Hilands Golf Club v. Ashmore

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No. 01-050

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 8

HILANDS GOLF CLUB,

Petitioner and Respondent,

v.

JOAN ASHMORE, a/k/a JOAN ZIRKO,

Charging Party/Respondent and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Wm. Nels Swandal, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Donald C. Robinson, Poore, Roth & Robinson, P.C., Butte, Montana

For Respondent:

James H. Goetz, Goetz, Gallik Baldwin & Dolan, P.C., Bozeman, Montana

For Amicus Brief (ACLU):

Elizabeth Brenneman, Attorney at Law, Helena, Montana

Submitted on Briefs: August 16, 2001
Decided: January 18, 2002

Filed:

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_________________________________________

Clerk

Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1 The Petitioner, Hilands Golf Club, filed a Petition for Judicial Review in the District
Court for the Thirteenth Judicial District Court in Yellowstone County to set aside a
Montana Human Rights Commission order which found Hilands had committed gender
discrimination to the detriment of the Respondent, Joan Ashmore. The District Court
vacated the Human Rights Commission order based on its conclusion that Ashmore lacked
standing and her claim was moot. Ashmore appeals the District Court's dismissal. We
reverse the order of the District Court.

¶2 The following issue is dispositive on appeal:

¶3 Did the District Court err when it considered claims that Ashmore lacked standing and
her claim was moot, even though those arguments were made for the first time in the
District Court?

FACTUAL BACKGROUND

¶4 The Hilands Golf Club is a member-owned, private country club in Billings, Montana.
Prior to 1989, Hilands limited its full membership, which included voting privileges, to
men only. Wives of male members were considered "associate" members. That status
included no voting privilege or proprietary interest in the Club.

¶5 In 1989, the Montana Legislature amended the Montana Human Rights Act to prohibit
gender discrimination in places of public accommodation. See § 49-2-304, MCA. As a
liquor license holder, the Hilands Golf Club qualified as a place of public accommodation.

¶6 On April 20, 1989, in response to the Legislature's action, Hilands amended its bylaws
and adopted a gender neutral membership policy. Hilands also modified its "blackballing"
procedure (by which any three members could deny an applicant membership) and set up
a grievance procedure to handle discrimination complaints. Women were allowed to join

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the Club for the $5,000 membership fee, and assume full membership status.

¶7 Steve Zirko joined Hilands on August 22, 1988, and his wife, Joan Ashmore, became
an "associate" member. Zirko and Ashmore knew of Hilands' men-only membership
policy at the time. However, no other membership choices were available. Following the
1989 amendments, women were allowed to become voting members, and spouses of
members, whichever gender, were made "associate" members. Despite the bylaw change,
Ashmore alleged that de facto discrimination continued, and that Hilands continued to
publish, distribute and enforce gender-specific rules and regulations which either limited
or denied services, facilities, and privileges to women.

¶8 On August 20, 1990, Ashmore filed a preliminary complaint with the Montana Human
Rights Commission pursuant to § 49-2-501(1), MCA, alleging gender discrimination.
Ashmore filed a second preliminary complaint on October 2, 1990. On March 28, 1991,
Ashmore filed a formal complaint with the Commission in which she alleged:

A. My husband is a member of the respondent's golf club and I am an associate
member of the club.

B. The majority of respondent's voting membership are [sic] male. Females were not
permitted voting memberships until a year ago. Respondent has only two female
members.

C. The majority of the associate members are [sic] wives of voting members.

D. Respondent has a rule regarding playing time that gives members exclusive use
of golf course on Thursdays, and on Saturday, Sunday and holiday mornings.

¶9 Steve Zirko resigned his voting membership on September 25, 1992. As a result,
Ashmore's status as an "associate" member ended. Ashmore applied for "non-resident"
member status and was accepted. In that status, she was entitled to play golf at "any time
reserved for regular members." On September 26, 1994, Ashmore voluntarily resigned her
membership with Hilands.

