BRAND v DEPARTMENT OF REVENUE
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NO. 93-131 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 HAMPTON 3. BRAND, Plaintiff and Appellant, , STATE OF MONTANA, DEPARTMENT OF REVENUE, UNEMPLOYMENT INSURANCE DIVISION, WORKERS' COMPENSATION DIVISION, FERGUS COUNTY "OFFICERS," i& ::. ~' 1 i i".Y #'T' .,. _ ,.~ _ ,_, ,~ ~ :; ."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: Decided: Filed: June 10, 1993 July 15, 1993 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, (Brand) petition :for dismissing appellant Hampton J. Brand's 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." incomprehensible, For the most part this document is 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 requirements, Brand could refile if all procedural 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 ยง 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 2-4704(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 defective. action. This Therefore, defect, the petition is procedurally especially the failure to establish jurisdiction, leads to the final reason the 4 District Court properly dismissed the Under peti.tion. 5 2-4-702(1)(a), administrative aggrieved by judicial remedies a final review . . remedies Department of .'I where we said procedures :for Court vested with administrative Labor and failure him the from the and (1982), 201 indicates administrative remedies. petition to District Court jurisdiction Nor entitled did over did the "Writ unauthorized of not the review v. in failed jurisdiction. err in 406, P.2d is mandatory followed Gilpin court v. it lacked exhaust their of 498 exhausted we of precluded Nothing of facts hold petition in Dept. all any err (plaintiff's court). Therefore, State that process include the not to P.2d is did ground the 777 v. claim] district dismissing Hills [initial appeal to to the also 653 has is administrative Commissioner and who with failed 221, Brand Brand for in his in his that the lack of matter. District Civil pleading. Mont. that establish had rehearing judicial petition the all entitled is 404, been See on Barnicoat agency requesting Mont. (district plaintiffs remedies); utilize 1265 claim plaintiffs' Indus. to P.2d and all "[clompliance that jurisdiction." 37, 812 because 238 exhausted Cottonwood have District jurisdiction See procedures the the exhaust insurance after dismissing (1989), case unemployment only Mont. contested to has agency an because (1991) I 249 a who the review. Indus. review within in judicial and 1302, person Failure Labor 1301, A available decision . precludes MCA, Court Habeas Brand err in dismissing Corpus" as simply 5 has an no Brand's document incomprehensible authority to issue and a 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
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