No. 90-340
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
TRUSTEES, CARBON COUNTY
SCHOOL DISTRICT NO. 28,
Plaintiff and Appellant,
HELEN SPIVEY and NANCY KEENAN,
Superintendent of Public Instruction,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Carbon,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
LaMlcence R. Martin; Felt, Martin, Frazier & Lovas,
Billings, Montana
For Respondents:
Emilie Loring; Hilley & Loring, Missoula, Montana
Beda Lovitt, Legal Council, Office of Public
Instruction, Helena, Montana
Filed:
FD
..bas1
JAN 2 4 1991,
--. Submitted on Briefs:
Decided:
o
December 13, 1990
January 24, 1991
CLERK OF SUPREfflg COU#A
STATE QF MONTANA
Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
The District Court of the Thirteenth Judicial District, Carbon
County, granted respondents1 motion to dismiss pursuant to the
running of a thirty-day period to file a petition for judicial
review. This appeal followed. We reverse and remand.
The sole issue on review is whether the sixty-day statute of
limitations contained in 5 20-3-107(2), MCA or the thirty-day
statute of limitations contained in 5 2-4-702(2) (a), MCA applies
to the filing of a petition for judicial review of a decision by
the Superintendent of Public Instruction which terminates the
employment of a tenured teacher.
Respondent Helen Spivey (I1Spivey1l)was a tenured teacher
employed by the appellant Carbon County School District No. 28,
(I1School Districtl1) located in Boyd, Montana. Pursuant to the
provisions of 5 20-4-204, MCA, its Board of Trustees (llTrusteesll)
non-renewed Spiveyls teaching contract for the school year 1986-
1987. Spivey appealed the Trustees1 decision to the County
Superintendent, which resulted in Spiveyls reinstatement as a
tenured teacher. The Trustees appealed the County Superintendent's
decision to reinstate Spivey. The Trustees1 appeal to the
Superintendent of Public Instruction (also referred to as the
"State Superintendentv1)was effective and Spivey was again
unemployed. The State Superintendent nullified the results of
Spiveyls first appeal and affirmed the initial action of the
Trustees in not renewing Spiveyls contract. As both parties
exhausted their administrative remedies, a collection of appeals,
2
remands, affirmances, disqualifications and reversals accumulated.
Finally, the State Superintendent issued a Decision and Order on
January 23, 1990 with instructions to reinstate Spivey. The
Trustees appealed this decision by filing their Petition for
Judicial Review on March 20, 1990. Therein lies the controversy
we are now faced with since March 20, 1990 comes more than thirty
days, but less than sixty days, after the State Superintendent's
decision of January 20, 1990. On April 10, 1990, Spivey moved the
District Court to dismiss the Trustees1 Petition for Judicial
Review on the theory that it had been filed beyond the thirty-day
period for filing a petition for judicial review of an agency
decision pursuantto the Montana Administrative Procedure Act; B 2-
4-702 (2)(a), MCA. On June 11, 1990 the District Court dismissed
the action and this appeal followed.
The sole issue for review is whether the sixty-day statute of
limitations contained in B 20-3-107(2), MCA or the thirty-day
statute of limitations contained in B 2-4-702 (2)(a), MCA applies
to the filing of a petition for judicial review of a decision by
the Superintendent of Public Instruction which terminates the
employment of a tenured teacher.
Spivey argues that the School District is precluded from
bringing the petition due to B 2-4-702(2) (a), MCA, which states:
tlProceedingsfor review shall be instituted by filing a petition
in district court within 30 days after service of the final
decision of the agency. . . ." The School District counters that
the proper statute of limitations is 5 20-3-107, MCA which gives
a party sixty (60) days to appeal a decision of the Superintendent
of Public Instruction. Spivey further argues that a 1977 amendment
to 5 2-4-702 impliedly repealed the sixty-day provision in 5 20-
3-107, MCA. We hold that the applicable statute in this case is
5 20-3-107, MCA which provides sixty days to appeal a decision of
the Superintendent of Public Instruction.
The Montana Administrative Procedure Act (MAPA), which
contains 5 2-4-702, MCA, was enacted in 1971. The thirty-day
statute of limitations of 5 2-4-702, MCA is a general statute that
applies to all contested case proceedings of any agency under MAPA.
