No. 91-316 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

JOHN J. STUART and LEE J. TICKELL, Plaintiffs and Appellants,

-vsDEPARTMENT OF SOCIALAND REHABILITATION SERVICES, a state agency within the executive branch of state government, and the STATE OF MONTANA, Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Dorothy McCarter, Judgepresiding.

COUNSEL OF RECORD: For Appellants: Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena, Montana For Respondents: G. CurtisDrake;Keller,Reynolds,Drake,Sternhaqen & Johnson,Helena, Montana For Amicus Curiae: CarterN. Picotte,Attorney at Law, Helena,Montana

(Montana Public Employees' Association)

Filed: Submitted on Briefs: March 26, 1992 Decided: January 29, 1993

ClerkJustice Karla M. Gray delivered the Opinion of the Court.

John Stuart and Lee Tickell appeal from the grant of summary judgment to the Montana Department of Social and Rehabilitation Services (SRS) by the First Judicial District Court, Lewis and Clark County. We affirm. The issues are: 1. Did SRS's refusal to pay appellants their accrued vacation benefits violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution? 2. Did SRS's refusal to pay appellants their accrued vacation benefits violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution? 3. Is 5 2-18-617(2), MCA, thestatuteuponwhichSRS relied when it withheld appellants' accrued vacation benefits, either an unconstitutional delegation of legislative authority to an administrative agency or unconstitutionally vague? Inearly 1989, SRSbegan an investigationof sexualmisconduct allegations lodged against Tickell. SRS concluded that improper conduct had occurred and began formal disciplinary proceedings against Tickell. Subsequently, the State investigated acts of vandalism allegedly committedby both Stuart and Tickell against a former SRS employee. This investigation led to the filing of criminal mischief charges against Stuart and Tickell. On July 21, 1989, SRS notified Stuart and Tickellby separate letters that they would be terminated,effectiveJuly 31. Stuart's letter explained that SRS was terminating him because of the 2

### criminal investigation. Tickell's letter cited both the criminal investigation and 

### the earlier SRS 

### sexual misconduct investigation as the bases for

### his termination. Stuart and Tickell wrote to 

### SRS and requested their accrued vacation benefits and compensatory time. SRS 

### replied by 

### letter,refusing topay theaccruedbenefits. Stuart and Tickell agreed to 

### defer any 

### challenge to the 

### termination itself until after the conclusion of the criminal proceedings. On September 20, 1989, 

### a jury found Stuart and Tickell guilty of criminal mischief. The court sentenced them to 

### jail terms andmonetary fines. Stuart and Tickell thenwaived any future challenge 

### to the 

### termination of 

### their employment but 

### preserved their claimtoaccruedvacation benefits and compensatory time.On October 6, 1989, 

### Stuart and Tickell filed this action in 

### the District Court. They sought a 

### declaratory judgment that SRS 

### was obligated to pay them accrued vacation benefits and compensatory time. SRS 

### subsequently

### moved for summary judgment, arguing that the denial of accrued benefits was 

### not subject to judicial review because Stuart and Tickell had not exhausted their administrative remedies. Stuart 

### and Tickell filed a 

### cross-motion for summary judgment. The District Court granted summary judgment for SRS on June 18, 1990. The court agreed with SRS1scontention that the declaratory judgment action was premature because Stuart and Tickell had not exhausted their administrative remedies. Stuart and 

### Tickell appealed.We reversed and remanded in Stuartv. Dept. of Social & Rehab. Sew. (1991),247 Mont. 433, 807 P.2d 710 (Stuart I). Noting that "the exhaustion doctrine is not applicable to constitutional issues," we remanded for further consideration of Stuart's and Tickell's constitutional claims. Stuart I, 807 P.2d at 713. On remand, the parties and amicus curiae Montana Public Employees' Association briefed and argued the constitutional issues. On June 13, 1991, the District Court again granted summary judgment for SRS. Stuart and Tickell appealed.

I Did SRSfsrefusal to pay appellants their accrued vacation benefits violate the Double Jeopardy Clause of the FifthAmendment to the United States Constitution? The District Court concluded that appellants' constitutional guarantee against double jeopardy was notviolatedwhen SRS refused to "cash outu their accumulated vacation leave under 5 2-18-617, MCA. We begin by considering the statutory context in which the

case arises. Chapter 18 of Title 2 of the Montana Code Annotated is entitledState Employee Classification, Compensation, and Benefits; it expresses in statutory formatthe employmentpolicy of the State of Montana, as enactedby theMontana Legislature,which appliesto employees of the State. Part 6 thereof contains the provisions relating to vacation leave which are relevant to the case before

us.

