Ritchie v. Town of Ennis

Decision Date02 March 2004
Docket NumberNo. 03-187.,03-187.
Citation320 Mont. 94,86 P.3d 11,2004 MT 43
PartiesJerry RITCHIE, Plaintiff, Appellant and Cross-Respondent, v. TOWN OF ENNIS, a Montana Corporation, separately, and by and through its Mayor Ralph Hernandez, Defendant, Respondent and Cross-Appellant.
CourtMontana Supreme Court

For Appellant: Geoffrey C. Angel, Angel Law Firm, Bozeman, Montana.

For Respondent: J. Robert Planalp, Landoe, Brown, Planalp, Braaksma & Reida, P.C., Bozeman, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 Jerry Ritchie (Ritchie) appeals from an order of the Fifth Judicial District Court, Madison County, granting summary judgment to the Town of Ennis (Town) on his wrongful discharge from employment claim. The Town cross appeals from an order denying its requests for costs and attorney fees. We affirm.

¶ 2 We address the following issues on appeal and cross appeal:

¶ 3 1. Did the District Court err in concluding Ritchie was not wrongfully discharged because he was still in the probationary period of employment for police officers?

¶ 4 2. Did the District Court err in partially denying the bills of costs and attorney fees submitted by the Town and the Mayor?


¶ 5 In August 2000, the Town hired Ritchie as its town marshall. On January 16, 2001, Ritchie was arrested for stalking a woman with whom he was formerly involved. The next day, Mayor Ralph Hernandez (Mayor) dismissed Ritchie from employment due to the stalking charge and various complaints he had received from citizens of the Town. At the time, Ritchie had not yet completed the six month probationary period required for his position. Subsequently, the charges against Ritchie were dismissed.

¶ 6 Ritchie brought a wrongful discharge from employment claim against the Town and the Mayor under § 39-2-904, MCA (1999). He asserted that he was terminated for refusing to violate public policy when he was told to stop writing tickets, but he nevertheless wrote various citations rather than giving warnings. He also claimed the Town violated the terms of its own written personnel policies. The Town moved for summary judgment, asserting the Mayor had discretion to discharge Ritchie under § 7-32-4113, MCA, because he had not completed his probationary status. The Town also asserted that even if § 7-32-4113, MCA, did not apply, there were no genuine issues of material fact that Ritchie was discharged for refusing to violate public policy or that his discharge was in violation of the Town's written personnel policies.1

¶ 7 After a hearing on the motion, the court granted summary judgment to the Town concluding that under § 39-2-904(2), MCA (1999), the Town was entitled to dismiss Ritchie as a probationary employee and that §§ 39-2-904(1) and (3), MCA (1999), did not provide Ritchie with grounds for separate claims. Ritchie also represents to this Court that the District Court orally denied the Town's motion under § 7-32-4113, MCA, without giving its reasoning. Ritchie now appeals. The Town cross appeals the District Court's partial denial of the Mayor's and the Town's respective motions for attorney fees and costs. Further facts regarding attorney fees and costs are discussed below.


¶ 8 We review a court's order granting summary judgment based on its interpretation of statutory law to determine whether the interpretation was correctly decided. Hobbs v. City of Thompson Falls, 2000 MT 336, ¶ 11, 303 Mont. 140, ¶ 11, 15 P.3d 418, ¶ 11. We will affirm a district court's ruling if the court reached the correct result for the wrong reason. State v. Parker, 1998 MT 6, ¶ 20, 287 Mont. 151, ¶ 20, 953 P.2d 692, ¶ 20. We review a district court's award of costs for abuse of discretion. Mularoni v. Bing, 2001 MT 215, ¶ 53, 306 Mont. 405, ¶ 53, 34 P.3d 497, ¶ 53.


¶ 9 Did the District Court err in concluding Ritchie was not wrongfully discharged because he was still in the probationary period of employment for police officers?

¶ 10 The District Court's order granting summary judgment to the Town was based entirely on statutory interpretation. The pertinent provision of the Wrongful Discharge From Employment Act (WDEA), § 39-2-904, MCA (1999), reads:

Elements of wrongful discharge. A discharge is wrongful only if:
(1) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy;
(2) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or
(3) the employer violated the express provisions of its own written personnel policy.2 [Emphasis added.]

