*1
WADSWORTH,
SHANNON L.
Respondent,
Plaintiff
STATE OF MONTANA AND ITS
OF REVENUE,
DEPARTMENT
Appellant.
Defendant
No. 94-602.
Submitted October
1995.
February 26,
Decided
1996.
St.Rep.
146.
For McCafferty, James, Dennis Gray & McCafferty, Great Falls (argued). Respondent:
For Olson, Attorney Kenneth R. Law, at Great Falls (argued).
JUSTICE NELSON delivered the Opinion of the Court. (State) (DOR) The State of Montana and its Department ofRevenue appeal from the final judgment entered Eighth Montana Judicial Court, District County, Cascade following jury trial finding that (Wadsworth) Shannon Wadsworth wrongfully was terminated from his DOR; finding with said wrongful termination was the proximate damages cause ofthe suffered Wadsworth; and awarding $85,000 in damages. We affirm.
ISSUES following are issues appeal: on 1. Did the District Court err in not granting the State’s motion for summary judgment based on Wadsworth’s failure to appeal peti- his judicial tion for review?
2. Does Wadsworth have a fundamental constitutional right to the so, to pursue employment and, if did the provide compelling interest for infringing upon right? *5 allowing Court err in prejudicial
3. Did the District irrelevant and of treatment which Wadsworth claimed he received prior evidence employment? the termination of his in allowing prejudicial
4. Did the District Court err irrelevant and employees they evidence of treatment which other DOR claimed from DOR? received in allowing improper opinion, specu- Did the District Court err
5. testimony? lation, legal and conclusion
BACKGROUND began working as a real estate for DOR in appraiser Wadsworth 14, 1981, enacted September On DOR conflict-of-interest rule engaging independent DOR from in fee precluding appraisers 81-2 sales, brokerage during real estate or activities their appraisals, off-duty provides: hours. Conflict-of-interest rule 81-2 very requires nature of this Division’s work that our em- credibility objectivity and as high attain a level viewed
ployees arise, When situations such as conflicts taxpaying public. interest, integrity either of the jeopardize requirement, respective appraisal as well as the and assessor offices Department include, detrimentally Examples affected. of conflicts ofinterest to, appraising, selling (excluding not limited fee real estate but are and or personal property), operating residence or the sale of one’s working for a real estate firm. undertakings, appearance the actual risk of and/or
In such Engaging that occurs cannot be tolerated. in such impropriety immediate disciplinary may action and bring activities will about in termination. result him of informing Wadsworth received a letter
In December claiming He that the grievance conflict-of-interest rule. filed unfair, and unconstitutional. discriminatory, rule is that the rule was “un- The DOR Grievance Committee concluded However, July 27,1982, the Director unnecessary.” on reasonable and recommen- DOR, Feaver, rejected the Grievance Committee’s Ellen to be rational and reasonable policy statement dation and found application. petitioned Wadsworth sustained the rule’s and thus County, District, Cascade Judicial Eighth Court of the District enter an order requested and the court Ellen Feaver’s decision review unnecessary, in rule 81-2 is policy that DOR’s statement stating by DOR. arbitrary police power exercise of unreasonable, and an grievance a new 20, 1986, the District Court ordered On October the initial were tapes hearing held from hearing to be because grievance hearing held another and subsequently DOR missing. policy statement. The uphold recommendation to its submitted Committee’s DOR, LaFaver, adopted the Grievance Jon Director recommendation DOR’sfinal decision. and decision, grievance gave DOR denied Wadsworth’s
In its final days appraising, to divest himself of all interests fee firm, estate, working for a real estate operating real or selling disciplinary activities would result in action engaging such termination. The State then moved to dismiss possible judicial subject review for lack of matter petition for Wadsworth’s granted The District Court the State’s motion and dis- jurisdiction. did not petition judicial review. Wadsworth missed Wadsworth’s *6 this order. appeal from 1989, directed with the comply
In March of DOR Wadsworth days. rule Wadsworth commenced a new within conflict-of-interest complaining disciplinary DOR action directed at grievance with rule. The examiner violating hearing him the conflict-of-interest for private ap- had to divest himself of his fee found that Wadsworth 27, face In a letter dated November praisal discharge. business or 1989, the Director of DOR a final decision wherein he adopted officer, hearing policy the decision of the confirmed the accepted 81-2, 9-day suspension in rule sustained Wadsworth’s statement days had 30 to divest pay, without and indicated Wadsworth appraising selling of his interests in fee real estate. On himself terminated 16, 1990, from his February employ- DOR Wadsworth activities. refusing give up employment ment for his outside 1990, discharge filed a suit wrongful In November of Wadsworth District, County. Eighth Court of the Judicial Cascade in the District summary judgment arguing for that as a matter of The State moved and Wadsworth’s law, wrongful termination was not Wadsworth’s contrary rule is to the contention that DOR’s conflict-of-interest barred his failure and Montana Constitutions was United States judicial ofhis for review. The District petition the dismissal appeal summary The State judgment. the State’s motion for Court denied regarding to exclude evidence seeking filed a motion in limine then The District prior Wadsworth to his termination. DOR’streatment of trial. proceeded the case denied the State’s motion and again Court termination claim wrongful Wadsworth’s moved to dismiss State case and renewed at the close of Wadsworth’s a matter of law motion at the close of the evidence. The Court denied District State’s motions and submitted the case jury. submitting jury, case to the the District Judge included
instructions rights on fundamental and that rights may not be infringed showing without a of a compelling state jury interest. The rendered a verdict in Wadsworth’s favor awarding $85,000 damages. him appeals DOR judgment final rendered following jury trial.
