F. W. Woolworth Co. v. Employment Security Division

No. 80-182

I N THE SUP-ME COURT O F THE STATE O F MONTANA

1981

F. W. WOOLWORTH COMPANY, INC.,
a New Y o r k C o r p o r a t i o n ,

P e t i t i o n e r and A p p e l l a n t ,

EMPLOYMENT SECURITY D I V I S I O N O F THE
MONTANA STATE DEPARTMENT O F LABOR AND
INDUSTRY e t a l . ,
--
Respondents.

No. 80-183

J. C. PENNEY COMPANY, INC., a
Delaware Corporation,

P e t i t i o n e r and A p p e l l a n t ,
VS .
EMPLOYMENT SECURITY D I V I S I O N O F THE
MONTANA. STATE DEPARTMENT O F LABOR AND
INDUSTRY e t a l . ,

Respondents.

Appeal from: D i s t r i c t C o u r t of t h e T w e l f t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of H i l l .
H o n o r a b l e B . W. T h o m a s , Judge p r e s i d i n g .

C o u n s e l of R e c o r d :

For A p p e l l a n t s :

P o o r e , R o t h , R o b i s c h o n and R o b i n s o n , B u t t e , M o n t a n a
D o n a l d R o b e r t s o n argued and D o u g l a s A. B u x b a u m a r g u e d ,
B u t t e , Montana

For R e s p o n d e n t s :

R o b e r t J . C a m p b e l l argued, H e l e n a , M o n t a n a

For I n t e r v e n o r :

D. Patrick McKittrick argued, G r e a t Falls, Montana

Submitted: M a r c h 27, 1 9 8 1

Decided: May 6 , 1 9 8 1

Filed: MAY -6 1981
Mr. J u s t i c e Frank B. Morrison, J r . , d e l i v e r e d t h e Opinion of
t h e Court.

F.W. Woolworth Co., Inc., and J . C . Penney Company, I n c . ,

a p p e a l from a summary judgment of t h e D i s t r i c t C o u r t f o r t h e

Twelfth J u d i c i a l D i s t r i c t . The a p p e a l s o r i g i n a t e from c l a i m s

f i l e d J u l y 1 8 , 1976, by members of r e t a i l c l e r k s ' u n i o n ,

l o c a l no. 57, f o r unemployment b e n e f i t s claimed d u r i n g a

strike.

The i s s u e d u r i n g t h e a d m i n i s t r a t i v e p r o c e s s was whether

a work s t o p p a g e o c c u r r e d under s e c t i o n 39-51-2305, MCA.

B e n e f i t s a r e d e n i e d d u r i n g a p e r i o d of s t r i k e i f unemployment

r e s u l t s from a " s t o p p a g e of work" e x i s t i n g b e c a u s e of t h e

labor dispute. A d e p u t y of t h e Employment S e c u r i t y D i v i s i o n

( D i v i s i o n ) of t h e Montana S t a t e Department of Labor and

I n d u s t r y found t h e c l a i m a n t s t o be d i s q u a l i f i e d from b e n e f i t s .

Claiming s t r i k e r s t h e n b r o u g h t a p p e a l b e f o r e a n a p p e a l s

r e f e r e e of t h e Employment S e c u r i t y D i v i s i o n of t h e Department.

The r e f e r e e s u s t a i n e d d e n i a l of b e n e f i t s . C l a i m a n t s t h e n

a p p e a l e d t o t h e Board of Labor Appeals (Board) which re-

v e r s e d t h e r e f e r e e and h e l d c l a i m a n t s were e n t i t l e d t o

unemployment compensation b e n e f i t s .

