No. 80-435
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
P I R DOLAN,
.AY
Plaintiff and Respondent,
SCHOOL DISTRICT NO. 10, DEER LODGE
COUNTY, Anaconda, Montana et al.,
Defendants and Appellants.
Appeal from: District Court of the Third Judicial District,
In and for the County of Deer Lodge.
Honorable Arnold Olsen, Judge presiding.
Counsel of Record:
For Appellants:
Radonich and Brolin, Anaconda, Montana
William Brolin argued, Anaconda, Montana
For Respondent:
John Albrecht argued, Choteau, Montana
Hon. Mike Greely, Attorney General, Helena, Montana
For Amicus Curiae:
Smith Law Firm, Helena, Montana
Chadwick Smith argued, Helena, Montana
Submitted: September 16, 1981
Decided: November 12, 1981
Filed: !ov 1 2 198%
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion
of the Court.
Appellant, School District No. 10 (hereafter School
District), appeals from the findings of fact, conclusions of
law and declaratory judgment entered by the Third Judicial
District Court on July 16, 1980.
In 1971, the Montana Legislature enacted section 20-4-
203, MCA, which provides that:
"Whenever a teacher has been elected by the
offer and acceptance of a contract for the
fourth consecutive year of employment by a
district in a position requiring teacher
certification except as a district superin-
tendent or specialist, the teacher shall be
deemed to be reelected from year to year
thereafter as a tenure teacher at the same
salary and in the same or a comparable posi-
tion of employment as that provided by the
last executed contract with such teacher,
unless:
". . . (2) the teacher will attain the age
of 65 years before the ensuing September 1 and
the trustees have notified the teacher in
writing by April 1 that his services will not
be needed in the ensuing school fiscal year,
except that the trustees may continue to
employ such a teacher from year to year until
the school fiscal year following his 70th
birthday."
In 1972, the Board of Trustees of the School District,
Anaconda, Deer Lodge County, adopted Board Policy No. 405.4
which states:
"Retirement
"a. As prescribed by the School Laws of
Montana.
"b. The Board of Trustees will exercise the
option to require the retirement of all teachers
at the age of sixty-five (65) as per School Laws
.
of Montana (75-6103) "
Thereafter, the School District required the retirement of
all teachers and principals when they reached the age of 65.
Mary Dolan, respondent, was a tenured principal at W.
K. Dwyer Elementary School, of the School District. In
March of 1977, Mary Dolan received notification that, as a
result of her being age 65, her services in the ensuing
school year would cease. This termination was accomplished
by a majority vote of the Board of Trustees in accordance
with section 20-4-203(2), MCA, and Board Policy No. 405.4.
Mary Dolan sought a redetermination by the Board of
Trustees and also personally appealed to the school district
superintendent. Neither action resulted in a reversal of
the Boards' decision to retire Dolan. Dolan then filed a
discrimination complaint with the Human Rights Commission on
May 3, 1977. The Human Rights Commission determined that
section 20-4-203(2), MCA, permitting mandatory retirement at
age 65, was a statutory exception to the proscriptions
against discrimination contained in Title 49, Chapters 2 and
3, popularly titled the Human Rights Act. Therefore, the
Human Rights Commission determined that no age discrimination
existed regarding the mandatory retirement of Mary Dolan.
On May 26, 1977, Dolan filed a "Complaint for Declara-
tory Relief and Injunctive Relief" against the Board of
Trustees requesting that the Board be restrained from ef-
fecting her retirement; that she be given a contract for the
ensuing year; that the District Court declare the rights and
legal relations of Mary Dolan; that section 20-4-203(2),
MCA, be declared unconstitutional.
The District Court, heard the request for injunctive
relief on June 1, 1977. On June 8, 1977, the ~istrictCourt
denied the request based on the finding that Mary Dolan
would not suffer irreparable harm, damage or injury.
The request for declaratory relief was heard by the
District Court, on March 31, 1980. Three witnesses were
called.
