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No. 86-095
IN THF SUPREME COURT OF THE STATE OF MONTANA
1986

MARY PAT MILLER,

Plaintiff and Appellant,

CATHOLIC DIOCESE OF GREAT FALLS,
BILLINGS AND ROMAN CATHOLIC BISHOP
OF GREAT FALLS, jointly and severally,

Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Charles Luedke, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Nye & Meyer; Victoria Francis argued, Billings, Montana
For Respondent:

Cure, Borer & Davis; Maxon R. Davis argued,~~~~t
Falls, Montana Crowley Law Firm; Peter F. Habein, Billings, Montana
Submitted: October 21, 1986

Decided: November 20, 1986
Filed:

Mr. Justice Fred J. Weber delivered the Opinion of the Court.

Mary Pat Miller (now Mrs. Mullner) appeals the summary
judgment dismissing her wrongful discharge complaint against
defendants. The District Court for Yellowstone County con-
cluded that applying the tort of bad faith in this case would
infringe upon the free exercise of religion. We affirm.

The issue is whether the free exercise of religion
clauses of the United States and Montana Constitutions bar
consideration of the tort of breach of the covenants of good
faith and fair dealing in the discharge of Mrs. Mullner for
her failure to maintain discipline in the classroom.

The defendants also raise the issue of whether summary
jud~ent can be upheld because no breach of the implied
covenant of good faith and fair dealing is established in the
record.

Little Flower School in Billings is part of the Catholic
school system administered by the Catholic Diocese of Great
Falls-Billings. Mrs. Mullner taught fifth and sixth grade
students there during the school year 1983-84. Her immediate
supervisor evaluated her as "outstanding" in every category.
Her contract was renewed and she received a $1,000 raise for
the 1984-85 school year.

During the 1984-85 school year, Mrs. Mullner had a new
supervisor (the head teacher). The new head teacher did not
approve of Mrs. Mullnerls teaching methods. The district
court file contains a copy of the head teacher's dated notes
documenting her concerns and the concerns of parents, other
teachers, and the school administrator about a lack of disci-
pline in Mrs. Mullnerls classroom. Mrs. Mullner admits that
the head teacher spoke with her "on more than one occasion"

about problems in her classroom. In November 1984 Father Wagner, the school administrator, told Mrs. Mullner that the next day would be her last day of teaching at the school, because she was not properly disciplining the children in her class. She was paid for the following fifteen days, pursuant to the termination clause in her teaching contract.
Mrs. Mullner filed this suit alleging breach of the covenant of good faith and fair dealing in employment. Discovery was conducted, including depositions of Mrs. Mullner, the head teacher, and Father Wagner. Defendants produced various documents, including copies of Mrs. Mullner's employment contract, her evaluation, and the 1984-85 Little Flower School handbook and code of conduct booklet. The defense moved for summary judgment that appli- cation of the tort of bad faith would impermissibly interfere with freedom of religion. The District Court granted that motion.
Since an affirmative answer to the issue raised by
defendants would eliminate the necessity of reaching the
constitutional issue, we will discuss defendants' issue
first.

Can summary judgment be upheld because no breach of the
implied covenant of good faith and fair dealing is estab-
lished in the record?

The defendants argue that nothing in the record estab-
lishes any breach of an implied covenant of good faith and
fair dealing. They maintain that there were no objective
manifestations of job security to Mrs. Mullner, and that
there were indications to her that she was not performing

satisfactorily. They also maintain that there has been no
evidence of lack of good faith on the part of Father Wagner.

The defendants' brief to the District Court in support of their motion for summary judgment did not raise this argument. It discussed only the constitutional issue. Issues not raised before the district court are generally not considered on appeal. Mont. Ass'n of Underwriters v. State, etc. (1977), 172 Mont. 211, 218, 563 P.2d 577, 581. However, this Court has the power to grant summary judgment even when no motion has been made. Treasure State Industries Inc. v. Welch (1977), 173 Mont. 403, 410, 567 P. 2d 947, 951. Even so, the complaint's allegation of defendants' bad faith is supported by Mrs. Mullner's deposition. She further contends that she would have submitted additional evidence on this point, had it been raised in the lower court. Her position is that she reasonably believed her employment would contin- ue. We conclude the record does not support summary judgment on this basis.
Do the free exercise of religion clauses of the United.
States and Montana Constitutions bar consideration of the
tort of breach of the covenants of good faith and fair deal-
ing in the discharge of Mrs. Mullner for her failure to
maintain discipline in the classroom?

The relevant constitutional provisions are U. S. Const.
Amend. I:

Congress shall make no law respecting lishment of religion, or prohibiting exercise thereof; . . .  an the  estab-free  
and Art. 11,

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