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~~~~~~~~~EMECOUR

suoervisor: L--~~~ LINDA WALKER. -~ Reaional ;;TI\TE OF MONTANA - 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 is whether 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 Itadverse action" as defined in 

11.2.201(c), ARM. 

(1) "Adverse actionv means: . . . 

(d) an action by the department denying, suspending, 

reducing, revoking or failing to renew the license or the 
registration 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 or by telephone, be conducted "with the purpose of resolving 

the case and avoiding an unnecessary hearing." 

Following the suspension of the day care license, Betty Gilpin 

requested a hearing regarding the Department's suspension of her 

day care license. The hearing 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 regarding the suspension. Mr. Fowler sent her a form which 

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 

I1exhausted all 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 District Court 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 Justice 
June 11, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

foIlowing named: 

Barbara E. Bell 

Bell & Marra 

Ste. 201, 9 Third St. No. 

Great Falls, MT 594Ql 

Ann Gilkey, Legal Counsel 

Dept. of Family Services 

P.O. Box 8005 

Helena, MT 59604 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTmA