TAYLOR v DEPT OF FISH WILDLIFE

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No. 82-244 I N THE SUPREME COURT O THE STATE O M N A A F F OTN 1983 COURTNEY L. TAYLOR, P l a i n t i f f and A p p e l l a n t , DEPARTMENT O FISH, WILDLIFE & PARKS, F STATE O MONTANA, a n d JAMES W. FLYNN, F Defendants and Respondents. Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Lewis & C l a r k , The H o n o r a b l e P e t e r Meloy, J u d g e p r e s i d i n g . C o u n s e l o f Record: For Appellant: Robinson, Doyle & B e l l ; H a m i l t o n , Montana J o h n Doyle a r g u e d , For Respondent: Kevin C. Meek a r g u e d , Dept. F i s h , W i l d l i f e a n d P a r k s , H e l e n a , Montana Submitted: Decided : Filed: Clerk May 5 , 1983 J u l y 1 4 , 1983 Mr. Chief Justice Frank 1. Haswell delivered the Opinion of the Court. 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. August 7, 1979, he reached the age of sixty. section 19-8-601 (2), MCA, of On Pursuant to 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 Cornmission of his intention to bring an action against the Department for violation of the Federal Age Discrimination in Employment Act, 29 U.S.C. S S 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 wlll 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, violations of section 7(b) of the ADEA, 29 U.S.C. for S 626(b), and the Fourteenth Amendment to the United States Constitution. The Department October 6, 1981. was awarded summary judgment on On November 25, 1981, Taylor filed District Court of Lewis and Clark County. an action in He alleged that the enforcement of the game warden retirement statute violates the equal protection clause of the Montana Constitu- zr($4 tion, Art. & 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 2-4702, MCA. Taylor appeals the District Court dismissal. Five issues have been raised for our consideration: 1. Does Dolan v. (1981), Mont . School District #lo, Deer Lodge , 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 limitations? the statute of 5. Is the United States Supreme Court case of Equal Employment Opportunity Commission v. Wyoming, Cause No. 81- 554 (decided March 2, 1983), applicable to this case? Taylor argues that the irreconcilable conflict between tne 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. 7, 5 8 5 P.2d See also, Kuchan v. Harvey (1978), 179 Mont. 1298; State Aeronautics Comm. Examiners (1948), 121 Mont. 402, 194 P.2d v. 633. Board of 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 49-2303(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. intent of the This was done to effectuate the clear legislature employment based to abolish solely on age. discrimination in 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. legislature intended This indicates the 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, 563 P.2d 127; State ex rel. Hammond v. 1 6 0 Mont. 391, Butte (1964), Baker Sales 5 0 3 P.2d 1 4 4 Mont. Barn Y e l l o w s t o n e Bank Mont. 198, v. ( 1 9 5 5 ) , 1 2 9 Mont. 95, 394 P.2d 243, S t a t e Highway Comm. 140 State 284 P.2d 367 1, P.2d Equalization ex rel. C i t y of Application of 775; ( 1 9 6 0 ) , 137 Burns v. Lacklen 998; Monarch M i n i n g Co. ( 1 9 5 4 ) , 1 2 8 Mont. 6 5 , 270 P.2d ( 1 9 2 4 ) , 69 Mont. v. 738; Yale P l e n t y w o o d F a r m e r s O i l ( 1 9 3 5 ) , 9 8 Mont. 1 0 ; S t a t e v. T e s l a e t a l . P.2d 753; Mont. of S t a t e Bd. 904; Konen v . S t a t e ex r e l . (1962), 3 5 1 P.2d O i l C o r p . v. 52; 582, 4 1 5 0 3 , 2 2 3 P. 107. W r e c o g n i z e t h e r u l e of e provides that statutes. special will statutes prevail over general Harvey ( 1 9 7 8 ) , 1 7 9 Mont. 7, 5 8 5 P.2d 1 2 9 8 ; B r y a n t v. Ball e t al. ( 1 9 7 1 ) , 1 5 7 Mont. 28, 482 P.2d 147; Teamsters, et al., Board Co. Kuchan v . s t a t u t o r y c o n s t r u c t i o n which L o c a l 45 v. ( 1 9 7 0 ) , 1 5 5 Mont. v. Haggard Kesl's Estate 300, 4 7 1 P.2d ( 1 9 6 1 ) , 1 3 9 Mont. (1945), 1 1 7 Mont. S