                                         No.    13459

            I N THE SUPREME COURT O THE STATE O MONTANA
                                   F           F

                                               1977



GRANT R .    GALLUP,

                                  P l a i n t i f f and A p p e l l a n t ,



SUPERINTENDENT O PUBLIC INSTRUCTION
                       F
of t h e S t a t e o f Montana,

                                  Defendant and Respondent.



Appeal from:           D i s t r i c t Court o f t h e F i r s t J u d i c i a l D i s t r i c t ,
                       Honorable Gordon R. B e n n e t t , Judge p r e s i d i n g .

Counsel of Record:

    For A p p e l l a n t :

            A s t l e and A s t l e , K a l i s p e l l , Montana
            David A s t l e a r g u e d , K a l i s p e l l , Montana

    For Respondent :

            W.   Corbin Howard, Helena, Montana

    For Amicus C u r i a e :

            Cannon and G i l l e s p i e , Helena, Montana
            R i c h a r d G i l l e s p i e a r g u e d , H e l e n a , Montana



                                                   Submitted:           April 18, 1 9 7 7

                                                      Decided:
                                                                      MAY - 4 lgn
Filed:
         MAY .     i   917
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.


     This is an appeal from an order of the district court,

Lewis and Clark County, granting defendant's motion to dismiss

with prejudice.

     Several issues are presented by plaintiff Grant R. Gallup,

but we find the controlling issue to be whether his rights and

remedies in this matter were foreclosed by his failure to timely

pursue proper legal remedies in the district court from a decision

of the state superintendent affirming the termination of his

tenure.

     Gallup in 1973 was a tenured teacher of School District No.

9, Glacier County, Montana, having taught there for 9 years.    In

September 1973, the board of trustees of the district dismissed

him pursuant to section 75-6107, R.C.M.   1947, which provides for

dismissal of a teacher during the contract term.

     Gallup appealed the decision to the superintendent of schools

o i Glacier County, who, following a hearing, reversed the board.

The board of trustees appealed that decision to the state superin-

tendent who upheld the decision of the county superintendent. That

decision was appealed to the district court which reversed the deci-

sion of the state superintendent. Gallup appealed to this Court

and in a decision dated December 21, 1976, the Court reversed the

district court's judgment and affirmed that of the state superin-

tendent of public instruction reinstating Gallup for the remainder

or his 1973-74 contract.   See: Board of Trustees of School District

No. 9, Glacier County v. Superintendent of Public Instruction,

oL the State of Montana and Grant   R. Gallup,       Mont   .     9



557 P.2d 1048, 33 St.Rep. 1221.
       : i Ylarch 13, i914, when G a l l u p ' s case was s t i l l b e f o r e t h e
        h

G l a c i e r County s u p e r i n t e n d e n t on t h e d i s m i s s a l o f September 1973,

t h e board of t r u s t e e s met f o r t h e purpose of renewing t e a c h e r s r

c o n t r a c t s f o r t h e coming 1974-75 school y e a r .            The board voted

t o t e r m i n a t e G a l l u p ' s tenured s e r v i c e a t t h e end of t h e 1973-74

school y e a r pursuant t o s e c t i o n 75-6103, R.C.M.                 1947.      W note
                                                                                      e

t h a t i n September 1973, t h e board terminated                     all up's c o n t r a c t

under s e c t i o n 75-6107, R.C.M.           1947.      The March 13, 1974, a c t i o n

taken by t h e board was under a d i f f e r e n t s t a t u t e and d u r i n g t h e

pendency of t h e f i r s t appeal.            A t t h i s point i n the case the

board chose t o t e r m i n a t e any f u t u r e employment w i t h Gallup,

r e g a r d l e s s of t h e outcome of t h e f i r s t c a s e .      This d e c i s i o n was

communicated t o Gallup by l e t t e r d a t e d March 19, 1974.                       On

March 25, 1974, Gallup demanded reasons f o r h i s t e r m i n a t i o n and

t h e board gave e i g h t reasons.            A t a h e a r i n g b e f o r e t h e board

on A p r i l 26, 1974, Gallup appeared w i t h counsel b u t r e f u s e d t o

testify.       A f t e r he l e f t , t h e board heard evidence and terminated

h i s s e r v i c e s a s a tenured t e a c h e r f o r t h e school year 1974-75.

       T h e r e a f t e r Gallup appealed t h e b o a r d ' s d e c i s i o n t o t h e

G l a c i e r County s u p e r i n t e n d e n t of schools.      Both p a r t i e s appeared

a t t h e h e a r i n g and s t i p u l a t e d t h a t two q u e s t i o n s should be con-

s i d e r e d and t h a t t h e t r a n s c r i p t of t h e h e a r i n g b e f o r e t h e board

of t r u s t e e s would provide t h e r e l e v a n t background.              The county

s u p e r i n t e n d e n t found t h e charges unsupported and ordered Gallup

reinstated.        The board appealed t o t h e s t a t e s u p e r i n t e n d e n t , who

reversed t h e county s u p e r i n t e n d e n t .      The d e c i s i o n of t h e s t a t e

s u p e r i n t e n d e n t was d a t e d November 1 4 , 1975.       N appeal was made
                                                                      o

t o t h e d i s t r i c t c o u r t u n t i l May 1 7 , 1976.

       S e c t i o n 75-5709, R.C.M.         1947, a s amended by Sec. 1, Ch.300,

L.1974,     i s controlling.          It provides i n p e r t i n e n t p a r t :
     'x      The decision of the superintendent of public
      instruction shall be final, subject to the proper
      Legal remedies in the state courts. Such proceedings
    -.shall be commenced no later than sixty (60) days after
      the date of the decision of the superintendent of public
      instruction." (Emphasis povided. )

     Lzr a recent case, Schweigert v. Board of Trus tees, 163

Mont. 29, 515 P.2d 85, this Court held that where a tenured

teacher did not follow statutory procedure in making a written

request within ten days for a statement of reasons and a hearing,

her rights under the statute expired and she was foreclosed

from thereafter bringing suit challenging the decision not to

renew her contract.    In the instant case more than six months

passed and Gallup cannot at this late date breathe life into his

complaint.

     Having failed to pursue his statutory administrative remedies

within the time allowed by law, Gallup's right to contest the

termination of his employment as a tenured teacher was at an end.

The statutory time limitations are mandatory to provide for

prompt resolution of teacher employment controversies in the

public interest, as well as the respective interests of the

principals involved.

     The judgment of the district court is affirmed.




We Concur:
                       I

J Justice*
-     6  -                    u
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