No. 91-090 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

, 

TRUSTEES, BIG HORN COUNTY SCHOOL DISTRICT .-'r i ;i lggl 

NO. 27, and NANCY KEENAN, Superintendent C.,. ,' '. -. 

of Public Instruction. CLE,:!!~ ,. ;: . .L,~:,2:y~. d 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Emilie Lo: ring; Hi 

For Respondents: 

Filed: 

Loring, Mi ssoula, Mont 

James L. Vogel, Attorney at Law, Hardin, Montana 

Beda Lovitt, Office of Public Instruction, Helena, 

Montana 

Submitted on Briefs: August 1, 1991 

Decided: December 10, 1991 
Justice Karla M. Gray delivered the Opinion of the Court. 

The appellant, Scott T. Medicine Horse (Medicine Horse), 

appeals from a judgment entered by the District Court of the First 

Judicial District, Lewis and Clark County, affirming a decision by 

State Superintendent of Public Instruction Nancy Keenan. We 

affirm. 

The issue before this Court is whether the District Court 

erred in affirmingthe State Superintendent of Public Instruction's 

decision that Medicine Horse was an plat will1' employee who received 

the process due him upon his discharge from employment. 

Medicine Horse was employed as a custodian by Big Horn County 

School District No. 27 from 1984 to 1988. He worked without a 

written contract or agreement under Gary Greseth (Greseth), 

Principal of Non-instructional Affairs of Lodge Grass Public 

Schools. In August of 1988, Greseth began establishing a written 

record of Medicine Horse's work-related problems. Greseth 

determined that Medicine Horse needed additional supervision and 

instituted weekly meetings between himself and Medicine Horse in 

order to more closely monitor Medicine Horse's progress. 

The appellant's job performance continued to deteriorate and 

on November 23, 1988, Greseth suspended Medicine Horse without pay 

for three days because of several incidents with a co-worker. 

Medicine Horse did not appeal this action. 

Greseth's duties included the schedul 

workshifts. On either December 16 or 19, 1988 

ing of janitors' 

, Greseth posted a 
Christmas vacation work schedule. This schedule included a shift 

change for Medicine Horse and others. The shift change was to 

begin on December 21, 1988. 

Medicine Horse was on sick leave December 16 and 19. On 

December 20, Greseth found a note from Medicine Horse on his door 

stating that Medicine Horse would work his usual 8:00 a.m. until 

4:00 p.m. shift instead of the later shift to which Greseth had 

assigned him. Greseth showed this note to Superintendent Bert 

Corcoran. Both men determined that the note amounted to 

insubordination. Greseth claims he spoke to Medicine Horse on 

December 20 and informed him at that time that he would recommend 

immediate termination of Medicine Horse at the school district 

trustees' meeting that night. Medicine Horse claims that he was at 

two doctor appointments in Billings all day December 20, 1988, did 

not speak to Greseth on that day, and had no idea that Greseth 

intended to recommend his termination. Medicine Horse contends 

that he arrived for work at his new shift time, 2:00 p.m., on 

December 21, 1988, to find that he had been terminated by the 

trustees at their December 20, 1988 meeting. 

Medicine Horse requested, and was granted, a hearing by the 

trustees which took place on January 17, 1989. The trustees took 

no action following this hearing and his discharge remained in 

effect. Subsequently, Medicine Horse appealed to the Big Horn 

County Superintendent of Schools as provided in § 20-3-210, MCA. 

The County Superintendent affirmed the discharge on the basis that 
Medicine Horse was an I'at will1' employee. Following the directives 

of 20-3-107, MCA, Medicine Horse next appealed to the State 

Superintendent of Public Instruction; she upheld his discharge and 

status as an "at will11 employee. Medicine Horse then sought 

judicial review under the Montana Administrative Procedure Act. 

The District Court affirmed the State Superintendent of Public 

Instruction. 

This appeal centers on Medicine Horse's contention that he was 

denied due process of law because he did not have written notice of 

the reasons for his termination or of the termination itself, and 

was not provided a pretermination hearing. The appellant contends 

that he was a permanent employee and, thus, had a property interest 

in his employment. The respondents claim Medicine Horse was an Itat 

willt1 employee, had notification of the trustees' consideration of 

his termination before the meeting at which he was terminated, and 

received the post-termination hearing he requested even though that 

hearing was entirely discretionary with the trustees. 

