No. 81-369 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

AARON P. SMALL, 

Plaintiff and Appellant, 

VS. 

ROBERT J. McRAE, 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

Moses Law Firm, Billings, Montana 

Charles F. Moses, Billings, Montana 

For Respondent: 

John Bobinski argued, Helena, Montana 

J. Michael Young, Helena, Montana 

Filed: 

Submitted: May 12, 1982 

Decided: October 4, 1982 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

The appellant, Professor Aaron P. Small, filed a one count 

libel action against the respondent, Dean Robert J. McRae, and 

McRae moved for summary judgment. Small then moved to amend his 

complaint. The Thirteenth Judicial District, in and for 

Yellowstone County, granted Dean McRae s motion for summary 

judgment and denied Small's motion to amend the complaint. The 

third count of Small's proposed amended complaint was denied 

without prejudice to his right to replead. Small appeals. 

The appellant was the appointed and acting chairman of the 

English Department at Eastern Montana College. On October 10, 

1980, the respondent, Robert J. McRae, as Dean of the school of 

1 iberal arts, terminated appellant1 s chairmanship and in connection therewith addressed and delivered a memorandum to him as a 

way of notifying him and the other departments of such change in 

chairmanship, as provided by section 9 .lo0 (F) (1) (c) (Transfer of 

Titles) of the collective bargaining agreement in force at 

Eastern Montana College at that time. The reasons cited for the 

change included inadequate leadership that failed to bring a 

polarized department into a smoother-functioning unit, increased 

acrimony within the department, failure to handle the administrative functions of the office effectively and conscientiously and, 

finally, concern over the past and ongoing coordination of the 

newly-instituted mass placement process for freshman composition. 

The memorandum ends by stating : 

"Thank you, Al, for the efforts you have 

expended in this very difficult position in 

the past seven months. I am sorry that this 

administrative appointment has not worked out. 

I wish you my sincere goodwill as you return 

to full-time teaching, which I know is your 

first love. My esteem for you as a teacher of 

your discipline is untarnished." 

Termination of this chairmanship carried with it loss of a 

stipend of $900 per academic year and $150 per summer session, 

but did not affect appellant's academic rank, tenure, base salary 

or membership in the collective bargaining unit. Although the 
collective bargaining agreement provided a grievance procedure 

which appellant could have pursued, he elected instead to file 

this libel action against Dean McRae. We agree with the trial 

judge's factual findings and adopt his memorandum. 

Originally, this was an action in libel and was submitted to 

the trial court on two motions. One by which the appellant 

sought to file an amended complaint adding four new counts. The 

original complaint sought damages caused by the alleged libel. 

The amended complaint alleged Count I, the same as the original 

complaint; Count 11, appellant was deprived of due process 

contrary to his rights guaranteed by the Constitution of the 

United States and the State of Montana; Count 111, appellant was 

denied freedom of expression and speech in violation of his 

rights under the United States Constitution and Constitution of 

the State of Montana; Count IV, that the libel alleged in Count I 

violates the privileges and immunities clause and the equal protection clause of the United States Constitution; Count V, that 

any statutory privilege given by legislature is contra to Montana 

and United States Constitutions. 

Before getting into a discussion of the individual counts of 

appellant s proposed amended complaint , respondent asserts as a 

general matter that appellant's motion to amend should be denied 

on the ground that justice would not be served through the 

granting of it. In support of this argument the respondent 

points out that, as a member of the collective bargaining unit, 

the appellant agreed to exercise the grievance procedure to 

settle all disputes alleging breach, misinterpretation or 

improper application of the terms found in the collective 

bargaining agreement. 

The official state policy, relating to collective bargaining 

agreements, is found in section 39-31-101, MCA: "it is the 

policy of the State of Montana to encourage the practice and procedure of collective bargaining to arrive at friendly adjustment 

of all disputes between public employers and their employees. " 
As correctly pointed out by the respondent, this Court has looked 

to the construction placed on the National Labor Relations Act by 

the federal courts as an aid to interpretation of the Montana 

Public Employees Collective Bargaining Act. See, for example, 

State ex rel. Department of Highways v. Public Employees Craft 

Council (1974), 165 Mont. 349, 529 P.2d 785. 

Section 39-31-306(2), MCA, of the Montana Public Employees 

Collective Bargaining Act, states that a collective bargaining 

agreement may contain: "a grievance procedure culminating in 

final and binding arbitration of unresolved grievances and 

disputed interpretations of agreements." The collective 

bargaining agreement of Eastern Montana College contained such a 

provision in this case. See, section 12.100, et seq. 

Finally, section 39-31-306 (3) 1 MCA, provides that: 

" [a] n agreement be tween the public 

employer and a labor organization shall be 

valid and enforced under its terms when 

entered into in accordance with the provisions 

of this chapter and signed by the chief 

executive officer of the state or political 

subdivision or Commissioner of higher education or his representative ." 

As correctly noted by the respondent, the federal courts, 

construing the Federal National Labor Relations Act, have enunciated a strong policy favoring arbitration of labor disputes and 

requiring contract grievance procedures to be exhausted prior to 

the commencement of a lawsuit. See, for example, Republic Steel 

Corporation v. Maddox (1965)r 379 U.S. 650, 652-653, 85 S.Ct. 

614, 616-17, 13 L.Ed.2d 580, wherein Justice Harlan stated: 

"As a general rule in cases to which federal 

law applies, federal labor policy requires 

that individual employees wishing to assert 

contract grievances must attempt use of the 

contract grievance procedure creed upon by 

employer and union as the mode of redress. If 

the union refuses to press or only perfunctorily presses the individual Is claim, differences may arise as to the forms of redress 

then available. (Citations omitted .) But 

unless the contract provides otherwise, there 

can be no doubt that the employee must af ford 

the union the opportunity to act on his 

behalf . Congress has expressly approved 

contract grievance procedures as a preferred 

method for settling disputes and stabilizing 

the 'common lawt of the plant. (Citations 

omitted. ) 
"Union interest in prosecuting employee 

grievances is clear. Such activity compliments the union's status as exclusive 

bargaining representative by permitting it to 

participate actively in the continuing administration of the contract. In addition, 

conscientious handling of grievance claims 

will enhance the union's prestige with 

employees. Employer interests, for their 

part, are served by limiting the choice of 

remedies available to aggrieved employees. 

