96-471
No. 96-471
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
GREG SHIELDS, KERBIE SHIELDS, individually and as parents and
guardians of Nathan Shields, and NATHAN SHIELDS, on his own behalf,
Plaintiffs and Appellants,
v.
HELENA SCHOOL DISTRICT NO. 1, C.R. ANDERSON SCHOOL,
HELENA SCHOOL DISTRICT NO. 1 TRUSTEES, SUPT. GARY
TOOTHAKER, SEC. 504 COORDINATOR SHIRLEY DEVOE, TITLE
IX COORDINATOR MARION EVENSON, C.R. ANDERSON PRINCIPAL
PEP JEWELL, C.R. ANDERSON SCHOOL ASSISTANT PRINCIPAL BRUCE
CAMPBELL,TEAM TEACHERS: CARL ANDERBERG, CATHY COLLINS,
HANS MARTIN, in their capacities as team teachers only, PAT GRASSL, LONA
CARTER, individually and in her official capacity as instructor and counselor at
C.R. ANDERSON SCHOOL, and WILLIAM G. EVERETT, individually and in
his official capacity as an instruction and advisor at C.R. ANDERSON SCHOOL,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Matthew J. Sisler, Attorney at Law, Missoula, Montana
For Respondents:
Terry B. Cosgrove, Steven R. Milch; Crowley, Haughey, Hanson, Toole
&
Dietrich, Billings, Montana
P. Keith Keller; Keller, Reynolds, Drake, Johnson & Gillespie,
Helena, Montana
Allen B. Chronister; Chronister, Moreen & Larson, Helena, Montana
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Submitted on Briefs: January 30, 1997
Decided: August 7, 1997
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
Greg, Kerbie and Nathan Shields (the Shieldses) brought this action in the
District
Court for the First Judicial District, Lewis and Clark County, to recover monetary
damages for alleged violations of their constitutional rights and other claims. On
Defendants' motion, the District Court dismissed the action on the basis that the
Shieldses failed to exhaust the administrative procedures available under federal
and state
law. The Shieldses appeal the dismissal of their cause of action. We affirm.
We address the following issues on appeal:
1. Whether the Shieldses' Notice of Appeal was premature thereby divesting
this Court of jurisdiction to entertain the appeal.
2. Whether the District Court erred in failing to consider the Shieldses'
Amendment to Complaint prior to entering its Order.
3. Whether the District Court erred in dismissing the Shieldses' claims on the
basis that they failed to exhaust the available administrative procedures under the
Individuals with Disabilities Education Act (IDEA).
4. Whether the District Court erred in dismissing the Shieldses' claims on the
basis that they failed to exhaust the available administrative procedures under the
Montana
Human Rights Act (MHRA).
Factual and Procedural Background
The Shieldses filed their Complaint in this action on October 13, 1995, and
their
First Amended Complaint on October 16, 1995. They alleged that Defendants failed to
properly identify, evaluate, and classify Nathan as a disabled student thereby
denying
Nathan his right to an appropriate education. In addition, they alleged various
state tort
claims contending that due to Nathan's disability, he was discriminated against by
certain
Defendants.
The latter allegations stem from incidents in which Nathan was prevented from
accompanying other students on a ski trip and was allegedly humiliated by one of his
teachers in front of his classmates. Based on these incidents, the Shieldses filed a
grievance with the school. On January 21, 1995, the school principal informed the
Shieldses that she was in agreement with the decision not to allow Nathan to attend
the
ski trip. No mention was made of any disciplinary action against the teacher. The
Shieldses appealed this decision to the superintendent of the Helena School
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District. On
February 10, 1995, the superintendent informed the Shieldses that he would uphold the
principal's determination. The Shieldses next appealed to the Board of Trustees of
the
Helena School District (the Board). The Board conducted a grievance hearing on June
21, 1995. The Shieldses were notified by letter dated June 30, 1995, that the Board
had
voted unanimously to uphold the superintendent's determination.
On October 16, 1995, the Shieldses filed their First Amended Complaint in the
First Judicial District Court, alleging violations of 42 U.S.C. 1983 (1988) and
504
of the Rehabilitation Act of 1973 (codified at 29 U.S.C. 794), as well as various
state
tort claims. Defendants filed a Motion to Dismiss on December 6, 1995, alleging that
the
Shieldses had not exhausted administrative procedures under the IDEA or the MHRA.