We note at the outset that the issues for review at both the 

District Court and this Court are conclusions of law; all parties 

agree that the appropriate standard of review is contained in § 2- 

4-704, MCA. We have clarified in recent cases that under 5 2-4- 

704, MCA, our standard of review relating to conclusions of law, 

whether the conclusions are made by an agency, workers1 

compensation court, or trial court, is whether the tribunal's 

interpretation of the law is correct. Steer, Inc. v. Department of 
Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603; see also 

GBN, Inc. v. Montana Department of Revenue (Mont. 1991), 815 P.2d 

595, 596-97, 48 St,Rep. 715, 716. 

AT WILL 

Respondent Big Horn County School District (School District) 

argues that Medicine Horse is an "at wi11lq employee and is governed 

by the Montana will1' statute: 

Termination at will. An employment having no specified 

term may be terminated at the will of either party on 

notice to the other. . . . 

Section 39-2-503, MCA. We have concluded that an Itat willtg 

employee is one whose term of employment has no specific duration. 

Hobbs v. Pacific Hide and Fur Depot (l989), 236 Mont. 503, 771 P.2d 

125. Medicine Horse has provided no evidence that his employment 

had any specified term. His employment was not governed by a 

contract which specified the duration of his employ, nor do the 

laws and regulations governing his position as an employee of the 

School District specify any such term. 

Quoting from a 1984 article in the Montana Arbitrators 

Association Ouarterlv, the appellant contends that the doctrine of 

"at willM employment is no longer viable in Montana. While that 

may have appeared to the author to be the case in 1984, we disagree 

that such is the state of the law in Montana. In Prout v. Sears, 

Roebuck and Co. (l989), 236 Mont. 152, 772 P.2d 288, we applied the 

"at willlt statute to persons who have no specific term to their 

employment. And while Prout was decided on the basis of pre- 
Wrongful Discharge From Employment Act law, neither that Act nor 

any other action by the Montana legislature or this Court has 

nullified the "at willn designation or g 39-2-503, MCA. 

We hold that Medicine Horse is an "at willv employee who had 

no specific duration or term for his employment with the School 

District. 

NOTICE 

The appellant argues that even if he is an "at will" employee 

he was still entitled to notice. This Court has interpreted the 

"at will11 statute to mean that notice prior to termination is not 

required. Prout v. Sears, Roebuck and Co. (1989), 236 Mont. 152, 

772 P.2d 288; Gates v. Life of Montana Insurance Co. (1982), 196 

Mont. 178, 638 P.2d 1063. We hold that Medicine Horse was not 

entitled to prior notice of his termination under the Montana "at 

willw statute. 

The appellant next argues that he was entitled to notice of 

the reasons for his discharge because the School District's policy 

"did not give the Superintendent authority to suspend or terminate 

without giving the employee the reasons for such action. . . . II 

The policy does not require the superintendent to provide reasons 

for termination: 

SUSPENSION AND DISMISSAL OF NON-CERTIFIED STAFF 

Non-certified Staff members are employed by the 

Superintendent subject to review by the Board of 

Trustees. They may be suspended at any time by the 

Superintendent. Non-certified employees may be 

terminated at any time by the Superintendent however 

employees may request the Board of Trustees to review the 
process of a pretermination hearing. 

Procedural due process, which the appellant claims entitled 

him to a pretesmination hearing, is required only when the rights 

of liberty and property protected by the Fourteenth Amendment have 

been infringed. Akhtar, 197 Mont. at 210, 642 P.2d at 152. In 

Cleveland Board of Education v. Loudermill (l985), 470 U.S. 532, 

105 S.Ct. 1487, 84 L.Ed.2d 494, the United States Supreme Court 

held that a public employee is entitled to procedural due process 

if he or she has a property right in continued employment. Once a 

property interest is determined to exist, procedural due process 

mandates a hearing before termination. Loudermill, 470 U.S. at 

542, 105 S.Ct. at 1493, 84 L.Ed.2d at 503-504. 

A property interest in onets position must be created by 

existing rules or regulations, state laws, or understandings 

between employee and employer. Board of Regents v. Roth (19721, 

408 U.S. 564, 92 S-Ct. 2701, 33 L.Ed.2d 548. l his Court has 

adopted the Roth reasoning and prerequisites to a property 

interest. Akhtar, 197 Mont. at 211, 212, 642 P.2d at 153. 

