No. 14304 

IN THE SUPREME Cm OF THE STATE OF MONTANA 

Plaintiff an3 Appellant, 

ST. JOHN'S LUTHERAN HOSPITAL, a 

Mntana Corporation, 

Defendant and Respondent. 

Appeal frm: District Court of the Nineteenth Judicial District, 

Honorable Ibbert M. Holter, Judge presiding. 

Counsel of Record: 

For Appllant: 

Fennessy , Crocker and Harman, Libbv, blontana 

David Harman argued, Libby, Wntana 

Jean Galloway Koreski argued, Washington, D. C. 

For Respondent: 

Lawrence H. Sverdrup, Libby, Ebntana 

Smith Law Fixm, Helena, Mntana 

Cha6wic.k Smith argued, Helena, Fbntana 

Filed: -jUN 1 3 5979 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

This is an appeal from the District Court, Nineteenth 

Judicial District, Lincoln County, on a judgment against 

Marjorie C. Swanson who was discharged from her employment 

as a nurse-anesthetist at St. John's Lutheran Hospital 

in Libby. She brought her action in the District Court 

upon the ground that she had been wrongfully dismissed 

from her employment because she had asserted her rights 

under former section 69-5223, R.C.M. 1947, now section 50-5- 

502 through -505 MCA. 

Former section 69-5223, has been referred to in briefs 

before this Court, as it was during its legislative 

history, as the "conscience statute". For ease of reference, 

we will use that term here, although the Court implies 

nothing by the use of that term. The conscience statute 

defined certain rights of medical persons who are confronted 

with sterilization procedures as a part of their employment. 

Specifically, the conscience statute includes these 

provisions: 

"(2) All persons shall have the right to 

refuse to advise concerning, perform, 

assist, or participate in sterilization 

because of religious beliefs or moral 

convictions. If requested by any hospital 

or health carefacility, or person desiring 

sterilization, such refusal shall be in 

writing signed by the person refusing, but 

may refer generally to the grounds of 

'religious beliefs and moral convictions'. 

The refusal of any person to advise concerning, perform, assist, or participate 

in sterilization, shall not be a consideration 

in respect to staff privileges of any 

hospital or health care facility, nor a basis 

for any discriminatory, disciplinary, or 

other recriminatory action against such person, 

nor shall such person be liable to any person 

for damages allegedly arising from such 

refusal. 
"(3) It shall be unlawful to interfere 

or attempt to interfere with the right 

of refusal authorized by this section, 

whether by duress, coercion or any other 

means. The person injured thereby shall 

be entitled to injunctive relief, when 

appropriate and shall further be entitled 

to monetary damages for injuries suffered." 

The Court notes parenthetically that the legislature 

adopted virtually the same provisions with respect to 

abortion procedures in former section 94-5-620, R.C.M. 

1947, now section 50-20-111 MCA. 

The two-fold purpose of the conscience statute is 

plain: (1) It mandates that no person can be compelled 

to participate in sterilization against his moral or 

religious principals; (2) It prohibits firing any person 

for refusing to participate in sterilization on such 

grounds. The law is statewide in its effect, embracing 

as well the largest metropolitan hospitals and clinics 

and the smallest hospital or medical office in Montana. 

Marjorie Swanson is a Certified Registered NurseAnesthetist (CRNA) who was employed by the hospital for 

eight years prior to discharge in her professional 

capacity as a nurse-anesthetist. In the four years 

preceding August 1977, she had assisted professionally 

in twenty surgical procedures that involved sterilizations 

and in the year preceding August 1977, six such procedures. 

On August 19, 1975, she assisted professionally in 

a surgical procedure that was listed on the surgery schedule 

in the hospital as a "D and C", a dilatation and curettage. 

Immediately prior to the operation, in examining the chart 

of the patent, she had discovered that an abortion permit 

was required by the hospital medical staff for this 

particular procedure. Nevertheless, she went ahead 

professionally and gave anesthetic to the patient. During 
the course of the procedure she observed that a human 

fetus was removed from the uterine lining of the patient, 

part by part, by the use of instruments. Her observation 

of the dissection and removal of the fetal tissue caused 

her to be "horrified and very upset". 

August 19, 1977 was a Friday. Over the weekend, she 

learned that a procedure described as a bilateral partsalpingectomy, a tubal ligation, was scheduled for 

Tuesday, August 23, 1977. The operation had been listed 

on the surgical schedule posted by the hospital on August 

10, 1977, but the anesthetist first became aware of it 

over the weekend immediately preceding the Tuesday operation 

date. On Monday, August 22, 1977, at about 10:OO a.m., 

she advised the administrator of the hospital, Dan Wigart, 

that she would not participate in the tubal ligation, 

which is a sterilization procedure. The administrator 

"tried to convince [her] that [she] could participate in 

it". He also indicated that she should be able to assist 

at therapeutic abortions. Wigart asked her to withhold 

making a final decision until he had spoken to her local 

priest, and she said she would also speak to him, although 

Wigart reported "she did have a sense of finality in it 

at that time." 

