No. 96-014 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

HILANDS GOLF CLUB, 

Petitioner and Appellant, 

v. 

JOAN ASHMORE a/k/a Joan Zirko, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark D. Parker; Parker Law Firm, Billings, 

Montana 

James H. Goetz; Goetz, Madden & Dunn, 

Bozeman, Montana 

For Respondent: 

Virginia A. Bryan; Wright, Tolliver & Guthals, 

Billings, Montana 

Filed: 

Submitted on Briefs: May 16, 1996 

Decided: July 23, 1996 
Justice W. William Leaphart delivered the Opinion of the Court. 

Appellant, Hilands Golf Club (Hilands), appeals from the 

Yellowstone County, Thirteenth Judicial District Court's Order 

dismissing Hilands' Petition for Judicial Review with prejudice. 

We reverse. 

Hilands raises three issues on appeal relating to whether the 

failure to serve a Rule 4, M.R.Civ.P., summons on respondent, Joan 

Ashmore (Ashmore) and the Montana Human Rights Commission 

(Commission) was obviated by their voluntary appearances in the 

District Court proceeding. We determine that Hilands' issue number 

four is dispositive; that is, whether service pursuant to Rule 5, 

M.R.Civ.P., rather than service pursuant to Rule 4, M.R.Civ.P., 

upon parties and non-party agencies to an administrative appeal to 

district court is sufficient? Consequently, we restate the 

dispositive issue as follows: 

Whether, when petitioning for judicial review of an 

administrative decision, the Montana Administrative 

Procedure Act requires service on agencies and parties 

pursuant to the provisions of Rule 4, M.R.Civ.P., as we 

held in Fife v. Martin (1993), 261 Mont. 471, 863 P.2d 

403, or pursuant to the provisions of Rule 5, M.R.Civ.P.? 

BACKGROUND 

In 1991, Ashmore brought a claim before the Commission 

alleging that Hilands had discriminated, based on gender, in its 

public accommodations contrary to § 49-2-304, MCA. A Commission 

investigator investigated Ashmore's complaints and found no 

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probable cause to believe that Hilands had violated § 49-2-304, 

MCA. Ashmore appealed this determination of no probable cause and 

the Commission held a contested case hearing on the matter. 

Following the hearing, the Commission's final order determined that 

Hilands had discriminated in its membership and other policies in 

violation of the Human Rights Act, §§ 49-l-101 through 49-4-511, 

MCA. The Commission awarded Ashmore damages and ordered broad 

relief to address Hilands' discriminatory practices. 

Pursuant to 5 2-4-702, MCA, Hilands filed a Petition for 

Judicial Review of the Commission's holding. Hilands, by mail, 

served copies of the petition for review on Ashmore's attorney and 

the attorney for the Commission, pursuant to Rule 5(b), M.R.Civ.P. 

However, Hilands did not have a summons issued or served on either 

entity. 

On July 19, 1994, Ashmore moved to substitute the District 

Court judge. Numerous motions for substitution of judge followed. 

Ashmore, Hilands, the Commission, and the presiding judge held 

conferences to determine which outside judge would be called into 

the case. In April, 1995, they ultimately decided on District 

Court Judge C. B. McNeil. 

In a scheduling conference held May, 1995, counsel for 

Ashmore, Hilands and the Commission agreed upon a briefing 

schedule. The Commission had participated throughout the District 

Court proceedings by joining in the conferences to select a judge, 

joining in the scheduling conference, filing notices of appearance, 

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and filing motions. However, Hilands consistently maintained that 

the Commission was not a party to this action because it had not 

been a party to the administrative proceedings below. The 

Commission concedes that it was not a party to the administrative 

proceedings before the Commission's hearing examiner. 

At the May, 1995, scheduling conference in District Court, 

Hilands argued that the Commission was not a party to the action 

and that, should it wish to participate as a party, it should seek 

to intervene pursuant to Rule 24, M.R.Civ.P. Subsequently, the 

Commission moved to intervene in the matter and the District Court 

denied the motion, holding that the Commission was not properly a 

party. See Young v. City of Great Falls (1981), 194 Mont. 513, 

515-16, 632 P.2d 1111, 1113. 

In August, 1995, Hilands filed its brief on the merits in 

District Court. Ashmore's counsel obtained an extension until midOctober in which to file her answer brief. In early October, 

Ashmore filed a Rule 12(b), M.R.Civ.P., Motion to Dismiss. Ashmore 

based her Motion to Dismiss on Fife v. Martin (1993), 261 Mont. 