The Shieldses responded to Defendants' motion asserting that the exhaustion of IDEA
and
MHRA administrative procedures was not required in this case.
A hearing on the Motion to Dismiss was held on May 2, 1996. The Shieldses
filed an amendment to their complaint on June 3, 1996. That same day, the District
Court issued its Order dismissing all of the claims made by the Shieldses on the
basis that
the Shieldses failed to exhaust the available administrative procedures and that the
Shieldses failed to prove they were exempt from the exhaustion requirements. The
Shieldses appeal the District Court's Order.
Issue 1.
Whether the Shieldses' Notice of Appeal was premature thereby
divesting this Court of jurisdiction to entertain the appeal.
The District Court entered its Order dismissing the Shieldses' First Amended
Complaint on June 3, 1996. On June 10, 1996, the Shieldses filed what they termed a
Motion for Reconsideration. The District Court did not rule on the motion, thus,
pursuant to the 60-day time limit for ruling on post-trial motions contained in
Rules 59(d)
and (g), M.R.Civ.P., the motion was deemed denied on August 9, 1996, 60 days after
its filing. However, on July 3, 1996, prior to the disposition of their motion, the
Shieldses filed a Notice of Appeal.
Defendants contend that the Shieldses' Motion for Reconsideration was, in
effect,
a motion to alter or amend the judgment under Rule 59(g), M.R.Civ.P. They also
contend that, pursuant to Rule 5(a)(4), M.R.App.P., since the Shieldses filed their
Notice
of Appeal prior to the disposition of their motion, the Notice of Appeal was
premature,
thus this Court lacks jurisdiction to entertain the appeal. Rule 5(a)(4), M.R.App.
P., (as
amended December 19, 1995) provides, in part:
If a timely motion under the Montana Rules of Civil Procedure is
filed in the district court by any party: (i) for judgment under Rule 50(b);
(ii) under Rule 52(b) to amend or make additional findings of fact, whether
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or not an alteration of the judgment would be required if the motion is
granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under
Rule 59 for a new trial, the time for appeal for all parties shall run from the
entry of the order denying a new trial or granting or denying any other such
motion, or if applicable, from the time such motion is deemed denied at the
expiration of the 60-day period established by Rule 59(d), Montana Rules
of Civil Procedure. A notice of appeal filed before the disposition of any
of the above motions shall have no effect. A new notice of appeal must be
filed within the prescribed time measured from the entry of the order
disposing of the motion as provided above, or if applicable, from the date
of the expiration of the 60-day period established in Rule 59(d), Montana
Rules of Civil Procedure. [Emphasis added.]
A motion for reconsideration is not one of the post-judgment motions provided
for,
or authorized by, the Rules of Civil Procedure. Haugen v. Blaine Bank of Montana
(Mont. 1996), 926 P.2d 1364, 1370, 53 St.Rep. 1024, 1028 (citing Taylor v. Honnerlaw
(1990), 242 Mont. 365, 367, 790 P.2d 996, 997-98; Anderson v. Bashey (1990), 241
Mont. 252, 254, 787 P.2d 304, 305). We have previously stated, however, that a
motion for reconsideration will be equated to a Rule 59(g) motion to alter or amend a
judgment if the substance of the motion constructively requests the court to alter or
amend the judgment. Haugen, 926 P.2d at 1370 (citing Miller v. Herbert (1995), 272
Mont. 132, 135-36, 900 P.2d 273, 275). In order to make that determination, it is
necessary to look at the substance of the motion to identify what type of motion has
been
presented. Haugen, 926 P.2d at 1370.
We note that Defendants, contrary to the argument they make on appeal, argued
in their Memorandum Opposing Plaintiffs' Motion for Reconsideration that there was no
procedural basis for the motion and that it was not a Rule 59(g) motion. After
reviewing
the Shieldses' motion, we agree with Defendants' original contention and we conclude
that the Shieldses' motion is not a Rule 59(g) motion as it does not seek to alter
or amend
the judgment. Nor can the motion be considered equivalent to any of the motions
provided for in Rule 5(a)(4), M.R.App.P. Hence, the Shieldses are not bound by the
requirement of Rule 5(a)(4) that a notice of appeal filed before the disposition of
one of
the stated motions shall have no effect and that a new notice of appeal must be
filed.
