestingly, statute. California compelled to take “public safety officer” can be that no any way cannot refusal polygraph test and the officer’s See, Section Cal. Gov’t. Code employment his status. affect (West 1971). the statute any evidence legislature provided Had the posi- of their police officers because only apply to to up- no trouble have integrity, we would tions of high relationship test. under the rational holding the statute under the However, be attacked could still such a statute officer up challenging would be to scrutiny It strict test. provide right, to evidence that a such as inva- fundamental privacy, up sion be It then be violated. would government compelling public the state or local show a justify II, interest to the invasion. Art. of our every protection state constitution citi- dignity.” zen’s “individual It cannot be doubted that sub- jecting dig- one to a lie detector test an affront one’s nity strictly and unless structured can be invasion of privacy. legislators types The were concerned with the questions by polygraph that can be used examiners to es- response pattern expressed tablish a and this concern was hearings preceding passage in committee statute. this (See Employment House Committee on Labor and Com- 1974.) January Minutes, mittee We cannot assume that administering questions examination employment-related would be confined to matters. Assum- ing statutory exception furthermore, that a were enacted specifically general exclude officers from the statu- tory protection granted employees state, all other we exception doubt that such an would survive a at- sustained scrutiny tack under the strict test.
Although 39-2-304(1,2), MCA, we declare unconsti- plaintiff equal protection tutional because it denies to emphasize law, we nonetheless that of law questioned re- can be or otherwise quired cooperate ininterdepartmental investigations. against plaintiff accusations involved his work as reasonably officer, and as such he could not claim that the police department investigate could not based his actions complaint. police department’s However, a citizen’s plaintiff order that take examination violated plaintiff’s of the law.
The order the District Court is reversed.
MR. JUSTICE SHEEHY concurs. specially concurring: MORRISON,
MR. JUSTICE *8 286
I in disagree concur the result but with “rational basis” as premise for this result. II, Constitution, Montana Article provides: right
“The to the well- privacy of individual is essential being infringed society of a free and shall not be without showing of a state interest.” compelling pub- employees 2 subjects Subsection of Section 39-2-304 right agencies lic law to an invasion their to submit privacy allowing employers require them of a to conceive polygraph examinations. It is difficult argued it although could greater privacy invasion require police officers compelling there is a state interest no compelling there is to submit examinations law enforce- requiring state interest so ment submit. right, implication
This case involves of a fundamental scrutiny at- privacy, therefore strict right is the (Mont. 363], v. State 1983), 661 taches. White Mont. [203 St.Rep. P.2d 40 justifia
I there is no agree opinion with the majority However, important it is legislation. ble basis this class case, Constitution, in extends to note that our State Constitution. the Federal greater than does State Constitu specific privacy There provision is a requires fundamental implicates tion which may may not be true under analysis. This scrutiny strict equal pro a broader the Federal Constitution. We accorded State, supra, v. of constitu tection in White on the basis State Constitution present tional the Montana language The same ra Constitution. present but the Federal turning solid basis for applies provides here tionale the Federal rather than this case on the State Constitution Constitution. 39-2-304, MCA, is unconstitu-
Subsection of Section Subsection from the statute. tional and must be stricken be sub- employee shall that no of the same statute jected to a language pro- examination and this tects P. Oberg, appellant. Bruce
MR. JUSTICES HARRISON and WEBER concur. *9 CHIEF HASWELL, MR. JUSTICE dissenting: I 39-2-304(2), would MCA, hold Section on constitutional its applied face and as to the facts of this case. outset,
At the
Officer Oberg
standing
lacks
attack
ground
requires
statute on the
that
it
other
(such
secretaries, clerks,
as
dis-
catchers)
patchers,
dog
poly-
meter maids and
submit
graph examinations.
is
The normal rule
that constitutional
rights
personal
person
and a
cannot
defeat a statute
ground
in
might
it
applications
other
violate
United States v. Raine’s
rights of
persons.
(1960),
third
17,
519,
524;
Broderick v.
362 U.S.
80
4
S.Ct.
L.Ed.2d
Oklahoma
601,
(1973),
2908,
413 U.S.
93 S.Ct.
37 L.Ed.2d
830;
Risley
Wurtz v.
et
(9th
al.
1983),
Cir.
Secondly,
is
required
express
pol-
icy
in
behind
laws
order to withstand an
equal protection
discriminatory
attack
an alleged
based on
Examples
up-
classification.
abound
Montana case law
holding legislative
expressed pur-
classifications absent an
v.
Smith
pose
policy
Linder
for the
classification:
(Mont. 1981),
1187,
629
38
912
St.Rep.
(upholding
P.2d
constitutionality
Act);
of Montana Medical
Panel
Legal
Matter
Montana
Gas
(Mont.
Pac. Oil &
Co.