The Board of Labor Appeals s e r v e d n o t i c e of i t s d e c i s i o n

on J a n u a r y 1 0 , 1978. On February 3 , 1978, a p p e l l a n t s f i l e d

p e t i t i o n s f o r r e v i e w w i t h t h e D i s t r i c t C o u r t of t h e T w e l f t h

Judicial District. The p e t i t i o n s named a s r e s p o n d e n t s , the

Board of Labor Appeals, Montana S t a t e Department of Labor

and I n d u s t r y and t h e members of t h e Board. Following a

motion t o d i s m i s s t h e p e t i t i o n , t h e a p p e l l a n t s and c o u n s e l

f o r t h e Employment S e c u r i t y D i v i s i o n e n t e r e d i n t o a s t i p u l a -

t i o n t o s u b s t i t u t e t h e Employment S e c u r i t y D i v i s i o n of t h e

Montana S t a t e Department of Labor and I n d u s t r y f o r t h e Board
of Labor Appeals. T h i s s t i p u l a t i o n was f o l l o w e d by a c o u r t

o r d e r a c c o m p l i s h i n g such s u b s t i t u t i o n .

N e i t h e r t h e i n d i v i d u a l c l a i m a n t s nor t h e union w e r e

made p a r t i e s t o t h e r e v i e w s o u g h t i n D i s t r i c t C o u r t . Appel-

l a n t s , a t time s e r v i c e was made upon t h e Board of Labor

Appeals, d i d n o t p r o v i d e s u f f i c i e n t c o p i e s t o s e r v e a l l

p e r s o n s whom m i g h t have been made p a r t i e s .

On March 2 0 , 1978, t h e union moved t o i n t e r v e n e i n t h e

proceedings. The answer a l l e g e d t h a t t h e D i s t r i c t C o u r t had

no j u r i s d i c t i o n b e c a u s e a p p e l l a n t s had n o t j o i n e d t h e p r o p e r

p a r t i e s a s d e s i g n a t e d by s t a t u t e . I n t e r v e n t i o n was g r a n t e d and

t h e r e a f t e r b o t h a p p e l l a n t s and i n t e r v e n o r moved f o r summary

judgment. The lower c o u r t concluded t h a t f a i l u r e t o name a l l

p a r t i e s , together with f a i l u r e t o provide a s u f f i c i e n t

number of c o p i e s of t h e p e t i t i o n f o r s e r v i c e upon a l l p a r t i e s ,

were f a t a l j u r i s d i c t i o n a l f l a w s . Appellants' p e t i t i o n s f o r

r e v i e w were d i s m i s s e d , and t h i s a p p e a l f o l l o w s .

The c o n t r o l l i n g s t a t u t e i s s e c t i o n 39-51-2410, MCA,

which p r o v i d e s i n p e r t i n e n t p a r t a s f o l l o w s :

" ( 1 ) Any d e c i s i o n of t h e board i n t h e a b s e n c e of
an a p p e a l t h e r e f r o m a s h e r e i n p r o v i d e d s h a l l become
f i n a l 30 d a y s a f t e r t h e d a t e of n o t i f i c a t i o n o r
mailing thereof . . . The d i v i s i o n s h a l l be deemed
t o be a p a r t y t o any j u d i c i a l a c t i o n i n v o l v i n g any
s u c h d e c i s i o n and may b e r e p r e s e n t e d i n any such
a c t i o n by a n a t t o r n e y employed by t h e d i v i s i o n o r
a t t h e d i v i s i o n ' s r e q u e s t , by t h e a t t o r n e y g e n e r a l .

" ( 2 ) Within 30 d a y s a f t e r t h e d a t e of n o t i f i c a t i o n
o r m a i l i n g of t h e d e c i s i o n of t h e b o a r d , any p a r t y
a g g r i e v e d t h e r e b y may s e c u r e j u d i c i a l r e v i e w t h e r e o f
by commencing a n a c t i o n i n t h e d i s t r i c t c o u r t of t h e
c o u n t y i n which s a i d p a r t y r e s i d e s and i n which ac-
t i o n any o t h e r p a r t y t o t h e p r o c e e d i n g b e f o r e t h e
board s h a l l be made a d e f e n d a n t . I n such a c t i o n a
p e t i t i o n , which need n o t be v e r i f i e d b u t which s h a l l
s t a t e t h e grounds upon which a r e v i e w i s s o u g h t ,
s h a l l be s e r v e d upon t h e a d m i n i s t r a t o r of t h e d i v i -
s i o n o r t h e a d m i n i s t r a t o r ' s d e s i g n e e and such s e r v i c e
s h a l l be deemed completed s e r v i c e on a l l p a r t i e s , b u t
t h e r e s h a l l be l e f t w i t h t h e p a r t y s o s e r v e d a s
many c o p i e s of t h e p e t i t i o n a s t h e r e a r e d e f e n d a n t s
and t h e d i v i s i o n s h a l l f o r t h w i t h m a i l one such copy
t o e a c h such d e f e n d a n t . "
 A p p e l l a n t s made t h e Board o f Labor A p p e a l s o f t h e