Instead, the Shieldses are bound by the requirements of Rule 5(a)(1),
M.R.App.P., which provides:
In civil cases the notice of appeal required by Rule 4 shall be filed
with the clerk of the district court within 30 days from the date of the entry
of the judgment or order appealed from, except that in cases where service
of notice of entry of judgment is required by Rule 77(d) of the Montana
Rules of Civil Procedure the time shall be 30 days from the service of
notice of entry of judgment. . . .
Rule 77(d), M.R.Civ.P., provides:
Notice of entry of judgment or order served. Within 10 days after
entry of judgment or an order in an action in which an appearance has been
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made, notice of such entry, together with a copy of such judgment or order
or general description of the nature and amount of relief and damages
thereby granted, shall be served by the prevailing party upon all parties who
have made an appearance, but any other party may in addition serve a
notice of such entry in the manner provided in Rule 5 for the service of
papers.
As the prevailing party, Defendants should have served the Shieldses with a
notice
of entry of judgment. The Shieldses would then have 30 days from the service of the
notice of entry of judgment to file their Notice of Appeal. However, there is
nothing in
the rules (other than Rule 5(a)(4), M.R.App.P., which we have already stated does
not
apply in this case) that would preclude the Shieldses from filing their Notice of
Appeal
prior to receipt of a notice of entry of judgment.
Accordingly, we hold that the Shieldses' Notice of Appeal was not premature and
that this Court does have jurisdiction to entertain the appeal.
Issue 2.
Whether the District Court erred in failing to consider the Shieldses'
Amendment to Complaint prior to entering its Order.
The District Court filed its Order dismissing the Shieldses' cause of action on
June
3, 1996 at 2:49 p.m. The Shieldses did not file their Amendment to Complaint until
later
that same day. The Shieldses contend on appeal that the District Court erred in
issuing
its Order prior to the amendment being filed thereby precluding the court from
considering the amendment when making its determination.
The May 3, 1996 Scheduling Minute Entry Order states that a "[r]equest for . .
. amendment of pleadings must be filed by June 3, 1996." The Shieldses, having
already
amended their complaint once, were required to obtain leave of the court to amend
their
pleading a second time. Rule 15(a), M.R.Civ.P., provides, in pertinent part:
Amendments. A party may amend the party's pleading once as a
matter of course at any time before a responsive pleading is served . . . .
Otherwise a party may amend the party's pleading only by leave of court
or by written consent of the adverse party. . . . [Emphasis added.]
Since the Shieldses never requested leave of the court to amend their pleadings,
their
Amendment to Complaint was subject to being stricken.
In any event, there was nothing in the Shieldses' Amendment to Complaint that
would have altered the District Court's decision to dismiss the case based upon the
Shieldses' failure to exhaust administrative procedures. Accordingly, we hold that
the
District Court did not err by failing to consider the Shieldses' Amendment to
Complaint
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prior to entering its Order.
Issue 3.
Whether the District Court erred in dismissing the Shieldses' claims on
the basis that they failed to exhaust the available administrative
procedures under the IDEA.
The Shieldses contend that they were not required to exhaust administrative
procedures under the IDEA because they were seeking relief under 42 U.S.C. 1983
(1988) and exhaustion is only required for plaintiffs seeking relief under the
IDEA. They
also argue that futility and due process, two exceptions to the exhaustion rule,
apply in
this case.
Congress enacted the IDEA to address the failure of state education systems to
recognize and meet the educational needs of children with disabilities. 20 U.S.C.
1400
(1991). The IDEA guarantees that a free appropriate public education and related
services will be available to meet the unique needs of all children with
disabilities by
providing federal funding to states that furnish special education services to
students with
disabilities. 20 U.S.C. 1400(b)(9) and 1400(c) (1991); 20 U.S.C. 1412 and 1413
(1988). The term "related services," as used in the IDEA, includes recreational
activities where such activities are required to assist a disabled student in
benefitting from
special education. 20 U.S.C. 1401(a)(17) (1988).
Congress imposed explicit procedural safeguards and requirements in the IDEA.
20 U.S.C. 1415 (1994). For instance, parents are entitled to be notified in
writing of
changes the school district proposes or refuses to make in their child's educational
program. 20 U.S.C. 1415(b)(1)(C) (1994). Also, parents have the right to examine
their child's educational records and obtain an independent evaluation of their
child. 20
U.S.C. 1415(b)(1)(A) (1994). But the primary procedural safeguard employed by the
IDEA is the directive that parents of disabled students have the right to seek
review of
any decision concerning their children's education. Koopman v. Fremont Cty. School
Dist. No. 1 (Wyo. 1996), 911 P.2d 1049, 1052 (citing Hope v. Cortines (E.D.N.Y.
