Great Falls v. Assoc. of Firefighters

2024 MT 302

• Court: Montana Supreme Court
• Decided: December 10, 2024
• Docket: DA 23-0145
• Status: Published

Opinion

12/10/2024

DA 23-0145 Case Number: DA 23-0145

IN THE SUPREME COURT OF THE STATE OF MONTANA 2024 MT 302

CITY OF GREAT FALLS,

Petitioner and Appellant,

v.

INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, Local #8, MONTANA FEDERATION OF PUBLIC EMPLOYEES, and CITY OF GREAT FALLS CRAFT COUNCIL,

Respondents and Appellees.

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDV-20-612 Honorable Kaydee Snipes Ruiz, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jordan Y. Crosby, James R. Zadick, Ugrin Alexander Zadick, P.C., Great Falls, Montana

David G. Dennis, Great Falls City Attorney, Great Falls, Montana

For Appellees:

Jonathan C. McDonald, McDonald Law Office, PLLC, Helena, Montana

Submitted on Briefs: October 11, 2023

Decided: December 10, 2024

Filed:

qi5--6 A-- #f __________________________________________ Clerk Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 The City of Great Falls (City) appeals the May 2022 judgment of the Montana

Eighth Judicial District Court, Cascade County, dismissing its petition for judicial review

of the October 2020 proposed, and ultimately final, agency decision and order of the

Montana Board of Personnel Appeals (MBPA) in favor of the International Association of

Firefighters Local #8, and other public employee labor unions, regarding their respective

unfair labor practices complaints. We address the following restated issue:

Whether the District Court erroneously concluded that the October 2020 MBPA hearing examiner’s decision was not eligible for judicial review under §§ 2-4-701 or -702(1)(a), MCA?

Affirmed.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 Prior to 2019, the City collectively bargained with employee labor unions regarding

workplace drug and alcohol use and testing policies. Pre-2019 city policy, applicable to

all union and non-union employees, prohibited employee use of alcohol or drugs on city

premises or while performing city business, provided for temporary investigative

suspension upon particularized suspicion of unfitness for duty due to drug or alcohol use,

subjected employees to drug or alcohol screening or professional medical evaluation in

such case, and subjected employees to discipline for drug and alcohol policy violations.

Under the pre-2019 policy, employees in positions that required a commercial driver’s

license (CDL) as a condition of employment, others in positions involving performance of

2 narrowly-defined “safety-sensitive” functions, and any involved in on the job

vehicle/injury accidents were also subject to random drug and alcohol testing on demand.

¶3 In 2019, by posted and individual written notice to all employees, including union

and non-union employees, the City unilaterally announced and then imposed a revised drug

and alcohol policy upon all employees. Inter alia, the revised 2019 policy expanded the

scope of employees subject to random drug and alcohol testing, beyond the previously

limited scope of CDL-required and narrowly-defined “safety-sensitive” positions, to

further include city lifeguards and any city employee who drove a city vehicle, operated

certain equipment, or supervised or transported minors. Inter alia, the revised 2019 policy

further:

(1) subjected all employees to termination of employment on first-offense violation of the policy, whether use, testing, or other policy provision;

(2) subjected all employees to payroll deduction of testing costs on a corresponding per-employee basis; and

(3) required all employees to consent to the terms of the policy by signing all “required forms” including an “Awareness and Acknowledgment Form” and a “Consent” to random urine or blood-alcohol breath testing on demand.

Relying on its asserted non-negotiable management authority, the City made no attempt to

obtain the advance negotiated/bargained-for consent of the affected unions (hereinafter

Collective Bargaining Units or CBUs)1 to the new drug and alcohol policy provisions, and

1 The affected CBUs that filed the unfair labor practice complaints at issue were the International Association of Firefighters Local #8, Montana Federation of Public Employees, and the City of Great Falls Crafts Council (including Carpenters Union Local No. 82, Teamsters Local Union No. 2, Operating Engineers Local No. 400, Laborers Union Local No. 1685, and Machinists Union Local No. 24).

3 then similarly ignored or denied subsequent CBU demands for collective bargaining

regarding the matter.

¶4 In and after February 2019, the affected CBUs began filing CBU-specific MBPA

unfair labor practice complaints pursuant to §§ 39-31-103(12), -201, -202, -305(1)-(2),

-401(5), -403, -405, and -406, MCA (Montana Public Employees Collective Bargaining

Act (MPECBA)). In common essence, the complaints alleged that the City’s unilateral

imposition of the revised 2019 drug and alcohol policy without collective bargaining, and

imposition of the policy by direct communication with individual CBU members rather

than through their respective union exclusive representatives, were unfair labor practices

in violation of §§ 39-31-103(4), (12), -201, -305, -401(1), and (5), MCA. Citing

§ 39-31-303, MCA (CBUs and their exclusive representatives “shall recognize” public

employer “prerogatives . . . to operate and manage” all employer “affairs in” various

enumerated “areas,” inter alia), and its self-government charter powers and

responsibilities, the City asserted in response that it lawfully acted unilaterally within the

scope of its non-negotiable management authority.

¶5 In June 2019, MBPA consolidated and transferred the unfair labor practice

complaints for contested case administrative hearing and adjudication pursuant to

§§ 39-31-405(3)-(5) and -406, MCA (MPECBA unfair labor practice complaint

procedure); § 39-31-105, MCA (all MBPA “hearings and appeals must” proceed “in

accordance with” applicable “provisions of the Montana Administrative Procedure Act”

(MAPA)); and §§ 2-4-101(2)(b), -102(4), and -601 through -623, MCA (MAPA “contested

4 case” proceeding procedure). Following discovery and unsuccessful mediation, the

affected CBUs and the City filed cross-motions for summary judgment based on stipulated

material facts.

¶6 On October 22, 2020, the assigned agency hearing examiner issued a detailed

proposed contested case agency decision, including referenced stipulated material facts and

resulting conclusions and applications of law, granting summary judgment to the CBUs,

and thus denying the City’s cross-motion. In pertinent essence, based on the stipulated

material facts, the hearing examiner concluded as matters of law that:

(1) the new or expanded 2019 drug and alcohol policy provisions unilaterally imposed by the City on CBU members were unlawful mid-contract alterations of employment terms or conditions in violation of MPECBA collective bargaining requirements;2

(2) the City’s associated direct communication with individual CBU members regarding the imposition of those new or expanded policy provisions violated the City’s MPECBA duty to collectively bargain regarding such matters through the designated exclusive CBU representatives;3 and

(3) the City’s unilateral imposition of the new or expanded drug and alcohol policy provisions, and associated failure to communicate and negotiate those matters with the CBU members through their designated exclusive representatives, thus constituted “unfair labor practices” as defined in §§ 39-31-103(12) and -401, MCA, and cited guiding federal judicial and administrative authority interpreting similar provisions of the federal National Labor Relations Act (NLRA), and Labor Management Relations Act (LMRA).4 2 See §§ 39-31-103(1), (5)-(6), -201, -305(1)-(2), and -401(1), MCA. 3 See §§ 39-31-103(1), (4)-(6), -201, -305(1)-(2), and -401(5), MCA. 4 Based on the substantial “similarity between” MPECBA §§ 39-31-101 through -409, MCA, and similar provisions of the federal NLRA, Pub. L. No. 198, 49 Stat. 449 (1935), and amending LMRA, Pub. L. No. 101, 61 Stat. 136 (1947), as amended, pertinent interpretive decisions of the National Labor Relations Board and federal judiciary under those federal Acts guide the 5 In accordance with § 39-31-406(6), MCA, the hearing examiner’s proposed agency

decision was accompanied by a separate recommended MBPA order compelling the City,

inter alia, to cease and desist from all “direct efforts to impose” its revised drug and alcohol

policy provisions on the subject CBU memberships, any enforcement “effort[s]” against

those memberships, and any further “direct dealing with members” of the subject CBUs.

