McKamey v. State

• Decision Date: 29 November 1994
• Docket Number: No. 94-180,94-180
• Court: Montana Supreme Court
• Parties: , 2 Wage & Hour Cas.2d (BNA) 879 Joseph M. McKAMEY, Plaintiff, Respondent and Cross-Appellant, v. STATE of Montana, Defendant, Appellant and Cross-Respondent.

Page 515

885 P.2d 515

268 Mont. 137, 2 Wage & Hour Cas.2d (BNA) 879

Joseph M. McKAMEY, Plaintiff, Respondent and Cross-Appellant, v. STATE of Montana, Defendant, Appellant and Cross-Respondent.

No. 94-180.

Supreme Court of Montana.

Submitted on Briefs Oct. 13, 1994.

Decided Nov. 29, 1994.

Charles E. Erdmann, Erdmann Law Office, Helena, for appellant.

Timothy J. McKittrick, McKittrick Law Firm, Great Falls, for respondent.

TURNAGE, Chief Justice.

The State of Montana appeals from a judgment of the District Court for the Eighth Judicial District, Cascade County. That court declared unconstitutional a requirement that firefighters employed by the State of Montana at the Montana Air National Guard base in Great Falls, Montana, be members of the Montana Air National Guard. We affirm.

The issues are:

1. Did the District Court err in refusing to dismiss this case on grounds that it does not constitute a case or controversy?

2. Did the court err in refusing to dismiss on grounds that McKamey failed to exhaust his administrative remedies?

3. Did the court err in refusing to dismiss on grounds that the challenged policy is a discretionary military policy over which district courts have no subject matter jurisdiction?

4. Did the court err in granting McKamey's motion to quash and for a protective order?

5. Did the court err in granting summary judgment that the military service requirement is unconstitutional?

6. Did the court err in denying McKamey attorney fees and costs?

Joseph McKamey is one of nineteen firefighters employed at the Great Falls International Airport as civilian employees of the State of Montana, Department of Military Affairs. McKamey's job includes providing protection for civilian aircraft and for a unit of the Montana Air National Guard stationed at the airport.

Before 1975, these firefighters were federal civilian employees. In that year, the federal positions were eliminated and the National Guard Bureau agreed to provide funding to allow the State of Montana to hire the firefighters as state employees.

Until 1986, the firefighters were scheduled to work "Kelly shifts" of 24 hours on and 48 hours off. This schedule placed them on duty for 65 hours in some weeks, 55 hours in other weeks, and 48 hours in the remaining weeks. However, their pay did not vary according to the hours worked, and they were not paid overtime compensation.

In 1984, McKamey and nine other firefighters filed a wage action against the State, claiming their employment arrangement violated the Montana Wage and Overtime Compensation Act, §§ 39-3-401 through -409, MCA. In 1985, the United States Supreme Court ruled that state employees enjoy the protection of the Fair Labor Standards Act. See Garcia v. San Antonio Metro. Transit Auth. (1985), 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016. The firefighters added that Act as a second basis for their claims. That action has been settled. See Stimac v. State (1991), 248 Mont. 412, 812 P.2d 1246.

In 1985, the Department of Military Affairs sought approval of a pay plan for the firefighters at the Great Falls airport which deviated from the State Compensation Plan. That plan was not approved. In June of 1986, the Personnel Division of the State of Montana endorsed an exemption from wage requirements for the firefighters. This exemption was premised upon a policy requiring these firefighters, as a condition of their employment, to be members of the Montana Air National Guard. Section 2-18-103, MCA, exempts certain types of positions from the wage requirements of the State Compensation Plan, among them "officers or members of the militia."

McKamey and nine other firefighters filed a second wage action against the State in 1989. The decision in that action is now on appeal to this Court (Tefft et al. v. State, Montana Supreme Court Cause No. 94-229).

In February 1992, McKamey filed this action seeking declaratory, injunctive, and equitable relief declaring the State's military service requirement discriminatory and violative of his employment rights and the rights of other state employees similarly situated. Following discovery and briefing, the District Court heard the parties' cross-motions for summary judgment. The court issued an extensive memorandum and order granting McKamey's motion for summary judgment on grounds that the requirement violated the firefighters' rights to equal protection and to due process. The court enjoined the State from using the military service requirement in any manner relative to McKamey or employees similarly situated. It ordered each party to pay its own attorney fees and costs. The State appeals. McKamey cross-appeals on the issue of attorney fees.