¶10 Ashmore's complaint of gender discrimination before the Human Rights Commission
referred to incidents which occurred prior to her change in membership status in
September of 1992 and her ultimate resignation from Hilands in 1994. Hearings before the

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Human Rights Commission Hearing Examiner occurred between June and August of
1993. On January 4, 1994, the Hearing Examiner issued his Findings of Fact, Conclusions
of Law, and Order in favor of Ashmore. On June 13, 1994, the Human Rights
Commission affirmed the findings of the Hearing Examiner and ordered Hilands to pay
Joan $750 in damages for emotional distress. Furthermore, the Commission enjoined
Hilands from engaging in future discriminatory practices and ordered Hilands to create a
three-person committee to review its policies and practices, promote greater numbers of
female members, and monitor its progress.

¶11 On July 12, 1994, pursuant to § 2-4-702, MCA, Hilands filed a Petition for Judicial
Review of the Commission's order. A challenge to the validity of Hilands' appeal was
denied by this Court in Hilands Golf Club v. Ashmore (1996), 277 Mont. 324, 922 P.2d
469. On remand, Hilands filed a Motion to Dismiss based on its contention that Ashmore
lacked standing and her claim was moot.

¶12 On October 23, 2000, the District Court granted Hilands' Motion to Dismiss. On
December 14, 2000, Ashmore filed a Notice of Appeal of the District Court's decision. To
date, Hilands has neither paid Ashmore her monetary damages in the amount of $750 nor
formed the three-person committee ordered by the Commission to undertake certain
activities to eliminate and discourage further discrimination.

STANDARD OF REVIEW

¶13 We first note that Hilands' Motion to Dismiss was filed and granted in the District
Court before the Court reached the underlying issues decided by the Human Rights
Commission. The basis for Hilands motion was that "the present case is moot, that
Respondent Ashmore lacks standing, and that, therefore, vacatur should be entered,
vacating the Order of the Montana Human Rights Commission, and that this case should
then be dismissed." Therefore, we are reviewing Hilands' Motion to Dismiss. A district
court's ruling on whether a justiciable controversy exists is a conclusion of law. Northfield
Ins. Co. v. Montana Ass'n of Counties, 2000 MT 256, ¶ 8, 301 Mont. 472, ¶ 8, 10 P.3d
813, ¶ 8. We review the district court's conclusions on which its decision is based to
determine whether they have been correctly decided. Ridley v. Guaranty Nat. Ins. Co.
(1997), 286 Mont. 325, 329, 951 P.2d 987, 989.

DISCUSSION

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¶14 Did the District Court err when it considered claims that Ashmore lacked standing and
her claim was moot, even though those arguments were made for the first time in the
District Court?

¶15 Ashmore contends that the District Court improperly dismissed the order of the
Human Rights Commission based on standing and mootness. Ashmore argues that
because Hilands knew the facts which gave rise to its standing and mootness claims prior
to the contested hearing before the Human Rights Commission, Hilands in effect waived
such arguments by not raising them during the administrative process. Ashmore relies on §
2-4-702(1)(b), MCA, of the Montana Administrative Procedure Act and this Court's
decision in Lincoln County v. Sanders County (1993), 261 Mont. 344, 862 P.2d 1133.

¶16 Hilands maintains that because both standing and mootness are jurisdictional issues,
they can be raised at any stage of the proceedings. It relies on Shamrock Motors, Inc. v.
Ford Motor Co., 1999 MT 21, ¶ 19, 293 Mont. 188, ¶ 19, 974 P.2d 1150, ¶ 19 ("Shamrock
I"), and Shamrock Motors, Inc. v. Chrysler Corp., 1999 MT 39, ¶ 9, 293 Mont. 217, ¶ 9,
974 P.2d 1154, ¶ 9 ("Shamrock II"). It further contends that not only can standing and
mootness be raised, but a court has an obligation to examine its own jurisdiction sua
sponte at each stage of the proceedings, even if the parties previously waived such issues.

¶17 The District Court concluded that Lincoln County's application to the present case was
doubtful in light of our decisions in Shamrock I and Shamrock II. Based on that
conclusion, the District Court dismissed the Human Rights Commission order.

