### No. 81-369 INTHE SUPREME COURTOF THE STATEOF MONTANA 1982

AARON P. SMALL, Plaintiff andAppellant,

VS. 

### ROBERT J. 

### McRAE, Defendantand Respondent.

Appeal from: District Court of the Thirteenth JudicialDistrict, Inand for theCounty ofYellowstone Honorable CharlesLuedke, Judgepresiding. Counsel of Record: ForAppellant: Moses Law Firm,Billings, Montana CharlesF. 

### Moses, Billings,Montana For Respondent: JohnBobinski argued, Helena,Montana J. MichaelYoung, Helena,Montana

Filed: Submitted: May 12,1982 Decided: October 

### 4,1982Mr. 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 thenmoved 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 inconnection therewith addressed and delivered a memorandum to him 

### as a way of notifying him and the otherdepartments of such change in chairmanship, as provided by section9.lo0(F)(1) 

### (c)(Transferof Titles) of the collective bargaining agreement in force at Eastern Montana College atthat 

### time. The reasons cited forthe change included inadequate leadership that failed to bring a polarized department into a smoother-functioning unit, increased acrimonywithinthe department, failuretohandle the administrativefunctions of the office effectivelyand conscientiouslyand, finally, concern over the past and ongoing coordination of the newly-instituted mass placement process forfreshman composition. The memorandum endsby 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 firstlove. My 

### esteem foryou as a teacher of yourdiscipline 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 affectappellant's academic rank, tenure, base salary



### or membership in the collective bargaining unit. Although thecollective 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 filean 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 Stateof Montana; Count 111, appellant

### was denied freedom of expression and speech in violation of his rights under the United States Constitution and Constitution of theStateof Montana; Count IV, thatthe libelalleged inCount I violates the privileges and immunities clause and the equal protection clause of the United States Constitution; Count V, that any statutoryprivilege given by legislature 

### is contra to Montana and United StatesConstitutions. Before getting into a discussionof 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 policyof the Stateof Montana toencourage the practice and procedure of collective bargaining to arrive at friendlyadjustment of all disputes between public employers and their employees.

### "Ascorrectlypointed outby the respondent, thisCourt has looked tothe constructionplaced on the National LaborRelations Actby 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), 165Mont. 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 between the public employer and a labor organization shall be valid and enforced under its 

### terms when entered into inaccordancewith the provisions of this chapter and signed by the chief executive officer of the 

### state 

### or political subdivision or Commissioner of higher education

### or hisrepresentative

# ."

As correctly noted by the respondent, the federal courts, construing the Federal National Labor Relations Act, have enunciated a strongpolicyfavoring arbitrationof labordisputesand requiring contract grievance procedures tobe exhausted prior to the commencement of 

### a lawsuit. See, forexample, 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 individualIs 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 afford 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 contractgrievance procedures 

### are inadequate -- 

### toprotect the interestsof an --- aggrieved employee -- until the- employee has -- - attempted to implement theprocedures - - and found them

### so. supplied.) 

### --- - "A contraryrulewhich would permit an individualemployee tocompletely sidestep available grievanceprocedures infavorof 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 collectiveagreements. t (Citationsomitted.)

### " Only in those 

### cases where it is certain thatthe 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, TorringtonCompany v. Metal Products Workers Union Local 1645 (2nd Cir. 1966)r 362 F.2d 677. The respondent argues that the same considerations and policieswhich mandate the use of the grievance and arbitrationprocedures under the federal act apply equally to disputes which 

### arise under the StatePublicEmployees CollectiveBargaining 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

### orimproper 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 orderlysettlementof 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, justice 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 againstrespondent, McRae

## ,and theproposed

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 centeron a contractual dispute but, rather, on a violation of a constitutionallyprotected 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 constitutionalrights 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, 511P.2d 979. The appellant's point is that his right to litigate the constitutionality of the procedures used inremoval 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 intoquestion. 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 thatquestionfollows inconnection 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 action via amendment of his complaint. The proposed Count I1 alleges that the appellantwasdeprived of constitutionaldue process inthatthe 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 totalityof 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 situationdemands." Morrissey v. Brewer

