NO. 82-226
INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

VIVIAN CRABTREE, Plaintiff and Respondent,

MONTANA STATE LIBRARY, an agency of the State of Montana, and SARA PARKER, (subnom.)

### , in her capacity as Montana State Librarian, Defendants and Appellants.

Appeal from: District Court of the First Judicial District, In and for the County of Lewis and Clark Honorable Gordon Bennett, Judge presiding Counsel of Record: For Appellants: Hon. Mike Greely, Attorney General, Helena, Montana Roy H. Andes, Assistant Attorney General, argued,

Helena, Montana For Respondent: James P. Reynolds argued, Helena, Montana For Amicus Curiae: Patricia Schaefer, Dept. of Admin., Helena, Montana Jan Van Riper, Dept. of Labor & Industry, Helena,

Montana Mae Nan Ellingson, City Attorney's Office, Missoula,

Montana

Filed: Submitted: March 1, 1983 

## JUM16

### 1983Mr. JusticeDaniel J. Shea delivered the Opinion of the Court. Thedefendants,Montana State Library,et al. (Library), appeal an order of the Lewis and Clark County DistrictCourt requiring the Library to reopen the hiring process for a positionwhich theyhad already filled,and that they give an absolute preference to any minimally qualified veteran or disabled civilian over all nondisabled civilian applicants. The plaintiff, Vivian Crabtree (Crabtree), brought this action under a veterans and disabled. civilians preference statute, section 1-0-2-203,MCA, which states: "Preference in appointmentand employment. (1) Ineverypublic departmentand upon all public works of the state ofMontana and of any county or city thereof, the following shall be preferred for appointment and employment:veterans,their spouses and surviving spouses, and other dependents of disabled veterans and disabled civilians recommendedby the rehabilitative services division of the department of social and rehabilitative services. 

### "(2) Age, loss of limb, or other physical impairmentwhich doesnot in fact incapacitatedoes not disqualify any disabled veteran or civilian provided he or shepossesses the business capacity, competency, and education to discharge the duties of theposition involved." Crabtree invoked this statute, and pursuant to the remedy provided for in section 10-2-206,MCA, filedan action in District Court asserting the statutory preference for public employment. She alleged that she was a disabled person, that she qualified for the position, and that the Library denied her the statutory preference. Although the Library challenged Crabtree's standing in trial court and did so initially in the briefs filed before this Court, at the oral argument of this appeal the Library conceded that Crabtree had standing to file the lawsuit. Having conceded the standing issue, two issues remain.First, the Library contends that the trial court erred by interpreting the preference in appointment and employment statute as creating a job entitlement for any minimally qualified veteran ordisabled applicant. Second,theLibrary claims that the remedy ordered by the trial court is too extensive. The trial court reopened the hiring process for this position by ordering that the position be redefined and readvertised. We affirm. Crabtree has been legally blind from birth as a result of congenitalcataracts. She doeshave some residual vision and can read printed pages with the help of a device that magnifies print. Shehas a Bachelor's degree in social work from the University ofMontana. In August 1981,the Library announced aposition opening for a coordinator of volunteer services and circulated a Notice of Position Open throughout the state. According to the notice, the duties of the job were to design and implement a state-wide program using volunteer readers to record library materials for theblind. In September 1981,Crabtree formally applied for the job stating on her application that she is legally blind. The Library concedes that Crabtree was qualified for a hiring preference because of her condition. The Library received a total of 46 applications, and four of these applicants claimed a disabled preference. A preliminary screening of the applications was done by scoring each applicant on a rating scale developed by the Library. Pointswere assigned in eight categories including voice evaluation, ability to plan and conduct workshops, ability to identify needs of handicapped, ability to work well with people, public relations, organizational skills and self-starting ability,library skills and training, and consultative skills. After the preliminary screening, the Library called ten applicants for a personal interview. Crabtree had scored 50 points a.nd

was called. The three other disabled applicants were also called. One purpose of the interview was to obtain additional information from the applicants about their qualifications. Based on the interview, the Library added points to an applicant's scores when appropriate. On September 22, 1981, the State Librarian notified Crabtree that another person had been hired. Crabtree then filed an action inDistrictCourt. At the hearing in trial court,awitness for the Library testified that Crabtree was rejected because she lacked essential qualificationsinvoice evaluation,ability toplan and conduct workshops,public relations, library skills,and consultativeskills. Crabtree testified that the interviewer failed to ask her questions designed to elicit information about each of those specific areas. As an example,Crabtree claims that shewas not asked abouther speechtraining. The person who was eventually hired was given 17 points in the voice evaluation category because she had three college speech courses. Crabtree also had three college speech courses,but was not asked about them and received no points forvoice evaluation. TheLibrary argues that section 10-2-203,MCA, createsa preference for veterans or qualified disabled civilianswho

are within the pool of truly qualified applicants. Subsection (1) of the statute provides that a veteran or disabled civilian 

