No. 13752 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

STATE ex rel. ROBERT E. SULLIVAN, Relator and Appellant,

STATE OF MONTANA, TEACHERS' RETIREMENT BOARD, et al., Respondents and Respondents.

Appeal from: District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Boone, Karlberg and Haddon, Missoula, Montana Sam E. Haddon argued, Missoula, Montana For Respondent: J. Michael Young argued, Helena, Montana For Amicus Curiae: Louis Forsell argued, Helena, Montana

Submitted: September 29, 1977 r\rW 3 5 1 g z Decided :

Clerk Mr. Chief Justice Paul G . Hatfield delivered the Opinion of the Court :

Appellant appeals from an order of the District Court, Lewis and Clark County, dismissing his petition for judicial review and affirming a decision of the Montana Teachers' Retirement Board denying him retirement credit for out-of-state teaching service. Appellant, Robert E. Sullivan, is Dean of the University of Montana School of Law. He was previously employed as a faculty member of Notre Dame University from September 1947 to September 1954. In 1954, he moved directly from Notre Dame University to the University of Montana School of Law faculty. In 1976, while a member of the Montana Teachers' Retirement System, appel- lant applied for seven years credit in the retirement system on the basis of his Notre Dame teaching service, He tendered back

contribution payments as required by section 75-2705(9), R.C.M. 1947, to respondent Montana Teachers' Retirement Board (herein- after referred to as the Board). At an April 12, 1976, meeting, the Board denied appellant's application and thereafter returned his cashier's check for back retirement contribution payments. The Board based its denial on its decision that section 75-2705(9), R.C.M. 1947, in effect in 1954 when appellant became a member of the Montana Teachers' Retirement System, allowed retirement credit only for teaching service in out-of-state public schools, to the exclusion of service performed in out-of-state private schools such as Notre Dame University. Appellant then brought an action in district court to require the Board to allow him to purchase credit toward retirement benefits in the Teachers' Retirement System for his out-of-state teaching service. Counsel stipulated the case be submitted for final decision on the law question as if it were a judicial review of the ~oard's denial of teaching credit. The District Court issued a "MEMORANDUM OPINION AND ORDER" dismissing the petition for judicial review and affirming the decision of the Board. The determinative issue presented on appeal is whether section 75-2705(9), R.C.M. 1947, as applicable in 1954 when appellant became a member of the Montana Teachers' Retirement System, allows a member to receive credit for teaching in out- of-state private schools. In Montana, retirement benefits in the teachers' retire- ment system are a matter of contract right. The terms of the teachers' retirement benefit contract in Montana are determined by the controlling provisions of the teachers' retirement system statute in effect at the time the teacher becomes a member of the Montana Teachers' Retirement System. "These sections of the statute become part of the teacher's contract." Clarke v. Ireland, 122 Mont. 191, 199¶ 199 P.2d 965 (1948). When appellant joined the Montana Teachers' Retirement System in 1954, section 75-2705(9), R.C.M. 1947, set forth the conditions by which a teacher entering the system could receive credit for out-ofistate teaching service. That portion of section 75-2705(9), as it was in effect in 1954, relevant to this appeal, provided : "Any teacher who has become employed as a teacher in Montana * * * may receive credit for service for out-of-state teaching employment provided * * * [he makes certain contributions required by the statute] .I' (Bracketed material paraphrased.) Section 75-2705(9) controls this case, because no other section of the Monthna Teachers' Retirement A c t , as it was in effect

in 1954, spoke to creditable service for out-of-state teaching. On its face section 75-2705(9) appears to be perfectly clear. To receive credit in the Montana Teachers' Retirement System for

out-of-state teaching service, section 75-2705(9) merely required that the applicant teacher, who has become employed as a teacher in Montana, has performed out-of-state teaching service and made the required contributions into the retirement fund. Appellant, as Dean of the law school, is a teacher in Montana who performed out-of-state teaching service at Notre Dame University and made the statutorily required contributions into the retirement fund. Respondents assert the legislative intent behind section 75-2705(9) can be determined only by examining the teachers' retire- ment act in its entirety. Respondents contend that,in passing the act, the Montana legislature established a benefit for public school teachers with no regard for teachers in private institutions. The definitions of "teacher", "service", "employer", and "member- R.C.M. 1947, ship" in section 75-2701/a11 spoke to public school employees. Respondents conclude the section 75-2701(4) definition of teacher as "* * * any teacher in the public elementary and high schools of the state, and the university of Montana * * *" must be used to define what "teacher" may qualify for out-of-state teaching credit under section 75-2705(9). Respondents conclude that appellant cannot meet the statutory definition of "teacher" for his service at Notre Dame University. We disagree.

