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 

Legislative Assembly; 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, 

The Honorable Katherine R. Curtis, Judge presiding. 

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's motion 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 

instructor at Flathead Valley Community College (FVCC). During the 

winter of 1989, FVCC cancelled Talley's religious studies class, 

but later reinstated it. Talley's classes 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's attorney 

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's attorney 

asked Talley to disavow his expectation of continued employment. 

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"In absence of such a disavowal and acknowledgement, I must advise 

[FVCCI . . . not to employ Mr. Talley for the summer quarter and to 

employ him very sparingly thereafter." FVCC's counsel cautioned 

that Talley's expectation 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's failure to rehire him. The 

District Court granted summary judgment to defendants on most of 

Talley's claims. The court certified its judgment for interlocutory appeal pursuant to Rule 54(b), M.R.Civ.P. This Court affirmed. 

Talley v. Flathead Valley Community College (1993), 259 Mont. 479, 

857 P.2d 701. Talley's case then resumed in District Court on his 

remaining claims, violation of his right to free speech and 

slander. 

Both Talley and the defendants moved for summary judgment on 

the free speech claim. Talley maintained that FVCC conditioned 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 

interest or concern but rather involved private, employment-related 

issues. The court therefore granted defendants' 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 for 
Jaeger. Talley now appeals the summary judgment on his 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's standard 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 

interrogatories and requests for admissions, and affidavits filed. 

Minnie v. City of Roundup (l993), 257 Mont. 429, 431, 849 P.2d 212, 

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 (citation omitted). 
However, except in "the most 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 assures government employees the same rights as 

those who do not work for the government. Whether an employee's 

speech addresses a matter of public concern must be determined by 

the content, form, and context of a given statement, as revealed by 

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, 

461 U.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 elimination of his classes at FVCC was a matter 

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 ordinary public citizen and his cornrrlerits about FVCC were no 

longer subject to the threshold inquiry from Connick. 

Talley submitted to the court copies of letters between FVCC's 

attorney and his attorney, and defendant Howard Fryett's responses 

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 FVCC board meeting. The headlined result 

of the meeting was an increase in tuition fees. The article 

included a paragraph stating that Talley had appeared before the 
board 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 (3rd Cir. 1980), 635 F.2d 216, in 

which James Trotman successfully sued Lincoln University for 

failing to renew his teaching contract. Trotman was 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 

"free speech" claims under the First Amendment. See Dorsett v. Bd. 

of Tr. for St. Colleges & Univ. (5th Cir. 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 speaks primarily as a citizen rather than as 

6 
an employee. We must assess, therefore, Dorsett's 

motivation in complaining to the administration. After 

reviewing the summary judgment evidence, we conclude that 

Dorsett's complaints 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 (citations omitted) 

In the present case, the record does not establish that FVCC1s 

failure to rehire Talley was a matter of public debate or interest 

in the community at large. The record, however, does establish 

that Talley's primary motivation for his statements was his desire 

for more teaching contracts for himself. We conclude that Trotman 

is not persuasive authority for Talley's position 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 also makes an argument concerning interference with his 

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 claim which 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.2d at 708. He argues that this represented a ruling 

that his free speech claim must be allowed to proceed to trial. 
The District Court's failure 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: "No summary judgment 

being issued, [the free speech] claim is still alive." Tallev, 857 

P.2d at 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. 

Af f irmed 

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 claim which 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, 857 P.2d at 708. Our conclusion was a ruling on the merits 

of the free speech claim. I would reverse the summary judgment by 

the District Court and allow the matter to go to trial. 

i r 

Justice 1