CONBOY v STATE
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No. 84-194 I N THE SUPREME COURT OF THE STATE O F b!ONTANA 1984 RICHARD T . CONBOY, P l a i n t i f f and A p p e l l a n t , THE STATE OF MONTANA, and ETHEL HARRISON, C l e r k of t h e S u p r e m e C o u r t of t h e S t a t e of M o n t a n a , D e f e n d a n t s and R e s p o n d e n t s . D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of L e w i s & C l a r k , T h e H o n o r a b l e H e n r y L o b l e , Judge p r e s i d i n g . APPEAL FROM: COUNSEL OF RECORD: For Appellant: G a r r i t y , R e e g a n & Brown; Eielena, M o n t a n a D o n a l d G a r r i t y argued, F o r Respondent: Luxan & M u r f i t t ; Montana P a t r i c k Melby a r g u e d , X e l e n a , F o r Amicus C u r i a e : Jack H o l s t r o m , D e p t . of H i g h w a y s , H e l e n a , M o n t a n a John L . H o l l o w f o r R o d n e y N i c k , H e l e n a , M o n t a n a R o y A n d e s , A g e n c y L e g a l Services B u r e a u , H e l e n a , Montana Submitted: Decided: Filed: - .jai\t t i - 198% Clerk October 23, 1984 January 4 , 1 9 8 5 Mr. Justice Fred J. Weber delivered the Opinion of the Court. Plaintiff, Richard T. Conboy, of the Lewis summary & Clark County District Court granting partial judgment complaint for appeals from two orders in favor unlawful veterans' preference. of defendants cn plaintiff's discharge and violation of the We affirm the District Court. The issues on appeal are: (1) Were plaintiff's constitutional or statutory rights violated by his removal from the Office of Deputy Clerk of the Supreme Court or b~7 the Clerk of Court's failure to appoint him to that position? (2) Does plaintiff have a claim of veteran's preference to the Office of Deputy Clerk of the Supreme Court? Richard Conboy served in the capacity of Deputy Clerk of the Supreme Court of Montana from January 1, 1963, until January 3, 1983, during which time Thomas J. Kearney served as the Clerk of Court. Conboy ran in the general election of 1982 against Ethel Harrison for the Office of Clerk of Court and was defeated. Clerk-elect Harrison appointed Phyllis Neild as Deputy Clerk and both commenced their terms of office on January 3, 1983. Following the general election, Clerk-elect Harrison had notified Conboy that she intended to exercise her right to appoint the deputy clerk and that, effective January 3, 1983, Conboy's services would no longer be required. Conboy informed Harrison by letter dated December 20, 1982, that his official job description was court attendant and that his employment could not be summarily terminated. On January 3, 1983, Harrison issued an order removing Conboy's name from the Clerk of Court's payroll. Following the November genera1 election but prior to January 3, 1983, Clerk-elect Harrison initially offered to appoint a woman who had been recommended by a mutual friend for the Office of Deputy Clerk. declined the appointment. The would-be appointee Harrison then offered to appoint Phyllis Neild as the Deputy Clerk. Ms. Neild had worked in the Office of the Clerk of the Supreme Court for some time and Mrs. Harrison knew her prior to the 1987. election. Ms. Neild accepted the appointment as Deputy Clerk of the Supreme Court. The record does not indicate exactly when these offers of appointment were made, nor does it show whether Cl-erk-elect Harrison appointed Phyllis Neild Deputy Clerk prior to receiving Mr. Conboy's letter of December 20, 1982. On April 15, 1983, Conboy filed suit against Ethel Harrison and the State of Montana claiming that he had been an employee of the Office of the Clerk of the Supreme Court for more than twenty years, that he had been unlawfully discharged based on his political beliefs, age and sex, and that his discharge violated veteran. The District Court permitted plaintiff to file two amended complaints. his employment rights as a All three complaints were unverified. Defendants filed a motion for summary judgment on both the unlawful discharge and veteran's preference causes of action, asserting that there was no genuine issue as to any material fact and that defendants were entitled to judgment as a matter of law. Conboy testified as the only witness