Respondents are correct in 'their assertion that the teachers' retirement act must be construed as a whole. Because the legisla- ture did not pass section 75-2705(9) apart from the remainder of the act, this Court cannot literally construe that section in a manner inconsistent with the legislative intent expressed through- out the teachers' retirement act. "* * * l e g i s l a t i v e i n t e n t cannot be determined from t h e wording of any p a r t i c u l a r s e c t i o n o r sentence, but r a t h e r must come from a considera- t i o n of the Act a s a whole." S t a t e ex r e l . Jones v. Giles, 168 Mont. 130, 134, 541 P. 2d 355 (1975).

However, examining the a c t a s a whole a s i t was i n 1954, we

cannot say t h a t the pervasive i n t e n t of the l e g i s l a t u r e was t o

preclude retirement system members from receiving c r e d i t f o r

out-of-state teaching s e r v i c e i n p r i v a t e schools. The s t a t u t e

was undoubtedly enacted f o r the purpose of b e n e f i t i n g Montana

public school teachers t o the exclusion of p r i v a t e school teachers.

N teacher i n a p r i v a t e school could ever meet the s t a t u t o r y o

d e f i n i t i o n of "teacher" i n s e c t i o n 75-2701(4) and q u a l i f y f o r ' b e n e f i t s i n the retirement system u n t i l he became a teacher i n

the public schools of t h i s s t a t e . Once an individual became a

Montana public school teacher, section 75-2705(9) c o n t r o l l e d

whether he received c r e d i t f o r out-of-state teaching service.

To q u a l i f y f o r out-of-state teaching s e r v i c e c r e d i t , s e c t i o n

75-2705(9) required the applicant t o be "Any teacher who has

become employed a s a teacher i n Montana ** *". (Emphasis added.) Teachers covered by the s t a t u t e were teachers i n t h e public

schools "of t h e s t a t e " . Section 75-2701(4). The second use of

the term "teacher" i n s e c t i o n 75-2705 (9) was c l e a r l y used i n

i t s s t a t u t o r y sense. One must be employed a s a public school

teacher i n Montana before he was e l i g i b l e f o r out-of-state r e t i r e -

ment c r e d i t i n t h e Montana ~ e a c h e r s 'Retirement System.

J u s t a s c l e a r l y , however, t h e f i r s t use of the word "teacher"

i n s e c t i o n 75-2705(9) could not have been used a s s t a t u t o r i l y

defined without rendering the section a n u l l i t y . Before becoming

employed a s a teacher i n t h i s s t a t e , no individual could meet

t h e s t a t u t o r y d e f i n i t i o n of "teacher" because he i s not then a

teacher of the s t a t e of Montana. N out-of-state c r e d i t could be o given any teacher, public or private, if the statutory defini- tion were applied to the first use of the word "teacher". The first use of the word "teacher" in section 75-2705(9) must be the commonly understood definition--that is, one who teaches or instructs others--since a meaning different from the statutory definition "* * * is plainly required by the content." Section 75- 2701,R.C.M. 1947. Respondents argue that interpreting section 75-2705(9) as allowing retirement credit for out-of-state teaching service in public and private schools alike "would create a grave disparity

in the benefits afforded teachers transferring into the Montana [public] school system from private schools'' within Montana. No section of the act allowed creditable service for other than public school teaching within the state of Montana. The legislature did not incorporate into the act a section expressing legislative policy. We do not have the benefit of the legislative debate which preceded enactment of the statute. We can, therefore, only hypothesize as to the legislative intent for the enactment of section 75-2705(9). Logically, it would seem that a subsection which provided retirement credit for out-of-state teaching service was enacted to attract qualified teachers from outside the state into the Montana public school system. See: Driggs v. Utah State Teachers Retirement Board, 105 Utah 417, 142 P.2d 657, 663 (1943). That purpose would indeed best be served by providing attractive retirement benefits to qualified out-of- state private school and public school teachers alike. Out-of-state teachers entering the state public school system did not have this opportunity to purchase retirement credit for their out-of-state teaching service until the legislature amended the teachers' retirement act in 1949 with the addition of section 75-2705(9). Whether by oversight or by design, the act was not further amended to provide Montana private school teachers with a similar opportunity to purchase retirement credit when they