Rev. Charles Strom testified that on the afternoon 

of August 22, at about 3:00 p.m. he was approached by 

Dan Wigart who asked him for his help and "sounding out 

about her attitude on sterilization". In fact, Dan Wigart 

testified in part: 

". . . She repeated two or three times 

'If I have to resign, I will. But 

I am not going to do tubal ligations.' 

I asked her to give me some background 

on this. I asked her to withhold her 

final decision until I talked to Father 
Strom and Dr. Seifert, and also the two 

physicians who were involved in the D 

& C. I made every attempt to try to 

reduce her anxiety about the procedure. 

I felt that there were other factors 

that were bothering her. And I hoped that 

Father Strom would have talked to her 

and supported her from the standpoint 

that participation in a tubal ligation 

does not represent direct participation. 

This is something that Dr. Seifert and 

I had talked about that same morning." 

At 7:00 p.m. that evening, Marjorie Swanson called 

Wigart and informed him that her mind was made up and 

she was not going to participate in tubal ligation. 

Thereupon Wigart obtained the services of a nurseanesthetist from Bonners Ferry, Idaho, and the surgery 

went ahead as scheduled. 

At 4:30 p.m. on August 23, 1977, Wigart telephoned 

Marjorie Swanson at her home and informed her that she 

was discharged from her position as nurse-anesthetist at 

the hospital. She requested that he give her a written 

statement of the reasons for her discharge. He did so, 

sending her a letter in full as follows: 

"23 August 1977 

"Marjorie Swanson 

"Rt 2, Box 556 

"Libby MT 59923 

"Dear Marj : 

"This is to confirm our telephone conversation 

of August 23, 1977 wherein I informed you that St. 

John's Lutheran Hospital will continue to pay your 

salary for two weeks until September 6, 1977 at 

the usual rate. 

"I sincerely regret having to terminate your 

services. However, your untimely refusal to 

perform customary and needed services puts me 

in a position where I have few viable alternatives. 

"I wish you the very best in all future 

endeavors and I will pray that God leads you in 

a direction in which you can perform satisfactorily 

and grow as an individual within the limits of 

your conscience. 
"Sincerely, 

"Dan Wigart" 

No request was made by the hospital, nor by the person 

desiring sterilization, that Marjorie Swanson state in 

writing her grounds for refusal. At the trial, when asked 

upon what basis she did not wish to participate in the tubal 

ligation, she replkcl, "on moral and religious grounds". 

After her discharge, appellant was paid by the hospital 

from August 23, 1977 through September 6, 1977 representing 

two weeks pay. 

On Wednesday, August 24, 1977, Wigart, in his office, 

told Nurse Marlys Mongan, an employee of the hospital, that 

the dismissal of Marjorie Swanson was upsetting to him 

"because in the last three months he thought Marge had 

really come along as being a good team member". 

On Wednesday evening, August 24, 1977, at a nurses 

meeting, Wigart said, "Marge had refused to give anesthetic 

for a tubal ligation that was scheduled on Tuesday morning 

and that he had no alternative but to give her two weeks 

notice." He stated no other reasons for her dismissal. 

In a subsequent conversation with Rev. Strom, either on 

Thursday, 

Thursday, August 25 or/september 1, 1977, Wigart indicated 

his feelings toward the state law concerning sterilization. 

Rev. Strom testified: 

"During those two conversations Dan 

Wigart first advised me about his 

experience in California. His experience 

with a union and then went into the 

idea that he changed his mind about the 

going for the union doings, and that 
he now was very conservative and certainly 

was not union minded. And he saw the 

state law in the same category, and 

that it was his job to not let unions 

or state laws interfere with the operation 

of the hospital. " 

Marjorie Swanson filed her complaint against the 

hospital on September 13, 1977, alleging that she had 

been discharged because of her refusal to participate in 

the sterilization procedure. Defendant filed its answer 

on November 22, 1977, and trial was had before the court, 

sitting without a jury on February 15, 1978. On April 5, 

1978, the court entered its findings of fact and conclusions 

of law ruling against plaintiff Swanson. On April 11, 1978, 

Swanson moved to amend the findings of fact and conclusions 

of law and judgment or in the alternative for a new trial 

and these motions were denied on April 13, 1978. Timely 

notice of appeal was filed on April 17, 1978. 

Swanson presents four issues for review: 

1. The District Court finding that Swanson was an 

"employee of questionable value" is irrelevant and against 

the evidence. 

2. The District Court erred in concluding that 

Swanson, having participated in sterilization procedures 

in the past was precluded from refusing to participate 

on August 22, 1977. 

3. The District Court erred in concluding that 

Swanson's rights under the conscience statute are outweighed 

by her employer's necessities, and her inability to 

maintain herself as an effective employee. 

