No. 94-180 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

JOSEPH M. McKAMEY, 

Plaintiff, Respondent 

and Cross-Appellant, 

v. 

STATE OF MONTANA, 

Defendant, Appellant 

and Cross-Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

.ann Law Off ice, 

COUNSEL OF RECORD: 

For Appellant: 

Charles E. Erdm 

Helena, Montana 

ann, Erdm 

For Respondent: 

Timothy J. McKittrick, McXittrick Law Firm, 

Great Falls, Montana 

w 

d D Submitted on Briefs: October 13, 

Decided: November 29, 
Chief Justice J. A. Turnage delivered the Opinion of the Court.

The State of Montana appeals from a judgment of the District

Court for the Eighth Judicial District, Cascade County. That court

declared unconstitutional a requirement that firefighters employed

by the State of Montana at the Montana Air National Guard base in

Great Falls, Montana, be members of the Montana Air National Guard.

We affirm.

The issues are:

1 . Did the District Court err in refusing to dismiss this

case on grounds that it does not constitute a case or controversy?

2 . Did the court err in refusing to dismiss on grounds that

McKamey failed to exhaust his administrative remedies?

3 . Did the court err in refusing to dismiss on grounds that

the challenged policy is a discretionary military policy over which

district courts have no subject matter jurisdiction?

4 . Did the court err in granting McKamey's motion to quash

and for a protective order?

5 . Did the court err in granting summary judgment that the

military service requirement is unconstitutional?

6 . Did the court err in denying McKamey attorney fees and

costs?

Joseph McKamey is one of nineteen firefighters employed at the

Great Falls International Airport as civilian employees of the

State of Montana, Department of Military Affairs. McKamey's job

includes providing protection for civilian aircraft and for a unit

of the Montana Air National Guard stationed at the airport.

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Before 1975, these firefighters were federal civilian

employees. In that year, the federal positions were eliminated and

the National Guard Bureau agreed to provide funding to allow the

State of Montana to hire the firefighters as state employees.

Until 1986, the firefighters were scheduled to work "Kelly

shifts" of 24 hours on and 48 hours off. This schedule placed them

on duty for 65 hours in some weeks, 55 hours in other weeks, and 48

hours in the remaining weeks. However, their pay did not vary

according to the hours worked, and they were not paid overtime

compensation.

In 1984, McKamey and nine other firefighters filed a wage

action against the State, claiming their employment arrangement

violated the Montana Wage and Overtime Compensation Act, §§ 39-3-

401 through -409, MCA. In 1985, the United States Supreme Court

ruled that state employees enjoy the protection of the Fair Labor

Standards Act. See Garcia v. San Antonio Metro. Transit Auth.

(1985) r 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016. The

firefighters added that Act as a second basis for their claims.

That action has been settled. See Stimac v. State (1991), 248

Mont. 412, 812 P.2d 1246.

In 1985, the Department of Military Affairs sought approval of

a pay plan for the firefighters at the Great Falls airport which

deviated from the State Compensation Plan. That plan was not

approved. In June of 1986, the Personnel Division of the State of

Montana endorsed an exemption from wage requirements for the

firefighters. This exemption was premised upon a policy requiring

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these firefighters, as a condition of their employment, to be

members of the Montana Air National Guard. Section 2-18-103, MCA,

exempts certain types of positions from the wage requirements of

the State Compensation Plan, among them "officers or members of the

militia."

McKamey and nine other firefighters filed a second wage action

against the State in 1989. The decision in that action is now on

appeal to this Court (Tefft et al. v. State, Montana Supreme Court

Cause No. 94-229).

In February 1992, McKamey filed this action seeking declaratory, injunctive, and equitable relief declaring the State's military

service requirement discriminatory and violative of his employment

rights and the rights of other state employees similarly situated.

Following discovery and briefing, the District Court heard the

parties' cross-motions for summary judgment. The court issued an

extensive memorandum and order granting McKamey's motion for

summary judgment on grounds that the requirement violated the

firefighters' rights to equal protection and to due process. The

court enjoined the State from using the military service requirement in any manner relative to McKamey or employees similarly

situated. It ordered each party to pay its own attorney fees and

costs. The State appeals. McKamey cross-appeals on the issue of

attorney fees.

Issue 1

Did the District Court err in refusing to dismiss this case on

grounds that it does not constitute a case or controversy?

