Ross v. City of Great Falls

• Decision Date: 12 November 1998
• Docket Number: No. 97-594,97-594
• Citation: 967 P.2d 1103,291 Mont. 377,1998 MT 276
• Parties: , 1998 MT 276 Carie M. ROSS, Plaintiff and Appellant, v. CITY OF GREAT FALLS, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1103

967 P.2d 1103

291 Mont. 377, 1998 MT 276

Carie M. ROSS, Plaintiff and Appellant, v. CITY OF GREAT FALLS, Defendant and Respondent.

No. 97-594.

Supreme Court of Montana.

Submitted on Briefs Aug. 20, 1998.

Decided Nov. 12, 1998.

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

Richard Larson, J. Dennis Moreen, Chronister, Moreen & Larson, Helena, for Respondent.

GRAY, Justice.

¶1 Carie M. Ross (Ross) appeals from the judgment entered by the Eighth Judicial District Court, Cascade County, on its order granting the City of Great Falls' (the City) motion for summary judgment and denying her motion for partial summary judgment on the issue of liability in her age discrimination action. We affirm.

¶2 We address the following dispositive issues:

¶3 1. Did the District Court err in concluding that § 7-32-4112(1), MCA(1989), was not impliedly repealed by the enactment of the Montana Human Rights Act and the Governmental Code of Fair Practices?

¶4 2. Did the District Court err in concluding that, even assuming § 7-32-4112(1), MCA (1989), is unconstitutional, the City cannot be held liable for relying on the statute and in granting the City summary judgment on that basis?

BACKGROUND

¶5 In June of 1991, Ross mailed a form letter to a number of police departments in Montana, including the Great Falls Police Department, requesting an application for a police officer position or other entry level position that would lead to a police officer position. In response, she received an application form from the City and a list of the qualifications for a police officer position. Among other things, the qualifications required that the applicant be between the ages of 18 and 35, as provided in § 7-32-4112(1), MCA (1989). Ross was 37 years old at the time. She did not complete the application and return it to the City; nor did she ¶6 Ross filed a complaint with the Montana Human Rights Commission (MHRC) in October of 1991, alleging that the City had discriminated against her on the basis of her age. The MHRC investigator ultimately recommended a finding of reasonable cause to believe wrongful age discrimination had occurred and the MHRC issued a Notice of Right to Sue in September of 1993.

formally apply to any of the other jurisdictions to which she sent letters of inquiry. She did apply for other police officer positions advertised in the newspaper or via Job Service, but was not offered any of those positions.

¶7 Ross subsequently sued the City, alleging age discrimination in violation of both the Montana Human Rights Act (MHRA), Title 49, Chapter 2, MCA, and the Governmental Code of Fair Practices (GCFP), Title 49, Chapter 3, MCA. She alleged that she attempted to apply for positions with the Great Falls Police Department and was told she could not do so because of her age. She also alleged that she had experience as a law enforcement officer and that she "otherwise met the qualifications" for the positions. Ross' complaint further asserted that § 7-32-4112(1), MCA (1989), had been impliedly repealed or, alternatively, that it was unconstitutional.

¶8 The City filed its answer, conducted discovery, and moved for summary judgment. Ross subsequently filed a cross-motion for partial summary judgment on the issue of liability. The District Court granted the City's motion, denied Ross' motion and entered judgment accordingly. Ross appeals.

STANDARD OF REVIEW

¶9 "Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law." Ash Grove Cement Co. v. Jefferson County (1997), 283 Mont. 486, 491, 943 P.2d 85, 88; Rule 56(c), M.R.Civ.P. We review a district court's grant of summary judgment de novo, applying the same Rule 56(c), M.R.Civ.P., criteria as the district court. Ash Grove Cement Co., 283 Mont. at 491, 943 P.2d at 88 (citation omitted).

¶10 In the usual summary judgment case, we first determine whether "the moving party met its burden of establishing both the absence of genuine issues of material fact and entitlement to judgment as a matter of law." Ash Grove Cement Co., 283 Mont. at 491, 943 P.2d at 88 (citation omitted). In the present case, however, the parties agree on the material facts. As a result, the question before us is whether the District Court correctly concluded that the City was entitled to judgment as a matter of law. We review a district court's conclusions of law to determine whether the interpretation of the law is correct. Ash Grove Cement Co., 283 Mont. at 491-92, 943 P.2d at 89 (citation omitted).

DISCUSSION

¶11 1. Did the District Court err in concluding that § 7-32-4112(1), MCA(1989), was not impliedly repealed by the enactment of the MHRA and the GCFP?