And it cannot be said, in the normal 

situation, .- that contract grievance procedures 

are inadequate -- to protect the interests --- of an 

aggrieved employee -- until the- -- employee - has 

attempted to implement theprocedures - - and 

found them so. supplied. ) --- - 

"A contrary rule which would permit an individual employee to completely sidestep available 

grievance procedures in favor of a lawsuit has 

little to commend it. In addition to cutting 

across the interests already mentioned, it 

would deprive employer and union of the ability to establish a uniform and exclusive 

method for orderly settlement of employee 

grievances. If a grievance procedure cannot 

be made exclusive, it loses much of its 

desirability as a method of settlement. A 

rule creating such a situation 'would inevitably exert a disruptive influence upon both 

the negotiation and administration of collective agreements. t (Citations omitted. ) " 

Only in those cases where it is certain that the arbitration 

clause contained in a collective bargaining agreement is not 

susceptible to an interpretation that covers the dispute is an 

employee entitled to sidestep the provisions of the collective 

bargaining agreement. See, Torrington Company v. Metal Products 

Workers Union Local 1645 (2nd Cir. 1966)r 362 F.2d 677. The 

respondent argues that the same considerations and policies which 

mandate the use of the grievance and arbitration procedures under 

the federal act apply equally to disputes which arise under the 

State Public Employees Collective Bargaining Act. 

All the allegations contained in the appellant ' s proposed 

amended complaint revolve around his removal as chairman of the 

English Department at Eastern. The argument boils down to 

whether proper procedures were used. Such a contention most 

definitely falls within the collective bargaining agreement's 

definition of "grievance ," as : "an allegation by a faculty 

member . . . that there has been a breach, misinterpretation or 
improper application of the terms of this agreement by the 

administration." To allow a member of the collective bargaining 

unit to completely sidestep available procedures would, just as 

under federal law, exert a disruptive influence upon both the 

negotiation and administration of collective bargaining 

agreements and effectively deprive employers and unions of the 

ability to establish a uniform and exclusive method for the 

orderly settlement of employee grievances . The respondent contends that because the appellant has had 

the benefit of the collective bargaining agreement, and yet 

chooses to ignore the contractual grievance procedure, j ustice 

would not be served by condoning his violation of the agreement 

and allowing him leave of court to amend his complaint and state 

additional grievances against respondent, McRae , and the proposed 

new defendants. 

In answer to the respondent the appellant argues that the 

grievance procedures contained in the collective bargaining 

agreement need only be followed in contractual disputes. The 

appellant urges that the issue in this case does not center on a 

contractual dispute but, rather, on a violation of a 

constitutionally protected right. Appellant proceeds to develop 

this argument by first pointing out that constitutional provisions cannot be modified by statute. See, No11 v. City of 

Bozeman (1975), 166 Mont. 504, 534 P.2d 880, and Madison v. 

Yunker (1978), 180 Mont. 54, 589 P.2d 126. Appellant concludes 

by stating that constitutional rights cannot be modified by private contract. Such a contract would be unenforceable. 

This result finds support in section 1-3-204, MCA: "Waiver 

of benefit of a law. Anyone may waive the advantage of a law 

intended solely for his benefit. But a law established for a 

public reason cannot be contravened by a private agreement." 

The rule that a law established for a public purpose cannot 

be contravened by a private agreement is also supported in the 

case law. See, for example, New Silver Bell Mining Company v. 
County of Lewis and Clark (1955), 129 Mont. 269, 284 P.2d 1012; 

and State ex. rel. Neiss v. District Court (1973), 162 Mont. 

324, 511 P.2d 979. 

The appellant's point is that his right to litigate the 

constitutionality of the procedures used in removal of his title 

cannot be limited by contractual agreement. Although the law 

cited by the appellant is correct, the premises upon which it is 

based is here called into question. 

The issue to be determined is whether this is, in fact, a 

violation of a constitutionally protected right, or merely a 

contractual dispute. The answer to that question follows in connection with consideration of the individual counts of the proposed amended complaint. 

With these introductory matters completed, attention is 

directed to the individual counts which appellant sought to 

incorporate into the act ion via amendment of his complaint. 

The proposed Count I1 alleges that the appellant was deprived 

of constitutional due process in that the memorandum which led to 

his dismissal as chairman placed in issue his good name, 

reputation, honor and integrity without giving him notice or 

opportunity to be heard. In support of this allegation, 

appellant relies on Board of Regents v. Roth, (1972)r 408 U.S. 

564, 92 S.Ct. 2701, 33 L.Ed.2d 548, and Perry v. Sindermann 

(1972), 408 U.S. 593, 92 Sect. 2694, 33 L.Ed.2d 570. 

These authorities, and the numerous others cited by appellant 

in the totality of the briefing he has submitted, are subject to 

the factual distinction that they involved summary dismissals 

from public employment, or the equivalent thereof, which is not 

the case here. Although such distinction may be one of degree 

only, it is nevertheless pertinent in determining whether any 

requirement of due process has been fulfilled. 

" 'Due process, unlike some legal rules, is not a technical 

conception with a fixed content unrelated to time, place and 

circumstances. " Cafeteria and Restaurant Workers v. McElroy 
" [Dlue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer 

"The fundamental requirement of due process is the opportunity to 

be heard 'at a meaningful time and in a meaningful manner.'" 