William Alexander, M.D. a psychiatrist whose qualifica-
tions were stipulated to, testified that people do not age
at the same rate and that after examination, he determined
that Mary Dolan was capable of performing her job. Alexander
also testified that in his expert opinion mandatory retire-
ment ages are arbitrary and that forced retirement often
causes people severe emotional difficulties. During examina-
tion of Alexander, counsel for the School District stipulated
that Mary Dolan's qualifications and capabilities were not
contested.
Mary Dolan testified that she was capable of continuing
to work as principal and capable of handling the job. She
also testified, on cross-examination, that she received
teachers' retirement benefits and teamsters' union benefits.
She also stated that following her termination in 1977, she
had obtained employment, first as a teacher in Warm Springs
and later as the director of Copper Village Art Center.
The School District called superintendent of the dis-
trict, Daniel Marinkovich. He testified concerning imple-
mentation of mandatory retirement. Marinkovich testified
that to his knowledge the policy had been administered
without exception.
The cause was submitted and the District Court, after
receipt of proposed findings from the parties, declared that
section 20-4-203(2), MCA, violated the equal protection and
due process clauses of the Montana and United States Con-
stitution, and that the mandatory retirement provision,
section 20-4-203(2), MCA, was repealed by the adoption of
sections 49-2-303 (1) and 49-3-201, MCA, (1979). The Dis-
trict Court found that Mary Dolan would have earned $76,914.31,
had she continued working as principal. She actually earned
from other employment, the sum of $25,688 in the period
following her termination to the time of trial. The Dis-
trict Court offset these earnings but refused to offset
amounts Mary Dolan received as retirement benefits. The
court awarded Mary Dolan backpay in the amount of $51,246.31,
plus costs and interest at the rate of 10 percent.
Appellant raises the following issues for review:
1. Whether Title 49, the Human Rights Act, section
49-1-101, et seq., MCA, repealed the Mandatory Retirement
Law for teachers, section 20-4-203 (2), MCA?
2. What is the proper standard of review to be applied
in assessing the constitutionality of section 20-4-203(2),
MCA?
3. Whether the District Court erred in declaring that
section 20-4-203(2), MCA, was unconstitutional?
4. Assuming section 20-4-203(2), MCA, does not abridge
a fundamental right or affect a suspect classification,
whether that statute bears a rational relationship to a
legitimate state interest?
5. Whether section 20-4-203(2), MCA, violates the due
process clauses of the 1972 Constitution of Montana and the
Fourteenth Amendment to the United States Constitution
because it creates an irrebuttable presumption that persons
65 years or older are not qualified as principals?
6. Whether the District Court abused its discretion by
not reducing a backpay award for illegal discrimination by
payments received from social security, Montana ~eachers'
Retirement System and the Western Conference of Teamsters'
pension fund?
We find that disposition of issues one and six is
determinative. This appeal can be decided, not on consti-
tutional grounds, but rather through statutory construction.
In reaching this conclusion, we are guided by the ". . .
well-settled law that a court will not pass upon the consti-
tutionality of any Act of the legislature unless it is
absolutely necessary to a decision of the case." State v.
King (1903),28 Mont. 268, 277, 72 P. 657, 658. Such
necessity is lacking in this case.
In 1971, the Montana legislature enacted section 20-4-
203, MCA, dealing with teacher tenure and rehiring in the
Montana school system. Pursuant to this statute, the Board
of Trustees of the School District adopted Policy No. 405.4
mandating the retirement of all teachers and principals
after their 65th birthday.
In 1974 and 1975, the legislature enacted Title 49,
Chapters 1-3 (Human Rights Act). This legislation, com-
prehensive in scope, prohibits discrimination in many facets
of the lives of Montana citizens. The format of the Human
Rights Act establishes all-encompassing prohibitions against
discrimination with extremely limited and specific exceptions
to such prohibitions.
Regarding discrimination in employment, the subject of
this appeal, section 49-2-303, MCA, provides that:
"(1) It is an unlawful discriminatory prac-
tice 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 em-
ployment because of his . . . age . ." .