DISCUSSION 1. Did the District Court err in not granting the State’s motion for
summary judgment based on Wadsworth’s failure to appeal his petition judicial for review?
The State argues that the District Court erred in not dismiss
law,
as a matter
ing
of Wadsworth’s claim that
his
was
wrongfully terminated. The State claims that Wadsworth raised his
arguments
constitutional
when
challenged
application
he
of the
petition
judicial
conflict-of-interest rule in his
for
review and there
judicata
fore the doctrine
raising
of res
bars him from
again
them
Conversely,
this matter.
argues
brought
he
instant case under the Wrongful Discharge
Employment
from
Act
(WDFEA) and
subject
thus raises a different
matter and different
petition
judicial
issues from those in his
review. We review a
ruling
summary
district court’s
on a motion for
judgment de novo.
M.S.B.,
(1994),
465, 470,
Mead v.
Inc.
Mont.
872 P.2d
The State relies on our decision in Matter
Estate of Pegg
209 Mont.
authority
as the sole
for its argument. In
ofPegg,
Pegg
Estate
Walter
was killed in a helicopter crash and died
wife,
Pegg’s
Virginia, sought
intestate.
third
appointment as the
*7
personal representative
Pegg’s
of his estate.
petitions
ex-wives filed
requesting
Virginia
personal representative
be removed as
of
Pegg’s estate. The District Court concluded that there was no evi
support
Virginia
personal representative
dence to
removal of
as
petitions.
again
petition
denied the
The ex-wives
filed a
for removal
Virginia
personal representative asserting
grounds
as
new
for the
of Pegg,
orally
Estate
(1) same; matter each action must subject be (2) same; or their of each action must parties privies be (3) subject the issues must be the same and relate to the same matter;
(4)
capacities
persons
ofthe
must be the same and relate to the
subject
same
matter and the issues between them.
Bozeman,
City (citing State ex rel. Harlem Irr. Dist. 943.) v. Judicial Dist. Court 271 Mont. present Wadsworth’s action does not meet the four criteria set forth City Bozeman. Wadsworth’s WDFEA claim involves a different subject petition judicial review, matter from his for different issues petition judicial review, from his for and the capacities of the parties changed subject had in relation to the matter and the issues between Initially, them. Wadsworth and two other DOR employees sought judicial of the review Director of DOR’s decision to reverse a three- conclusion that person panel’s the conflict-of-interest policy was and sought subsequent unreasonable review ofher decision to re-im- plement policy. case, In the termination, instant after his claim brought against a WDFEA Although the State. it parties issues, involves the same and some of the same it is a distinct separate proceeding subject judicata. to res Wadsworth’s claim distinguishable WDFEA is also from Estate of Pegg unjustified in that it did not involve an delaying action nor was requesting it a second action relying grounds. same relief on new Accordingly, law, as a matter of the District correctly Court denied summary judgment. the State’s motion for 2. Whether Wadsworth has fundamental constitutional and, so, pursue employment if whether the provided compelling infringing upon right? incorrectly argues
The State the District Court referred jury argues to determine. The State further questions of law to questions implicit analysis are no of fact in the of whether that there unconstitutionally infringed upon the conflict-of-interest rule *8 296 by Wadsworth, only asserted a question of law for the judge to
determine. 26-1-202, MCA,
Sections 26-1-201 and province delineate the jury. of the court and the These provide sections as follows: Questions 26-1-201. of law. Except provided II, Article 7, constitution, section of the Montana questions law, all includ- ing admissibility testimony, the facts preliminary to such admission, the construction of statutes and writings, other and evidence, by other rules of must be decided the court. Questions by 26-1-202. of fact. If a trial jury, questions all fact other than those mentioned in 26-1-201 by must be decided jury, and all evidence thereon must be them, addressed to except provided by as otherwise law. If the trial question of a by jury, fact all is not evidence thereon must be addressed to the court, trial which shall decide such question. 25-7-103, MCA,
Sections 25-7-102 and similarly set forth issues of by law to be decided courts and issues of fact to be decided juries. 26-1-201, MCA, Section states that it is the province of the court to and writings. construe statutes other clearly Montana’s constitution writing,” interpretation constitutes an “other of which is appropriately within the of the province judge jury. not the (1980), example, 528,
For State v. Poncelet 187 Mont. 610 P.2d 698, upheld ruling we a trial court’s not to testify allow a witness to constitutionality about the of a law because interpretation [t]he application the United States Constitu- tion was a question law not a fact in issue. It was a judge determination to be made the trial statutory within his powers.
