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 SOCIAL AND 

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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena, 

Montana 

For Respondents: 

G. Curtis Drake; Keller, Reynolds, Drake, Sternhaqen 

& Johnson, Helena, Montana 

For Amicus Curiae: 

Carter N. Picotte, Attorney at Law, Helena, Montana 

(Montana Public Employees' Association) 

Filed: 

Submitted on Briefs: March 26, 1992 

Decided: January 29, 1993 

Clerk 
Justice 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? 

In early 1989, SRS began an investigation of sexual misconduct 

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 committed by 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 Tickell by separate 

letters that they would be terminated, effective July 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 to pay the accrued benefits. 

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 and monetary fines. Stuart and Tickell then waived any 

future challenge to the termination of their employment but 

preserved their claim to accrued vacation 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 SRS1s contention 

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 Stuart v. 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 SRSfs refusal to pay appellants their accrued vacation 

benefits violate the Double Jeopardy Clause of the Fifth Amendment 

to the United States Constitution? 

The District Court concluded that appellants' constitutional 

guarantee against double jeopardy was not violated when 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 

entitled State Employee Classification, Compensation, and Benefits; 

it expresses in statutory format the employment policy of the State 

of Montana, as enacted by the Montana Legislature, which applies to 

employees of the State. Part 6 thereof contains the provisions 

relating to vacation leave which are relevant to the case before 

us. 
section 2-18-611, MCA, establishes the right of certain public 

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 credits during 

any leave-without-pay period. a. Finally, 5 2-18-611(1), MCA, 

imposes a specific condition on when earned vacation credits can be 

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 regarding vacation leave in 5 2-18-617, MCA, the statute 

at issue here. Specifically, the legislature adopted a "use it or 

lose itM approach 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 employee has worked the qualifying period of time; 

and second, that employment terminates for reasons "not reflecting 

discreditw on 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 the period of their service pursuant to the 

statutory provisions and that they had worked the qualifying period 

of time. They remained free to exercise their vacation credits 

subject only to the statutory requirement that the dates be 

agreeable to the employer. Appellants do not dispute, and have not 

disputed throughout these lengthy proceedings, 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 discredittt on 

themselves. Having failed to satisfy the 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. 
The Fifth Amendment to the United States Constitution 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 

States v. Halper (1989), 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 

487. 

Relying on Hal~er, appellants contend that application of 5 2- 

18-617, MCA, to prevent their "cash outw entitlement constitutes a 

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 precondition to cashing out vacation 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 

Claims Act which--based solely on the $2,000 penalty per violation 

imposed by the Act--would have amounted to $130,000 in addition to 

the previous criminal sentence of imprisonment and fines, Halper, 

490 U.S. at 437-38, 

The specific issue before the Court in Halper was whether and 

under what circumstances a civil penalty may constitute punishment 

for purposes of the Double Jeopardy Clause. Id. at 446. It was 

undisputed in Hal~er that the government was seeking to enforce an 

actual statutory civil sanction or penalty against a person 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 additional civil sanction to 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. Unlike Kal~er, our analysis begins 

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 Websterfs Third New International Dictionary as "the 
detriment, 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 to Halper, in the guise of the subsequent remedy sought 

by the government, was "annexed to a violationw of the False Claims 

Act as a means of enforcing that law. In other words, Kalperls 

conduct violated two separate laws--one criminal and one civil--and 

the government sought to enforce both in separate proceedings. 

In the case before us, there is no subsequent proceeding 

seeking an additional remedy. The detriment to appellants--lack of 

entitlement to "cash outr1 their vacation leave--was not annexed to 

a violation of any law. Indeed, the 'ldetrimentl1 was 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. 

We hold that the District Court did not err in concluding that 

appellants1 constitutional 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 their benefits on an impermissible ground--their attempted 

exercise of constitutional rights. They claim that SRS 

discriminated against them because (1) they refused to plead 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 these 
portions of the District Court record and find no evidence to 

support either of appellants1 assertions. 

