No. 90-331 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

JOHN J. STUART AND 

LEE J. TICKELL, 

Plaintiffs and Appellants, 

DEPARTMENT OF SOCIAL AND REHABILITATION 

SERVICES, a state agency with the 

executive branch of state government, 

and the STATE OF MONTANA, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena, 

Montana 

For Respondents: 

G. Curtis Drake; Keller, Reynolds, Drake, Sternhagen 

& Johnson, Helena, Montana 

For Amicus: 

Carter N. Picotte, Attorney at Law, Helena, Montana 

(For Montana Public Employees Association) 

Submitted on Briefs: February 13, 1991 

Filed: MAR - 6 1991 Decided: March 6, 1991 

tlerk 
Justice R.C. McDonough delivered the Opinion of the Court. 

Plaintiffs, John J. Stuart and Lee J. Tickell, appeal from an 

order of the First Judicial District Court, Lewis and Clark County, 

granting summary judgment in favor of the Department of Social and 

Rehabilitation Services (hereinafter SRS) and the State of Montana 

and dismissing plaintiffs' complaint. We affirm in part, reverse 

in part and remand. 

The issues are: 

1. Whether the District Court erred in finding that the 

appellants were not denied notice and opportunity for hearing with 

respect to forfeiture of their annual leave. 

2. Whether the District Court erred in granting summary 

judgment on the basis that thc appellants' failure to exhaust 

administrative remedies precluded them from challenging the 

constitutionality of 5 2-18-617(2), MCA. 

3. Whether this Court should assume original jurisdiction 

under the Montana Declaratory Judgments Act to resolve the 

remaining constitutional issues raised. 

John J. Stuart was the Chief of the Personnel Division for 

SRS . Lee J. Tickell was the Acting Administrator of the 

Centralized Services Division of SRS. On July 21, 1989, the 

Director of SRS gave notice by letter to both Stuart and Tickell 

that their employment with SRS was terminated as of July 31, 1989, 

unless they requested a hearing on the terminations. Both were 

advised that they were temporarily suspended without pay pending 
a final date of termination. Stuart and Tickell were further 

advised that the reasons for their terminations were criminal 

mischief charges pending against them for destroying property of 

a fellow employee. An additional reason given for Tickell1s 

termination was SRS1s conclusion, following an investigation, that 

he had committed sexual harassment and other misconduct against 

female employees of SRS. 

On July 25, 1989, by separate letter, Stuart and Tickell both 

requested a hearing on their respective terminations. Both parties 

agreed to submit the issue of suspension without pay to a hearing 

examiner without a formal hearing. On August 25, 1989, the hearing 

examiner issued a proposed order upholding the decision of SRS to 

suspend the employees without pay. The issue of the employees 

using their accrued compensation or annual leave during the period 

of suspension was also brought before the hearing examiner, 

however, the hearing examiner refused to rule on the issue stating 

that the employees first had to submit their requests to SRS for 

a decision consistent with administrative rules and agency policy 

pursuant to Section 2.21.8013, A.R.M. SRS adopted the recommended 

order of the hearing examiner on August 28, 1989. 

On that same day, Stuart and Tickell submitted formal requests 

to SRS to use their accrued compensation time and annual leave for 

their grievance proceedings. On September 11, 1989, SRSts attorney 

sent a letter to appellants1 attorney advising them that SRS would 

not offer Stuart and Tickell the right to use accrued compensation 
time, and that the use of accrued annual leave was also being 

denied until the terminations were final. The appellants were 

advised to resubmit their requests for accrued annual leave at that 

time. 

On September 20, 1989, Stuart was convicted of felony criminal 

mischief, and Tickell was convicted of the felony offense of 

accountability for criminal mischief. On September 29, 1989, each 

appellant was paid one quarter of their accumulated sick leave 

pursuant to 5 2-18-618 (5) , MCA, and orally notified that they would 

not receive their accrued annual leave. On October 10, 1989, 

Stuart and Tickell stipulated to waive their rights to the 

administrative hearing on their terminations, as a result of the 

conviction of criminal charges. 

