NO. 92-505 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

FRANK TALLEY, 

Plaintiff and Appellant, 

FLATHEAD VALLEY COMMUNITY COLLEGE, 

a Community College organized by 

the voters of Flathead County, bz &,? 

Montana, on April 1, 1967, according U jg * 

to the Community College Law of the g +; " ., - '* -,."*- 

1965 Montana Legislative Assembly; 

HOWARD L. FRYETT, Individually and a;88 ,-* <J t'J 9 * as President of Flathead Valley #a ,9 .* 

Community College; DENNIS P. ADAM§, 

Individually and as Dean of Educational 

Services of Flathead Community College; 

LOWELL JAEGER, Individually and as the 

Chairman of the Division of Humanities 

of Flathead Valley Community College; 

and DOES 1 through 5, inclusive, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael H. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

E. Eugene Atherton, Kalispell, Montana 

For Respondents: 

Jonathan B. Smith, Deputy Flathead County Attorney, 

Kalispell, Montana 

For Amicus Montana Federation of Teachers: 

Michael Dahlem, Helena, Montana 

Submitted on Briefs: May 13, 1993 

Filed: 

Decided: July 29, 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from a grant of summary judgment to Flathead 

Valley Community College by the Eleventh Judicial District Court, 

Flathead County. We affirm. 

We consider the following issue on appeal: 

Did the District Court err in granting Flathead Valley 

Community College's motion for summary judgment? 

This action involves a series of term contracts signed between 

part-time instructor, Frank Talley (Talley) and Flathead Valley 

Community College (FVCC). The series of term contracts began in 

September of 1982 and continued throughout the winter term of 1989, 

constituting 24 terms at the college. 

During the winter of 1989, FVCC canceled Talley's Religious 

Studies class and reinstated it after objections were raised by 

Talley. Subsequently, Talley's classes for spring term were listed 

but again canceled. Talley's classes were cut again during the 

summer and fall terms. Talley has not been rehired by the college. 

Talley filed a complaint and demand for jury trial on October 

lo, 1989. Talley claimed that he has not been rehired because he 

has spoken out concerning policies at the college and in 

retaliation for union activity. FVCC claims that he was not 

rehired because of inadequate enrollment. On November 3, 1989, 

Talley filed an application for Alternative Writ of Mandate. The 

District Court issued an alternative writ on November 15, 1989, 

requiring the college to either reinstate Talley to his teaching 

position or to show cause why it should not do so. 

2 
FVCC filed a motion to quash the writ and to dismiss the 

application on November 20, 1989. A hearing was held on December 

21, 1989, and subsequently the court quashed the alternative writ 

and dismissed the application for writ of mandate. Talley again 

filed an application for writ of mandate which was also denied by 

the court on August 9, 1991. At this time the court also denied 

FVCCVs motion to dismiss. 

The original complaint in this action contained nine counts. 

On February 19, 1992, Talley filed an amended complaint alleging a 

tenth count based upon Montana's educational tenure statute, 5 20- 

4-203, MCA. Talley claimed that the tenure statute applies to 

part-time instructors of community colleges. 

FVCC filed a motion for summary judgment on April 3, 1992. On 

July 30, 1992, Talley filed a cross-motion for summary judgment 

concerning Counts Ten, Three, Four, and Six of his amended 

complaint. The court issued its Memorandum and Order September 21, 

1992, granting FVCC's motion for summary judgment as to all counts 

except for claims of free speech in Count Four and the attendant 

issues of a f 1983 claim and attorney's fees from Count Six and 

Count Nine. 

Upon motion of Talley, the District Court in its September 21 

Order also certified an interlocutory appeal pursuant to Rule 

54 (b) , M.R.Civ.P. 

Did the District Court err in granting Flathead Valley 

Community College's motion for summary judgment? 

a. Statutory Tenure 
Talley argues that according to § 20-4-203, MCA, he has 

acquired tenure. According to Talley, changes in the law governing 

community colleges do not preclude the tenure statute from applying 

to instructors at FVCC. Talley further argues that FVCC1s 

definition of "teachers" is incorrect. 

