MCI TELECOMMUNICATIONS CORP v. MONT ( 1993 )

No. 93-053
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
MCI TELECOMMUNICATIONS CORP.,
Petitioner and Appellant,
VS.
MONTANA DEPARTMENT OF PUBLIC SERVICE
REGULATION, PUBLIC SERVICE COMMISSION,
DANNY OBERG, JOHN DRISCOLL, ROBERT
ANDERSON, WALLACE MERCER and TED MACY,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leo Berry, Browning, Kaleczyc, Berry & Hoven,
Helena, Montana; Sue Weiske MCI Telecommunications
carp, Denver, Colorado
For Respondents:
Ivan C. Evilsizer, Montana Public Service
Commission, Helena, Montana: John Alke, Hughes,
Xellner, Sullivan & Alke, Helena, Montana; T. Larry
Barnes, AT&T Communications, Denver, Colorado:
Robert A. Nelson, Montana Consumer Counsel! Helena,
Montana: Mary Piper, Kansas City, Missouri; Dennis
R. Lopach, U.S. West Communications, Helena,
Montana; Mike Manion, Butte, Montana
Submitted on Briefs: May 27, 1993
Decided: August 26, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is appeal by MCI Telecommunications Corp. (MCI) from the
order of the District Court of the First Judicial District, Lewis
and Clark County, which granted defendants' Motion to Dismiss
appellant's Petition for Judicial Review. The District Court
denied judicial review of the Public Service Commission's order on
the grounds that the District Court lacked jurisdiction over the
petition. We reverse.
The sole issue for our review is whether Rule 6(e),
M.R.Civ.P., applies to petitions in district courts for judicial
review of administrative decisions.
After several proceedings in this administrative action, the
Montana Public Service Commission (Commission) issued its Order No.
5548~ on May 18, 1992, which denied MCI's motion for
reconsideration of a Commission ruling. The Commission mailed a
copy of the order to MCI on May 19, 1992. MCI did not receive the
copy of the order until May 21, 1992. On June 19, 1992, MCI filed
its Petition for Judicial Review.
The Commission moved to dismiss MCI's petition on the grounds
that the District Court lacked jurisdiction over the petition,
claiming that the petition was filed 31 days after service. The
District Court granted the Commission's motion to dismiss and MCI
now appeals this dismissal.
Did the District Court err in dismissing appellant's petition
for judicial review because it was not timely filed?
Section 2-4-702, MCA, provides that a person may institute
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proceedings for judicial review of an administrative decision after
all administrative remedies have been exhausted. This section,
part of the Montana Administrative Procedure Act (MAPA), further
provides in pertinent part:
(2) (a) Proceedings for review shall be instituted by
filing a petition in district court within 30 davs after
service of the final decision of the agency . . .
Section 2-4-702(2)(a), MCA (emphasis supplied). Noting that this
indeed produced a harsh result and that the court would rather see
every dispute decided after both sides are "fully and fairly
allowed to present their evidence and arguments to a court," the
District Court nevertheless determined that service was complete
when the Commission mailed a copy of the order to MCI on May 19,
1992 and that MCI's petition for judicial review was filed one day
too late.
An appeal filed after the time prescribed by statute is
ineffective for any purpose and thus fails to confer jurisdiction
upon the district court to review an administrative agency's
decision. State ex rel. Albrecht v. District Court (1952), 126
Mont. 178, 182, 246 P.2d 1035, 1037. The timely filing of a notice
of appeal is mandatory and jurisdictional. Albrecht, 126 Mont. at
180, 246 P.2d at 1036.
MCI contends that Rule 6(e), M.R.Civ.P., applies to this
administrative proceeding and that by applying Rule 6(e), its
petition for judicial review was filed on the 28th day after
service and was timely filed. Rule 6(e), M.R.Civ.P., provides:
Rule 6(e). Additional time after service by mail.