This provision was first enacted in 1987 and is intended to cover all employees in the State of Montana with exceptions listed in § 39-2-912, MCA. MacMillan v. State Compensation Ins. Fund (1997), 285 Mont. 202, 205, 947 P.2d 75, 76-77; § 39-2-902, MCA.

¶ 11 By contrast, under Title 7, Local Government, Chapter 32, Law Enforcement, Part 41, Municipal Police Force, there is a specific statute codified at § 7-32-4113, MCA, governing the probationary terms of police officer employment. A version of this statute was first enacted in 1907 and significantly amended in 1921 and 1947. The 1921 amendment provided that a mayor, with the approval of the city council, may discharge a probationary officer. The 1947 amendment removed the requirement for approval of the city council. The current version, which is in relevant respects similar to the 1947 version, reads:

Probationary period and confirmation of appointment. (1) Every applicant who has passed the examination and received the certificate referred to in X-XX-XXXX must first serve for a probationary term of not more than 1 year. At any time before the end of such probationary term, the mayor, or the manager in those cities operating under the commission-manager plan, may revoke such appointment.

(2) After the end of such probationary period and within 30 days thereafter, the appointment of such applicant must be submitted to the city council or commission, and if such appointment is confirmed by the city council or commission, such applicant becomes a member of the police force and shall hold such position during good behavior unless suspended or discharged as provided by law.

In this case, Ritchie's probationary period was set at six months by the Town. The Mayor terminated Ritchie's employment before the probationary period was completed.

¶ 12 At the hearing on its summary judgment motion, the Town asserted § 7-32-4113, MCA, as one of its grounds for Ritchie's termination. Contrary to Ritchie's assertion that the District Court dismissed the Town's argument under this statute, the record indicates the District Court reserved this argument at the hearing. Because the court then concluded by a later written order that under § 39-2-904, MCA (1999), the Town was entitled to dismiss Ritchie, the District Court simply did not reach the argument regarding § 7-32-4113, MCA.

¶ 13 Instead, the court interpreted the WDEA and stated:

The legislature has provided three circumstances in which discharge from employment becomes wrongful. Each of the circumstances are provided for separately and independently. The sequence of subsections (a), (b) and (c)3 are disjunctive as demonstrated by the term "or" between (b) and (c). A fundamental tenant of interpretation is that disjunctive provisions are exclusive. The existence of any one of the circumstances independent from the others is sufficient. Defendants need to demonstrate only one such circumstance in order to avoid the WDA. Defendants have demonstrated and Plaintiff has not controverted the fact that Plaintiff was a probationary employee.

The District Court went on to state that this Court has not specifically addressed the interaction of subsections (1), (2), and (3). Finally, the court noted that because this Court has held probationary police officers have no due process rights, it concluded that the officers also have no rights to a hearing to determine if a termination was for refusing to violate public policy or in violation of an employer's written personnel policy.

¶ 14 Ritchie asserts the District Court was in error because § 39-2-904, MCA (1999), provides three separate and independent grounds for wrongful discharge. Ritchie argues that because the term "or" is used to distinguish each subsection from the others, that an employee can bring three independent grounds for wrongful discharge if there are prima facie facts that would support each claim. He argues that an employer must defend against each of these three grounds independently.

¶ 15 Although the Town asserts the District Court reached the correct result, the Town reasserts its argument that § 7-32-4113, MCA, controls in this situation. Specifically, the Town argues that a mayor has discretion to discharge a police officer during the probationary period that precludes any cause of action under § 39-2-904, MCA (1999), because the Legislature did not repeal § 7-32-4113, MCA, by implication when it enacted § 39-2-904, MCA (1999). As support for its argument, the Town calls this Court's attention to the case law interpreting § 7-32-4113, MCA, and the legislative history of § 7-32-4113, MCA. Alternatively, it argues the District Court properly determined that, at least in regard to police officers, the probationary period under subsection (2) of § 39-2-904, MCA (1999), precludes claims under subsections (1) and (3) if the officer was properly within a probationary period because a probationary officer has no vested property right and therefore no due process rights. Finally, the Town also asserts that because of the recent amendments to § 39-2-904, MCA, by the Legislature, the District Court reached the correct result in holding that probationary employees have no claims under subsections (1) and (3).

¶ 16 We...

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