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Because McKamey does not claim he has already suffered a

penalty from the military service requirement, the State maintains

he is not entitled to a declaratory judgment. According to the

State, a declaratory judgment at this point would be an advisory

opinion based on a possible future occurrence. The State maintains

no case or controversy exists, citing cases in which this Court has

ruled that issuance of a declaratory judgment was not proper

because no case or controversy was presented.

Section 27-8-201, MCA, grants Montana COUrts the power to

render declaratory judgments:

Scope of power to render declaratory judgments. Courts

of record within their respective jurisdictions shall

have power to declare rights, status, and other legal

relations whether or not further relief is or could be

claimed. No action or proceeding shall be open to

objection on the ground that a declaratory judgment or

decree is prayed for. The declaration may be either

affirmative or negative in form and effect, and such

declarations shall have the force and effect of a final

judgment or decree.

Section 27-8-202, MCA, provides:

Who may obtain declaratory judgment. Any person interested under a . . . written contract . . . or whose

rights, status, or other legal relations are affected by

a... contract . . . may have determined any question

of construction or validity arising under the instrument

. . . and obtain a declaration of rights, status, or

other legal relations thereunder.

Section 27-8-203, MCA, states that a contract may be construed

either before or after there has been a breach thereof. In

addition, 5 27-8-205, MCA, provides:

The enumeration in 27-8-202 through 27-8-204 does not

limit or restrict the exercise of the general powers

conferred in 27-8-201in any proceeding where declaratory

relief is sought in which a judgment or decree will

terminate the controversy or remove an uncertainty.
Pursuant to the above statutes, it is not necessary that McKamey

have already suffered an injury before seeking relief in the form

of a declaratory judgment.

McKamey filed an affidavit with the District Court in which he

states that one of the other firefighters, Edward Peters, was

terminated from his employment as a firefighter after he retired

from the Montana Air National Guard. McKamey states that the

reason given for Peters' termination was the military service

requirement. In his affidavit, McKamey goes on to say that, based

on Peters' experience, he feels his own right to retire from the

Montana Air National Guard has been threatened. He states that if

his employment is terminated, his family will have no income,

insurance, or other benefits, and his pension benefits will be

severely reduced.

This Court has stated that a declaratory judgment suit against

a government entity must be supported by allegations of past,

present, a threatened injury to a property or civil right, and the

alleged injury must be distinguishable from the injury to the

public generally. Stewart v. Bd. of Cty. Com’rs of Big Horn Cty.

(1977) I 175 Mont. 197, 201, 573 P.2d 184, 186. Under the administrative policy now in effect, McKamey's civilian employment as a

firefighter is threatened if he resigns or retires from the Montana

Air National Guard. The existence of a case or controversy is

amply demonstrated by the multiple lawsuits concerning the

firefighters' employment status.

6
We hold that the requirement of a threatened injury has been

met and that a case or controversy exists. We further hold that

the District Court did not err in refusing to dismiss this action

as inappropriate for declaratory judgment.

Issue 2

Did the court err in refusing to dismiss on grounds that

McKamey failed to exhaust his administrative remedies?

The State argues district courts are without discretion to

proceed under the Uniform Declaratory Judgments Act where the

claimant has available administrative remedies, citing Roeber v.

State, Dept. of Institutions (1990), 243 Mont. 437, 795 P.2d 424.

However, when a claimant raises a bona fide constitutional claim in

a declaratory judgment action, the exhaustion doctrine does not

apply. Mitchell v. Town of West Yellowstone (1988), 235 Mont. 104,

109-10, 765 P.2d 745, 748. We hold that the District Court did not

err in denying the State's motion to dismiss.

Issue 3

Did the court err in refusing to dismiss on grounds that the

challenged policy is a discretionary military policy over which

district courts have no subject matter jurisdiction?

Citing Martelon v. Temple (10th Cir. 1984), 747 F.2d 1348,

cert. denied, 471 U.S. 1135, and Olson v. Nat. Guard (1972), 160

Mont. 387, 503 P.2d 24, the State maintains that the military

service requirement is a discretionary state military policy and,

as such, is outside the jurisdiction of the courts.

However, there are exceptions to this rule.

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[W]hen presented with claims of judicially cognizable

injury resulting from military intrusion into the

civilian sector, federal courts are fully empowered to

consider claims of those asserting such injury; there is

nothing in our Nation's history or in the Court's decided

cases, including our holding today, that can properly be

seen as giving any indication that actual or threatened

injury by reason of unlawful activities of the military

would go unnoticed or unremedied.

Laird v. Tatum (1972), 408 U.S. 1, 15-16, 92 S.Ct. 2318, 2327, 33

L.Ed.2d 154, 165.

