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 the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

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 affirmed a Board of Labor Appealst determination that 

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 began working for the Radisson Northern Hotel 

as an account executive in the marketing department in August 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 

Schneeman and her fellow employees and supervisors. Her supervisor 

2 
eventually 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 supervisor did 

not request that she leave or discharge her; 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 finding that 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 allow discovery 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 the petitioner to due process 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; 

. . . 

conceding that these issues were not raised in any earlier stage of 

the process, Schneeman argues that she could not have raised them, 

especially the due process claim, at the agency level. She argues 

that neither the appeals referee nor the Board had jurisdiction to 

pass on constitutional questions or whether their actions satisfied 

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 Billings v. State Bd. of Labor Appeals (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 Labor Appeals. In detailing 

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. 
Department of Labor and Indus. (1988), 231 Mont. 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 review of an unemployment 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 on the judicial review provisions of the 

unemployment insurance laws. Slavter, 676 P.2d at 222. We did 

not, however, go so far as 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, 

Schneeman was not entitled to discovery or an evidentiary hearing 

for other reasons. We first address Schneeman's claim that the 

requirements of 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 

decide disputed claims, the department shall appoint such 

impartial salaried appeals referees as are necessary for 

the proper administration of this chapter in accordance 

with 39-51-304. No person shall participate on behalf of 

the department in any case in which he is an interested 
party. The department may designate alternates to serve 

in the absence or disqualification of an appeals referee. 

She contends that the referee who heard her claim was not impartial 

and that she was entitled to pursue discovery and present evidence 

on that issue during her judicial review proceeding in the District 

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, 

disqualification by law, or other disqualification of a 

hearing examiner or agency member, the agency shall 

determine the matter as a part of the record 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 the belief that 

the hearing examiner should be disqualified and must be 

filed not less than 10 days before the original date set 

for the hearing. 

This procedure provides a claimant with an opportunity to raise and 

support the issue of claimed bias of an appeals referee; it also 

provides a means by which the issue can be determined timely and on 
the 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 Schneemanls claim that the Board was not 

impartial and, as a result, her right to due process was violated. 

The requirements of due process apply to administrative agencies. 

See Montana Power Co. v. Public Serv. Comm'n (1983) , 206 Mont. 359, 

671 P.2d 604. A judicial body, not an administrative body, 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 constitutionality of its own actions, Hays v. State 

Dept. of Business Reg. (Fla. Dist. Ct. ~pp. 1982), 418 So.2d 331, 

332. However, we have stated that "where the statutes provide for 

judicial review of a particular order made or agreed upon by a 

prejudiced commissioner there is no denial of due process." 

Cascade County Consumers Assoc. 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 conclusion that Schneeman has not been denied 

due process. 

We also note in this regard that Schneeman does not challenge 

the District Court's determination that there was substantial 

credible evidence to support the determination of the Board. Her 
claims 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 Schneeman an opportunity to argue 

the merits of her petition for judicial review? 

At the time she filed her petition, schneeman did not file a 

brief on the merits of the issues contained therein. Nor did she 

file a brief in support of her claim that the Boardfs decision was 

not supported by substantial credible evidence at any other time 

during the proceedings. Her only brief related to her 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 court determined, after an examination of the record, 

that substantial credible evidence existed to support the Board's 

determination. Schneeman claims that the District 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 she had the opportunity to brief the other issues. 

We conclude that Schneemanls claim fails for two reasons. 
First, she had 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 file her brief in support of her petition by 

April 26, 1991, with a response by the State due by May 17, 1991, 

and her reply by May 28, 1991. Schneeman did not file her brief as 

ordered, but now asserts that failure was due to her attorney's 

presence at the legislative session. However, she did not request 

a modification of the briefing schedule at any time although she 

had almost three months notice of the briefing 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 the 
court'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 the original schedule. This contention is without merit. 

The amended petition only identified her employer as a party. Her 

employer was not served with the amended petition nor did it appear 

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 

ultimately wanted the District Court to determine that substantial 

credible evidence did not exist to support the Board's 

determination that she was 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 evidentiary hearing 

before she submitted argument on this ultimate issue. However, her 

argument to the District Court on the issue of lack of record 

support for the Board's determination did not hinge 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