NO. 91-603 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

BARBARA J. SCHNEEMAN, Petitioner and Appellant,

THE STATE OF MONTANA, DEPARTMENT OF LABOR AND INDUSTRY, and NORTHERN PLAZA LIMITED PARTNERSHIP, a Colorado limited Partnership, d/b/a THE RADISSON NORTHERN HOTEL, Respondent and Respondent.

APPEAL FROM: District Court of theThirteenthJudicial District, In and for the County of Yellowstone, The Honorable G. Todd Baugh, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Timothy J. Whalen; Whalen & Whalen, Billings, Montana For Respondent: Daniel 

### B. McGregor, Department of Labor and Industry,Helena, Montana

Filed: Submitted on Briefs: May 14, 1992 Decided: March 10, 1993

### Justice Karla 

### M. Gray delivered the Opinion of the 

### Court. Appellant Barbara 

### Schneeman (Schneeman) appeals from 

### a Memorandum Order of the Thirteenth Judicial District,Yellowstone County,which affirmeda Board ofLaborAppealstdeterminationthat she was ineligible for unemployment compensation benefits. We affirm. Schneeman raises the following procedural issues on appeal: Did 

### the District Court improperly deny Schneeman 

### an opportunity to 

### present the appeal of 

### her unemployment insurance claim: 1) 

### By refusing to allow her to engage in discovery and present evidence 

### in connection with hex constitutional and state law claim of entitlement to a 

### fair and impartial hearing and 

### decision 

### on her unemployment claim; and 2) By 

### ruling on her petition for 

### judicial review without giving her 

### an opportunity ta brief and 

### argue the merits of that 

### portion of her appeal? 

### Because 

### the issues raised by Schneeman 

### are 

### procedural 

### in nature, only a 

### short recitation of the underlying facts 

### is necessary. 

### Schneeman beganworking for the

### RadissonNorthernHotel



### as anaccount executive in themarketing department inAugust 1989. She 

### was eventually assigned responsibility 

### for the 

### state and 

### federal government accounts and the community association account. Rer initial performance evaluations indicated that 

### she was performing satisfactorily. However, problems developed between Schneemanandher fellow employeesand supervisors. Her supervisor 2eventually determined that she should undergo a "retraining" process during which her actions would be closely monitored. Before the process began, Schneeman terminated her employment effective June 6, 1990, in response to what she considered a tlconstructive termination of [her] employment." Her supervisordid not request that she leave or dischargeher; her position remained available to her at the time she terminated her employment. Schneeman filed a Claimant's Discharge Statement with the local office 

### of the Benefits Bureau of the Unemployment Insurance Division of the Department of Labor and Industry. The deputy awarded Schneeman benefits after findingthat her "separation [from employment] was with good cause attributable to the empl~yrnent.~' Her employer appealed to the appeals referee, who reversed the deputy. On appeal, the Board of Labor Appeals (Board) adopted as its own the findings and decision of the referee. The District Court subsequently affirmed the Board's decision.

Did the District Court err in refusing to allowdiscovery and an evidentiary hearing? Before the District Court, Schneeman sought to conduct discovery and present evidence in support of the following claims which she alleged in her petition for judicial review:

8. [Tlhe actions of the Board violated the constitutional rights of thepetitionertodueprocess of law: 9. The history of decisions of the Appeals Referee in this case support a violation of Section 39-51-305,MCA

### providing for the appointment of an impartial Appeals Referee for the necessary and proper administration of the unemployment insurance laws;



# . . . concedingthat these issueswere not raised in any earlier stage of theprocess, Schneeman argues that she could not have raised them, especially the dueprocess claim, at the agency level. She argues that neither the appeals referee nor the Board had jurisdiction to pass onconstitutional questions or whether their actionssatisfied the requirements of 5 

### 39-51-305, MCA. She relies on 

### 9 2-4-703, MCA, a provision of the Montana Administrative Procedure Act

(MAPA),which allows for the presentation of additional evidence during judicial review of a contested case if the evidence is material and there is a good reason for failure to present it in the proceedings before the agency. In City of Billingsv. StateBd. of LaborAppeals (1983), 204 Mont. 38, 

### 663 P.2d 1167, this Court held that the provisions of MAPA do not apply to judicial review of a claim for unemployment insurance benefits before the Board of LaborAppeals. Indetailing the reasons MAPA does not apply, we noted that by its own terms MAPA is inapplicable where, as with the unemployment insurance laws, a complete procedure exists for handling claims,including a procedure for judicial review. Section 2-4-107, MCA. We have followed and relied on City of Billinqs in numerous cases. See Decker Coal Co. 

