No. 84-181 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

CHARLES F. FEMLING, 

Plaintiff and Appellant, 

MONTANA STATE UNIVERSITY, an agency 

of the State of Montana, et al., 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ted J. Doney argued, Helena, Montana 

For Respondent : 

LeRoy H. Schramrn argued, Office of Commissioner of 

Higher Education, Helena, Montana 

Roger N. Flair, Montana State University, Rozeman, 

Plontana 

- 

%ibmitted: October 22, 1985 

Decided: February 7, 1986 

Fktr - 

Filed: -- 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Charles F. Femling appeals from an order of the Gallatin 

County District Court which dismissed his complaint for 

veterans' preference in hiring. We affirm the order of the 

District Court. 

The issues raised on appeal are: 

1. Did the retroactive repeal of the Montana veteran's 

preference statutes (hereinafter, the repealer) deprive Mr. 

Femling of an accrued cause of action in violation of the due 

process clauses of the Montana and United States 

Constitutions? 

2. Did the repealer deprive Mr. Femling of a remedy for 

an injury in violation of art. 11, sec. 16, Mont. Const.? 

3. Did the repealer deprive the courts of jurisdiction 

in violation of the doctrine of separation of powers? 

4. Did the repealer provide for sovereign immunity from 

accrued causes of action without a vote of two-thirds of the 

members of each house as required by art. 11, sec. 18, Mont. 

Const. ? 

5. Did the repealer violate art. 11, see. 35, Mont. 

Const. and the due process clauses of the Montana and United 

States Constitutions by retroactively depriving Mr. Femling 

of a vested right and entitlement to be employed? 

Charles Femling applied in August, 1983 for a position 

at Montana State University (MSU). He claimed entitlement to 

the then statutory veterans' preference in employment but was 

not interviewed for the job. A nonveteran was hired. 

On December 19, 1983, Femling petitioned the District 

Court for an order for MSU to show cause why he should not be 

employed and given lost wages and benefits. His amended 

petition set forth his qualifications for the position for 

which he applied, and alleged that he was a qualified 

applicant, that he was a veteran, that he was not hired, that 
he was physicall-y and mentally qualified for the job, and 

that he possessed the business capacity, competency, and 

education to discharge the duties of the position. On 

December 20, 1983, the day after Femling filed his petition, 

the Governor signed the repealer, which retroactively 

extinguished pending claims for violations of the former law. 

MSU moved for dismissal based upon the new law. Femling 

argued to the District Court that the new law was 

unconstitutional on several grounds. He asserted that the 

new law denied his constitutional rights to access to the 

courts, due process and equal protection. In addition, he 

asserted that the law was unconstitutional in that it 

impaired obligations of contract, provided immunity to the 

State without a required two-thirds vote of both houses, and 

violated the veterans' preference section of the Montana 

Constitution. He also claimed the new law was illegal 

because the bill addressed more than one subject and was 

altered to change its purpose during the Special Session. 

MSU also moved for dismissal of Femling's petition on 

the ground that it failed to state a claim on which relief 

could be granted. MSU argued the new veterans' preference 

statute constituted a valid repeal of the old laws. 

The District Court granted MSU's motion and dismissed 

Femling's petition with prejudice. The District Court held 

that : 

(1) The veterans' preference under the old Montana 

statute was a gratuity. 

(2) The gratuity had not vested. 

(3) A gratuity may be repealed by the Legislature. 

(4) The legislature could abrogate Mr. Femlings's cause 

of action against the State. 

(5) MSU is exempt from the preference by legislative 

enactment. 
From this order, Mr. Femling appeals. 

Did the repealer deprive Mr. Femling of an accrued cause 

of action in violation of the due process clauses of the 

Montana and United States Constitutions? 

In Crabtree v. Montana State Library (Mont. 1983) , 665 

P.2d 231, 40 St.Rep. 963, this Court determined that the 

statutory veterans' preference in employment was absolute. 

In response to the Crabtree decision, the 1983 Special 

Session Legislature retroactively repealed the absolute 

preference a.nd enacted a tie-breaker preference. The 

repealer states: 

This repeal applies retroactively to bar 

any claim of violation or application of 

10-2-201 through 10-2-206 that has not 

been reduced to judgment, whether or not 

the judgment is final, on [the effective 

date of this act]. Claims under 10-2-201 

through 10-2-206 that have been reduced 

to judgment, whether or not the judgment 

is final, on [the effective date of this 

act] are enforceable. 

