Taylor v. Department of Fish, Wildlife & Parks, State of Mont.

• Decision Date: 14 July 1983
• Docket Number: No. 82-244,82-244
• Citation: 666 P.2d 1228,205 Mont. 85,40 St.Rep. 1112
• Court: Montana Supreme Court
• Parties: , 32 Fair Empl.Prac.Cas. 665, 33 Empl. Prac. Dec. P 34,277 . TAYLOR, Plaintiff and Appellant, v. DEPARTMENT OF FISH, WILDLIFE & PARKS, STATE OF MONTANA, and James W. Flynn, Defendants and Respondents. Supreme Court of Montana

Page 1228

666 P.2d 1228

205 Mont. 85, 32 Fair Empl.Prac.Cas.

665,

33 Empl. Prac. Dec. P 34,277

Courtney L. TAYLOR, Plaintiff and Appellant, v. DEPARTMENT OF FISH, WILDLIFE & PARKS, STATE OF MONTANA, and James W. Flynn, Defendants and Respondents.

No. 82-244.

Supreme Court of Montana.

Submitted May 5, 1983.

Decided July 14, 1983.

Robinson, Doyle & Bell, John C. Doyle argued, Hamilton, for plaintiff and appellant.

Kevin C. Meek argued, Dept. Fish, Wildlife and Parks, Helena, for defendants and respondents.

HASWELL, Chief Justice.

Courtney Taylor appeals the District Court decision dismissing his action against the Department of Fish, Wildlife and Parks to void his forced retirement at age sixty and reinstate him to his position as game warden with attorney fees, costs and backpay. We reverse and remand for further proceedings.

Taylor has been employed as a state game warden by the Department of Fish, Wildlife and Parks since 1952. On August 7, 1979, he reached the age of sixty. Pursuant to section 19-8-601(2), MCA, of the Game Wardens Retirement Act, he was compulsorily retired.

On November 15, 1978, Taylor began investigating what action he might take to avoid compulsory retirement. He informed the Department on December 29, 1978, that he was not considering retirement. On June 22, 1979, Taylor informed the Secretary of Labor and the Equal Opportunity Commission of his intention to bring an action against the Department for violation of the Federal Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634. In February 1979 he was informed by the Administrator of the Public Employee Retirement Systems Division that he was compelled to enforce the Game Wardens Retirement Act as written.

Taylor filed a complaint of discrimination with the Montana Human Rights Commission on August 6, 1979, the day before his retirement. On November 26, 1979, the Human Rights Division ruled in favor of the State. It held:

"... Charging Party has no remedy under Montana statutes. It is possible, of course, that his forced retirement may be in violation of federal law. However, that is not a question for the Montana Human Rights Commission to decide. Indeed, it is not even a deferral agency for EEOC complaints which allege age discrimination.

"Likewise, it would be an abuse of discretion for this administrative agency to rule on the constitutional question.

"...

"Therefore a finding of no jurisdiction must be made insofar as the complaint alleges federal statutory and constitutional violations. To the extent that Montana age discrimination statutes are in issue, a finding of no reasonable cause is required."

This ruling was made final December 18, 1979.

By a letter dated November 26, 1979, appellant was advised:

"The complainant has the right to make a written request for an informal conference with the division administrator why the investigator's findings should not have been accepted. If the determination is not altered as a result of such a conference, the complainant has the right to formally request a hearing on the no cause finding. At such a hearing, the issue for consideration is the adequacy of the investigation, not the liability of the respondent. If such a hearing is requested, you will have the right to be present with or without counsel and to participate. However, you would not be required to do so, and no legal consequences would follow from your decision not to participate. You will be informed of any request for an informal conference or for a hearing in this matter."

Thirty days after the Human Rights Commission ruling was made final, Taylor brought an action against the State in United States District Court, Missoula Division, for violations of section 7(b) of the ADEA, 29 U.S.C. Sec. 626(b), and the Fourteenth Amendment to the United States Constitution. The Department was awarded summary judgment on October 6, 1981.

On November 25, 1981, Taylor filed an action in District Court of Lewis and Clark County. He alleged that the enforcement of the game warden retirement statute violates the equal protection clause of the Montana Constitution, Art. II, Section 4. Essentially, Taylor claimed that the retirement statute is not based on a bona fide occupational qualification as the State does not require physical conditioning as a prerequisite for the job during a game warden's course of employment. He asked that the statute be declared unconstitutional, that he be reinstated as a game warden, and that he recover backpay, attorney fees, and costs.

The District Court granted the Department's motion to dismiss. The court's action was based upon failure to bring the administrative appeal within thirty days of the conclusion of the agency proceeding in violation of section 2-4-702, MCA. Taylor appeals the District Court dismissal.