at the hearing on defendants' motion for summary judgment. No affidavits, or admissions, answer to interrogatories depositions were filed by plaintiff in opposition to defendants' motion. Since the compl-aint and amended complaints were unverified, Conboy's testimony and the exhibits admitted at the hearing constituted all of the evidence in behalf of Conboy before the court at the time it ruled on the motion. Conboy testified that he had considered himself to be the Deputy Clerk of the Supreme Court, that he signed court documents in that capacity, that he had listed his occupation as Deputy Clerk and published campaign literature holding himself out to be the Deputy Clerk, and that he had the general reputation among the public of being the Deputy Clerlc of the Supreme Court. Conboy also testified that it was his understanding that he was initially hired as a court attendant and that his employment was subject to approval by the Chief: Justice of However, neither the Court nor any of the the Supreme Court. justices is named as a party in this action. All of the parties concede that Conboy was not appointed in writing to S 2-16-205, MCA. the Office of Deputy Clerk, pursuant to The parties also concede that Conboy did not subscribe, take or file an oath of office as required by § 3-2-406, MCA. The District Court granted partial summary judgment in favor of defendants on the unlawful discharge count of plaintiff's complaint and required a.dditiona1 briefing on the veteran's preference cause of action. The District Court later gra.nted partial summary judgment on the second issue and dismissed plaintiff's complaint. The District Court held that plaintiff's failure to file an oath of office, as required by law, invalidated his alleged appointment as Deputy Clerk and that that office became vacant upon plaintiff's failure to file within the statutory time for filing. Although Conboy functioned in the capacity of Deputy Clerk for nearly 20 years, the Court held he did so absent a valid appointment a.nd was therefore a de facto public officer. The court reasoned therefore that defendant Harrison had the right, at any time, to fill the vacancy that existed in the Office of Deputy Clerk since the Clerk of Court's appointment power statutes. is plenary under the The District Court concluded that plaintiff's constitutional rights were not violated nor was he illegally discriminated against. The District Court further concluded that the Montana Legislature's repeal of the old veterans' preference statutes and termination of claims pending under those statutes was valid. The court preference was a the statut.ory veterans' reasoned that gratuity repealable at any time, that plaintiff had no vested right to any preference, and that Art. 11, sec. 18, Mont. Const. , which requires a two-thirds vote of the legislature for a waiver of sovereign immunity, . did not apply to the legislative repeal of the old preference law. The District Court concluded that plaintiff was entitled to no relief whatsoever and dismissed the complaint with prejudice. Before we address the specific issues, it is necessary to analyze the nature of the Office of Deputy Clerk and the nature of the office which plaintiff contends he held during past years. The parties agree that the Office of Deputy Clerk is a public office held by appointment of and at the pleasure of the Clerk of the Supreme Court, who is elected by the people of Montana. Section 3-2-406, MCA provides: "The clerk of the supreme court shall appoint a deputy who, in the absence of the principal or in the case of vacancy in his office, shall perform all the duties of office until such disability be removed or vacancy be filled. Such deputy shall subscribe, take, and file the oath of office provided by law for other state officers before entering upon the performance of his duties." The term of office of the Clerk of Court six is years. MCA. The t e r m o f o f f i c e o f t h e Deputy C l e r k i s n o t f i x e d by law. "Every o f f i c e o f which t h e d u r a t i o n i s S e c t i o n 3-2-401, n o t f i x e d by law i s h e l d a t t h e p l e a s u r e o f t h e a p p o i n t i n g S e c t i o n 2-16-21 3 (1), MCA. power." Therefore, t