                                      No. 86-06
                    IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1986




UNIVERSITY OF MONTANA FOUNDATION,
a Montana nonprofit corporation,
                      Plaintiff and Respondent,


HUMAN RIGHTS COMMISSION, and its
Administrator, ANNE MacINTYRE,
                      Defendants and Appe1.lants.




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:
                      Janice Frankino Dogqett, Human Rights Commission,
                      Helena, Montana


            For Respondent:
                      Gough, Shanahan, Johnson & Waterman; Thomas E.
                      Hattersley, Helena, Montana
                      Frederick F. Sherwood, Helena, Montana




                                        Submitted on Briefs: July 31, 1986
                                          Decided:   October 9, 1986

         is; t   : : ;986
Filed:




                                        Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

       The Montana Human Rights Commission appeals the order of
the First Judicial District which restrained the Commission
from    any   further    proceedings   regarding   a   discrimination
complaint filed by Gayle Walton against the University of
Montana Foundation.       The order also required the Commission
Administrator to immediately issue a right to sue letter to
Gayle Walton.    We affirm.
       The issues are:
       1.   Did the District Court err in its interpretation of
5   49-2-509, MCA, when       it restrained the Commission from
further proceedings and required the Commission to issue a
right to sue letter?
       2.   Did the District Court err when it refused to admit
evidence regarding the cause of the delay in the Commission's
investigation?
       On January 20, 1984 Gayle Walton filed three discrimina-
tion complaints with        the Montana Human Rights Commission
(Commission) against the University of Montana Foundation
(Foundation).     About sixteen months later, the Foundation
requested that the Commission issue a right to sue letter
regarding FJalton's complaints pursuant to 5 49-2-509, MCA.
Anne MacIntyre, administrator for the Commission, refused the
request and stated she was unable to determine whether Com-
mission efforts to settle the case had been unsuccessful, and
that a right to sue letter would not be issued until such a
determination had been made.
       On September 27,      1985 the Foundation applied to the
District Court for writ of review and writ of prohibition.
The Foundation claimed the Commission lost jurisdiction of
Walton's complaints by failing to meet the time limits set
forth in S 49-2-509, MCA, and should be barred from further
proceedings in the matter.     The Commission responded with a
motion to quash the Foundation's writ of prohibition.     Addi-
tionally, Walton    was permitted   to   intervene.    Following
briefing and oral argument, the District Court issued an
order restraining the Commission from any further proceedings
in the matter and requiring Anne MacIntyre, as Division
Adiminstrator, to issue a right to sue letter.        Commission
appealed.


       Did the District Court err in its interpretation of
S 49-2-509, MCA when it restrained the Commission from fur-
ther proceedings and required the Commission to issue a right
to sue letter?
       Section 49-2-509(1), MCA, provides:

       (1) The commission staff shall, at the request of
       either party, issue a letter entitling the
       complainant to file a discrimination action in
       district court if:
            (a) the commission has not yet held a con-
       tested case hearing pursuant to 49-2-505 and has
       determined that it will be unable to hold a con-
       tested case hearing within 12 months of the date
       the complaint was filed under 49-2-501; and
            (b) 180 days have elapsed since the complaint
       was filed and the efforts of the commission staff
       to settle the complaint after informal investiga-
       tion pursuant to 49-2-504 have been unsuccessful.
       In determining legislative intent, the Court must first
look to the plain meaning of the language used in the stat-
ute.    State ex rel. Palmer v. Hart (~ont. 1982), 655 ~ . 2 d
965, 39 St.Rep. 2277; Dorn v. Board of Trustees of Billings
School District No. 2 (Mont. 1983), 661 P.2d 426, 40 St.Rep.
     The Commission believes the      statute does not permit
removal of a case to district court until an attempt to
settle the case has been made, even though the time require-
ments of the statute have been exceeded.      In a letter from
Anne MacIntyre to the Foundation's attorney, this position
was clearly enunciated.    In part, the letter stated:

    I am unable to determine that the "efforts of the
    commission staff to settle the case after informal
    investigation pursuant to 49-2-504 have been unsuc-
    cessful. "     S 49-2-509(1) (b), MCA and A.R.M.
    24.9.262 (2)(c) (emphasis added)   .   I am unable to
    make such a determination because the informal
    investigation has not been concluded, and will not
    be concluded until the commission staff issues its
    findings. The reasonable cause or lack of reason-
    able cause finding in a case under investigation is
    the staff's determination whether the allegations
    of the complaint are supported by substantial
    evidence.    Section 49-2-504, MCA, requires the
    staff to make such a determination and then attempt
    to settle the case and eliminate the discriminatory
    practice through conference, conciliation, and
    persuasion.    Section 49-2-509 (1) (b), MCA, does not
    permit removal to district court until these steps
    have been completed, even though the time require-
    ments have been met.     (Second emphasis added for
    this opinion.)
The position of the Commission as stated above is not a
correct interpretation of the statute.
    We conclude that 5 49-2-509 (I), MCA, provides that on
the request of either party, a right to sue letter should
issue where 180 days have elapsed since the filing of the
complaint without the completion of an informal settlement,
and in addition, where 12 months have elapsed from the filing
date so that a contested case hearing cannot be held within
such 12 month period.     Gayle Walton filed her complaints on
January 20, 1984.   As a result, an informal settlement must
have been completed by the Commission by July 19, 1984   -   180
days from filing.   As an alternative, the Commission must
have held a contested case hearing by January 19, 1985 - 12
months from January 20, 1984.     Neither of these statutory
deadlines were met.   This statute then provides that upon the
request of either party, a right to sue letter should issue.
     As the District Court's well-phrased order stated:

     The language of the statute is clear on its face.
     The Commission staff must issue a right to sue
     letter at the request of either party if two condi-
     tions are met: (1) a contested case has not and
     cannot be held within 12 months of the filing of
     the complaint; and (2) efforts to informally settle
     the matter pursuant to S 49-2-504, MCA, have been
     unsuccessful and 180 days have elapsed. Here, no
     contested case has been held and more than 12
     months have passed since the filing of the com-
     plaint.   In addition, more than 180 days have
     elapsed since the filing of the complaint, and
     there has not been a successful settlement. Since
     the Foundation has requested the Commission staff
     to issue a right to sue letter, it must do so.   ..
     Section 49-2-509, MCA, does not say that the Admin-
     istrator has the authority or the discretion to
     determine whether efforts at informal settlement
     have been unsuccessful. To hold that the Adminis-
     trator has such discretion would be to insert
     something which was omitted by the Legislature.
     This the Court cannot do.     Furthermore, to hold
     that the 180 days begins to run only after the
     Administrator has made a determination that efforts
     to settle have been unsuccessful, would permit the
     Commission staff to informally do what it could not
     formally do, that is, the staff could continue with
     the matter well beyond the 12 month time limit for
     holding a contested case.    The plain language of
     the statute clearly shows that such was not the
     intent of the Legislature.
     Rule 1 of the Montana Rules of Civil Procedure in part
provides that the rules shall be construed to secure "the
just, speedy, and inexpensive determination of every action."
The same guidelines properly may be applied to the adminis-
trative proceeding requirements of 5 49-2-509, MCA.   The aim
of the administrative process is to secure a just and inex-
pensive determination which is just as speedy as the court
process.   The legislature has placed a reasonable time limit
on the administrative process by granting a total of 12
months within which to complete that process.     Nothing has
been presented which demonstrates that the 12 month period is
an unreasonable period.   We hold that the District Court did
not err when it restrained the Commission from further pro-
ceedings and required the Commission to issue the right to
sue letter.
                              I1

     Did the District Court err when it refused to admit
evidence regarding the cause of the delay in the Commission's
investigation?
     In the present case, the District Court refused to
consider evidence that settlement had not been reached due to
delay caused by the Foundation.       If the time periods set
forth in the statute have passed, then upon request a right
to sue letter must be issued.      The statute does not address
delays, nor provide for additional time if one side or the
other caused a delay.   We hold the District Court did not err
when it refused to admit evidence regarding the cause of the
delay in the Commission's investigation.
     We affirm the District Court.