"The fundamentalrequirement 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 givencase is constitutionally sufficientrequires an analysisof the governmental and private interests that are affected by the action taken. As stated inArnett v. Kennedy (1974), 416 U.S. 134, 167, 168, 94 S.Ct. 1633, 1651, 40 L.Ed.2d 15; by theunited StatesSupremeCourt: "Having determined that the constitutional guaranteeof 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 circumstancesmust beginwith a determinationof 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 conceptbut, rather, is

one which must be tailored to each situation in such a way that itmeets the needs and protects the interestsof the variousparties 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 requirementsnecessary 

### to protect the interestsof a collegeprofessor who suffers the loss of his title as department chairman and the nominal stipendwhich accompanies it.It is concluded that the governmental interest in orderly administrationnecessarytoprevent disruptionof the educational process is sufficient to allow summary dismissal of department chairmen when the requirements of due process are accommodated through the grievance and arbitrationprocedure 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 procedureswere available to the appellant 

### to seek reinstatement as department chairman. Such a grievance procedure affords the appellant an opportunity tobe heard ata meaningful 

### timeand ina meaningfulmanner. The requirements of due process are thereby met. It follows that Count I1does not set forth a cognizable claim and permitting 

### its incorporation into the actionby 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 constitutionallyguaranteed freedom of speech and expression with respect to the conduct of the department and the administration. It also alleges ina reverse form that the 

### termination and discharge concerned proximatelyresults ina denial of his righttofreedomof speech and expression. Itis settled thata 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 (CivilRights 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 hisjob, constitutes a valuable governmental benefitwhich fallsunder the protection accorded inPerrymitting its incorportion into the actionby the requested amendment would be a futile

### act. However, thisdoes not mean thatthe 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. Inview of this, the questionof 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 differenthues of a constitutionalchallenge founded upon the privileges and immunities clauses and equal protection clauses of the Montana and FederalConstitutions

# . In substance, they comprise a challenge to the validity of the statutoryprivilege accorded to

a publicationmade inthe properdischargeof a public duty. The efficacyof this privilege is the basis of the defense asserted by respondent McRae and, also, the basis forhismotion for summaryjudgment lodged againstboth the action stated inthe original complaint and Count I of the proposed amended complaint. Consequently, they

### willallbe treated together inthe discussion which follows: Libel is defined inSection 27-1-802, MCA, as: "a false and unprivileged publication 

# . .

# . which exposes any person 

### to hatred, contempt, ridicule, or obloguy orwhich causes him to be shunned 

### or avoided orwhich has a tendency to injure him inhis occupation." Section 27-1-804, MCA, inturn, defineswhat 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), 169Mont. 176, 181-182, 545 P.2d 644, 647-648, this Court had the occasion 

### tov. Sindermann, supra; and, second, whether the allegations of Count 111, aspresently 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 portionof which is incorporated intoCount I11byreference from Count I of the amended complaint, gave 

### as reasons forappellant'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 toeffectivelyand conscientiouslyhandle the administrative detail associated with the office, and his failure to properly coordinate the newly instituted 

### mass placement process for freshmancomposition. 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 inRotolo

### v. Borough of Charleroi (3rd Cir. 1976)

"The allegations inthe complaint strikeus as vague and conclusory. They failto indicate, when, where, and how Rotolohad 'exercised his first amendment privileges,

### ' rendering it impossible todetermine if indeed hisactivity 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 substantialityof the claim; theydo 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 thiscode sectionand it stated: "A privileged communication is one which, except for the circumstances under which it is made, may be defamatory and actionable. (Citationomitted.)

"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 theMontana Regional Health Centers.

"Whether statements made by such public off

### icers in relation to the hiring and firing of employeesmay be subject 

### to absoluteprivilege has been answered in the affirmative many times. Under facts similar to the instant 

### case, the United States Supreme Court inBarr v. 

### Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 3 L.Ed.2d 1434, 1441, stated that insofar 

### as a public officerwas acting within the scope of hisauthorityhiscommunication

### 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 tothe inevitable danger of its outcome, would dampen the ardorof allbut 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 absoluteprivilege and could thereforenot be the subject of libelaction." To put the meaning of --- Storch inperspective 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 statuteallows the regents to: "appointapresident and faculty foreach 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, atthe regents' discretion, upon the president and faculty of each of the units of the system for the best interest of the unit such authorityrelating to the immediate controland management, other than financial, and the selection of teachers and employees." The collective bargaining agreement provides in connection with transferof 

### title,being section9.100(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 notifiesallmembers of the unit and the Chairperson that in his 