### v. Employment Sec. Div. (1983), 205 Mont. 1, 667 P.2d 923;Gypsy Highview Gathering System, Inc. v. Stokes (1986), 221 Mont. 11, 716 P.2d 620; Zimmer-Jackson Assoc., Inc. 

### v.Departmentof Laborand Indus. (1988), 231Mont. 357,752 P.2d 1095 (citing Gygsv Hiqhview)

# . See also Ward v. Johnson (1990), 242 Mont. 225, 790 P.2d 483 (5 39-51-241O(5), MCA, limits scope of judicial review of Board 

### of Labor Appeals decision). Schneeman relies on Slayter v. Employment Sec. Div. (19841, 208 Mont. 166, 676 P.2d 220, to argue that MAPA does apply to judicial reviewof anunemployment insurance claim,and that she is entitled to present evidence before the District Court pursuant to 

### 5 2-4-703, MCA. It is 

### true that 

### we departed 

### from City of Billinqs in Slavter in stating that the judicial review section of MAPA, 5 2-4-704,MCA, Itelaboratest1 onthe judicialreviewprovisions of the unemployment insurance laws. Slavter, 676 P.2d at 222. We did 

### not,however, go so faras to extend any other provisions of MAPA, including 5 2-4-703, MCA, to judicial review of 

### an unemployment insurance claim. Therefore, we do not find Schneeman's argument persuasive. Furthermore we expressly overrule that portion of Slayter that states that MAPA elaborates on the standard of judicial review of a claim for unemployment insurance benefits. Moreover, notwithstanding the fact that MAPA does not apply, Schneemanwas not entitled to discovery or an evidentiary hearing 

### for other reasons. We first address Schneeman's claim that the requirementsof 3 39-51-305,MCA, were not satisfied. Section 39- 51-305,MCA, entitles Schneeman to an impartial appeals referee: Department to appoint appeals 

### referees. To hear and decidedisputed claims,thedepartment shallappointsuch impartial salaried appeals refereesas are

### necessary 

### for the proper administration of this chapter in accordance with 39-51-304. No person shallparticipateonbehalf 

### of the department in any case in which he is 

### an interestedparty. The departmentmay designate alternates to serve intheabsence or disqualification of an appeals referee. Shecontendsthattherefereewhoheardher claimwas

### not impartial and that shewas entitled topursue discovery and present evidence

on that issueduring her judicial review proceeding in theDistrict Court. However, Montana law and the administrative rules promulgated by the Department of Labor and Industry provided Schneeman with the means of addressing her claim of bias long before she reached the district court level. Title 24, Chapter 11 of the Administrative Rules of Montana pertains to the Unemployment Insurance Division. More specifically, 24.11.319, ARM, sets forth a procedure for the disqualification of an appeals referee pursuant to 5 2-4-611,MCA. Section 2-4-611,MCA, provides in pertinent part: Hearing examiners

# - . . . disqualification of hearing examiners and agency members.

(4) On the filing by a party, hearing examiner, or agency member in good faith of a timely and sufficient affidavit of personal bias, lack of independence, disqualificationby law, or other disqualification of a hearing examiner or agency member, the agency shall determine thematter as apart of therecord and decision in the case. The agency may disqualify the hearing examiner or agency member and request another hearing examiner pursuant to subsection (2) or assign another hearing examiner 

### from within the agency. The affidavit must state the facts and the reasons for thebelief that the hearing examiner should be disqualified and must be filed not less than 10 days before the original date set for the hearing. Thisprocedure provides a claimant with an opportunityto raise and support the issue of claimed bias of an appeals referee; it also provides ameansby which the issuecanbe determined timely and onthe record. Schneeman failed to raise the issue of the referee's bias as required, and in the absence of a timely request for disqualification, the matter could not properly be raised or addressed in the District Court. In re Sorini (1986), 220 Mont. 459, 462, 717 P.2d 7, 9. We now address Schneemanlsclaim that the Board was not impartial and, as a result, her right to due process wasviolated. The requirements of due process apply to administrative agencies. SeeMontana PowerCo. v. Public Serv. Comm'n (1983)