FVCC argues that the tenure statute is applicable to teachers 

in elementary and high school districts, but not to part-time 

instructors at a community college. FVCC contends that Montana has 

already defined "school teacher" as excluding community college 

instructors. Further, FVCC argues that the use of "teacher" in the 

tenure statute also requires that a person be certified to teach by 

the Department of Public Instruction and that such is not the case 

for instructors at FVCC. 

The District Court determined that no genuine issues of 

material fact were present and that FVCC was entitled to summary 

judgment as a matter of law. The court determined that the tenure 

statute did not include community college faculty. The court 

granted summary judgment to FVCC on the tenure question which was 

Count Ten of Talley1s complaint. 

Our standard of review for a grant of summary judgment is the 

same as that initially applied by the trial court under Rule 56, 

M.R.Civ.P, Wangen v. Kecske (Mont. l993), 845 P.2d 721, 726, 50 

St .Rep. 6, 9. Summary judgment is appropriate if no genuine issues 

of material fact exist and the moving party is entitled to judgment 

as a matter of law. Rule 56(c), M.R.Civ.P. 
The moving party has the initial burden to prove that there 

are no genuine issues of any fact deemed material. Wanaen, 845 

P.2d at 726. Once movant has met this burden, the non-moving party 

must present evidence that a material fact does exist. Wanaen, 845 

P.2d at 726. Here, Talley also moved for summary judgment on this 

same issue 

The District Court determined that no disputed facts existed 

and that FVCC, which had moved for summary judgment, was entitled 

to judgment as a matter of law. Talley argued to the District 

Court that he, not FVCC, was entitled to summary judgment as a 

matter of law. Thus, the pivotal question is a matter of legal 

interpretation. 

This is a case of first impression in Montana as this Court 

has not previously interpreted 5 20-4-203, MCA. That section 

provides: 

20-4-203. Teacher tenure. (1) Except as provided 

in 20-4-208, whenever a teacher has been elected by the 

offer and acceptance of a contract for the fourth 

consecutive year of employment by a district in a 

position reauirins teacher certification except as a 

district superintendent or specialist, the teacher is 

considered to be reelected from year to year thereafter 

as a tenure teacher at the same salary and in the same or 

a comparable position of employment as that provided by 

the last executed contract with the teacher unless the 

trustees resolve by majority vote of their membership to 

terminate the services of the teacher in accordance with 

the provisions of 20-4-204. 

(2) The tenure of a teacher with a district may not 

be impaired upon termination of services of the teacher 

if the following conditions exist: 

(a) the tenure teacher is terminated because the 

financial condition of the district requires a reduction 

in the number of teachers employed; and 

(b) continued employment rights are provided for in 

a collectively bargained contract of the district. 

(Emphasis added.) 

5 
The legislature has defined "teacherw in Chapter 20 as: 

(18) "Teacher1' means any person, except a district 

superintendent, who holds a valid Montana teacher 

certificate that has been issued by the su~erintendent of 

public instruction under the provisions of this title and 

the policies adopted by the board of public education and 

who is employed by the district as a member of its 

instructional, supervisory, or administrative staff. 

This definition of a teacher shall also include any 

person for whom an emergency authorization of employment 

of such person has been issued under the provisions of 

20-4-111. (Emphasis added.) 

Section 20-1-101, MCA. We consider whether Talley as an instructor 

at a community college is a llteacher" to whom the tenure statute 

applies. 

Talley contends that § 20-4-203, MCA, must include community 

college instructors because it always has and the legislature has 

not repealed it since it was originally codified as 5 75-6103, RCM, 

in 1971. We decline to read "community colleges" into Chapter four 

of Title 20. Talleyls assertion that we have previously defined 

"school teacher" as including those who teach in the State's system 

of higher education, citing Teamsters v. Cascade County School 

District No. 1 (1973), 162 Mont. 277, 511 P.2d 339, is incorrect. 