Stuart and Tickell filed the complaint in this action in 

District Court on October 6, 1989, challenging the failure of SRS 

to reimburse their accrued annual leave upon their termination. 

In addition, appellants sought penalties under §§ 39-3-205 and 206, 

MCA, as well as a declaratory ruling that they were entitled to 

accrued annual leave because they had no notice of forfeiture, and 

a declaratory ruling that 2-18-617 (2) , MCA, was unconstitutional. 

On June 18, 1990, the District Court granted summary judgment in 

favor of SRS and plaintiffs appealed. 

The first issue is whether the District Court erred in finding 

that the appellants were not denied notice and opportunity for 

hearing with respect to forfeiture of their annual leave. 
Appellants argue that they were never given any notice of 

forfeiture and notice of a right to file a grievance and, 

therefore, were deprived of their accumulated annual leave without 

due process. We disagree. The record shows that the appellants 

requested hearings on their terminations and agreed to have a 

hearing examiner decide the issue of suspension without pay. They 

also brought before the hearing examiner the issue of using accrued 

annual leave during the period of suspension, however the hearing 

examiner refused to rule on that question and informed appellants 

that they should submit their requests in accordance with 

administrative regulations. Appellants did so and were notified, 

in writing, by counsel for SRS on September 11, 1989, that their 

requests were denied. The letter went on to read, 

Although SRS is denying the request to use vacation time 

now, this may be reviewed when the employees are actually 

terminated, which cannot occur with respect to Mr. Stuart 

and Mr. Tickell until they have had the administrative 

hearing which they have demanded as part of the grievance 

procedure. If they wish to resubmit their requests for 

unused vacation time upon actual termination, it will be 

reconsidered. 

Actual termination could not have occurred until Stuart and 

Tickell waived their right to the hearings on their terminations 

on October 10, 1989. Therefore the issue of whether they were 

entitled to their annual leave upon termination could not be 

addressed until that time. 

In Welsh v. City of Great Falls (1984), 212 Mont. 403, 690 

P.2d 406, we stated that an individual can only waive his right to 

a hearing if he knew of his right and voluntarily waived that 
right. Welsh, 212 Mont. at 411, 690 P.2d at 411. Whether 

appellants knew of their right by way of notice or whether they had 

independent knowledge of a right to a hearing does not matter. 

Here, Stuart was formerly the head of the Personnel Division for 

SRS and Tickell the acting administrator of SRS1s Centralized 

Services Division. Both had, by experience, superior knowledge of 

grievance procedures in their agency and utilized them personally 

in grievance matters. In addition, the letter clearly notified 

appellants of the fact that they were entitled to request their 

annual leave upon actual termination. These facts coupled together 

certainly indicate appellants knew they may not receive their 

annual leave and, if such were the case, were entitled to a hearing 

on the matter. 

A waiver of a right can be express or implied by conduct. 

Welsh, 212 Mont. at 411, 690 P.2d at 411. The appellants never 

attempted to pursue their administrative remedy with respect to 

their forfeiture of annual leave. They attempted to proceed 

directly to the District Court, and in fact, filed their complaint 

in District Court before they had even had their requested hearings 

on the matter of their terminations. Such conduct can only be 

interpreted to be a voluntary waiver of appellants1 right to a 

hearing on their denial of annual leave. The appellants cannot 

fail to pursue an available administrative remedy and then turn 

around and claim they were denied due process. We hold that the 

District Court did not err in finding that the appellants were 
afforded sufficient due process with respect to forfeiture of their 

annual leave. 

The second issue is whether the District Court erred in 

granting summary judgment to SRS on the basis that the appellants1 

failure to exhaust their administrative remedies precluded them 

from challenging the constitutionality of 5 2-18-617, MCA. 

The District Court held that since the appellants failed to 

give the SRS agency an opportunity to resolve the grievance, all 

various constitutional claims made by appellants must fail. The 

District Court failed to explain how it reached this conclusion and 

we can only surmise that it relied on the arguments made by SRS. 