Similarly, we have held a defendant’s attack on the constitutional
ity of
compulsory
liability
Montana’s
automobile
insurance statutes
presented only questions
311,
of law. State v. Turk
197 Mont.
224,
643
228. A
constitutionality
P.2d
determination ofthe
ofthe
required
analysis
statutes
an
of what rights were involved and the
corresponding
scrutiny
liability
level of
apply
insurance
liability
statutes. Because the
insurance statutes burdened a consti
tutional
but not a fundamental constitutional
right,
only had to
rationally
show
statutes were
related to a
objective. Turk,
legitimate governmental
297
(whether
(Co.
1351, 1354
1993), 843 P.2d
challenged legislation bears
legitimate
reasonable relationship
government
interests is a
(Wis.
law);
question
1982),
State v. Holmes
N.W.2d
(constitutional questions
law);
n.7
are questions of
Racine Steel
(Wis. 1988),
Hardy
Castings
N.W.2d
35 (constitutionality
*9
(10th
law);
a
question
of
statute is a
of
Valdez v.
1993),
Gunter
Cir.
(1993)
91, 93,
151,
114
988 F.2d
cert. denied
S.Ct.
Moreover,
(1994),
43, 47, 887
in State v.
269
199,
Pastos
Mont.
P.2d
202,
recognized
we
government
“when the
upon
intrudes
a
any
right,
compelling
fundamental
state
for doing
interest
so must
closely
only
be
tailored to effectuate
that compelling interest.” We
analysis
concluded
state interest
compelling
is a question of
Pastos, 887
at
Pastos,
legal
law.
P.2d 202. In
question was whether
a
there was
state
compelling
justified
interest which
a routine,
inventory
on,
administrative
search ofthe personal property
or in the
of,
possession
the arrestee at the station house
a
following lawful
Pastos,
arrest.
tion of the strict test is a question of law. Woodland v. City (5th 1991), 134, 138. Houston Cir. 940 F.2d Woodland, the circuit question court stated that the city whether the police department’s interest in pre-employment polygraph testing outweighed appli privacy cant’s question interest was a law and should not have been Woodland, jury. 138; submitted to the 940 F.2d at see also Evans v. (Co. 1993), Romer 1270, 854 P.2d cert. 114 419, denied S.Ct. 126 (1993) L.Ed.2d 365 (holding question that the of whether an existing right strictly constitutional is is a infringed question of law)(citing (10th 1991), Lafferty 1550, v. Cook Cir. 1546, denied, 949 F.2d cert. 911, 112 1942, (1992)); 504 U.S. 548 Thompson S.Ct. L.Ed.2d v. (1995), Keohane 116 S.Ct. 460, 133 (noting L.Ed.2d 383 custody” declaration that “in question may guide police, is one of law law). unify precedent, and stabilize case, In the instant Wadsworth claimed that the conflict-of-in unconstitutionally upon terest rule infringed right his fundamental pursue to the opportunity employment. presented Wadsworth a question of law—i.e. whether he had a fundamental constitutional right and State compelling infring whether the showed a interest for Thus, ing upon right. question before the District Court was legal containing no implicit questions issue of fact. Accordingly, law, we review as a conclusion of the District of whether the right Court’s determination asserted was constitutionally protected right, constitutionally protected, and if if right, it a fundamental it was whether was provided a right, compelling infringing whether the State questions law de novo to determine upon it. We review whether v. County of the law is correct. Carbon Union interpretation court’s Co., (1995), 459, 469, 680, 686; Coal Inc. 271 Mont. P.2d Reserve Steer, 474-75, 245 Mont. Department Inc. Revenue Here, interpreted the District Court law its instructions jury as follows: number 15: All have as an inalienable persons Instruction life’s necessities. The pursuing basic subject but to exercise in employee an not absolute terminate provisions. accordance with constitutional You that the right: number 9: are instructed Instruction necessities; acquire, possess protect property; life’sbasic rights. rights are fundamental Said shall not be privacy individual infringed by showing compelling the State without the *10 interest. jury, questions the
However, submitting District Court erred in to the determined. We hold this to that the court itself should have of law that, out, came the error, point jury shall to be harmless we jury instructions de Accordingly, conclusion. we review correct to this case. applicable of the law novo, as statements II, 1972 Article section 3 Mon asserts that life’s right pursue the inalienable to Constitution establishes tana necessarily to right opportunity includes necessities which basic wrongfully terminated him because he that DOR living, earn a and constitutionally right. Article II of Montana’s protected asserted this Rights, various constitution, Declaration of enumerates entitled rights” set forth at which are certain “inalienable rights, among provides: section 3. That section rights. certain inalienable are free and have persons
All born environment and to clean and healthful a They right include defend- necessities, enjoying and basic pursuing life’s rights protecting and liberties, acquiring, possessing their lives and ing all health and safety, happiness their seeking and property, 299 ways. these all enjoying rights, persons recognize lawful corre- responsibilities. sponding
While section 3 does not refer to “fundamental rights” se, per nevertheless, may we held right have a be “fundamental” under right Montana’s constitution if the is either found in the Declaration Rights right or is “without which other constitutionally guaran rights teed meaning.” Community would have little Butte Union v. (1986), 430, 1309, Lewis Mont. 1311-13 (holding welfare). constitution right Montana’s does not create a to inalienable to life’s right pursue basic necessities is stated in the and Rights Declaration of is therefore right. specifically While not enumerated in the terms of Article II, constitution, opportunity section 3 of Montana’s to pursue is, employment nonetheless, to necessary enjoy right pursue life’sbasic necessities. See Globe Newspaper Superior Co. Court for County 596, 604, 457 U.S. 2618-19, 102 S.Ct. Norfolk (First 73 L.Ed.2d encompasses Amendment rights those that, specifically while not enumerated in very terms of the Amendment, necessary enjoyment are nonetheless of other First rights). practical matter, Amendment As a employment serves not only provide income for the most necessities, basic of life’s such as food, clothing, shelter for the worker and family, the worker’s but many, most, employment provides if not only also their means to life, secure other including essentials modern health and medical insurance, retirement, day We care. conclude that without the right opportunity employment, right to pursue life’s basic necessities would have little meaning, because it is pri marily work and through enjoys one exercises and right. this latter fundamental Accordingly, constitutional we hold pursue employment, while specifically right enumerated as a fundamental constitutional II, under Article is, section 3 of constitution notwithstanding, necessarily Montana’s encompassed within it and is itself a fundamental it because constitutionally guaranteed “without which other rights Butte, meaning.” would have little P.2d at 1311.We also hold that correctly interpreted the District Court the law in its Instructions *11 9. number 15 and of is interpretation supported