4. The District Court erred in holding that Swanson 

was required to cite her reasons for nonparticipation 

of the sterilization procedure at the time of her refusal. 
THE ISSUE THAT SWANSON WAS - "AN - EMPLOYEE - 

OF QUESTIONABLE 

VALUE " 

In its finding no. 5, the District Court found that 

Swanson was an employee of "questionable value" to the 

hospital for several reasons, including (a) when Swanson did 

not get the raise she expected, she did not talk to the 

administrator "for a day" and informed the administrator 

that he could find another anesthetist; (b) that Swanson 

abrasively handled a situation involving blood supplied from 

the hospital laboratory outside of the scope of her duties, 

causing disharmony; (c) Swanson argued about proceeding 

with a tonsillectomy procedure in such a manner as to upset 

the physician and cause disharmony; (d) it was constantly 

necessary for the administrator to assure Swanson that she 

was a "team member" capable of holding up her end of the 

hospital work; (e) the hospital had difficulty with Swanson 

because she made excessive demands, had difficulties with 

other employees, failed to recognize authority, refused to 

stay with patients recovering from anesthesia and naintained 

outdated drugs; and (f) in order to effectively operate a 

hospital, it is necessary that harmony prevail and that the 

staff act as a team and that Swanson did not so act. 

All of the foregoing reasons utilized by the District 

Court to determine that Marjorie Swanson was an employee of 

questionable value were irrelevant, because they were outside 

of or not included in the August 23, 1977 letter of Wigart 

to Swanson stating the reasons for her discharge. The 

letter had been delivered in accordance with the demand of 

the discharged employee. Under section 41-1311, R.C.M. 

1947, now section 39-2-801 MCA, upon such demand, the employer 

must furnish to the discharged employee a "full, succinct and 

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complete reason of discharge". The letter of August 23, 

1977 was the employer's compliance with that statute. The 

writing required of the employer by former section 41-1311 

is known as a "service letter" (51 C.J.S. Labor Relations, 

815, p. 588). A statute such as former section 41-1311 

becomes a part of any employment contract entered into by an 

employer and an employee in the State of Montana. Brinks 

Inc. v. Hoyt (8th Cir. 1950), 179 F.2d 355, 358. The 

wording of such service letter statutes varies from state to 

state, but generally it is held that such a statute requires 

valid, clear and true reasons for the discharge, or a statement 

of the "real, honest and factual" reasons. Cumby v. Farmland 

Industries, Inc. (Mo.App. 1975), 524 S.W.2d 132, 135. 

Where, as in Montana, the purpose of the statute is to 

prevent "blacklisting", it is our duty to interpret former 

section 41-1311 requiring a "full, succinct and complete" 

statement to mean exactly what it says. Therefore, in the 

case at bar, the only reason which could be considered by 

the District Court was the reason set forth in the letter of 

August 23, 1977, her "untimely refusal to perform customary 

and needed services." The other reasons found by the District 

Court that made the employee one of questionable value were 

irrelevant because those reasons were not contained in the 

August 23, 1977 letter defining the reasons for her discharge. 

Moreover, the finding by the District Court of other 

reasons for her discharge not set out in such letter are not 

supported by the evidence. The finding that Marjorie Swanson 

did not get the raise she expected in April 1977, that she did 

not talk to the administrator and that she informed him he 
could find another anesthetist, is based on evidence to 

which an objection was sustained by the District Court 

during the trial. It is not a part of the record. 

The clear weight of the evidence relating to the 

situation involving blood from the laboratory is on 

Marjorie Swanson's side. The attending physician, in a 

surgical procedure, had ordered whole blood and instead, 

the laboratory sent packed cells. Because she objected 

that the laboratory was not following the physician's 

orders, eventually the laboratory began sending whole blood 

as ordered. Her objection may have caused disharmony 

with the laboratory, but she felt it was within her 

professional competence to alert the staff about the 

problem. She is not to be blamed for alerting the 

hospital to a disregard of the doctor's orders. 

The finding relating to the tonsillectomy procedure 

is again not based on the evidence. In this case, the 

patient had an elevated temperature and as an anesthetist, 

she refused to be responsible for administering anesthetic 

to a patient in that condition. This was completely 

within her competence. When she refused to go along with 

that procedure unless the hospital would accept the 

responsibility, the administrator of the hospital 

refused to accept it, under the undisputed evidence. 

Moreover, these incidents all occurred in October 

or November 1976, except for her pay raise dispute which 

occurred in April 1977. 

As to the general findings of the court that Marjorie 

Swanson made excessive demands, had difficulties with 
other employees, failed to recognize authority, refused to 

stay with patients recovering from anesthia, and maintained 

outdated drugs, none of these are supported by the evidence. 

Her only demands related to her wage negotiation; the only 

employee of the hospital appearing to testify, testified in 

her favor; Swanson recognized the authority of the administrator and of the doctors by becoming a good team member; 

and the questions with respect to patients recovering from 

anesthia and maintaining outdated drugs were refuted by her. 

No other evidence was produced of any kind by the hospital 

to indicate that answers to the line of questioning addressed 

to her on those points were otherwise than what she answered. 

Finally, the finding that Marjorie Swanson was not a 

good "team member" is against the clear weight of the evidence. 

Marjorie Swanson testified that Dan Wigart had told her that 

she was a good employee, and a good team member; on the day 

of her firing, Dan Wigart told Rev. Strom, concerning her 

job performance, that during the past few months she had 

done a fine job and that they had no complaints, and that 

she was becoming a good team member. Marlys Mongan, a 

fellow employee, testified Dan Wigart had told her that in 

the three months he thought that Marge had really come 

along as a good team member. But the most telling evidence 

is the testimony of the administrator himself who said: 

"Q. During the summer of 1977, say 

from May, 1977, until the time of 

Marge Swanson's discharge, did you 

tell Marge Swanson that she was really 

a member of the team? 