Mathews v. Eldridge (1976), 424 U.S. 319, 333, 96 S.Ct. 893, 902, 

A determination of whether the procedures followed in any 

given case is constitutionally sufficient requires an analysis of 

the governmental and private interests that are affected by the 

action taken. As stated in Arnett v. Kennedy (1974), 416 U.S. 

134, 167, 168, 94 S.Ct. 1633, 1651, 40 L.Ed.2d 15; by the united 

States Supreme Court: 

"Having determined that the constitutional 

guarantee of procedural due process applies to 

appellee's discharge from public employment, 

the question arises whether an evidentiary 

hearing, including the right to present 

favorable witnesses and to confront and examine adverse witnesses, must be accorded 

before removal. The resolution of this issue 

depends on a balancing process in which the 

Government1 s interest in expeditious removal 

of an unsatisfactory employee is weighed 

against the interest of the affected employee 

in continued public employment. (Citations 

omitted.) As the Court stated in Cafeteria 

and Restaurant Workers v. McElroy, [supra] 

'consideration of what procedures due process 

may require under any given set of circumstances must begin with a determination of the 

precise nature of the government function 

involved as well as of the private interest 

that has been affected by governmental 

action. "I 

In short, due process is not a fixed concept but, rather, is 

one which must be tailored to each situation in such a way that 

it meets the needs and protects the interests of the various parties involved. The due process requirements applicable to 

someone destined to suffer the grievous loss associated with 

termination of employment are different from the due process 

requirements necessary to protect the interests of a college professor who suffers the loss of his title as department chairman 

and the nominal stipend which accompanies it. 
It is concluded that the governmental interest in orderly 

administration necessary to prevent disruption of the educational 

process is sufficient to allow summary dismissal of department 

chairmen when the requirements of due process are accommodated 

through the grievance and arbitration procedure outlined in section 12.000, et seq. , of the collective bargaining agreement. 

These procedures give aggrieved faculty members the opportunity 

to challenge any alleged breach, misinterpretation or improper 

application of the terms of the collective bargaining agreement. 

Although they were not exercised, these procedures were available 

to the appellant to seek reinstatement as department chairman. 

Such a grievance procedure af fords the appellant an opportunity 

to be heard at a meaningful time and in a meaningful manner. The 

requirements of due process are thereby met. It follows that 

Count I1 does not set forth a cognizable claim and permitting its 

incorporation into the action by the requested amendment would be 

a futile act. 

Count I11 of the proposed amended complaint is grounded upon 

the allegation, stated in general terms, that appellant was 

terminated and discharged as a direct result of the exercise of 

his cons ti tutionally guaranteed freedom of speech and express ion 

with respect to the conduct of the department and the 

administration. It also alleges in a reverse form that the termination and discharge concerned proximately results in a denial 

of his right to freedom of speech and expression. 

It is settled that a valuable governmental benefit, such as a 

job, may not be denied on a basis which infringes ones constitutionally-protected interests, especially ones interest in 

freedom of speech. Perry v. Sindermann, supra, and 42 U.S.C. 

section 1983 (Civil Rights Statute). 

The problem with Count I11 is, first, whether removal of 

appellant from his title and stipend as chairman of the English 

Department, but not from his job, constitutes a valuable governmental benefit which falls under the protection accorded in Perry 
mitting its incorportion into the action by the requested amendment would be a futile act. However, this does not mean that the 

appellant is not entitled to replead his proposed Count I11 in 

order to meet the requirement of specificity in its allegations 

through the medium of a proper motion and notice and hearing 

thereon. 

In view of this, the question of whether a chairmanship title 

does constitute a valuable governmental benefit is not reached 

or determined at this time. Likewise, the question of the 

effect, if any, of the grievance procedure provided in the 

collective bargaining agreement as the same applies to Count I11 

cannot be determined unless repleading is accomplished. 

Counts IV and V of the proposed amended complaint are different hues of a constitutional challenge founded upon the privileges and immunities clauses and equal protection clauses of the 

Montana and Federal Constitutions . In substance, they comprise a 

challenge to the validity of the statutory privilege accorded to 

a publication made in the proper discharge of a public duty. The 

efficacy of this privilege is the basis of the defense asserted 

by respondent McRae and, also, the basis for his motion for summary judgment lodged against both the action stated in the original complaint and Count I of the proposed amended complaint. 

Consequently, they will all be treated together in the discussion 

which follows: 

Libel is defined in Section 27-1-802, MCA, as: "a false and 

unprivileged publication . . . which exposes any person to 

hatred, contempt, ridicule, or obloguy or which causes him to be 

shunned or avoided or which has a tendency to injure him in his 

occupation." Section 27-1-804, MCA, in turn, defines what publications are privileged: "A privileged publication is one made : 

(I) In the proper discharge of an official duty . . ." 

In the case of Storch v. Board of Directors of Eastern 

Montana Region Five Mental Health Center (1976), 169 Mont. 176, 

181-182, 545 P.2d 644, 647-648, this Court had the occasion to 
v. Sindermann, supra; and, second, whether the allegations of 

Count 111, as presently framed, satisfy the requirements of specificity applicable to a claim of a denial of first amendment 

privileges. 

The memorandum issued by Dean McRae, the alleged offensive 

portion of which is incorporated into Count I11 by reference from 

Count I of the amended complaint, gave as reasons for appellant's 

loss of title his inadequate leadership, his failure to bring a 

polarized department into a smoother functioning unit, the fact 

that acrimony had increased within the English Department, his 

failure to effectively and conscientiously handle the administrative detail associated with the office, and his failure to properly coordinate the newly instituted mass placement process for 

freshman composition. 

Although these reasons are alleged to be false, nowhere are 

they offset by allegations in Count 111, specifying what speech 

or expression was exercised by the appellant which is entitled 

to constitutional protection as having a proximate relevance to 

the loss of his title of chairinan of the English Department. 