t e v e n s o n ( 1 9 3 0 ) , 87 Mont. general legislative whereas the game 486, enactment warden Montana L i q u o r C o n t r o l 541; Monarch Lumber 105, 360 P.2d 794; In 377, 1 6 1 P.2d 641; In r e 289 P. that retirement T i t l e 49 i s a 566. deals re with statute employment is a special s t a t u t e a f f e c t i n g o n l y game w a r d e n s . I n Dolan, statutory on t h e o t h e r h a n d , construction that we a p p l i e d t h e r u l e o f requires striking a prior s p e c i a l s t a t u t e t h a t irreconcilably c o n f l i c t s with a later g e n e r a l s t a t u t e because t h e i n t e n t i o n of t h e l e g i s l a t u r e t o e f f e c t a r e p e a l is c l e a r l y m a n i f e s t e d . 8 2 8 , 38 S t . R e p . State Dolan, a t 1 9 0 7 ; see a l s o , Kuchan A e r o n a u t i c s Comm. a l s o apply t h i s r u l e here. v. Board o f 636 P.2d at v. Harvey, s u p r a ; Examiners, supra. We The particular provisions of the Human Rights Act are in direct conflict with the retirement statute. Section 49-2-303(1)(a), MCA, reads: "Discrimination in employment. (1) It is an unlawful discriminatory practice for: "(a) an employer to refuse employment to a person, to bar him from employment, or to discriminate against him in compensation or in a term, condition, or privilege of employment because of his race, creed, religion, marital status, color, or national origin or because of his age, physical or mental handicap, or sex when the reasonable demands of the position do not require an age, physical or mental handicap, or sex distinction;" Section 49-3-201, MCA, reads: "Employment of state and local government personnel. (1) State and local government officials and supervisory personnel shall recruit, appoint, assign, train, evaluate, and promote personnel on the basis of merit and qualifications without regard to race, color, religion, creed, political ideas, sex, age, marital status, physical or mental handicap, or national origin. "(2) All state agencies shall: and local governmental " ( a ) promulgate written directives to carry out this policy and to guarantee equal employment opportunities at all levels of state and local government; "(b) regularly review their personnel practices to assure compliance; and "(c) conduct continuing orientation and training programs with emphasis on human relations and fair employment practices. "(3) The department of administration shall insure that the entire examination process, including appraisal of qualifications, is free from bias." The game warden retirement statute reads: "(2) Retirement shall be compulsory at age 60." MCA. Section 19-8-601(2), Consequently, Rights impliedly Act) effectuate the the clear later statute repeals intent the of i n Dolan, the retirement the Kuchan, and S t a t e A r e o n a u t i c s Comm., A s expressed ( e . , Human statute legislature. to Dolan, supra. t h e i n t e n t of the legislature i n p a s s i n g t h e Human R i g h t s A c t was t o p r e v e n t a l l a g e d i s crimination in performance. employment unless age m u s t be a j u s t i f i c a t i o n provides 1908. that construed. does not job however, Dolan p o i n t s o u t t h e r e f o r age d i s c r i m i n a t i o n t o b r i n g it i n t o t h e purview of t h e s e e x c e p t i o n s . at to C e r t a i n s p e c i f i c e x c e p t i o n s were e n a c t e d p e r - m i t t i n g age d i s c r i m i n a t i o n ; St.Rep. related is Furthermore, such statutory 636 P.2d section a t 829, 49-2-303(2), exceptions must be 38 MCA, strictly I n t h i s c a s e , t h e game w a r d e n r e t i r e m e n t s t a t u t e provide any justification or qualification for compulsory r e t i r e m e n t b u t simply r e t i r e s e v e r y p e r s o n reaching age s i x t y . Title indicates 49 that the legislature i n t e n d e d t o a b o l i s h s u c h r e s u l t a n d , s i n c e no q u a l i f i c a t i o n or j u s t i f i c a t i o n brings t h e discrimination within t