NO. 93-289

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

HENRY PRETTY ON TOP, CHAIRMAN,

BOARD OF TRUSTEES, BIG HORN

COUNTY HIGH SCHOOL DISTRICT

NO. 2, LODGE GRASS HIGH SCHOOL,

Petitioners and Appellants,

-vsROBERTA SNIVELY, SUPERINTENDENT OF

SCHOOLS, BIG HORN COUNTY, NANCY

KEENAN, SUPERINTENDENT OF PUBLIC

INSTRUCTION; DECKER PETITIONERS

ELEMENTARY SCHOOL DISTRICT NO. 1,

BIG HORN COUNTY; and BIG HORN COUNTY

HIGH SCHOOL DISTRICT NO. 1,

Cl

Respondents and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Big Horn,

The Honorable Robert W. Holmstrom, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

James L. Vogel, Attorney at Law, Hardin, Montana

For Respondents:

Laurence R. Martin, Michael K. Rapkoch: Felt,

Martin & Frazier, Billings, Montana

Filed:

Submitted on Briefs: January 20, 1994

Decided: March 22, 1994
Justice Karla M. Gray delivered the Opinion of the Court.

Big Horn County High School District No. 2, Lodge Grass High

School, appeals from an order of the Thirteenth Judicial District

Court denying its petition for judicial review of a decision of the

Montana Superintendent of Public Instruction. The court's order

was based on its conclusion that the petition was time-barred under

§ 20-6-320(4), MCA (1989). We affirm.

The Decker territory was originally located in Big Horn County

High School District No. 2 (Lodge Grass). In January, 1990, a

majority of registered electors residing in the Decker territory

petitioned Big Horn County Superintendent of Schools Roberta

Snively (Superintendent Snively) to transfer the Decker territory

from Lodge Grass to Big Horn County High School District No. 1

(Hardin). The Big Horn County Commissioners ultimately certified

the petition pursuant to § 20-6-320(l), MCA (1989). Superintendent

Snively scheduled and held a hearing on the petition in accordance

with § 20-6-320(3) and (4), MCA (1989). She subsequently issued an

order transferring the Decker territory to Hardin.

Lodge Grass appealed Superintendent Snively's order to Montana

Superintendent of Public Instruction Nancy Keenan (Superintendent

Keenan). On October 26, 1990, Superintendent Keenan issued an

order affirming Superintendent Snively's decision. Lodge Grass

petitioned for judicial review of Superintendent Keenan's decision

on December 24, 1990.

The District Court concluded that § 20-6-320(4), MCA (1989),

required Lodge Grass to file its petition within thirty days of the

2
date of Superintendent Keenan's decision. Based on that

conclusion, it denied, as untimely, the Lodge Grass petition filed

fifty-eight days after Superintendent Keenan's decision. Lodge

Grass contends that the court applied the wrong statute: it argues

that 5 20-3-107(2), MCA (1989), which allows a party sixty days to

petition for judicial review of a state superintendent's decision,

applies to the facts before us.

We review a district court's conclusion of law to determine

whether it is correct. Steer, Inc. v. Dep't of Revenue (1990), 245

Mont. 470, 474-475, 803 P.2d 601, 603. Our function in

interpreting a statute is to effectuate the intent of the

legislature. Minervino v. University of Montana (1993), 258 Mont.

493, 496, 853 P.2d 1242, 1244 (citation omitted). "Whenever

possible, this court is to look to the plain meaning of the statute

in determining the legislative intent." Holly Sugar Corp. v. Dep't

of Revenue (1992), 252 Mont. 407, 412, 830 P.2d 76, 79 (citation

omitted). "If the legislature's intent can be determined from the

plain meaning of the words used in a statute, we will go no

further." State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont.

296, 299, 833 P.2d 201, 204 (citation omitted).

Section 20-3-107(1)(a), MCA (1989), authorizes the state

superintendent of public instruction to decide matters of

controversy appealed from a decision of a county superintendent

made pursuant to 5 20-3-210, MCA (1989). The state

superintendent's decision in such a controversy is final unless a

petition for judicial review is "commenced no later than 60 days

after the date of the decision of the [state] superintendent. . .

3
.I' Section 20-3-107(2), MCA (1989). Therefore, by its terms, the

sixty-day period for petitioning for judicial review of a decision

by the state superintendent is applicable where the underlying

decision of the county superintendent is made pursuant to 5 20-3-

210, MCA (1989).

Section 20-3-210(l), MCA (1989), authorizes a county

superintendent to "hear and decide all matters of controversy

arising in his county as a result of decisions of the trustees of

a district in the county." The statute also authorizes a county

superintendent to decide controversies arising under:

(a) section 20-5-304 or 20-5-311 relatingtothe approval

of tuition applications; or

(b) any other provision of this title for which a

procedure for resolving controversies is not expressly

prescribed.

Section 20-3-210(1)(a) and (b), MCA (1989).