This Montana’s constitution the jurisdictions which their decisions of other have held state constitu- encompass right opportunity pursue tions to a fundamental to employment. example, right pursue any proper For the to vocation 300 personal liberty the clause of Indiana’s state constitution is a
under (Ind. Kirtley 1949), 712, v. 84 right. N.E.2d 714 of (holding regarding that a statute sale tickets interfered with owner). and of a personal property rights and ticket liberties Kirtley, Supreme personal In the Indiana Court construed Indiana’s only restraint, not freedom from servitude and liberty clause to confer everyone in the of right powers “the to be free use their in but also may in as happiness calling they subject such choose pursuit only necessary to secure common welfare.” to restraints work, Similarly, Florida, right living acquire “[t]he to earn a and in from the fruits one’s labor is an inalienable property possess (Fla. 252, 255. 1953), Lee, v. 66 In the Florida right.” Lee Delmar So.2d a a prohibiting held that resolution real estate sales Supreme Court depriving was invalid as sales operating part-time from person and earn a an right living inalienable to work person his Lee, 66 to the Real Estate Commission. So.2d power granted excess (Mass. 1974), v. Service Commission at In Town Milton Civil 255. 33, 188, 192, citing (1915), 41, Truax v.Raich 239 U.S. 36 312 N.E.2d 10, 131, 135, the Court of Massachusetts 7, Supreme 60 L.Ed. S.Ct. certainly living earn a true “[i]t stated society.” our But the court also clarified that right is fundamental right public employ that there is no equally basic axiom “[i]t is an (discussing residency Milton, at 192 durational 312 N.E.2d ment.” requirements). job
Likewise, right particular to a distinguish we through basic necessities from the life’s legislature may elect not to confer a property ‘While the employment. may constitutionally it not authorize [public]employment, interest, conferred, appropri once without of such an deprivation (1994), v. safeguards.” Boreen Christensen Mont. ate procedural 410, 761, 764 Cleveland Board Education 405, (quoting 884 P.2d 1487, 532, 541, 1493, 470 U.S. S.Ct. Loudermill 503). essence, contract, regulation, or policy, absent a L.Ed.2d an employment, employee term of does specified providing statute job. Boreen, at 884 P.2d particular interest in a property not have germane this distinction in Court made Oregon Supreme (Or. 1966), by stating: Minielly v. State person that while a does appear to be drawn ...would The conclusion employed public, constitutional be have a not prerequisites upon place unconstitutional government is free
301 public nor securing employment right does it have to ignore the constitution if it to desires terminate such employment. II, while Article section 3 of Accordingly, Montana’s constitution encompasses right opportunity pursue to the to employment generally necessary as incident of the fundamental right pursue to necessities, life’s provision not, basic our constitution does more, grant right any without or interest in property particular job employment. contrary. Wadsworth makes no claim to the Wadsworth does not right claim a job, constitutional to his state but instead claims that employment job State, pursuing addition to his with the he has right the constitutional to pursue necessities, life’s basic acquire to and to property, be free from the State’s interference with his lawful activities. Wadsworth claims that the State infringed has these funda- rights, deprived mental not that it a right him of to a specificjob. argues
The State that because cities or counties may restrict employees’ ability to jobs by work in outside placing restrictions on residency of their employees, may DOR similarly restrict ability Wadsworth’s to pursue employment by placing restrictions on type may of outside he employment pursue. It is true that cities may place officers in a police separate category impose residence requirements on the officers because the duties pro and interests tected by police sufficiently are of a distinct character from those (Pa. governmental other employees. Brenckle v. Township Shaler (a 1971), 920, 281 A.2d 922 moonlighting case decided to right on However, grounds). residency travel discussing cases requirements no application they have to the instant hinge case because on the right to right travel and do not discuss the to life’s basic necessities or the right opportunity to the to pursue employment. Shapiro v. See (1969), Thompson 618, 394 600; U.S. 89 S.Ct. 22 L.Ed.2d Memorial v. Hospital Maricopa County (1974), 415 U.S. 94 S.Ct. 306; 39 L.Ed.2d Cole Housing Authority City v. Newport (1st (D.N.J. 1970), 807; Kugler 1972), Cir. 435 F.2d v. Krzewinski 338 F.Supp. (compelling requiring state existed in police officers in municipality). to reside
The Appeals State also cites a California Court of case in which an challenged a rule employee limiting the number of hours she could employment work in outside on the that the basis rule constituted an County presumption. Baity Angeles irrebuttable Los Civil Service 812, 813. courtiaBaity Commission Cal.Rptr. didnot analyze upon the rule in to infringement opportunity terms its but, analyzed instead, the rule in an employment, terms of
pursue
presumption. Moreover,
unlawful irrebuttable
the court did
allegedly
any
acknowledge
rights
opportunity
were involved in
to
county’s ability
re
therefore found
to
pursue
nearly
employment to be
unfettered.
