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No. 83-496 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984

CLARE J. JENSEN, Petitioner and Respondent,

STATE OF MONTANA, DEPARTMENT OF LABOR AND INDUSTRY, JOB SERVICE DIVISION & DAVID HUNTER, Commissioner of the Dept. of Labor, Respondents and Appellants.

APPEAL FROM:

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

COUNSEL OF RECORD: For Appellants:

R. Scott Currey, Dept. of Labor & Industry, Helena, Montana Books & Budewitz; Patrick Hooks argued, Townsend, Montana
For Respondents: Neil G. Jensen argued, Great Falls, Montana
--

----June 19, 1984 October 25, 1984

Submitted: Decided:

~iled:

Our

.

fu

q-14

Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. The Department of Labor and Industry, State of Montana, appeals the judgment of the Cascade County District Court finding the Department must grant the petitioner a veteran's employment preference and appoint him to a manager's job. The petitioner, Clare Jensen, was hired by the Job Service Division of the Department of Labor and Industry in 1961. When hired, Jensen claimed and received a veteran's On March 12, 1982, the Department issued a

preference.

vacancy announcement for the position of manager of the Great Falls Job Service Office. applied for the position. Nine persons, including Jensen, Seven were veterans. The Depart-

ment viewed the filling of the position as an internal promotion. Only internal applications were accepted and veteran's

preference, traditionally granted only in initial hire situations, was not considered. On June 16, 1982, a nonveteran,

Yerhert Waltermire, was chosen to fill the manager position. On June 16, 1983, this Court issued its decision in Crabtree v. Montana State Library (Mont. 1983), 665 P.2d 231,
40 St.Rep. 963.

In Crabtree this Court affirmed the lower

court decision of Judge Bennett of the Lewis and Clark County District Court. Judge Bennett ruled on February 14, 1982,

that the State's failure to grant a job applicant an absolute preference was in violation of the Veterans and Handicapped Civilians Employment Preference Act (hereinafter "the Act") , section 10-2-201 et seq., MCA.
This ruling and our subse-

quent affirmance held that qualified veterans and disabled civilians are entitled to state employment over nonveteran and nondisabled applicants, thus granting veterans and disabled persons an absolute preference. See Crabtree, supra.

On J u n e 2 1 ,

1983, J e n s e n f i l e d a " p e t i t i o n t o e n f o r c e Relying on C r a b t r e e , J e n s e n c l a i m e d

employment p r e f e r e n c e . "

t h a t h e s h o u l d have been h i r e d f o r t h e p o s i t i o n due t.o h i s veteran's status. On September 19, 1983, the District Court issued an

o r d e r f i n d i n g t h a t t h e i n t e r p r e t a t i o n of t h e v e t e r a n ' s p r e f erence case. as announced in Crabtree would be applied t o this

The c o u r t d e t e r m i n e d t h a t t h e h i r i n g was n o t an i n t e r -

n a l d e p a r t m e n t promotion b u t an appointment withi-n t h e s c o p e of t h e p r e f e r e n c e law. The District Court concluded that the Department of

Labor must a p p o i n t J e n s e n t o t h e manager's

job and t h a t t h e

Department must pay t h e r e t r o a c t i v e s a l a r y t h a t J e n s e n would have r e c e i v e d from J u l y 1, 1982, p l u s i n t e r e s t . e n t e r e d on J e n s e n ' s c l a i m October 11, 1983. The l e g i s l a t u r e r e p e a l e d t h e a b s o l u t e v e t e r a n ' s p r e f e r ence in a special session called for
2

Judgment was

this

purpose.

The

repeal-ing l e g i s l a t i o n , Session of the

Senate R i l l

of

the First

Specj.a.1

1983 L e g i s l a t u r e ,

provid.ed t h a t

preference
23,

c l a i m s t h a t were reduced 1983, able. claim

t o jud-gment p r i o r t o December

t h e e f f e c t i v e d a t e of The that case was a t ba.r, litigated

t h e l e g i s l a t i o n , were e n f o r c e presents to our a preference decision in

therefore, subsequent

C r a b t r e e and p r i o r t o r e p e a l of t h e o l d Act. The issues :
1.

appellant

Department

has

raised

the

following

Whether

the

District

Court

correctly

determined

t h a t t h e C r a b t r e e i n t e r p r e t a t i o n of t h e v e t e r a n ' s p r e f e r e n c e s h o u l d b e a p p l i e d t o t h e f a c t s of t h i s c a s e .