Additionally, section 49-3-201, MCA, pertaining speci-
fically to state and local governmental agencies, provides
that:
-6-
"(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 with-
out regard to . . . age . . ."
Respondent, Mary Dolan contends that section 20-4-
203(2), MCA, the mandatory retirement provision, irrecon-
cilably conflicts with sections 49-2-303(1)(a) and 49-3-
201(1), MCA, the later-enacted statutes. Therefore, section
20-4-203(2), MCA, must be considered impliedly repealed.
At the outset, this Court recognizes that repeals by
implication are not favored. London Guaranty & Accident Co.
v. Industrial Acc. Board (1928), 82 Mont. 304, 266 P. 1103.
We also note that Title 49 is general legislation, of which
one facet concerns the area of employment; whereas section
20-4-203(2), MCA, is a special statute which specifically
deals with the area of employment for school teachers and
principals. This Court also acknowledges the existence of
conflicting rules of statutory construction with regard to
this particular situation. Generally, where statutes irrec-
concilably conflict, the latest statute supersedes the
prior enactment. State v. State Board of Land Commissioners
(1960), 137 Mont. 510, 353 P.2d 331. However, where general
statutes and special statutes are involved, special statutes
normally prevail over general. Teamsters, Etc., Local 45
v. Montana Liquor Con. Bd. (1970), 155 Mont. 300, 471 P.2d
541.
After careful consideration, this Court finds that an
irreconcilable conflict does exist between section 20-4-
203 (2), MCA and sections 49-2-303 (1)la), and 49-3-201 (I),
MCA. In determining which rule of statutory construction
must be applied to resolve this irreconcilable conflict, we
are guided by the following quotation from 50 Am.Jur., at
566-567, cited in State v. Board of Examiners of State (19481,
121 Mont. 402, 194 P.2d 633:
". . .
a later statute general in its terms
and not expressly repealing a prior special or
specific statute, will be considered as not
intended to affect the special or specific
provisions of the earlier statute, unless the
intention to effect the repeal is clearly
manifestedor unavoidably implied by - -
- the irre-
concilability of - continued operation of
- the
both, or unless there is something - -
in the-
generallaw- - -
- or in the course of legislation
-- subject matter that makes it manifest
m s
that the legislature contemplated and intended
--
- repeal." 121 Mont. at 417, 194 n d at 641.
a
(Emphasis added. )
A review of the statutes involved in this case leads
us to the conclusion that the legislature's latest enact-
ment, Title 49, Human Rights Act, necessarily supersedes
section 20-4-203(2), MCA. To hold otherwise would materially
dilute the effect of Montana's antidiscrimination legisla-
tion.
The general rule that the latest enactment of the
legislature prevails is here chosen as the applicable rule
of statutory construction because this rule best effectuates
the intent of the legislature. Therefore, section 20-4-
203(2), MCA, is impliedly repealed.
As previously stated, Title 49, contains very broad
antidiscrimination prohibitions and very explicit and
limited exceptions to those prohibitions. The exceptions
pertinent to this appeal, are found in sections 49-2-303(1)(a),
,
49-2-403 (I), and 49-3-103 (1) (2), MCA.
Section 49-2-303(1)(a), MCA, permits discrimination in
employment based on age if ". . . the reasonable demands of
the position . . . require an age . . . distinction . . ."
Section 49-2-403(1), MCA, permits discrimination in
employment based on age if ". . . the nature of the service
requires the discrimination for the legally demonstrable
purpose of correcting a previous discriminatory practice."
Section 49-3-103(1), MCA, permits an employer to dif-
ferentiate ". . . based on age . . . when based on a bona
fide occupational qualification reasonably necessary to the
normal operation of the particular business or where the
differentiation is based on reasonable factors other than
age. "
Section 49-3-103(2), MCA, allows an employer to dif-
ferentiate based on age when ". . . observing the terms of a
bona fide seniority system or any bona fide employee benefit
plan such as a retirement, pension, or insurance plan which
is not a subterfuge to evade the purposes of this chapter
The manner in which the legislature enacted Title 49
clearly depicts the intent of the legislature. There shall
be - discrimination in certain areas of the lives of Montana
no
citizens, employment being one such area, except under the
most limited of circumstances.