entered the state public school system. It is irrelevant what value judgment we place on the equities of the resultant distinc- tion between the opportunities for private in-state and private out-of-state teachers to purchase retirement credit for their private school teaching service when they enter the Montana Teachers' Retirement System. It is this Court's function to ascertain the legislative intent behind section 75-2705(9) and not to substitute therefor our own discretion or conception of what might have been more equitable. General Finance Co. v. Powell, 112 Mont. 535, 540, 118 P.2d 751 (1941). Rather, the benefits under the teachers' retirement plan are determined by the express provisions of the statute. The plain meaning of section 75-2705(9) was to pro- vide credit for out-of-state teaching service, without distinc- tion between out-of-state service in public or in private schools. Respondents argue that, despite its apparent plain meaning, the fact that section 75-2705(9) did not expressly refer to private school service creates an ambiguity as to whether the legislature intended the subsection to allow retirement credit for out-of-state private school teaching. Respondents assert that unsuccessful House Bills No. 301 and No. 589, introduced in the 1975 legislature to allow retirement credit for teaching in private schools, signified that the legislature at least impliedly approved respondent Board's interpretation of section 75-2705(9). Respondents claim the Board has consistently interpreted section 75-2705( ) as disallowing credit for out-of-state private school 9 teaching, and t h a t t h i s Court should respect t h i s i n t e r p r e t a t i o n

of an a c t which the Board has been empowered t o enforce and

administer.

These arguments of respondents a r e likewise without merit.

The successful house b i l l s were introduced i n 1975, i n an

attempt t o amend n o t section 75-2705(9), but i t s replacement

section 75-6213, R.C.M. 1947. The l a t t e r s e c t i o n enacted i n

1971, expressly l i m i t s retirement c r e d i t f o r out-of-state teaching

t o service i n public schools, and i s therefore s u b s t a n t i a l l y

d i f f e r e n t from i t s predecessor section 75-2705(9). It i s

i l l o g i c a l t o assume the f a i l u r e of the b i l l s indicated l e g i s l a -

t i v e approval of t h e Board's i n t e r p r e t a t i o n of section 75-2705(9),

r a t h e r than merely i l l - f a t e d attempts t o amend the then e x i s t i n g

law, s e c t i o n 75-6213.

Even assuming the Board has c o n s i s t e n t l y i n t e r p r e t e d

s e c t i o n 75-2705(9) t o disallow retirement c r e d i t f o r p r i v a t e

out-of-state teaching s e r v i c e , t h i s Court i s n o t bound by t h a t

administrative i n t e r p r e t a t i o n . S t a t e v. Toomey, 135 Mont. 35, 44, 335 P.2d 1051 (1.958). W h i l e . i t i s t r u e t h e Board's construc-

t i o n of the s t a t u t e i s e n t i t l e d t o r e s p e c t f u l consideration by

t h i s Court:

It* **It i s likewise t r u e t h a t when such p r a c t i c e i s erronerously *** established i t i s without per- suasive effect." S t a t e ex rel.City of Butte v. Healy, 105 Mont. 227, 233, 70 P.2d 437 (1937).

I n t h i s case, the Board's i n t e r p r e t a t i o n of a s t a t u t e con-

t r a r y t o t h e p l a i n meaning of i t s terms w i l l n o t be adopted by

t h i s Court. Section 75-2705(9), R.C.M. 1947, a s i n e f f e c t i n

1954, allowed any teacher i n the Montana S t a t e Teachers' Retire-

ment System t o receive c r e d i t f o r "out-of-state teaching employ-

ment." The l e g i s l a t u r e did n o t r e s t r i c t t h e c r e d i t t o public out-of-state teaching s e r v i c e , and we w i l l not now j u d i c i a l l y

c r e a t e such a r e s t r i c t i o n .

"* ** Where the language of a s t a t u t e i s p l a i n , unambiguous, d i r e c t and c e r t a i n , the s t a t u t e speaks f o r i t s e l f and t h e r e i s nothing l e f t f o r t h e court t o construe. [Citing cases. ] The function of the court i s simply t o a s c e r t a i n and declare what i n terms o r i n substance i s contained i n t h e s t a t u t e and n o t t o i n s e r t what has been omitted." Dunphy v. Anaconda Co., 151 Mont. 76, 80, 438 P.2d 660 (1968).

Appellant met each and a l l of t h e section 75-2705(9) re-

quirements,to purchase retirement c r e d i t . F i r s t , he i s a

"teacher". Second, he has been "employed a s a teacher i n

Montana". Third, he performed "out-of-state teaching employ-

ment". Fourth, he made t h e contributions t o the retirement

fund which were required by s t a t u t e . N other requirements o

were present i n s e c t i o n 75-2705(9) and none can be implied.

The order of the d i s t r i c t court i s reversed and t h e Board

i s ordered t o accept a p p e l l a n t ' s contributions i n t o t h e retirement

fund and t o give appellant retirement c r e d i t f o r h i s out-of-state

teaching service.

W Concur: e n