As the above quotation indicates, courts will intervene when

a military decision intrudes into the public sector. The opinion

in Martelon illustrates this point. The Martelon opinion was

dependent on the court's determination that the plaintiffs' claims

were "clearly related to military employment.t1 Martelon, 747 F.2d

at 1350. The court contrasted Martelon with a New Jersey case in

which a federal district court intervened after finding that the

plaintiffs' claims were incident to their civilian, not their

military, employment.

In the present case, we agree with McXamey's assessment that

the State has not demonstrated that the military service requirement is related to military policy. The State concedes that the

military service requirement is not imposed on firefighters in

other states. In fact, a 1993 Federal Air National Guard Bureau

operational guide, a copy of which Mcliamey filed in connection with

his motion for summary judgment, states: "MANDATORY MILITARY

MEMBERSHIP FOR O&M FIREFIGHTERS IS NOT RECOMMENDED."

We hold that the District Court did not err in refusing to

dismiss this case on grounds that the challenged policy is a

8
discretionary military policy over which district courts have no

subject matter jurisdiction.

Issue 4

Did the court err in granting McKamey's motion to quash and

for a protective order?

This issue relates to requests by the State for production of

documents at the depositions of three witnesses for McKamey. The

witnesses were members of the firefighters' union to which McXamey

belongs. The State asked those three witnesses to produce, at

their depositions:

Correspondence of any kind between yourself and the State

of Montana from 1974 through the present: correspondence

of any kind between yourself and the Montana Air National

Guard from 1969 through the present; all bills, reports,

business records and minutes of meetings, information

letters or other documents of the Great Falls Airport

Firefighters Association, International Association of

Firefighters Local #3261; billing statements from

McKittrick Law Firm to this Union and all check stubs,

registers, cancelled checks, or receipts showing payment

for services of McKittrick Law Firm for the last 4 years.

Arguing that the requested materials were irrelevant to a declaratory judgment action and that the requests were overbroad and

unlikely to lead to discoverable evidence, McKamey moved to quash

and for a protective order. He further argued that the request

violated his right to privacy and invaded privileged business of

the firefighters' union. Additionally, he alleged that the time

allotted for responding to such requests was less than the thirty

days required under Rules 30(b)(5) and 34(b), M.R.Civ.P.

Our standard of review concerning a district court's ruling on

a discovery matter is whether the district court abused its

9
discretion. State of Or. ex rel. Worden v. Drinkwalter (1985), 216

Mont. 9, 12, 700 P.2d 150, 152. The above discovery request is

overbroad in several respects. As McKamey points out, it would

require production of twenty years' worth of correspondence with

the State of Montana and four years' worth of correspondence with

the named law firm, none of which may have anything whatsoever to

do with this action. We hold that the District Court did not abuse

its discretion in granting McKamey's motion to quash and for a

protective order.

Issue 5

Did the court err in granting summary judgment that the

military service requirement is unconstitutional?

Here, we consider arguments raised by the State under two

issues: whether there exist material issues of fact precluding

summary judgment, and whether the District Court erred in declaring

the military service requirement unconstitutional as a matter of

law.

We first explore whether material issues of fact exist. The

State argues that the date on which the military service requirement was adopted is a material fact as to which there is a dispute.

The State views this date as a material fact because McKamey has

argued that the military service requirement was adopted in

retaliation for the wage and hour claim filed against the State by

McKamey and other firefighters.

The District Court found overwhelming evidence that military

service, while encouraged, was not mandatory for the firefighters

10
prior to 1986. However, if summary judgment is proper regardless

of the retaliatory nature of the military service requirement, then

the date on which that requirement was adopted is not a material

fact barring summary judgment. McKamey's claim of unconstitutionality does not depend on the retaliatory nature of the military

service requirement. We conclude that the retaliatory nature of

the military service requirement is not a fact material to

determination of the constitutionality of the military service

requirement.

The principal purpose of the Equal Protection Clause, Amend.

XIV, U.S. Const., and Art. II, Sec. 4, Mont. Const., is to ensure

that persons who are citizens of this country are not subject to

arbitrary and discriminatory state action. Godfrey v. Mont. State

Fish & Game CornIn (1981), 193 Mont. 304, 306, 631 P.2d 1265, 1267.

Courts examine the right to equal protection under three levels of

scrutiny--strict scrutiny for classifications which infringe

fundamental rights or involve suspect classifications, such as race

or national origin: middle tier analysis in specific limited

situations requiring a somewhat heightened scrutiny; and rational

basis analysis, for all other classifications. Meech v. Hillhaven

West, Inc. (1989), 238 Mont. 21, 44-45, 776 P.2d 488, 502.