Also in accordance with § 39-31-406(6), MCA, the hearing examiner’s proposed

agency/MBPA decision and recommended order were served on the parties by U.S. mail

on October 22, 2020. On receipt, the City documents were stamped “received” on

October 26, 2020.

¶7 The City did not avail itself of its procedural right under §§ 39-31-406(6),

2-4-621(1)-(3), and -623(1), MCA, to file and brief “exceptions” of “fact or law” to the

proposed decision and order for final MBPA review in advance of issuance of a final

agency/MBPA order. On November 20, 2020, the City instead petitioned for district court

judicial review pursuant to § 2-4-701, MCA (immediate judicial review of “preliminary”

or “intermediate agency . . . ruling” if ordinary “review of the final agency decision” under

interpretation and application of similar provisions of the MPECBA. Bonner School Dist. No. 14 v. Bonner Educ. Ass’n, 2008 MT 9, ¶ 18, 341 Mont. 97, 176 P.3d 262; City of Great Falls v. Young, 211 Mont. 13, 17, 686 P.2d 185, 187 (1984); State ex rel. Bd. of Personnel Appeals v. Mont. Eleventh Jud. Dist. Ct., 183 Mont. 223, 226, 598 P.2d 1117, 1118-19 (1979). As pertinent to the federal authority relied on by the hearing examiner, the NLRA, and amending LMRA, specify various prohibited “unfair labor practices” by labor unions and affected employers, and provide an administrative and judicial scheme for protection of employer and union interests regarding the collective bargaining process and resulting agreements in interstate commerce. See 29 U.S.C. §§ 141-42, 151-53, and 157-60.

6 § 2-4-702(1)(a), MCA, “would not provide an adequate remedy”). Aside from overboard

recitation of the applicable MAPA standard of judicial review,5 the more particular ground

for relief asserted in the petition was that the hearing examiner’s proposed decision

erroneously failed to:

recognize the significance of the City’s statutorily-mandated obligations regarding [the] prevent[ion] [of] workplace drug and alcohol use by public employees in safety sensitive positions.[6]

In its supporting brief, the City elaborated that the hearing examiner “disregarded the City’s

cited legal authority,” and instead relied on “inapplicable” and “distinguishable” decisional

law to reach “entirely misguided” legal conclusions, thus resulting in erroneous ultimate

conclusions that the alleged “unfair labor practices occurred.” Directed to the MAPA

prerequisite for immediate judicial review of a preliminary agency decision under

5 The petition broadly asserted that the hearing examiner’s proposed agency decision on summary judgment “violat[ed] constitutional or statutory provisions . . . under . . . § 2-4-704(2)(a)(i) and (iv),” MCA, thereby cursorily mirroring the MAPA standard of judicial review. See § 2-4-704(2)(a)(i) and (iv), MCA (reviewing court “may reverse or modify” the subject administrative “decision if . . . the administrative findings, inferences, conclusions, or decisions are . . . in violation of constitutional or statutory provisions . . . [or] affected by other error of law”—emphasis added). 6 In support of that assertion, the petition cited: (1) the authority and duty of the city manager under the City’s self-government charter to “[d]irect, . . . supervise, and administer all City departments” and “employees”; (2) the city manager’s resulting function as the city “director of public safety” and thus “the executive head of police and fire” as referenced in § 7-3-4464(1), MCA; (3) the powers and duty of the public safety director under § 7-32-103(1), MCA, to “perform the duties conferred on and required of . . . [city] police officers[] and chiefs of police”; and (4) the City’s alleged duty under 41 U.S.C. § 8102, as a condition of federal funding, “to ensure a Drug-Free Workplace” by requiring “as a condition of employment” in “safety-sensitive” positions that such employees “refrain from possessing[] or using controlled substances or illegal drugs, including . . . marijuana, in the workplace.”

7 § 2-4-701, MCA (ordinary “review of the final agency decision” under § 2-4-702(1)(a),

MCA, “would not provide an adequate remedy”), the petition:

(1) cited Shoemaker v. Denke, 2004 MT 11, ¶ 20, 319 Mont. 238, 84 P.3d 4, for the asserted proposition that exhaustion of available administrative remedies as required by § 2-4-702(1)(a), MCA, is not required for assertions of error involving pure questions of law; and

(2) therefore asserted that waiting for ordinary review of a final agency decision under § 2-4-702(1)(a), MCA, would not provide an “adequate remedy” for the City’s assertions of error because the petition sought “review of legal issues [only which] involve[] a judicial determination,” and thus “[h]aving” final agency review by “a non-judicial board would not remedy” the asserted errors of law, “violate public policy as set forth in statute,” “delay [City] implementation of proactive public safety measures,” and “not be in the interests of judicial economy.”

In response, the CBUs asserted that § 2-4-701, MCA, did not apply because the hearing

examiner’s decision became the final agency decision by default operation of law pursuant

to § 39-31-406(6), MCA. Citing Flowers v. Bd. of Personnel Appeals, 2020 MT 150, ¶ 8,

400 Mont. 238, 465 P.3d 210, the CBUs further asserted that Shoemaker and cited

underpinnings were clearly distinguishable, and thus insufficient to override or circumvent

the express exhaustion of administrative remedies requirement of § 2-4-702(1)(a), MCA,

as applied to the concurrently provided remedy for final agency review of hearing examiner

proposed findings of fact and conclusions and applications of law specified in

§§ 39-31-406(6), 2-4-621(1)-(3), and -623(1), MCA.7 Upon subsequent briefing and oral

7 The CBUs initially asserted that the District Court “lack[ed] jurisdiction” due to the City’s failure to exhaust administrative remedies. We need not address that threshold jurisdictional matter in light of our recent clarification in North Star Dev., which the parties acknowledge on appeal, that “failure to exhaust administrative remedies as required by § 2-4-702(1)(a), MCA, does not deprive a district court of . . . subject matter jurisdiction,” but is merely a justiciability prerequisite that 8 argument, the District Court “denied and dismissed” the City’s petition for “failure to

exhaust” the final agency review remedy provided by §§ 39-31-406(6) and 2-4-621(1),

MCA. The City timely appealed.

STANDARD OF REVIEW

¶8 Whether a petition for judicial review of a contested case agency decision satisfies

the threshold procedural requirements of §§ 2-4-701 or -702(1)(a), MCA, is generally a

threshold question of law subject to de novo review for whether the district court correctly

interpreted and applied the pertinent law. See North Star Dev., LLC v. Mont. Pub. Serv.

Comm’n, 2022 MT 103, ¶¶ 11-20, 408 Mont. 498, 510 P.3d 1232; Qwest Corp. v. Mont.