h e Office of Deputy C l e r k o f t h e Supreme Court i s h e l d a t t h e p l e a s u r e o f t h e C l e r k o f t h e Supreme C o u r t . The parties agree that plaintiff was Deputy C l e r k i n w r i t i n g a s r e q u i r e d by They a l s o a g r e e t h a t p l a i n t i f f appointed 2-16-301 ( 3 ) , MCA. did not subscribe, f i l e t h e o a t h o f o f f i c e a s r e q u i r e d by From J a n u a r y 31, § not § 3-2-406, t a k e and MCA. 1963 u n t i l J a n u a r y 3 , 1983, t h e O f f i c e of Deputy C l e r k was i n f a c t v a c a n t under S 2-16-501 ( 9 ) , MCA. That s e c t i o n p r o v i d e s t h a t an o f f i c e becomes v a c a n t upon t h e incumbent's refusal within time the or neglect prescribed. file an official oath therefore We p l a i n t i f f was n o t t h e d e j u r e , C l e r k o f t h e Supreme C o u r t . to conclude that o r l a w f u l l y a p p o i n t e d Deputy A t most, h e was a d e f a c t o o r a c t i n g Deputy C l e r k d u r i n g t h e p e r i o d o f a p p r o x i m a t e l y t w e n t y y e a r s i n which h e a c t e d a s Deputy C l e r k . The g e n e r a l r u l e w i t h r e g a r d t o t h e r i g h t o f removal o f an o f f i c e r whose t e r m o f o f f i c e i s n o t d e f i n i t e i.s s t a t e d i n State - Sullivan v. ( 1 9 3 5 ) , 98 Mont. 425, 438, 4 0 P.2d 995, 998: "Where p r o v i s i o n i s made f o r t h e appointment o f an o f f i c e r , b u t no d e f i n i t e t e r m i s p r e s c r i b e d , t h e a p p o i n t i n g power may remove t h e a p p o i n t e e a t w i l l , w i t h o u t n o t i c e o r o p p o r t u n i t y t o be h e a r d . " I n view of that holding and of 5 2-16-213(1), MCA, which d e f i n e s t h e t e r m o f t h e o f f i c e o f Deputy C l e r k t o b e " a t t h e p l e a s u r e o f t h e a p p o i n t i n g power," t h e C l e r k of C o u r t may be c l a s s e d a s having t h e r i g h t t o remove t h e a p p o i n t e e a t w i l l , w i t h o u t n o t i c e o r o p p o r t u n i t y t o be h e a r d . However, we need n o t s p e c i f i c a l l y r u l e on t h a t p o i n t . plaintiff did appointment, not his hold removal public from a S i n c e we c o n c l u d e t h a t office public under a office valid is not a question before us. Upon t h e f a c t s o f t h i s c a s e , t h e D i s t r i c t C o u r t c o r r e c t l y concluded t h a t t h e O f f i c e o f Deputy C l e r k o f t h e Supreme Court remained l e g a l l y v a c a n t from t h e e x p i r a t i o n o f t h e t i m e w i t h i n which p l a i n t i f f was r e q u i r e d t o f i l e an o a t h o f o f f i c e i n 1963, when h e began s e r v i n g a s t h e d e f a c t o Deputy C l e r k , u n t i l 1983 when a d e j u r e Deputy C l e r k was v a l i d l y a p p o i n t e d . With r e g a r d t o t h e vacancy i n o f f i c e , S t a t e v . S t a f f o r d ( 1 9 3 5 ) , 99 Mont. 8 8 , 93, 43 P.2d 636, 638-39, states: "Any o f f i c e becomes v a c a n t on t h e happening o f e i t h e r o f t h e e v e n t s enumerated i n s e c t i o n 511 o f t h e Revised Codes o f 1921 [now 2-16-501, MCA], t h e n i n t h o f which i s when t h e p e r s o n e l e c t e d o r appointed t o t h e o f f i c e refuses o r neglects t o f i l e h i s o f f i c i a l o a t h o r bond w i t h i n t h e t i m e p r e scribed. Such a vacancy must be f i l l e d by t h e o f f i c i a l a u t h o r i z e d t o do s o , a s soon a-s it o c c u r s , a s t h e a p p o i n t i n g power i s p l e n a r y . " W t h e r e f o r e h o l d t h a t upon t h e f a i l u r e o f t h e p l a i n t i f f e t o f i l e an oath of office in 1963, h i s t e r m o f Deputy C l e r k t e r m i n a t e d bl7 s t a t u t e , c o u l d a t any t i m e office as and t h e C l e r k o f C o u r t f i l l t h e vacancy by appointment o f a d e jure officer. Were constitutional- plaintiff's v i o l a t e d by h i s removal or statutory rights from t h e O f f i c e o f Deputy C l e r k o f t h e Supreme C o u r t o r by t h e f a i l u r e o f t h e C l e r k o f C o u r t t o a p p o i n t him t o t h a t p o s i t i o n ? Plaintiff contends that his employment could not be t e r m i n a t e d b e c