No. 88-569
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
JIM ROMERO,
Plaintiff and Appellant,
-vs-
J & J TIRE, JMH, INC., a Montana
corporation, and KENT JOHNSON,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Thomas Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joe Nascimento; Montana Law Center, Helena, Montana
For Respondent:
Mike McCarter; Hughes, Kellner, Sullivan & Alke,
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. Submitted on Briefs: June 1, 1989
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Decided: July 11, 1989
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
The District Court for the First Judicial District,
Lewis and Clark County, dismissed plaintiff Romero's com-
plaint of discrimination in employment for failure to comply
with the Montana Human Rights Act. Romero appeals. We
affirm.
The issues are:
1. Does the Montana Human Rights Act violate the Con-
stitution of the United States or of the State of Montana by
requiring a person to file a race discrimination claim with
the Montana Human Rights Commission prior to bringing an
action in district court?
2. Does the Montana Human Rights Act violate the Con-
stitution of the United States or of the State of Montana by
providing that orders in discrimination cases may not include
punitive damages?
3. Does the Montana Human Rights Act violate the Con-
stitution of the United States or of the State of Montana by
providing a hearing before the Human Rights Commission rather
than providing a trial by jury?
Romero brought this action in December 1987 alleging
that the defendants discriminated against him in employment
based upon his race, resulting in his constructive discharge
from their employ. Defendants filed a motion to dismiss on
the grounds that the District Court lacked subject matter
jurisdiction and that the complaint failed to state a claim
upon which relief could be granted. This was based on
Romero's failure to go through administrative proceedings
with the Human Rights Division before filing his complaint in
District Court. Romero's response to the motion to dismiss
alleged that the administrative procedure provided for in the
Montana Human Rights Act, §§ 49-2-101 through -601, MCA, (the
Act) is unconstitutional.
The District Court treated Romero's constitutional
challenge as a request for a declaratory judgment. The
Montana Human Rights Division intervened in the action. The
court granted defendants' motion to dismiss, finding that
Romero failed to show that the Act was unconstitutional.
In January 1989, the Human Rights Commission issued
Romero a right-to-sue letter, which would allow him to file
his claim in District Court within 90 days. He did not do
so. The Human Rights Commission argues that this appeal
should be dismissed because it is moot: all the relief
requested except punitive damages could have been obtained
following receipt of the right-to-sue letter. However,
because the constitutional questions raised here are capable
of repetition, yet could evade review, we will consider the
issues raised on appeal. See Matter of N.B. (1980), 190
Mont. 319, 322-23, 620 P.2d 1228, 1230-31.
Does the Montana Human Rights Act violate the Constitu-
tion of the United States or of the State of Montana by
requiring a person to file a race discrimination claim with
the Montana Human Rights Commission prior to bringing an
action in district court?
The constitutionality of a statute is presumed; the
party challenging it has the burden of proving it unconstitu-
tional beyond a reasonable doubt. Fallon County v. State
(Mont. 1988), 753 P.2d 338, 339, 45 St.Rep. 748, 750.
In Drinkwalter v. Shipton Supply Co., Inc. (Mont. 1987),
732 P.2d 1335, 44 St.Rep. 318, this Court held that a victim
of sexual harassment could file her complaint directly in
district court, without going through the administrative
procedures outlined in the Act. After that decision, the
1987 Legislature enacted S 49-2-509(7), MCA, with an
immediate effective date. That section provides that the Act
establishes the exclusive remedy for acts constituting a
violation thereof and that no claim for relief based upon
such acts may be entertained by a district court other than
by the procedures the Act specifies. The Act requires that a
claimant must file a complaint before the Human Rights
Commission, which has 12 months in which to hold a contested
case hearing, before a case may be filed in district court.
Section 49-2-509 (1), MCA. Romero argues that this
requirement denies him equal protection of the law and access
to the courts as guaranteed under U.S. Const. amend. V and
XIV and Art. 11, secs. 4, 16, and 17, Mont. Const.
Romero cites White v. State (1983), 203 Mont. 363, 661
P.2d 1272, and Pfost v. State (1985), 219 Mont. 206, 713 P.2d
495, as authority. Both cases were overruled in relevant
part in Meech v. Hillhaven, No. 88-410 (Mont. June 29, 1989).
Moreover, those cases both dealt with limitations on
remedies, not procedural requirements.
We look instead to Linder v. Smith (Mont. 1981), 629
P.2d 1187, 38 St.Rep. 912, in which this Court upheld the
constitutionality of the Montana Medical Malpractice Act.
Under that act, a litigant is required to go through
administrative proceedings before the Medical Malpractice
Panel before filing a complaint in district court. This
Court held that access to the courts may be hindered if
another fundamental right is not involved and there exists a
rational basis for doing so. We found that the medical
malpractice crisis in Montana was a rational basis for
hindering access to the courts. Linder, 629 P.2d at 1190.
We also held that because the requirement that medical
malpractice claimants proceed first through the Medical
Malpractice Panel operated in the same manner upon all
persons in like circumstances, equal protection guarantees
were not violated. Linder, 6 2 9 P.2d at 1 1 9 3 . In a similar
manner, the requirement that discrimination claimants proceed
first through the Montana Human Rights Division operates
equally upon all persons in like circumstances. Although
Romero argues that freedom from racial discrimination is a
fundamental right in Montana, this Court has not previously
so held and is not prepared to do so based on the arguments
made by Romero. We hold that the State's purpose of
combatting illegal discrimination is a rational basis for
delaying access to the courts by using a specialized agency
to handle discrimination complaints.