The Teamsters case defined who was included in the term "employees 

of the State." The action was one by the non-teaching employees of 

the State to obtain vacation time pursuant to 5 59-1001, RCM 

(1947). Teamsters is not authority for the definition of teacher 

as it applies to community colleges. 

The current law includes § 20-4-203, MCA, and uses the word 

"teacher." The current definition section of Chapter 20 which 

defines teacher, states that a teacher is a person required to have 
a "teacher certificate that has been issued by the superintendent 

of public instruction." Section 20-1-101(18), MCA, 

While it is true the community colleges of this State were 

once under the authority of OPI and were referred to as a School 

District, community colleges have been referred to as Community 

College Districts since 1979. In these Community College 

Districts, teaching faculty are not required to have teaching 

certificates issued by the OPP, although other requirements exist 

for employment as an instructor. 

The 1979 Legislature attempted to clarify the statutes 

governing community colleges by combining the statutory guidelines 

concerning the community colleges into one chapter of Title 20-- 

Chapter 15: 

Precedence of community college chapter. Unless 

swecifically identified in anv other sections of the 

school laws orescribed in this title, community college 

districts are governed by the provisions of tJ& chapter. 

Should there be a conflict between other requirements of 

this title and the provisions of this chapter regulating 

community college districts, the provisions of this 

chapter shall govern. (Emphasis added.) 

Section 20-15-402, MCA. 

This language clearly indicates that unless a statute in Title 

20, other than in Chapter 15, specifically notes that it applies to 

community colleges, it does not apply to community colleges. The 

tenure statute is in Chapter 4 of Title 20. FVCC argues that the 

tenure statute does not specifically mention community colleges: 

therefore, it does not apply to them. We agree. Our job as a 

reviewing court is to interpret the laws before us -- not to add to 

those laws. Section 1-2-101, MCA. 
The clear meaning of $, 20-4-203, MCA, is that it applies to 

all teachers who have been certified to teach by the Superintendent 

of Public Education and who teach in school districts under the 

authority of the OPI. Instructors at a community college are not 

required to have certificates from the Superintendent and do not 

teach in school districts under the authority of the OPI. Community 

college instructors are not teachers as that term is defined in 

Chapter 4 of Title 20. 

Because community colleges are not now governed by OPI as they 

once were, the Teamster case is no longer precedent for 

circumstances which involve community college instructors. To that 

extent, Teamsters is overruled. We have had occasion to consider 

the question of the relationship between community colleges and the 

word "teacher" found in § 20-1-101(20), MCA (now $, 20-1-101(18), 

MCA) . 

In Rippey v. Flathead Valley Com. College (1984), 210 Mont. 

396, 682 P.2d 1363, we held that the ordinary meaning of the word 

"teacherw does not encompass higher education faculty, "including 

a community college faculty member." Ri~~ey, 210 Mont. at 400, 682 

P.2d at 1365. While the Ripwev case dealt with sick leave 

compensation for faculty members at FVCC, the holding specifically 

interpreted the word l'teachert' as it is used in the current Title 

20 definition. 

Both Rip~ey and the plain wording of 5 20-4-lOl(l8), MCA, 

preclude any instructor at a community college in Montana from 

relying on the tenure provisions in 5 20-4-203, MCA. Trustees of 
the community colleges have been given power by the Legislature to 

establish the conditions of employment of their staff and 

instructors pursuant to § 20-15-225(1) (h), MCA. If FVCC chooses to 

have tenured faculty, it may establish the conditions under which 

that tenure is applied. Chapter 15 also contains the limitations 

of power with which the Legislature embued tmstees: 

Trustees to adhere to certain other laws. Unless the 

context clearly indicates otherwise, the trustees of a 

community college district shall adhere to: . . . . 

Section 20-15-404, MCA. 

What follows is a long list of other sections in Title 20 with 

which trustees of a community college must also comply. Section 

20-4-203, MCA, is not one of them. 

