DA 07-0049

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 67

DOUGLAS L. BEAN, TERRY L. BOULE, DOUGLAS J. CASSON, LOUIS E. 

COSTANTINO, JAMES A. DIXON, BRIAN W. DUVE, TONY L. EHNES, 

GLENN G. GASVODA, ERICK C. GILBERT, CURT K. GRAVES, BRIAN G.

KNOWLES, DAVID M. LEE, JOSEPH M. MCKAMEY, DOUGLAS E. 

MAHONEY, DAVID W. PATCH, BILLY C. PLUNKETT, ROBERT L. 

RUTHERFORD, EZRA D. SCHEI, RICHARD A. SCHMIDT, JERRY L. 

SCHULTZ, RICK R. SILVA, DARNELL A. STUCKER, JACKIE L. WILLIARD, 

JR., RAYMON A. YODER, and ANTHONY K. HERING, SR., 

 Plaintiffs and Appellees,

 v.

STATE OF MONTANA, and the MONTANA PUBLIC EMPLOYEE 

RETIREMENT ADMINISTRATION, 

 Defendants and Appellants.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. ADV 2004-707

Honorable Dorothy McCarter, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Hon. Mike McGrath, Attorney General; Jon Ellingson, Assistant Attorney 

General, Helena, Montana

For Appellees:

Baldwin Robertson and Kurt Rumsfeld, Woodley & McGillivary,

Washington, D.C.

Timothy J. McKittrick, McKittrick Law Firm, Great Falls, Montana

Submitted on Briefs: January 16, 2008

Decided: February 26, 2008 

Filed:

__________________________________________

Clerk

February 26 2008
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Justice Brian Morris delivered the Opinion of the Court.

¶1 The State of Montana and the Montana Public Employee Retirement Administration 

(collectively State) appeal from two orders of the First Judicial District Court, Lewis and 

Clark County, concluding that § 19-13-210(2), MCA, violates the equal protection rights of 

Douglas L. Bean, et al. (Bean) under the Montana Constitution and awarding attorney fees 

and costs to Bean. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Senator Jon Tester introduced Senate Bill 289 (SB 289) at the 2001 Montana 

Legislative Session. Mont. Sen. 289, 57th Leg., Reg. Sess. (Jan. 22, 2001). SB 289 

proposed amendments to § 19-13-210, MCA. The bill provided for the transfer of the 

firefighters employed by the Montana Air National Guard (Guard) from the Public 

Employees Retirement System (Public System) into the Firefighters’ Unified Retirement 

System (Firefighters’ System). 

¶3 SB 289 came before the Senate State Administration Committee on January 29, 2001. 

Senator Tester testified that Guard firefighters participated in the Public System. Senator 

Tester explained that the Guard firefighters sought membership in the Firefighters’ System 

because it provides benefits specifically geared towards firefighters. Senator Tester stated 

that SB 289 automatically enrolled Guard firefighters hired on or after October 1, 2001, into 

the Firefighters’ System. The original version of SB 289 that Senator Tester had introduced 

also included a provision that gave Guard firefighters hired before October 1, 2001, the 

option of transferring from the Public System into the Firefighters’ System. 
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¶4 Roger Hagan (Hagan), representing the Great Falls Airport Firefighters Association, 

also testified before the Senate Finance and Claims Committee. Hagan asserted that SB 289 

corrected a “longstanding inequity” between Guard firefighters and other firefighters in the 

state of Montana. Hagan testified that Guard firefighters had to participate in the Public 

System while firefighters of first and second class cities in Montana obtained superior 

benefits through the Firefighters’ System. 

¶5 Hagan testified that Guard firefighters constituted federal employees before 1975. 

They participated in a retirement system specific to firefighters under the Federal Civil 

Service Program. Hagan explained that Guard firefighters became state employees in 1975. 

Guard firefighters joined the Public System when they became state employees. Hagan 

testified that Guard firefighters would remain ineligible for the special benefits available 

under the Firefighters’ System in Montana unless the legislature enacted SB 289. 

¶6 The original version of SB 289 included a fiscal note that projected general fund 

expenditures of $200,967 for fiscal year 2002 and $313,508 for fiscal year 2003. SB 289 

underwent revisions during the 2001 Legislative Session. An initial amendment to SB 289 

delayed the transfer option for existing Guard firefighters from the Public System into the 

Firefighters’ System until April 1, 2003. The delayed transfer option for existing Guard 

firefighters reduced the general fund expenditures. The fiscal note attached to the amended 

bill projected general fund expenditures of $6,300 for fiscal year 2002 and $89,060 for fiscal 

year 2003. 
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¶7 The final version of SB 289 provided that only those firefighters hired by the Guard 

on or after October 1, 2001, would participate in the Firefighters’ System. Firefighters 

employed by the Guard before October 1, 2001, would remain in the Public System. The 

fiscal note for this version of the bill, which assumed one new hire each year, projected 

general fund costs of $6,522 for fiscal year 2002 and $18,171 for fiscal year 2003. Senator 

Tester brought this final version of SB 289 before the House State Administration 

Committee on March 28, 2001. Proponents of the bill testified that the amended version 

constituted a start toward enrolling the Guard firefighters in the Firefighters’ System. The 

Legislature passed the final amended version of SB 289 and the Governor signed it into law. 