As stated in Rotolo v. Borough of Charleroi (3rd Cir. 1976) 

"The allegations in the complaint strike us as 

vague and conclusory. They fail to indicate, 

when, where, and how Rotolo had 'exercised his 

first amendment privileges, ' rendering it 

impossible to determine if indeed his activity 

was the sort afforded protection under the 

first amendment and whether it had any relevance to the termination of his employment. 

The allegations state no facts upon which to 

weigh the substantiality of the claim; they do 

not aver the content of the alleged first 

amendment exercise. " 

See, also, Kennedy v. H & M Landing, Inc. (9th Cir. 

1976)r 529 F.2d 987; Kauffman v. Moss (3rd Cir. 197O), 420 

F.2d 1270, cert. denied (1970), 400 U.S. 846; Negrich v. Hohn 

(3rd Cir. 1967), 379 F.2d 213; and Valley v. Maule (~.Conn. 

It is concluded that Count I11 of the amended complaint, as 

presently framed, does not set forth a cognizable claim and per- 
consider this code section and it stated: 

"A privileged communication is one which, except for the circumstances under which it is 

made, may be defamatory and actionable. 

(Citation omitted. ) 

"While some of the quoted subsections do mention malice the pertinent subsection 1, says 

nothing about qualified privilege. Rather it 

constitutes an absolute privilege with the 

only requirement being that the intradepartment communication be one rendered while 

engaged in an 'official duty.' There can be 

no doubt that the hiring and firing of 

employees is part of the 'official duty1 of 

the Montana Regional Health Centers. 

"Whether statements made by such public off icers in relation to the hiring and firing of 

employees may be subject to absolute privilege 

has been answered in the affirmative many 

times. Under facts similar to the instant 

case, the United States Supreme Court in Barr 

v. Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 3 

L.Ed.2d 1434, 1441, stated that insofar as a 

public officer was acting within the scope of 

his authority his communication was absolutely 

privileged. (Citations omitted. ) The Court 

went on to say why an absolute privilege as 

essential in such a circumstance, quoting 

approvingly from Judge Learned Hand 's decision 

in Gregoire v. Biddle, 2 Cir., 177 F.2d 

579, 581: 

"I. . . it is impossible to know whether the 

claim is well founded until the case has been 

tried, and that to submit all officials, the 

innocent as well as the guilty, to the burden 

of a trial and to the inevitable danger of its 

outcome, would dampen the ardor of all but the 

most resolute, or the most irresponsible, in 

the unflinching discharge of their duties 1 ... 

"Since the internal communication was within 

the proper discharge of an official duty, it 

enjoyed an absolute privilege and could therefore not be the subject of libel action." 

To put the meaning of --- Storch in perspective for application 

to this case, certain provisions of the collective bargaining 

agreement and a Montana code section should be noted. 

The provision in the collective bargaining agreement which 

allows the dean to remove department chairmen, and implements 

procedures for the selection of a new chairman, is authorized 

under section 20-25-301, MCA. Subsection 11 of this statute 
allows the regents to: "appoint a president and faculty for each 

of the institutions of the system, appoint any other necessary 

officers, agents, and employees, and fix their compensation ." 

Subsection 15, in turn, allows the regents to: "confer, at the 

regents' discretion, upon the president and faculty of each of 

the units of the system for the best interest of the unit such 

authority relating to the immediate control and management, other 

than financial, and the selection of teachers and employees." 

The collective bargaining agreement provides in connection 

with transfer of title, being section 9.100(F)(l)(c): 

"1. The appropriate Dean will implement procedures for the selection of a new academic 

administrative unit Chairperson when one of 

the following conditions occurs : 

"c. The Dean notifies all members of the unit 

and the Chairperson that in his or her 

judgment a change should take place ." 

The collective bargaining agreement also provides a grievance 

procedure under section 12.100. This section defines 

"grievance," as: "An allegation by a faculty member or the 

A.A.U.P. that there has been a breach, misinterpretation or 

improper application of the terms of this agreement by the 

administration." This section also provides that: "A grievance 

must be filed by a faculty member of the A.A.U.P. within thirty 

(30) days from the date the grievable event was determined. Any 

grievance not processed in accordance with the time limit specified herein shall for the purposes of this agreement be deemed 

null and without further recourse." The collective bargaining 

agreement then details a procedure for the settlement of grievances. In the event that the procedure is followed and the 

grievance remains unsettled, binding arbitration is provided for 

under section 12.200. 

Just as this Court in -- Storch found that the hiring and firing 

of employees was an official duty of the Montana Regional Health 

Centers, there seems to be little question in this case that the 
statutory authority conferred upon the board of regents under 

section 20-25-301(15) MCA, as well as the enumerated duty 

found in section 9.100(F)(l)(c) of the collective bargaining 

agreement giving the appropriate dean power to remove departmental chairpersons, makes the memorandum in question an official 

duty subject to absolute privilege under the statute. 

The -- Storch decision also points out two important concepts: 

First of all, once a communication is labeled as privileged, it 

is not defamatory and therefore not actionable. Secondly, the 

absolute privilege arises when the intradepartment communication 

is rendered during the course of an official duty, 

The appellant raises a number of issues questioning the 

propriety of the defense of absolute privilege: 

1. First of all, he asserts "a constitutional right to 

employment." In light of this right to employment, the appellant 

argues that due process requires a notice and opportunity to be 

heard before anyone can be deprived of such a property right. 

Appellant concludes by stating that any dismissal without such 

notice and opportunity to be heard would not be a proper 

discharge of an official duty, and therefore no statutory privilege would arise. 

The merits of the due process assertion have already been 

discussed in connection with Count I1 of the proposed amended 

complaint and will not be repeated here. Suffice it to say that 

appellant's view does not prevail. 

2. The second issue raised by the appellant in opposition to 

the motion for summary judgment is that, in order for there to be 

a proper discharge of an official duty which gives rise to the 

statutory privilege, there must be compliance with the requirements of the collective bargaining agreement. Appellant raises 

three alleged violations of the collective bargaining agreement: 

First, that there was no notification to all members of the 

unit under section 9.100(F)(l)(c). 