a u s e o f h i s p o l i t i c a l b e l i e f s , a g e o r sex, and that it constituted unlawful discrimination r e a s o n s n o t t o r e a p p o i n t him a s Deputy C l e r k . for the same He c o n t e n d s t h a t f a i l u r e t o f i l e an oath of public o f f i c e did not place him outside the protection of the state and federal coi~stitutions and statutory prohibitions against employment discrimination. The only indication in the record that any discrimination might have occurred are the allegations in pla.intiffls complaint. The deposition of Ethel Harrison, filed with the District Court prior to defendants' motion for summary judgment, contains sworn statements that Harrison "never even considered him [Conboy] as wanting to stay. my thinking." He was never in Conboy's testimony does not contradict this statement, nor does it in a.ny manner support the al-legations of discrimination contained in his complaint. Rule 56 (e), M. R. Civ. P. provides in part that: .. . " When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judqment, if appropriate, shall be entered against him." .. . In opposing defendants ' motion plaintiff made for summary judgment, only one reference to his allegations of discrimination by Clerk-elect Harrison. He testified as follows: "Q. Are you familiar with the allegation in paragraph six [of the second amended complaint] that the defenda.nts replaced plaintiff, you, with a woman more than 10 years your junior? You familiar with that allegation? "A. Yes." No evidence of discrimination was put forth in opposi- tion to defendants' motion for summary judqment. Mrs. Harri- son had indicated in her deposition prior to the hearing that Mr. Conboy's political affiliation played no part in her decision not to reappoint him and that she never considered him in the first place. The record contains no evidence tending to indicate that p3-aintiff's sex, age or political beliefs may have been a basis for any discrimination by Harrison. Plaintiff could not rest on the mere allegations of discrimination contained in his complaint. Rule 56 (e), "Failure of the party opposing the motion to either ra.ise or demonstrate the existence of a genuine issue of material fact, or to demonstrate that the legal issue should not be determined in favor of the movant, is evidence that the party's burden was not carried. Summary judgment is then proper, the court being under no duty to anticipate proof to establish a material and substantial issue of fact." State ex rel. Burlington North., Inc. v. District Ct. (1972), 153 Mont. 295, 300, 496 P.2d 1152, 1155. In the absence of a factual. sh0win.g of discrimination, we do not rule upon whether it may be unlawful for an elected public officer to discriminate on the basis of sex, age or political affiliation in the discharge or appointment of deputy. We affirm the summary judgment in favor of defendants on the unlawful discharge count of plaintiff's complaint. Does plaintiff have a claim of veteran's preference to the Office of Deputy Clerk of the Supreme Court? The second count of Conbov's amended complaint alleged that he was entitled to the veterans' preference in employment. He further alleged that the Montana Legislature 's repea.1 of certain sections of the Act was invalid. He asserts that he was entitled to an absolute preference in appointment based on the fact that Art. 11, sec. 18, Mont. Const. requires a two-thirds vote of each house to exempt the State from repealer suit failed two-thirds vote. and to that pass the both Veterans' houses by Preference the Act requisite The D i s t r i c t Court r u l e d t h a t t h e v e t e r a n s ' r e p e a l a b l e a t any t i m e , was a gratuity, t h a t t h e preference was n o t p r o p e r l y w i t h i n t h e p r o v i n c e o f Mont. Const., and t h a t t h e r e f o r e preference Art. a two-thirds 11, s e c , 18, v o t e of the l e g i s l a t u r e was n o t r e q u i r e d i n o r d e r t o r e p e a l t h e o l d law. The history of the Veterans Handicapped C i t i z e n s Employment Preference 1921 until 1983 was r e c e n t l y s e t f o r t h i n J e n s e n v. Dept. of Labor and 1235, 4 1 St.Rep. preference in Act, and Industry 1971, disabled