D e p a r t m e n t a p a r t y i n s t e a d o f t h e Employment S e c u r i t y ~ i v i -

s i o n o f t h e same Department. P r i o r t o J u l y 1, 1977, t h e

Board was t h e p r o p e r p a r t y , s e c t i o n 87-108 ( 2 ) (c) and - ( d ) ,

R.C.M., 1947, b u t o n t h a t d a t e a n amendment became e f f e c t i v e

which d e s i g n a t e d t h e D i v i s i o n a s t h e p r o p e r p a r t y .

The above q u o t e d s t a t u t e r e q u i r e s t h a t i n a d d i t i o n t o

t h e D i v i s i o n , a n y p a r t i e s t o t h e Board p r o c e e d i n g s h a l l b e

made d e f e n d a n t s . Though t h e c l a i m i n g s t r i k e r s w e r e p a r t i e s

t o t h e Board d e c i s i o n t h e y were n o t named i n t h e p e t i t i o n

s e e k i n g review i n t h e D i s t r i c t C o u r t .

The i s s u e s p r e s e n t e d i n t h i s a p p e a l a r e : (1) Whether

t h e p e t i t i o n f o r r e v i e w "commenced" a n a c t i o n w i t h i n t h e

meaning o f s e c t i o n 39-51-2410, MCA, when t h e Board o f Labor

A p p e a l s was named a s a p a r t y i n s t e a d o f t h e Employment

Security Division. ( 2 ) Whether i n t e r v e n t i o n by t h e u n i o n

conferred j u r i s d i c t i o n over t h e i n d i v i d u a l claimants. (3)

Whether, i f i n t e r v e n t i o n d i d n o t c o n f e r j u r i s d i c t i o n , the

D i s t r i c t C o u r t c a n add p a r t i e s a f t e r t h e 30-day p e r i o d h a s

run. ( 4 ) Whether r e v i e w c o u l d b e had a g a i n s t t h e Employment

S e c u r i t y D i v i s i o n i n t h e a b s e n c e of t h e i n d i v i d u a l c l a i m a n t s .

Respondent u r g e s u s t o f i n d a p p e l l a n t s ' timely f i l i n g

v o i d b e c a u s e t h e wrong p a r t y i n t h e D e p a r t m e n t o f Labor a n d

I n d u s t r y was o r i g i n a l l y named. Respondent contends t h a t

t h i s t e c h n i c a l a p p r o a c h i s n e c e s s a r y t o honor t h e l i t e r a l

s t a t u t o r y requirements f o r j u d i c i a l review. We feel that to

h o l d s u c h a t e c h n i c a l e r r o r d e f e a t e d j u r i s d i c t i o n would b e

u n c o n s c i o n a b l e e l e v a t i o n of form o v e r s u b s t a n c e .
The p o s i t i o n of r e s p o n d e n t would b e more sound i f t h e

Employment S e c u r i t y D i v i s i o n w e r e a s t r a n g e r t o t h e Board of

Labor A p p e a l s . Of course, they a r e not. They a r e e a c h
housed w i t h i n t h e same d e p a r t m e n t of s t a t e government. The

o n l y e n t i t y i s t h e S t a t e of Montana. W i t h i n t h e Department

of Labor and I n d u s t r y of t h a t s t a t e government a r e l o c a t e d

d o o r s d e s i g n a t e d Board of Labor Appeals and Employment

Security Division. The l e g i s l a t u r e d e t e r m i n e s which p e r s o n n e l

can b e s t d e a l w i t h p r o c e s s . I n p o i n t of f a c t , b o t h t h e

Board of Labor Appeals and t h e Employment S e c u r i t y D i v i s i o n

were r e p r e s e n t e d by t h e same c o u n s e l , Moody B r i c k e t t . ~rickett

f i l e d a motion t o d i s m i s s t h e p e t i t i o n f o r r e v i e w i n D i s t r i c t

C o u r t a p p e a r i n g a s c o u n s e l f o r t h e Board of Labor Appeals.