Secondly, appellant argues that this section of the col- 
lective bargaining agreement requires only that the dean give 

notice that a change should take place. There is no requirement 

that the dean give any reason necessitating a change. To give 

such a reason is beyond the proper discharge of an official duty. 

Thirdly, the appellant argues that the collective bargaining 

agreement only requires a notice from the dean that a change 

should take place --- not a judgment that the removal of the 

department chairperson has taken place. 

In support of the first of these contentions, appellant 

states that evidence to be set forth in affidavit form will 

clearly show that the requirement of notification was not 

followed by the dean until some Later period of time. 

Appellant's affidavits filed February 13 and 24, 1981, make no 

mention of compliance with this requirement. 

The respondent notes in this regard that the af fidavits filed 

by Dr. Larry Jones and President Van de Wetering show that the 

respondent was acting within the scope of his official duties and 

did discharge those duties in a proper manner when he removed the 

respondent's title of chairman of the English Department. The 

memorandum which is the basis of this lawsuit also contained a 

notation at the bottom that photocopies were sent to members of 

the Departments of English, Philosophy , Humanities and Religious 

studies. Finally, in this regard, the collective bargaining 

agreement only requires that the dean notify all members of the 

unit and the chairperson that a change should take place. There 

is no requirement that such notice to the unit and the chairperson be contemporaneous. It is evident here that notification of 

all unit members did take place and the only evidence in the 

record seems to indicate that the notification was proximate to 

the notification given to the appellant. 

Turning to appellant's second argument we find the contention 

raised that because the collective bargaining agreement does not 

specifically require the dean to give reasons for the removal of 

a department chairman, to give such reasons would violate the 
collective bargaining agreement and would not be a proper 

discharge of an official duty. Although the respondent does not 

address this issue beyond reference to the affidavits which note 

that the dean did properly discharge his duties under the collective bargaining agreement, appellantls argument would appear to 

be without merit. It would seem to be necessarily implied in any 

requirement of notification before removal that the reasons sup 

porting such a determination be given to the outgoing chairman to 

put him on notice of why the change is necessary. 

The third, and final, argument which appellant raises in support of his contention that the requirements of the collective 

bargaining agreement were not met is that the notification only 

requires a judgment that the change should take place, rather 

than a judgment that the determination has taken place. Once 

again, the respondent does not address this argument beyond citation to the two supporting affidavits which note that the respondent properly discharged his duties under the collective 

bargaining agreement. 

The appellant's argument here is based on a semantic 

interpretation of the definition to be given to the word, 

"should," as contained in the collective bargaining agreement. 

Appellant believes that "should," as used in this case, means 

"shall," and is therefore not a final determination. As used in 

this case, however, "should" does appear to be a final 

determination. 

Once the dean notifies the unit members and the department 

chairperson that a change should take place, the procedures for 

selection of a new department chairperson are implemented. These 

procedures are found at section 9 .lo0 (F) (1) (a) through (f) . The 

procedures for selection of a new department chairperson do not 

contemplate any consideration of the dean1 s determination that a 

change in the chairmanship of the department should take place. 

Such a determination by the dean appears to be final and the 

correct avenue of appeal from such a decision would be the 
grievance and arbitration procedures spelled out at sect ion 

12.000 of the collective bargaining agreement. The procedures 

followed by the dean do not appear to violate the collective 

bargaining agreement. 

3. The third contention raised by the appellant in opposition to respondent's motion for summary judgment is that libel is 

a violation of the Montana code, and therefore it would not be a 

proper discharge of an official duty to libel someone --- 

therefore, no statutory privilege would arise. The circular 

reasoning involved in this argument is apparent. Once it is 

determined that the statement was made in the proper discharge of 

an official duty, it is considered privileged and no longer falls 

within the definition of libel. Not falling within the definition of libel, such a statement would not be an actionable tort. 

4. The fourth argument which the appellant raises in opposit ion to respondent ' s mot ion for summary judgment is that reliance 

upon any statute granting public officials absolute privilege and 

thereby making them immune from prosecution for libel arising 

during the proper discharge of an official duty conflicts with 

the governmental immunity statute, and is therefore unconsitutional in light of Art. 11, Sec. 18, 1972 Mont.Const. This 

section provides that there shall be no sovereign immunity except 

as specifically provided by law and two-thirds vote of each 

House. 

Section 2-9-011 (d) , MCA, addresses governmental immunity, 

and states in the definitional section: "'Personal injury' means 

any injury resulting from libel, slander, malicious prosecution, 

or false arrest, any bodily injury, sickness, disease, or death 

sustained by any person and caused by an occurrance for which the 

State may be held liable." Sections 2-9-111 through 2-9-114, 

MCA, spell out the immunity which the legislature has seen fit to 

grant to the legislative body, the members, officers and agents 

of the judiciary, the governor's off ice and local government 

officials discharging official duties associated with approving 

- 17 - 
or vetoing ordinance, or while involved in legislative activity . 

Section 2-9-305, MCA, spells out when the governmental entity is 

to be joined as a defendant and provides for the immunization and 

indemnification of employees whose negligence or wrongful act, 

error or omission, or other actionable conduct gave rise to the 

claim --- unless the claim is based on an intentional tort or 

felonious act of the employee. 

The appellant argues that these code sections modify and 

explain the provisions of the libel statute and show that the 

immunity granted in libel actions is not absolute because it does 

not cover torts that are intentional or felonious. The respondent counters this argument by pointing out that section 

2-9-101(a), MCA, provides: 

" 'Claim' means any claim against a governmental entity, for money damages only, which any 

person is legally entitled to recover as 

damages because of personal injury or property 

damage caused by a negligent or wrongful act 

or omission committed by any employee of the 

governmental entity while acting within the 

scope of his employment, under circumstances 

where the governmental entity if a private 

person, would be liable to the claimant for 

such damages under the laws of the state." 

