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 DISTRICTNO. 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 PersonnelAppeals)



# D Submitted 

### on Briefs: September 17, 1992Justice 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. BarbaraWolfe 

### 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 affiliatedwith two other teacher'sunions, theMontana Education Association (MEA)and theNational Education Association (NEA)

# . The collectivebargaining agreement allows teachers topay 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 religiousbeliefs, sheopposesboth 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 Icannot in good conscience contributemoney 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. Personswho fall within the parimeters of the statutemay 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 committeemet 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 itsdecision. 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 PersonnelAppeals, the Board issued a final order adopting thedismissal 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 PersonnelAppeals' final order violated her right of non-association as set forth in5 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 theMontana Constitution. The District Court determined that, pursuant to the Montana Administrative ProcedureAct, 5 2-4-702, MCA, it had jurisdiction over only the allegation that the Board denied Wolfe her rights under thenon-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 facebecause it violatestheEstablishment Clauseofthe FirstAmendment--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 consideronly 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. Haldorsonv. Haldorson (1977),175Mont. 170, 173, 573 P.2d 169, 171;Cottrilv. Cottril Sodding Service (1987), 229 Mont. 40, 42,744 P.2d 895,896. The casepresently 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. Ingrahamv. Champion Intll(1990),243 Mont. 42, 46,793P.2d 769,771. A court should not ruleon the constitutionality of

a legislative act if the court can decide the case before it without reaching constitutional considerations. Taylorv. 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 constitutionalityof thenon-associationwith 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 imposesthe samedutynot todiscriminate 

### on aunion as itdoes the employer." Yott v. North American Rockwell Corp. (9thCir. 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 Wolfeisreligious 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 theperimeters of thenon-association statute to include her situation. The unions, on the other hand, offered to accommodate Wolfe by splitting theNEA1sportion 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 freeto selecttheone 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 PostalWorkers Union v. PostmasterGeneral (9thCir. 1986), 781 F.2d 772, 775-77. "By its very terms [Title VII] directs that any reasonable accommodation by the employer is sufficienttomeet its accommodation requirement." Ansonia Bd. of Ed 479 U.S. at 68. 2, 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 facingWolfe. 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.