¶18 In order to best serve justice and allow parties to have their day in court, we
encourage, as a general rule, a liberal interpretation of procedural rules governing judicial
review of administrative decisions. Hilands Golf Club v. Ashmore (1996), 277 Mont 324,
330, 922 P.2d 469, 473. That being said, a district court's authority to review
administrative rulings is constrained by statutes duly enacted by the Montana Legislature.
In re McGurren, 1999 MT 192, ¶ 12, 295 Mont. 357, ¶ 12 983 P.2d 968, ¶ 12. While it is
true that a court has an obligation to consider its own jurisdiction sua sponte, a court's
jurisdiction to review administrative decisions is statutorily created and limited.

¶19 The Montana Administrative Procedure Act sets forth the procedure for judicial
review of contested administrative decisions, like the one in this case. § 2-4-701 to -711,
MCA. Section 2-4-702(1)(b), MCA, provides:

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A party who proceeds before an agency under the terms of a particular statute may
not be precluded from questioning the validity of that statute on judicial review, but
the parties may not raise any other question not raised before the agency unless it is
shown to the satisfaction of the court that there was good cause for failure to raise
the question before the agency. [Emphasis added.]

¶20 When we interpret a statute, we first look to the plain meaning of the words it
contains. Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088. Where the
language of the statute is clear and unambiguous, the statute speaks for itself and we will
not resort to other means of interpretation. Clarke, 271 Mont. at 416, 897 P.2d at 1088.
Moreover, this Court is required to simply ascertain and declare what is in terms or in
substance found in the statute, neither inserting what has been omitted nor omitting what
has been inserted. § 1-2-101, MCA.

¶21 A plain reading of § 2-4-702(1)(b), MCA, indicates that a party may question the
validity of a statute for the first time on judicial review to the district court. Other than that
exception, all other issues must be raised at the administrative level absent good cause.
Section 2-4-702(1)(b), MCA, is, itself, a limitation on the district court's jurisdiction to
review administrative decisions. This limitation stands in contrast to the original or
appellate jurisdiction derived from Article III of the U.S. Constitution and Article VII,
Section 4, of the Montana Constitution. Because the Legislature created judicial review of
administrative decisions and at the same time limited the scope of review, the general rule
that justiciability questions can be raised at any time is not applicable. Therefore, we
conclude that standing and mootness claims cannot be raised for the first time on judicial
review of an administrative agency decision unless the District Court determines that there
was good cause for the party's failure to raise the question before the agency.

¶22 The question presented here was previously considered in Lincoln County. In that
case, Sanders County argued that because Lincoln County did not raise the issue of
standing to the Mining Board, an administrative agency, it could not raise the question
before the District Court. We agreed. We held that the Montana Administrative Procedure
Act specifically prohibits parties from raising an issue for the first time on judicial review,
pursuant to § 2-4-702(1)(b), MCA:

The District Court determined that Lincoln County had not shown good cause for
failure to raise the issue before the agency. A review of the record indicates that the
District Court was correct in this assessment.

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We conclude that Lincoln County cannot raise on judicial review something it did
not raise before the agency itself. Therefore, we hold that the District Court did not
err in ruling that Lincoln County could not challenge the standing of Sanders
County to object to an administrative decision.

Lincoln County, 261 Mont. at 351, 862 P.2d at 1138. While Lincoln County addressed the issue
of standing, we conclude that § 2-4-702(1)(b), MCA, applies to all questions, including
other justiciability questions like mootness.