"A. Yes, I did. 

"Q. Did you tell her this on more than 

one occasion? 
"A. Yes, I did. 

"Q. During the summer of 1977, did you 

ever tell Marge Swanson that she was a 

good employee? 

"A. Yes, I did. 

"Q. Did you tell Marge Swanson that 

she was a good employee on more than 

one occasion? 

"A. Yes. 

"Q. During the summer of 1977, did 

you ever tell Marge Swanson that she 

was doing good work? 

"A. Yes, I did." 

When viewed against the state of the record, the 

finding that Marjorie Swanson was not a good "team 

member" cannot stand. 

Finally, however, the findings of the District Court 

citing other reasons for her discharge cannot stand in 

the face of the overwhelming evidence that the single and 

only reason for her discharge was her refusal to participate in a tubal ligation. In addition to all of the 

events and actions by the administrator surrounding plaintiff's 

discharge that we have set forth above in stating the facts 

of this case, there is the testimony of the administrator --- that had she participated -- in the sterilization 

procedure, she would --- not have been discharged. Therefore, 

regardless of any other reasons that may have existed 

for her discharge, and had they existed, it is nevertheless 

true that she was discharged on August 23, 1977, for her 

refusal to participate in a tubal ligation, a sterilization 

procedure. Her discharge constitutes a violation of 

former section 69-5223. 

Another factor in this connection is that in April 1977 

the contract of employment of Marjorie Swanson was renewed. 
The renewal took place after the events which are now 

claimed as reasons for her dismissal. Not only was her 

contract renewed, but she was given a substantial raise of 

$1,000 (true, she had demanded more). Her renewal in that 

manner, without warning of the necessity of improvement, or 

any indication of dissatisfaction with her past services, 

shows that there is little substance to the now claimed 

reasons for her discharge. 

Where there is no substantial basis for District Court 

findings and if a clear and satisfactory showing is not made 

to support the findings, this Court will set such findings 

aside. Magelssen v. Mouat (1975), 167 Mont. 374, 538 P.2d 

1015, 1019; Kasala v. Kalispell Pee Wee Baseball League 

(1968), 151 Mont. 109, 439 P.2d 65, Judson v. Anderson 

(1945), 118 Mont. 106, 165 P.2d 198. 

Both parties cite the United States Supreme Court case 

of Mt. Healthy City School District Board of Education v. 

Doyle (1977), 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471, in 

support of their positions. Our examination of this case 

leads us to the conclusion that it bolsters Marjorie Swanson's 

case. In Mt. Healthy, Doyle an untenured teacher, had 

previously been involved in an altercation with another 

teacher and in arguments with cafeteria employees, swearing 

incidents with students, the making of obscene gestures, 

and had conveyed through a telephone call to a local radio 

station, the substance of a new school rule relating to the 

dress code of teachers. Thereafter, adopting a recommendation from the superintendent, the School Board 

advised respondent that he would not be rehired, citing 

his lack of tact in handling professional matters with 

specific mention of the radio station and the obscene 

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gesture incident. Doyle brought an action against the 

School Board for reinstatement or damages claiming that the 

refusal to rehire him violated his rights under the First 

and Fourth Amendments. The Federal District Court found 

that the telephone call was clearly protected under the 

First Amendment and that because it played a substantial 

part in the School Board's decision not to rehire Doyle, 

Doyle was entitled to reinstatement with back pay. The 

District Court was affirmed by the court of appeals, Doyle 

v. Mt. Heale City School District Board of Education (1975)~ 

529 F.2d 524. The United States Supreme Court vacated the 

decision and remanded the case upon the ground that the 

constitutionally-protected conduct may not have played a 

substantial part in the decision not to rehire the teacher 

and amounted to a constitutional violation justifying remedial 

action. The Supreme Court required that the District Court 

should go on to determine whether the Board of Education had 

shown by a preponderance of the evidence that it would have 

reached the same decision even in the absence of protected 

conduct of the teacher. 429 U.S. at 287. 

Applying the rationale of the Mt. Healthy decision to 

the case at bar, it is clear from the testimony of the 

administrator, Dan Wigart, that Marjorie Swanson would not 

have been discharged in the absence of her refusal to 

participate in tuba1 ligations, which is protected conduct 

under former section 69-5223. There is no question in this 

case that the claimed reasons found by the District Court 

were not sufficient in August 1977 to bring about her 

discharge, as far as the employer was concerned; there is 

also no question that her refusal to participate in the 

sterilization did bring about her discharge. As a matter of 

fact, under the rationale of Mt. Healthy, once Marjorie 

Swanson established that her discharge was brought about in 

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substantial part by her refusal to participate in the 

sterilization, it then became the burden of the hospital to 

prove by a preponderance of the evidence that it would have 

discharged her without the exercise of her protected conduct. 

The hospital did not meet this burden under the state of the 

record. 

SWANSON'S PARTICIPATION IN -- PAST STERILIZATIONS 

The second issue we discuss is whether Marjorie Swanson 

is precluded from refusing to participate in sterilization 

procedures by reason of her past participation in such 

procedures. The hospital argues that because she had 

participated in the past, her refusal on August 22, 1977 to 

participate further demonstrated she had "flexible" religious 

principles and scruples. Because we are interpreting this 

statute for the first time and as far as we can determine, 

no other court has interpreted such a statute, we have no 

guidelines by way of legal precedent on this argument. 

