Brand v. Department of Revenue ( 1993 )

NO. 93-131
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
HAMPTON 3. BRAND,
Plaintiff and Appellant,
, i& ::. ~' 1
STATE OF MONTANA, DEPARTMENT i
OF REVENUE, UNEMPLOYMENT INSURANCE
DIVISION, WORKERS' COMPENSATION i".Y
#'T' .,. _ ,.~
_ ,_,
DIVISION, FERGUS COUNTY "OFFICERS," ,~ ~ :; ."P
g%Es&;:~ '~,i;; <,;; ;j ,; ~; j "in
Defendants and Respondents.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hampton J. Brand, Lewistown, Montana, Pro Se
For Respondent:
David L. Nielsen, Department of Revenue, Helena,
Montana
Submitted on Briefs: June 10, 1993
Decided: July 15, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from an order of the Tenth Judicial District
Court, Fergus County, dismissing appellant Hampton J. Brand's
(Brand) petition :for judicial review and dismissing his document
entitled "Writ of Civil Habeas Corpusl' on the grounds that it is
incomprehensible and unauthorized as a pleading under any statute
or rule. We affirm.
The Department of Revenue (the Department) issued a warrant
for distraint on January 29, 1993, for $11,883.56 in past due
income tax, interest, and penalties. On February 5, 1993, Brand
filed a document with the District Court entitled "Motion For Stay
Of Judgment (Warrant For Distraint No. WIT0091868) And Request For
A Judicial Review, Tenth Judicial District Court, Fergus County,
Montana Republic." The substance of this document was a plea to
the District Court to forgive his late filing of the request for
judicial review in order to allow him to defend the charges. The
caption of this document listed only the Department as a defendant.
The Department was not properly served with a copy of the document.
The other parties listed above were added to the caption in Brand's
notice of appeal. According to the District Court file, none of
these parties have been served either.
On February 18, 1993, Brand filed a document entitled "Writ of
Civil Habeas Corpus." For the most part this document is
incomprehensible, but it appears to request the appearance of
2
numerous individuals, presumably in connection with his request for
judicial review.
That day, the District Court entered an order in which it
noted that Brand had failed to follow the procedural requirements
for judicial review found in 5 2-4-702, MCA. The court also noted
that Brand appeared to admit he missed the requirement that he file
his petition for judicial review within thirty days of service of
the final agency decision. Because the petition was defective, the
District Court dismissed it for lack of jurisdiction, leaving open
the possibility that Brand could refile if all procedural
requirements, including time requirements, were met. The court
also dismissed the "Writ of Civil Habeas Corpus," because it was
not an authorized pleading under any of the applicable statutes or
rules.
The above facts are all that can be gleaned from the District
Court file. On appeal to this Court, however, it appears from his
brief and documents appended thereto that Brand is aggrieved by
some actions taken by the State of Montana, Unemployment Insurance
Division and what was formerly known as the Workers' Compensation
Division of the Department of Labor and Industry.
The sole issue on appeal is whether the District Court erred
in dismissing this matter for lack of jurisdiction.
Section 2-4-702, MCA, sets forth the procedure by which to
initiate judicial review of a contested case. Brand's petition
fails to meet the requirements of this section in at least two
areas. Before we address those areas we note that Brand's petition
3
may be defective in one other area. SeCtiOn 2-4-702 (2) (a), MCA,
provides:
Proceedings for review shall be instituted by filing a
petition in district court within 30 days after service
of the final decision of the agency or, if a rehearing is
requested, within 30 days after the decision thereon. .
. .
In his petition, Brand admits missing a deadline. Because the
petition lacked any of the details required by statute, the
District Court only assumed that the statute cited above was the
deadline to which Brand referred. The District Court dismissed the
petition without prejudice, leaving open the possibility that Brand
could refile if the filing deadline were met. However, the
District Court did not rely on this point to dismiss the petition,
and we need not rely on it to affirm the District Court.
We next address the content requirements for the petition
itself. Those requirements are addressed in § 2-4-702(2)(b), MCA,
which provides:
The petition shall include a concise statement of the
facts upon which jurisdiction and venue are based, a
statement of the manner in which the petitioner is
aggrieved, and the ground or grounds specified in 2-4-
704(2) upon which the petitioner contends he is entitled
to relief. The petition shall demand the relief to which
the petitioner believes he is entitled, and the demand
for relief may be in the alternative.
Brand's petition fails to meet any of these requirements. It
only admits failure to meet a deadline and prays that the court
will overlook that requirement and permit him to defend against the
administrative action. Therefore, the petition is procedurally
defective. This defect, especially the failure to establish
jurisdiction, leads to the final reason the District Court properly
4
dismissed the peti.tion.
Under 5 2-4-702(1)(a), MCA, “A person who has exhausted all
administrative remedies available within the agency and who is
aggrieved by a final decision in a contested case is entitled to
judicial review . . . .'I Failure to exhaust all administrative
remedies precludes judicial review. See Cottonwood Hills v.
Department of Labor and Indus. (1989), 238 Mont. 404, 406, 777 P.2d
1301, 1302, where we said that "[clompliance with the [initial
review procedures :for an unemployment insurance claim] is mandatory
because only after the procedures have been followed is the
District Court vested with jurisdiction." See also Gilpin v. State
(1991) I 249 Mont. 37, 812 P.2d 1265 (district court did not err in
dismissing the plaintiffs' claim on the ground that it lacked
jurisdiction because the plaintiffs had failed to exhaust their
administrative remedies); and Barnicoat v. Commissioner of Dept. of
Labor and Indus. (1982), 201 Mont. 221, 653 P.2d 498 (plaintiff's
failure to utilize agency rehearing and appeal process precluded
him from requesting judicial review in district court). Nothing in
the petition indicates that Brand has exhausted all of his
administrative remedies. Brand failed to include any facts in his
petition to establish jurisdiction. Therefore, we hold that the
District Court did not err in dismissing the petition for lack of
jurisdiction over the matter.
Nor did the District Court err in dismissing Brand's document
entitled "Writ of Civil Habeas Corpus" as an incomprehensible and
unauthorized pleading. Brand simply has no authority to issue a
5
writ commanding a district court judge or anyone else to appear.
Affirmed.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
We concur:
6
July 15, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Hampton J. Brand
c/o Route 2, Box 2184
Lewistown, MT 59457
David Woodgerd
Chief Legal Counsel
Department of Revenue
Mitchell Bldg.
Helena, MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA