CARBON COUNTY SCHOOL DISTRICT NO 2

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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 Billings, Montana & Lovas, For Respondents: Emilie Loring; Hilley & Loring, Missoula, Montana Beda Lovitt, Legal Council, Office of Public Instruction, Helena, Montana FD --. Submitted ..bas1 on Briefs: Decided: JAN 2 4 1991, Filed: o CLERK OF SUPREfflg COU#A STATE QF MONTANA Clerk December 13, 1990 January 24, 1991 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. was a tenured teacher Respondent Helen Spivey (I1Spivey1l) 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 19861987. 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 unemployed. effective and Spivey was again 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 24-702 (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: tlProceedings for 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 5 203-107, 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 contains 5 2-4-702, MCA, was enacted in 1971. (MAPA), which 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 llEducationll, contains 5 20-3-107 (2), MCA. 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 Bryant v. Hall (1971), 157 the extent of any inconsistencies. 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 24-702, MCA. Therefore, we reverse the District Court and remand this cause to the District Court for proceedings consistent with this opinion. We concur: H

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