Yo. 13166 

IN rHE 3UPKdME I:OUK'.C ilF THE STkrE OF PlONTANA 

1976 

riaintiff and Appellant, 

JOHN M. THORSON, Mayor, 

of the City of Whitefish, Xontana, 

Defendant and Respondent. 

:jppeal from; ')is trict Court of the Eleventh Judicial District, 

Honorable Robert Keller, Judge presiding. 

Counsel of Record : 

For Appellant : 

Astle and Astle, Kalispell, Montana 

Villiam Astle argued, Kalispell, Montana 

For Respondent: 

Leo Fisher argued, Whitefish, Montana 

Submitted: March 3, 1976 

~ec ided : MAY 7 !g)g 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal from an order issued in the eleventh 

judicial district, Flathead County, dismissing petitioner's 

request for writ of mandamus made pursuant to section 93-9102, 

R.C.M. 1947. At the time the petition was filed, appellant 

Terry Schend was a probationary full-time police officer for 

the city of Whitefish, and respondent John M. Thorson was the 

mayor. The matter was heard in district court on April 17, 

1975, and judgment for the respondent was entered several 

months later. 

In lieu of a transcript, the record on appeal has been 

transmitted to the Court as an "Agreed Statement of Evidence" 

in accordance with Rule 9(c), Montana Rules of Appellate Procedure. 

From this document, it appears that the appellant was 

appointed to the position of police officer for the city of 

Whitefish on October 8, 1974. The city of Whitefish is a third 

class city in the state of Montana within the meaning of section 

11-1824 et seq., R.C.M. 1947, the "Metropolitan Police Law." As 

such, and pursuant to the authority contained therein, the community of Whitefish has placed itself within the purview of the 

Metropolitan Police Law through the adoption of Chapter 2.44.010, 

Whitefish Municipal Code, which provides as follows: 

"From and after the passage and approval of the 

ordinance codified herein, and from and after 

the effective date of the ordinance as codified 

herein, and the police department of the city, 

shall be under and within the provisions of the 

Metropolitan Police Law of the state. The police 

department of the city shall be organized, 

managed, conducted and controlled as in the state 

law and this chapter provided." 

Chapter 2.44.040 of the Whitefish Municipal Code, provides that 

all applicants for the position of police officer must be appointed by the mayor and confirmed by the city council, but only after 

the applicant has successfully passed an examination, and a 
certificate of qualification has been filed with the mayor. 

The applicant is then eligible to serve a "probationary period" 

as a police officer which may not exceed six months. Chapter 

2.44.040 also provides the means by which an appointment may 

be revoked by the mayor: 

" * * * At any time before the end of such probationary period the mayor may revoke such appointment. After the end of such probationary period, 

and within thirty days thereafter, the appointment of such applicant must be submitted to the 

city council, and if such appointment is confirmed 

by the city council, such applicant becomes a 

member of the police force of the city, and shall 

hold such position during good behavior, unless 

suspended or discharged as provided by law." 

The above-cited section is almost identical to section 11-1803, 

R.C.M. 1947, except that the state law was amended in 1973 to 

extend the maximum possible probationary term from six months 

to one year. The parties are in complete agreement that under 

the statute and code section cited above, and under the rule 

followed by a majority of jurisdictions, that the legislature 

may validly authorize the removal of a probationary public employee or officer in a summary fashion, without necessity of 

cause or hearing. State ex rel. Nagle v. Sullivan, 98 Mont. 

425, 40 P.2d 995. 

On February 28, 1975, almost five months since his 

appointment, Schend received a letter from respondent Thorson 

placing him on notice that his appointment to the police force 

would be revoked as of March 15, 1975. The letter also contained 

certain statements regarding the appellant's performance as a 

police officer: 

"Due to your performance of duty, attitude towards 

and lack of desire to cooperate with those in 

charge * * * your services will no longer be required or desired in your capacity as a member 

of the Whitefish Police Department." 

The appellant, pursuant to section 11-1806, R.C.M. 1947, 

requested a hearing before the Whitefish Police Commission. This 
request was denied. 

From this summary of stipulated facts emerges but one 

single issue of constitutional law. Does the mayor of a city, 

which is subject to the provisions of a Metropolitan Police 

Law, and which grants the authority to discharge a police 

officer summarily during his period of probation, violate the 

due process clause of the Fourteenth Amendment to the United 

States Constitution when the notice of termination is accompanied 

by a statement of reasons for letting him go and no opportunity 

to dispute this statement is provided? We answer this question 

negatively. 

