### NO. 95-240 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995
ALLEY, Plaintiff and Appellant,

FLATHEAD VALLEY COMMUNITY COLLEGE, a Community College organized by the voters of Flathead County, Montana, on April 7, 1967,according to the Community College Law of the 1965 Montana LegislativeAssembly; HOWARD L. FRYETT, Individually and as President of Flathead Valley Community College; DENNIS P. 

### ADAMS, Individually and as Dean of Educational Services of Flathead Valley Community College; LOWELL JAEGER, Individually and as the Chairman of the Division of Humanities of Flathead Valley Community College;and DOES 1 through 5, inclusive, Defendants and Respondents

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, TheHonorable Katherine R. Curtis,Judgepresiding.

COUNSEL OF RECORD: For Appellant: 

### E. Eugene Atherton, E. Eugene Atherton, P.C., Kalispell, Montana For Respondents: Todd A. Hammer, Warden, Christiansen, Johnson & 

### Berg, Kalispell,Montana

Filed: Submitted on Briefs: August 31, 1995 Decided: September 29, 1995

### Chief Justice J.A. Turnage delivered the Opinion of the Court.
Frank Talley appeals from a summary judgment entered by the Eleventh Judicial District Court, Flathead County, on his free speech claim. We affirm. The issue is whether the District Court erred in granting defendants'motion for summary judgment on the free speech claim and denying Talley'smotion for summary judgment on the same claim. From 1982 until 1989, Talley was employed under a series of term contracts as a part-time philosophy and religious studies instructorat FlatheadValley Community College (FVCC). During the winter of 1989, FVCC cancelled Talley's religious studies class, but later reinstated it. Talley'sclasses for spring quarter 1989

were cancelled. From that time forward, FVCC did not rehire Talley. Upon learning that his classes for spring 1989 had been cancelled, Talley asserted his belief that he had a right to continued employment. He communicated this belief to FVCC1s president personally, to FVCC through letters from his attorney, and to the FVCC Board of Trustees personally. Talley'sattorney wrote: " [I]f [Talley] is employed, it will tend to look as though the college has followed through with its intent to continuously employ my client." FVCC responded by letter through its attorney that any claim by Talley of a continuing right of employment was not supported under the language of his employment contracts. FVCC'sattorney asked Talley to disavow his expectation of continued employment. 2"Inabsence of such a disavowal and acknowledgement, 

### Imust advise [FVCCI



### . . . not to employ Mr. Talley for the summerquarter and to employ him very sparingly thereafter." FVCC'scounsel cautioned that Talley'sexpectation might otherwise ripen into a reasonable expectation of continued employment. In October 1989, Talley filed a complaint listing multiple claims for relief relating to FVCC'sfailure to rehire him. The District Court granted summary judgment to defendants on most of Talley'sclaims. The court certified its judgment for interlocutory appeal pursuant to Rule 54(b),M.R.Civ.P. This Court affirmed. Talleyv.Flathead Valley Community College (1993),259 Mont. 479, 857 P.2d 701. Talley'scase then resumed in District Court on his remaining claims, violation of his right to free speech and slander. Both Talley and the defendantsmoved for summary judgment on the free speech claim. Talleymaintained that FVCCconditioned his continued employment at FVCC upon his abandonment of his position that he had a right to continued employment, and, in so doing, violated his right to free speech. The District Court ruled as a matter of law that Talley's speech was not constitutionally protected in this instance because it did not address a public interestorconcernbut rather involvedprivate, employment-related issues. The court therefore granteddefendants'motion for summary judgment. The case then went to trial on the remaining claim of slander by defendant Lowell Jaeger. The jury returned a verdict forJaeger. Talleynow appeals the summary judgment onhis free speech claim.

Did the District Court err in granting defendants'motion for summary judgment on the free speech claim and denying Talley's motion for summary judgment on the same claim? This Court'sstandard of review of a summary judgment is the

same as the standard initially used by the district court and set forth at Rule 56(c),M.R.Civ.P. This Court must determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law,based upon the facts set forth in the pleadings and any depositions, answers to interrogatoriesand requests for admissions,and affidavits filed. Minnie v. City of Roundup (l993),257 Mont. 429, 431,849 P.2d212, 214. In this case, Talley's cross-motion for summary judgment demonstrates that there are no issues of material fact. The question is whether, based upon the record, FVCC was entitled to judgment as a matter of law. The First Amendment protects speech of public employees upon matters of public concern. This furthers the purpose of the First Amendment "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Connick v. Myers (1983),461 U.S. 138, 145, 75 L.Ed.2d 708, 718, 103 S.Ct. 1684, 1689 (citationomitted).However,except in "themost unusual circumstances, 