### section2-18-611, MCA, establishes the right of certainpublic employees to earn annual vacation leave credits. Such vacation leave credits are earned and accrued from the first day of employment for employees entitled to earn them at all. 

### Id. The statute goes on to specify certain employees who are not entitled to earn such credits and provides for nonaccrual of creditsduring any leave-without-pay period. 

# a. Finally, 5 

### 2-18-611(1), MCA, imposesa specificcondition onwhen earnedvacation credits canbe exercised; namely, an employee is not entitled to any vacation leave with pay until she or he has been continuously employed for

a period of six months. This single statute makes it clear from the outset that no absolute right to earn or exercise vacation leave credits exists; any entitlement to earn or exercise vacation leave credits is purely a matter of statute. Indeed, the legislature further conditioned the exercise of vacation leave benefits in 5 

### 2-18-616, MCA, by providing that the dates when vacation leave can be taken are to be determined by agreement between the State and the employee. The Montana legislature enacted additional statutory provisions regardingvacation leave in 5 

### 2-18-617,MCA, the statute at issuehere. Specifically, the legislature adopted a "use it or lose itMapproach to accumulating earned vacation leave;vacation leave in excess of the amount the statute authorizes to be accumulated is forfeited. 

# a. Finally, the legislature granted employees an entitlement to "cash out" accumulated vacation leave at the time their service terminates under certain conditions:

### first,that the employeehasworked the qualifyingperiod of 

### time; and second, that employment terminates for reasons "not reflecting discreditwon the employee. 

# a. Absent 

### 5 2-18-617,MCA, 

### no right whatsoever would exist whereby employees could either accumulate vacation 

### leave or ''cash 

### outu unused leave 

### on termination of 

### employment. The 

### legislature,having created these 

### rights,elected to condition them. It is clear that appellantsg vacation leave credits were earned 

### and accrued over theperiod of their servicepursuant to the 

### statutory provisions and that

### theyhadworked the qualifyingperiod of time. 

### They remained free 

### to exercise their vacation credits subject only to the statutory requirement that the 

### dates be 

### agreeable to the 

### employer. Appellantsdo

### not dispute,and have not 

### disputed throughout these lengthyproceedings,SRSts 

### determination that 

### their termination of employment was for reasons reflecting discredit upon themselves. Thus, it is.also clear that appellants do not meet the second precondition to entitlement to 

### "cash out" accumulated vacation leave imposed by 

### 5 2-18-617, MCA: 

### their termination was not 

### for reasons %ot reflecting discredittton themselves. Having failedto satisfythe 

### statutory prerequisite to entitlement, we conclude that appellants were not entitled to compensation for accumulated vacation leave. Notwithstanding this failure, appellants assert that application of 

### S 2-18-617, MCA, 

### violates their 

### constitutional. guarantee against double jeopardy. We 

### disagree.TheFifth Amendment totheUnited StatesConstitution provides that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb. 

# . . .I1 Double jeopardy protects citizens from a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65. The United States Supreme Court has held that, under certain circumstances, civil as well as criminal sanctions may constitute prohibited double punishment. United Statesv. Halper (1989), 490U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487. Relying onHal~er, appellantscontend thatapplication of 5 2- 18-617,MCA, to prevent their "cash outwentitlement constitutesa civil sanction or penalty and the sanction serves a punishment or retribution goal rather than the remedial purpose of compensating the State for its loss. Specifically, they argue that the withholding of their accrued benefits is a civil sanction constituting unconstitutional double punishment because they already have been subjected to criminal sanctions in the criminal mischief prosecution. It is this relationship between their criminal convictions and SRS1s refusal to pay their accrued vacation leave that appellants argue converts their failure to satisfy

### a statutory preconditionto cashing outvacation leave into a violation of double jeopardy under Halper.

### Halper falsified 65 

### ~edicare forms to obtain overpayment in the total amount of $585. The government successfully

### prosecuted Halper for 

### fraud and he 

### was sentenced to prison and fined. After the conclusion 

### of the 

### criminal proceedings, the 

### government commenced an action for a 

### statutory civil penalty under the False ClaimsAct which--based solely

### on the $2,000penalty per violation imposed by 

### theAct--would have amounted to $130,000 in addition to 

### theprevious criminal sentence 

### of imprisonmentand fines, Halper, 490 U.S. at 

### 437-38, The specific issue before the Court in Halperwas 

### whether and underwhat circumstances a civilpenalty may constitutepunishment for purposes of the Double Jeopardy Clause. 