471, 863 P.2d 403, arguing that service of process via summons, 

pursuant to Rule 4D, M.R.Civ.P., was necessary to establish 

jurisdiction in the District Court. 

The District Court granted Ashmore's motion and dismissed the 

petition with prejudice. The court determined that under § 2-4- 

702(2) (a), MCA, copies of the petition for judicial review must be 

promptly served upon the agency from which review is sought, in 

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this case the Commission, in accordance with Rule 4D(2) (h), 

M.R.Civ.P. In other words, the court concluded that Hilands had 

failed to serve process upon the Commission, under Rule 4D(2) (h), 

M.R.Civ.P., by delivering a copy of the summons and petition to the 

Attorney General. The court relied on Fife -, 863 P.2d 403, for the 

proposition that the procedures proscribed under § 2-4-702, MCA, 

comprise "a jurisdictional threshold which must be met in order to 

vest authority in a district court.1' 

Based on its interpretation of Fife, the District Court 

concluded that, because the Commission had not been served via the 

Attorney General pursuant to Rule 4D(2) (h), M.R.Civ.P., the court 

did not have jurisdiction over this matter. Consequently, because 

it was too late for Hilands to obtain prompt service on the 

Commission and because Hilands had failed to comply with 

jurisdictional requirements, the court dismissed Hilands' Petition 

for Review with prejudice. Given its conclusion that it had no 

jurisdiction to proceed, the court decided it was unnecessary to 

address whether or not it had obtained jurisdiction pursuant to 

Rule 4B(2), M.R.Civ.P., over Ashmore by virtue of her voluntary 

appearances or whether the Commission had voluntarily appeared 

through its Motion to Intervene. 

STANDARD OF REVIEW 

Ashmore based her motion to dismiss on lack of jurisdiction, 

Rule 12(b) (1) and (21, M.R.Civ.P. Motions to dismiss are construed 

in a light most favorable to the non-moving party, in this case 

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Hilands, and should not be granted unless it appears beyond doubt 

that Hilands can prove no set of facts ,in support of its claim 

which would entitle it to relief. See Lockwood v. W.R. Grace & Co. 

(1995) I 272 Mont. 202, 207, 900 P.2d 314, 317; Boehm v. Nelson 

(1987), 229 Mont. 452, 453-54, 747 P.2d 213, 214. In considering 

the motion, the complaint is construed in the light most favorable 

to Hilands and all allegations of fact contained therein are taken 

as true. & Lockwood, 900 P.2d at 317; Boehm, 747 P.2d at 214. 

The District Court's determination that it did not have 

jurisdiction over this case is a conclusion of law. Pike v. 

Burlington N. R.R. Co. (1995), 273 Mont. 390, 392-93, 903 P.2d 

1352, 1353. We review a district court's conclusions of law to 

determine whether the court's interpretation of the law is correct. 

Lockwood, 900 P.2d at 317. 

DISCUSSION 

As discussed earlier, and because in this case we overrule 

Fife -I 863 P.2d 403, we restate the dispositive issue as follows: 

Whether, when petitioning for judicial review of an 

administrative decision, the Montana Administrative 

Procedure Act requires service on agencies and parties 

pursuant to the provisions of Rule 4, M.R.Civ.P., as we 

held in Fife, 863 P.2d 403, or pursuant to the provisions 

of Rule 5, M.R.Civ.P.? 

The District Court granted Ashmore's Rule 12(b) Motion to 

Dismiss for lack of jurisdiction. The court stated: "Service of 

process upon the Human Rights Commission must be made as required 

by Rule 4D(2)(h), M.R.Civ.P., by delivering a copy of the summons 

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and complaint (herein the petition) to the Attorney General and to 

any other party which may be prescribed by statute." The court 

determined that, under Fife, the procedures to gain jurisdiction as 

prescribed by the Montana Administrative Procedure Act (MAPA), 

§§ 2-4-101 through 711, MCA, and Montana's Rules of Civil 

Procedure, comprise a jurisdictional threshold which must be met in 

order to vest authority in a district court. -, Fife 863 P.2d at 

407. Having concluded that it had no jurisdiction over the 

Commission, the court declined to address the issue of whether it 

acquired jurisdiction over Ashmore pursuant to Rule 4B(2), 

M.R.Civ.P., due to her voluntary appearances. 