2.

Whether the District Court was correct in conclud-

ing the hiring was an appointment to a job rather than a promotion. 3. Whether the remedy of awarding Jensen the job and

backpay was a proper form of relief.

I

The

first issue raises the question of retroactive Whether or not a

applica-tion of our Crabtree decision.

judicial interpretation should he applied retroactively is a. question guided by the principles enunciated in LaRoque v. State (1978), 178 Mont. 315, 583 P.2d 1059.

In LaRoque we

followed the factors set forth by the United States Supreme Court in Chevron Oil Company v. Huson (1971), 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d
296.

These considerations are as

follows: (1) The decision to be applied nonretroactively must establish a new principle of law either by overruling precedent or deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) The rule in question must be examined to determine whether its retroactive application will further or retard its operation; and, (3) The equity of the retroactive application must be considered. As to the first consideration, the State argues that Crabtree established a. new rule of law in Montana and the decision was not foreshadowed by prior law. Prior to

Crabtree, the Act had been interpreted by the Attorney General and administrative agen.ices as granting a relative, not absolute, preference. Several Attorney General opinions and

administrative rules of the Merit System Council are cited in support of appel.lantfsccntention. The State argues that

since Crabtree overruled the established executive interpretation of the Act, under the the decision first should of be applied and

nonretroactively Chevron Oil.

factor

LaRoque

We do not find this argument persuasive.

As Jensen

noted in the court below and on appeal, Crabtree held that an absolute preference was intended by the enactment of the Act in 1921. The p1a.j.n and unambiguous langua-ge of the Act

created an absolute preference that existed from day one of
its enactment through its repeal in 1983.

Our judicial

decision of Crabtree did not create a new principle of law as much as it announced the continuing impact of the statute. The plain language of the Act foreshadowed Crabtree. The second LaRoque consideration can be restated as a question of whether or not the absolute preference rule of Crabtree would be furthered by its retroactive application. Job opportunities for veterans and handicapped, the obvious purpose of the Act, could not be achieved without adherence to the mandates of the preference statute. In the present

case the Labor Department did not consider veteran's preference whatsoever in its employment decision. Were Crabtree

not applied here, the Department's total disregard for the Act would be condoned. Such an outcome could not further the

purpose or operation of the Act. Finally, the equity of retroactive application of

Crabtree should be considered. tive application would

The Sta.te maintains retroacemployment relationships

disrupt

established as long as five years ago; it would harm those who justifiably relied upon established employment

procedures.

The State argues retroactive appl-ication would

be particularly inequitabl-e to Herbert Waltermire who wil.1lose his employment. if the veteran Jensen is placed in the Great Falls manager position. In LaRoque we stated that where substantial inequity will result by retroactive application, a ruling of

nonretroactivity is proper.

A case frequently cited for this (1969), 395 U.S.

proposition i.s Cipriano v. City of Houma
701, 89 S.Ct. 1897, 23 L.Ed.2d 647.

In Cipriano the Supreme

Court held a decision that a Louisiana statute, giving only property taxpayers the right to vote in bond elections, was unconstitutional and would not be applied retroactively

because significant ha.rdships would be imposed on cities, bondholders and others connected with munici.pa1 utilities. In the case at bar, retroactive application is

straightforward and does not pose the kind of hardship or complexity presented by Cipriano. Potential ly Herbert

Waltermire will suffer real hardship by retroactive application of Crabtree. However, our consideration of the equities

involved cannot be controlled by the potential impact on one individ.ua1. Considering the broad purpose of the Act, j - t s

impact on all concerned parties and the ease with which absolute preference can be applied in this case, the balance of equities lies with retroactive application. Applying the three considerations of LaRoque to the case at hand, we find they do not prevent retroactive application of Crabtree. Accordingly, the decision of the Dis-

trict Court on this issue is affirmed.

I1

The

District Court

concluded

that

Jensen's

hiring

constituted an appointment, not a promotion.

Hence, the

controlling words of the Act "appointment and employment" were triggered and the Act was found applicable. The State argues that the Act applies only to initial hiring. Since only internal applications were considered by

the Department, the State contends Jensen's claim concerns a promotion outside the scope of the Act. This issue may be decided without determining whether the hiring was an appointment or promotion. ly covers employment as well as appointment. The Act expressTo give the Act

any effect, the hiring of the Great Falls manager position must be construed as employment. We affirm the trial court's

conclusion that the Act covered Jensen's claim.