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 are not sufficient to defeat 

a motion for summary judgment." Therefore, we conclude that the 

District Court did not err in entering summary judgment dismissing 

appellants' allegation that SRS1s conduct violated the Equal 

Protection Clause of the Fourteenth Amendment to the United States 

Constitution. 

I11 

Is § 2-18-617(2), MCA, the statute upon which SRS relied when 

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 employee who terminates his employment for reason 

not reflectins discredit on himself shall be entitled 

upon the date of such termination to cash compensation 

for unused vacation leave, assuming that the employee has 

worked the qualifying period set forth in 2-18-611. 

[Emphasis added.] 

Appellants contend that the phrase "reflecting discredit on 

himselfn lacks specificity because it is susceptible to a number of 

different interpretations. This asserted lack of specificity 

provides the foundation for appellants1 alternative constitutional 

attacks; namely, that the statute is unconstitutionally vague or 

11 
that it is an unconstitutional delegation of legislative power 

without the necessary standards. We decline to address the merits 

of these arguments in this case because we conclude that appellants 

lack standing to assert them. 

In Hoffman Estates v. Flipside, Hoffman Estates (1982), 455 

U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362, the United 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, 71 L.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, 455 U.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 

constitutionally protected conduct. If it does not, then 

the overbreadth challenge must fail. The court should 

then examine the facial vagueness challenge and, 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, 455 U.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 items prohibited 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 standing under 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, 71 L.Ed.2d at 369. Appellants1 unconstitutional 

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 discredit upon them. At no point in this litigation have 

they argued otherwise. This failure to allege and prove exactly 

how they were unfairly swept into the operation of a possibly vague 

statute precludes us from addressing this issue on its merits. 

We note appellants1 assertion 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. 

In Stuart I, the district court determined that the failure of 

Stuart and Tickell to exhaust their administrative remedies 

precluded constitutional challenges to g 2-18-617, MCA. We 

reversed, stating that they were not precluded from challenging the 

statute's constitutionality nsolely on 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. Trieweiler dissenting. 

I concur with the majority's disposition of Issues I1 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 then punished 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 Mconditional benefit*, the fact is that plaintiffs 

had benefits coming to them which they would have received were it 

not for their misconduct. To categorize the denial of their 

benefits as anything other than a penalty is a weak effort to exalt 

form over substance. 

In United States v. Nai'per (1989) , 490 U. S. 435, 109 S. Ct. 1892, 104 

L.Ed.2d 487, ~ustice Blaclunun, writing for a unanimous Supreme 

Court, concluded that the government's $130,000 civil recovery was 

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 sanction may 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 the defendant is entitled to an 

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. I disagree. 

Under § 2-18-611 (1) , MCA, the employee begins earning vacation 

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. Plastic Dress-Up Co. (Cal . 

l982), 647 P.2d 122, 128. 

In Suastez, the plaintiff sought recovery of vacation benefits 

under a California statute that prohibited employers from providing 

for the forfeiture of Vestedg1 vacation time. It was the company's 

policy that vacation pay did not vest until the anniversary of the 

employee1s employment. After surveying case law from several 

jurisdictions, the California court concluded that vacation pay is 

a form of Itdeferred compensation," Suastez, 647 P.2d at 125. It 

then compared vacation pay to pension benefits and held that some 

of the rights to the benefits 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 from 
vesting at the time the employee performs services for the 

employer. Suastez, 647 P.2d at 126. 

Thus, the denial of accrued vacation 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 

imposition of criminal sanctions, it requires analysis under Halper. 

Halper requires a determination of whether "the civil penalty sought 

in the subsequent proceeding bears [a] rational relation to the 

goal of compensating the government for its loss." Halper, 490 U.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 employees1 conduct, and if so, how the value 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 

plaintiffs1 accrued vacation benefits "bears [a] rational relation" 

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.