### or her judgment a change should takeplace

# ."
The collectivebargaining agreement alsoprovides 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 alsoprovides 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. JustasthisCourt inStorch found thatthe hiring and firing 

### -- of employees 

### was an officialduty of the Montana Regional Health Centers, there 

### seems 

### to be 

### littlequestion in this

### case that thestatutory 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 inquestionan 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 ariseswhen 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 absoluteprivilege: 1. First of all, he asserts "a constitutional right to employment." Inlightof thisrighttoemployment, 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 officialduty, and therefore no statutoryprivilegewould arise. The 

### merits of the due process assertion have already been discussed in connection with Count I1 of the proposed amended complaint and willnot be repeated here. Suffice it to say that appellant's viewdoes not prevail. 2. The second issueraised by the appellant in opposition to themotion for summaryjudgment is that, inorder forthere 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 collectivebargaining agreement: First, that there was no notification to allmembers of the unitunder section9.100(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 takenplace. 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 compliancewith thisrequirement. The respondent notes inthisregard thatthe affidavitsfiled by Dr. Larry Jones and President Van de Wetering show that the respondent was acting within the scope of his official dutiesand diddischarge those duties ina 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 thatphotocopies 

### 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 allmembers 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 thatnotification of all unit members did take place and the only evidence in the record seems to indicate that the notification was proximate to the notificationgiven to the appellant. Turning toappellant's second argument we find the contention raised that because the collective bargaining agreement does not specificallyrequire the dean 

### to give reasons for the removal of

a department chairman, to give such reasons would violate thecollective 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 affidavitswhich note thatthe dean did properly dischargehisduties under the collective bargaining agreement, appellantls argument would appear to be without merit. Itwould seem tobe necessarily implied inany requirement of notification before removal that the reasons sup porting such a determinationbe given 

### to the outgoing chairman to puthim on notice of why the change is necessary. The third, and final, argument which appellant raises insupport 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 thisargument beyond citationtothe two supporting affidavitswhich note thatthe 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. Asused 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 selectionof 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 thegrievance and arbitration procedures spelled out at section 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 oppositiontorespondent's motion for summaryjudgment 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 thatthe statement

### was made inthe proper dischargeof

anofficialduty, it is considered privileged and no longer falls within the definition of libel. Not fallingwithin the definition of libel, such a statement would not be an actionable tort. 4. The fourth argument which the appellantraises inopposition 

### to respondent

### 's motion forsummary judgment is thatreliance upon any statutegranting publicofficialsabsoluteprivilege 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, 1972Mont.Const. This sectionprovides thatthere shallbe 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 inthe definitional section: "'Personal injury' means any injury resulting from libel, slander,malicious prosecution,

or false arrest, any bodily injury, sickness, disease, ordeath sustainedby anyperson and caused by an occurrance forwhich the State may be held liable." Sections 2-9-111 through 2-9-114, MCA, spellout the immunity which the legislaturehas seen fit

### to grant 

### to the legislative body, the members, officers and agents of the judiciary, the governor's office and local government officials discharging official duties associated with approving



### - 17 -orvetoing ordinance, orwhile involved in legislative activity

# . Section 2-9-305, MCA, spellsoutwhen the governmental entity is tobe joined as a defendant and provides forthe 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 immunitygranted inlibelactions 

### isnot absolutebecause 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, formoney 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 175Mont. 63, 67, 572 P.2d 201, 203, this Court stated: "theTort ClaimsAct 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 fallwithin the definition of a tort. Before a writing is considered an actionable libel, the Montana statuterequires that it be unprivileged. Once the determinationismade thatthe 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 fifthargument which the appellantraises inopposition to the respondent's motion for summary judgment is thatthe 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 thatbecause thisCourt inStorch, supra, relied -- onBarr insupportof itsdecision, Storch is no longergood 

### 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 officialsmay not, with impunity, discharge theirduties in a way that is known to them to violate the constitution or transgress a clearly established constitutionalrule. 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 inthe 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 

### lawof the Stateshall be declared by itsLegislature ina 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 

### lawof torts. And no clause in the Constitution purports 

### to confer such a power upon the federal courts." The Storch decision being the 

### latestpronouncement by thisCourt

on the issue of statutoryprivilege in libel actions, the decision is stillgood law. In Storch, thisCourt stated that inorder 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 at647. If the respondent's actions fallwithin thisexception, then thememorandum inquestion would be absolutelyprivileged within the statute and an absolutedefense 