SRS contends that since appellants presented issues suitable for 

administrative review in addition to the constitutional issues, the 

appellants must first exhaust their administrative remedies. SRS 

cites Raynes v. City of Great Falls (1985) , 215 Mont. 114, 696 P. 2d 

423, in support of its argument. Ravnes does not state that all 

issues must be constitutional before those issues can be brought 

in a declaratory judgment action without exhausting administrative 

remedies. The language in Ravnes is somewhat misleading as the 

special concurrence therein indicates. It is possible for a 

constitutional claim to not be properly before a court in a 

declaratory judgment action as was the situation in Ravnes, 

however, this does not mean administrative remedies must be 

exhausted before bringing a declaratory judgment action to resolve 

a constitutional question. This Court has previously held that the 
exhaustion doctrine is not applicable to constitutional issues. 

See Mitchell v. Town of West Yellowstone (1988) , 235 Mont. 104, 765 

P.2d 745. SRS also cites Roeber v. State of Montana (1990), 243 

Mont. 437, 795 P.2d 424, to support the argument that declaratory 

judgment proceedings are unavailable if an administrative remedy 

is available. In Roeber, however, there were no constitutional 

issues raised. Roeber is inapplicable to the situation here. 

Constitutional issues are questions for the courts and not 

administrative agencies. As we stated in Mitchell: 

When such a bona fide constitutional issue is raised, a 

plaintiff has a right to resort to the declaratory 

judgment act for a determination of his rights; and he 

may not be required to submit himself to the provisions 

of the ordinance which he claims are unconstitutional. . . . The first business of courts is to provide a forum 

in which the constitutional rights of all citizens may 

be protected. 

Mitchell, 235 Mont. at 109-110, 765 P.2d at 748. 

Appellants are not precluded from challenging the 

constitutionality of 5 2-18-617, MCA, solely on the basis that they 

failed to exhaust their administrative remedies. The 

constitutional issues raised, excluding their denial of due process 

claim, were properly before the District Court. 

The last issue is whether this Court should assume original 

jurisdiction under the Montana Declaratory Judgments Act to resolve 

the constitutional issues raised by appellants. 

Appellants urge this Court to exercise our original 

jurisdiction under the Uniform Declaratory Judgments Act, §§ 27- 

8-101 et seq., MCA, and resolve the remaining constitutional 
issues. The three major factors that must exist before this Court 

will exercise its original jurisdiction are: 

(1) where constitutional issues of major statewide 

importance are involved, (2) where the questions involved 

are purely legal questions of statutory or constitutional 

construction, and (3) where urgency and emergency factors 

exist making the normal appeal process inadequate. 

(Citation omitted.) 

White v. State (1988), 233 Mont. 81 at 84, 759 P.2d 971 at 973. 

Taking each factor individually, we first consider whether the 

constitutional issues raised by appellants are of major statewide 

importance. Appellants challenge the constitutionality of 5 2- 

18-617(2), PICA, on its face and, consequently, challenge a statute 

that applies to State employees and has the potential of affecting 

all State employees upon their termination. A statute with the 

potential of affecting such a large number of individuals across 

the State can be classified as major statewide importance. 

The second factor requires that there be only legal questions 

involved. The District Court granted a summary judgment and could 

not have done so if there existed any material issue of fact. In 

reviewing the record we agree with the District Court and find the 

second factor exists. 

However, upon consideration of the third factor, we cannot 

conclude that there exists any urgency or emergency factors that 

make the normal appeal process inadequate. It is not a situation 

where appellants have been suspended and are still waiting for a 

decision on whether they have jobs, and similarly, to our knowledge 

there exists no immediate circumstances where others need an 
expeditious result. The normal appeal process is clearly adequate 

in this situation and such being the case, we will not usurp the 

jurisdiction of the District Court. 

The issue of due process is affirmed. The remaining 

constitutional issues of equal protection, improper delegation of 

authority and vagueness as they relate to 5 2-18-617(2), MCA, are 

remanded to the District Court for further proceedings.