### " 

# . . . shall be preferred 

# . . . 11

# . subsection (2)contains the language 

### " 

# ..

# .provided he or she possesses the business capacity, competency, andeducation to discharge the duties of theposition involved." ~elyingon this language, the Library argues that the legislature did not intend that any minimally qualified veteran or disabled civilianwould be entitled to employment. Rather, the Library argues, the statute creates a preference for veterans or qualified disabled civilians who are within the pool of truly qualified applicants. Under this interpretation strict equality of qualifications for the position would not be required, and the preference would be invoked when applicants are approximately equal. The Library argues,therefore, that if

an employer reasonably believes that some non-preferred applicant is substantially better qualified the employer would have the discretion to hire the best applicant. We disagree. We do not believe that the legislature intended the preference to be triggered only when the applicants are approximately equal. The history of the statute leadsus to the conclusion that the entitlementwas intended. The trial court addressed this issue in awell reasoned memorandum opinion,which we quote and adopt with approval: "[tlhe question must be viewed as one of first impression and its resolution be based mainly on statutory construction. "The statute was born in the wake of World War I and limited its provisions to veterans only.

(Chapter 211, 1,. 1921.) From this earliest enactment, itwas clear thepreferencewas intended to be absolute. Age, loss of limb or other physical impairment 

### '.

# ..which does not in fact incapacitate" would not be deemed disqualification for preference, provided the veterans possessed 'thebusiness capacity,competency and education to discharge the duties of the position involved.' This language persists, unchanged, to this day

(10-2-203 (2) )

# . Clearly, actual incapacitation to discharge the duties of the position was the only ground intended to deprive the veteran of preference. This cannot be construed to be a - relative preference, it is an absolute preference having nothing whatever to do with thequalification of other applicants. This original section was amended six years later to include disabled civilians, and the section was not otherwise altered. (Chapter 133, L. 1927.) In 1937 the sectionwas amended to give it the teeth it now has in Section 10-2-206. (Chapter 66, L. 1937.) This [section] provided a right of action to any person entitled to preferencewho wasdenied a position and who felt that 

### '.

# . . he is in fact qualified physically, mentally and possesses business capacity, competency and education to discharge the duties of the position applied for.

# . .I. Aqain, this lanquaqeremainsunchanqed to date and is not a decl-ar;tion of a relative preference but an absolute one, viz., if he can discharge the duty he's entitled to the job. The legislaturehas looked at this 'VeteransPreference Act' at least nine times since 1937 (1943, 1947, 1949, 1955, 1969, 1975, 1977, 1979 and 1981) and left these original provisions undefiled. There has not been, and there isnot today,any language in the statute that suggests that the preference is relative to the qualification of any other applicant. The only limiting factor is the ability of the disabled civilian, or veteran, to do the job. "TheMontana SupremeCourt, in 1941, found that the Anaconda mayor had to give the preference to a veteran if the veteran were 

# . .

# . qualified for the position within the contemplation of the statute.

### ' It did not elaborate upon what it felt the statute contemplated in this regard, but I believe the case, taken in its entirety, would support the proposition that the mayor had to hire the veteran if he could do the job. The court decided the mayor did not abuse his discretion in determining the veteran could not handle the job.

(Horvath 

### - v. Mayor of Anaconda, 112 M. 266). 

# . . - "Statutory construction and such precedentwe have would give Montana veterans and disabled civilians who meet the minimum qualifications for a state, countyor municipal job an absolutepreference over all other non-veterans or non-disabled civilians under Section 10-2-203." We hold that an absolute preference was intendedby the enactment of section 10-2-203,MCA, and therefore, that the trial court properly construed the preference in appointment and employmentstatute. Before discussing the remedy ordered by the District Court,which the Library argues is too extensive,we discuss our holding in relation to the issues raised by amicus, allof whom seek reversal of the DistrictCourt order. While it is not our custom to address separately issues not raised by theparties,wedepart from that practicehere because of the widespread impact that the Library and amicus argue our opinion will have on the hiring practices within state and local levels of government. The Department of Labor and Industry argues that an absolute entitlement ruling runs afoulof the Human RightsAct, specifically section 49-1-102, MCA, which prohits "discrimination because of race, creed, religion, color, sex, physical or mental handicap, age, or national origin." The main argument -- is that the preference statute, so construed, discriminates against femalesbecause the vast majority of the military who would be entitled to the preference, is comprised of men. The Department of Administration argues that the order runs afoul of the Governmental Code of Fair Practices,and specifically section 49-3-201(1)