We conclude that § 20-4-203, MCA, does not control tenure for 

instructors at any community college in Montana. Community 

colleges are unique centers for learning; they are neither high 

schools, nor are they part of the University System. Riwwev, 210 

Mont. at 397-98, 682 P.2d at 1364. Similarly, instructors teaching 

at these centers are also unique. Montana law specifically 

designates that community college districts are under the control 

of the Board of Regents and that community college trustees have 

the power to set conditions of employment for their faculties. 

We hold that the District Court did not err in granting 

summary judgment as to Count Ten of Talley's amended complaint. 

b. Em~lovment Arranqements, Past Practices and Prooerty 

Interests. 
Talley argues here that he is entitled to a "reasonable 

expectation of the opportunity for continuing employment." Such an 

expectation, argues Talley, is differentiated from his tenure 

argument. FVCC argues that Tally can have no such expectation 

because of the clear wording of his term-by-term contracts. 

F'VCC contended, and Talley did not deny, that every term 

contract signed by Talley contained the following phrase: 

It is understood and agreed that acceptance of this 

contract confers no right on the part-time faculty member 

to tenure, credit toward tenure, or any other oermanent 

facultv status. (Emphasis added.) 

The wording of this phrase clearly indicates that any expectation 

of permanent status cannot be rooted in the term-by-term contracts 

which Talley has signed. 

First, Talley argues that in his 1982 contract the 

aforementioned paragraph contained another sentence, part of which 

reads: "hut mir\l he rene~ed 1?pn the same terms by m%tual a~lreement, 

made in writing between the partiesen (Emphasis added.) Talley 

argues that because this phrase was in his earlier contracts, that 

it must be read into all subsequent contracts which did not contain 

the wording. 

Courts may not disregard the express language of contracts. 

New Hampshire Ins. Group v. Strecker (1990), 244 Mont. 478, 798 

P.2d 130. The express wording of the contract signed by Talley 

indicates that the term contract cannot be the foundation for any 

kind of expectation of permanent employment. While he has used the 

phrase iqopportunity for continuing employmentsi such a phrase is not 

legal and is an exercise in semantics. The essence of Talleyss 

10 
argument is that he was entitled to continuing employment at FVCC. 

We considered a similar argument in Farris v. Hutchinson 

(1992), 254 Mont. 334, 838 P.2d 374. Farris was employed under a 

series of term contracts prepared by the Montana University System. 

The last contract was effective between July 1, 1990, and June 30, 

1991. Pursuant to a notice provision in her last contract, Farris 

received notice in February of 1991 that her contract would not be 

renewed. No reason for non-renewal was given. 

Farris argued that she could show objective manifestations of 

job security beyond the term contract and thus, a genuine issue of 

material fact existed and summary judgment should not be granted. 

Farris, 254 Mont. at 337, 838 P.2d at 376. That is exactly the 

argument that Talley makes here. He argues that he was given oral 

manifestations of continued employment despite the wording of his 

contract. 

In Farris we pointed out that an agreement made in writing 

cannot be altered except by another writing or by an executed oral 

agreement, in response to the same argument as that made here by 

Talley, we further stated in Farris that no obligation can be 

implied which would result in the obliteration of a right expressly 

given under a written contract. Farris, 254 Mont. at 339, 838 P.2d 

at 377. Talley's contract is clear in regard to the very nature of 

his employment. No obligation can be inferred which would indicate 

an alteration of that agreement. 

Talley further argues that he had a property right in his 

position as a part-time instructor at the college. Such a property 
interest, contends Talley, requires that he be given notice and a 

hearing before termination. FVCC argues that Talley did not have 

a property interest in his employment. 

We have recognized that a property interest in one's position 

must be created by existing rules and regulations, state laws, or 

understandings between employee and employer. Medicine Horse v. 

Big Horn Co. School District (lggl), 251 Mont. 65, 70, 823 P.2d 

230, 233. In Medicine Horse, an employee argued he had a property 

interest in his employment despite the lack of any such indication 

in his employment contract. We refused to read a property right 

into Medicine Horse's contract. 