The same B r i c k e t t e n t e r e d i n t o a s t i p u l a t i o n on b e h a l f of

t h e Employment S e c u r i t y D i v i s i o n t o s u b s t i t u t e t h a t D i v i s i o n

a s a p a r t y i n p l a c e of t h e Board o f Labor Appeals. Brickett

f u r t h e r f i l e d a n answer on b e h a l f of t h e Employment S e c u r i t y

Division.

P r o f e s s o r Moore a r t i c u l a t e s t h e need f o r a v o i d i n g

hypertechnical j u d i c i a l approaches:

"As t h e Advisory Committee commented, h a r d s h i p s a r i s i n g
from mechanical a p p l i c a t i o n s of t h e R u l e s had a r i s e n
most a c u t e l y i n s u i t s by p r i v a t e p a r t i e s a g a i n s t o f -
f i c e r s o r a g e n c i e s of t h e United S t a t e s . . . where
t h e c l a i m a n t s ' need i s o f t e n g r e a t , t h e a p p l i c a b l e
s t a t u t e s o r l i m i t a t i o n s r e l a t i v e l y s h o r t , and
c h o i c e of t h e p r o p e r i n d i v i d u a l d e f e n d a n t , who a p p e a r s
o n l y as an o f f i c i a l r e p r e s e n t a t i v e , i s l a r g e l y f o r m a l .
With t h e p o t e n t i a l f o r t e c h n i c a l p l e a d i n g e r r o r s grow-
i n g a l o n g w i t h t h e s i z e and c o m p l e x i t y of t h e b u r e a u c r a c y
i t s e l f , i t was i m p o r t a n t t o s e t up a d e f i n i t e , g e n e r o u s
s t a n d a r d f o r h a n d l i n s r e l a t i o n - b a c k of c o r r e c t i v e amend-
...
- -

ments t h e s e amgndments - - - 1 5 a l l e v i a t e d i f -
t o Rule P

f i c u l t i e s - commencing o r c o n t i n u i n g a n a c t i o n a g a i n s t
in
- federal o f f n e r y
a . . ." ~ o z e ' s ederal
F
P r a c t i c e , Vol. 3, m 5 . 1 5 [ 4 . 2 ] , pages 15-233, 234.
(Emphasis a d d e d . )

I f t h i s Court w e r e t o hold t h a t a p p e l l a n t s f a i l e d t o

name an a d v e r s e p a r t y under t h e s e c i r c u m s t a n c e s , w e would

p l a c e Montana o u t s i d e t h e p h i l o s o p h y of modern l e g a l p r a c t i c e .

J u s t i c e Benjamin Cardozo s a i d , ". . . The law h a s outgrown

i t s p r i m i t i v e s t a g e of formalism when t h e p r e c i s e word was
t h e s o v e r e i g n t a l i s m a n , and e v e r y s l i p was f a t a l . It takes

a b r o a d e r view today . . ." Wood v . Lucy, Lady Duff-Gordon

( 1 9 1 7 ) , 2 2 2 N.Y. 88, 91, 118 N.E. 214, 2 1 4 . The s p i r i t of

Cardozo l i v e s i n o u r p r o c e d u r a l r u l e s . W e h o l d t h a t t h e

t e c h n i c a l e r r o r was n o t f a t a l .