In the case of State ex rel. Byorth v. District Court 

(1977)r 175 Mont. 63, 67, 572 P.2d 201, 203, this Court stated: 

"the Tort Claims Act attaches liability to the State in the same 

manner and to the same extent that liability attaches to a private person." There can be no legal entitlement to recovery for 

liability when the action complained of does not fall within the 

definition of a tort. Before a writing is considered an 

actionable libel, the Montana statute requires that it be unprivileged. Once the determination is made that the writing is privileged, no actionable tort exists and there is no legal 

entitlement to recovery. The two code sections are complementary, and no constitutional violation exists. 

5. The fifth argument which the appellant raises in opposition to the respondent's motion for summary judgment is that the 

United States Supreme Court, in the case of Butz v. Econmou 
(1978)r 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895, impliedly 

overruled its earlier decision in Barr v. Matteo, supra. 

Appellant argues that because this Court in Storch, supra, relied -- 

on Barr in support of its decision, Storch is no longer good law. 

The Butz case arose under 42 U.S.C., section 1983, and considered 

the issue of whether a federal official is personally immune if, 

in the course of enforcing a statute, he infringes someone's 

constitutional rights. Federal officials may not, with impunity, 

discharge their duties in a way that is known to them to violate 

the constitution or transgress a clearly established cons titutional rule. 

In answer to this argument the respondent first points out 

that this lawsuit arises under state law and, as such, this 

Court has the final say as to the state law governing the suit. 

This rule is clearly implied in the holding of Erie Railroad v. 

Tompkins (1938), 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 

1188: 

"Except in matters governed by the Federal 

Constitution or by Acts of Congress, the law 

to be applied in any case is the law of the 

State. And whether the law of the State shall 

be declared by its Legislature in a statute or 

by its highest Court in a decision is not a 

matter of federal concern. There is no 

federal general common law. Congress has no 

power to declare substantive rules of common 

law applicable in a State whether they be 

local in their nature or 'general, be they 

commercial law or a part of the law of torts. 

And no clause in the Constitution purports to 

confer such a power upon the federal courts." 

The Storch decision being the latest pronouncement by this Court 

on the issue of statutory privilege in libel actions, the decision is still good law. 

In Storch, this Court stated that in order to take advantage 

of the absolute privilege provided under section 27-1-804 (I), 

MCA: 

"the only requirement [is] that the intradepartment communication be one rendered while 

engaged in an 'official duty. '" Storch, 169 

Mont. at 181, 545 P.2d at 647. 

If the respondent's actions fall within this exception, then the 
memorandum in question would be absolutely privileged within the 

statute and an absolute defense to the libel action found in the 

original complaint and Count I of the amended complaint. 

Secondly, the respondent points out that the Butz case did 

not overrule -- Barr . The cases involved different issues. In 

-- 

Barr, the question was whether a federal officer could be held 

liable for the tort of defamation based on a publication issued 

within the official's authority. Butz, on the other hand, was a 

section 1983 action, which considered the issue of a federal 

official's personal immunity where, in the course of enforcing a 

statute, the federal official infringes someone's constitutional 

rights. Moreover, this Court in Butz recognized that its decision 

was consistent with -- Barr. At 438 U.S. 507, the Court stated: 

"We therefore hold that, in a suit for damages 

arising from unconstitutional action, federal 

executive officials exercising discretion are 

entitled only to the qualified immunity specified in Scheuer [Scheuer v. Rhodes, 416 U.S. 

2321 subje~~othose exceptional situations 

where it is demonstrated that absolute immunity is essential for the conduct of the 

public business. 

"The Scheuer principle of only qualified immunity for constitutional violations is consistent with Barr v. Matteo, . . ." 

Justice Rehnquist, joined by the Chief Justice, Justice 

Stewart and Justice Stevens, in a separate opinion, stated the 

following at 438 U.S. 522: 

"Here the Court at least recognizes and reaffirms the minimum proposition for which Barr 

stands--that executive officials are absolutely immune at least from actions predicated 

on common-law claims as long as they are 

acting within the outer limits of their 

authority. (Citation omitted. ) Barr is 

distinguished, however, on the ground that it 

did not involve a violation of 'those fundamental principles of fairness embodied in 

the constitution. ' " (Citation omitted .) 

From this language we can see that Barr, relied upon by this 

Court to support its decision in Storch, - was not overruled by the 

United States Supreme Court in Butz. Additionally, Storch is 

within the modern trend of the law which extends to lower public 

officials an absolute privilege in regard to statements made in 
connection with the hiring and discharge of employees. See, 26 

ALR 3rd 492. 

As a final contention, appellant urges that reliance upon 

Storch would be misplaced in this case because, in Storch, the 

plaintiff asked the Court to read into the statute on privileged 

communications that there must be an absence of malice before 

such a defense will arise. No such claim is made in this case; 

therefore, the respondent asserts that reliance on Storch is 

inappropriate because the language cited by the respondent is 

dictum not relating to issues specifically presented to the 

Court. 

The defendant in -- Storch specifically relied on absolute 

privilege under the statute as a complete defense to the libel 

claimed. When the plaintiff attacked the propriety of the 

defense by alleging that the statute requires an absence of 

malice, the Court necessarily had to determine what requirements 

must be met before the defense of absolute privilege arises. The 

resolution of the issue was necessary to the Court's decision and 

theref ore not dictum. 

6. Appellant alleges that it is improper in a libel case to 

grant a motion for summary judgment and dismissal in light of 

Art. 11, Sec. 7, 1972 Mont.Const. This provision gives to juries 

the right to determine both the law and the facts in a libel 

case. Appellant argues that the jury here must be given the 

right to determine whether the defendant can properly rely upon 

the absolute privilege under section 27-1-804, MCA. 