Former section 69-5223 makes no differentiation with respect 

to the right of refusal and it is "unlawful to interfere or 

attempt to interfere with the right of the refusal authorized" 

by the section, Given the propensity of the human conscience 

to define its own boundaries and the fact that such boundaries 

might be widened or limited by experience, it seems natural 

that a person's concept of the propriety or morality of a 

procedure or situation might change from time to time. The 

right given by the statute is unqualified, irrespective of 

past participation. 

WHETHER --- THE RIGHT TO REFUSE - IS OUTWEIGHED -- BY OTHER 

CONSIDERATIONS 
The third issue that we address relates to the conclusions 

of law adopted by the District Court. In both of these 

conclusions, the District Court determined that Swanson's 

right to refuse to participate in sterilization was "outweighed" 

by considerations outside the scope of her conscience. 

The first conclusion of the District Court was that the 

right of refusal to participate in sterilization was "far 

outweighed" by the rights of the hospital under the circumstances 

of this case to maintain its standards as an effective 

employer and operator of the only hospital in an isolated 

geographic area. The District Court bases this conclusion 

upon its findings that substitute nurse-anesthetists available 

to replace Swanson must be procured from Bonners Ferry, 

Idaho, a 55 mile distance or Kalispell, Montana, a 90 mile 

distance; that such substitutes are employed at other hospitals 

and available only when their schedules do not conflict; 

that continual arrangements for substitutes are unacceptable 

to the hospital because of traveling and scheduling difficulties; 

that uncertainty results in the hospital as to when a sterilization 

procedure might be accomplished, that are detrimental to 

patients; and that the cost of substitutes is greater, and 

is an additional burden to the hospital and to the hospital 

patients. 

By so concluding, the District Court reads into former 

section 69-5223 provisos that the legislature itself did not 

see fit to include. Instead, the legislature said, "All - 

persons shall have the right to refuse . . . to participate 

in sterilization . . ." The statutory right is unqualified, 

and it may not be qualified or limited by the District Court 

on other considerations. 
It is noteworthy that the hospital does not attack the 

validity or constitutionality of section 69-5223. By accepting 

the statute as constitutional, the hospital must accept the 

statute in the way it is written, which in this case means 

it applies to "all persons" irrespective of their geographic 

location and the discomfitures that might result from the 

exercise of the statutory right. 

Secondly, the District Court concludes that the right 

of Swanson under the conscience statute is "far outweighed" 

by her inability to maintain herself as an effective employee 

of the defendant. We assume this means that by exercising 

her right of refusal, the employment duties that Marjorie 

Swanson would ordinarily perform in the operating room must 

be handled by someone else in sterilizations and therefore 

she is not an "effective employee". Again, former section 

69-5223 admits of no such limitation or qualification, nor 

may the statutory rights of Marjorie Swanson be so weighed 

because to do so would emasculate her statutory rights. 

WHETHER EMPLOYEE MUST CITE MORAL - OR RELIGIOUS BELIEFS 

AT ---- THE TIME OF REFUSALThe fourth issue relates to the finding of the 

District Court that on August 22, 1977, when Marjorie 

strator 

Swanson informed the admini/ that she would not participate 

in the tuba1 ligation, she "did not cite moral or religious 

beliefs as controlling her at that time". Aside from the 

overwhelming evidence that all parties knew at the time why 

she was refusing to participate, the finding is irrelevant. 

Under former section 69-5223, she was not required to state 

her reasons unless "requested by [the] hospital". No such 

request occurred here. Moreover, if requested, under the statute 
she could refer generally "to the grounds of religious 

beliefs and moral convictions". She did this the only time 

she was asked, during the trial before the District Court. 

Even upon request, under the statute, she is not required to 

state the precise commandment, dogma, or tenet that leads to 

her refusal. The intent of the legislature in so providing 

is manifest: a person's conscience about sterilization need 

not be related to any particular religion, cult, or sect, 

but may be a part of the person's indefinable concept of the 

an 

natural law, not easily explained inh-B-c fashion. 

In like manner, the finding of the Court that neither 

party may have been aware of the existence of the statute at 

the time is also irrelevant. If "ignorance of the law is no 

excuse", neither is it an escape hatch. 

UNTIMELINESS -- OF THE REFUSAL 

There is but one remaining factor to discuss with 

respect to her refusal, that is whether the exercise of that 

refusal by her was untimely. This is a legitimate issue to 

examine because it is a ground within the Wigart letter of 

August 23, 1977, giving the hospital's reason for her 

discharge. The District Court made no finding or conclusion 

regarding this factor, except to note that the tuba1 ligation had been scheduled by a member of the medical staff on 

August 10, 1977 for 8:00 a.m. on August 23, 1977 and that on 

August 22, 1977 at approximately 10:OO a.m. Marjorie Swanson 

informed the hospital's Nigart of her refusal. 