1980),
614
1045,
P.2d
St.Rep.1238
37
(upholding constitutionality
legislative
applicable
producers
classification
mineral
v.
minerals);
holding unclaimed
interests
Gafford
(1977),
380,
172
(upholding
Mont.
constitu-
statute). relationship legit- I
Finally, to a hold a rational classifying in this imate state interest exists case treating agencies” differ- “employees of law enforcement ently employees. from other provisions of recognized This Court has similar “[t]he Mon of the United States and clauses inde equivalent but provide generally tana Constitutions Em pendent protection respective jurisdictions.” in their ery P.2d cert. v. State 580 Mont. denied, basis L.Ed.2d No U.S. 99 S.Ct. Montana Constitu proceedings can be found an intention treat tional Convention to indicate differently its counter equal protection guarantee any than who attacks a part in the United States One Constitution. burden equal protection has the violating State v. Jack arbitrary. proving that the classification *10 456, (1975), Oberg P.2d 726. Officer has 167 Mont. 539 failed to do so. en
A of law rational basis exists the exclusion on the use of lie agencies prohibition forcement from the of the lie detec That basis is the use detector tests. rational of a maintenance investigations tor in internal beyond highest integrity and department that “is of the 376, (1977), Ariz. v. Blubaum 114 suspicion.” Eshelman (1958), v. Sheridan McCain also, 1283, 560 P.2d 1285. See Person v. State 923; Fichera 174, 160 P.2d Cal.App.2d 324 159; 613, nel Board (1963), Cal.Rptr. 32 Cal.App.2d 217 (1967), Commissioner v. Police Coursey Board Fire and of Po v. New Orleans 339; Roux 31, 90 234 Ill.App.2d N.E.2d 905; Seattle 1969), Department lice (La.App. 223 So.2d (1972), 80 Wash.2d City Guild v. Seattle Police Officers’ of Pasadena City v. Richardson 485; 307, 494 P.2d of Kelly v. Dolan 175; 1973), 500 S.W.2d (Tex.Civ.App. City v. 478; Baker (1973), 76 N.Y.S.2d Misc.2d 348 Department (Mass. 710; 1979), Lawrence N.E.2d 409 (Fla. 1981), 398 So.2d Highway Safety, Etc. v. Zimmer states, Montana, About ten including passed have similar legislation regulating in employ- use tests 23.10.037; See, ment situations. Stat. Cal. Alaska Section (West 1971); Labor Code Section 432.2 Cal. Gov’t Code (West 1971); Section 3307 31-51g Conn. Gen. Stat. Section (1983); (1979); 19 Del. Laws 704 Hawaii Stat. Section Rev. (1976); 378-21 44-903, (1977), Idaho Code Sections Md. Ann. (1978); Code Art. Section 95 Mass. Gen. Laws (West Ann. Ch. 1982); 19B Or. Rev. Sec- Stat. 659.225, tions 659.227; R. I. Gen. Laws Section 28-6.1-1 (1979); (1974). Wis.Stat. Section 111.37 Of nine other those states, (Alaska, California, five Connecticut, states Idaho Maryland) specific have enacted exclusions for a class of employees. The range police depart- exclusions from ments and law In agencies. federal instance, each the state recognized a rational ba- sis for such classification.
The compelling interest which necessitates the classifica- tion succinctly Supreme described Court Washington: “A department is a highly-sensitive agency duty protecting entrusted and charged with the the community it serves from the evils of corrup- crime and tion. To efficiently effectively accomplish its mission it requires respect regard public, and when it has reason to believe may that some of its members be en- gaging disreputable practices, it valid interest purging itself of practices through departmen- such internal tal procedures and the to require cooperation the full membership to this Seattle Police end.” Officers’ Guild v. Seattle P.2d 80 Wash.2d *11 485, 490.
Public law occupy unique position enforcement officials they empowered that are which do certain acts can have vast empow- are far-reaching consequences. They ered to deprive persons only time —of even for short —if the They most cherished of the of freedom. rights, 290 empowered finger persons, point accusing an at
the room for chal- weight authority of their leaves little confines, to lenge. They power, have take within certain short, they physical In have an liberties with individuals. else, private, When authority which no one or has. alleged irregularities those for officials come under fire duties, is performance their the cloud which results whom potentially only against the official damaging not made, as whole. allegation organization but efficiency its organization, When a cloud over such hangs As been diminishes. deteriorates and its effectiveness recognized: empow- very
“. . . he has sworn and violation laws their duties [policemen] perform ered . can to enforce. . mass of only they if the trust and confidence merit tends to that trust law-abiding citizens. Whatever weakens v. Sheri- McCain enforcement.” destroy system law dan (Cal. 1958), 324 P.2d Cal.App.3d 160 In dif- employees of law enforcement respect, substantially public employees. fer from other prop- a reasonable classification erly doing not offend Oberg in so did included (Mont. 1982), v. Turk protection guarantees. [197 St.Rep. has not been 39 584. It 311,] Mont. 643 P.2d the intended class. challenged by anyone outside require Oberg Nor, application did applied Oberg, pri- of individual matters to incriminate himself to discuss Oberg vacy or seizure of or to allow unlawful search in- Oberg was incriminating evidence. purpose acquiring an internal formed that the test would is no indication There complaint. of a citizen’s investigation asked would he have been questions narrowly the perform- specifically have been related would have the results duties ance of his official proceeding. subsequent criminal him in a against been used 493, 87 S.Ct. Jersey New (1967), U.S. Garrity v. Under U.S. v. Broderick 562; Gartner L.Ed.2d *12 273, 1913, 88 S.Ct. 1082; and, L.Ed.2d 20 L.Ed.2d Assn., Sanitation Men Inc. v. Sanitation Com- Uniformed missioner New York 392 U.S. S.Ct. 20 L.Ed.2d such result would not be admissible.
To otherwise, hold reduces those who complain brutality to the status of second-class citizens withhold- ing investigative normal against tools from use officers.
I would affirm.
MR. JUSTICE GULBRANDSON concurs in the foregoing dissent of the Chief Justice.