Section 20-4-203(2), MCA, plainly violates this inten-
tion. The statute permits discrimination in employment
based solely upon age. No qualifying or justifying reasons
are included in the statute which bring it within the pur-
view of the limited exceptions contained in Title 49.
At the hearing before the District Court, the School
District did attempt to establish the necessity of the
retirement statute. The School District presented testimony
from the Superintendent of the school system, Daniel Marinkovich.
Additionally, the School District introduced interrogatory
answers filed by the Attorney General, a summary of the
Western Conference of Teamsters Pension Plan, a copy of the
negotiated principal's contract and a copy of a decision
rendered by the Human Rights Commission finding no dis-
crimination by the School Board with regard to Mary Dolan's
retirement.
The School District asserts, that this evidence estab-
lishes the necessity of a mandatory retirement policy. The
District Court determined that the School District had
presented no evidence establishing such a necessity. After
a review of the record, this Court is in complete agreement
with the District Court.
The interrogatory answers filed by the Attorney
General are mere conclusions lifted from a decision rendered
by the Second Circuit Federal Court in Palmer v. Ticcione
(2d Cir. 1978), 576 F.2d 459. No evidence was adduced which
connects these conclusions to the need for mandatory retire-
ment in the Montana school system.
The School District asserts that the negotiated con-
tract between the School District and the principals neces-
sitates retirement at age 65. The same assertion is made
with regard to the Teamsters Union pension plan. However,
nothing in the contract mentions required retirement at age
65 and the pension plan speaks only of age 65 as the "normal
retirement age."
The School District relies heavily on the decision of
the Human Rights Commission finding no discrimination in the
mandatory retirement of Mary Dolan. The Commission based
its decision on the grounds that the legislature intended to
maintain a statutory exception (section 20-4-203(2), MCA) to
the provisions of Title 49, Human Rights Act. The Commis-
sion gleaned this intent from the fact that in 1977, the
legislature killed House Bill 519, which had been introduced
to eliminate - mandatory retirement ages required or
all
permitted by Montana law. This bill was comprehensive in
nature covering many areas other than age for retirement.
Such evidence of intent is unpersuasive and inconclusive. A
fair reading of the "Human Rights Act" indicates an inten-
tion to prohibit age discrimination unless age is related to
job performance. A mandatory retirement age could seldom,
if ever, relate to job performance because of the variation
in individuals. The statutes are therefore irreconcilably
in conflict and the one later enacted must necessarily work
a repeal of the former. State v. State Board of Land
Commissioners, supra.
This decision does not affect pension plans nor seniority
systems whereby an employee has agreed, as part of the
employment, to retire at a certain age. Such arrangements
are exempted under section 49-3-103(2), MCA.
Finding unlawful discrimination in this case entitles
Mary Dolan to a backpay award. The purpose of this backpay
award is to make Mary Dolan whole. The District Court
determined that she would have earned $76,914.31 up to the
time of trial had she continued working as a principal. The
District Court found that during the same time period Mary
Dolan had earned from other employment the sum of $25,668.
The District Court concluded that she was entitled to an
award of $51,246.32, refusing to reduce this backpay award
by any amounts received from the Social Security Administra-
tion, Montana Teachers Retirement System, or the Western
Conference of Teamsters Pension Fund.
This Court concludes that it does not matter whether
the benefits received from the Social Security, Retirement
System, or Pension funds were funded wholly or in part by
contributions made by Mary Dolan. Mary Dolan would not have
received these benefits had she continued as principal at W.
K. Dwyer Elementary. Thus, to make Mary Dolan whole, these
benefits must be considered in establishing a backpay award.
To hold otherwise would grant Mary Dolan a windfall.
In conclusion, we hold that section 20-4-203(2), MCA,
was impliedly repealed by the enactment of Title 49. We
reverse the District Court's award of backpay which failed
to offset retirement benefits and remand for proceedings in
conformance with this opinion.
We Concur:
A i e f Justice