Upon being so informed, the hospital administrator did 

not immediately begin to seek a nurse-anesthetist substitute, 

although he admits that when he was first informed, he found 

in her a "sense of finality". Instead he hoped to talk 
her out of it, apparently, by convincing her that she was 

not "participating" in the sterilization if she did not 

wield the instrument. Because of his requested delay - 

in her decision, she did not finally inform him until 

approximately 7:00 p.m. In spite of this, however, he was 

able to obtain the services of a nurse-anesthetist from 

Bonners Ferry, and the surgery went on as scheduled. 

Thus, there was no evidence in the record which would 

support a finding of untimeliness. Sterilization is an 

elective procedure, at least in this case. There is no 

showing in the evidence that the hospital was unduly 

prejudiced, nor the patient was endangered. The attending 

doctor testified over objection that in his opinion such 

notice of refusal would not be timely unless given -- at the 

commencement -- of the employment. This obviously must be 

rejected because it would lead to the very recrimination 

that former section 69-5223 was established to prevent. 

In light of the record therefore, we have no occasion here 

for us to determine whether in a proper case an untimely 

notice might outweigh the statutory right of a person to 

refuse to participate in a sterilization procedure. 

CONCLUSION AND DISPOSITION 

We find therefore, that Marjorie Swanson, having a 

statutory right to do so, validly refused to participate 

in the sterilization procedure. Having done so, she was 

entitled to the further protection of the statute that 

her refusal should not be a consideration in respect to 

staff privileges nor a basis for any discriminatory, disciplinary or other recriminatory action against her. Her 

firing because of her refusal is exactly the kind of 

recrimination that is countermanded by the conscience 

statute. 

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She would be entitled to reinstatement to her position 

provided that the term of her employment contract would have 

continued to the present time. However, it was Marjorie 

Swanson's contention that her employment by the hospital was 

for a period of one year, from April 1977 through April 

1978. Since that time has passed, we cannot order that she 

be reinstated to her position. 

Under section 50-5-504(2) MCA, she is entitled "to 

monetary damages for injuries suffered". It is the function 

of the District Court to determine the amount of and kind of 

monetary damages to which she is entitled. 

Reversed and remanded to the District Court with 

instructions to undertake such further proceedings as are 

necessary to enter a judgment in favor of Marjorie Swanson 

and to determine the damages she has sustained. 

Justice 
Mr. Justice John Conway Harrison dissenting: 

For purposes of this dissent, I will discuss the issues 

in the order presented by appellant. 

I do not quarrel with plaintiff's assertion that, under 

Montana law, all persons have the right to refuse to participate in a sterilization because of religious beliefs or 

moral convictions. However, section 69-5223 (2) and (3) , 

R.C.M. 1947, now section 50-5-504 and -505 MCA, is invokable 

only if one's refusal to participate is, in the statutory 

language, "because of religious beliefs or moral convictions." Here, there are a number of inconsistencies in 

plaintiff's position. 

While it is true that one need not hold religious 

beliefs or moral convictions for a specified period of time 

before enjoying the protection of the statute, in these 

circumstances reliance on the statute strikes a discordant 

note. For the six years prior to her termination, plaintiff 

participated in 20 sterilizations without objection, including six such operations in the year prior to these events. 

Also, being greatly upset, as plaintiff testified she was by 

the August 19 operation, is a physical and emotional reaction, but not a religious belief or a moral conviction, 

Assuming arguendo, that a plaintiff's refusal to participate 

is grounded in religious beliefs or moral convictions, 

plaintiff testified at the hearing so as to belie that 

assumption. She testified that she does not have any objection to administering anesthesia for an ordinary D&C. 

This merits some elaboration in light of plaintiff's 

attempt to discount her own testimony in this regard. Her 

testimony was that she would have no objection to administering anesthesia for an ordinary D&C. In her reply 
brief, she accuses respondent of "misunderstanding" the 

nature and uses of a D&C and states that the use of a D&C 

for a therapeutic abortion is "relatively minor" compared to 

other ordinary uses of D&C. 

Respondent hospital asserts that a D&C, as performed at 

that hospital, is a therapeutic abortion. Plaintiff had 

given the anesthetic in other D&C1s which apparently were 

therapeutic abortions and which she, as a medical practitioner, understood to be just that. 

Plaintiff testified she would not object to giving the 

anesthetic for an ordinary D&C, which certainly may be 

therapeutic abortion. If she were upset by the D&C, then 

her refusal to participate in any more D&C1s would be 

understandable; but that apparently is not her position. 

Another baffling inconsistency is plaintiff's refusal 

to participate in one surgical procedure, sterilization, 

based on experience with a totally different surgical procedure, dilation and curettage. It would be logically 

consistent for plaintiff to refuse to participate in other 

D&C1s, but her refusal to participate in a totally different 

surgical procedure: makes as much sense as saying, "Because 

I had a bad experience with a tonsilectomy, I will not do 

any more appendectomies." 

Plaintiff responds that one need not hold his beliefs 

or convictions for a particular period of time before realizing the protection of the statute, and that one need not 

be aware of the existence of the statute to enjoy its protection. Both contentions are true, but they do not meet 

the prior problem--was she relying on the statute at the 

time of these events, or is the reliance an after-the-fact 

means to getting reinstated? 
Plaintiff's second argument is improperly advanced. 