 2001 Mont. Laws 1382. The final amended version of SB 289 denied approximately 

twenty-two existing Guard firefighters the option of transferring into the Firefighters’ 

System. 

¶8 Bean filed an action in District Court on September 24, 2004, alleging that § 19-13-

210(2), MCA, violated certain Guard firefighters’ right to equal protection under the 

Montana Constitution. Bean and the State filed cross-motions for summary judgment. The 

District Court granted summary judgment in favor of Bean, declaring unconstitutional § 19-

13-210(2), MCA. The District Court awarded costs and attorney fees to Bean. The State 

appeals. 

STANDARD OF REVIEW

¶9 We review de novo a grant of summary judgment using the same criteria applied by 

the district court. Farrier v. Teacher’s Retirement Bd., 2005 MT 229, ¶ 10, 328 Mont. 375, 
5

¶ 10, 120 P.3d 390, ¶ 10. We limit our review to questions of law where the material facts 

remain uncontroverted. Farrier, ¶ 10. 

DISCUSSION

¶10 Bean asserts that § 19-13-210(2), MCA, violates his right to equal protection under 

the Montana Constitution by providing superior retirement benefits for newly hired Guard 

firefighters while denying those superior retirement benefits for existing Guard firefighters. 

Bean argues that, but for the date of hire, Guard firefighters hired on or after October 1, 

2001, and firefighters hired before that date constitute similarly situated classes. Bean 

argues that no legitimate governmental purpose exists for providing differing benefits to 

these similarly situated firefighters.

¶11 Article II, Section 4, of the Montana Constitution ensures that “[n]o person shall be 

denied the equal protection of the laws.” Article II, Section 4, like the Fourteenth 

Amendment of the United States Constitution, requires the law to treat similarly situated 

individuals in a similar manner. Farrier, ¶ 14. Indeed, Montana’s Constitution provides 

even more individual protection than that of the Equal Protection Clause set forth in the

United States Constitution. Farrier, ¶ 14. 

¶12 We start with the presumption that all legislative enactments comply with Montana’s 

Constitution. Powell v. State Compensation Ins. Fund, 2000 MT 321, ¶ 13, 302 Mont. 518, 

¶ 13, 15 P.3d 877, ¶ 13. The party challenging a statute bears the burden of establishing the 

statute’s unconstitutionality beyond a reasonable doubt. Farrier, ¶ 13. We construe statutes 
6

narrowly to avoid a finding of unconstitutionality, and we resolve any questions of 

constitutionality in favor of the statute. Farrier, ¶ 13. 

¶13 We first must identify the classes involved when analyzing an equal protection 

challenge. Farrier, ¶ 15. A statute does not violate the right to equal protection simply 

because it benefits a particular class. Farrier, ¶ 15. A statute may impose different 

treatment upon differing groups or classes of people. Powell, ¶ 22. An equal protection 

challenge fails if the groups at issue do not constitute similarly situated classes. Powell, 

¶ 22. 

¶14 The District Court found that § 19-13-210(2), MCA, differentiated between two 

similarly situated classes of employees. The court noted that Guard firefighters hired on or 

after October 1, 2001, performed the same duties, faced the same job hazards, and worked in 

the same positions as Guard firefighters hired before that date. The District Court, citing our 

decision in Gulbrandson v. Carey, 272 Mont. 494, 901 P.2d 573 (1995), found that the date 

contained in the statute created two classes of employees. The court determined that the 

statute’s cut-off date did not render dissimilar the two groups of firefighters. 

¶15 The Court faced the question in Gulbrandson of whether a statute violated the right to 

equal protection when it provided superior retirement benefits to judges retiring after a date 

established by statute. Gulbrandson, 272 Mont. at 502, 901 P.2d at 578. Gulbrandson 

challenged the statute that provided greater retirement benefits to judges who retired after 

July 1, 1991. Gulbrandson, 272 Mont. at 497, 901 P.2d at 575. The Court determined in 

Gulbrandson that a rational relationship existed between the cut-off date in the statute and 
7

the legitimate government interest of encouraging extended judicial service. Gulbrandson, 

272 Mont. at 504-05, 901 P.2d at 580. 

¶16 The Court examined the statute at issue in Gulbrandson under the rational relationship 

test that we employ in our equal protection analysis. Gulbrandson, 272 Mont. at 503, 901 

P.2d at 579. The Court determined that no equal protection violation existed in light of the 

statute’s classifications. Gulbrandson, 272 Mont. at 504, 901 P.2d at 579-80. The Court 

recognized that the cut-off retirement date set by the statute functioned “not unlike most 

legislation which, by its very nature, contains or produces classifications regarding benefits, 

applicability and the like by virtue of a change in statute at a particular point in time.” 