A similar question has been treated by the United States 

Supreme Court in Board of Regents v. Roth, 408 U.S. 564, 570, 

573, 577, 92 S.Ct. 2701, 33 L ed 548. The court held in that 

case that the claimed right of a state teacher to a hearing prior 

to the nonrenewal of his employment agreement did not come within the purview of the concept of due process when that teacher 

has not achieved the status of tenure. In rendering its decision, 

the United States Supreme Court devoted a considerable portion 

of its opinion to discussing what frame of reference is properly 

employed in determining issues of procedural due process. In 

Roth, the federal district court committed error when it reduced 

the issue to a mere balancing or weighing of the interests involved 

--that is the employer's interest in denying reemployment summarily, as opposed to the employee's interest in reemployment. 

The court was careful to point out that while the balancing process is essential to the determination of what form a required 

hearing must take in a particular situation, the question of 

whether or not due process requirements are applicable at all 

demands a different type of analysis: 

" * * * But, to determine whether due process requirements apply in the first place, we must look 
not to the 'weight' but to the nature of the 

interest at stake. * * * We must look to see 

if the interest is within the Fourteenth 

Amendment's protection of liberty and property." 

See also Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 

28 L.Ed, 113. This essential distinction in analysis is one 

which cannot be ignored by this Court in light of the question presented. 

The due process right to hearing was intended to provide 

an opportunity for a person to vindicate only those claims to 

which they are legitimately entitled. In Roth, the United 

States Supreme Court could not sustain the teacher's Fourteenth 

Amendment claim, because he failed to show how the decision not 

to rehire, deprived him of an interest in "liberty" despite his 

lack of tenure or formal contract. Perry v. Sindermann, 408 

U.S. 593, 92 S.Ct. 2694, 33 L.Ed. 570. In doing so, however, the 

court, in Roth, left no doubt as to the possibility that such a 

showing could be made in a future case: 

"The State, in declining to rehire the respondent, 

did not make any charge against him that might 

seriously damage his standing and associations in 

his community. * * * Had it done so, this would 

be a different case. For '[wlhere a person's good 

name, reputation, honor, or integrity is at stake 

because of what the government is doing to him, 

notice and an opportunity to be heard are essential.' 

[Citing cases.] In such a case, due process would 

accord an opportunity to refute the charge before 

University officials. * * *" (Emphasis added.) 

We take judicial notice that there is no substantial difference between the status of a nontenured teacher and that of a 

probationary police officer. 

Due process adjudication involves typically two analytically distinct issues--whether the right of due process is applicable in the first instance; and if so, what specific procedures 

are "due" in each case. The right itself only becomes applicable 

where ones "property" or "liberty" interests within the meaning 

of the Fifth or Fourteenth Amendment are at stake. Whether an 
individual's "entitlement to employment" is sufficient to give 

rise to a Constitution's claim becames the threshhold question 

in these types of cases. 

In Roth, the court held: 

" * * * To have a property interest in a benefit, 

a person clearly must have more than an abstract 

need or desire for it. He must have more than a 

unilateral expectation of it. He must, instead, 

have a legitimate claim of entitlement to it. It 

is a purpose of the ancient institution of property to protect those claims upon which people 

rely in their daily lives, reliance that must 

not be arbitrarily undermined. It is a purpose 

of the constitutional right to a hearing to provide an opportunity for a person to vindicate 

those claims. 

"Property interests, of course, are not created 

by the Constitution. Rather, they are created 

and their dimensions are defined by existing rules 

or understandings that stem from an independent 

source such as state law--rules or understandings 

that secure certain benefits and that support 

claims of entitlement to those benefits. * * *" 

Here the nature of the interest is the right to a job 

as a policeman. Can this be said to be encompassed within the 

terms "liberty" or "property"? We think not. 

The very nature of the concept of property is not and 

was not intended to be static. Board of Regents v. Roth, supra, 

(procedural due process as extended beyond the actual ownership 

of real estate, chattels or money); Bell v. Burson, 402 U.S. 

535, 91 S.Ct. 1586, 29 L ed 2d9OI(driver's license); Goldberg 

v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L ed 2d 287 (welfare 

benefits); Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 

29 L ed 2d 418, (public emp1oyment);and Stanford v. Gas Service 

Company, 346 F.Supp. 717, (Kan. 1972) (utility services) . HOWever, the guide furnished by Roth clearly indicates that it is 

only a vested right which cannot be taken away except by due 

16 Am Jur 2d, 8365, p. 694. 

process of law,/ A probationary police officer under Montana law 

enjoys no property or vested right. His status is that of a 

temporary employee and until confirmation he has no possible 
property interest. 

Mr. Justice Holmes wrote in McAuliffe v. Mayor, Etc. 

of City of New Bedford, 155 Mass. 216, 29 N.E. 517: 

" * * * There are few employments for hire in 

which the servant does not agree to suspend his 

constitutional rights of free speech as well as 

of idleness by the implied terms of his contract. 

The servant cannot complain, as he takes the 

employment on the terms which are offered him. 

On the same principle the city may impose any 

reasonable condition upon holding offices within 

its control. * * *" 

See 41 U. of Chicago Law Review 297; 26 Stanford Law 

Review 335. 