Dep’t of Pub. Serv. Regulation, 2007 MT 350, ¶¶ 27-33, 340 Mont. 309, 174 P.3d 496;

Wilson v. Dep’t of Pub. Serv. Regulation, 260 Mont. 167, 171-72, 858 P.2d 368, 371

(1993). The standard of review is ultimately the same whether characterized as a pure

question of law on review of a district court ruling under M. R. Civ. P. 12(b)(6) or 56, or

otherwise as a mixed question of fact and law ultimately subject to de novo review for

correctness. See §§ 2-4-701 and -702(1)(a), MCA; North Star Dev., ¶¶ 11-20.8 Contested

case administrative conclusions and applications of law are subject to de novo review for

correctness. Ruby Mt. Trust v. Dep’t of Revenue, 2000 MT 166, ¶ 13, 300 Mont. 297,

“precludes exercise of” the court’s jurisdiction regarding this particular subject matter. See North Star Dev., LLC v. Mont. Pub. Serv. Comm’n, 2022 MT 103, ¶ 23, 408 Mont. 498, 510 P.3d 1232. 8 In the rare case where a predicate material fact was in dispute below, the resulting district court finding of predicate fact is subject to deferential review only for clear error. O’Neill v. Dep’t of Revenue, 2002 MT 130, ¶ 10, 310 Mont. 148, 49 P.3d 43 (district courts review contested case administrative findings of fact only for clear error—“we employ the same standards when reviewing a district court order affirming or reversing an administrative decision”).

9 3 P.3d 654 (citing Steer, Inc. v. Dep’t of Revenue, 245 Mont. 470, 474-75, 803 P.2d 601,

603 (1990)).

DISCUSSION

¶9 Whether the District Court erroneously concluded that the October 2020 MBPA hearing examiner’s decision was not eligible for judicial review under §§ 2-4-701 or -702(1)(a), MCA?

¶10 MPECBA vests public employees with expressly protected “right[s] of

self-organization” and to “bargain collectively through” their chosen representatives

regarding “wages, hours, fringe benefits, and other conditions of employment.” Section

39-31-201, MCA. Public employers and MBPA-recognized labor unions (i.e., public

employee “labor organizations” as defined by § 39-31-103(6), MCA)9 accordingly have

the “authority” and “duty to bargain collectively . . . in good faith” through their respective

“exclusive representative[s]” regarding “wages, hours, fringe benefits, and other conditions

of employment.” Section 39-31-305(1)-(2), MCA. Within that framework, public

employee unions and memberships must “recognize the prerogatives of public employers

to operate and manage their affairs” in order to “maintain the efficiency of government

operations,” inter alia. Section 39-31-303(4)-(5), MCA. However, no MPECBA

provision “compel[s]” public employee unions or employers “to agree to” any particular

collective bargaining “proposal” or “concession.” Section 39-31-305(2), MCA.

1. MPECBA/MAPA Process for Contested Case Administrative Adjudication of Unfair Labor Practice Complaints.

9 See Title 39, ch. 31, part 2, MCA (MBPA process for certification of public employee constituted “labor organizations”).

10 ¶11 In accordance with generally applicable MAPA “contested case” procedures,

MPECBA provides a structured procedural scheme and requirements for formal MBPA

adjudication of “unfair labor practice” complaints. See §§ 39-31-103(12), -105, -401,

-402, -405, -406, 2-4-102(4), -601, -611, -612, and -621, MCA. Upon preliminary

investigation and finding of “probable merit” on an unfair labor practice complaint, MBPA

must set and notice a formal “contested case” adjudicatory hearing before a designated

board member or hearing examiner. See §§ 39-31-405(1), (3), (5), -406(1)-(3), -105,

2-4-102(4), -601, -611, and -612, MCA. When, as here, MBPA refers an unfair labor

practice complaint to a hearing examiner, he or she must conduct a contested case hearing,

and then timely issue a proposed agency/MBPA decision regarding the complaint. See

§§ 39-31-406(4)-(5) and 2-4-621(1)-(2), MCA. If the hearing examiner’s proposed

decision ultimately finds and concludes that a party “has engaged” or “is engaging in an

unfair labor practice,” the proposed decision must include a “statement of the reasons for

the decision, and of each [supporting] issue of fact or law necessary to the proposed

decision.” Sections 39-31-406(4) and 2-4-621(1)-(2), MCA (emphasis added). In such

event, the hearing examiner must include with the proposed decision a recommended

MBPA order

requiring the [perpetrator] to cease and desist from the unfair labor practice and to take affirmative action, including reinstatement of employees . . . ,[10] that will effectuate [MPECBA] policies . . . [and which]

10 However, the “order . . . may not require the reinstatement of an individual as an employee who has been suspended or discharged[,] or the payment to the employee of any backpay[,] if it is found that the individual was suspended or discharged for cause.” Section 39-31-406(4), MCA. 11 may further require the [perpetrator] to make reports . . . showing the extent to which the [perpetrator] has complied with the order.

Section 39-31-406(4) and (6), MCA.11 The hearing examiner must then “file[]” the

proposed agency/MBPA decision and recommended order “with the board” and “cause”

them “to be served on the parties.” Section 39-31-406(4) and (6), MCA.12

¶12 Upon receipt of service of the hearing examiner’s proposed agency/MBPA decision

and recommended order, the parties have the procedural right to final agency review of the

proposed decision, underlying findings of fact and conclusions of law, and recommended

order upon timely-filed “exceptions” to the proposed decision and order for final agency

review prior to issuance of the final agency decision. See §§ 2-4-621(1)-(3), 39-31-105,

and -406(6), MCA.13 However, “if exceptions are not filed within 20 days after service of

the proposed decision and recommended order,” “or within a further period that the board

may authorize,” then the proposed decision and “recommended order become[]” the final

“order of the board” by default operation of law. Section 39-31-406(6), MCA.14

11 If the proposed agency/MBPA decision finds and concludes that the subject of the complaint has not “engaged in or is [not] engaging in the [alleged] unfair labor practice,” then it shall include the supporting “findings of fact,” and be issued with a recommended agency/MBPA “order dismissing the complaint.” Section 39-31-406(5)-(6), MCA. 12 See similarly § 2-4-621(1), MCA. 13 The “exceptions” remedy for final agency review also includes the accompanying procedural rights to file supporting “briefs” and for “oral argument” thereon. Section § 2-4-621(1), MCA. See also § 39-31-406(6), MCA (timing of final MBPA unfair labor practice decision relative to briefing). 14 Accord N. Plains Res. Council v. Nat. Res. & Conservation Bd., 181 Mont. 500, 518, 594 P.2d 297, 307 (1979) (agency order/decision “final for purposes of judicial review when it imposes an obligation, denies a right, or fixes some legal relationship as a consummation of the administrative 12 ¶13 When party “exceptions” are timely filed under § 39-31-406(6), MCA, there is no

final agency decision until MBPA issues a “final” written decision and order, upon

“separately stated” supporting “findings of fact” and “conclusions of law,” in accordance

with § 2-4-623, MCA. Sections 39-31-105, -406(6), 2-4-621(1)-(3), and -623, MCA.15

Upon consideration of the hearing examiner’s proposed agency/MBPA decision and

recommended order, timely-filed party “exceptions,” and supporting factual and legal

arguments filed pursuant to §§ 39-31-406(6) and 2-4-621(1), MCA, MBPA may either

“adopt” the hearing examiner’s “proposed decision” and “recommended order” as its

“final” agency decision and “order” or, as pertinent here, “reject or modify” the hearing

examiner’s proposed “conclusions of law and interpretation of administrative rules.”

