Jaksha v. Butte-Silver Bow County

• Decision Date: 11 August 2009
• Docket Number: No. DA 08-0457.,DA 08-0457.
• Parties: Steven JAKSHA, Plaintiff, Appellant and Cross-Appellee, v. BUTTE-SILVER BOW COUNTY, Defendant, Appellee and Cross-Appellant.
• Court: Montana Supreme Court

214 P.3d 1248

2009 MT 263

352 Mont. 46

Steven JAKSHA, Plaintiff, Appellant and Cross-Appellee, v. BUTTE-SILVER BOW COUNTY, Defendant, Appellee and Cross-Appellant.

No. DA 08-0457.

Supreme Court of Montana.

Submitted on Briefs July 8, 2009.

Decided August 11, 2009.

Frederick F. Sherwood, Reynolds, Motl & Sherwood, Helena, MT, for Appellant.

Thomas M. Welsch, Cindy L. Walker, Poore, Roth & Robinson, P.C., Butte, MT, for Appellee.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Steven Jaksha (Jaksha) appeals from a jury verdict and posttrial rulings in the Second Judicial District Court. Jaksha filed a complaint alleging he had been unlawfully denied employment as a probationary, entry-level firefighter by Butte-Silver Bow County (County) because of his age. The jury found in favor of the County on Jaksha's claims. In posttrial motions, Jaksha challenged the constitutionality of § 7-33-4107, MCA, which disqualifies an individual from receiving an original appointment as a firefighter if he is more than 34 years of age at the time, and upon which the County relied in denying Jaksha employment as a firefighter. The District Court denied Jaksha's challenge to the constitutionality of § 7-33-4107, MCA. We reverse, and hold that § 7-33-4107, MCA, is unconstitutional. For the reasons set forth below, however, we do not reinstate Jaksha's claims against the County or otherwise order a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Jaksha was born in Butte, Montana, in 1970, and has lived there almost all of his life. Beginning in 2000, and every year through 2004, Jaksha applied to be a firefighter for the County. Part of the application process includes taking a standardized written and physical exam offered by the Montana Firefighters' Testing Consortium (Consortium), a group of firefighting departments within the state of Montana. After the June 2004 testing and interviews held by the County in October 2004, an individual named Curtis Kindt was ranked number one in the County's firefighting hiring list, while Jaksha and an individual named Ryan McCarthy were both considered "equally qualified" and thus tied for the second spot.

¶ 3 On January 31, 2005, the County's Chief Executive Paul Babb (Babb) sent a letter to the County's Council of Commissioners asking them to concur in his conditional appointments of Jaksha, Kindt and McCarthy to the fire department. The Commissioners approved the three men on a hiring list, and decided to hold their names in abeyance until positions became available. The first opening in the fire department became available in early May 2005 and Babb appointed Kindt to the position. The next County firefighting position became available in June 2005. At the time, Jaksha was 35 years old, while McCarthy was under 34.

¶ 4 Section 7-33-4107, MCA, reads as follows:

7-33-4107. Qualifications of firefighters. The state of Montana determines that age is a valid, bona fide occupational qualification for the position of firefighter because of the rigorous physical demands of the firefighting profession and the expectation of many years of emergency service. The qualifications of firefighters shall be that they:

(1) shall not be more than 34 years of age at the time of original appointment;

(2) shall have passed a physical examination by a practicing physician duly authorized to practice in this state; and

(3) at the option of said city or town, shall be qualified voters of the city or town.

Although Babb considered Jaksha and McCarthy to be "equally qualified," after consulting with the County Attorney, he concluded that Jaksha would be ineligible for the position under this statute due to his age. McCarthy was given the position.

¶ 5 On January 17, 2006, Jaksha filed an age discrimination claim against the County, seeking affirmative relief, back pay, and a declaration that § 7-33-4107, MCA, was unconstitutional. Prior to trial, Jaksha moved for summary judgment on his claim. The District Court, Judge John W. Whelan presiding, denied the motion, holding that there were genuine issues of material fact making summary judgment improper. Although neither party requested a jury trial, Judge Whelan subsequently ordered a jury trial sua sponte.