## , MCA, which provides in part that government agencies shall appoint personnel "on the basis ofmerit and qualification^.^ The Department of Administration further argues that hiring on the basis of "minimum qualifications" will cause nothing but headaches for the personnel departments of the government. Finally,theCity of Missoula and the League of Cities and Towns argue also that the order runs afoul of the Human Rights Act (section 49-1-102, MCA, supra) and that the hiring of personnel based on minimum qualificationswill result in the cities being flooded with claims of liability based on the emerging tort of negligent hiring. We view the veterans and disabled civilians preference statute as being in essence an affirmative actionprogram--a program designed to confer certain benefits on those classescovered. The statute covers femaleveterans as well asmale veterans; it covers all disabled civilians. As such, the statue doesnot singleoutwomen to discriminateagainst. The statuteprotects women as well as it protectsmen. Indeed, although it may be true that more men than women are veterans, it follows that more spousesof veterans arewomen. Spouses are also entitled to the preference, regardless of

sex. Insofar as the veterans preference is concerned, in construing a Massachusetts veterans' preference act, the United States Supreme Court aptly summarized the purpose of the preference: "The law remainswhat it purports to be: a preference for veterans of either sex over nonveterans of either sex, not formen overwomen." PersonnelAdministrator of Mass. v. Feeney (1979),442U.S. 256, 280. In Feeney, the Supreme Court interpreted a statute granting preferences only to members of the military. The Montana statute goes further to extend the preference to

womenby including spousesand dependen.tsof veterans as well

as disabled civilians. Clearly, the Montana statute is even further from running afoul of equal protection considerations. The Department of Administration claims that the District Court's order prevents it from discharging its duties under section 2-18-102(1)(b)

## , MCA, that of "foster[ing] and develop[ing] programs for recruitment and selection of capable persons" for state positions. The Department is also charged with implementingand maintaining the State's Equal Employment Opportunity and Affirmative Action programs. Section 49-3-201, MCA. The Department argues that theDistrict Court's order conflicts with section 49-3-201(1), MCA,whichprovides that:"State and local government officials and supervisory personnel shall recruit, appoint, assign, train, evaluate, and promote personnel on the basis of merit and qualifications without regard to race, color,religion,creed, political ideas, sex,age,marital status,physical ormental handicap, or national origin.

### " (Emphasisadded.) We do not, however, view section 49-3-201, MCA, as conflicting with the preference in appointmentand employment statute. The Department acknowledges that it has a duty to implement and maintain affirmative action programs, and we view the preference statute as simply being an affirmative action program. Although the Department argues that the absolute preference conflicts with section 49-3-201, the Department does not begin to suggest that section 49-3-201 would likewise bar a relative preference such as argued for by the Library. If section 49-3-201 would not conflict with

a relative preference we see no reason why it must conflict with an absolute preference. The preferences in section 10-2-203 were granted by the legislature, and they must be given fulleffect. The Department of Administration also argues that the term used by the District Court in its order--"minimum qualifications" or "minimally qualifiedw--isa term of art used by personnel specialists and therefore that it will cause nothing but headaches for the personnel divisions of state government. Crabtree agrees that the termused by the trial court may at first glance be confusing and ambiguous, but suggests that the terms were meant to be a short-hand method of designating compliance with the statutory requirement that the applicant possess the "business capacity, competency, and education to discharge the duties of the position involved." Section 10-2-203(2), MCA. We agree. The minimum qualifications are simply thosequalifications of capacity, competency and education as defined by the agency for doing the particular job. If, therefore, a preferred applicant meets those qualifications, he has met the "minimumqualifications" for theposition and mustbe hired. Amicus City of Missoula andMontana leagueof Cities and Towns argue also that an absolute preference conflicts with the Human Rights Act because it discriminates against women who comprise an inordinately small part of themilitary. We have already rejected this argument in discussing the arguments of the Department of Labor and Industry. The second argument of the local governments is tha-tan absolute preference would expose local governments to an endless barrage of lawsuits based on the emerging tort of negligent hiring. This argument is based on the unfounded assumption that the preferred applicant would not be required to be qualified for the particular job. We have held, however, that the applicant who gets the job, even though entitled to