1995), 872 F.Supp. 14, 16). This right encompasses an opportunity to bring
complaints
"with respect to any matter relating to the identification, evaluation, or
educational
placement of the child, or the provision of a free appropriate public education to
such
child." 20 U.S.C. 1415(b)(1)(E) (1994). Moreover, the IDEA contains an express
requirement that administrative remedies be exhausted:
Nothing in this chapter shall be construed to restrict or limit the
rights, procedures, and remedies available under the Constitution, title V
of the Rehabilitation Act of 1973 [29 U.S.C.A. 790 et seq.], or other
Federal statutes protecting the rights of children and youth with disabilities,
except that before the filing of a civil action under such laws seeking relief
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that is also available under this subchapter, the procedures under
subsections (b)(2) and (c) of this section shall be exhausted to the same
extent as would be required had the action been brought under this
subchapter.
20 U.S.C. 1415(f) (1994).
Montana has implemented the IDEA through Title 20, chapter 7, part 4 of the
Montana Code Annotated and has established procedures in accordance with the IDEA
in 10.16.2401 et seq., ARM. Montana's regulations also provide that a complainant
may bring a civil action in district court only after exhausting the procedures set
forth in
the administrative rules. Section 10.16.2417(5), ARM.
In the case before us, the Shieldses failed to appeal the decision of the school
district to the State Superintendent of Public Instruction. Thus, the Shieldses
failed to
exhaust the administrative remedies under the IDEA and Montana's administrative rules
prior to bringing their action in District Court. The Shieldses contend, however,
that
they were not required to exhaust the administrative procedures under the IDEA
because
they were seeking compensatory damages under 42 U.S.C. 1983 and the IDEA
provides only injunctive or other prospective relief.
In Koopman v. Fremont Cty. School Dist. No. 1 (Wyo. 1996), 911 P.2d 1049,
a special education student and his parents made similar contentions regarding the
relief
available under the IDEA and the futility of exhausting the administrative
requirements
thereof. The complainants in Koopman brought a cause of action against school
officials,
the school district, and its board of trustees under the Rehabilitation Act and the
Americans with Disabilities Act alleging that the student was denied the opportunity
to
participate in various extracurricular activities because of his disabilities. The
Wyoming
Supreme Court held that because 1415(b)(1)(E) of the IDEA provides that parents may
file complaints for "any matter relating to the identification, evaluation, or
educational
placement of the child, or the provision of a free appropriate public education to
such
child," the relief sought by complainants was also obtainable under the IDEA, thus
exhaustion under that Act was required before complainants could pursue their claims
in
a court of law. Koopman, 911 P.2d at 1053.
In like manner, in the case before us, the Shieldses sought relief, for the
failure
of Defendants to properly identify, evaluate and classify Nathan as a disabled
student
thereby denying him his right to an appropriate education. Thus, the Shieldses'
claim
could have been brought under the IDEA and, pursuant to 20 U.S.C. 1415(f), since
relief was available under the IDEA, the Shieldses had to exhaust the IDEA
administrative procedures before instituting a civil action in district court. "[P]
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arties
cannot circumvent the IDEA's exhaustion requirements by asserting claims under other
laws while they deliberately avoid asserting a cognizable claim under the IDEA."
Koopman, 911 P.2d at 1053 (citing Hope v. Cortines (E.D.N.Y. 1995), 872 F.Supp. 14,
17).
The Shieldses contend that exhaustion of the administrative requirements under
the
IDEA would have been futile in their case as Nathan is no longer enrolled in the
school
where the alleged discrimination occurred. The complainants in Koopman made a
similar
argument, however, the Wyoming Supreme Court concluded that if the complainants had
made a timely effort to pursue their administrative remedies, the controversy could
well
have been resolved before they lost all the educational benefits from the various
activities
that had been denied the student. Koopman, 911 P.2d at 1054. So too, in the instant
case, the Shieldses should have made a timely effort to appeal the decision of the
Board
to the State Superintendent of Public Instruction. As noted in Koopman:
The IDEA's procedural scheme contemplates exactly this type of situation
by emphasizing the necessity of seeking the expertise of the education
professionals through the administrative appeals process at the first hint of
a controversy between the parents and the educational entity. [Citation
omitted.]