We Concur:
              - '
               4

      Chief Justice
     Mr. Justice Frank E . Morrison, Jr. dissents as follows:
        I dissent.
        The wording     in   $   49-2-509(1) (b), MCA, is ambiguous.
Subsection (b) may be read as having one or two conditions.
To   determine       legislative    intent we     should   look   to   the
legislative history of       §   49-2-509, MCA.
        Section 49-2-509, MCA, was introduced as House Bill 660
in the     1983 legislative session.            Comments submitted by
Commission Administrator MacIntyre           indicate the bill was
intended to provide an alternative forum for a complainant
whose    case was      not being     expeditiously    investigated and
settled by the Commission.

     There are several reasons the Commission has
     requested the introduction of this legislation.
     First, many complainants who are represented by
     counsel from the outset would prefer to pursue
     their complaints in court rather than at an
     administrative hearing.   Secondly, because of the
     inadequate funding of the Commission, the number of
     cases awaiting hearing is large and growing. While
     the number is not large compared to the number of
     cases which are resolved by the Commission staff
     through investigation and conciliation prior to
     hearing, it does contribute to the Commission
     backlog.     Furthermore, in many cases, damages
     continue to accrue while cases are awaiting hearing
     and   this    seems particularly   inequitable to
     Respondents.


     Because of the fact that the Commission staff is
     able to resolve more than 90% of the cases filed
     with it through conciliation and investigation, the
     Commission believes that all complaints should be
     filed with the Commission initially.        If the
     Commission staff cannot resolve the complaint
     within   180    days   through   conciliation   and
     investigation, the complainant can then exercise
     the election provided for in this bill.
Senate Judiciary Committee minutes, March 9, 1983.
     The bill was amended to provide both complainant and
respondent with the right to request a right to sue letter.
        Sections   49-2-509, MCA,          establish the administrative
remedy for resolving discrimination complaints.                      The federal
district court for the District of Montana found that the
legislature intended            to    create    a    procedure      whereby    the
Commission        would     informally          eliminate       discriminatory
practices by conference, conciliation, and persuasion, and
that    the    statutory remedy is exclusive.                  Walker v.       The
Anaconda Co.       (D.C.Mont.        1981) 520 F.Supp.        1143, 38 St.Rep.
1557.    I agree with this analysis.
       In the present           case, the District Court refused to
consider evidence that settlement had not been reached due to
delay caused by the Foundation.                This was error.        If a party
is permitted       to     stall its way         into district court, the
statutory remedy can be rendered meaningless.                        Pursuant to
549-2-504,      MCA,      the    Commission         staff   shall     informally
investigate a filed complaint promptly and impartially.                       This
task    becomes    exceedingly         difficult      where    the    respondent
refuses to comply with discovery requests.
        I would interpret S           49-2-509 (1)(b), MCA, to require a
look into the progress of settlement efforts after 180 days
have elapsed.        The legislative history reveals S 49-2-509,
MCA, was implemented to provide an alternative remedy where
administrative delay is preventing resolution of a complaint.
In     the    present     case,      the   district     judge     should      have
determined whether          the Foundation or           the Commission was
responsible for the delay.
       The Commission's interpretation of S 49-2-509 (1), MCA,
is   found at ARM 24.9.262;

            (2) The division administrator shall issue
       the right to sue letter on behalf of the Commission
       upon receipt of a written request from either party
       if the administrator determines:
            (a) No contested case hearing has been held
       in the case;
            (b) 180 days have elapsed since the complaint
       was filed;
            (c) the efforts of the division to settle the
       case after informal investigation have been
       unsuccessful; and
            (d) the Commission will be unable to hold a
       contested case hearing in the matter within 12
       months of the date the complaint was filed.
The    District Court       found        this    rule   to be   an    incorrect
interpretation of the statute as it contains four enumerated
conditions rather       than     two, and         it allows the division
administrator to determine whether settlement efforts have
been unsuccessful.
       The rule is, in my opinion, proper under the statute.
Subsection (c) of the rule does not give the administrator
unbridled discretion to extend a case beyond the 12 month
time    limit   for holding          a    contested     case hearing.       The
Commission has a duty to promptly investigate complaints and
immediately     try    to      eliminate         discriminatory      practices.
Neither    party      should     be       permitted     to   circumvent     the
administrative     remedy       by       using    dilatory   tactics.       The
legislative history and time limits contained within the
statute support this result.
       The District Court should be                 reversed and the case