Whenever a party has the right or is required to do some
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act or take some proceedings within a prescribed period
after the service of a notice or other paper upon the
party and the notice or paper is served upon the party by
mail, 3 davs shall be added to the prescribed period.
(Emphasis supplied.)
The Commission argues that Rule 6(e) does not apply because its
effect is to extend the jurisdiction of the district court beyond
thirty days, which is not allowed by Rule 82, M.R.Civ.P. Rule 82,
M.R.Civ.P., provides:
Rule 82. Jurisdiction and venue unaffected. Except
as provided in Rule 4 these rules shall not be construed
to extend or limit the jurisdiction of the district
courts of Montana or the venue of actions therein.
The commission argues that service of notice was complete on the
day it mailed a copy of the order to MCI.
The Commission relies on numerous cases from federal courts
and other states to support its argument that Rule 6(e) does not
apply in an appeal from an administrative agency decision to the
district court. We have reviewed these cases and found them
unpersuasive because they address the applicability of Rule 6(e) in
cases where statutes define service as either the date of mailing
or the date of receipt of notice. See, u, Ramsdell v. Ohio
Civil Rights Comm'n (Ohio 1990), 563 N.E.2d 285.
The district court's jurisdiction is controlled by the period
of time prescribed by the legislature and is limited to the time
provided by the applicable statute. The right to an appeal of an
administrative agency's ruling is created by statute and is limited
by the provisions of the statute as to the time within which the
right must be asserted. Zeller v. Folsom (N.D.N.Y. 1956), 150 F.
SUPP. 615, 617. Where the time for filing an appeal is dictated by
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the statute which confers the right to appeal, Rule 6(e) cannot be
applied to extend the time for filing as this would be an extension
of the court's jurisdiction. In this case, the time to appeal is
not dictated by any statute which prescribes that service is
complete when placed in the mail as the Commission contends.
The 3-day extension applies only where the time period for
doing an act runs from the time of service of notice. This 3-day
period is computed separately and determines the date when the 30-
day time for appeal begins to run. The Wyoming Supreme Court
quoted the rationale for the 3-day extension in Rule 6(e) as
follows:
[T]he rule clearly is intended to protect parties who are
served notice by mail from suffering a systematic
diminution of their time to respond through the
application of Rule 5(b), which provides that service is
complete upon mailing, not receipt: the additional three
days provided by Rule 6(e) to the party being served
represent a reasonable transmission time, and a fair
compromise between the harshness of measuring strictly
from the date of mailing and the indefiniteness of
attempting to measure from the date of receipt, which in
many cases would be unverifiable.
Sellers v. Employment Sec. Comm'n of Wyo. (Wyo. 1988), 760 P.2d
394, 397 (quoting 4A C. Wright & A. Miller, Federal Practice and
Procedure: Civil 2d § 1171 at 514-15 (1987)). As in Sellers, the
appeal period in this case is triggered by sending notice in the
mail.
Neither MAPA nor the Commission rules define "service."
Section 2-4-106, MCA, provides:
Service. Except where a statute expressly provides
to the contrary, service in all agency proceedings
subject to the provisions of this chapter and in
proceedings for judicial review thereof shall be as
5
prescribed for civil actions in the district courts.
The Commission argues that § z-4-106, MCA, merely provides for the
manner of service to be the same as civil actions in the district
courts.
We have previously stated that "service" under MAPA is
governed by the Montana Rules of Civil Procedure unless a statute
expressly provides otherwise. Rierson v. State (1980), 188 Mont.
522, 527, 614 P.2d 1020, 1023 (citing 5 2-4-106, MCA). This is
consistent with the Ramsdell case cited above.