Gulbrandson, 272 Mont. at 504, 901 P.2d at 579-80. The Court also noted that the statute 

operated equally upon those within each class: the statute denied the benefit increase equally 

for all judges retiring before the statutory deadline, while it increased benefits equally for all 

judges retiring after the deadline. Gulbrandson, 272 Mont. at 504, 901 P.2d at 580. 

¶17 Section 19-13-210(2), MCA, restructured the retirement system for Guard firefighters 

by creating one class of firefighters hired on or after October 1, 2001, and one class 

consisting of all Guard firefighters hired before that date. Like the cut-off date that the Court 

examined in Gulbrandson, the date set forth in § 19-13-210(2), MCA, created two dissimilar 

classes of firefighters. See e.g. Wilkes v. State Fund, 2008 MT 29, ¶¶ 20, 26, 341 Mont. 292, 

¶¶ 20, 26, ___ P.3d ___, ¶¶ 20, 26. 

¶18 We have recognized on several occasions that “[a]ll things must have a period of 

adjustment, and such classification is not ‘arbitrary classification.’” E.g. Montana Land Title 
8

Ass’n v. First American Title, 167 Mont. 471, 475, 539 P.2d 711, 713 (1975) (citations 

omitted). Here the legislature enacted a revision to the Firefighters’ System that involves a 

period of adjustment until all Guard firefighters gain membership in the Firefighters’ 

System. This Court previously has approved legislative alterations of statutory rights and 

responsibilities, noting that “[t]he constitutional provisions against discrimination do ‘not 

forbid statutes and statutory changes to have a beginning, and thus to discriminate between 

the rights of an earlier and later time.’” State v. Abstracters Board of Examiners, 99 Mont. 

564, 581, 45 P.2d 668, 672 (1935) (quoting Justice Holmes in Sperry & Hutchinson Co. v. 

Rhodes, 220 U.S. 502, 505, 31 S. Ct. 490, 491 (1911)). The alleged distinction will end once 

all Guard firefighters hired before October 1, 2001, have retired. 

¶19 Furthermore, the legislature may approach a problem in a piecemeal fashion, 

“applying the legislation to one phase of the problem and not affecting others.” Arneson v. 

State, by Dept. of Admin., 262 Mont. 269, 274-75, 864 P.2d 1245, 1248 (1993). The 2001 

Legislature recognized the fact that leaving Guard firefighters in the Public System while 

other public firefighters participated in the Firefighters’ System created an inequitable 

situation. Rather than approaching this inequity with an immediate and comprehensive 

solution, however, the legislature chose to correct this imbalance by phasing Guard 

firefighters into the Firefighters’ System. 

¶20 Section 19-13-210(2), MCA, represents a legislative choice to provide a prospective 

retirement solution for all newly hired Guard firefighters without affecting the retirement 

expectations of existing Guard firefighters. Section 19-13-210(2), MCA, operates equally 
9

upon members of each class of firefighters. All Guard firefighters hired before October 1, 

2001, remain in the Public System, while all Guard firefighters hired on or after the statutory 

date participate in the Firefighters’ System. Section 19-13-210(2), MCA. The legislative 

approach to correcting the “longstanding inequity” between Guard firefighters and other 

public firefighters set forth in § 19-13-210(2), MCA, did not violate Bean’s right to equal 

protection. 

¶21 We reverse the District Court’s orders granting summary judgment and awarding 

attorney fees and costs to Bean.

/S/ BRIAN MORRIS

We Concur:

/S/ JOHN WARNER

/S/ W. WILLIAM LEAPHART

Justice Patricia O. Cotter concurs.

¶22 I concur in the Court’s decision. I do so for the reasons set forth therein, and because, 

as a practical matter, the end result if we affirm the District Court’s decision would be that 

none of the firefighters employed by the Guard would receive the benefit of participating in 

the Firefighters’ System. While I agree with the firefighters that the result reached by the 

Legislature is imperfect, it nonetheless is a step in the right direction—i.e., the newly hired 

firefighters will now have the opportunity to receive better benefits.
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¶23 In Henry v. State Compensation Ins. Fund, 1999 MT 126, 294 Mont. 449, 982 P.2d 

456, we concluded that depriving workers suffering occupational diseases of the opportunity 

to receive rehabilitation benefits was not justifiable solely on the basis of economic factors, 

citing our decision in Heisler v. Hines Motor Co., 282 Mont. 270, 937 P.2d 45 (1997), for the 

proposition that cost control alone cannot justify offering services to some while denying 

them to others. Henry, ¶ 40. In this connection, it bears noting that the cost control factor 

was offered by the State in Henry as a justification for limiting some workers’ rights or 

benefits. Here, by contrast, the State has accomplished through legislation an improvement

of some workers’ benefits. While I do not condone piecemeal increases in benefits if a 

wholesale increase is both an available and affordable alternative, it would be counterproductive were we to say here that, because the State could not provide increased benefits 

for all firefighters at once, none should get them. Yet, this would be the result were we to 

affirm. I therefore concur.

/S/ PATRICIA COTTER

Justice James C. Nelson joins in the Concurrence of Justice Patricia O. Cotter.

/S/ JAMES C. NELSON