Five issues have been raised for our consideration:

1. Does Dolan v. School District # 10, Deer Lodge (1981), Mont., 636 P.2d 825, 38 St.Rep. 1903, require voiding the game warden retirement statute because of an irreconcilable conflict with the anti-discrimination provisions in the Human Rights Act?

2. Must appellant exhaust available administrative remedies before seeking judicial relief?

3. Should an evidentiary hearing be conducted to determine whether there is a basis for age discrimination in Montana and to determine the appellant's damages, if any?

4. Is appellant's claim barred by the statute of limitations?

5. Is the United States Supreme Court case of Equal Employment Opportunity Commission v. Wyoming, --- U.S. ----, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), applicable to this case?

Taylor argues that the irreconcilable conflict between the game warden retirement statute and certain provisions of the Human Rights Act requires the retirement provision to be declared void. He contends that the clear intent of the legislature to abolish age discrimination in employment as expressed in Dolan, supra, mandates this result.

The Department of Fish, Wildlife and Parks asserts that Dolan does not state that all age qualifications are invalid. Counsel admits the Department has a great burden to prove that the mandatory retirement age is related to job performance; it should be given the opportunity to meet that burden.

Under the authority of Dolan, we conclude that the Human Rights Act necessarily repeals the game warden retirement statute to the extent of any irreconcilable conflict or inconsistency. See also, Kuchan v. Harvey (1978), 179 Mont. 7, 585 P.2d 1298; State Aeronautics Comm. v. Board of Examiners (1948), 121 Mont. 402, 194 P.2d 633. Mary Dolan was a school teacher who, in March 1977, was compulsorily retired pursuant to section 20-4-203(2), MCA. She wanted to continue teaching and proceeded through the proper administrative channels where her forced retirement was affirmed. She filed an action in District Court, and it ruled that section 20-4-203(2), MCA, violated the equal protection and due process clauses of the United States and Montana Constitutions and was repealed by the enactment of sections 49-2-303(1) and 49-3-201, MCA, of the Human Rights Act.

On appeal this Court affirmed the District Court decision. We determined that the appeal could be decided on statutory grounds without reaching constitutional considerations. It was recognized that the Court should not pass on the constitutionality of any act of the legislature unless required for a decision of the case. State v. King (1903), 28 Mont. 268, 277, 72 P. 657, 658.

The Court applied the rule of statutory construction that requires repeal of an earlier statute that conflicts with a later one. This was done to effectuate the clear intent of the legislature to abolish discrimination in employment based solely on age. To hold otherwise would materially dilute the effect of Montana's anti-discrimination legislation. We noted that Title 49 contains very broad anti-discrimination prohibitions and very limited exceptions to such prohibitions. This indicates the legislature intended to abolish all discrimination in employment except under the most limited circumstances. In Dolan the tenure statute violated this intention because it allowed discrimination based solely on age. No qualifying or justifying reasons were included in the statute which would place the forced retirement within the purview of the exceptions in Title 49. We thereby concluded that the statute was impliedly repealed by Title 49.

The present case is quite similar to Dolan. In both cases the constitutionality of mandatory retirement statutes is challenged. In this case, as in Dolan, we must decide the case on statutory, rather than constitutional, grounds, if possible. Dieruf v. City of Bozeman (1977), 173 Mont. 447, 568 P.2d 127; State ex rel. Hammond v. Hager (1972), 160 Mont. 391, 503 P.2d 52; State ex rel. Konen v. City of Butte (1964), 144 Mont. 95, 394 P.2d 753; Application of Baker Sales Barn (1962), 140 Mont. 1, 367 P.2d 775; Yellowstone Bank v. State Bd. of Equalization (1960), 137 Mont. 198, 351 P.2d 904; State ex rel. Burns v. Lacklen (1955), 129 Mont. 243, 284 P.2d 998; Monarch Mining Co. v. State Highway Comm. (1954), 128 Mont. 65, 270 P.2d 738; Yale Oil Corp. v. Plentywood Farmers Oil (1935), 98 Mont. 582, 41 P.2d 10; State v. Tesla et al. (1924), 69 Mont. 503, 223 P. 107.

We recognize the rule of statutory construction which provides that special statutes will prevail over general statutes. Kuchan v. Harvey (1978), 179 Mont. 7, 585 P.2d 1298; Bryant v. Hall et al. (1971), 157 Mont. 28, 482 P.2d 147; Teamsters, et al., Local 45 v. Montana Liquor Control Board (1970), 155 Mont. 300, 471 P.2d 541; Monarch Lumber Co. v. Haggard (1961), 139 Mont. 105, 360 P.2d 794; In re Kesl's Estate (1945), 117 Mont. 377, 161 P.2d 641; In re Stevenson (1930), 87 Mont. 486, 289 P. 566. Title 49 is a general legislative enactment that deals with employment whereas the game warden retirement statute is a special statute affecting...