By specific exclusion, MAPA did not originally apply to the State
Superintendent. However, in 1977 MAPA was amended to include the
State Superintendent. Title 20, on the other hand, entitled
contains 5 20-3-107 (2), MCA.
llEducationll, Section 20-3-107 (2),
MCA, enacted in 1974, allows a party sixty days from a decision of
the State Superintendent to file a petition for judicial review.
Spivey argues that the provision in the 1977 act which brought the
State Superintendent within the purview of MAPA impliedly repealed
the earlier enacted 5 20-3-107(2), MCA and, as a result, all
petitions for judicial review challenging decisions of the State
Superintendent must be filed within the thirty-day limit provided
in 5 2-4-702, MCA. The School District, on the other hand, argues
that the 1977 provision which brought the State Superintendent
within the purview of MAPA was not meant to effect the sixty-day
time limit of 5 20-3-107(2), MCA, but was only meant to effect the
manner in which the State Superintendent handled all aspects of
two primary functions--rule making authority and the determination
of contested cases. The School District contends that the District
Court erred by dismissing the School District's action based on the
thirty-day rule of 5 2-4-702, MCA, arguing that the District Court
should have applied the sixty-day rule of 5 20-3-107(2), MCA.
The applicable rule of statutory construction requires the
result that a specific statute controls over a general statute to
the extent of any inconsistencies. Bryant v. Hall (1971), 157
Mont. 28, 33, 482 P.2d 147, 149-50; Dept. of Revenue v. Davidson
Cattle Co. (1980), 190 Mont. 326, 329, 620 P.2d 1232, 1234. In
addition, a general statute which does not expressly affect a
previously enacted specific statute has no affect on the earlier
specific statute, unless intent to repeal the earlier specific
statute is either clearly manifested or unavoidably implied by
irreconcilable differences created by the continued operation of
the statutes. Dolan v. School District (1981), 195 Mont. 340, 346,
636 P.2d 825, 828; Kuchan v. Harvey (1978), 179 Mont. 7, 10, 585
P.2d 1298, 1300.
Section 20-3-107, on which the School ~istrictrelies is a
more specific statute than MAPA1s, § 2-4-702, MCA, in that 5 20-
3-107, MCA, applies to a narrowly defined Ilagen~y~~
whereas MAPA
applies generally to all agencies. In Davidson Cattle Co. at 329,
620 P.2d at 1234, we stated that 5 2-4-702, MCA, ''is a general
statute covering judicial review of determinations of any agency
which is subject to the provisions of the Montana Administrative
Procedure Act." On the other hand, 5 20-3-107(2), MCA, when read
in the context of Title 20, refers to the appeal of decisions of
the Superintendent of Public Instruction involving, among other
"matters of controversyn, the termination of a tenured teacher.
See § 20-3-210, MCA. We therefore resolve any inconsistencies in
these statutes in favor of the more specific statute of Title 20.
Next, Spivey contends that the 1977 act which brought the
State Superintendent within MAPA1s purview impliedly repealed the
earlier enacted 5 20-3-107(2), MCA because the operation of these
statutes poses irreconcilable conflicts. This argument is without
merit. Section 2-4-702(2)(a), MCA applies to all petitions filed
regarding decisions from any agency under the purview of MAPA, with
the exception of petitions filed in school controversies where
5 20-3-107(2), MCA applies. The State Superintendent is still
required to conduct hearings, consider issues and provide rule
making within the confines of MAPA. Section 20-3-107(2), MCA
simply carves out a specific limited procedural variation to the
general rule enunciated in 5 2-4-702(2) (a), MCA without negating
the fundamental purpose of MAPA. As such, we find that the
statutes can exist and operate side by side without posing any
irreconcilable differences. Therefore, we hold that B 2-4-702,
MCA does not expressly or impliedly repeal § 20-3-107(2), MCA and
we further hold that the sixty-day rule of 5 20-3-107(2), MCA
applies to the school controversy at issue in this case.
The State Superintendent issued her Decision and Order on
January 23, 1990. The School District filed its petition for
judicial review of the State Superintendent's decision on March 20,
1990. In so doing, the School District was within the sixty-day
time limit of 5 20-3-107, MCA. As such, we hold that the District
Court erred in dismissing the School District's claim based on 5 2-
4-702, MCA. Therefore, we reverse the District Court and remand
this cause to the District Court for proceedings consistent with
this opinion.
We concur: H