strict
pursue
that the
to
Having
employ
concluded
necessary
a fundamental
incident
the fundamen
ment is
determine
necessities,
we must
tal
life’s basic
next
scrutiny
infringement
right.
of that
apply
the level of
scrutiny
legislation
level of
or to a rule
determining
apply
what
rights are involved. Eastman v.
question,
we first determine what
*13
332,
(1989),
337,
862,
237 Mont.
777 P.2d
865.
Atlantic
Co.
Richfield
scrutiny
heightened depends
the Court’s
is
both
“The extent to which
degree to
it is infringed.”
nature of the interest and the
which
on the
254-56,
(holding
415
at
Strict
Shapiro,
for its action.
394 U.S.
compelling
a
state interest
to show
a
government
upon
intrudes
634, 89
at 1331. When
at
S.Ct.
doing
for
any compelling state interest
so must
right,
fundamental
only
compelling
closely
effectuate
that
state interest.
tailored to
be
(1978),
(citing
v. Redhail
434 U.S.
Pastos,
Jersey Supreme Court Chief Justice Weintraub notes that it is right” difficult to define “fundamental and that ‘fundamental,’ right if a is somehow found to be there remains ‘compelling’ there, too, as to what State interest is we question little, any, find light. approaches if Mechanical to delicate problem judicial protection intervention under either the equal process may only or the due clauses divert court from the delay Ultimately, meritorious issue or consideration of it. a court weigh the nature of the against must restraint or the denial apparent public justification, and decide whether the State action arbitrary. process, sensibly In that if the circumstances so may require, upon the court call to demonstrate the public of a sufficient existence need for the restraint or the denial. case, In the instant while DOR’s conflict-of-interest or rule policy statute, we, is at issue than a nevertheless, apply rather strict analysis scrutiny operation since the implicates rule fundamental right pursue Wadsworth’s employ- constitutionality ment. The ofthe conflict-of-interest rule itself is not the issue, but rather whether the State has infringed Wadsworth’s funda- right mental without providing compelling interest for doing so. held,
As we have employment necessary is a pursue means to necessities, life’s basic without which the latter fundamental consti right enjoyed. such, tutional could not be right As the opportu nity is itself and is encompassed within the pursue life’s basic necessitites as II, declared under Article section of Montana’s constitution. Because *14 the opportunity work and to make a a living right, it upon is incumbent the state to a compelling demonstrate interest may it constitutionally before infringe upon right. Necessarily, that a demonstrating compelling something interest entails more than it is simply saying so.
Based on the record in the court, established trial we conclude law, that, a matter of as the State a compelling failed demonstrate for the restricting interest conflict-of-interest rule Wadsworth’s abil ity pursue employment opportunities thus life’s basic Simply alleges compelling interest, necessities. because the State a necessity does not obviate the that State prove compelling the the by competent evidence. Here, adopted the State singu- the conflict-of-interest rule for the lar the of purpose avoiding appearance impropriety of of real estate at trial that The evidence established there were no
appraisers. any complaints of when State appearance impropriety apprais- about Groep- outside of DOR appraised property employment. ers their Mr. Administrator Property Division, the of the Assessment stated per, grievants anyone being of else had or that none the nor been was only a any wrongdoing. complaint accused of actual semblance of stating of letter that Paul Pistoria DOR consisted a wrote private working out his card while Wadsworth handed business appearance DOR no case in an Department. presented the which arose; could not demonstrate that impropriety DOR integrity detrimentally or affected DOR or jeopardized any fact, no one way. expressed or assessor officesin ever appraisal integrity Property in the Tax Division or a lack of confidence employment undermined expressed a belief that outside activities Feaver, Ellen Director of DOR who public confidence. Even Committee’s rejected the recommendation that the con- Grievance appli- rule was unreasonable and sustained the rule’s flict-of-interest cation, was aware ofno incident of DOR appraiser testified she public employment trust on account of outside compromising She also testified that she had not considered the rule’s activities. 2-15-112(f), nor she impact appraisers on did consider § individual rulemaking powers of the heads MCA, department which limits the concerning only the management internal to “statements rights procedures available to agency affecting private and not public.” Division, Tax Burr, Property Administrator of the
Dennis DOR Nick rule but never enforced it. issued conflict-of-interest Lazanas, County Appraiser the Cascade Office also the Director of rule; he did not believe in it nor did he see chose not to enforce the witness, Gaylord Additionally, expert it. the State’s Aldin- reason for Officers, Assessing International Order of a member ger, preclude his code of ethics did organization’s admitted that state, his not aware activities, and that in he was employment outside Moreover, question. any official duties activities in abuse of the State considered is ambivalent to whether the record it the conflict-of-in- provision applied before relevant constitutional terest policy. never demonstrate the State could say is not to
That rule or for some other the conflict-of-interest compelling interest for case, its In this employees. the outside restricting rule law, it did not. simply as a matter of here and on the record *15 XIII, regard In this we note that Article section 4 of Montana’s requires legislature provide constitution a code of pro- ethics hibiting duty for, conflict between public private among others, and local employees. legislature state We also note that the has, pursuant mandate, to that constitutional enacted standards of public conduct for officers and employees, including ethics, code of Chapter any at Title MCA. Neither DOR nor Wadsworth raise application XIII, issue as to the of either Article section 4 or those appeal. standards ofconduct codeofethics in this Notwithstanding, completeness, acknowledge in the interest of we both this constitutional provision implementing and its statutes and point out that there was allegation no made or evidence in this case that Wadsworth’s conduct anytime was at ever in violation of these statutes. that,
holdWe because the State did not demonstrate a com pelling applying interest for here, conflict-of-interest rule at issue wrongfully terminated Wadsworth’s employment.