civilians. (Mont. 1975-76. appointment et 10-2-201, § and seq., from MCA, State, 1 9 8 4 ) , 689 P.26 1231, T h a t Act gave a n a b s o l u t e employment to veterans and C r a b t r e e v. Montana S t a t e L i b r a r y (Mont. 1 9 8 3 ) , 665 P.2d 231, 40 St.Rep. 963. I n December 1983, t h e Montana L e g i s l a t u r e met i n s p e c i a l session, repealed the old law and enacted a new V e t e r a n s P r e f e r e n c e Act, which was s i g n e d i n t o law by t h e Governor and became e f f e c t i v e on December 2 0 , 1983. S S 10-2-201 law s t a t e s t h a t through S e c t i o n 1 4 o f t h e new 10-2-206, MCA a r e re- p e a l e d and t h a t t h i s r e p e a l a p p l i e s r e t r o a c t i v e l y t o b a r any c l a i m o f v i o l a t i o n o f t h o s e s e c t i o n s t h a t h a s n o t been reduced t o judgment by December 20, 1983. Spec. S e s s . , 1983 Mont. Laws 1. S. 2 , 4 8 t h Leg., 1st P l a i n t i f f ' s claim of v i o l a - t i o n o f t h e Act was reduced t o judgment a g a i n s t him on A p r i l 1 4 , 1984. Plaintiff's letter communication o f of December r e c o r d by p l a i n t i f f l e t t e r t o Clerk-elect 20, 1983 i s t o defendant. the only In h i s Harrison, p l a i n t i f f d i d not claim t h e v e t e r a n s ' p r e f e r e n c e n o r make any mention o f h i s s t a t u s a s a veteran. As a result, that. p l a i n t i f f Deputy claimed C l e r k was veterans' t h e r e i s n o t h i n g i n t h e r e c o r d t o show being a preference selected. at The the t i m e first that reference p r e f e r e n c e was i n p l a i n t i f f ' s c o m p l a i n t , the to f i l e d on April 15, 1983. Nonetheless, the District Court ruled on the question of plaintiff's entitlement to veterans1 preference in appointment. In substance, the District Court held that the veterans1 preference was a government gratuity which was repealable by the legislature at any time by a. majority vote. We adopt the analysis of veterans' preference rights in State ex rel. Dolan v. Civil Service Bur. of St. Paul (Minn. 1972), 3-97 EJ.W.2d 711, 714, where the Minnesota Supreme Court stated: "Veterans1 preference rights are not rights that have been earned through years of service to the state. They are a gratuity, given to the class of persons to show the state's appreciation for service in the Armed Forces of the United States, and they do not amount to vested rights in the recipients.. Therefore, a veterans' preference right can be adjusted when and as the 1-egislature sees fit without violating any vested rights.'I (Citations omitted) .. We hold that the veterans' preference rights granted under the repealed portion of the Veterans Preference Act are not rights earned through years of service to the state, but are a gratuity given to citizens of Montana by the State to show its appreciation for service in the Armed Forces. They do not amount to rights vested in the veterans. We further point out. that in repealing the old veterans' preference law, §§ 10-2-201 through 10-2-206, MCA, the legis- lature was not faced with any statutory or constitutional 1-imitations on its rights of repeal. There is no provision in that Act or in the Montana Constitution limiting the legislature's right to repeal the preference. In addition, 5 1.-2-110, MCA, provides: "Any statute may be repealed at any time except when it is otherwise provided therein. Persons acting under any statute are deemed to have acted in contemplation of this power of repeal." We conclude that the legislature properly could repeal the veterans' preference by a majority vote at any time and that veterans acting under the old law are deemed to have acted in contemplation of that power of repeal on the part of the legislature. We hold that plaintiff did not have a claim of veterans' pre5erence to appointment to the Office of Deputy Clerk of the Supreme Court. We affirm the dismissal of the plaintiff's complaint. We concur: 34 dd, pawgo Chief Justice Justices Mr. Justice Frank B. Morrison, Jr., specially concurring: I concur in the result for the reason that the record does not present a genuine issue of material fact.
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