The issue has been clearly settled by this Court in Griffin 

v. Opinion Publishing Company (1943), 114 Mont. 502, 138 P.2d 

580, and Manley v. Harer (1928), 82 Mont. 30, 264 P. 937. In 

Manley, the Court held that where there is a failure to establish 

an essential element of the cause of action, the case becomes one 

of law for the Court. See, also Cooper v. Romney (1914), 49 

Mont. 119, 141 P. 289. 

7. Appellant raises one final argument in opposition to 
respondent's motion for summary judgment . The appellant contends 

that summary judgment would not be proper because a disputed 

question of fact is outstanding. Based on appellant's affidavit, 

briefs and pleadings, it is argued that the question of whether 

appellant's actions were a proper discharge of an official duty 

is still disputed. 

In the case of State ex rel. City Motor Company v. District 

Court (1974)r 166 Mont. 52, 55, 530 P.2d 486, 487, this Court 

gave citation to Moore's Federal Practice Digest and noted that a 

party opposing a motion for summary judgment: "must present 

facts in proper form--conclusions of law will not suffice; and 

the opposing party's facts must be material and of a substantial 

nature, not fanciful, frivolous, gauzy, nor merely suspicions ." 

Rule 56 (e) of the Montana Rules of Civil Procedure provides that 

supporting and opposing affidavits, "shall be made on personal 

knowledge, shall set forth such facts as would be admissible in 

evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein . . . [and shall 

show] that there is a genuine issue for trial." Rule 56(e) 

F4.R.Civ.P. Rule 56(c) states that a motion for summary judgment, 

"shall be rendered forthwith if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with 

the affidavits, if any, show that there is no genuine issue as to 

any material fact and that the moving party is entitled to a 

judgment as a matter of law." Rule 56(c) M.R.Civ.P. 

In the case of Harland v. Anderson (1976), 169 Mont. 447, 

450, 548 P.2d 613, 615, this Court noted: 

"This Court has on many occasions commented 

upon the nature of the burden of proof 

imposed on the moving party under Rule 56. 

The Court has consistently held that the party 

moving for summary judgment has the burden of 

showing the complete absence of any genuine 

issue as to all facts which are deemed 

inaterial in light of those substantive principles which entitled him to a judgment as a 

matter of law. We have also held the rule 

operates to hold the movant to a 'strict 

standard1 and that: 

"'. . . To satisfy his burden the movant must 

make a showing that is quite clear what the 
truth is, and that excludes any real doubt as 

to the existence of any genuine issue of 

material fact. . .I1' Kober & Kyriss v. Stewart 

& Billings Deaconess Hospital, 148 Mont. 

117, 122, 417 P.2d 476, 478. 

"The district court does not function to adjudicate genuine issues of fact on a motion for 

summary judgment cause--it merely determines 

whether such issues exist. Thus the party 

opposing the motion will be indulged to the 

extent of all inferences which may be reasonably drawn from the offered proof. Mally v. 

Asanovich, 149 Mont. 99, 105, 423 P.2d 294; 

Johnson v. St. Patrick's Hospital, 148 Mont. 

125, 417 P.2d 469." 

In determining whether disputed questions of fact remain 

outstanding in this case it should be kept in mind that the bare 

assertions found in appellant's briefs are not sufficient to 

defeat a motion for summary judgment. Likewise, the conclusory 

statements found in appellant's affidavits of February 13 and 24, 

to the effect that his dismissal: "was not done in the proper 

discharge of duty in that it violated constitutional rights, both 

State and Federal, was not done in accordance with the requirements of the Collective Bargaining Agreement and was not done 

within any superseding statutory requirements . . ." are not 

sufficient to defeat a motion for summary judgment. The 

appellant's conclusions of law would clearly not be admissible 

into evidence at trial, and are not properly before this Court. 

See, Rule 56(e) M.R.Civ.P. 

It is concluded that the alleged libelous communication was 

absolutely privileged under the statute, which is cons titutionally valid, as a consequence of which there is no 

outstanding issue of fact, and the respondent is entitled to 

have his motion for summary judgment granted, effective against 

the cause stated in the original complaint and repeated as Count 

I in the proposed amended complaint. 

We turn now to a consideration of the remaining constitutional attacks against the statutory privilege found in Counts IV 

and V of the proposed amended complaint. Count IV contends that 

reliance on this statutory privilege is a violation of the privileges and immunities clause of the federal constitution, as well 
as the equal protection clause, as it permits a libel which would 

be actionable against any other person. Count V alleges that 

reliance on the statutory privilege is unconstitutional . 

Appellant's contention in Count IV of the proposed amended 

complaint is a novel interpretation of the constitution, but one 

without merit. 

The privileges and immunities clause of the constitution prohibits a state from discriminating against the citizens of other 

states where there is no substantial reason for the discrimination beyond the fact that they are citizens of other states. See 

Toomer v. Witsell (1948), 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 

1460. The inquiry in each case is whether reasons exist for the 

discrimination, and whether the degree of discrimination bears a 

close relation to the reasons. 

The statutory privilege at issue in this case cannot possibly 

violate the privileges and immunities clause. All persons, be 

they citizens of Montana or citizens of any other state bringing 

a libel action in this state, are equally subject to the statutory defense . 

Turning to the issue of equal protection, that issue is 

analyzed by using a two-step process. Initially, the Court must 

consider the nature of the classification and the individual 

interests affected, to determine what level of scrutiny is applicable to the classifications. Memorial Hospital v. Maricopa 

County (1974), 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306. 

Unless the classification touches on a fundamental right (such as 

religious freedom, freedom of speech or association, privacy or 

right to travel), or is drawn upon an inherently suspect 

distinction (such as race, religion or alienage), the constitutionality of the statutory discrimination is presumed; the only 

requirement being that the classification be rationally related 

to a legitimate state interest. New Orleans v. Dukes (1976)r 427 

U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511. "Rationally related" 

means that the classification will be upheld if it has - 

any 
rational basis. See, Lindsley v. Natural Carbonic Gas Co. 

