No. 92-194 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

BARBARA R. WOLFE, 

Petitioner and Appellant, 

STATE OF MONTANA, DEPARTMENT OF 

LABOR AND INDUSTRY, BOARD OF PERSONNEL 

APPEALS, ex re1 . , HELENA EDUCATION 

ASSOCIATION, MEA, NEA, LABOR ORGANIZATION, 

and HELENA SCHOOL DISTRICT NO. 1, EMPLOYER, 

Respondents and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael Donahoe, Helena, Montana 

For Respondent: 

Emilie Loring, Hilley & Loring, Missoula, Montana 

(Helena Education Assn.); Melanie A. Symons, Dept. 

Labor & Industry, Helena, Montana (Board of 

Personnel Appeals) 

D Submitted on Briefs: September 17, 1992 
Justice R, C. McDonough delivered the Opinion of the Court. 

This is an appeal from a First Judicial District Court, Lewis 

and Clark County, decision declaring 8 39-31-204, MCA, 

unconstitutional. We vacate the decision and remand to the Board 

of Personnel Appeals. 

Barbara Wolfe is a teacher employed in School ~istrict No. 1. 

Her employment is subject to a collective bargaining agreement 

between the Helena Education Association (HEA) and the School 

District, The HEA is affiliated with two other teacher's unions, 

the Montana Education Association (MEA) and the National Education 

Association (NEA) . 

The collective bargaining agreement allows teachers to pay an 

agency fee in lieu of joining the unions. School District 

employees must either join the unions or pay the agency fee. The 

agency fee is a payment for the union's collective bargaining 

efforts. Like membership dues, the agency fee is divided among 

REA, MEA and NEA. 

Wolfe is a Roman Catholic. Because of her religious beliefs, 

she opposes both birth control and abortion. She objects to paying 

an agency fee to the teacher's unions because the NEA publicly 

supports legalized abortion and birth control. 

On November 21, 1988, Wolfe sent a letter to HEA, MEA and the 

Montana Department of Labor and Industry Board of Personnel 

Appeals. In the letter Wolfe stated, fljoining the NEA or any of 

its affiliates would be a violation of my religious beliefs and I 
cannot in good conscience contribute money directly or indirectly 

to such an organization." 

In addition to freedom of religion, the letter mentioned 

possible religious accommodation under the non-association with 

labor unions statute, 5 39-31-204, MCA. That statute provides 

certain religious grounds for which public employees may have a 

right of non-association with and non-financial support of labor 

organizations. See § 39-31-204, MCA. Persons who fall within the 

parimeters of the statute may make periodic payments to a charity 

rather than pay money to a union. See 5 39-31-204, MCA. 

The Board of Personnel Appeals treated the letter as a 

petition for non-association with a labor organization and 

appointed a special committee pursuant to the non-association 

statute. The committee met on February 15, 1989. Two days later, 

it informed Wolfe that she did not qualify for non-association 

under the statute. The Board considered only the non-association 

statute in its decision. It ignored her right to free exercise of 

religion and did not consider any alternative accommodations. 

On January 25, 1991, after further correspondence between 

Wolfe and the Board of Personnel Appeals, the Board issued a final 

order adopting the dismissal issued in February of 1989. The final 

order stated, "the Board does not intend to take action on the 

petition." 

On February 22, 1991, Wolfe filed a petition for judicial 

review in District Court, alleging the Board of Personnel Appeals' 

final order violated her right of non-association as set forth in 
5 39-31-204, MCA. Wolfe's petition also alleged that the Board's 

decision denied her right to exercise her religious beliefs in 

violation of the Free Exercise Clause of both the United States 

Constitution and the Montana Constitution. 

The District Court determined that, pursuant to the Montana 

Administrative Procedure Act, 5 2-4-702, MCA, it had jurisdiction 

over only the allegation that the Board denied Wolfe her rights 

under the non-association statute. The District Court, therefore, 

treated the petition as a declaratory judgment action. The court 

declared 5 39-31-204, MCA, unconstitutional on its face because it 

violates the Establishment Clause of the First Amendment--it grants 

a benefit to members of organized religion which is denied to 

persons with personal religious beliefs. The District Court 

decision did not resolve the dispute between the parties. 

As a general rule, this Court will consider only issues raised 

before the district court. Miller v. Catholic Diocese of Great 

Falls (1986), 224 Mont. 113, 116, 728 P.2d 794, 795. This Court, 

however, reserves the power to consider a question raised for the 

first time on appeal if it relates to a substantial or fundamental 

right of a litigant. Haldorson v. Haldorson (1977), 175 Mont. 170, 

173, 573 P.2d 169, 171; Cottril v. Cottril Sodding Service (1987), 

229 Mont. 40, 42, 744 P.2d 895, 896. The case presently before the 

Court involves freedom of religion which is clearly a fundamental 

right. See Art. 11, Sec. 5 Mont.Const.; U.S. Const. amend. I. 

Courts should avoid constitutional questions whenever 

possible. Ingraham v. Champion Intll (1990), 243 Mont. 42, 46, 793 
P. 2d 769, 771. A court should not rule on the constitutionality of 

a legislative act if the court can decide the case before it 

without reaching constitutional considerations. Taylor v. Dept. of 

Fish, wildlife & Parks (1983), 205 Mont. 85, 90, 666 P.2d 1228, 

1231. 

We can decide the present case without ruling on the 

constitutionality of the non-association with labor unions statute, 

39-31-204, MCA. Both federal and Montana's civil rights acts 

forbid religious discrimination by employers. See Title VII of 

Civil ~ights Act of 1964, 42 U.S.C. 5 2000e, et seq.; 3 49-2-101, 

MCA, et seq. Title VII of Civil Rights Act of 1964 "clearly 

imposes the same duty not to discriminate on a union as it does the 

employer." Yott v. North American Rockwell Corp. (9th Cir. 1979), 

602 F.2d 904, 909; see also 42 U.S.C. 4 2000e-2(c). 

In the present case, the teachers1 unions must reasonably 

accommodate Wolfeis religious beliefs, if they can do so without 

incurring undue hardship. See Yott, 602 F.2d at 908-09. Wolfe 

requested that the unions accommodate her religious beliefs by 

extending the perimeters of the non-association statute to include 

her situation. The unions, on the other hand, offered to 

accommodate Wolfe by splitting the NEA1s portion of the agency fee 

between the KEA and the HEA. 

Under Title VII, a defendant that has several means of 

reasonably accommodating an employee is free to select the one that 

poses the least hardship to itself. See generally, Ansonia Board 

of ducati ion v. Philbrook (1986), 479 U.S. 60, 68, 107 S.Ct. 367, 
372; American Postal Workers Union v. Postmaster General (9th Cir. 

1986), 781 F.2d 772, 775-77. "By its very terms [Title VII] 

directs that any reasonable accommodation by the employer is 

sufficient to meet its accommodation requirement." Ansonia Bd. of 

2, Ed 479 U.S. at 68. 

In the present case, there has been no fact finding as to 

whether the unions offered a reasonable accommodation that would 

effectively remove the religious conflict facing Wolfe. We vacate 

the District Court decision of unconstitutionality and remand to 

the Board of Personnel Appeals to determine whether the unions 

offered a reasonable accommodation of Wolfe's religious beliefs.