### " the First Amendment does not provide immunity for speech concerning matters only of personal interest to the public employee. Connick, 461 U.S. at 147. This assuresgovernment employees the same rights as those who do not work for the government. Whether an employee's speech addresses a matter of public concernmust be determined by the content,form,and context of a given statement,as revealedby the whole record. Connick, 461 U.S.at 147-48. The inquiry into the protected status of speech is one of law,not fact. Connick, 461U.S.at 148, n. 7. Although "most unusual circumstances" were not defined in Connick, Talley argues that such circumstances are present here. He asserts that the eliminationof his classes at FVCCwas amatter of public concern; that he spoke out publicly as well as privately about it; and that after his last contract with FVCC expired, he

was an ordinarypublic citizen and his cornrrlerits about FVCCwere 

### no longer subject to the threshold inquiry from Connick. Talley submittedto the court copiesof letters between FVCC's attorney and his attorney,and defendant Howard Fryett'sresponses to interrogatories and requests for admissions. He submitted his

own affidavit, in which he recounted his "quest for due process." He also submitted a copy of an April 1989 article from the local newspaper,describing an FVCCboard meeting. The headlined result of the meeting was an increase in tuition fees. The article included a paragraph stating that Talley had appeared before theboard to protest the elimination of his classes and to threaten a lawsuit. Talley cites as comparable to this case Trotman v. Board of Trustees of Lincoln University (3rdCir. 1980), 635 F.2d 216, in which James Trotman successfully sued Lincoln University for failing to renewhis teaching contract. Trotmanwas decided prior to Connick, and the Connick distinction between matters of public

concern and matters of private concern was not addressed therein. The Trotrnan opinion does,however, allude to the widespread nature of the dispute between teachers and the administration of Lincoln University. Trotman, 635 F.2d at 219. The Fifth Circuit Court of Appeals has ruled that grievances

or complaints about the subject of class scheduling are not a matter of public concern, but are instead personal 

### or private employment-relatedgrievances

### not withinconstitutionally-protected "freespeech"claims under the FirstAmendment. See Dorsettv.Bd. of Tr. for St. Colleges & Univ. (5thCir. 1991),940 F.2d 121. In Dorsett,a tenured associate math professor brought a 42 U.S.C. 5 1983 civil rights claim against university officials for alleged harassment and violation of First Amendment rights. The professor alleged that he had been denied summer employment by the administration in retaliation for publicly supporting another professor who refused to lower academic standards. He alleged that his exercise of free speech on matters of public education caused the retaliation. The court disagreed Communication



### . . . rises to the level of public concern if a person speaksprimarily as a citizen rather than as 6an employee. We must assess, therefore, Dorsett's motivation in complaining to the administration. After reviewing the summary judgment evidence,we concludethat Dorsett'scomplaints at the time of the alleged harassment reflected predominantly his concerns about the assignment of summer and overload classes to himself and to his friends in the department. These concerns are matters of private, not public, interest. Dorsett, 940 F.2d at 124 (citationsomitted) In thepresent case,the recorddoesnot establish that FVCC1s failure to rehire Talley was amatter of public debate or interest in the community at large. The record, however, does establish that Talley'sprimary motivation forhis statements was his desire formore teaching contracts for himself. We conclude that Trotman is not persuasive authority forTalley'sposition in this case. We further conclude that Talley has not demonstrated "most unusual circumstances" justifying an exception from the general rule set forth in Connick and applied in Dorsett. Talley alsomakes anargument concerning interferencewithhis freedom of thought. However, it was Talley's statements,not his thoughts,which FVCC asked him to disavow. Finally, Talley points out that the District Court did not grant summary judgment on the free speech claim prior to the first appeal, and that in its opinion on LhaL appeal, Lhis Court wrote: We conclude that the only constitutional claimwhich has merit under the pleadings is the claim of denial of free speech according to the First Amendment to the United States Constitution and the attendant 5 1983 claim. Tallev, 857 P.2dat 708. He argues that this represented a ruling that his free speech claim must be allowed to proceed to trial.

### The District Court'sfailure to grant summary judgment on the free speech claim was not an issue before this Court in the first appeal. In that opinion,we further stated: 

### "Nosummary judgment being issued, [thefree speech] claim is still alive." Tallev, 857 

### P.2dat 708. 

### The language cited by Talley was not a ruling on the merits of the free speech claim; it was merely dicta. In the current appeal, in contrast, the propriety of summary judgment on the free speech claim is the issue before this Court. We have now reviewed the summary judgment,and we hold that entry of summary judgment for defendants on the free speech claim was correct. Affirmed

Chief Justice

We concur:

### Justice William E.Runt, Sr.,respectfully dissents:

I 

### do not agree with the conclusion of the majority that the language of our opinion in Tallev,857 P.2d 

### at 708, is dicta,when this court wrote: We conclude that the only constitutional claimwhich has merit under the pleadings is the claim of denial of 

### free speech according to the First Amendment to the United States Constitution and the attendant 1983 

### claim. Tallev, 857P.2d at 708. Our conclusionwas 

### a rulingon 

### themerits 

### of the free speech claim. I

### would reverse the summary judgmentby the District Court and allow the matter to go 

### to trial.

i r 

### Justice 1