Unlike Medicine Horse's contract, Talley's contract 

specifically precludes any property right. In the face of such 

plain wording, Talley's subjective belief that he had a property 

interest in his job simply does not create such an interest. A 

subjective expectancy can create no constitutionally protected 

interest. Medicine Horse, 251 Mont. at 71, 823 P.2d at 233; citing 

Perry v. Sindermann (1972), 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 

570. 

It is the Sindermann case which Talley cites for the argument 

that he has a property right in his position at FVCC. He does not 

explain that statement, nor do we find anything in Sindermann which 

confirms his analysis of the case. Sindermann merely determines 

that a property right in employment may be created by past 

practices or "mutually explicit understandingsv of employer and 
employee. Sindermann, 408 U.S. at 601, 92 S.Ct. at 2699, 33 

L.Ed.2d at 580, 

The manifestations that Talley indicates existed are not 

wobjectivew but are totally subjective. The clear wording in his 

contract precludes any objective expectation of continuing 

employment. 

We conclude that the contract between FVCC and Talley is 

clear and unambiguous on its face and creates no expectations of 

continuing employment with the college. FVCC met its burden by 

presenting the clear, unambiguous language of the contracts signed 

by Talley. Talley has not successfully rebutted this evidence nor 

shown that he is entitled to judgment as a matter of law. We hold 

the District Court did not err in granting summary judgment to FVCC 

on Count One of Talley's Amended Complaint. 

c. The Implied Covenant of Good Faith and Fair Dealinq. 

Talley argues that the various defendants here acted in 

violation of the covenant of good faith and fair dealing. FVCC 

argues that the contract between it and Talley was not breached 

and, therefore, the college did not violate the covenant. 

Talley did not file a cross-motion for summary judgment on 

this issue. Therefore, FVCC had the burden to prove that no 

material issue existed and it was entitled to judgment as a matter 

of law. It met that burden. Talley did not successfully rebut it. 

Talley argued that under Montana law, the covenant of good 

faith and fair dealing is implied into every contract. Mann Farms, 

Inc. v. Traders State Bank of Poplar, Montana (1990), 245 Mont. 
234, 801 P.2d 73. This is true. Thus, Talley argues that the 

college breached the covenant by not hiring him back. 

Talley has overlooked a significant factor: the nature and 

extent of the obligation of good faith and fair dealing is measured 

by justifiable expectations of the parties. Cook v. Principal Mut. 

Life Ins. Co. (D.Mont. 1990), 784 F.Supp. 1513. The existence of 

the "no-tenure" phrase from Talleyis contracts is an undisputed 

material fact. Despite such agreement, Talley argues he had a 

reasonable expectation of continuing employment. Given the plain 

wording of his contracts, such an expectation is not reasonable, 

nor is it justifiable. 

Talley presents no argument which indicates a justifiable 

expectation in continued employment. We hold that the District 

Court did not err in granting summary judgment to FVCC on Count Two 

of Talley's Amended Complaint. 

d. Tortious Interference with a Contract Riqht and 

Constitutional Claims. 

These arguments comprise Counts Three and Four of Talley's 

Amended Complaint. Talley filed a cross-motion for summary 

judgment on these two Counts. Talley argues that FVCC violated his 

constitutional rights under the United States and Montana 

Constitutions: 

No person shall be deprived of life, liberty or property 

without due process of law. 

Art. 11, Sec. 17, Mont.Const. Talley also argues equal protection, 

denial of due process, two issues on free speech and one for 

slander, privileges and immunities under the First, Fifth and 

14 
Fourteenth Amendments and a 42 USC 5 1983 claim. FVCC argues that 

there was no tortious interference with Talley's expectancy in 

continuation of his employment because of the clear wording in his 

contract. FVCC also contends that 5 1983 claims are not 

substantive claims but are based upon a deprivation of a 

constitutional right and Talley's rights have not been violated 

under the Montana or the United States Constitution. 