### 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 otherhand, was a section 1983 action, which considered the issue of a federal official's personal immunity where, inthe course of enforcing a statute, the federal official infringes someone's constitutional rights. Moreover, thisCourt inButz recognized thatitsdecision



### was consistent with -- Barr. At438 U.S. 507, the Court stated: "We therefore hold that, in

### a suitfordamages arising from unconstitutional action, federal executive officials exercising discretion 

### are entitled only to the qualified immunity specified inScheuer [Scheuerv. Rhodes, 416 U.S. 2321 subje~~othose exceptional situations where it 

### is demonstrated that absolute immunity is essential for the conduct of the publicbusiness. "The Scheuerprinciple of onlyqualified immunity for constitutional violations 

### is consistentwith Barr v. Matteo,

# ..."
Justice Rehnquist, joined by the Chief Justice, Justice Stewart and Justice Stevens, in a separate opinion, stated the following at438 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 theconstitution.

### '" (Citationomitted.) From this language we can see that Barr, relied upon by this Court 

### to support 

### itsdecision inStorch, - was not overruled by the United States Supreme Court in Butz. Additionally, Storch 

### is within the modern trend of the 

### lawwhich extends to lower public officials an absolute privilege in regard to statements made inconnection 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 statuteon privileged communications that there must be an absence of malice before such a defense will

### arise. No such claim is made inthiscase; 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 mustbe 

### metbefore the defense of absoluteprivilege arises. The resolution of the issue

### was necessary 

### to the Court's decision and thereforenot 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, 1972Mont.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 relyupon the absolute privilege under section 27-1-804, MCA. The issue has been clearly settled by this Court inGriffin

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, theCourtheld thatwhere there is a failure 

### to establish

anessentialelement of the cause of action, the case becomes one of law for the Court. See, 

### also Cooper 

### v. Romney (1914), 49 Mont. 119, 141P. 289. 7. Appellant 

### raises one final argument in opposition 

### torespondent's motion for summaryjudgment

# . The appellant contends that summary judgment would not be proper because a disputed questionof 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 stilldisputed. 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 citationtoMoore's Federal PracticeDigest and noted thata party opposing a motion for summary judgment: "must present facts in proper form--conclusions of 

### law will not suffice; and the opposing party's factsmust 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 summaryjudgment, "shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, togetherwith the affidavits, if any, show thatthere 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, thisCourt 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 Courthas consistentlyheld thattheparty 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 standard1and that: 

### "'.

# .

# . To satisfy hisburden the movant must make a showing that 

### is quite clear what thetruth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.

# . .I1' Kober & Kyrissv. Stewart & Billings Deaconess Hospital, 148 Mont. 117, 122, 417 P.2d 476, 478. "The districtcourtdoes not function to adjudicategenuine 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 thiscase it should be kept inmind that the bare assertions found in appellant's briefs are not sufficient to defeat a motion for summary judgment. Likewise, the conclusory statementsfound inappellant's affidavitsof February 13and 24, to the effect that his dismissal: "was not done in the proper discharge of duty inthat it violated constitutional rights, both State and Federal, was not done inaccordance 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 constitutionally valid, as a consequence of which there is no outstanding issue of fact, and the respondent is entitled 

### to have hismotion for summary judgment granted, effective against the cause stated in the original complaint and repeated as Count I intheproposed amended complaint. We turn now to 

### a consideration of the remaining constitutionalattacks againstthe statutoryprivilege found inCounts IV and V of the proposed amended complaint. Count IVcontends that relianceon thisstatutoryprivilege is a violationof theprivileges and immunities clause of the federal constitution, as wellas the equal protection clause, as it permits a libel which would be actionable against any other person. Count V alleges that relianceon the statutoryprivilege is unconstitutional

# . Appellant's contention in Count IV of the proposed amended complaint is a novel interpretation of the constitution, but one withoutmerit. The privileges and immunities clause of the constitutionprohibits a state from discriminating against the citizens of other 

