No. 91-043 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

SARAH ELIZABETH GILPIN and GARY GILPIN, d/b/a BETTY

## 'S DAY CARE, Plaintiffs and Appellants,
-vSTATE OF MONTANA; DEPARTMENT OF FAMILY SERVICES OF THE STATE OF MONTANA; 

### HANK HUDSON, Acting Director; PAT BERGSTROM, .i~ 

### IN!

## r IF191 community Social Worker Supervisor; LORRI CLARK, Community Social Worker 11; MARSHA BRUNETT, Community Social Worker 

# L"l3mitk FL~~~~~~~~~EMECOURT suoervisor: LINDA WALKER. Reaional ;;TI\TE OF MONTANA L--~~~ -~ - 2~ 

### - Administrator; and JANE DOE, Social Worker, Defendants and Respondents.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD: For Appellant: Barbara 

### E. Bell; Bell & Marra; Great Falls,Montana For Respondent: Ann Gilkey; Department of Family Services; Helena, Montana

Submitted on Briefs: May 2, 1993 Filed:

Clerk

### Justice Fred J. 

### Weber delivered the Opinion of the Court.
The Gilpins initiated this suit for damages for temporary suspension of their day care license by the Department of Family Services. Following a hearing, the District Court for the Eighth Judicial District, Cascade County, dismissed the Gilpinsl claim. The Gilpins appeal. We affirm. The dispositive issue presented iswhether the District Court erred in dismissing the Gilpinsl claim on the grounds that the District Court lacked jurisdiction because the Gilpins had failed to exhaust the administrative remedies available to them. The Gilpins assert that under 5 

### 3-5-302(3), MCA, the District Court erred in concluding that it did not have jurisdiction. Section 3-5-302(3), MCA, provides: The district court has exclusive orisinal jurisdiction in all civil actions that might result in a judgment against the state for the payment of money. (Emphasis added.) 

### The Gilpins allege that because they have asked for monetary damages, 

### 5 3-5-302(3), MCA, allows them to avoid the Montana Administrative Procedure Act (MAPA),Title 2, Chapter 4,

### MCA. The underlying issue is whether their license was erroneously or maliciously suspended. This issue is clearly covered by MAPA. The action taken by the Department in suspending the Gilpins' license is considered to be an Itadverseaction" as defined in 11.2.201(c), ARM. (1) 

### "Adverse actionvmeans:



# . . . (d) an action 

### by the department denying, suspending, reducing,revoking or failing torenew the licenseor theregistration certificate of a provider. 11.2.203(1), ARM, provides: (1) 

### A claimant or provider who is aggrieved by an adverse action of the department shall be afforded the opportunity for a hearing as provided in this chapter. 11.2.210, ARM, requires that an administrative review, either in person orby telephone, be conducted "with thepurpose of resolving the case and avoiding an unnecessary hearing." Followingthe suspension of theday care license, Betty Gilpin requested a hearing regarding the Department's suspension of her day care license. Thehearing examiner in the Department of Family Services' State Office appointed Boyce Fowler, a Department employee who had previously not been involved with the case, to conduct an administrative review of the grievance pursuant to 11.2.210, ARM. Fowler held a telephone conference with Betty Gilpin and discussed the scheduled administrative review. They concluded that since her license had been reinstated, an administrative review would not be helpful toward resolving the issue of suspension. Ms. Gilpin stated that she still wanted a hearing regardingthe suspension. Mr. Fowler senther a formwhich summarized the result of the administrative review and contained
a request for a hearing. This form was never signed by the Gilpins, nor was it returned to the Department. Consequently,
a hearing was not scheduled nor held. In lieu of proceeding with
a hearing, the Gilpins filed the present claim in District Court. Section 2-4-702(l), MCA, provides that a person who has I1exhaustedall administrative remedies available within the aaencv

### and who is aggrieved by a final decision in a contested case is entitled to judicial review 

## . 

# . 

# . There has not: been a final decision by the agency in this case regarding whether the suspension of the Gilpins' license was proper. In addition, the Gilpins have not made a showing, pursuant to § 2-4-701, 

### MCA, that
a review of a final agency decision by a hearings examiner would not provide an adequate remedy to their grievance which would justify an immediate review of the agency's action by the District Court. We hold that the DistrictCourt did not err in dismissing the Gilpinsl claim on the grounds the District Court lacked jurisdiction because the Gilpins had failed to exhaust the administrative remedies available to them. Affirmed.


# 1 Chief JusticeJune 11,

### 1991 

### CERTIFICATEOF

### SERVICE Iherebycertifythat thefollowingorderwas sentby United Statesmail,

### prepaid, tothe foIlowingnamed:


### Barbara

### E.Bell Bell &

### Marra Ste.

### 201, 

### 9Third St.

### No. GreatFalls,

### MT 594Ql Ann Gilkey,Legal Counsel 

### Dept.of

### Family Services P.O. Box 8005 

### Helena,

### MT 59604 

### ED

### SMITH CLERKOFTHESUPREME

### COURT 

### STATEOF

### MONTmA