In this case, the District Court determined that the military

service requirement did not meet the lowest of the three levels of

scrutiny--the rational basis test. The inquiry under the rational

basis test is whether the classification is rationally related to

a legitimate government interest. Meech, 776 P.2d at 502-03.

f‘

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In its analysis, the District Court reasoned:

[Elvidence which establishes that there is no rational

basis for the military requirement policy is that the

State of Montana treats its firefighters differently than

other states in the country. If national security were

the basis for mandatory membership in the Guard, then it

is only logical that every state in the Union would

require its firefighters to be members of the Guard. It

is admitted by the State of Montana that mandatory

membership in the Guard is a state by state decision.

Since other states such as South Dakota, New Hampshire,

Oregon and Iowa do not require its [sic] firefighters to

be members of the Guard, it is apparent that national

security is not a rational basis for guard membership.

As recently as October 19, 1993, the Federal

National Guard Bureau in its Operational Guide for Air

National Guard Operations and Maintenance Firefighters

specifically stated on page 7, item 16A that:

"MANDATORY MILITARY MEMBERSHIP FOR O&M FIREFIGHTERS IS NOT RECOMMENDED."

Since the Federal National Guard Bureau has taken

the affirmative stance that they do not recommend

mandatory military membership, the State of Montana

cannot establish a rational basis for the requirement.

Furthermore, the State of Montana's own Fire Chief Ball,

at the Great Falls Airport, stated in his letter dated

February 27, 1992 to Major Shick, LTC Mortag and Mr.

Booker that:

"C!. Mandators Membership in ANG: Since there

is no longer an alert requirement, the reasons

for requiring fire fighter MANG membership is

no longer valid. If State employees are not

members of the ANG, it would make deployments

and activations less of a scheduling problem.

If fire fighters were not required membership,

there would be more openings for traditional

Guardsmen. Eliminating current policy of

mandatory enlistment in the ANG can be impact

bargained into the present contract with IAFF

and show no liability or admission of guilt by

any party."

Both the National Guard Bureau and the State's own

fire chief have stated that there is, in fact, no

rational basis for [the] mandatory military requirement.

12
The State also argues that because of the secret

nature of the military business, the firefighters need

special security clearances and thus, must be members of

the National Guard. To obtain a special security

clearance, military membership is not a prerequisite.

. . . There is no rational basis in terms of security

clearance to require membership in the National Guard.

There was evidence presented that at least two employees

at the Great Falls Airport came in contact with classified military information and those employees were not

required to be members of the Guard.

In short, the State failed to offer any compelling evidence that

the military service requirement is rationally related to a

legitimate government interest.

Similarly on appeal, the State has not offered any persuasive

argument or evidence that the military service requirement is

rationally related to a legitimate government interest. Instead,

the evidence overwhelmingly supports the conclusion that the

requirement's sole purpose is to circumvent the wage and overtime

standards set forth in the Fair Labor Standards Act and the Montana

Wage and Overtime Compensation Act.

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

military service requirement fails to meet equal protection standards under the rational basis test, and is thus violative of both

the United States and the Montana Constitutions. Having so ruled,

we need not address the District Court's conclusion that the

military service requirement also violates due process requirements.

Issue 6

Did the court err in denying McKamey attorney fees and costs?

13
Sections 25-10-711 and 27-8-311, MCA, are the authority under

which McKamey argues he should have been awarded his attorney fees

and costs. Section 25-10-711, MCA, allows the award of attorney

fees to a party who prevails in a claim against a government entity

in which "the court finds that the claim or defense of the state,

political subdivision, or agency that brought or defended the

action was frivolous or pursued in bad faith."

Section 27-8-311, MCA, allows the court to allow such costs in

a declaratory judgment action "as may seem equitable and just."

There is no provision for an award of attorney fees in an action

for declaratory judgment. State ex rel. Dept. of Health v. Lincoln

Cty. (1978), 178 Mont. 410, 418, 584 P.2d 1293, 1297-98.

An award of attorney fees and costs is within the discretion

of the trial court. Armstrong v. State, Dept. of Justice (1991),

250 Mont. 468, 469, 820 P.2d 1273~, 1274. After reviewing the

record, we conclude the District Court did not abuse its discretion

in determining that the State's defense was not frivolous or

pursued in bad faith, and in denying McKamey's request that he be

awarded his attorney fees and costs.

Affirmed.

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We concur:

Justices

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