¶ 6 The pretrial order listed several issues of fact to be decided at trial. One was whether Jaksha was considered qualified for employment after April 15, 2005, the date upon which he turned 35. Also, the jury was to decide whether the County discriminated against Jaksha based on his age and whether Jaksha was entitled to any damages or other remedies. The jury was not asked to decide whether the 34-year-old age limitation on hiring firefighters was based upon a bona fide occupational qualification (BFOQ) due to the rigors of the tasks inherent in being a firefighter. See e.g. Link v. City of Lewistown, 253 Mont. 451, 454, 833 P.2d 1070, 1072 (1992) (discussing § 7-33-4107, MCA). Additionally, the pretrial order stated that after the jury's decision, final judgment would await the District Court's ruling on any equitable aspects of Jaksha's case, and on any declaratory judgment or constitutional issues if necessary.

¶ 7 A jury trial was held in mid-December 2006. The jury heard from a number of witnesses and received numerous exhibits. The jury ultimately returned a verdict in favor of the County, finding that it did not unlawfully deny Jaksha employment as a firefighter based on his age. At the end of 2006, Judge Whelan retired from the bench and Judge Kurt Krueger assumed jurisdiction over the case.

¶ 8 After trial Jaksha renewed his challenge to the constitutionality of § 7-33-4107, MCA, which the District Court denied. In his written order, Judge Krueger noted that the final pretrial order did not state that whether the age limitation in the statute was a legitimate BFOQ was an issue of fact to be determined at trial. Judge Krueger, citing to federal age discrimination cases, observed that the determination of a BFOQ is a "fact-intensive inquiry" which should preferably be made by a jury. The District Court then went on to state:

Had Jaksha listed the issue as a question of fact and submitted it to the jury, he would have had either a favorable finding on the question, on the basis of which this Court could declare § 7-33-4107, MCA, to be unconstitutional, or he would have had an unfavorable finding which he could challenge on appeal. However, Jaksha waived those opportunities by failing to present the issue to the jury. This Court is in no position to make the factual determination on BFOQ at this point, and could not do so in any event without denying [the County] its constitutional right to a jury trial on the issue.

Plaintiff Jaksha's argument that a jury could not determine the constitutionality of § 7-33-4107's age limitation is technically correct, but the constitutionality argument turns on the question whether the age limitation is a BFOQ, which is a fact question. Had that fact question been submitted to the jury and determined in Plaintiff Jaksha's favor, the trial judge could then have declared the statute unconstitutional on the basis of that finding. Plaintiff Jaksha never submitted the BFOQ fact question to the jury. Jaksha's current argument appears to be that this Court, sitting as the finder of fact, can decide fact questions that affect the constitutionality of a statute. This Court is not aware of any authority enabling it to determine questions of fact that should have been determined by the jury at the trial in 2006.

¶ 9 The District Court then went on to state several reasons why it was rejecting Jaksha's posttrial challenge to the constitutionality of § 7-33-4107, MCA. First, it noted that the jury concluded the County had not illegally discriminated against Jaksha, and that his recourse from that verdict is an appeal, and not a request that the District Court declare the statute unconstitutional. Second, the District Court observed that the federal Age Discrimination in Employment Act (ADEA) allows states and political subdivisions to engage in "age discrimination" based on a policy in place prior to March 3, 1983 so long as it is part of a bona fide hiring plan, and not a subterfuge to evade the purposes of the ADEA. Section 7-33-4107, MCA, was amended to its current form in 1981.

¶ 10 Finally, the District Court concluded that Jaksha had simply failed to prove that, but for the age limitation in § 7-33-4107, MCA, he would have been given the position as a firefighter. As stated by the District Court:

Chief Executive Paul Babb considered Plaintiff Jaksha ineligible for the position given to Ryan McCarthy in June 2005 because of the statutory age limitation, but he did not testify that Plaintiff Jaksha would have been given the position had the statutory limitation not existed. That failure of proof is critical because this Court cannot speculate that Plaintiff Jaksha would have been given the position absent the statutory limitation, and accordingly, the Court cannot conclude that the statutory limitation was the actual reason he was not appointed.

¶ 11 Jaksha now appeals from the jury's verdict, as well as the District Court's posttrial order. Jaksha presents eight issues on appeal, challenging various aspects of the District Court's rulings during and after trial. One issue challenges the constitutionality of § 7-33-4107, MCA, on equal protection grounds, as well a County ordinance based upon this statute. We find this issue dispositive, and do not reach the other issues raised by Jaksha's appeal. The County urges us to affirm the District Court, and also cross-appeals for attorney fees and costs. Because we find § 7-33-4107, MCA, unconstitutional, we deny the County's cross-appeal. Thus, we state the sole issue on appeal as follows:

¶ 12 Does § 7-33-4107, MCA, violate the equal protection clause of the Montana Constitution?

STANDARD OF REVIEW

¶ 13 We review a district court's...