NO. 82-226 

IN THE 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, (sub nom. ) , 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 

JUM 1 6 1983 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The defendants, Montana State Library, et al. (Library), 

appeal an order of the Lewis and Clark County District Court 

requiring the Library to reopen the hiring process for a 

position which they had 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 appointment and employment. 

(1) In every public department and upon all public 

works of the state of Montana 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 

recommended by the rehabilitative services division 

of the department of social and rehabilitative 

services. 

" (2) Age, loss of limb, or other physical 

impairment which does not in fact incapacitate does 

not disqualify any disabled veteran or civilian 

provided he or she possesses the business capacity, 

competency, and education to discharge the duties 

of the position involved." 

Crabtree invoked this statute, and pursuant to the 

remedy provided for in section 10-2-206, MCA, filed an 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 or disabled applicant. Second, the Library 

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 congenital cataracts. She does have some residual vision 

and can read printed pages with the help of a device that 

magnifies print. She has a Bachelor's degree in social work 

from the University of Montana. 

In August 1981, the Library announced a position 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 the blind. 

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. Points were 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 in District Court. 

At the hearing in trial court, a witness for the Library 

testified that Crabtree was rejected because she lacked 

essential qualifications in voice evaluation, ability to plan 

and conduct workshops, public relations, library skills, and 

consultative skills. 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 she was not asked about her speech training. 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 

for voice evaluation. 

The Library argues that section 10-2-203, MCA, creates a 

preference for veterans or qualified disabled civilians who 

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, and 
education to discharge the duties of the position involved." 

~elying on this language, the Library argues that the 

legislature did not intend that any minimally qualified 

veteran or disabled civilian would 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 leads us to 

the conclusion that the entitlement was intended. 

The trial court addressed this issue in a well 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, it was clear the preference was 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 

'the business 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 the 
qualification 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 section was 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 preference who was denied 

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 lanquaqe remains unchanqed 

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 

legislature has looked at this 'Veterans Preference 

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 is not 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. 

"The Montana Supreme Court, 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 precedent we have 

would give Montana veterans and disabled civilians 

who meet the minimum qualifications for a state, 

county or municipal job an absolute preference over 

all other non-veterans or non-disabled civilians 

under Section 10-2-203." 

We hold that an absolute preference was intended by the 

enactment of section 10-2-203, MCA, and therefore, that the 

trial court properly construed the preference in appointment 

and employment statute. 

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, all 
of whom seek reversal of the District Court order. While it 

is not our custom to address separately issues not raised by 

the parties, we depart from that practice here 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 

afoul of the Human Rights Act, 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 females because 

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 of merit 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, the City 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 

qualifications will 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 action program--a 

program designed to confer certain benefits on those classes 
covered. The statute covers female veterans as well as male 

veterans; it covers all disabled civilians. As such, the 

statue does not single out women to discriminate against. The 

statute protects women as well as it protects men. Indeed, 

although it may be true that more men than women are 

veterans, it follows that more spouses of veterans are women. 

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 remains what it purports to be: a 

preference for veterans of either sex over nonveterans of 

either sex, not for men over women." Personnel Administrator 

of Mass. v. Feeney (1979), 442 U.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 

women by including spouses and dependen.ts of 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 implementing and maintaining 

the State's Equal Employment Opportunity and Affirmative 

Action programs. Section 49-3-201, MCA. The Department 

argues that the District Court's order conflicts with section 

49-3-201(1), MCA, which provides 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 or mental 

handicap, or national origin. " (Emphasis added. ) 

We do not, however, view section 49-3-201, MCA, as 

conflicting with the preference in appointment and 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 full effect. 

The Department of Administration also argues that the 

term used by the District Court in its order--"minimum 

qualifications" or "minimally qualifiedw--is a 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 term used 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 those 
qualifications 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 "minimum qualifications" for the position and 

must be hired. 

Amicus City of Missoula and Montana league of 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 the military. 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-t an 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. 

The Library next contends that the remedy ordered by 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 a preference should not be employed, after which 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 the 
trial court has improperly enlarged the remedy to include a 

class of applicants for the reopened position. 

The trial court, however, was not faced with a situation 

where the library position had been properly advertised 

according to job description and the rating scale used in the 

selection process. 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 factors would be relied 

on in the selection process. 

The trial court looked at the minimum requirements set 

forth in the Library's Notice of Position Open and found 

little correlation between the job description and the rating 

scale used in the selection process. For example, the notice 

of position open places a heavy emphasis on library skills 

and training. However, library skills and 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 skills and 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 

Position Open. The trial court found other deficiencies with 

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 for 
evaluating 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 

appointment and employment statute. 

The order of the Distri 

We concur: 

Chief Justice 
Mr. Chief Justice Frank I. daswell specially concurring: 

I concur that the statute in question mandates an 

absolute preference for qualified disabled persons and with 

the remedy ordered by the majority. 

My quarrel is that the majority opinion goes beyond 

the issues raised by the litigants in this case and rules on 

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), 146 Mont. 374, 406 P.2d 822; State 

Highway Comm. v. Milanovich (1963), 142 Mont. 410, 384 P.2d 

752; nor will it consider new arguments and new theories of 

relief raised for the first time 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 issues not raised by the parties and such 

issues will not be addressed by this Court. State ex rel. 

Department of Health and Environmental Science v. La Sorte 

(1979), 182 Mont. 267, 596 P.2d 477; Department of SRS v. 

Angel & Fisher (1978), 176 Idont. 293, 577 P.2d 1223; State 

ex rel. Kvaalen v. Graybill (1972), 159 Mont. 190, 496 P.2d 

1127; State ex rel. Bennett v. Bonner (1950), 123 Mont. 414, 

214 P.2d 747. 

The reasons for these rules are manifold: (1) The 

theories and arguments in the case should not be changed by 

amici at the expense of the litigants by injecting new and 

extraneous issues in the case. (2) The trial court had no 

opportunity to hear argument, consider or rule upon new 
issues 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, I would adhere to the salutary rule 

heretofore expressed and observed by this Court. 

Chief Justice 

&