Finding that the Act applies to the facts of this case and Jensen was wrongly denied a-n absolute preference, we must address the propriety of the remedy. The District Court concluded: the Department must grant the veterans preference to the Petitioner and must appoint Petitioner to the Manager's job. Additionally, in order to provide a complete remedy to the Petitioner, the Court concludes that the Department must pay the retroactive salary that Petitioner would have received from July 1, 1982, plus interest thereon." The underlying enforcement statute is set forth at section
10-2-206, MCA.

". . .

It provides in relevant part that "[tlhe

District Court has jurisdiction upon the proper showings to issue its order directing and ordering the appointing author-

ity to comply with this law in giving the preference provid-ed for." As discussed above, the petitioner ,Sensen is entitled to an absolute preference. While the District Court has

jurisdiction to order a state agency to comply with the law and grant a preference, it does not follow that such court has the additional authority to order an agency to grant the petitioner the job. This relief is not a correct and legal

remedy under the statute nor our constitution. In the Application of OISullivan (1945), 117 Mont. 295, 158 P.2d 306, a statutory remedy providing the same relief that Jensen was afforded here was declared unconstitutional. The legislative history of section 10-2-206, MCA, and the CtSullivan decision must be examined to understand why the present relief is also improper. When the Act was first enacted in 1921, there was no enforcement or remedy provision. This oversight was correct-

ed by the Twenty-fifth Legislative Assembly in 1937 when the original section 5653 was amended. Language setting forth a

remedy for aggrieved veterans was added to section 5653. This language with some minor stylistic changes is identical to the contemporary language of section 10-2-206, MCA, in effect during the case at bar. Essentially, there is a

procedure set forth for the filing of a petition, show cause hearing, and district court order directing the appointing authority to comply with the law by giving the preference. However, the remedy in 1943. legislature strengthened the described

By amendment (1943 Mont. Laws, Ch. 160),

section 5653 was changed giving the district court original jurisdiction to determine whether a preference was proper and to issue an order directing the appointing authority to

employ the veteran and award backpay.

This procedure was

invoked in 1945 by Emmet O'Sullivan, a veteran of World War
I, who had unsuccessfully sought the position of city attor-

ney in Harlowton.

The City challenged the constitutionality

of the enforcement procedure and this Court declared the
amendments of Chapter 160 invalid. The basis of the OfSullivan ruling was that section 5653, as amended by Chapter 160, conferred appointment authority upon the judiciary. The Court noted that power of The Court

appointment is generally an executive function.

found the amendment was also void insofar as it dispensed with due process rights of notice and hearing. Following OISullivan, the legislature in 1947 deleted the strengthened remedy provision and section 5653 was amended to how it read prior to 1943. As noted above, the en-

forcement provision remained essentially unchanged from this time in 1947 until. Senate Bill 2 of the Special Session repealed the Act in December 1983. In summary, the remedy the District Court granted

Jensen was once provided by statute and this Court found the law unconstitutional. The precedent of OfSullivan controls:

the legislature cannot place the power of appointment in the judiciary. Under the enforcement statute and the Constitution, the District Court may order the Department to grant Jensen the veteran's absolute preference. Beyond this statu-

tory relief, the judiciary lacks any power to appoint a particular petitioner to a job. We have held that Crabtree should be retroactively Although Jensen has carried the

applied to this hiring.

burden of pressing this legal issue, once the Act is applied, it provides a preference for all preferred persons.

For the foregoing reasons, we vacate that part of the judgment that addresses Jensen's remedy and remand to the District Court with directions to order the Department of Labor and Industry to reopen the manager position to the original applicants, grant Jensen and the other preferred applicants their preference, and otherwise fill the vacancy in accordance with Crabtree. The judgment is affirmed in part and vacated in part.

%hd

a. Chief Justice

wm&

.

We concur:

Justices

Mr. Justice John C. Sheehy and Mr. Justice John C. ~arrison, concurring and dissenting: We concur with the majority opinion except for the To that portion of the majority

remedy provided Jensen. opinion we dissent.

Jensen is the only veteran of seven to come to court to enforce his veteran's right to preference. The other six

veterans, for whatever reasons, did not seek court redress. Each of them, except Jensen, has thereby acquiesced. in what the District Court did. It wa.s Jensen who continued. the struggle to

achieve what was justly his, a vet.eran1sright to preference. He alone bore the brunt of the battle in court, but he may lose the war if the appointing authority gives the job to some other of the remaining six veterans. possible result as fair or required. Since only Jensen is before this Court, the decision to be made is whether he is entitled to the job over Waltermire. The other veterans, by failing to go to court, have We do not see that

acquiesced in Waltermire's appointment.