Section 14, Ch. 1, Sp. L. Mont. 1983, set out in the 

Compiler's Comments to Sections 10-2-201 through 10-2-206, 

MCA, which were repealed in 1985. At the time of the Special 

Session, approximately fourteen lawsuits were pending aga-inst 

the State for alleged violation of the absolute preference in 

employment. The legislative history of the repealer "shows 

that the legislature was unequivocal in its aim to bar those 

pending claims." Nick v. Montana Dept. of Hywys. (Mont. 

19851, - P.2d - , 42 St.Rep. 1926. 

The fourteenth amendment to the United States 

Constitution and art. 11, sec. 17, in the Montana 

Constitution provide that the State may not deprive a person 

of life, liberty or property without due process of law. 

Femling asserts that his cause of action against MSU for 

failure to hire and violation of the preference statute 
accrued when the University hired a nonveteran. He argues 

that cause of action became a vested property right upon the 

filing of his complaint. He contends that the legislature 

could not repeal the law without substituting another remedy 

to protect his vested right to the absolute preference in 

employment. 

"A citizen can have no vested right in a general law 

which can preclude its amendment or repeal, and there is no 

implied promise on the part of the state to protect its 

citizens against incidental injury occasioned by changes in 

the law." Stanford v. Coram (1903), 28 Mont. 288, 293, 72 P. 

655, 656. As we noted in Conboy v. State (Mont. 1985), 693 

P.2d 547, 42 St.Rep. 120, a veteran acting under the absolute 

veterans' preference statute did so in contemplation of the 

legislature's power of repeal. Statutes may be replaced at 

any time, and a person acting under a statue is "deemed to 

have acted in contemplation of this power of repeal." 

Section 1-2-110, MCA. 

For substantive due process protections to apply, 

Femling's claim to the absolute preference must be a vested 

right. In Conboy, we stated that the preference statute was 

a gratuity given to veterans by the State. It did not amount 

to a right vested in the veterans. Conboy, 693 P. 2d at 552. 

We reaffirmed this conclusion in Nick v. Montana Dept. of 

Hywys. (Mont 1985), - P.2d - , 42 St.Rep. 1926. 

A veteran does not have a reliance interest in the 

veterans' preference unless and until it is actually 

received. Nick, 42 St.Rep. at 1930. " [B] enefits conferred 

by gratuities may be . . . withdrawn at any time . . ." 

Lynch v. United States (1934), 292 U.S. 571., 577. The Ninth 

Circuit Court of Appeals has characterized a claim to an 

unreceived gratuity as a "floating expectancy": 
[FJ] hatever anticipations a serviceman 

entertained . . with respect to 

preferential advantage in the federal 

civil service were no more than some 

floating expectancy entirely dependent 

upon the government's bounty. A claim of 

unconstitutional deprivation cannot be 

built upon this foundation. 

Monaco v. United States (9th Cir. 19751, 523 F-2d 935, 940, 

-- cert. den. 424 U.S. 914. 

The giving of a government gratuity does not change the 

nature of the gratuity. The giving of a veterans' preference 

in employment does not cause that preference to become a 

private vested right. 

We conclude that the filing of a claim to a government 

gratuity does not change that gratuity into a vested right. 

Mr. Femling's claim to and expectancy of a veterans' 

preference do not transform a gratuity into a protectable, 

vested right. 

We hold that the repeal of the preference gratuity and 

dismissal of Mr. Femling's claim to that gratuity did not 

violate the due process clauses of the Montana and United 

States Constitutions. 

Did the repealer deprive Mr. Femling of a remedy for an 

injury in violation of art. 11, sec. 16, Mont. Const.? 

Article 11, sec. 16, Mont. Const. provides in pertinent 

part : 

Courts of justice shall be open to every 

person, and speedy remedy afforded for 

every injury of person, property, or 

character. 

In order for art. 11, sec. 16 to apply, there must have been 

an "injury of person, property or character. " As stated in 

White v. State (lilont. 1983), 661 P.2d 1272, 1275, 40 St.Rep. 

507, 510: "The language ' every in jury ' embraces all 

recognized. cornpensable components of injury . . ." 
The veterans' preference statutes were and are 

enforceable by court order reopening the selection process. 

Sections 10-2-206, MCA (1981) and 10-2-226, MCA (1985). 

Neither the statutory law nor the common law has ever 

recognized violation of the preference statutes as 

compensable in money damages. Jensen v. State, Dept. of 

Labor and Industry (Mont. 1984), 689 P.2d 1231, 1234-35, 41 

St.Rep. 1971, 1976. 