No fundamental right or suspect class is at issue here, so 

the Court should apply the rational relation test. The rational 

basis for recognizing the statutory privilege is obvious, and has 

already been discussed. See Gregoire v. Biddle, supra, quoted in 

Storch . 

Equal protection requires that all persons shall be treated 

alike under like circumstances. See, for example Hartford Co. 

v. Harrison (1937)r 301 U.S. 459, 57 S.Ct. 838, 81 L.Ed. 1223. 

As noted above in discussing the privileges and immunities 

clause, the statutory privilege is equally applicable to all who 

are "libeled" by public officials acting within the scope of 

their employment. Count IV of the proposed amended complaint has 

no basis in law. 

The constitutional issues raised by the appellant in Count V 

are essentially variations on a theme which has already been 

considered. The appellant cites the case of No11 v. City of 

Bozeman (1975), 166 Mont. 504, 507, 534 P.2d 880, 881, wherein 

this Court said: 

"With reference to the subjects upon which the 

Constitution speaks, its declarations are 

binding upon the legislature; State ex rel. 

Pierce v. G~wdy, 62 Mont. 119, 203 P. 1115. 

Constitutional provisions are conclusive upon 

the legislature and prevent the enactment of 

any law which extinguishes or limits the 

powers conferred by the Constitution; State 

ex rel. Bonner v. Dixon, 59 Mont. 58, 195 P. 

841; State ex rel. DuFresne v. Leslie, 100 

Mont. 449, 50 P.2d 959." 

Appellant argues that, in light of Art. 11, Sec. 18, 1972 Mont. 

Const. which abolishes immunity for governmental entities, 

"except as may be specifically provided by law by a two-thirds 

vote of each House of the Legislature," the legislature's attempt 

to expand the constitutional privilege in libel actions under 

section 27-1-804, MCA, is unconstitutional . Appellant contends 

that this sta1:utorily created privilege would not stand up to 

appellant's clear constitutional right to be protected against 
libel under Art. 11, Sec. 7, 1972 Mont.Const. This provision 

gives every person the right to speak freely and publish whatever 

they please on any subject, but makes them responsible for any 

abuse of that liberty. 

Appellant's claims in regard to Count V are clearly without 

merit. The constitution does not define libel, just as it does 

not define the elements which make up any other actionable tort. 

This job is left to the courts and the legislature. Libel has 

always been defined as a false and unprivileged publication. This 

is true under Montana statute, as well as under common law 

principles. If a communication is privileged, it is not an 

actionable libel. Such privileges were established under the 

common law for public policy reasons. See, Gregoire v. Biddle, 

supra. Because such a communication is not a tort, no recognized 

wrong has been suffered which would give rise to a cause of 

action. Count: V of the proposed amended complaint is without 

legal foundation. 

The judgment of the District Court is affirmed. 

We concur: U 

Chief ~ustice \ 
Mr. Justice John C. Sheehy, dissenting: 

I confess at the outset that I do not understand the 

foregoing opinion. Its ratio decidendi escapes me. Rather 

than attempting to refute what is in the foregoing opinion, 

therefore, I will here assert only what I think the rule in 

this case ought to be. 

This case comes to us on essentially two grounds: (1) 

that Aaron P. Small was deprived of due process when he was 

removed as chairman of the English department of Eastern 

Montana College; and (2) that in his removal, he was libelled. 

It is clear that Aaron P. Small was removed as chairman 

of the English department without being afforded due process 

as to his removal, including an evidentiary hearing where he 

would have the right to present favorable witnesses, and to 

confront and examine adverse witnesses. The grievance procedure 

provided in the collective bargaining agreement for the unit 

of which Small was a member is not a sufficient substitute for 

Small's right to come to the courts for protection of his constitutional due process rights. Section 1-3-204, MCA. I 

find no case cited in the foregoing opinion stating otherwise, 

and there could be none. 

In like manner, summary judgment should not be granted 

against Small on his first amendment claims, and his libel 

claims, on the ground of lack of specificity in the pleadings. 

NcRae gave as his reasons for dismissing Small as chairman 

his "inadequate leadership", his "failure to bring a polarized 

department into a smoother functioning unit", "acrimony had 

increased within the English department", and an allegation 

that Small had failed to effectively and conscientiously 

handle the administrative detail associated with his office. 
Small has answered that these allegations are false. What 

more specificity could he at this stage allege, if his 

contention is true that such statements are false? The 

District Court and this Court are applying here the specificity 

requirements of civil right actions under federal law as 

exemplified by Rotolo v. Borough of Charleroi (3rd Cir. 

19761, 532 F.2d 920, 923. In our state court, Small is not 

suing for a deprivation of his federal civil rights, but for 

his constitutionally protected rights under our state and 

federal constitution. In that situation, it should be 

recognized that our pleadings under the Montana Rules of 

Civil Procedure are notice pleadings only and that specificity 

occurs after discovery has been completed. Further, with 

regard to Small's libel action, there is a factual question 

existent as to whether he was discharged pursuant to "official 

action." The pleadings evince an underlying allegation that 

McRae was acting in concert with others to deprive Small of 

his chairmanship. Without further proceedings we cannot 

tell at this point whether "official action" was actually 

involved here or whether there was a drive to impugn his 

teaching and administrative integrity and ability in the 

guise of official action. That is an issue a jury should 

decide. 

For those reasons, I would set aside the summary judgment, 

and let the facts come to light as to which party should receive 

judgment in this case. Therefore, I dissent. 

Justice 
Mr. Justice Daniel J. Shea concurring. 

I agree with the result reached by the majority, but not in 

its reasoning. Clearly, there was no libel. And just as clearly, 

the plaintiff should have exhausted the contract grievance procedures before resorting to the courts.