Jensen should be

awarded the fruits of his trial and given the job, with baclcpay

.

?lr. Justice L. C. Gulbrandson, dissenting.

I respectfully dissent.
It is my opinion that the Crabtree int~rpretation of the Veterans and Handicapped Civilians Employment Preference Act should not be retroactively applied. In 1934, the Attorney General issued his opinion (15 A.G. O p . when 417) that the Act granted a veteran preference only qualifications equaled the most qualified Op.

his

non-preferred applicant.

In a later opinion (21 A.G.

105), in 1945, the Attorney General construed the preference as absolute, but in a 1949 opinion (23 A.G.
0 . 46), the

Attorney General found the preference to be not absolute, but to consist only of a certain percentage to be added to the veterans examination grade. It is clear that the agency charged with administering the Act followed the 1949 Attorney General opinion and The

interpreted the Act as granting a relative preference. Crabtree decision, of June 16, 1983, ruling

that the

preference was absolute, effectively overturned an executive interpretation which had been relied upon for more than

thirty-three years by state, county and city agencies. It is my view that, in effect, a new principle of law was established, which overruled clear past precedent, and the Crabtree decision resolved an issue of first impression whose resolution was not clearly foreshadowed, and

therefore, the decision should not be appli

retroactively.

7
Justice

* r . L

Mr.

J u s t i c e D a n i e l J. S h e a , s p e c i a l c o n c u r r e n c e :
I join

t h e majority opinion i n a l l r e s p e c t s , although I

b e l i e v e it would h a v e b e e n b e t t e r t o c o m p l e t e l y open up t h e a p p l i c a t i o n p r o c e s s r a t h e r t h a n t o l e a v e t h e j o b open o n l y t o t h o s e who a p p l i e d f o r i t .
the

The j o b was n o t a d v e r t i s e d w i t h

idea

of

giving a

veteran

an absolute preference,

and

t h e r e f o r e it would. b e more f a i r t o a l l c o n c e r n e d t o a l l t h o s e who want t o a p p l y t o d o s o . Nonetheless, because w e have a

d i v i d e d C o u r t on t h i s i s s u e , and I a m t h e o n l y m e m b e r who would. open u p t h e entire application process,
I

join

the

opinion t o a r r i v e a t t h e necessary four votes.

M v o t e on y

t h i s i s s u e i s n e c e s s a r y t o e v e n p u t t i n g an o p i n i o n down a n d I do n o t feel it i s a t r a v e s t y of j u s t i c e t o l i m i t t h e job t o t h o s e who a l r e a d y h a v e a p p l - i e d f o r it. would not join the opinion just to I f I did so feel I make
it

a

majority

opinion..
I a l s o emphasize t h a t t h e C r a b t r e e d.ecision, i s , a s i s

s t a t e d i n t h e o p i n i o n h e r e , simply an e n u n c i a t i o n of t h e law a s it ha.s a l w a y s e x i s t e d . There h a s never been an o p i n i o n

from t h i s C o u r t c o n t r a r y t o t h e d e c i s i o n w e made i n C r a b t r e e . When w e d e c i d e d C r a b t r e e , w e d i d n o t d e c l a r e new law. I n h i s d i s s e n t J u s t i c e Gulbrandson d e c l - a r e s t h a t w e d i d d e c l a r e new l a w , b e c a u s e o u r d e c i s i o n was t h e n c o n t r a r y t o the 1949 Attorney Preference General Act as opinion that interpreted a limited the or

Veterans'

granting

only

qualified preference.

However, two p r e v i o u s A t t o r n e y G e n e r a l
a 1934 o p i n i o n d e c l a r e d .

o p i n i o n s came up w i t h mixed r e s u l t s : that
it

was
it

a to

qualified be an

preference, absolute the

and

a

1945

opinion

declared expediency

preference. force

Political behind these

was

clearly

moving

d i f f e r i n g opinions, that the agencies

and t h i s s h o u l d h a v e b e e n enough n o t i c e should not have relied on the latest

o p i n i o n , b u t i n s t e a d s h o u l d have gone t o c o u r t and o b t a i n e d a

declaratory judgment.

Only then do I believe the agencies

would have been justified in relying on an interpretation of the Veteran's Preference Act.



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