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 ; J o h n Doyle a r g u e d ,
H a m i l t o n , Montana
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: May 5 , 1983
Decided : J u l y 1 4 , 1983
Filed:
Clerk
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. 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
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. In-
deed, it is not even a deferral agency
for EEOC complaints which allege age
discrimination.
"Likewise, it would be an abuse of dis-
cretion 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 constitu-
tional 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 confer-
ence 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 conse-
quences 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. S 626(b),
and the Fourteenth Amendment to the United States Constitu-
tion. 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 vio-
lates 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 occupa-
tional 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 conclu-
sion 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 #lo, 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, 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 retire-
ment statute to the extent of any irreconcilable conflict or
inconsistency. See also, Kuchan v. Harvey (1978), 179 Mont.
7, 5 8 5 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 adminis-
trative 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 Consti-
tutions 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 deci-
sion. We determined that the appeal could be decided on
statutory grounds without reaching constitutional considera-
tions. 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-discrimina-
tion 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, 563 P.2d 127; State ex rel. Hammond v.
1 6 0 Mont. 391, 5 0 3 P.2d 52; S t a t e ex r e l . Konen v . C i t y of
Butte (1964), 1 4 4 Mont. 95, 394 P.2d 753; Application of
Baker Sales Barn (1962), 140 Mont. 1, 367 P.2d 775;
Y e l l o w s t o n e Bank v. S t a t e Bd. of Equalization ( 1 9 6 0 ) , 137
Mont. 198, 3 5 1 P.2d 904; State ex rel. Burns v. Lacklen
( 1 9 5 5 ) , 1 2 9 Mont. 243, 284 P.2d 998; Monarch M i n i n g Co. v.
S t a t e Highway Comm. ( 1 9 5 4 ) , 1 2 8 Mont. 6 5 , 270 P.2d 738; Yale
O i l C o r p . v. 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. 582, 4 1
P.2d 1 0 ; S t a t e v. T e s l a e t a l . ( 1 9 2 4 ) , 69 Mont. 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 s t a t u t o r y c o n s t r u c t i o n which
provides that special statutes will prevail over general
statutes. Kuchan v . 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., L o c a l 45 v. Montana L i q u o r C o n t r o l
Board ( 1 9 7 0 ) , 1 5 5 Mont. 300, 4 7 1 P.2d 541; Monarch Lumber
Co. v. Haggard ( 1 9 6 1 ) , 1 3 9 Mont. 105, 360 P.2d 794; In re
Kesl's Estate (1945), 1 1 7 Mont. 377, 1 6 1 P.2d 641; In r e
S t e v e n s o n ( 1 9 3 0 ) , 87 Mont. 486, 289 P. 566. T i t l e 49 i s a
general legislative enactment that deals with employment
whereas the game warden retirement statute 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, on t h e o t h e r h a n d , we a p p l i e d t h e r u l e o f
statutory construction that 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 . Dolan, 636 P.2d at
8 2 8 , 38 S t . R e p . a t 1 9 0 7 ; see a l s o , Kuchan v. Harvey, s u p r a ;
State A e r o n a u t i c s Comm. v. Board o f Examiners, supra. We
a l s o apply t h i s r u l e here.
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 compensa-
tion or in a term, condition, or privi-
lege 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, evalu-
ate, 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 and local governmental
agencies shall:
" ( 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 qualifi-
cations, is free from bias."
The game warden retirement statute reads: "(2) Retire-
ment shall be compulsory at age 60." Section 19-8-601(2),
MCA.
Consequently, the later statute ( e . , the Human
Rights Act) impliedly repeals the retirement statute to
effectuate the clear intent of the legislature. Dolan,
Kuchan, and S t a t e A r e o n a u t i c s Comm., supra.
A s expressed i n Dolan, 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 employment unless age is related to job
performance. 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 ; however, Dolan p o i n t s o u t t h e r e
m u s t be a j u s t i f i c a t i o n 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 . 636 P.2d a t 829, 38
St.Rep. at 1908. Furthermore, section 49-2-303(2), MCA,
provides that such statutory exceptions must be strictly
construed. 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
does not 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 reach-
ing age s i x t y . Title 49 indicates 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 exhaust i o n
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 redress. We
hold that Taylor acted properly in bringing his 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 , " not a judicial r e v i e w of an
administrative action. Thus, 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 there is a
basis for age discrimination. 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 t o the
compulsory retirement statute to establish 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 the s t a t u t o r y exceptions. This
would be i n excess of the court's authority. We held in
C h e n n a u l t v. Sager (1980), Mont. , 610 P.2d 173,
37 St.Rep. 857, t h a t t h e r o l e of a court 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 employ-
ment.
Furthermore, determining t h e b a s i s f o r age discrimina-
tion i n Montana will entail a great fact-finding effort.
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 , 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 and specifics about the occupation in
question. The l e g i s l a t u r e , not the courts, has the proper
resources to assume such an undertaking. 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 Depart-
ment, 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 , the defense t h a t Taylor's claim
was b a r r e d by t h e two-year s t a t u t e of limitations for t o r t
actions involving property. Section 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, according t o l o n g s t a n d i n g case
l a w i n M o n t a n a , R u l e 8 ( c ) , M.R.Civ.P., requires a s t a t u t e of
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 statute of
limitations can be raised for the first time on appeal
according to Rierson v. Board of Administration of PERS
(1981 I Mont . , 622 P.2d 195, 38 S t . R e p . 3. In
Rierson the appellant f i r s t raised t h e i s s u e of s t a t u t e of
limitations in his petition for rehearing in the Supreme
Court. 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 is i m p l i e d
authority t o address the s t a t u t e of 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 limitations defense has
been waived and, thus, cannot be r a i s e d here. Rule 8 ( c ) ,
M.K.Civ.P., provides that a defense of 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. The l a w is c l e a r that if the defense is n o t
plead affirmatively, i t is w a i v e d . B u t t e Country Club v.
Metropolitan Dist. (1974), 164 Mont. 75, 519 P.2d 408;
ilansen v. K e i r n a n e t a1. (1972), 1 5 9 Mont. 448, 499 P.2d
787; Turner v. Powell (1929), 85 Mont. 241, 278 P. 512;
S t a t e ex rel. Kolbow V. Dist. Court ( 1 9 0 9 ) , 38 Mont. 415,
0-
' c-q.
"
1 0 0 P. 207; GrogRn &. V a l l e y T r a d i n g Co. ( 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 level. There is
s i m p l y no h o l d i n g 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 Equal Employment Opportunity Commission v.
Wyoming, supra, t o the present case. 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 distinguishable. EEOC
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 t h e F e d e r a l Age D i s c r i m i n a -
tion in Employment A c t a p p l i e d t o t h e Wyoming s t a t e game
warden r e t i r e m e n t s t a t u t e . 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 compulsory r e t i r e m e n t statute. I n EEOC, the
United States Supreme Court applied a federal act to a
Wyoming statute, whereas here we are applying Montana's
Human Rights Act to Montana's game warden retirement
statute.
Reversed and remanded for further proceedings
consistent w i t h t h i s opinion.
'?A&d. J u s t i c e
Chief
W concur:
e