Sections 39-31-406(6), -105, 2-4-621(1), and (3) MCA (emphasis added).16 Thus, both the

process”—internal punctuation and citation omitted). The more specific MPECBA provision for default conversion of the hearing examiner’s proposed decision, and recommended order, to the final agency/MBPA order by operation of law varies from the generally applicable MAPA procedure insofar that MAPA includes no similar default provision. See § 39-31-406(6), MCA; compare §§ 2-4-621(1), (3), and -623, MCA. Even when no party exceptions are timely filed, MAPA generally requires the agency “officials . . . who are to render the final decision” to affirmatively act on the proposed decision, whether by blanket adoption as the final agency decision, or upon rejection or modification of the hearing examiner’s proposed conclusions of law, interpretation of administrative rules, or findings of fact under the applicable standard of final agency review. See §§ 2-4-621(1), (3), and -623, MCA. To the extent of the procedural variance between the default provision of § 39-31-406(6), MCA, and the generally applicable provisions of §§ 2-4-621(1), (3), and -623, MCA, the more specific MPECBA default provision applies and governs. See § 39-31-105, MCA (MPECBA “hearings and appeals must be in accordance with the appropriate [MAPA] provisions”—emphasis added); §§ 1-2-101 and -102, MCA (related statutory provisions must generally be construed to give effect to all, but more “particular” provision controls over a “general” provision). 15 See also N. Plains Res., 181 Mont. at 518, 594 P.2d at 307. 16 Upon “review of the complete record,” the agency may similarly “reject or modify” the hearing examiner’s proposed “findings of fact” upon determination that the findings were not supported 13 generally applicable MAPA contested case procedure, and conforming MPECBA unfair

labor practice complaint procedure, expressly contemplate and authorize final agency

review for correctness of a hearing examiner’s proposed conclusions and applications of

law without limitation.

2. City’s Petition for Judicial Review of October 2020 MBPA Hearing Examiner Decision re Subject MPECBA Unfair Labor Practice Complaints.

¶14 The process provided by MPECBA for administrative adjudication of unfair labor

practice complaints is a MAPA “contested case” agency proceeding. See §§ 2-4-102(2)(a),

(4), and 39-31-405 through -407, MCA. Under MAPA, direct judicial review of a

contested case agency decision is generally available only upon “exhaust[ion]” of “all

administrative remedies available within the agency” and issuance of the agency’s “final

written decision.” Section 2-4-702(1)(a), MCA; Wilson, 260 Mont. at 172, 858 P.2d at

371; In re Mont. Power Co., 180 Mont. 385, 389, 590 P.2d 1140, 1143 (1979). See also

§§ 2-4-101(2)(c), -102(2)(a), and (4), MCA (“agency” and “contested case” definitions and

pertinent MAPA purpose statement). As a narrow exception to the general rule, however,

a “preliminary, procedural, or intermediate” contested case “agency action or ruling” is

subject to “immediate[]” judicial review upon demonstration that ordinary “review of the

final agency decision” under § 2-4-702(1)(a), MCA, “would not provide an adequate

by “substantial” record “evidence,” or “the proceedings on which the findings were based did not comply with essential requirements of law.” Sections 39-31-105, 2-4-621(1), and (3), MCA (emphasis added).

14 remedy” regarding the assertion(s) of error at issue. See §§ 2-4-102(4), -701, and

-702(1)(a), MCA.

¶15 Here, the City alternatively asserted below that judicial review of the hearing

examiner’s proposed conclusions and applications of law, and resulting recommended

order, were subject to judicial review either as a preliminary ruling or decision under

§ 2-4-701, MCA, or as a final agency/MBPA decision under § 2-4-702(1)(a), MCA. The

District Court accordingly addressed both of those alternative assertions. As the City

correctly recognizes on appeal, however, the hearing examiner’s proposed agency/MBPA

decision and recommended order became a final agency decision and order by default

operation of law pursuant to § 39-31-406(6), MCA, upon the City’s conscious choice to

forego the administrative “exceptions” and final agency review remedy available under

§§ 39-31-406(6), 2-4-621(1)-(3), and -623(1), MCA.17 The District Court thus correctly

concluded as a matter of law that the hearing examiner’s October 2020 proposed

17 While the City’s conscious tactical choice is independently evident in its petition and briefing below, the City further succinctly acknowledges on appeal that: The City did not desire the non-judicial review [by MBPA of the hearing examiner’s] legal conclusions . . . such as would have occurred through the filing of exceptions . . . under § 39-31-406(6), MCA, [because the] sole [issue in the case was a] legal question [arising from the] dispositive cross motions for summary judgment. . . . [Since] the resulting Hearing Officer’s Order only considered a legal question, specifically the application of competing persuasive authority to [the pertinent MPECBA] statutes, the City chose to petition the District Court for immediate judicial review of the . . . purely legal conclusions . . . [under] the administrative exhaustion doctrine [exception] for purely legal questions . . . [recognized in] Shoemaker v. Denke, 2004 MT 11, ¶ 20, 319 Mont. 238, 244, 84 P.3d 4, 8.

(Emphasis original.)

15 agency/MBPA decision and recommended order were in any event not “preliminary,

procedural, or intermediate agency action[s] or ruling[s]” as referenced in § 2-4-701, MCA.

We must thus consider whether the District Court correctly concluded that the October

2020 hearing examiner’s decision and order was not eligible for judicial review under

§ 2-4-702(1)(a), MCA, due to the City’s failure to exhaust the administrative “exceptions”

and final agency review remedy provided by §§ 39-31-406(6), 2-4-621(1)-(3), and

-623(1)(a), MCA.

¶16 As a preliminary matter of law, the timely-filing of party “exceptions” “of fact or

law” to a hearing examiner’s proposed agency/MBPA decision and recommended order in

a contested case MPECBA “unfair labor practice” proceeding is an express administrative

remedy available for final agency review in advance of issuance of the final agency/MBPA

decision and order. See §§ 39-31-105, -406(6), 2-4-621(1)-(3), and -623, MCA. While the

City correctly points out that it had no legal duty to timely avail itself of the final agency

review remedy, it is equally true as a matter of law that failure to do so effects an

unqualified waiver of the right to direct judicial review of the agency decision due to failure

to exhaust that express administrative remedy as expressly required by § 2-4-702(1)(a),

MCA. See § 2-4-702(1)(a), MCA; North Star Dev., ¶ 13; Flowers, ¶ 8; Shoemaker, ¶ 18.