¶23 The District Court concluded that Lincoln County was inapplicable given this Court's
decisions in Shamrock I and II. In those separate cases, national automobile companies,
Ford Motor Company in Shamrock I and the Chrysler Corporation in Shamrock II, notified
Shamrock Motors, Inc., that it intended to terminate its automobile dealer franchise due to
Shamrock's unauthorized sale of 80% of its stock without the auto companies' knowledge
and consent. The dispute was contested before the Motor Vehicle Division, an
administrative agency, which ruled that Ford and Chrysler had good cause. Shamrock filed
for judicial review in the district court. Both automobile companies removed the case to
federal court, and, while the matter was pending before the Ninth Circuit, Shamrock's
franchise relationship with both companies ended. In Shamrock I, Shamrock sold the
dealership to Brooks Hanna Ford, and resigned as a Ford dealer. Shamrock I, ¶ 12. In
Shamrock II, Chrysler terminated the franchise. Shamrock II, ¶ 10. The Ninth Circuit
vacated the U.S. District Court's decisions because the court lacked jurisdiction. On
remand back to state court, Shamrock filed a renewed petition for judicial review. Both
Ford and Chrysler filed motions to dismiss based on mootness and lack of standing, given
the fact the franchise relationship no longer existed. The District Court reversed the order
of the Motor Vehicle Division without addressing the basis for Ford's and Chrysler's
motions to dismiss. On appeal to this Court, we reversed, and held that because mootness
is a threshold issue, it must be dealt with prior to addressing the underlying dispute.
Shamrock I, ¶ 17; Shamrock II, ¶ 13. We determined that a matter is moot when due to an
event or happening, the issue has ceased to exist and no longer presents an actual
controversy. Shamrock I, ¶ 19; Shamrock II, ¶ 13.

¶24 However, the facts in those cases are distinguishable. In Shamrock I, the sale of the
dealership from Shamrock to Brooks Hanna occurred after the contested administrative
hearing. Similarly, in Shamrock II, the franchise was terminated by Chrysler after the
contested administrative hearing. Therefore, the case was made moot by a subsequent
event which followed the administrative hearing and good cause would have existed to

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raise those issues for the first time on judicial review.

¶25 Here, Hilands knew that lack of standing and mootness claims were viable issues that
could be raised before the Human Rights Commission, yet failed to raise them. To allow
Hilands to raise those questions for the first time at the District Court would contravene
the plain language of § 2-4-702(1)(b), MCA. If, however, an event had occurred after the
administrative hearing that raised standing or mootness issues, Hilands presumably would
be able to satisfy the court that "there was good cause for failure to raise the question
before the agency," pursuant to § 2-4-702(1)(b), MCA.

¶26 Upon review of the record, we conclude that the good cause exception is not present
in this case. The record indicates that Hilands was aware of such defenses during the
administrative agency proceeding. On the standing issue, Hilands' brief in support of its
Motion to Dismiss, on page 28, argues:

Apart from mootness . . . any standing she may have had to raise that issue
evaporated when she lost her associate status and became a non-resident member.
She simply is not harmed by the course usage rules of Hilands, because she, as a
non-resident member, has all course privileges. This was true at the time of the
hearing because she had become a non-resident member by that time.

Hilands concedes a standing argument was available prior to June 2, 1993, the first
hearing date before the Hearing Examiner.

¶27 As to the mootness issue, Hilands similarly acknowledges the availability of the
argument prior to the hearing on page 24 of its brief:

Even assuming that this complaint of Ms. Ashmore states an actionable claim under
the Montana Human Rights Act, such claim is moot, and was moot at the time the
Human Rights Commission heard this matter.

Hilands contends that Ashmore mooted the issues when she lost her "associate" status and
became a "non-resident" member in September of 1992, and when she resigned her
Hilands membership in September of 1994. Her change in membership status in 1992
occurred prior to the first hearing on June 2, 1993. Therefore, the mootness argument was
available, yet Hilands failed to raise it. If Ashmore had resigned her membership in 1994,
without a change of membership status in 1992, there may have been good cause to raise

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the argument before the District Court for the first time on judicial review. Yet, given the
congruent nature of the mootness arguments, both changes in membership status, Hilands
could have argued the case was moot before the Hearing Examiner. It did not, and, as a
result, waived similar mootness arguments based on a membership status change.

¶28 Therefore, because Hilands failed to raise questions of standing and mootness during
the agency proceeding when it could have done so, the District Court erred in its dismissal
of the Human Rights Commission order. Because this issue is dispositive, we will not
address the other issues of justiciability raised on appeal. We remand to the District Court
for further consideration of any substantive issues raised in the Petition for Judicial
Review.

¶29 We reverse and remand to the District Court for proceedings consistent with this
opinion.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ PATRICIA COTTER

Justice Jim Rice dissenting.

¶30 I respectfully dissent.

