NO. 93-137

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

ROBERT MCLEAN, JR., on behalf

of ROBERT WAYNE MCLEAN,

-vCOLSTRIP PUBLIC SCHOOLS, SCHOOL

DISTRICT #19, ROSEBUD COUNTY,

MONTANA, COLSTRIF, MONTANA,

Plaintiff and Appellant,

Defendant and Respondent.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and for the County of Rosebud,

The Honorable Joe L. Hegel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Marvin W. Quinlan, Jr., Forsyth, Montana

For Respondent:

Gary L. Day, Lucas h Monaghan, Miles City, Montana

Filed:

Submitted on Briefs: August 19, 1993

Decided: August 31, 1993

Clerk
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from an Order of the Sixteenth Judicial

District Court, Rosebud County, Montana, dismissing the plaintiff's

complaint. We affirm.

The issue is whether the District Court properly dismissed the

plaintiff's complaint due to his failure to exhaust all

administrative remedies prior to filing an action in the District

Court.

On November 9, 1992, Robert McLean, Jr. (McLean) wrote a

letter to Carol Wicker, the principal of Colstrip High School.

McLean wanted to know if his son, Robert Wayne McLean, was eligible

to play basketball in the 1992-93 season. Ms. Wicker wrote McLean

on November 13, 1993, and indicated that McLean's son was

academically ineligible. On November 23, 1992, McLean and his son

attended a Colstrip School Board meeting, wherein a hearing was

held regarding McLean's son's eligibility to play basketball.

After this hearing, the School Hoard upheld Ms. Wicker's

determination that McLean's son was academically ineligible to play

basketball. McLean did not file an appeal of this decision.

Rather, on November 25, 1992, McLean, on behalf of his son, filed

a complaint in the Rosebud County District Court.

The complaint requested that a temporary restraining order be

issued requiring the Colstrip public Schools to allow McLean's son

to try out for basketball at Colstrip High School. McLean also

requested that a hearing be set as quickly as possible to determine

whether a permanent injunction should issue. The District Court

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declined to issue a temporary restraining order, but held a hearing

on McLean's request for injunctive relief on December 28, 1992. On

December 29, 1992, the District Court filed its Findings of Fact,

Conclusions of Law, and Order. The Order denied McLean's request

for injunctive relief, finding that he had failed to exhaust his

administrative remedies, and dismissed his complaint. From this

dismissal, McLean appeals.

Our standard of review in this case is whether the District

Court abused its discretion in dismissing McLean's complaint.

Frame v. Frame (1987), 227 Mont. 439, 444, 740 P.2d 655, 659.

Section 20-3-210, MCA, states:

(1) Except as provided under 20-3-211, the county

superintendent shall hear and decide all matters of

controversy arising in his county as a result of

decisions of the trustees of the district in the county.

Except as provided in subsection (2), exhaustion of

administrative remedies under this chapter is required

prior to filing an action in district court concerning a

decision of the trustees. . . .

"Trustees", as discussed in § 20-3-210, MCA, is defined as "the

governing board of a district." Section 20-l-101(21), MCA. Here,

the governing board of the Colstrip School District is the Colstrip

School Board. Therefore, unless the exceptions under 9 20-3-210,

(2), MCA, are met, any decision of the School Board must first be

appealed to the county superintendent prior to proceeding to

district court. See : Throssell v. Bd. of Trustees (1988), 232

Mont. 497, 757 P.2d 348; Canyon Creek Educ. Assoc. v. Bd. of

Trustees (1990), 241 Mont. 73, 785 P.2d 201.

Exhaustion of administrative remedies is not required if (1)

a state agency has been granted primary jurisdiction over the

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matter; (2) the matter is governed by a specific statute: or (3)

the board of trustees has acted without jurisdiction or in excess

of its jurisdiction. Section 20-3-210(2), MCA. Here, none of

these exceptions apply: no state agency has been granted primary

jurisdiction, the matter is not governed by a specific statute, and

the Colstrip School Board was acting well within its jurisdiction

when it upheld Ms. Wickerrs determination that McLean's son was

academically ineligible to play basketball for the 1992-93 season.

Throssell and Canyon Creek are directly on point and control

in this case. I1 In order for the District Court to have

jurisdiction, it is necessary for the litigant to exhaust [his]

administrative remedies." Canvon Creek, 785 P.2d at 203.

Therefore, because McLean's cause of action did not fall under the

three exceptions of § 20-3-210(2), MCA, he must present his claim

t o the county superintendent, and completely exhaust his

administrative remedies before resorting to the District Court.

The decision of the District Court is 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 this Court and by a report its result to the

West Publishing Company.