Respondent does not contest the constitutionality of the 

statute in question, and the issue was not properly preserved in the lower court proceedings. 

To deal with the third and fourth arguments, a recitation of certain of the testimony presented during the hearing 

is necessary. The District Court determined that "Plaintiff 

had been an employee of questionable value to Defendant", 

offering the following reasons in support of its conclusion. 

Reference was made to an incident during which plaintiff, 

who negotiated her own salary with the hospital administrator, would not talk with him for "some period of time" 

(actually, one day) after being refused the substantial 

raise she had requested. In another episode, plaintiff 

questioned a delivery made by the hospital laboratory personnel. In that incident, plaintiff became embroiled in an 

argument with one of the lab personnel. Another incident 

to which the District Court alludes is that in which plaintiff refused to administer anesthetics for a tonsilectomy 

when the patient had an elevated temperature. Plaintiff 

registered her complaint with Wigart, the hospital administrator, who concurred in her decision, testifying that "in 

that particular instance the safest approach was the best." 

The District Court also found that "it was constantly 

necessary for the administrator to assure plaintiff she, 

indeed, was a 'team member' capable of holding up her end of 

the hospital work." The testimony on this point is conflicting. Plaintiff testified that the hospital administrator told her she was doing a good job and that she was a 

good team member, particularly during the three months 

before her termination. The hospital administrator cor- 
roborated that testimony. His version, however, included an 

explanation that he did so to give positive reinforcement to 

the plaintiff, whom he believed was not working as well as 

he said she was. r is explanation was to the effect that he 

was using "this team concept positive enforcement with her 

to overcome [certain] difficulties" she was having at the 

hospital. He acknowledges that he told plaintiff a number 

of times that she was a good employee and a good team 

member and does not claim that he offered criticism of her 

work in conjunction with the praise. It seems fair, therefore, that she could take that praise at face value. After 

the fact, however, Wigart in effect claims that he was just 

saying that to encourage plaintiff's performance to come in 

line with the praise which she was given, apparently prematurely . 

As part of the rationale for the same finding of fact, 

the District Court determined that "the difficulties of 

Plaintiff's relationship with Defendant can be characterized 

as making excessive demands, difficulties with other employees, failure to recognize authority, refusal to stay 

with patients recovering from anesthesia and maintaining 

outdated drugs.'' Making excessive demands refers to the 

incident in which plaintiff requested an inordinately 

high pay raise. Difficulties with other employees apparently 

refers to her refusal to administer an anesthetic in the 

tonsilectomy referred to above and in another operation in 

which the patient had a slow pulse. The failure to recognize authority seemingly refers to the incident in which the 

laboratory did not deliver the blood which the doctor had 

ordered. A refusal to stay with patients recovering from 

anesthesia refers apparently to plaintiff's questioning of 
the hospital procedure whereby one other than a qualified 

medical practitioner, a registered nurse, for example, would 

stay with patients recovering from surgery. The reference 

to maintaining out-dated drugs is puzzling, as the record is 

devoid of any reference to this. 

The District Court determined that plaintiff's refusal 

to participate in the sterilization scheduled for August 23, 

1977, described by Wigart as "the straw that broke the 

camel's back," was "only the last of many problems involving 

Plaintiff, and while it was the incident which gave rise to 

this controversy, it was not the primary moving cause of 

discharge." This finding invites discussion of the legal 

principles articulated by the United States Supreme Court in 

Mt. Healthy City Board of Ed. v. Doyle (1977), 429 U.S. 274, 

97 S.Ct. 568, 50 L Ed 2d 471. 

Although Mt. Healthy involved a controversy surrounding 

the refusal to rehire an untenured teacher, the test articulated there is applicable to the instant case. The test is 

designed to be applied in those circumstances in which an 

employee, who has not been rehired or in practical effect 

discharged, claims that his discharge was unlawful because 

the conduct which precipitated it was constitutionally 

protected. The issue on which the Court focused is whether, 

even if it were the case that the employer legally could 

have dismissed the employee had the one precipitating 

incident never come to its attention, "the fact that the 

protected conduct played a 'substantial part' in the actual 

decision [to terminate] would necessarily amount to a constitutional violation justifying remedial action." 429 U.S. 

at 285. The Court concluded that it would not. The rationale was: 
"A rule of causation which focuses solely on 

whether protected conduct played a part, 'substantial' or otherwise, in a decision not to 

rehire, could place an employee in a better 

position as a result of the exercise of constitutionally protected conduct than he would 

have occupied had he done nothing. . . A borderline or marginal candidate should not have 

the employment question resolved against him 

because of constitutionally protected conduct. 

But that same candidate ought not to be able, 

by engaging in such conduct, to prevent his 

employer from assessing his performance record 

and reaching a decision not to rehire on the 

basis of that record, simply because the protected conduct makes the employer more certain 

of the correctness of its decision." 429 U.S. 

at 285-86. 