Medicine Horse presented no written contract, state law, or 

regulation specifically stating or otherwise indicating that he had 

a property interest in his position as custodian. The written 

policy quoted earlier states that a non-certified employee, like 

Medicine Horse, can be terminated any time and that a hearing mav 

be provided to the employee at the discretion of the trustees; that 

policy does not support the appellant's claim of a property 
interest in his position. Nor do any rules or school regulations 

mandate that a hearing granted by the trustees must occur before a 

discharge; indeed, the referenced policy makes it clear that any 

such hearing would occur after the termination. 

Medicine Horset s subjective belief that he had a property 

interest in his job does not create such a property interest. A 

subjective expectancy creates no constitutionally protected 

interest. Perry v. Sindermann (1972), 408 U.S. 593, 92 S.Ct. 2694, 

33 L.Ed.2d 570. A "mutually explicit understanding" between the 

parties can lead to a property interest. Perry, 408 U.S. at 601, 

92 S.Ct. at 2699, 33 L.Ed.2d at 580. Here, however, the written 

School District policy regarding discharge of non-certified 

employees and the progressive discipline in which Medicine Horse 

was involved do not support the existence of such a mutually 

explicit understanding. 

Medicine Horse also argues that he had a property interest in 

his position because his probationary period was over and he worked 

for the School District in excess of four years; thus, he asserts 

that he had a reasonable expectation that his job would continue. 

Medicine Horse would have this Court equate the tlpermanencylt of 

employment that comes with passing a probationary period with a 

property interest in onets employment. Both this Court and the 

United States Supreme Court have rejected this argument. 

We considered whether length of employment gives rise to a 

property interest in Reiter v. Yellowstone County (1981), 192 Mont. 
194, 627 P.2d 845. There, a custodian with eighteen years of 

employment with the school district was not provided with a hearing 

upon discharge. We held that he had no property interest in his 

position by virtue of his years of service, absent a contractually 

specified term of employment. The Reiter holding relied on a 

United States Supreme Court case involving a police officer who had 

passed his probationary period and was considered permanent. The 

Supreme Court held in that case that the police officer had no 

property interest in his position and that his position was 

continued at the will of the city. Bishop v. Wood (1976) , 426 U.S. 

341, 96 S.Ct. 2074, 48 L.Ed.2d 684. 

The appellant relies heavily on Tolson v. Sheridan School 

Dist. (E.D. Ark. 1988), 703 F.Supp 766. In Tolson, a bus driver 

sued the school district claiming his due process rights had been 

violated at the time of his discharge. Tolson had experienced 

discipline problems with the students on his bus and reported this 

to the district. On the day he made his report, Tolson returned to 

his home after doing errands and found his school bus, previously 

parked in front of his house, gone. Subsequently, he discovered 

that the district had sent someone to retrieve it and that he had 

been fired. The court held that Tolson's due process rights were 

violated when he was not given adequate notice and an opportunity 

to be heard. 

The appellant's reliance on Tolson is misplaced. Tolson had 

a contract with the district for a specific term. In addition, the 
parties in the Tolson case stipulated that Tolson had a property 

interest in his employment contract within the meaning of the Due 

Process Clause of the Fourteenth Amendment. Given this 

stipulation, the issue of whether Tolson did or did not have a 

property interest in his position was not before the court. 

In light of our holdings that Medicine Horse was an I1at willI1 

employee who had no property interest in his position, we find no 

error by the ~istrict Court. 

AFFIRMED. 

We concur: 

Chief Justice 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

Scott Medicine Horse testified that he was not at work on 

December 20, 1988, and was not notified of the school board meeting 

at which his termination was to be discussed. It is undisputed 

that the agenda for that meeting did not include notice to Medicine 

Horse or anyone else that his termination would be a subject of 

discussion. Even after the meeting and his termination, he was not 

given reasons for his termination or an opportunity to respond to 

those specific reasons at the subsequent meeting at which he 

appeared. Neither the County Superintendent, the State 

Superintendent, nor the District Court resolved the factual dispute 

regarding notice because all arrived at a legal conclusion that 

Medicine Horse was an employee "at will" and was not entitled to 

due process prior to his termination. 

This Court concludes that because the school district had a 

written regulation providing for its employees1 termination at any 

time that Medicine Horse had no property interest in his 

employment. However, if the determination of who does and who does 

not have a property interest in employment is going to be left to 

employers, then the due process requirement of the Fourteenth 

Amendment to the United States Constitution is meaningless. 