The Act does not deny discrimination claimants access to
the courts. Judicial review of administrative proceedings
before the Human Rights Commission is available. Also, after
1 2 months in which a hearing has not been held, a claimant is
generally entitled to a right-to-sue letter allowing access
to the courts. See S 4 9 - 2 - 5 0 9 , MCA. We hold that the Act
does not violate the U.S. or the Montana Constitution by
requiring a claimant to file a complaint before the Human
Rights Commission before bringing an action in district
court.
11.
Does the Montana Human Rights Act violate the Constitu-
tion of the United States or of the State of Montana by
providing that orders in discrimination cases may not include
punitive damages?
Section 4 9 - 2 - 5 0 6 ( 2 ) , MCA, precludes punitive damages in
actions brought under the Act. Romero argues that there is a
fundamental right to claim punitive damages. He cites no
authority, and his proposition is not supported by this
Court's previous opinions. Punitive damages are an extraor-
dinary remedy outside the field of usual redressful remedies.
Safeco Ins. Co. v. Ellinghouse (Mont. 1 9 8 6 ) , 725 P.2d 217,
226-27, 43 S t . R e p . 1689, 1701. T h e r e i s no c o n s t i t u t i o n a l
r i g h t t o p u n i t i v e damages. White v . S t a t e ( 1 9 8 3 ) , 203 Mont.
363, 370, 661 P.2d 1272, 1275, o v e r r u l e d on o t h e r g r o u n d s ,
Meech v . Hillhaven, No. 88-410 (Mont. June 29, 1989). A
plaintiff i s n e v e r e n t i t l e d t o e x e m p l a r y damages a s a m a t t e r
of right. Spackman v . Ralph M. P a r s o n s Co. ( 1 9 6 6 ) , 147 Mont.
500, 511, 4 1 4 P.2d 918, 924. W e h o l d t h a t t h e r e i s no
v i o l a t i o n o f e i t h e r t h e United S t a t e s C o n s t i t u t i o n o r t h e
Montana C o n s t i t u t i o n i n t h e p r o v i s i o n i n t h e Montana Human
R i g h t s A c t which p r e c l u d e s p u n i t i v e damages.
Does t h e Montana Human R i g h t s A c t v i o l a t e t h e C o n s t i t u -
tion of the United States or of the State of Montana by
p r o v i d i n g a h e a r i n g b e f o r e t h e Human R i g h t s Commission r a t h e r
t h a n p r o v i d i n g a t r i a l by j u r y ?
Romero c i t e s A r t . 11, s e c . 26, Mont. Const., a n d U.S.
Const. amend. V , a s authority t h a t he is e n t i t l e d t o a jury
trial. This Court has s t a t e d t h a t i n discrimination cases
u n d e r t h e Human R i g h t s A c t , it i s h e l p f u l t o look t o f e d e r a l
law u n d e r T i t l e V I I o f t h e C i v i l R i g h t s A c t o f 1 9 6 4 , c o d i f i e d
a t 42 U.S.C. 5 2000. S n e l l v . Montana-Dakota U t i l i t i e s Co.
( 1 9 8 2 ) , 198 Mont. 56, 62, 643 P.2d 841, 844. This Court has
h e l d t h a t " t h e r i g h t t o t r i a l by j u r y i n t h i s s t a t e i s t h e
same as that guaranteed by the S e v e n t h Amendment [to the
United S t a t e s C o n s t i t u t i o n ] . [Citation omitted. 1" Linder,
629 P.2d a t 1189. The f e d e r a l c a s e s d o n o t s u p p o r t Romero's
position.
[Wlhen C o n g r e s s c r e a t e s new s t a t u t o r y
" p u b l i c r i g h t s , " i t may a s s i g n t h e i r
a d j u d i c a t i o n t o a n a d m i n i s t r a t i v e agency
w i t h which a j u r y t r i a l would b e incom-
p a t i b l e , without v i o l a t i n g t h e Seventh
Amendment's i n j u n c t i o n t h a t j u r y t r i a l i s
t o be "preserved" in "suits at common
law. "
A t l a s Roofing Co. v . O c c u p a t i o n a l S a f e t y Comrn'n. ( 1 9 7 7 ) , 430
U.S. 442, 455, 97 S . C t . 1261, 1269, 5 1 L.Ed.2d 464, 475. The
r i g h t o f jury t r i a l i s i n a p p l i c a b l e t o f e d e r a l T i t l e V I I ac-
tions. S l a c k v . Havens ( 9 t h C i r . 1 9 7 5 ) , 522 F.2d 1091, 1094.
We hold that the Act does not violate either the United
S t a t e s o r t h e Montana C o n s t i t u t i o n by p r o v i d i n g f o r a h e a r i n g
b e f o r e t h e Human R i g h t s Commission r a t h e r t h a n p r o v i d i n g f o r
a t r i a l by j u r y .
Finally, Romero a r g u e s t h a t t h e 90-day time l i m i t for
filing a complaint in District Court a f t e r he received a
right-to-sue l e t t e r s h o u l d b e t o l l e d f o r t h e t i m e t a k e n by
t h i s appeal. For t h e purposes of t h i s c a s e only, w e g r a n t
R o m e r o l s r e q u e s t t o t o l l t h e 90-day t i m e l i m i t imposed by t h e
statute. Romero may t h e r e f o r e r e f i l e a c o m p l a i n t i n D i s t r i c t
Court.
Affirmed.
W e concur: /
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