### Id. at 446. It was 

### undisputed inHal~er that the governmentwas seeking to 

### enforce an actual 

### statutorycivil sanction

### orpenalty againstaperson already 

### subjected to criminal punishment for the same conduct. The unanimous Court held 

### that the double jeopardy clause prohibits subjecting a defendant who has been punished in a criminal prosecution "to 

### an additionalcivil sanctionto the extent that the second sanction may not fairly be 

### characterized as remedial, but only 

### as a deterrent or 

### retribution.I1 

### - Id. at 449. Halaer 

### is inapposite

### here. UnlikeKal~er, 

### ouranalysisbegins 

### with the question of whether a civil sanction existed here; that 

### is,whether 5 2-18-617(2), 

### MCA, constitutes 

### a civil sanction. In 

### Ral~er, the 

### subsequent proceeding specifically was 

### undertaken to impose a statutory civil sanction. "Sanctionu is 

### defined by 

### WebsterfsThird New 

### International Dictionary as "thedetriment, loss of reward, or other coercive intervention that is annexed to a violation of a law as a means of enforcing the law. 

# .

. .If The facts 

### in Halaer clearly met this definition: the "detrimentn1 toHalper, in theguise of the subsequentremedy sought by thegovernment,was "annexed toaviolationwof the False Claims Act as a means of enforcing that law. In other words, Kalperls conductviolated two separate laws--onecriminal and one civil--and the government sought to enforce both in separateproceedings. In the case before us, there is no subsequent proceeding seekinganadditional remedy. The detrimenttoappellants--lack of entitlement to "cash outr1 theirvacation leave--was not annexed to

a violation of any law. Indeed, the 'ldetrimentl1was caused solely by appellantsq failure to satisfy the statutory precondition that employment terminate for reasons not reflecting discredit on themselves. Failure to satisfy a condition does not equate to violating a law and facing an additional enforcement proceeding. We conclude that the refusal to compensate appellants for their unused vacation leave did not constitute a civil sanction. For that reason, Halper does not apply and we need 

### not address the additional Halper considerations. Wehold that the DistrictCourt did not err in concluding that appellants1constitutional guarantee against double jeopardy was not violated.I1 Did SRS's refusal to pay appellants their accrued vacation benefits violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution? Stuart and Tickell argue that because they are the only SRS employees who have ever been refused accrued benefits upon termination, the refusal by SRS to pay over their benefits constitutes a violation of the Equal Protection Clause of the United States Constitution. However, the Equal Protection Clause is not violated solely because all similarly situated persons are not treated identically. The injured party must also establish that the discrimination is based on 'Itan impermissible ground such



### as race, religion 

### or exercise of 

## . 

# . . constitutional rights. 'I1 United States v. Kidder (9th Cir. 1989), 869 F.2d 1328, 1336, quoting United States v. Moody (9th Cir. 19851, 778 F.2d 1380, 1386, amended on other qrounds, 791 F.2d 707 (9th Cir. 1986). Stuart and Tickell assert that SRS based its decision to withhold theirbenefitson

### an impermissibleground--theirattempted exercise of constitutional rights. They claim that SRS discriminated againstthem because (1)they refused toplead guilty to the criminal charges;

### and (2) they campaigned for 

### gubernatorial candidate Tom Judge. In considering whether the record reveals genuine issues of 

### material fact, the trial court is limited to pleadings, depositions, answers to interrogatories, admissions, and affidavits. Rule 56(c), M.R.Civ.P. We have 

### reviewed theseportions of the District Court record and find no evidence to support either of appellants1assertions. In Small v. McRae (1982), 200 Mont. 497, 522, 651 P.2d 982, 995, we noted that "it should be kept in mind that the bare assertions found in appellant's briefs arenot sufficient todefeat a motion for summary judgment." Therefore, we conclude that the District Court did not err in entering summary judgmentdismissing appellants' allegation that SRS1s conduct violated the Equal Protection Clause of the FourteenthAmendment to theUnited States Constitution.