I find it incredible that through the cumbersome intellectual 

process known as legal analysis courts have concluded that a person 

receiving welfare benefits has a "property interest" in the 

12 
continued receipt of those benefits that is safeguarded by 

procedural due process. See Goldbergv. Kelly (1970), 397 U.S. 254, 90 

S.Ct. 1011, 25 L.Ed.2d 287. However, this man had no "property 

interest" in the government job he had performed for four and 

one-half years and which was his sole means of providing food, 

clothing, and housing for himself and his family. 

I agree with the dissent of Justice Marshall in Board of Regents 

v.Roth, 408 U.S. 564, 589, when he states that: 

Employment is one of the greatest, if not the greatest, 

benefits that governments offer in modern-day life. When 

something as valuable as the opportunity to work is at 

stake, the government may not reward some citizens and 

not others without demonstrating that its actions are 

fair and equitable. And it is procedural due process 

that is our fundamental guarantee of fairness, our 

protection against arbitrary, capricious, and 

unreasonable government action. 

Mr. Justice Douglas has written that: 

"It is not without significance that most of the 

provisions of the Bill of Rights are procedural. 

It is procedure that spells much of the difference 

between rule by law and rule by whim or caprice. 

Steadfast adherence to strict procedural safeguards 

is our main assurance that there will be equal 

justice under law. Joiut Anti-Fascist Refigee Committee v. 

McCratl~, snpra, at 179 (concurring opinion). 

However, it is not necessary to rely on Justice Marshall's 

dissent in Rotl~, to conclude that Medicine Horse had a "property 

interest" in his employment. In Peny v. Sindermarm, 408 U.S. 593, 

601-02, another employment case decided by the United States 

Supreme Court on the same date as Roth, the majority stated: 
A person s interest in a benefit is a ltpropertytt interest 

for due process purposes if there are such rules or 

mutually explicit urzderstandings that support his claim af 

entitlement to the benefit and that he may invoke at a 

hearing. [Roth, 408 U.S. at 577.1 

A written contract with an explicit tenure provision 

clearly is evidence of a formal understanding that 

supports a teacher's claim of entitlement to continued 

employment unless sufficient tficauseM is shown. Yet 

absence of such an explicit contractual provision may not 

always foreclose the possibility that a teacher has a 

"property" interest in re-employment. For example, the 

law of contracts in most, if not all, jurisdictions long 

has employed a process by which agreements, though not 

formalized in writing, may be 3A. Corbin on 

Contracts 562-572A (1960). Explicit contractual 

provisions may be supplemented by other agreements 

implied from 'Ithe promisor's words and conduct in the 

light of the surrounding circumstan~es.~ Id., at 5 562. 

And, l1 [tjhe meaning of the [the promisor's] words and 

acts is found by relating them to the usage of the past." 

[Ruth, 408 U.S. at 577.1 [Emphasis added.] 

In this case, Medicine Horse had been employed by the school 

district for four and one-half years. He testified that he was a 

temporary employee for one year, but that after one year he was 

given permanent status which included sick leave, annual leave, 

vacation pay, and some expectation of permanency. He testified 

that he was given that expectation not only by another employee, 

but by John Pretty On Top, a member of the school board. No one 

testified to the contrary. The only other witness who testified 

before the County superintendent about Medicine Horse's status was 

Gary Greseth. Greseth was the principal of noninstructional 

affairs who supervised Medicine Horse. He also testified that 

Medicine Horse was a permanent employee. 
The majority relies on 5 39-2-503, MCA, for its conclusion 

that Medicine Horse was an employee at will because he had no 

specified term. However, I would conclude that when an employee is 

advised that he is permanent, that is a specified term. 

Furthermore, we have previously held in other circumstances 

that in spite of the language found in 5 39-2-503, MCA, an employee 

can have a reasonable expectation of job security, based on 

representations by his employer, even though he has no specified 

term of employment. See Dare v. Montana Petroleum Marketing Co. ( 1984 ) , 2 12 

Mont. 274, 687 P.2d 1015. Although the specific cause of action 

authorized under Dare has been superseded by the Wrongful Discharge 

From Employment Act found at 39-2-901, MCA, & seq., the 

principle remains that the effect of the at will statute is subject 

to alteration by the conduct of the parties to the employment 

relationship. 

