(1) At the request of any party to a case before the commission, other than a case alleging a violation of 49-2-305 , MCA (housing discrimination) , the department shall issue a right to sue letter if the commission has not yet held a contested case hearing and 12 months have elapsed since the complaint was filed, unless:

(a) the party requesting the issuance of the right to sue letter has failed to comply with the terms of a lawful subpoena issued during investigation;

(b) the party requesting the issuance of the right to sue letter has waived the right to request removal either by specific written waiver or by conduct constituting an implied waiver;

(c) the party requesting the issuance of the right to sue letter has filed the request more than 30 days after service of the notice of certification for hearing on that party, and the commission or its hearing examiner has scheduled a hearing to be held within 90 days of the date of service of the notice of certification for hearing on the requesting party; or

(d) the party requesting the issuance of a right to sue letter has unsuccessfully attempted through court litigation to prevent the department from investigating the complaint.

(2) A party who requests issuance of a right to sue letter and is dissatisfied with a decision of the department refusing to issue a right to sue letter under (1) may seek commission review of the decision by filing or mailing written objections within 14 days after the decision is served. The date of mailing will be established by U. S. postal service postmark. Briefs are not required. A party who files such an objection and wishes to file a supporting brief must file and serve an original and six copies of the brief within five days of filing or mailing the objection. Any opposing party who wishes to file an answer brief must file and serve an original and six copies of the brief within ten days of service of the initial brief. A party making an objection who wishes to file a reply brief must file and serve an original and six copies of the brief within ten days of service of an answer brief. If a party making an objection does not file a supporting brief, any opposing party may request permission from the department to file a brief in opposition to the objection. The objection will be considered at the next commission meeting after conclusion of the briefing schedule. Consideration of the objection will be based upon the written record unless oral argument is requested and authorized by the commission.

(3) Briefs on objections to the department's failure to issue a right to sue letter may not exceed ten pages in length. Each party should provide copies of any specific exhibits from the record which the party deems essential for the commission to read. Requests for oral argument must be made in writing at the time of filing the first brief of each party. If the request is contained in a brief, the caption should indicate that oral argument is requested. If a request for oral argument is timely made, ten minutes for each party will be reserved for oral argument during the commission meeting at which the objection will be considered.

(4) If the commission sustains the objections to the refusal to issue a right to sue letter, it will direct the department to issue a right to sue letter.