We thus turn to the City’s assertion that Shoemaker recognized a sweeping jurisprudential

exception to the express exhaustion of administrative remedies requirement of

16 § 2-4-702(1)(a), MCA, regarding the concurrently provided final agency review remedy

specified in §§ 39-31-406(6), 2-4-621(1)-(3), and -623(1)(a), MCA.18

¶17 As a preliminary matter, the express exhaustion of administrative remedies

requirement of § 2-4-702(1)(a), MCA, “applies equally to the ultimate case decision,

constituent or related issues adjudicated therein or thereby, as well as any other related

issue that could have been timely raised and adjudicated by the agency pursuant to the

18 Note that our ensuing analysis and holding on this narrow issue neither addresses, nor expressly or implicitly applies to or affects, the distinct question of whether, or to what extent, the exhaustion of administrative remedies requirement of § 2-4-702(1)(a), MCA, may or may not apply to independent claims for declaratory or tort relief outside or without resort to a MAPA “contested case” proceeding as referenced, for example, in North Star Dev., ¶ 16 (citing Flowers, ¶ 15); Flowers, ¶ 15 (quoting Brisendine v. Mont. Dep’t of Commerce, 253 Mont. 361, 366, 833 P.2d 1019, 1022 (1992)); Brisendine, 253 Mont. at 366, 833 P.2d at 1022; and Taylor v. Mont. Dep’t of Fish, Wildlife & Parks, 205 Mont. 85, 89-94, 666 P.2d 1228, 1230-32 (1983) (exhaustion of Human Rights Act contested case agency complaint process not required in advance of independent declaratory judgment/tort claim against state agency based on pure question of law as to whether age-based forced retirement statute violated statutory MHRA age discrimination prohibition and Mont. Const. art. II, § 4 (equal protection)). See similarly Mitchell v. Town of West Yellowstone, 235 Mont. 104, 105-07 and 109-10, 765 P.2d 745, 745-48 (1988) (common law exhaustion of remedies doctrine not applicable to independent action for declaratory relief involving pure question of law as to whether municipal land use restriction which included the asserted administrative variance remedy was facially unconstitutional); Jarussi v. Board of Trustees, 204 Mont. 131, 134-36, 664 P.2d 316, 317-18 (1983) (common law exhaustion of administrative remedies doctrine not applicable to independent statutory claim for invalidation of school board acts in violation of open meeting law and Mont. Const. art. II, § 9 (right to observe public body deliberations), where invalidation claim independently provided by statute without administrative remedy); Keller v. Dep’t of Revenue, 182 Mont. 478, 481-84, 597 P.2d 736, 738-40 (1979) (exhaustion of state tax appeal board process for review of accuracy of property tax assessment valuations not required as condition precedent for independent action for declaratory relief regarding pure question of law as to whether state erroneously failed to apply statutory property tax benefit triggered by local taxing entity action to which taxpayers were not parties); Larson v. State, 166 Mont. 449, 456-57, 534 P.2d 854, 858 (1975) (exhaustion of county tax appeal board process for review of accuracy of property tax assessment valuations not required as condition precedent to independent action for declaratory relief regarding pure question of law challenge to constitutionality of statewide property tax appraisal methodology).

17 available administrative process.” North Star Dev., ¶ 13 (citing Flowers, ¶ 8; Art v. Mont.

Dep’t of Labor & Indus., 2002 MT 327, ¶ 14, 313 Mont. 197, 60 P.3d 958; Marble v. Mont.

Dep’t of Health & Human Servs., 2000 MT 240, ¶¶ 27-29, 301 Mont. 373, 9 P.3d 617—

internal punctuation omitted). The “manifest purpose” of the exhaustion requirement of

§ 2-4-702(1)(a), MCA, is to afford the agency involved in a contested case MAPA

proceeding “an opportunity to correct its own errors before a court interferes” in the

administrative adjudication process. North Star Dev., ¶ 13 (citing Bitterroot River Prot.

Ass’n v. Bitterroot Conservation Dist., 2002 MT 66, ¶ 22, 309 Mont. 207, 45 P.3d 24—

punctuation omitted). As implicated by an applicable assertion of error at issue in a

particular case, we have often more narrowly stated that the exhaustion of administrative

remedies requirement allows an agency “to make a factual record” and “correct its own

errors within its specific expertise.” E.g., Flowers, ¶ 8 (citing Bitterroot River, ¶ 22); Kenck

v. State Child Support Enf. Div., 2013 MT 380, ¶ 28, 373 Mont. 168, 315 P.3d 957;

Shoemaker, ¶ 18; City of Billings Police Dep’t v. Owen, 2006 MT 16, ¶ 26, 331 Mont. 10,

127 P.3d 1044 (citing Shoemaker, ¶ 18); Grabow v. Mont. High School Ass’n, 2002 MT

242, ¶ 35, 312 Mont. 92, 59 P.3d 14; Bitterroot River, ¶ 22.

¶18 However, affording an agency the opportunity to correct its own errors within its

specific area of administrative expertise is not the only purpose of the exhaustion of

administrative remedies requirement of § 2-4-702(1)(a), MCA. In the context of a MAPA

contested case proceeding, requiring exhaustion of administrative remedies also furthers

both the interests of “judicial economy,” by relieving congestion and stress on the

18 overburdened judicial system, and the interest of agency “efficiency” in the attendant

performance of legislatively-assigned legal duties and functions. Bitterroot River, ¶ 22.

Accord Grabow, ¶ 35 (citing Bitterroot River). In that regard, the existence, function, and

duty of administrative agencies are generally matters of legislative provision under

executive branch direction. See Mont. Const. art. VI, §§ 1 and 7; Title 2, ch. 15, MCA.

Without interference with the ultimate constitutional power and authority of the judiciary

to interpret the meaning and proper application of law, and to review executive and

legislative action for constitutional conformance,19 the Legislature, in the exercise of its

exclusive constitutional authority, has provided for a wide-ranging comprehensive scheme

of administrative regulation which includes, inter alia, administrative adjudication of

contested case agency proceedings subject to “direct” judicial “review.” See Mont. Const.

arts. III, § 1; V, § 1; and VII, § 4(2) (separation of powers, legislative power, and specific

power to “provide for direct” district court “review” of “administrative agenc[y]”

“decisions”); Title 2, ch. 4, MCA (MAPA). See also, e.g., §§ 39-31-401 through -406,

MCA (MPECBA contested case unfair labor practice complaint procedure). MAPA

“implement[s]” the Legislature’s constitutional authority under Mont. Const. art. VII,

§ 4(2), by providing for such “direct” judicial “review” of contested case agency decisions

in § 2-4-702(1)(a), MCA, but only upon prior “exhaust[ion]” of “all administrative

remedies available within the agency.” North Star Dev., ¶ 23 (quoting § 2-4-702(1)(a),

19 See Mont. Const. arts. III, § 1, and VII, §§ 2(1) and (4)(1).

19 MCA, and citing Hilands Golf Club v. Ashmore, 2002 MT 8, ¶¶ 18 and 21, 308 Mont. 111,

39 P.3d 697 (recognizing that district court “jurisdiction to review administrative decisions

is statutorily created” and that § 2-4-702(1)(b), MCA, is “a limitation on the district court’s

jurisdiction to review administrative decisions . . . in contrast to” the broad subject matter

jurisdiction provided by Mont. Const. art. VII, § 4)).20 As “an express procedural

prerequisite” for direct judicial review of contested case agency decisions under

§§ 2-4-702 through -704, MCA, the exhaustion of administrative remedies requirement of

§ 2-4-702(1)(a), MCA, is a threshold “procedural justiciability” requirement “for exercise

of [that] district court subject matter jurisdiction.” North Star Dev., ¶ 23. Accord Flowers,

¶ 8; Shoemaker, ¶ 18. It thus follows that the final agency review remedy generally

provided by MAPA in § 2-4-621(1)-(2), MCA, and similar agency-specific contested case

remedies such as § 39-31-406(6), MCA, for final agency review of a hearing examiner’s

proposed contested case decision, is an “administrative remed[y] available within the

agency” as referenced in § 2-4-702(1)(a), MCA. See §§ 2-4-621(1)-(3), -623(1), and

-702(1)(a), MCA. See similarly, e.g., §§ 39-31-406(6) and -105, MCA.