We conclude that violation of the preference statute 

does not result in a compensable injury within the meaning of 

art. 11, sec. 16, Mont. Const. Therefore, the repeal of the 

preference statute did not deprive Mr. Femling of a remedy 

for an injury. We hold that the repeal of the preference 

statute did not violate art. 11, sec. 16, Mont. Const. 

111. 

Did the repealer deprive the courts of jurisdiction in 

violation of the doctrine of separation of powers? 

Mr. Femling contends tha-t the doctrine of separation of 

powers prohibits the legislature from depriving the courts of 

jurisdiction over an action which has already been filed. He 

contends that the repealer has unlawfully deprived the 

District Court of jurisdiction over this case. MSU argues 

that this Court has acknowledged that a statute may wipe out 

pending causes of action. Continental Oil Co. v. Montana 

Concrete Co. (1922), 63 Mont. 223, 207 P. 116. MSU also 

argues that the bill repealing the Montana preference statute 

was drafted without reference to court jurisdiction, properly 

leaving interpretation of tha-t issue to the courts. 

Mr. Femling has acknowledged that this issue was not 

raised before the District Court. Because it was not raised 

below, we will not consider it on appeal. Dodd v. City of 

East Helena (1979), 180 Mont. 518, 523, 591 P.2d 241, 244. 
IV. 

Did the repealer provide for sovereign immunity from 

accrued causes of action without a vote of two-thirds of the 

members of each house as required by art. 11, sec. 18, Mont. 

Const. ? 

This issue has been decided in two previous cases. The 

legislature could repeal the veterans' preference by a 

majority vote at any time. Conboy, 693 P.2d at 552; Nick, 42 

St-Rep. at 1933. The repealer does not provide for sovereign 

immunity. It simpl-y revokes a gratuity. We reaffirm our 

holding that the legislature properly repealed the veterans' 

preference. 

v. 

Did the repealer violate art. 11, sec. 35, Mont. Const. 

and the due process clauses of the Montana and United States 

Constitutions by retroactively depriving Mr. Femling of a 

vested right and entitlement to be employed? 

Art. 11, sec. 35, Mont. Const. provides: 

The people declare that Montana servicemen, 

servicewomen, and veterans may be given special 

considerations determined by the legislature. 

As we discussed under issue one, the fourteenth amendment to 

the United States Constitution and art. 11, sec. 17, in the 

Montana Constitution provide that the state may not deprive a 

person of life, liberty, or property without due process of 

law. 

This issue, which we find nearly identical to issue one, 

was addressed in both Conboy and Nick. We have held that the 

veterans' preference was a government gratuity, and not a 

right vested in the veterans, Conboy, 633 P.2d at 552. We 

have also held that art. 11, sec. 35, Mont. Const. is a 

permissive provision, and does not provide an independent 

ground for finding that the veterans' preference is more than 

a gratuity. Nick, 42 St.Rep. at 931. Recause the preference 
is a gratuity, and not a life, liberty, or property right, 

the repealer does not violate the due process clause of 

either the State or the Federal Constitution, and it does not 

deprive Mr. Femling of a right or entitlement to be employed. 

The District Court's order granting MSU's motion to 

dismiss is therefore affirmed. 

We concur: / 

&q.*/, 4~2 

Hbn. Thomas M. McKStrick, 

district Judge, sitting in place 

of Mr. Justice Wm. E. Hunt, Sr. 

Nr. Justice Frank B. :lorrison, Jr. : 

As the issues are framed, I concur in the result. 

However, I do not agree with a t is said in the majority 

opinion. 
Mr. Justice John C. Sheehy, dissenting: 

I dissent. 

We should not approve on any ground an outright refusal 

of state employees in managerial position to flout the 

applicable statutory law. At the time Femling applied for 

state employment at the University, he had a statutory right 

to preference, which he claimed. His right to that 

employment became vested with his claim for preference. The 

statute granting veterans' preference should have been then 

obeyed. 

An accrued sta-tutory right of action is a vested right 

and is to be protected. Stucki 17. Loveland (19 ) , 94 Idaho 

621, 495 P.2d 571, 573. Giving retroactive effect to the 

repeal of section 10-2-203, MCA deprives Femling of a-n 

accrued statutory right. It was no longer a possible 

gratuity, once he established his claim and right to the 

gratuity. His preference vested, but is now stripped away. 

I would reverse with instructions to accord him his rights as 

a veteran.