a preference,must still be qualified for the job. Section 10-2-203,MCA, clearly sets forth that requirement. TheLibrarynext contendsthat the remedy orderedby the trial court is too extensive. The trial court ordered the Library to redefine and readvertise the position and to reopen the entire hiring process for this position. The Library contends that the trial court's order goes beyond the remedy provided by section 10-2-206 which authorizes a district court hearing to show cause why the person entitled to apreference shouldnotbe employed, afterwhich the court may order the appointing authority to comply with the law in giving the preference. The Library contends that the statutory remedy is limited to the petitioner, but that thetrial court has improperly enlarged the remedy to include a class of applicants for the reopenedposition. The trial court,however, was not faced with a situation where the library position had been properly advertised according to jobdescriptionand the rating scale used in the selectionprocess. Rather, the job advertisement notice gave all applicants hardly any idea of what factors would be considered in the selection process. Given this situation, it was only fair that not only Crabtree, but that all applicants be given another opportunity to apply for the position with the knowledge of what factorswould be relied

on in the selectionprocess. The trial court looked at the minimum requirements set forth in the Library's Notice of Position Open and found little correlation between the jobdescriptionand the rating scaleused in the selectionprocess. For example, the notice of position open places a heavy emphasis on library skills and training. However, library skillsand training are only given four points out of 100 on the evaluation sheet. None of the three finalists, including the person selected, received any points for library skillsand training. On the other hand, voice evaluation skills and ability to conduct workshops were given a great deal of weight on the rating scale, but were not specifically mentioned in the Notice of PositionOpen. The trial court found other deficiencieswith the hiring process which we need not point out here. We agree with the trial court's conclusion that the minimum qualifications for the position were never clearly determined, were not communicated by the Notice of Position Open, and therefore could not have been used as a basis forevaluating Crabtree's application or in according her preference. We hold that the remedy ordered by the trial court is the only way for Crabtree and other applicants to be given a meaningful opportunity to demonstrate their qualifications and for the Library to comply with the preference in appointmentand employment statute. Theorder of theDistri

We concur:

Chief JusticeMr. Chief JusticeFrank I. daswell specially concurring: I concur that the statute in question mandates an absolutepreference for qualified disabled persons and with the remedy ordered by themajority. My quarrel is that the majority opinion goes beyond the issues raised by the litigants in thiscase and ruleson extraneous matters raised by amici for the first time on appeal. This Court has held on many occasions that it will not address issues ralsed for the first time on appeal, Spencer v. Robertson (1968), 151 Mont. 507, 445 P.2d 48; Clark v. Worrall (1965), 146Mont. 374, 406 P.2d 822; State Highway Comm. v. Milanovich (1963), 142Mont. 410, 384 P.2d 752; nor willit consider new arguments and new theories of relief raised for thefirsttime on appeal, Akhtar v. Van de Wecering (1982), Mont. 

## , 642 P.2d 149, 39 St.Rep. 400. Furthermore, this Court has consistently held that amicl cannot raise issuesnot raised by thepartiesand such issues willnot be addressed by this Court. State ex rel. Department of Health and Environmental Science v. La Sorte (1979), 182Mont. 267, 596 P.2d 477; Department of SRS v. Angel & Fisher (1978), 176Idont. 293, 577 P.2d 1223; State

ex rel. Kvaalen v. Graybill (1972), 159Mont. 190, 496 P.2d 1127; Stateexrel. Bennett v. Bonner (1950), 123Mont. 414, 214 P.2d 747. The reasons for these rules are manifold: (1)The theories and arguments inthe case should not be changed by amici atthe expense of the litigants by injecting new and extraneous issues inthe case. (2)The trial court had no opportunity to hear argument, consider or rule upon newissues raised for the first time on appeal. (3)The everpresent danger that issues and arguments not considered in the trial court and not considered significant or controlling by the litigants themselves will not be adequately briefed or argued on appeal. For these reasons, Iwould adhere to the salutary rule heretofore expressed and observed by this Court.

Chief Justice

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