### states where there is no substantial reason for the discriminationbeyond the fact thatthey 

### are citizensof otherstates. 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 tothe reasons. The statutoryprivilege at issue in thiscase cannot possibly violate the privileges and immunities clause. All persons, be they citizens of Montana orcitizens of any other statebringing

a libel action in this 

### state, are equally subject to the statutorydefense

# . 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 determinewhat levelof 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 (suchas 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 toa legitimate state interest. New Orleans v. Dukes (1976)r427 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 forrecognizing the statutoryprivilege 

### is obvious, and has alreadybeen discussed. SeeGregoirev. 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 301U.S. 459, 57 S.Ct. 838, 81L.Ed. 1223. As noted above in discussing the privileges and immunities clause, the statutoryprivilege is equallyapplicable to allwho

are "libeled" by public officials acting within the scope of theiremployment. Count IVof theproposed amended complainthas

no basis in

### law. The constitutional issues raised by the appellant inCount 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 thisCourt said: "With reference to the subjectsupon 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 lightof 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 theLegislature," 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 againstlibel under Art. 11, Sec. 7, 1972 Mont.Const. This provision giveseveryperson the right to speak freelyand publishwhatever they please on any subject, but makes them responsible for any abuse of thatliberty. Appellant's claims in regard to Count V 

### are clearlywithout 

### merit. The constitution does not define libel, just as it does not define the elementswhich make up any other actionable tort. This job is left 

### to the courts and the legislature. Libel has alwaysbeen 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, norecognized 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 theDistrict Court is affirmed.

We concur: 

# U

Chief ~ustice \

### Mr. JusticeJohnC. Sheehy,dissenting:

I confess at the outset that Ido not understand the foregoingopinion. Its ratio decidendi escapesme. Rather than attempting to refutewhat is in the foregoing opinion, therefore, Iwill here assertonlywhat I

### think the rule in this case ought tobe. This casecomes to us on essentially twogrounds: 

### (1) that Aaron P. 

### Small was deprived of due processwhen he was removed as chairman of the English department of Eastern Montana College;and (2)that inhis removal,hewas libelled. It is clear that Aaron P. 

### Smallwas removed as chairman of the English department withoutbeing afforded due process as to his removal, including an evidentiary hearingwhere he would have the right to present favorable witnesses,and to confrontand examine adversewitnesses. Thegrievance procedure provided in the collectivebargaining agreement for the unit ofwhich Small was amember is not a sufficientsubstitute for Small's right to come to the courts forprotection of his constitutionaldueprocess rights. Section 1-3-204,MCA. I 

### findno case cited in the foregoing opinion statingotherwise, and there couldbe none. In like manner, summary judgment should not be granted against Small on his firstamendment claims,and his libel claims,on theground of lack of specificity in thepleadings. NcRae gave ashis reasons fordismissing Small as chairman his 

### "inadequate leadership",his "failureto bring apolarized department intoa smoother functioningunit", "acrimonyhad increasedwithin the English department",and an allegation that Smallhad failed to effectively and conscientiously handle the administrative detail associatedwith his office.

### Smallhas answered that these allegations are false. What

more specificitycould he at this stage allege, if his contention is true that such statementsare false? The DistrictCourtand this Court are applying here the specificity requirements of civil right actions under federal lawas exemplifiedby Rotolov. Borough of Charleroi (3rdCir. 19761, 532F.2d 920, 923. Inour state court, Small is not suing foradeprivation of his federalcivil rights, but for his constitutionally protected rights under our stateand federalconstitution. In that situation, it should be recognized that ourpleadings under the Montana Rules of Civil Procedure arenotice pleadings only and that specificity occurs afterdiscoveryhasbeen completed. Further, with regard to Small's libel action,there is a factualquestion existent as towhetherhe was discharged pursuant to "official action." Thepleadings evincean underlying allegation that McRae was acting in concert with others to deprive Smallof his chairmanship. Without further proceedingswe cannot tell at this pointwhether "officialaction" was actually involved here orwhether therewas a drive to impugn his teaching and administrative integrityand ability in the guise of officialaction. That is an issuea jury should decide. For those reasons,

### Iwould set aside the summary judgment, and let the facts come to lightas towhich party should receive judgment in this case. Therefore, Idissent.

JusticeMr. JusticeDaniel J. Sheaconcurring. I agree withthe resultreached bythemajority, but not in itsreasoning. Clearly, there

### was nolibel. And justasclearly, theplaintiff shouldhave exhausted thecontractgrievanceproceduresbeforeresorting to thecourts.