Because the employee in this case was led to believe that 

after a year of probationary employment he had achieved "permanent" 

status, I would conclude that his interest in his employment became 

a lrproperty" interest for due process purposes based upon the 

"mutually explicit understandingstt between the employee and his 

employer. Having reached that conclusion, the next question is, 

"what kind of 'due processt was he entitled to?" 

The school district contends that because he was afforded an 

opportunity to contest his termination after the fact, Medicine 
Horse received a11 the due process that he was entitled to. 

However, for obvious reasons, an after the fact hearing does not 

provide due process. For one thing, the decision that Medicine 

Horse was undesirable and should be terminated had already been 

made without his presence or input. Any further consideration of 

his value as an employee by the same board necessarily had to have 

been tainted by the board's concern for justifying its own actions. 

I am sure that this is one of the considerations the United States 

Supreme Court had in mind when it decided Clevelar~d Board of Education v. 

Loudemzill, 470 U.S. 532. In that case, the court held that only 

pretermination input from the employee could satisfy the due 

process clause. The court concluded that where the employee had a 

property right in his employment, his employer could not dictate 

the terms of the due process to which he was entitled. 

Specifically, the court found that a post-termination opportunity 

to be heard was inadequate, The court stated: 

An essential principle of due process is that a 

deprivation of life, liberty, or property "be preceded by 

notice and opportunity for hearing appropriate to the 

nature of the case. Mullarze v. Cejztral Harzover Bark & Twt Co. , 339 U.S. 306, 313, 94 L.Ed. 865, 70 S.Ct. 652 (1950). We 

have described "the root requirementn of the Due Process 

Clause as being "that an individual be given an 

opportunity for a hearing before he is deprived of any 

significant property interest. Boddie v. Contzecticut, 4 01 

U.S. 371, 379, 28 L.Ed.2d 113, 91 5.Ct. 780 (1971) 

(emphasis in original) ; see Bell v. Bursoiz, 402 U.S. 535, 

542, 29 L.Ed.2d 90, 91 S.Ct. 1586 (1971). This principle 

requires "some kind of a hearing" prior to the discharge 

of an employee who has a constitutionally protected 

property interest in his employment. Board of Regents v. Rotlz , 
408 U.S. at 569-570, 33 L.Ed.2d 548, 92 S.Ct. 2701; Pey 

v. Sindemaizn, 408 U.S. 593, 599, 33 L.Ed.2d 570, 92 s.ct. 

2694 (1972). As we pointed out last Term, this rule has 

been settled for some time now. Davis v. Sclzerer, 468 U.S. 

183, 192 n. 10, 82 L.Ed.2d 139, 104 S.Ct. 3012 (1984) ; 

id., at 200-203, 82 L.Ed.2d 139, 104 S.Ct. 3012 (BRENNAN, 

J., concurring in part and dissenting in part) . Even 

decisions finding no constitutional violation in 

termination procedures have relied on the existence of 

some pretermination opportunity to respond. 

The essential requirements of due process, and all that 

respondents seek or the Court of Appeals required, are 

notice and an opportunity to respond. The opportunity to 

present reasons, either in person or in writing, why 

proposed action should not be taken is a fundamental due 

process requirement. 

Loudemtill, 470 U.S. at 542, 546. 

For Medicine Horse, his source of livelihood was at stake. A 

job he had performed for four and one-half years was on the line. 

The possibility of future employment had to have been adversely 

affected by the circumstances of his discharge. 

It does not seem like too much to require that before that 

discharge he be given notice of the reasons and an opportunity to 

respond. 

In this case, I conclude that Medicine Horse had a property 

interest in his employment and that, therefore, he was entitled to 

notice of the charges against him and an opportunity to respond to 

those charges prior to his termination as an employee. Since the 

County Superintendent, State Superintendent, and District Court 

have all denied Medicine Horse's petition based on what I conclude 
to be a misapplication of the Constitution, I would reverse the 

District Court. 

I concur in the foreqc ling dissent of Justice Trieweiler. 
December 10, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Emilie Loring 

Hilley & Loring 

500 Daly Ave. 

Missoula, MT 59801 

James L. Vogel 

ATTORNEY AT LAW 

P.O. Box 525 

Hardin, MT 59034 

Beda Lovitt 

Chief Legal Counsel 

Office of Public Instruction 

Helena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: & \.&A