### , 206Mont. 359, 671P.2d 604. A judicial body, not an administrativebody, is the proper forum to decide constitutional questions, Jarussi v. Board of Trustees (l983), 204 Mont. 131, 135-136, 664 P.2d 316, 318, especially the constitutionalityof its ownactions,Haysv. State Dept. of Business Reg. (Fla. Dist. Ct. ~pp. 1982), 418 So.2d 331, 332. However,we have stated that "where the statutesprovide for judicial review of a particular order made or agreed upon by a prejudiced commissioner there is no denial of due process." Cascade County ConsumersAssoc. v. Public Sen. Commln (1964), 144 Mont. 169, 191, 394 P.2d 856, 867, cert. denied, 380 U.S. 909

(1965). Thus, even assuming a lack of impartiality by members of the Board, the availability of judicial review of the Board's decision mandates our conclusionthatSchneemanhasnotbeen denied due process. We also note in this regard that Schneeman doesnot challenge the District Court's determination that there was substantial credible evidence to support the determination of the Board. Herclaims 

### of bias at 

### the agency level are irrelevant where the District Court independently determines there was substantial credible evidence to support the denial of benefits. See Cascade County Consumers Assoc. We hold that 

### the 

### District Court did 

### not 

### err in refusing Schneeman's request to conduct discovery and hold an evidentiary hearing. I1 Did the District Court deny Schneemanan opportunity to argue themerits of her petition for judicial review? At the time she filed her petition, schneeman did not file a brief on themerits of the issues contained therein. Nor did she filea brief in support of her claim that the Boardfsdecisionwas not supported by substantial credible evidence at any other time during theproceedings. Her only brief related toher request for discovery and 

### an evidentiary hearing. The District Court 

### s Memorandum Order determined all of the issues before it. In addition to denying her request for discovery and an evidentiary hearing, the courtdetermined,after an examination of the record, that substantial credible evidence existed to support 

### the Board's determination. Schneeman claims that theDistrict

### Court denied her the opportunity 

### to argue the merits of the various allegations contained in her petition because it ruled on those at the same time it ruled on her request for discovery and 

### an evidentiary hearing,before shehad theopportunity tobrief the other issues. 

### We conclude that Schneemanlsclaim fails for two reasons.First, shehad ample opportunity to address the issues she raised. Schneeman filed her petition for judicial review on November 30, 1990. On February 4, 1991, the court issued a briefing schedule requiring Schneeman to fileherbrief in supportof herpetition by April 26, 1991,with a response by the State due by May 17, 1991, and her replyby May 28, 1991. Schneeman did not fileher brief as ordered, but now asserts that failure was due to her attorney's presence at the legislative session. However, shedid not request a modification of the briefing schedule at any time although she had almostthreemonthsnotice of thebriefing deadlines. The State timely filed its brief in opposition to her petition pursuant to the court's briefing schedule. According to Schneeman, on June 3, 1991, over a month after her initial brief was due, the court's law clerk requested a brief

on the issues of discovery and an evidentiary hearing. That brief

was due by June 28, 1991,with the State's brief due ten to twenty days later. Schneeman argues that this constituted a change in the original briefing schedule. However, nothing in the record indicates that Schneeman requested, or that the court anticipated

or granted, a change in the original schedule. During the ten months between the time the District Court issued its original briefing schedule and the time it entered its Memorandum Order, Schneeman neither requested a modification or extension of the original briefing schedule nor requested oral argument as specifically provided for in the briefing schedule. She cannot now complain that her failure to brief or argue is thecourt's responsibility rather than her own. Schneeman also appears to argue that the fact that she filed

an amended petition after the court set the briefing schedule nullified theoriginal schedule. This contention iswithoutmerit. The amended petition only identifiedher employer as aparty. Her employerwas not servedwith the amendedpetition nordid itappear before the District Court. The amended answer contained nothing

new. Schneeman's claim that she was denied an opportunity to argue the merits of her petition also fails for another reason. She ultimatelywanted the District Court to determine that substantial credible evidence did not exist to support the Board's determination that shewas not entitled to unemployment benefits. Schneeman appears to argue to this Court that she was waiting on the District Court's ruling on her right to an evidentiaryhearing before she submitted argumentonthisultimate issue. However, her argument to the District Court on the issue of lack of record support fortheBoard's determinationdid nothinge on anything she might discover; that issue was to be decided on the record made before the agency. Therefore, she could have presented her argument on this issue without delay. In any event, the District Court examined the record and determined that it contained sufficient evidence to support the Board's decision. As noted above, Schneeman does not assert error in this regard. We hold that the District Court did not deny Schneeman an opportunity to argue the merits of her petition for judicial

### review. Affirmed.

We concur: d 

# WA chief '~ustice