Federal cases have recognized the distinction between 

probation and nonprobation employees. Arnett v. Kennedy, 416 

U.S. 134, 94 S.Ct. 1633, 40 L ed 2d 15; Sampson v. Murray, 415 

U.S. 61, 94 S.Ct. 937, 39 L ed 2d 166. Here the appellant's 

interest is more one of expectancy of employment than any 

property interest. Leek v. Theis, 217 Kan. 784, 539 P.2d 304; 

Wheeler v. School District #20, in County of El Paso, (Colo. 1975), 

535 P.2d 206; Tupper v. Fairview Hospital & Training Ctr., M.H.D., 

(0re.App. 1975), 540 P.2d 401; Turner v. Board of Trustees, 

Calexico U. Sch. Dist., 121 Cal.Rptr. 715, 535 P.2d 1171. 

Therefore, because the controlling statute gave the 

Mayor the right to terminate the probationary officer without 

cause and without a hearing we find no violation of any accused 

right of such prohibiting policies and no violation of due process. 

/---'.. \ 

'- 

-'. 

i Justice 

We concur: ./ 
.................................... 

Justices 

sitting in place of Mr. Chief Justice 

James T. Harrison. 
Mr. Justice Gene B. Daly dissenting: 

I dissent. 

The appellant-officer appeals from an adverse ruling 

of the district court and his principal issue on appeal is that 

the "~etropolitan Police ~aw" establishes his right to a hearing, 

as a probationary full-time officer, when charges have been 

made against him. As a secondary consideration appellant argues 

that these charges reflect on his good name and reputation, etc., 

in the community and therefore he is entitled to a hearing as 

a matter of procedural due process under the Fourteenth Amendment to the Constitution of the United States. He does not declare 

that the City published the charges but that in seeking employment 

thereafter he will be subject to publication of the alleged misconduct which has never been explained. 

It Respondent argues that the mayor gave reasons" not 

I I chargecupon dismissal. This is not to be argued before this 

Court as the matter comes to us without a record upon an "Agreed 

Statement of ~vidence". In the agreed statement of evidence in two 

separate places it is agreed that these are "charges" against the 

officer. 

Somehow the majority has completely avoided any treatment of the principal issue raised by appellant. Then it has 

through some syllogistic method, not disclosed, arrived at the 

I I conclusion that from the facts emerges but one single issue of 

constitutional law." From there the majority gets into a jungle 

I I of "vested rights" attached to "liberty" or property" and declares 

none exist. The authority being the Roth case, supra, which holds 

that a "property right" is created from state laws not the 

Constitution and a hearing is essential when "good name, reputation, honor or integrity is at stake because of what the government 

is doing -- to him+< 9: 9:. " 
Roth does support the principal argument on the statute 

made by the appellant, who draws his constitutional and property 

right from the State law. 

The language of section 11-1806(1), R.C.M. 1947, is 

clear and unambiguous; the police commission shall hear, try 

and decide all charges brought by any person against any member 

or officer of the police department. The three factors (1) 

charges,(2) brought by any person, and (3) against an officer, 

exist in appellant's case. The district court found in its 

order of May 29, 1975, that plaintiff's petition "paragraphs 

I through X are a fair recitation of the facts in this case +i * +<.I1 

Paragraphs I, 111 and VIII of plaintiff's petition set forth that 

Officer Schend was a "full-time Police Officer at the time of his 

removal" and that the mayor alleged "charges" against Officer 

Schend concerning Officer ~chend' s "performance of duty, attitude 

towards his superiors and lack of cooperation with his superiors". 

In addition, the fact that appellant was a "full-time Police 

officer", and that the mayor alleged "charges", is part of the 

agreed statement of evidence before this Court. Clearly, 

appellant in his capacity as an officer, was accused of charges 

by the mayor. 

On the basis of this court's decision in State ex rel. 

0'~eiII.v. Mayor of City of Butte, 96 Mont. 403, 30 P.2d 819, 

wherein the Court held that the mayor has the authority during 

the probationary period to terminate the officer, without cause 

or hearing, the district court here reasoned that until once 

confirmed by the city councel as required by section 11-1803, 

R.C.M. 1947, the probationary appointee is not a member of the 

police force. Thus, concluded the district court in the 

memorandum to its order of May 29, 1975, the mayor had the authoricy 

to terminate the employment of Officer Schend as he had no standing 

or protection under the provisions of section 11-1806, R.C.M. 

1947, requiring a hearing. Therein the district court erred. 
There is no conflict in the statutes as found by the 

district court. The mayor can at any time during an officer's 

probationary period terminate the appointment. However, when 

the mayor or anyone else selects to file charges against "any 

officer or member of the police department", the police commission 

not only has "jurisdiction" but a "duty" imposed by statute to 

hear, try and decide "all charges". 

The judgment of the district court should be reversed; 

the officer-appellant reinstated to his position on the police 

force.