¶19 The expressly authorized scope of the MAPA final agency review remedy, and

similar agency-specific remedies provided in conjunction therewith, includes final agency

review for correctness of a hearing examiner’s proposed decision and its supporting

20 See also, e.g., K & J Invs., LLC v. Flathead Cnty. Bd. of Cnty. Commr’s, 2020 MT 277, ¶ 11, 402 Mont. 33, 476 P.3d 20 (in re Mont. Const. art. VII, § 4(2), and statutory property tax appeals process).

20 conclusions and applications of law. See §§ 2-4-621(1)-(3), -623(1)(a), and -702(1)(a),

MCA (proposed hearing examiner “decision must contain a statement of the reasons for

the decision and of each issue of fact or law necessary to the proposed decision”; agency

may then “adopt” proposed decision or inter alia “reject or modify” the proposed

“conclusions of law and interpretation of administrative rules”; and the “final” agency

decision must then include supporting “findings of fact and conclusions of law”—emphasis

added). See similarly §§ 39-31-406(6) and -105, MCA (MBPA-specified final agency

review remedy in conjunction with MAPA remedy).

¶20 Consequently, any consideration of the existence or scope of a jurisprudential pure

question of law exception to the MPECBA/MAPA final agency review remedy provided

in conjunction with the express exhaustion of administrative remedies requirement of

§ 2-4-702(1)(a), MCA, must necessarily flow from, comport with, and be constrained by

the limits of our pertinent judicial power and role regarding those clear and unambiguous

legislative enactments. Certainly, this Court and our subordinate district courts have

exclusive power and authority in justiciable cases to determine the meaning and proper

application of constitutional and statutory law, and to review legislative and executive acts

for conformance with applicable constitutional provisions. See Mont. Const. arts. III, § 1,

and VII, §§ 1, (2)(a), and (4)(1); Larson v. State, 2019 MT 28, ¶ 42, 394 Mont. 167, 434

P.3d 241; Best v. City of Billings Police Dep’t, 2000 MT 97, ¶ 16, 299 Mont. 247, 999 P.2d

334; State v. Finley, 276 Mont. 126, 134-35, 915 P.2d 208, 214 (1996), overruled in part

on other grounds by State v. Gallagher, 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817;

21 General Agric. Corp. v. Moore, 166 Mont. 510, 515-16, 534 P.2d 859, 862-63 (1975)

(discussing “supremacy of constitutional mandates” and that no governmental function

“can be discharged in disregard of” or “beyond” constitutional “limitations”—citation

omitted); Marbury v. Madison, 5 U.S. 137, 167 and 177-79, 2 L. Ed. 60, 70 and 71-75

(1803) (“[i]t is emphatically the province and duty” of the judicial branch to determine

“what the law is,” “interpret” its meaning, determine how it applies in “particular cases,”

and, in the case of constitutional apportionment of government power, review whether

government acts or enactments comport and “conform[]” with applicable constitutional

provisions). It is further beyond cavil that legislative enactments are the primary source of

non-organic law in this state, and thus control over any decisional common law to the extent

of any conflict. See Mont. Const. arts. III, § 1, and V, § 1; §§ 1-1-102, -105, -107 through

-109, and 1-3-103, MCA. Moreover, as necessary to the adjudication of justiciable cases,

courts must interpret and apply legislative enactments within constitutional bounds to

effect, and in accordance with, the discernible legislative intent. Sections 1-2-101 through

-103 and -106, MCA.

¶21 Against that backdrop, Shoemaker involved a Montana Human Rights Commission

(HRC) contested case proceeding regarding a city employee’s retaliation claim against a

city council member (Shoemaker), and separate entity claim against the subject city,

alleging retaliation against her regarding her previously-settled sexual harassment

complaint against the city mayor. Shoemaker, ¶¶ 4-5 and 10. Upon hearing, the assigned

administrative hearing examiner issued detailed findings of fact and conclusions of law in

22 support of a proposed agency/HRC decision adjudicating Shoemaker liable for the

claimant’s retaliation-caused emotional distress damages, and further recommending an

injunction enjoining him from further similar conduct. Shoemaker, ¶ 10. The proposed

agency decision ruled in favor of the city, however, on the entity retaliation claim.

Shoemaker, ¶ 10. The claimant filed a corresponding “appeal” for final agency review of

the proposed ruling in favor of the city, and then Shoemaker subsequent filed a “notice of

cross-appeal.” Shoemaker, ¶ 11.21 Due to the staggered filing of the “appeal” and

“cross-appeal” for final agency review, HRC set separate correspondingly staggered

briefing schedules for each. Shoemaker, ¶ 11. In his response brief in opposition to the

claimant’s appeal, Shoemaker disputed her assertions of error, and then, instead of filing a

separate brief in support of his cross-appeal as ordered by HRC, separately included in his

response brief to the claimant’s appeal his “constitutional [cross-appeal] claim” asserting

that the hearing examiner’s proposed HRC ruling against him “violated” his federal and

state constitutional “right to freedom of expression.” Shoemaker, ¶¶ 11-12. However,

HRC subsequently dismissed Shoemaker’s cross-appeal due to failure to timely file a

supporting cross-appeal brief as ordered, and then did not address the affirmative

21 While not express in our analysis absent underlying statutory citation, the “appeal” and “cross-appeal” process referenced in Shoemaker as an available administrative remedy for final HRC review of the disputed hearing examiner’s proposed findings of fact and conclusions of law obviously referred to the MAPA “exceptions” remedy for final agency review provided in §§ 2-4-621(1)-(3) and -623(1)(a), MCA, or similar MHRA-specific remedy. See Shoemaker, ¶¶ 10-12, 19, and 30; compare §§ 2-4-621(1)-(3) and -623(1)(a), MCA. The MAPA remedy for final agency review requires timely-filed “exceptions” of “fact or law” to the hearing examiner’s proposed decision, however, not a mere notice of appeal or cross-appeal. See §§ 2-4-621(1)-(3) and -623(1)(a), MCA. 23 constitutional claim raised in his brief in opposition to the claimant’s appeal. Shoemaker,

¶ 12. After HRC subsequently issued a final agency decision that simply adopted the

hearing examiner’s proposed decision, Shoemaker petitioned for judicial review pursuant

to § 2-4-702(1)(a), MCA, on two alternative grounds—the HRC-adopted hearing examiner

“findings and conclusions” of law “were clearly erroneous,” but if not, nonetheless violated

his federal and state constitutional “right to freedom of expression.” Shoemaker, ¶¶ 12-13.

¶22 In response, the claimant moved for dismissal of Shoemaker’s petition due to failure

to exhaust his available administrative remedy for final agency review of the hearing

examiner’s proposed decision. Shoemaker, ¶ 13. As pertinent here, Shoemaker countered

that “his petition for judicial review was exempt from the exhaustion rule” of

§ 2-4-702(1)(a), MCA, “because it is the duty of the courts, not administrative agencies, to

decide constitutional questions.” Shoemaker, ¶ 13. The district court granted the motion

and dismissed the petition due to failure to exhaust administrative remedies. Shoemaker,

¶ 14.