In her Rule 12(b) Motion to Dismiss, Ashmore argued that, 

because Hilands failed to properly and promptly serve a copy of the 

summons and petition upon Ashmore, the Commission, and the Attorney 

General, under 5 2-4-702, .MCA, and Rule 4D, M.R.Civ.P., the 

District Court lacked personal and subject matter jurisdiction to 

hear this case. On appeal, Hilands frames the issue as solely a 

question of personal jurisdiction. Ashmore now counters that 

Hilands' failure to serve a copy of the summons or petition on 

Ashmore and the Commission via the Attorney General deprives the 

court of subject matter jurisdiction. There is no merit to 

Ashmore's contention that failure to serve process pursuant to Rule 

4, M.R.Civ.P., deprives the court of subject matter jurisdiction. 

Rule 4, M.R.Civ.P., establishes the procedure for acquiring 

personal jurisdiction over persons or entities subject to the 
court’s jurisdiction. Subject matter jurisdiction exists 

independently of personal jurisdiction over the parties. 

Article VII, f3 4(2) of the Montana Constitution provides that 

the legislature may provide for direct review by the district court 

of decisions of administrative agencies. MAPA, Title 2 Chapter 4 

at Part 7, provides the procedures for judicial review of 

administrative contested cases. MAPA provides that: "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 under this chapter." Section 2-4- 

702, MCA. Thus, the district courts have subject matter 

jurisdiction over administrative appeals. 

The Human Rights Act sets out the procedures for contested 

cases. Sections 49-2-501 through -510, MCA. Contested case 

hearings and subsequent proceedings under the Human Rights Act must 

be held in accordance with MAPA. Section 49-2-505, MCA. MAPA sets 

forth the procedure for initiating judicial review of contested 

cases at 5 2-4-702, MCA: 

(2)(a) . . proceedings for review must 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 is rendered. . . . Copies of the petition must 

be promptly served upon the agency and all parties of 

record. 

Additionally, at 5 2-4-106, MCA, MAPA provides that: 

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 

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judicial review thereof shall be as prescribed for civil 

actions in the district courts. 

In other words, service under MAPA shall be as prescribed by the 

Montana Rules of Civil Procedure unless a statute expressly 

provides otherwise. MCI Telecommunications Corp. v. Department of 

Public Serv. Regulation (1993), 260 Mont. 175, 179, 858 P.2d 364, 

367. We treat administrative agency appeals to district courts in 

a manner similar to other proceedings. MCI, 858 P.2d at 367. 

Moreover, we encourage a liberal interpretation of procedural rules 

governing judicial review of an administrative decision, rather 

than taking an overly-technical approach, so as to best serve 

justice and allow the parties to have their day in court. m, 

632 P.2d at 1113. 

It is uncontested that Hilands timely filed a Petition for 

Judicial Review pursuant to 5 2-4-702, MCA. Hilands, by mail, 

served copies of the petition upon Ashmore's attorney and upon the 

Commission's attorney, pursuant to Rule S(b), M.R.Civ.P. It is 

also uncontested that Hilands did not have a summons issued or 

served on Ashmore, the Commission, or the Attorney General, 

pursuant to Rules 4C and 4D, M.R.Civ.P. 

Both Ashmore and the District Court rely on Fife for the 

proposition that service of process, as set forth in Rule 4D(2) (h), 

M.R.Civ.P., upon the Commission and the Attorney General must be 

accomplished in order to vest jurisdiction in a district court. 

863 P.2d 403. In -I Fife Patricia Lee Martin (Martin) assigned her 

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rights to collect delinquent, future and present child support 

obligations owed her by David Fife (Fife), to the Department of 

Social and Rehabilitation Services, Child Support Enforcement 

Division (CSED). CSED sought enforcement of its assigned rights. 

CSED sent Fife a notice of parental responsibility and set a date 

for an administrative hearing on the matter. Fife moved the agency 

to dismiss the action on constitutional grounds. After various 

administrative proceedings, Fife petitioned the district court for 

judicial review naming Martin as the sole respondent. Fife mailed 

copies of the petition to Martin and CSED. Fife, 863 P.2d at 405. 

On appeal, this Court determined that because Martin had 

assigned her rights to CSED, CSED was the real party in interest 

and the proper respondent to Fife's petition for judicial review. 