After announcing in passing that an employer would not 

be precluded from attempting to prove that quite apart from 

the protected conduct, the employee's record was such that 

he would not have been rehired in any event, 429 U.S. at 

286, the Court announced a test, "one which likewise protects against the invasion of constitutional rights without 

commanding undesirable consequences not necessary to the 

assurance of those rights." 429 U.S. at 287. The burden 

initially is placed upon the complaining employee to show 

that his conduct was protected and that the conduct was a 

"substantial factor," or a "motivating factor," in the 

decision to terminate his employment. Once the employee 

carries this burden, however, it is incumbent upon the 

employer to show by a preponderance of the evidence that it 

would have reached the same decision even in the absence of 

the protected conduct. 429 U.S. at 287. 

It appears, then, that if a plaintiff fails to prove 

both that his conduct was constitutionally (or as in this 

case, statutorily) protected and that such conduct was a 

motivating factor in the decision not to rehire (or as in 

this case, to terminate) the inquiry is then ended. The 
burden would not shift, because it would not have been 

carried by the plaintiff in the first instance. Therefore, 

the first determination must be whether plaintiff's refusal 

to participate in the sterilization was in fact statutorily 

protected. 

The second half of plaintiff's burden has been carried. 

It is clear by the admission of the hospital administrator 

himself that the refusal was a motivating factor in the 

decision to terminate plaintiff. Note, however, it was not 

the refusal per - se which was as troublesome as the timing of 

the refusal. Plaintiff allowed less than 24 hours "lead 

time" for the hospital administrator to find an anesthetist 

who could substitute for her. That task was no easy one, 

given the geographical isolation and paucity of qualified 

practitioners in the Libby area. Because of fortunate 

circumstances, the operation did go ahead as scheduled, but 

that appeared to be a matter of sheer dumb-and-blind luck, 

rather than what reasonably could have been expected. 

To return to that initial inquiry: did plaintiff prove 

that her conduct was constitutionally protected? Here again 

we must examine the inconsistencies in the plaintiff's 

position. She had participated in 20 sterilizations in the 

six years prior to her termination; six of those operations 

were performed within the last year of her tenure. Being 

greatly upset, as plaintiff assuredly was, is, as respondent 

characterized it, a physical and emotional reaction, but is 

not a religious belief or moral conviction. One might 

reasonably argue that the reaction would not have been 

forthcoming had it not been for a religious belief or moral 

conviction held by plaintiff, for however short a time. 

However, there is plaintiff's testimony during the hearing 
that she would participate in ordinary D&CtsI even though 

the operation which caused her stress was itself a D&C. 

There is also the logical leap which one must make in correlating a refusal to assist in a sterilization to an upsetting experience in a totally different surgical procedure, 

the therapeutic D&C. It is true that the District Court 

made no specific finding as to whether plaintiff's conduct 

was statutorily protected, but a fair inference from the 

findings as a whole and the conclusions drawn therefrom is 

that the court found it was not. 

If it may be inferred that the District Court found 

plaintiff's conduct was not statutorily protected, then the 

determinations made with respect to the other reasons for 

plaintiff's termination are unnecessary and irrelevant, as 

plaintiff contends. But given that the employer has the 

right to put on proof demonstrating that the plaintiff was 

terminated for permissible reasons, then findings with 

respect to that evidence are appropriately made. 

The other justifications for plaintiff's termination 

advanced by Wigart are somewhat tinny; they do not ring 

true. The reason which appears soundest is the one involved 

in this controversy--plaintiff's announcement of her intention not to participate within 24 hours of the scheduled 

operation. There is no doubt this was disruptive. The 

patient had been "prepped" and was physically and emotionally 

ready for the operation. Had plaintiff made her objections 

known on the 19th of August, giving the hospital administrator a longer and more reasonable period of time in which 

to secure a substitute, it would be an easy matter to conclude that her termination was unlawful. Given that she 

waited until the proverbial eleventh hour to announce her 
intention not to participate, however, goes to strengthening 

respondent's case. 

This, then, is that on which the decision turns. The 

District Court, with its superior advantage to observe the 

demeanor of the witnesses, concluded that the hospital had 

ample justification independent of this particular event for 

terminating plaintiff's employment. It implicitly found 

that plaintiff's conduct was not statutorily protected. It 

is axiomatic that, where there is a conflict in the evidence, 

this Court will defer to the findings of the trial court, 

which are presumed to be correct if supported by substantial 

credible evidence. In a nonjury trial, the findings of the 

District Court will not be reversed on appeal, unless there 

is a clear preponderance of evidence against those findings. 

See, e.g., Montana Farm Service Co. v. Marquart (1978), 

Mont. , 578 P.2d 315, 35 St.Rep. 631, and cases cited 

therein. 

This Court may consider only whether substantial 

credible evidence supports the findings of fact and conclusions of law made by the District Court. See, e.g., Kartes 

v. Kartes (1977), Mont. - , 573 P.2d 191. In this 

case I believe that it does and would affirm the judgment. 
Mr. Chief Justice Frank I. Haswell dissenting. 

I concur in the foregoing dissent of Mr. Justice 

Harrison. 

I would add that in my view, the real issue in this 

case is whether plaintiff's refusal to participate in the 

operation on "conscience" grounds was bona fide or sham. 

Although the District Court did not make an express finding 

on this issue, its findings implied the latter. Such implied 

finding is supported by substantial, though conflicting > 

evidence and warrants affirmance of the District Court 

judgment in my opinion. 

- ............................. 

Chief Justice