I11 Is § 2-18-617(2), MCA, the statuteupon which SRS reliedwhen it withheld appellants' accrued vacation benefits, either unconstitutionally vague or an unconstitutional delegation of legislative authority to an administrative agency? Section 2-18-617(2), MCA, pursuant to which appellants' benefits were withheld, provides: An employeewho terminates his employment forreason not reflectins discredit on himself shall 

### be entitled upon the date of such termination to cash compensation forunused vacation leave, assumingthat theemployeehas worked the qualifying period set forth in 2-18-611.

[Emphasisadded.] Appellants contend that the phrase "reflecting discredit on himselfn lacks specificitybecause it is susceptibleto a number of different interpretations. This asserted lack of specificity provides the foundation for appellants1alternative constitutional attacks; namely, that the statute is unconstitutionally vague or 11that it is an unconstitutional delegation of legislative power without the necessary standards. We decline to address themerits of thesearguments inthis casebecausewe concludethatappellants lack standing to assert them. In Hoffman Estates v. Flipside, Hoffman Estates (1982), 455 U.S. 489, 102 S.Ct. 1186, 71L.Ed.2d 362, theUnited States Supreme Court considered the problem of third-party standing in an attack on a local ordinance that purported to regulate "head shops." Hoffman Estates had passed an ordinance that regulated the sale of items "designed or marketed for use" with marijuana or other illegal drugs. Hoffman Estates, 455 U.S. at 491, 102 S.Ct. at 1190, 71L.Ed.2d at 367. The Flipside contended that the ordinance violated the First Amendment freedom of speech clause and the Fourteenth Amendment due process clause because the phrase "designed and marketed for use" was both over-broad and vague. Hoffman Estates, 455U.S. at 493, 102 S.Ct. at 1191, 71 L.Ed.2d at 368. The Court said: In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionallyprotected conduct. If it does not, then the overbreadth challenge must fail. The court should thenexaminethe facial vagueness challengeand,assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who ensaqes in some conduct that is clearly proscribed cannot complain of the vasueness of the law as a~plied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of 

### the law. [Emphasis

### added.]Hoffman Estates, 455U.S. at 494-95, 102 S.Ct. at 1191, 71 L.Ed.2d at 369. The Court concluded that because The lip side sold at least some of the itemsprohibited by the ordinance, the ordinance

was not vague as applied to The 

### lip side. Hoffman Estates, 455 U.S. at 502, 102 S.Ct. at 1195, 71 L.Ed.2d at 374. Stuart and Tickell lack standingunder Hoffman Estates. With respect to the facial vagueness analysis, Stuart and Tickell must show that this statute is impermissibly vague as it applies to them. They may not do so by showing that it is vague "as applied to the conduct of others.It See Hoffman Estates, 455 U.S. at 495, 102 S.Ct. at 1191,71L.Ed.2d at 369. Appellants1unconstitutional delegation attack meets the same fate,premised as it is on lack of specificity and definiteness. We have held on numerous occasions that a person neither injured nor jeopardized 

### by the operation of

a statute cannot challenge its constitutionality. See State 

### v. Kirkland (1979), 184 Mont. 229, 235, 602 P.2d 586, 590 (citing cases). Although it may be unclear what "reflecting discredit on himselfn means in other circumstances, it is quite clear that in 

### this case the conduct for which Stuart and Tickell were convicted reflected discreditupon them. At nopoint in this litigation have they argued otherwise. This failure to allege and prove exactly how theywere unfairly swept into the operationof apossiblyvague statute precludes us from addressing this issue on its merits. We note appellants1assertion that 

### we held in Stuart I that they did have standing to raise these constitutional issues and,therefore, that Stuart I is the law of the case with regard to standing. Appellants' interpretation of Stuart I is erroneous. 

### InStuart I,thedistrict courtdetermined thatthe failureof Stuart and Tickell to exhaust their administrative remedies precluded constitutional challenges to g 2-18-617, MCA. We reversed,statingthat theywere notprecluded from challenging the statute's constitutionality nsolelyon the basis that they failed to exhaust their administrative remedies." Stuart I, 807 P.2d at 713 (emphasis added). We neither addressed nor determined the standing issue. Affirmed.