None of the 5 20-3-210(l), MCA (1989), situations is present

here. Section 20-3-210(l), MCA (1989), authorizes a county

superintendent to review decisions initially made by a district

board of trustees. In granting the transfer petition, however,

Superintendent Snively was not reviewing a decision of the school

trustees. She was authorized, pursuant to 5 20-6-320(4), MCA

(1989), to make the initial decision to grant the petition if she

"consider[ed] it advisable and in the best interests of the

residents of the territory." Section 20-3-210(1)(a), MCA (1989),

also has no application here because this case does not involve a

tuition application. Nor does § 20-3-210(1)(b), MCA (1989), apply,

because § 20-6-320(4), MCA (1989), provides a procedure for

4
resolving controversies relating to territory transfers. Section

ZO-6-320(4), MCA (1989), expressly provides for the resolution of

such controversies by providing both an appeal to the state

superintendent from the county superintendent's decision and,

thereafter, a petition for judicial review.

Thus, a county superintendent's decision to grant or deny a

transfer petition is not a decision made pursuant to § 20-3-210,

MCA (1989). As set forth above, § 20-3-107(2), MCA (1989), applies

to decisions of the state superintendent only when the underlying

decision of the county superintendent is made pursuant to 5 20-3-

210, MCA (1989). Therefore, we conclude that § 20-3-107, MCA

(1989), is not applicable here.

The entire process for transferring territory from one high

school district to another by means of a petition is contained in

§ 20-6-320, MCA (1989). In addition to providing for the initial

decision-making by the county superintendent, § 20-6-320(4), MCA

(1989), delineates the available procedures for review of that

decision:

(4) . u .[the order of the county superintendent]

shall be final 20 davs after its date unless it is

annealed to the suoerintendent of oublic

instruction bv a resident of either district

affected bv the territory transfer. The decision

of the superintendent of public instruction . . .

is final 30 davs after its date. [Emphasis

added.]

Section 20-6-320(4), MCA (1989). The statutory language regarding

appeal of the county superintendent's decision requires that an

appeal be filed within the twenty-day period following the

decision. This language clearly sets forth the legislature's

5
intent to provide both the opportunity for appeal from the county

superintendent's decision and a specific time within which such an

appeal must be taken.

The statutory language specifying when the decisions of the

state superintendent and the county superintendent become final is

similar. Because the language is similar, it is clear that the

legislature intended a similar result; that is, the state

superintendent's decision is final thirty days after its date,

absent any appeal. Thus, we conclude that Lodge Grass was required

to file its petition for judicial review within thirty days of the

date of the state superintendent's decision.

Lodge Grass cites our decision in Trustees, Carbon Co. Sch.

Dist. v. Spivey (1991), 247 Mont. 33, 805 P.2d 61, as authority for

the application of the sixty-day period contained in § ZO-3-107(2),

MCA (1989), here. Soivev is distinguishable from, and not

inconsistent with, the present case.

In Snivev, as here, we were faced with two different "statutes

of limitations" for a petition for judicial review of a state

superintendent's decision. The similarity, however, ends there.

In Spivey, we rejected the plaintiff's argument that the thirty-day

time limit contained in 5 2-4-702(2)(a), MCA, applied. We

determined that the sixty-day period in § 20-3-107(Z), MCA, applied

to a state superintendent's decision involving the termination of

a tenure teacher because such a termination is a matter of

controversy decided pursuant to § 20-3-210, MCA. Spivev, 805 P.2d

at 63. We further reasoned that 5 20-3-107, MCA, was a specific

statute dealing with school district controversies, while § 2-4-

6
702, MCA, dealt with controversies arising from administrative

agency decisions in general. Spivey, 805 P.2d at 63.

Here, §§ 20-3-210 and 20-3-107, MCA (1989), are inapplicable

by their terms. Superintendent Snively made her territory transfer

decision pursuant to § 20-6-320, MCA (1989), not 5 20-3-210, MCA

(1989). Moreover, this case does not involve two applicable

statutes, one specific and one general: it involves, instead, one

statute expressly applicable by its terms and one statute not

applicable by its terms. Therefore, Suivev is inapposite here.

Superintendent Keenan issued her order on October 26, 1990.

Pursuant to 5 20-6-320(4), MCA (1989), that decision became final

on November 26, 1990, absent a petition for judicial review on or

before that date. Lodge Grass filed its petition for judicial

review on December 24, 1990. We hold that the District Court did

not err in concluding that the petition was untimely and denying

the Lodge Grass petition for judicial review.

Affirmed.

We concur:

,,' ~'.'
March 22, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,

to the following named:

JAMES L. VOGEL

Attorney at Law

P.O. Box 525

Hardin, MT 59034

LAURENCE R. MARTIN

Michael K. Rapkoch

FELT, MARTION & FRAZIER, P.C.

P.O. Box 2558

Billings, MT 59103-2558

Christine Cooke

Big Horn County Attorney

P. 0. Drawer H

Hardin, MT 59034

ED SMITH

CLERK OF THE SUPREME COURT

STATE @ MONTMA ,./’