Our treatment of workers' compensation appeals to this Court
provides further persuasion for treating administrative agency
appeals to district courts in a manner similar to other
proceedings. In a workers' compensation case which challenged the
timeliness of an appeal to the district court, this Court noted
that proceedings in the Workers ' Compensation Court are governed by
MAPA and, therefore, § 2-4-623, MCA, applies to require service by
mail or personally. Dumont v. Wickens Bros. Constr. Co. (1979),
183 Mont. 190, 200, 598 P.2d 1099, 1105. We further stated:
[A] person who appeals from a final decision of the
Workers' Compensation Court should in all fundamental
fairness be given the same benefit of that provision of
Rule 5, M.R.App.Civ.P., which states that:
'1. . . except that in cases where service of notice
of entry of judgement is required by Rule 77(d) of the
Montana Rules of Civil Procedure the time shall be 30
days from the service of notice of entry of judgment."
This would mean, as is already the case where Rule
77 Cd) , M.R.Civ.P., is applicable, that when service of
the notice of the final decision of the Workers'
Compensation Court is made as mandated by section 2-4-623
MCA and that service was made by mail, the provisions of
Rule 21(c) M.R.App.Civ.P., are automatically put into
6
play adding three days to the prescribed 30-day time
limit for filing the notice of appeal.
. . . Rule 21(c) comes into play adding three days
to the prescribed period and the 33rd and final day for
filing the notice of appeal was November 2, 1978. Thus,
claimant's appeal was timely--not one day late as
respondent claims.
Dumont (1979), 183 Mont. 190, 200, 598 P.2d 1099, 1105.
The appeal in Dumont was from the Workers' Compensation Court
directly to the Montana Supreme Court and thus was governed by the
Rules of Appellate Procedure. Rule 21(c), M.R.App.P., is the
equivalent of Rule 6(e), M.R.Civ.P. The provision in 3 2-4-623,
MCA, requiring notice either personally or by mail is identical to
Rule 77(d), M.R.Civ.P., insofar as requiring notice of decisions in
workers' compensation cases. In Dumont, this Court interpreted 5
2-4-623, MCA, as requiring that 3 days be added to the prescribed
30-day time limit for filing a notice of appeal in the Supreme
Court for an appeal from the Workers' Compensation Court.
We conclude that there is a need for uniformity and fairness
in the application of rules relating to the time when an appeal
begins to run. The 30-day appeal period cannot begin to run until
the effective date of service. Section 2-4-106, MCA, of MAPA does
not define lVservice" but it provides that service in agency
proceedings be as prescribed for civil actions in the district
courts. Because MAPA uses the term V'.servicelt but does not define
when service is effective, 5 2-4-106, MCA, requires that Rule 6(e)
be applied to define when service by mail is complete for
administrative decisions. We conclude that service was not
effective upon MCI until May 22, 1992, three days after mailing
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notice of the Commission's order. We further conclude that the 30-
day period allowed for filing a petition for judicial review began
to run on May 23, 1992, the day following service by mail, that the
petition was filed within thirty days and that the District Court
had jurisdiction to hear this appeal.
We hold the District Court erred in dismissing appellant's
petition for judicial review for lack of jurisdiction.
Reversed and remanded.
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August 26, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Leo Berry, Esq.
Browning, Kaleczyc, Berry & Hoven, P.C.
P.O. Box 1697
Helena, MT 59624
Sue E. Weiske
MCI Telecommunications Corp.
707-17th ST., Ste. 3900
Denver, CO 80202
Ivan C. Evilsizer, Esq.
Montana Public Service Commission
1701 Prospect Ave.
Helena, MT 59620-2601
John Alke, Esq.
Hughes, Kellner, Sullivan & AIke
P.O. Box 1166
Helena, MT 59624
T. Larry Barnes
AT&T Communications
1875 Lawrence St., Rm. 1575
Denver, CO 80202
Robert A. Nelson
Montana Consumer Counsel
34 W. 6th Ave.
Helena, MT 5 9 6 2 0
Mary Piper
8140 Ward Pardway, 5E
Kansas City, MO 64114
Dennis R. Lopach
U.S. West Communications
560 N. Park Ave.
Helena, MT 59624
Mike Manion
40 E. Broadway
Butte, MT 59701
ED SMITH
CLERK OF THE SUPREME COURT
STATE, OF MONTANA