In this regard, brought his claim under Montana’s WDFEA, asserting that the conflict-of-interest rule public violated policy because it violated his fundamental right pursue life’s basic necessities without a compelling doing state interest for so. Legislature the Montana enacted WDFEA establishing three wrongful discharge. 39-2-904, elements of See MCA. § Section 39-2- 904, MCA, states that discharge wrongful only
A if:
(1) it was in employee’s retaliation for the refusal to violate or public policy reporting public policy; a violation of (2) discharge good was not for cause and the employee had completed employer’s probationary period of employment; or (3) employer violated the express provisions of its own personnel policy. written
Moreover, 39-2-903(7), MCA, defines public policy policy § as “a in effect at the time the discharge concerning health, safety, the public by or provision, statute, welfare established constitutional administrative rule.”
Wadsworth contends that DOR terminated his
retaliation for his refusal to abide
a rule that
inwas
contravention
public policy.
public
Wadsworth asserts that the
policy
effect at
discharge
policy
the time of his
was the
established
constitutional
provision guaranteeing
person
each
life’s basic
by earning living.
agree.
necessities
We
provisions, especially
based on constitutional
is often
policy
Public
face,
rights.
inalienable or fundamental
their
create
on
those which
(Cal. 1992),
680, 687;
Foley
see also
Sentry Ins.
Gantt v.
See
*16
(Cal.
in
1988),
example,
A statutory provi- in constitutional that are delineated policies among employers, interests of balance proper sions strikes bound, minimum, at public. employer and employees and nation as policies of the state public know the to limited, the statutes; public so in their constitutions expressed operate to impediment employers no presents exception policy em- protected against are Employees law. the bounds of within And soci- policy. fundamental state that contravene actions ployer market, job in a more stable through served ety’s interests are safeguarded. are important policies most which its Gantt, P.2d at 688. explicitly protects Montana’s constitution II, 3 of
Article section funda- as an inalienable or necessities life’sbasic right pursue to opportu- above, includes the to which, stated as right, mental Mon- necessary Accordingly, incident. as a nity pursue II, in Article section 3. is set forth regard in this policy public tana’s here, that, there was no on the record determined we have Since conflict-of-interest for the State’s compelling interest demonstrated policy in favor of public that the rule violated rule, it follows under Montana’s protected necessities life’s basic termination Wadsworth Accordingly, the State’s constitution. that was in contravention by a rule refusal to abide for his retaliation the WDFEA. violated the constitution prejudicial irrelevant and allowing err in Court Did the District 3. received claimed he treatment which evidence his employment? to the termination prior prejudicial irrelevant and allowing err in Court Did the District 4. they claimed employees DOR other treatment which evidence of Department? from received Did the allowing
5. District Court err in improper opinion, specula-
tion, legal testimony? conclusion Because we hold that did provide a compelling rule, interest for its conflict-of-interest and therefore wrongfully terminated Wadsworth retaliation for his refusal public to violate 3, 4, we need not policy, address issues or 5. In order for this Court to Court, reverse the District the State had to show that the evidence complained rights. of violated its substantial The State was not able to do so because the parties agreed that Wadsworth was terminated refusing comply with the conflict-of-interest rule and was not any terminated for reasons pertaining his treatment on job short, prior his termination. there were no disputes factual why to Wadsworth Accordingly, was fired. notwithstanding the Dis- trict alleged admitting Court’s error in irrelevant evidence, such error, any, if was harmless because it did not affect the substantial of the rights Abbey City State. See Billings Police Com’n 354, 364, 268 Mont. Moreover, the State made showing no of how the may error have *17 the amount prejudiced damages jury of awarded. The State could showing not have made such a because WDFEA constrains the extent damages may to which be awarded to lost wages, fringe benefits, thereon, and the interest for a period years not to exceed four discharge. Therefore, from the date of we conclude that there was no error that affected rights the substantial of the State.