Even if, as Koopman suggests, the school could no longer replace the
educational experiences which he missed as a result of the appellees'
actions, we would still need the record from the administrative proceeding
in order to decide whether Koopman was entitled to be compensated under
the facts of this case. This type of case should be decided by the courts
"only after a serious and thorough examination of the records of the
proceedings undertaken by education professionals and the insights of those
experts into the problems of the subject child."
Koopman, 911 P.2d at 1054 (quoting Carey v. Maine School Administrative Dist. No.
17 (D.Me. 1990), 754 F.Supp. 906, 923).
Accordingly, we hold that the District Court did not err in dismissing the
Shieldses' claims on the basis that they failed to exhaust the available
administrative
procedures under the IDEA.
Issue 4.
Whether the District Court erred in dismissing the Shieldses' claims on
the basis that they failed to exhaust the available administrative
procedures under the MHRA.
The MHRA, Title 49 of the Montana Code Annotated, provides in pertinent part:
It is an unlawful discriminatory practice for an educational institution:
(1) to exclude, expel, limit, or otherwise discriminate against . . . an
individual enrolled as a student in the terms, conditions, or privileges of the
institution because of race, creed, religion, sex, marital status, color, age,
physical disability . . . or because of mental disability, unless based on
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reasonable grounds[.]
Section 49-2-307, MCA. To assert a claim of unlawful discrimination, an individual
must file a complaint with the Montana Human Rights Commission, stating the name and
address of the educational institution alleged to have engaged in the discriminatory
practice and the particulars thereof. Section 49-2-501(1), MCA. No action may be
filed
in district court until the procedures of the Montana Human Rights Commission have
been exhausted. Section 49-2-509(7), MCA.
In their First Amended Complaint, the Shieldses alleged that they were
unlawfully
discriminated against by certain Defendants because of Nathan's disabilities. They
noted
in their complaint that they did not pursue their discrimination claims with the
Montana
Human Rights Commission as required by 49-2-509(7), MCA, prior to filing the
complaint in District Court. The Shieldses contend on appeal that their claims are
state
tort actions that do not fall within the MHRA, thus they were under no obligation to
exhaust administrative remedies.
In Harrison v. Chance (1990), 244 Mont. 215, 797 P.2d 200, the plaintiff made
the same argument regarding her allegations of sexual harassment by her employer. We
ruled in Harrison that although her employer's alleged acts provided grounds for
various
tort claims, the gravamen of plaintiff's complaint was sexual harassment and, under
the
MHRA, sexual harassment is sexual discrimination. Harrison, 797 P.2d at 205. We
noted in that case that when the legislature enacted 49-2-509(7), MCA, it
expressed its
intent that the Montana Human Rights Commission provide the exclusive remedy for
illegal discrimination. Thus, we held in Harrison that pursuant to 49-2-509(7),
MCA,
the MHRA provided the exclusive remedy for plaintiff's claims. Harrison, 797 P.2d at
205. See also Bruner v. Yellowstone County (1995), 272 Mont. 261, 900 P.2d 901;
Hash v. U.S. West Communications Services (1994), 268 Mont. 326, 886 P.2d 442.
So too, the gravamen of the Shieldses' complaint is discrimination. Their First
Amended Complaint is replete with allegations that they were unlawfully discriminated
against by certain Defendants because of Nathan's disabilities. Specifically, they
alleged
that Nathan was discriminated against when he was denied participation in a school
sponsored ski trip; when he was humiliated by one of his teachers for not being able
to
participate in the ski trip; when he was repeatedly referred to by this same teacher
as
"Casper" because of his pale complexion; and when the school failed to classify him
as
a disabled student.
Section 49-2-509(7), MCA (1995), provides:
The provisions of this chapter establish the exclusive remedy for acts
constituting an alleged violation of this chapter, including acts that may
otherwise also constitute a violation of the discrimination provisions of
Article II, section 4, of the Montana constitution or 49-1-102. No other
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claim or request for relief based upon such acts may be entertained by a
district court other than by the procedures specified in this chapter.
Hence, under the MHRA, the Shieldses were required to file a written, verified
complaint
with the Montana Human Rights Commission. Section 49-2-501, MCA. Only after
availing themselves of the administrative procedures under the MHRA could they then
bring their claim in district court. Section 49-2-509(7), MCA; Harrison, 797 P.2d at
205.
Accordingly, we hold that the District Court did not err in dismissing the
Shieldses' claims on the basis that they failed to exhaust available administrative
procedures under the MHRA.
Affirmed.
/S/ JAMES C. NELSON
We concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
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