Issue 1

Did the District Court err in refusing to dismiss this case on grounds that it does not constitute a case or controversy?

Because McKamey does not claim he has already suffered a penalty from the military service requirement, the State maintains he is not entitled to a declaratory judgment. According to the State, a declaratory judgment at this point would be an advisory opinion based on a possible future occurrence. The State maintains no case or controversy exists, citing cases in which this Court has ruled that issuance of a declaratory judgment was not proper because no case or controversy was presented.

Section 27-8-201, MCA, grants Montana courts the power to render declaratory judgments:

Scope of power to render declaratory judgments. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.

Section 27-8-202, MCA, provides:

Who may obtain declaratory judgment. Any person interested under a ... written contract ... or whose rights, status, or other legal relations are affected by a ... contract ... may have determined any question of construction or validity arising under the instrument ... and obtain a declaration of rights, status, or other legal relations thereunder.

Section 27-8-203, MCA, states that a contract may be construed either before or after there has been a breach thereof. In addition, § 27-8-205, MCA, provides:

The enumeration in 27-8-202 through 27-8-204 does not limit or restrict the exercise of the general powers conferred in 27-8-201 in any proceeding where declaratory relief is sought in which a judgment or decree will terminate the controversy or remove an uncertainty.

Pursuant to the above statutes, it is not necessary that McKamey have already suffered an injury before seeking relief in the form of a declaratory judgment.

McKamey filed an affidavit with the District Court in which he states that one of the other firefighters, Edward Peters, was terminated from his employment as a firefighter after he retired from the Montana Air National Guard. McKamey states that the reason given for Peters' termination was the military service requirement. In his affidavit, McKamey goes on to say that, based on Peters' experience, he feels his own right to retire from the Montana Air National Guard has been threatened. He states that if his employment is terminated, his family will have no income, insurance, or other benefits, and his pension benefits will be severely reduced.

This Court has stated that a declaratory judgment suit against a government entity must be supported by allegations of past, present, or threatened injury to a property or civil right, and the alleged injury must be distinguishable from the injury to the public generally. Stewart v. Bd. of Cty. Com'rs of Big Horn Cty. (1977), 175 Mont. 197, 201, 573 P.2d 184, 186. Under the administrative policy now in effect, McKamey's civilian employment as a firefighter is threatened if he resigns or retires from the Montana Air National Guard. The existence of a case or controversy is amply demonstrated by the multiple lawsuits concerning the firefighters' employment status.

We hold that the requirement of a threatened injury has been met and that a case or controversy exists. We further hold that the District Court did not err in refusing to dismiss this action as inappropriate for declaratory judgment.

Issue 2

Did the court err in refusing to dismiss on grounds that McKamey failed to exhaust his administrative remedies?

The State argues district courts are without discretion to proceed under the Uniform Declaratory Judgments Act where the claimant has available administrative remedies, citing Roeber v. State, Dept. of Institutions (1990), 243 Mont. 437, 795 P.2d 424. However, when a claimant raises a bona fide constitutional claim in a declaratory judgment action, the exhaustion doctrine does not apply. Mitchell v. Town of West Yellowstone (1988), 235 Mont. 104, 109-10, 765 P.2d 745, 748. We hold that the District Court did not err in denying the State's motion to dismiss.

Issue 3

Did the court err in refusing to dismiss on grounds that the challenged policy is a discretionary military policy over which district courts have no subject matter jurisdiction?

Citing Martelon v. Temple (10th Cir.1984), 747 F.2d 1348, cert. denied, 471 U.S. 1135, 105 S.Ct. 2675, 86 L.Ed.2d 694, and Olson v. Nat. Guard (1972), 160 Mont. 387, 503 P.2d 24, the State maintains that the military service requirement is a discretionary state military policy and, as such, is outside the jurisdiction of the courts.

However, there are exceptions to this rule.

[W]hen presented with claims of judicially cognizable injury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation's history or in the Court's...