¶31 The Court holds that the District Court erred in dismissing the claims for lack of
standing and mootness, because these grounds were not raised before the agency, citing §
2-4-702(1)(b), MCA. At ¶ 21, the Court describes this statutory provision as a legislatively
imposed limitation on the District Court's jurisdiction which "stands in contrast" to the
constitutional mandate to hear cases and controversies. I respectfully submit that, while
correctly noting the contrast, the Court fails to properly apply the constitutional principle
at issue here.

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¶32 While the Legislature can limit the jurisdiction of the district court, the Constitution
provides a prior limitation. Article VII of the Montana Constitution, like Article III of the
United States Constitution, mandates that courts may only hear justiciable cases. We have
previously explained that standing is a requirement under this constitutional provision:

The concept of standing arises from two different doctrines: (1) Discretionary
doctrines aimed at prudently managing judicial review of the legality of public acts,
[citation omitted]; and (2) doctrines of constitutional limitation in the federal courts
drawn from the "cases and controversies" definition of federal judicial power in
Article III, United States Constitution and in the Montana courts drawn from the
"cases at law and in equity" definition of state judicial power in Article VII, 1972
Montana Constitution.

....

From these cases we synthesize that the issue presented for review must represent a
"case" or "controversy" within the judicial cognizance of the state sovereignty.

Stewart v. Board of County Commissioners (1977), 175 Mont. 197, 200-01, 573 P.2d 184, 186.
Thus, the Constitution requires that a party have standing before a district court may hear the case.

¶33 However, the Court turns this principle on its head, holding that the Legislature's
enactment of § 2-4-702, MCA, prohibits the district court from applying the constitutional
principle of standing in those cases in which the issue was not previously raised before the
agency. The Court essentially holds that the requirement of standing can, pursuant to § 2-4-
702, MCA, be waived.

¶34 Standing is jurisdictional and can never be waived:

Plaintiffs argue that the defendant Board is raising the issue of standing for the first
time on appeal and that . . . the Board is now precluded from raising this
defense. . . . Objections to standing cannot be waived and may be raised by the
court sua sponte. United States v. Storer Broadcasting Co. (1956), 351 U.S. 192,
197, 76 S.Ct.763, 100 L.Ed. 1081; 6 Wright & Miller, Federal Practice &
Procedure: Civil § 1542 at 642-43.

Stewart, 175 Mont. at 203-04, 573 P.2d at 188 (emphasis added). The Court's interpretation of § 2-

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4-702, MCA, as prohibiting the District Court from applying the standing requirement
violates Article VII of the Montana Constitution and elevates legislative enactment over
constitutional mandate. The Legislature can no more require courts to hear cases that lack
standing than it could require courts to issue advisory opinions. Our Constitution prohibits
it.

¶35 This prohibition applies to other justiciability concerns, such as ripeness, feigned or
collusive cases, political questions, and, at issue here, mootness. In Roosevelt v. Montana
Dept. of Revenue, 1999 MT 30, 293 Mont. 240, 975 P.2d 295, we quoted from Hardy v.
Krutzfeldt (1983), 206 Mont. 521, 526, 672 P.2d 274, 276, explaining that:

"The judicial power vested in the district courts and the Supreme Court of Montana,
by the provisions of the Montana Constitution, extend to such 'cases at law and in
equity' as are within the judicial cognizance of the state sovereignty. Article 8, secs.
3, 11, [1889 Montana Constitution.] By 'cases' and 'controversies' within the judicial
power to determine, is meant real controversies and not abstract differences of
opinion or moot questions. Neither federal nor state Constitution has granted such
power."

....

We have followed this same principle of judicial restraint since the adoption of our
new Constitution.

Roosevelt, ¶¶ 47-48 (emphasis added).

¶36 For these reasons, I believe that Lincoln County was wrongly decided and should be
reversed. Further, I would not apply the statutory prohibition on raising new questions, set
forth in § 2-4-702, MCA, to constitutional justiciability requirements. Consequently, I
would address the merits of the District Court's order, i.e., whether, under the facts of this
case, the claims were properly dismissed on the grounds of standing and mootness.

/S/ JIM RICE

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