Affirmed. TURNAGE,
CHIEF JUSTICE JUSTICES GRAYand LEAPHART concur.
JUSTICE TRIEWEILER specially concurring.
I majority’s concur with the resolution of 1, 3, 4, Issues numbered I specially majority’s and 5. concur with the resolution of Issue 2 although agree because I with the result at arrived in that section of opinion, the Court’s I disagree by that the District Court erred submitting underlying jury. factual issues to the majority correctly
The concludes that the to pursue necessities, therefore, is one life’s and basic a funda- by II, right guaranteed mental Article Section of the Montana agree Constitution. I also that before the State can interfere with right, compelling it must establish a state interest for interest, so and that doing particular proven, “compel- whether a if ling” question However, very is a of law. where facts which form are the resolution alleged disputed, the State’s interest the basis for of fact. question involves a dispute case, alleged in this the State its conflict of example, For avoiding appearance impro- rule served the interest by Had that fact been established by appraisers. real estate priety evidence, of whether that fact estab- the determination competent been an issue of law. state interest would have compelling lished by Wadsworth, qualified numerous others who were However rule was testified that the conflict ofinterest experience, training confidence in real relationship public bore no unnecessary and Therefore, any relationship there was whether appraisers. estate confidence raised ah public of interest rule and the conflict between necessarily be decided the finder of which must of fact issue 26-1-202, by majority, As out case, jury. pointed § fact—in this follows: MCA, provides other than those mentioned by jury, questions all offact trial is
If a jury, and all evidence thereon be decided 26-1-201 must by law. them, provided as otherwise except must be addressed by jury, all evidence thereon fact is not question of a If the trial court, which shall decide such to the trial be addressed must question. at is evident from the offact were issue underlying questions
That of a proof was offered analyzing whether majority’s opinion. refers to interest, majority opinion repeatedly compelling state purpose considered for the sole at trial. Evidence is evidence juries unique responsibility are the issues which resolving factual may be. court, as the case the district every involving that in case has, effect, held is majority What the component, factual this underlying an issue with a constitutional factual issue de novo on to resolve the position best is in the Court position of the is similar to majority’s position appeal. in United States Appeals Court of the Second Circuit majority on (2d 1968), Cir. “I AmCurious-Yellow” Film Entitled Picture A Motion on the being instructed case, jury, after In that F.2d 196. *18 that the obscenity, concluded judging for standards constitutional Court of The Second Circuit obscene. question in was picture motion that: concluded Appeals
(cid:127) respect fact with an issue of vel non is not obscenity our view [I]n effect. It is its conclusive finding has usual jury’s the
to which eventually be that must law constitutional an issue of rather the court. by decided Film,
A Motion Picture F.2d at 199. picture, Based on its own review of motion majority the the of that was court concluded that it not obscene because it did satisfy not by parts three-part first two of the test set forth Supreme the U.S. Court. majority’s
In his dissent from the disregard jury’s fact-find- function, Judge ing following remarks, Chief Lumbard made the apply majority’s which I believe disregard jury’s for the fact- function in finding this case:
My colleagues give satisfactory no explanation why jurors are they qualified pass upon questions. as as such The conclu- they really sion inescapable that think obscenity that issue of juries only can be entrusted the judges (or, here, if themselves them) majority think beyond the matters in question go I supposed only limits allowed law. had not that who those wear judicial federal robes are qualified to decide whether motion picture any redeeming has social value. majority
But away would take the jury power from pass on these not too difficult and complicated questions by saying obscenity is “an issue of law” constitutional rather than an respect issue of fact with jury’s to which the finding has its usual simply juries conclusive effect. Tome this means that are not to be majority trusted where a judges disagree with them. ... There is no reason to suspect judges any are in better position pass judgment on these than are jurors. matters ... very due
With deference considerable intellectual attain- my ments of I it colleagues, question submit when comes ato beyond of what goes permissible arousing prurient in sex, jurya the verdict of men a far twelve and women is better and community more accurate reflection of standards social jurors value. are all drawn from walks life and their less pretentious positions community in the qualify them to answer the questions put Judge Murphy to them at least as well as circuit ivory their judges in middle sixties who celebrate towers of judiciary. Film, (Lumbard, J., A 203-04 dissenting) Motion Picture F.2d at (footnotes omitted). Judge length adopted by
Chief Lumbard’s dissent was cited at Supreme Court ofWisconsin in Court v. State 188 N.W.2d *19 court the of of a struggled proper scope where that with review jury printed verdict that material was obscene. dissent, Chief court that: noting Judge
After Lumbard’s held Judge We with Chief Lumbard’s dissent and the agree adopt Mr. obscenity he a principle espoused. which The determination of by of following factual matter to be resolved a finder fact constitu- by an subject appellant [sic] tional review court guidelines, evidence merely underpin- which seeks to determine whether the a ning in view of the record as whole. the verdict was sufficient Court, at 188 N.W.2d (Tex. App. 1989), 764