h e scope of the exceptions, t h e s t a t u t e h a s been i m p l i e d l y r e p e a l e d by T i t l e 49. The Department argues strongly that the d o c t r i n e s h o u l d p r e c l u d e T a y l o r from j u d i c i a l hold that Taylor acted properly in exhaust i o n redress. bringing his We case d i r e c t l y t o District Court. F i r s t of a l l , t h i s Court h a s h e r e t o f o r e h e l d t h a t t h i s c a s e i s an " o r i g i n a l a c t i o n , " administrative action. Thus, not a judicial r e v i e w of an t h e d o c t r i n e simply does n o t apply Second, i n t h e a r e a of t a x a p p e a l s , t h i s Court e s t a b - lished an exception to the exhaustion doctrine in Keller v . Dept. of Revenue (1979), 182 Mont. 478, 597 P.2d 736. In Keller taxpayers sought to appeal a ruling by the Department of Revenue to the District Court. The District Court held that they must exhaust their remedies with the State Tax Appeal Board. We held that the particular Department of Revenue ruling was an interpretation of law that must be made by the judiciary and, thus, the exhaustion doctrine is inapplicable. The same applies here. Next, Taylor asserts that a fact-finding hearing should not be conducted to determine whether basis for age discrimination. there is a Since no qualifying reasons for discrimination are found in the game warden retirement statute, the statute is violative of the Human Rights Act on its face and should be stricken. The Department argues that it should be allowed to offer proof that a game warden's age is related to his job performance. Further, a hearing should be held to determine the amount Taylor's backpay award should be offset by his wages earned since retirement and to determine the fairness o i attorney fees. The compulsory retirement statute does not condition retirement on qualifications or justification which could place such discrimination in Title 49 exceptions. We hold tnat the statute facially conflicts with the Human Rights Act. The judiciary should not interfere with the legisla- tive function of establishing employment and retirement qualifications. To determine if a basis for age discrimination exists, the court, in essence, would be rewriting the statute. It would h a v e t o add q u a l i f i c a t i o n s and j u s t i f i c a t i o n s compulsory retirement statute to establish t o the that a game w a r d e n ' s a g e is r e l a t e d t o j o b p e r f o r m a n c e , t h e r e b y b r i n g i n g the discrimination within would be i n excess of C h e n n a u l t v. 37 St.Rep. Sager 857, the s t a t u t o r y exceptions. the court's (1980), authority. , Mont. t h a t t h e r o l e of a court We This held 610 P.2d in 173, i n construing a s t a t u t e i s s i m p l y t o a s c e r t a i n and d e c l a r e i t s s u b s t a n c e and n o t t o i n s e r t what h a s been o m i t t e d . The s t a t u t e s i n q u e s - t i o n o m i t a n y bona f i d e o c c u p a t i o n a l q u a l i f i c a t i o n s f o r game w a r d e n s o r a n y b a s i s f o r a g e d i s c r i m i n a t i o n i n s u c h employment. Furthermore, determining t h e b a s i s f o r age discrimination i n Montana will entail a great T h i s m i g h t i n c l u d e , among o t h e r t h i n g s , fact-finding effort. a s t a t u t o r y survey, hearing e x p e r t testimony regarding i n d i v i d u a l v a r i a t i o n s i n age progression question. and specifics The l e g i s l a t u r e , resources to assume such about the not the courts, an undertaking. occupation in has the proper Additionally, p u b l i c p o l i c y i s s u e s a r e b e s t r e s o l v e d by t h e l e g i s l a t u r e i n the f i r s t instance. S i n c e t h e D i s t r i c t Court r u l e d i n f a v o r of t h e Department, no h e a r i n g was h e l d t o d e t e r m i n e t h e amount o f a w a r d s f o r p a s t wages, b e n e f i t s , a t t o r n e y f e e s and c o s t s . W e must remand t o t h e D i s t