Chief Justice

### Justice Terry N. 

### Trieweilerdissenting.



### Iconcurwith themajority's disposition of IssuesI1

### and 111. I 

### dissent from the majority's resolution of Issue I. 

### No matter how bad a person's conduct, the United States Constitution provides that he or 

### she can only be punished once for the same crime. In this case, plaintiffs were punished in the criminal justice system for their crime,and thenpunished a second time when they were denied their accrued benefits based on the exact same 

### conduct. Even though the majority tries to finesse this issue by constructing a Mconditionalbenefit*, the 

### fact is that 

### plaintiffs had benefits coming to themwhich they would have received were it not 

### for their misconduct. To 

### categorize 

### the denial of their benefits as 

### anything other than a

### penalty 

### is aweak effort to exalt form over substance. In

### UnitedStates

### v.Nai'per 

### (1989)

### , 490U.S. 435, 109 S.Ct. 

### 1892, 104 

### L.Ed.2d 487, 

### ~usticeBlaclunun, writing for a unanimous Supreme Court, concluded that the government's $130,000 

### civil recoverywas 

### disproportionate to 

### its actual damages and said that: We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an 

### additional civil sanction to the extent that the 

### second sanctionmay not fairly be characterized as 

### remedial, but only as a 

### deterrent 

### or retribution.



# . . . Where a defendant previously has sustained 

### a criminal penalty and the civil penalty sought in the 

### subsequent proceeding bears no rational relation to the goal of 

### compensating the government for 

### its loss, but rather appears to qualify as "punishmentH in the plain meaning of the word,then thedefendant isentitled toan accounting of the Government's damages and costs to

### determine 

### if the penalty sought in fact constitutes a second punishment.

The 

### District Court did not address this issue because it concluded that the right to receive accrued benefits is merely conditional and the denial of that right is, therefore, not a 

### sanction, The majority

### , by 

### discussing preconditions to ggcashing outgi accumulated vacation benefits, adopts the District Court's line of reasoning. 

### Idisagree. 

### Under § 

### 2-18-611(1)

### ,MCA, 

### theemployeebeginsearningvacation credits on the first day of employment. 1 

### agree with the California Supreme Court that the right to Wacation [benefits]

'vests as the 

### labor is rendered. Suastez

### v. PlasticDress-UpCo. (Cal

# . l982), 647 

### P.2d 122, 128. In Suastez, the plaintiff sought recovery of 

### vacation benefits undera

### California statute thatprohibited employers fromproviding for the 

### forfeitureof Vestedg1 vacation time. Itwas the company's policy that vacation pay did 

### not vest until the anniversary 

### of the employee1semployment. After surveying case 

### law from several jurisdictions,the California court concluded thatvacationpay is

a form 

### of Itdeferredcompensation," Suastez, 647 P.2d at 

### 125. It then compared vacation pay to pension benefits and held that some of 

### the rightsto thebenefits vest at 

### the same time as 

### the labor is rendered, even though the full bundle of rights is not available until later and

## mav be subject to forfeiture. Suastez, 647 

### P.2d at 125-126. Forfeiture prevents the 

### accrual of the 

### whole bundle of rights, but 

### it does not prevent at least some of the 

### rights fromvesting at the time the employee performs services for the employer. Suastez, 647 P.2d at 126. Thus, the denial of accruedvacation benefits in this case is

a denial of Stuart and Tickell's vested rights. Benefits which began to accrue on the day they began work were taken from them based on the fact that they were terminated for misconduct. This is clearly a *'sanctionw and because it occurred after the impositionof criminal sanctions, it requires analysis underHalper. Halperrequiresa determination of whether "the civilpenalty sought in the subsequent proceeding bears [a] rational relation to the goal of compensating the government for its loss." Halper, 490U.S. at 449. Here the District Court made no such determination. The record is devoid of any evidence that SRS sustained any loss because of its employees1conduct,and if so,how thevalue of that loss compares to the value of the benefits that were forfeited. Accordingly, 

### I would reverse the summary judgment entered by the District Court and remand this case for a determination by the District Court of SRS's damages and whether the denial of all of plaintiffs1accrued vacationbenefits "bears [a]rationalrelation" to those damages. For these reasons I dissent from the majority opinion.Justice William E. Hunt, Sr.: I concur in the dissent of Justice Trieweiler.