¶23 On appeal, Shoemaker asserted that the district court erroneously dismissed his

petition for judicial review because it “presented a purely legal, constitutional question for

the court to decide,” and was thus exempt from the exhaustion of administrative remedies

requirement of § 2-4-702(1)(a), MCA. Shoemaker, ¶ 17. We responded with the

preliminary sweeping statement that “Montana recognizes an exception to the exhaustion

doctrine when a purely legal issue is at the center of the dispute.” Shoemaker, ¶ 20 (citing

Keller v. Dep’t of Revenue, 182 Mont. 478, 481-84, 597 P.2d 736, 738-40 (1979), and

24 Taylor v. Mont. Dep’t of Fish, Wildlife & Parks, 205 Mont. 85, 89-94, 666 P.2d 1228,

1230-32 (1983)). We immediately clarified, however, that our cited precedent had, in the

aggregate, recognized a more limited exception to the exhaustion doctrine narrowly

applicable only when the matter at issue involves a pure question of constitutional law, not

accompanied by an issue regarding a fact-based determination within the pertinent

jurisdiction of the agency to decide. See Shoemaker, ¶¶ 20-23 (citing Mitchell v. Town of

West Yellowstone, 235 Mont. 104, 105-07 and 109-10, 765 P.2d 745, 745-48 (1988);

Jarussi v. Board of Trustees, 204 Mont. 131, 134-36, 664 P.2d 316, 317-18 (1983); Larson

v. State, 166 Mont. 449, 456-57, 534 P.2d 854, 858 (1975); and Belknap Realty Co. v.

Simineo, 67 Mont. 359, 215 P. 659 (1923)). Noting that Shoemaker’s asserted

constitutional issue was not only accompanied by, but also dependent upon, his other

concurrent assertions of error regarding the correctness of the hearing examiner’s proposed

adverse decision, we held that his petition for judicial review under § 2-4-702(1)(a), MCA,

“did not qualify” for the asserted pure question of constitutional law “exception to the

exhaustion doctrine.” Shoemaker, ¶¶ 25-26. In affirming the district court denial of his

petition for judicial review due to failure to exhaust his final agency review remedy as

expressly required by § 2-4-702(1)(a), MCA, we further held that he was thus:

required to exhaust available administrative remedies through the HRC appeals process, and to argue both his factual issue and his constitutional issue before the [HRC].

Shoemaker, ¶¶ 25-29, 31, and 33.

25 ¶24 For several reasons, Shoemaker is problematic as support for either a sweeping pure

question of law exception, or a more narrow pure question of constitutional law exception,

to the express exhaustion of administrative remedies requirement of § 2-4-702(1)(a), MCA.

First, contrary to the City’s assertion, we unequivocally clarified that the exception to the

exhaustion of administrative remedies doctrine discussed in Shoemaker narrowly applied

only to pure questions of constitutional law not accompanied by an issue regarding a

fact-based determination within the subject matter jurisdiction of the involved agency. See

Shoemaker, ¶¶ 20-23 (citing and discussing Mitchell, Jarussi, Larson, and Belknap).

Consequently, even if we assumed arguendo that the pure question of constitutional law

exception ultimately discussed, but not applied, in Shoemaker applied to the express

exhaustion of administrative remedies requirement of § 2-4-702(1)(a), MCA, the City’s

petition would not have qualified for judicial review under such an exception here because

the assertion of error raised in the City’s petition and supporting brief did not involve a

pure question of constitutional law, only a question of statutory interpretation as to the

meaning or scope of the City’s pertinent management “prerogatives” under MPECBA, and

the scope of the MPECBA “unfair labor practice” term, under pertinent guiding federal

authority.

¶25 Second, contrary to our overbroad statement in Shoemaker, ¶ 19, the express

exhaustion of administrative remedies requirement of § 2-4-702(1)(a), MCA, is not merely

“the statutory embodiment of the [common law] exhaustion doctrine.” Neither our

statement to that effect in Shoemaker, ¶ 19, nor our ensuing Shoemaker analysis based on

26 Belknap, Larson, Keller, Taylor, Jarussi, and Mitchell, even referenced, much less

accounted for, the broad scope of final agency review of a hearing examiner’s proposed

conclusions and applications of law as expressly authorized in §§ 2-4-621(1)-(3) and

-623(1), MCA, or similar agency-specific contested case remedy. See Shoemaker,

¶¶ 19-24.

¶26 Third, none of the cases cited in support of the exhaustion doctrine exception(s)

discussed in Shoemaker involved, much less analyzed, the express final agency review

remedy provided by §§ 2-4-621(1)-(3) and -623(1), MCA, or similar agency-specific

contested case remedy, as a condition precedent to direct judicial review of a proposed

contested case final agency decision under § 2-4-702(1)(a), MCA. See Mitchell, 235 Mont.

at 105-07 and 109-10, 765 P.2d at 745-48 (common law exhaustion of remedies doctrine

not applicable to independent action for declaratory relief involving pure question of law

as to whether municipal land use restriction which included the asserted administrative

variance remedy was facially unconstitutional); Jarussi, 204 Mont. at 134-36, 664 P.2d at

317-18 (common law exhaustion of administrative remedies doctrine not applicable to

independent statutory claim for invalidation of school board acts in violation of open

meeting law and Mont. Const. art. II, § 9 (right to observe public body deliberations) where

invalidation claim was independently provided by statute without administrative remedy);

Taylor, 205 Mont. at 89-94, 666 P.2d at 1230-32 (exhaustion of Human Rights Act

contested case agency complaint process not required in advance of independent

declaratory judgment/tort claim against state agency based on pure question of law as to

27 whether age-based forced retirement statute violated statutory MHRA age discrimination

prohibition and Mont. Const. art. II, § 4 (equal protection)); Keller, 182 Mont. at 481-84,

597 P.2d at 738-40 (exhaustion of state tax appeal board process for review of accuracy of

property tax assessment valuations not required as condition precedent for independent

action for declaratory relief regarding pure question of law as to whether state erroneously

failed to apply a statutory property tax benefit based on triggering local taxing entity action

to which taxpayers were not parties); Larson, 166 Mont. at 456-57, 534 P.2d at 858

(exhaustion of county tax appeal board process for review of accuracy of property tax

assessment valuations not required as condition precedent to independent action for

declaratory relief regarding pure question of law as to constitutionality of statewide

property tax appraisal methodology); Belknap, 67 Mont. at 360-65, 215 P. at 660-62

(exhaustion of statutory county and state boards of equalization processes for review of

accuracy of property tax assessment valuations required as a condition precedent to judicial

action for recovery of overpaid taxes resulting from erroneous valuation assessment).

Thus, none of the cited underpinnings of the pure question of constitutional law exception

to the exhaustion doctrine discussed in Shoemaker involved or discussed such a

jurisprudential exception to the express exhaustion of administrative remedies requirement

of § 2-4-702(1)(a), MCA, as applicable to the concurrently provided contested case final

agency review remedy specified in §§ 2-4-621(1)-(3) and -623(1)(a), MCA.