r i c t C o u r t f o r a n e v i d e n t i a r y h e a r i n g o n these i t e m s . During o r a l argument b e f o r e t h i s Court t h e Department raised, for the f i r s t t i m e , was b a r r e d by t h e two-year actions involving property. the defense t h a t Taylor's claim s t a t u t e of Section limitations for t o r t 27-2-207, MCA. We a l l o w e d s u p p l e m e n t a l b r i e f i n g on t h i s i s s u e . Taylor contends that, t o l o n g s t a n d i n g case according requires a s t a t u t e of l a w i n M o n t a n a , R u l e 8 ( c ) , M.R.Civ.P., l i m i t a t i o n s defense t o be plead a f f i r m a t i v e l y , and, i f n o t , i t 1s w a i v e d a s a d e f e n s e . Here, t h e Department r a i s e s t h i s i s s u e f o r t h e f i r s t t i m e a t o r a l argument on appeal. The D e p a r t m e n t c l a i m s t h a t t n e d e f e n s e o f limitations according (1981 can to be raised Rierson Mont I v. . for the Board , of Court. in his 622 P.2d petition for time first on Administration 195, Rierson the appellant f i r s t raised limitations statute of of 38 S t . R e p . t h e i s s u e of rehearing in appeal 3. PERS In s t a t u t e of the Supreme T h i s C o u r t a d d r e s s e d and d e c i d e d t h e i s s u e a d v e r s e t o appellant. The D e p a r t m e n t a r g u e s t h a t t h i s authority t o address the s t a t u t e of is i m p l i e d l i m i t a t i o n s d e f e n s e on a p p e a l e v e n t h o u g h i t was n o t r a i s e d i n t h e D i s t r i c t C o u r t . W hold t h a t t h e s t a t u t e of e been waived and, thus, M.K.Civ.P., provides limitations defense has cannot be r a i s e d here. that a defense of Rule 8 ( c ) , the statute of l i m i t a t i o n s is a n a f f i r m a t i v e d e f e n s e and c a n o n l y b e r a i s e d by answer. plead ilansen v. (1974), Dist. K e i r n a n e t a1. Turner v. S t a t e ex rel. 1 0 0 P. 207; 164 (1929), Kolbow V. Dist. c-q. " GrogRn &. if is n o t the defense B u t t e Country Club v. Mont. (1972), Powell 0' that i t is w a i v e d . affirmatively, Metropolitan 787; is c l e a r The l a w 75, 519 1 5 9 Mont. 85 Mont. Court 448, 278 408; 499 P.2d P. 512; ( 1 9 0 9 ) , 38 Mont. 415, V a l l e y T r a d i n g Co. 241, P.2d ( 1 9 0 4 ) , 30 Mont. The D e p a r t m e n t d i d n o t r a i s e s e c t i o n 27-2-207, MCA, a s a d e f e n s e i n t h e D i s t r i c t Court; hence, t h e d e f e n s e h a s been waived. T h e r e is no l a n g u a g e i n R i e r s o n t h a t would a l l o w a p a r t y t o r a i s e a d e f e n s e on a p p e a l t h a t h a s been w a i v e d d u e t o a f a i l u r e t o a s s e r t it a t t h e t r i a l s i m p l y no h o l d i n g level. There is i n R i e r s o n t h a t o v e r r u l e s many y e a r s o f case l a w r e g a r d i n g t h e s t a t u t e o f l i m i t a t i o n s d e f e n s e . W a l s o o r d e r e d s u p p l e m e n t a l b r i e f i n g on t h e a p p l i c a e bility of Wyoming, Equal supra, Employment Opportunity t o the present case. Commission v. Both p a r t i e s a s s e r t t h a t t h e U n i t e d S t a t e s Supreme C o u r t c a s e h a s no a p p l i c a tion. We agree. The cases are a d d r e s s e d t h e i s s u e of w h e t h e r tion in EEOC t h e F e d e r a l Age D i s c r i m i n a - Employment A c t a p p l i e d warden r e t i r e m e n t s t a t u t e . distinguishable. t o t h e Wyoming s t a t e game The p r e s e n t c a s e d e a l s w i t h t h e Montana Human R i g h t s A c t a n d i t s a p p l i c a t i o n t o t h e Montana game warden United States Wyoming Human compulsory r e t i r e m e n t Supreme statute, Rights Court whereas Act to statute. applied here we Montana's a are game I n EEOC, federal applying warden act the to a Montana's retirement statute. Reversed and remanded for further consistent w i t h t h i s opinion. '?A&d. J u s t i c e Chief W concur: e proceedings

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