¶12 Before turning to the issue at hand, it is appropriate to set forth the legal backdrop relating to this discrimination action. In her complaint, Ross asserted that the inclusion of a maximum age restriction in the City's police officer qualification criteria constituted age discrimination in violation of the provisions of the MHRA and the GCFP. The MHRA, enacted in 1974, prohibits refusing employment to a person on the basis of age when the reasonable demands of the position do not require an age distinction. Section 49-2-303(1)(a), MCA. This provision of the MHRA is applicable to all employers, public and private, except for certain nonprofit organizations. Sections 49-2-303(1)(a) and 49-2-101(11), MCA.

¶13 The GCFP was enacted in 1975 and is applicable specifically to state and local governmental entities. It requires all such entities to "recruit, appoint, assign, train, evaluate, and promote personnel on the basis of merit and qualifications without regard to ... age...." Section 49-3-201(1), MCA. The GCFP provides several exceptions to this requirement, including allowing a governmental entity to differentiate based on age when based on a bona fide occupational qualification reasonably necessary to the operation of the entity's business or where the differentiation is based on reasonable factors other than age. Section 49-3-103(1)(a), MCA.

¶14 The Montana Legislature also has enacted statutory criteria governing the qualifications of all city police officers in Montana. At the time Ross sent her inquiry letter to the Great Falls Police Department, those statutory qualifications were as follows:

(1) The members of the police department on the active list of any city at the time of their appointment under this part may not be less than 18 years of age or more than 35 years of age, but this restriction does not apply to any member of any police department as of July 2, 1973, to honorably discharged persons who served in the armed forces of the United States in time of war, providing such time of service is not less than 3 months, or to applicants for reinstatement under 7-32-4110.

(2) A police officer must be a citizen of the United States and meet the minimum qualifying standards for employment promulgated by the board of crime control.

Section 7-32-4112, MCA (1989).

¶15 In its motion for summary judgment, the City argued that the § 7-32-4112(1), MCA, age restriction was a statutory requirement which the City was bound to apply pursuant to § 7-1-113(1), MCA, and, as a result, that it could not be found liable in a discrimination action for merely following state law. Ross responded by arguing that the City could not rely on § 7-32-4112(1), MCA, to justify the age restriction because that portion of the statute had been impliedly repealed by the enactment of the MHRA and the GCFP. The District Court concluded that the maximum age restriction provision of § 7-32-4112(1), MCA, had not been repealed because the Legislature had neither expressly repealed, nor manifested an intent to impliedly repeal, the statute when it enacted the MHRA and the GCFP. Ross contends that the District Court erred in so concluding.

¶16 A statute may be repealed by a legislative enactment which expressly provides that the earlier statute is repealed. Alternatively, a statute may be impliedly repealed where a subsequent legislative enactment is clearly and irreconcilably inconsistent with the earlier statute. See, e.g., Trustees, Carbon Cty. Sch. v. Spivey (1991), 247 Mont. 33, 36, 805 P.2d 61, 63; W.R. Grace & Co. v. Dept. of Revenue (1989), 238 Mont. 439, 450, 779 P.2d 470, 476. It is undisputed in this case that neither the MHRA nor the GCFP expressly repealed the maximum age restriction in § 7-32-4112(1), MCA. Thus, if these acts repealed that portion of § 7-32-4112, MCA, at all, they must have done so by implication.

¶17 A number of well-established principles guide our analysis of whether a statute has been impliedly repealed. First and foremost, the repeal of a statute by implication has never been favored in Montana. See, e.g., W.R. Grace & Co., 238 Mont. at 450, 779 P.2d at 476; United States v. 196 Buffalo Robes (1872), 1 Mont. 489, 495. The Montana Legislature is presumed to act with deliberation and with full knowledge of all existing laws on a subject and, as a result, it is further presumed that the Legislature "does not intend to interfere with or abrogate a former law relating to the same matter unless the repugnancy between the two is irreconcilable." London Guaranty & Accident Co. v. Industrial Acc. Board (1928), 82 Mont. 304, 310, 266 P. 1103, 1105; see also Holly v. Preuss (1977), 172 Mont. 422, 426, 564 P.2d 1303, 1305-06; Fletcher v. Paige (1950), 124 Mont. 114, 119, 220 P.2d 484, 486-87.

¶18 In addition to being plainly and irreconcilably in conflict with each other, the two statutes must relate to the same subject matter and have the same object in view in order for the later statute to impliedly repeal the earlier. Johnson v. Marias River Elec. Co-op., Inc. (1984), 211 Mont. 518, 523-24, 687 P.2d 668, 671. In that regard, however, it is well-established that

"a later statute general in its terms and not expressly...