NO. 93-131

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

HAMPTON 3. BRAND,

Plaintiff and Appellant,

STATE OF MONTANA, DEPARTMENT

,, i& ::. ~' 1

i

OF REVENUE, UNEMPLOYMENT INSURANCE

DIVISION, WORKERS' COMPENSATION i".Y

DIVISION, FERGUS COUNTY "OFFICERS,"

#'T' .,. _ _ ,_, ,.~

g%Es&;:~ '~,i;;

,~~~ :; ."P

<,;; ;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

Filed:

Submitted on Briefs: June 10, 1993

Decided: 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, 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