Fife had mailed copies of the petition for judicial review to CSED 

and Martin, but had not properly named CSED as the respondent in 

his petition, nor served CSED pursuant to Rule 4D, M.R.Civ.P. CSED 

did not answer the mailed petition for judicial review and CSED did 

not appear in court. When Fife subsequently obtained and mailed a 

summons to CSED and Martin, CSED refused to acknowledge service of 

the summons and complaint as allowed by Rule 4D, M.R.Civ.P. -.....-, Fife 

863 P.2d at 405. 

We held, in -I Fife that MAPA, § 2-4-702, MCA, requires that 

service upon a party to an administrative appeal be accomplished 

through a Rule 4D, M.R.Civ.P., service of summons. -, Fife 863 P.2d 

at 407. We now overrule this holding in Fife and hold instead 

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that, for the purposes of an administrative appeal to the district 

court, service upon the parties and the agency, whether the agency 

itself is a party or not, pursuant to Rule 5, M.R.Civ.P., is 

sufficient. 

Under the Rules of Civil Procedure, service can be 

accomplished under either of two rules, Rule 4 or Rule 5, 

M.R.Civ.P. Under Rule 4, M.R.Civ.P., jurisdiction is acquired 

through the service of process. Process, under Rules 4C and 4D, 

M.R.Civ.P., requires the issuance and service of a summons upon a 

party. Once served with a summons, the party so served is required 

to appear and defend. Rule 4C(2), M.R.Civ.P. If the party does 

not appear and defend, Rule 4C(2), M.R.Civ.P., provides that 

judgment by default will be rendered against him. 

However, a petition for judicial review to the district court 

is analogous to an appeal, as recognized by this Court, in MCI, 858 

P.2d 364. As a prerequisite to judicial review, the parties must 

have "exhausted all administrative remedies available within the 

agency." Section 2-4-702(l) (a), MCA. By the time the matter is 

before the district court for judicial review, the parties have 

already been defined through their appearance at, and participation 

in, the administrative proceedings. There is no more need to 

acquire Rule 4, M.R.Civ.P., personal jurisdiction over these 

parties than there would be in an appeal from district court to the 

Supreme Court. 

That leaves Rule 5(b), M.R.Civ.P., as the only other method 

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within the Rules of Civil Procedure for serving parties to an 

administrative appeal. As between the only two options for 

service, Rule 4, M.R.Civ.P., and Rule 5, M.R.Civ.P., Rule 5, 

M.R.Civ.P., is the more logical choice for effecting service. Rule 

5, M.R.Civ.P., is designed to give notice via mailing or delivery 

of papers and pleadings. Unlike Rule 4, M.R.Civ.P., it is not 

designed to acquire jurisdiction over persons, nor does it require 

the service of a summons with the attendant requirement that the 

served party appear and defend or face a default judgment. While 

we recognize that Rule 5, M.R.Civ.P., speaks in terms of serving 

"parties," we hold that, for the purposes of service under MAPA, it 

is sufficient to mail copies of the Petition for Judicial Review 

upon the parties and the agency, whether the agency is itself a 

party or not. Accordingly, we hold that Rule 5(b), M.R.Civ.P., 

service by mail is all that is necessary to satisfy the service 

requirement of 5 2-4-702, MCA. We reverse the District Court's 

conclusion that failure to serve summons and a copy of the petition 

upon the Commission through the Attorney General deprived the court 

of jurisdiction to proceed. 

Finally, we note that the District Court based its dismissal 

on its conclusion that it had no jurisdiction over the Commission. 

The court did not address its jurisdiction over Ashmore. The 

question of whether Ashmore's voluntary appearances subjected her 

to the jurisdiction of the District Court pursuant to Rule 4B(2), 

M.R.Civ.P., is irrelevant given our holding that service pursuant 

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to Rule 5, M.R.Civ.P., is sufficient under 55 2-4-106 and 2-4- 

702(2)(a), MCA. Hilands mailed the Petition for Judicial Review to 

Ashmore pursuant to Rule 5(b), M.R.Civ.P. This mailing was 

sufficient to vest the District Court with jurisdiction over 

Ashmore as well as the Commission. 

The District Court erred in dismissing Hilands' Petition for 

Judicial Review for lack of jurisdiction. Hilands' service of the 

petition on Ashmore and the Commission, a non-party, according to 

Rule S(b), M.R.Civ.P., was sufficient to satisfy the requirements 

of § 2-4-702, MCA. 

We reverse. 

We concur: 

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