¶27 Fourth, unlike here, Shoemaker did not consider the more fundamental question of

whether a pure question of constitutional law exception to the express exhaustion of

28 administrative remedies requirement of § 2-4-702(1)(a), MCA, would comport or be

consistent with the broad scope of final agency review of proposed agency conclusions and

applications of law as expressly authorized by §§ 2-4-621(1)-(3) and -623(1), MCA, or

related agency-specific remedy provided in conjunction therewith. See Shoemaker,

¶¶ 17-29 and 31. While our analysis assumed the existence of the uncontested

jurisprudential exception discussed, but not ultimately applied, in Shoemaker, the narrow

disputed issue on appeal was whether Shoemaker’s asserted constitutional issue qualified

for exemption from the express exhaustion requirement of § 2-4-702(1)(a), MCA, under

that assumed exception. See Shoemaker, ¶¶ 17-29 and 31. Thus, on close examination,

Shoemaker does not support recognition of either a sweeping pure question of law, or

narrower pure question of constitutional law, jurisprudential exception to the express

exhaustion of administrative remedies requirement of § 2-4-702(1)(a), MCA, as applicable

to the concurrently-provided final agency review remedy specified in §§ 2-4-621(1)-(3)

and -623(1), MCA, or related agency-specific remedy provided in conjunction therewith.

¶28 On critical examination under the foregoing analysis here, however, a sweeping

jurisprudential pure question of law, or narrower pure question of constitutional law,

exception to § 2-4-702(1)(a), MCA, would irreconcilably conflict with the authorized

scope of the final agency review remedy expressly provided by §§ 2-4-621(1)-(3) and

-623(1), MCA (inter alia providing for party “exceptions” of “fact or law” and final agency

review of hearing examiner’s proposed conclusions and applications of law in MAPA

contested case proceedings). As manifest in our holding in Shoemaker, ¶¶ 25-26

29 (concluding that aggrieved party was “required to exhaust available” final agency review

remedy and thus “argue both his factual issue and his constitutional issue before the

[HRC]”—emphasis added), final agency review of a hearing examiner’s proposed

conclusions and applications of law, including implicated questions of constitutional law,

as expressly authorized in §§ 2-4-621(1)-(3) and -623(1), MCA, and/or similar

agency-specific remedy provided in conjunction therewith, does not in any way usurp or

infringe upon the exclusive constitutional power of the judiciary to determine, interpret, or

apply applicable statutory or constitutional law where, as here, the Legislature has provided

that any such proposed or final agency conclusion or application of law in a contested case

proceeding is subject to direct judicial review under § 2-4-702(1)(a), MCA, and the facial

constitutionality of the administrative scheme is not at issue. Any contrary holding or

recognition of such a jurisprudential exception in this narrow MAPA contested case

context would contradict, nullify, and defeat the contested case administrative scheme

clearly and unambiguously provided by the Legislature in §§ 2-4-621(1)-(3), -623(1), and

-702(1)(a), MCA (MAPA final agency review remedy concurrently provided in

conjunction with express exhaustion of administrative remedies requirement), and any

similar agency-specific final review remedy provided in conjunction therewith.

¶29 We hold that the express contested case exhaustion of administrative remedies

requirement of § 2-4-702(1)(a), MCA, as applicable to the “exceptions” and final agency

review remedy provided in §§ 2-4-621(1)-(3) and -623(1), MCA, and similar

MPECBA-specific remedy provided in § 39-31-406(6), MCA, in conjunction therewith,

30 are not subject to a pure question of law, or pure question of constitutional law,

jurisprudential exception as assumed but not applied in Shoemaker. To the extent

inconsistent with our narrow holding and analysis here, Shoemaker, ¶¶ 13-30, and our

similar inconsistent dicta in North Star Dev., ¶ 16 (citing Shoemaker and Taylor, supra),

are hereby prospectively repudiated and superseded.

¶30 To be clear, Shoemaker, Mitchell, Jarussi, Taylor, Keller, Larson, and Belknap

were, as distinguished herein, exhaustion of administrative remedies doctrine applications

correctly decided at bottom in context of the distinct issues and arguments raised on appeal.

Except as recognized but not ultimately applied in Shoemaker, a “pure question of

constitutional law” exception remains and has been properly applied in those distinct

procedural contexts which neither involved nor implicated the MAPA contested case

exhaustion of administrative remedies requirement of § 2-4-702(1)(a), MCA, as applied

to the MAPA contested case final agency review remedy, and related MPECBA-specific

remedy, at issue here. We also recognize that § 2-4-702(1)(b), MCA, is a MAPA provision

authorizing “[a] party who proceeds before an agency under the terms of a particular

statute” to question the validity of that statute on judicial review without having raised the

question before the agency, after having first raised “any other” contested case “question”

before the agency absent a showing of “good cause.” In and to that narrow MAPA context

and extent, § 2-4-702(1)(b), MCA, essentially embodies a narrow pure question of

constitutional law exception to the exhaustion of administrative remedies requirement of

§ 2-4-702(1)(a), MCA. Again, however, the exhaustion doctrine exception embodied in

31 § 2-4-702(1)(b), MCA, is neither at issue nor implicated here in the manifest absence of a

facial constitutional challenge to the validity of the administrative procedure for MPECBA

unfair labor practice complaints, or the MAPA contested case exhaustion of administrative

remedies requirement of § 2-4-702(1)(a), MCA, as applied to the MPECBA/MAPA final

agency review remedy. Nor was the § 2-4-702(1)(b), MCA, exception at issue in

Shoemaker where the asserted pure question of constitutional law was, in essence, an

as-applied constitutional challenge to the hearing examiner’s proposed final agency

decision, rather than a facial challenge to the validity of either the pertinent administrative

procedure specified by the Montana Human Rights Act, or the exhaustion of remedies

requirement of § 2-4-702(1)(a), MCA, as applied to the HRC/MAPA final agency review

remedy. Our narrow holding and analysis here thus neither applies, nor affects, the narrow

MAPA contested case exception embodied in § 2-4-702(1)(b), MCA, or the statutory or

common law exhaustion of administrative remedies doctrine applications in Mitchell,

Jarussi, Taylor, Keller, Larson, and Belknap. With that clarification, we hold that the

District Court correctly denied and dismissed the City’s petition for judicial review of the

October 2020 MBPA hearing examiner decision and order due to failure to exhaust the

contested case final agency review remedy provided by §§ 39-31-406(6), 2-4-621(1)-(3),

and -623(1), MCA, as required by the express exhaustion of administrative remedies

requirement of § 2-4-702(1)(a), MCA.

32 CONCLUSION

¶31 We hold that the District Court correctly concluded that the hearing examiner’s

October 2020 proposed agency/MBPA decision and order was not eligible for judicial

review as a preliminary order under § 2-4-701, MCA. We hold further that the District

Court also correctly concluded that the resulting October 2020 final agency/MBPA

decision and order was not eligible for judicial review under § 2-4-702(1)(a), MCA, due to

the City’s failure to exhaust the “exceptions” and final agency review remedy available

under §§ 39-31-406(6), 2-4-621(1)-(3), and -623(1)(a), MCA. The District Court’s 2022

order and judgment denying the City’s petition for judicial review of the October 2020

MBPA hearing examiner decision and order is therefore AFFIRMED.

/S/ DIRK M. SANDEFUR

We Concur:

/S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ INGRID GUSTAFSON