The District Court granted FVCCqs motion for summary judgment 

as to all issues except the free speech claims. Because most of 

these claims are based upon Talley's property interest argument, we 

direct the reader to previous portions of this opinion and restate 

our prior determination: Under the facts of this case, Talley has 

no property interest in his position because his contract clearly 

prohibits it. Therefore, due process under the Montana or United 

States Constitution is not at issue. Further, all contracts with 

FVCC were successfully completed; thus, tortious interference with 

a contract is not an appropriate claim. Nor does the record 

contain evidence that others similarly situated were treated any 

differently than Talley in his position as part-time instructor, 

precluding an equal protection argument. The Privileges and 

Immunity clause of the Fourth Amendment prevents discrimination by 

states against non-residents. The Privileges and Immunity clause 

of the Fourteenth Amendment protects attributes of United States 

citizenship and is rarely applicable. There is no privileges and 

immunities clause in the Fifth Amendment. Therefore, any 

privileges and immunities argument is also inappropriate. 
However, the District Court did determine that Talley had a 

right to free speech which was protected by due process. The court 

did not determine whether this right had been violated. The claim 

evolved from a letter sent to Talley from FVCC during the course sf 

legal proceedings. FVCC there informed Talley that he would be 

considered for rehire in future terms only if he disavowed that he 

had expectations of continued employment. 

The District Court denied both FVCC's and Talleyts motions for 

summary judgment on the free speech issue attendant to Count Four 

of the amended complaint concerning free speech. No summary 

judgment being issued, that claim is still alive. Further, the 6 

1983 claim cannot be considered until Talley's free speech claims 

are determined because a 61983 claim is based upon the deprivation 

of "rights, privileges, or immunities secured by the Constitution 

and laws" of the United States. 42 USC 6 1983; Dagel v. City of 

Great Falls (1991), 250 Mont. 224, 819 P.2d 186. 

We conclude that the only constitutional claim which has merit 

under the pleadings is the claim of denial of free speech according 

to the First Amendment to the United States Constitution and the 

attendant 6 1983 claim. (Count Nine alleges a claim of slander and 

presents a question of fact to be considered by a jury.) 

We hold that the District Court did not err in so determining. 

e. Attornev's Fees. 

The District Court determined that attorney's fees for the 

constitutional violations associated with 42 USC 6 1983 could not 

be determined until after litigation of the free speech issue. If 
Talley prevails on his free speech claims, the District Court 

determined that he would be entitled to attorney's fees. 

Consideration of attorney's fees is, therefore, premature at this 

time . 

f. Iniunctive Relief. 

Talley argues that he is entitled to injunctive relief and 

rehire because he was not rehired because of his exercise of free 

speech. FVCC contends that there are no grounds on which 

injunctive relief could be granted to Talley. 

The District Court determined that because Talley did not have 

a property interest in his position as part-time instructor, there 

were no grounds for injunctive relief. 

An injunction is an equitable remedy fashioned according to 

the circumstances of a particular case. Montana Tavern Ass'n v. 

State By and Through Dept. of Revenue (l986), 224 Mont. 258, 729 

P.2d 1310; 5 27-19-101, MCA, et seq. The issuance or refusal of 

injunction is addressed to the discretion of the trial court. 

Butler v. Germann (1991), 251 Mont. 107, 822 P.2d 1067. Because 

Talley did not have a property interest or a right to tenure under 

Montana's laws, the court did not abuse its discretion in denying 

a grant of injunction. 

We hold that the District Court did not err in granting 

summary judgment to FVCC on Count Eight of Talley's amended 

complaint. 

Affirmed . 
We Concur: 

Justice Terry N. Trieweiler did not participate. 
July 29, 1993 

CERTIFICATE OF SERVICE 

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

named: 

E. Eugene Atherton 

Attorney at Law 

735 Main St. 

Kalispell, MT 59901 

Jonathan B. Smith, Deputy 

Office of the County Attorney 

P.O. Box 1516 

Kalispell, MT 59903-1516 

Michael Dahlem, Esq. 

Montana Federation of Teachers 

P.0. BOX 6169 

Helena, MT 59604 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE, OF FONTANA