In v. Civil Service Commission Ct. Collier of Appeals the Texas Court was asked decide whether S.W.2d adopted city for the “nepotism” by rules Civil Service Commission of equal protection Falls violated the clause the Texas of Wichita nepotism person The rule that no could be provided Constitution. fire member of that imme- employed by department person’s if a by city The family already employed department. was diate necessary impairment in order to avoid contended that rule was placed when in a situation where firefighter’s judgment of one family person’s peril. member of that was raised court that to decide the constitutional issue The Texas held resolved, including first fact must be by petitioners, several issues (A objectives. legitimate government rule whether the advances by our Court if a funda- applied basis test would be similar rational issue.) holding factual underlying was at mental interest fact before the constitutional be resolved the finder of issues must resolved, Texas stated as follows: could be court issue necessarily constitutionality a statute involves Deciding the of Pine, [Speculation Reality: fact related See questions. several Rights, Facts in Judicial Protection Fundamental The Role of of (1988)], Falls example, 666-67. For Wichita 136 U.Pa.L.Rev. 655 nepotism prevent firefighter’s rule will unavoidable argues the his in a where a member of impairment judgment situation family Appellants situation. perilous is involved in a immediate firefighters even if bonds exist between argue strong emotional issues are relevant they marriage. related blood or These are not governmental advance the rule will nepotism to whether fire but this safety department, objective improving knowledge emotional ties be- any special court does not have burning buildings. dangers within firefighters found tween or issues, but it is still question This social and emotional involves may question developed through expert of fact. Social facts be testimony, requests judicial “Brandéis Pine, briefs” notice. are supra unwilling at 662-63. We to base our on decision generalizations unsupported contained in the briefs. any specific
The trial court did not make findings fact; therefore, dowe not consider the standard of review for findings involving in a case rights. generally, of fact constitutional See Louis,Allocating Adjudicative Decision Making Authority Between Trial and A Appellate Scope Levels: View the Unified Review, Question, Judge / Jury Discretion, and Procedural *20 (1986). Appellants N.C.L.Rev. 993 should have the to support challenge to nepotism introduce evidence their to the rule. Appellants’ point third error is sustained. (citations omitted).
Collier,
I majority otherwise with the opinion, including conclu- its sion that if the District err submitting Court did issues regarding a compelling jury, state interest to the the error was harmless. joins
JUSTICE HUNT in the foregoing concurring opinion. specially concurring. JUSTICE ERDMANN join majority’s opinion I in the on Issues and 5. I write my in order to separately state concurrence on Issue 2 is limited to the final result as I cannot agree reasoning with the Court’s and analysis respect right with nature at issue in this case. present
The State failed to evidence that Wadsworth’s activities as a private real estate had in fact appraiser harmed the DOR or public’s undermined the confidence in tax appraisal system. I therefore affirm the would District Court’s determination that discharge based on the wrongful Wadsworth’s was fact the State any to its provide support failed evidence to conflict of interest allegation. speculation The State’s that a conflict interest existed employment reason to terminate was not sufficient Wadsworth’s jury’s was proper. verdict however, said, agree majority’s I do not with conclu- With right pursue particular has a fundamental to sion that Wadsworth right pursue a fundamental in the to majority right The finds job. pursue majority, to life’s basic necessities. The employment order however, meaning construe the of “life’sbasic necessities.” In fails to fact, majority opinion discussion in the as to whether there was no job needed in order for him to obtain these second was Wadsworth’s Life’s cannot and should not an necessities. basic necessities be basic necessity person’s luxury. can be another person’s infinite term. One to pursue employment to is fundamental the extent that right The employment provides those necessities. successfully evaded his majority’s opinion,
In the Wadsworth has limiting fact, right his to basic necessities. In responsibility any to the basic necessities produce failed to evidence as A deprived. plausible right encompassing he more of which was his right would therefore be right pursue to Wadsworth’s possess, right acquire, protect prop- The acquire property. Const, However, II, art. erty right. is an inalienable Mont. § also job acquire property in order to right pursue particular fundamental. distinguishes pursue employment gener- majority right life’s
ally necessary incident of as a any particular property from necessities basic *21 this Court specified employment, Absent a term of job employment. or in a employee property does not have a has held that an (1994), 405, 420, Mont. 884 job. v. Christensen 267 Boreen particular right property impart a to a 761, acquire 770. Nor should P.2d job. a In this pursue employment particular to in right the to a right particular no difference in hold significant I see respect, job. right pursue particular to a job and the 491, 704, P.2d (1973), Stores 162 Mont. 513 In Cecil Allied the right act that denied them legislative claimed a nonretail sellers was a violation of charges finance as retail sellers the same charge to acquire Similar to constitutionally right property. to protected their argued that the act inhibited case, plaintiffs Cecil present they may acquire property. This money so that ability to make their are of act long legislative classifications that so as Court held Cecil, right acquire property. constitutional, not violate the it does P.2d at 710. 513
313
particular job,
a
this Court has held that
right
for the
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right.
not a fundamental
Petition
professions
ofcertain
is
practice
Morris,
(1978),
458, 575 P.2d
38. In
175 Mont.
Morris
unification
deprived
of the bar
him of his
claimed that
petitioner
Morris,
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right
living.
earn a
I would have found that Wadsworth did have a fundamental job appraiser. Therefore, pursuing a second a real estate analysis particular pursuit Wadsworth’s scrutiny scrutiny degree. not be to strict of a lesser subject should but