I t s h o u l d a l s o be n o t e d t h a t s e c t i o n 39-51-2410(1), MCA,

s t a t e s t h a t t h e D i v i s i o n s h a l l be deemed a p a r t y f o r j u d i c i a l

r e v i e w . T h i s o c c u r s a u t o m a t i c a l l y by v i r t u e of t h e s t a t u t e

s o t h a t i t i s a p a r t y whether o r n o t named. Subsection ( 2 )

of t h a t s t a t u t e s t a t e s t h a t a l l p a r t i e s t o t h e Board p r o c e e d i n g

s h a l l be made p a r t i e s t o j u d i c i a l r e v i e w by t h e a g g r i e v e d

party. The D i v i s i o n i s n o t a p a r t y b e f o r e t h e Board b u t

becomes a p a r t y , f o r p u r p o s e s of j u d i c i a l r e v i e w , by o p e r a t i o n

of law.

The Employment S e c u r i t y D i v i s i o n i t s e l f c o n s e n t e d t o

r e p l a c e t h e misnamed Board of Labor Appeals. Under Rule

1 5 ( c ) , R.R.Civ.P., t h e amendment t o t h e p e t i t i o n f o r j u d i c i a l

r e v i e w r e l a t e d back.

W must c o n f r o n t t h e remaining q u e s t i o n s i n t h i s a p p e a l .
e

Can unnamed p a r t i e s be added a f t e r 30 d a y s ? Can t h i s a p p e a l

proceed w i t h o u t t h o s e p a r t i e s ?

A p p e l l a n t s a r g u e t h a t i n t e r v e n t i o n by t h e union c o n f e r r e d

jurisdiction. I t did not. The answer r a i s e d l a c k of j u r i s -

diction. The q u e s t i o n p r e s e n t e d i s : Where a c o u r t a c q u i r e s

j u r i s d i c t i o n o v e r one p a r t y t o a n a p p e a l , can o t h e r p a r t i e s

be l a t e r added?

A p p e l l a n t s a r g u e t h e a p p l i c a b i l i t y of Rule 2 1 , M.R.Civ.P.,

which p r o v i d e s t h a t p a r t i e s may be added o r dropped a t any

s t a g e of t h e p r o c e e d i n g . T h i s r u l e p r e s u p p o s e s - personam
in

jurisdiction. The r u l e d o e s n o t c o n f e r t h a t j u r i s d i c t i o n .

Under s e c t i o n 39-51-2410, MCA, t h e d e c i s i o n of t h e

Board became f i n a l a s t o c l a i m a n t s 30 d a y s a f t e r n o t i f i c a t i o n
of t h e d e c i s i o n . The D i s t r i c t C o u r t t h e r e a f t e r had no

j u r i s d i c t i o n o v e r c l a i m a n t s and c o u l d a c q u i r e none.

The p a r t i e s t o t h e p r o c e e d i n g b e f o r e t h e Board of Labor

Appeals have s e p a r a t e and d i s t i n c t i d e n t i t i e s . An a p p e a l

a g a i n s t one c a n n o t a f f e c t t h e lower c o u r t ' s f i n d i n g i n f a v o r

of a n o t h e r a g a i n s t whom no a p p e a l i s t a k e n . Surely, i f f i v e

p l a i n t i f f s r e c o v e r damage awards a g a i n s t a d e f e n d a n t , and

t h a t d e f e n d a n t t i m e l y a p p e a l s t o t h e Supreme C o u r t a g a i n s t

o n l y one, t h e remaining f o u r c a n n o t be added a f t e r e x p i r a t i o n

of t i m e f o r f i l i n g a n o t i c e of a p p e a l . Likewise, t h e i n -

d i v i d u a l c l a i m a n t s , a g a i n s t whom no r e v i e w was t i m e l y

s o u g h t , c a n n o t l a t e r b e added.

I f t h e p r e s e n c e of t h e s e a b s e n t c l a i m a n t s i s i n d i s p e n s a b l e

t o r e v i e w , t h e n a p p e l l a n t s ' p e t i t i o n must be d i s m i s s e d .

P r o v i d e n t Tradesmen B & T Co. v. Lumbermans Mut. Cas. Co.

(3rd C i r . 1 9 6 6 ) , 365 F.2d 802. O r a l argument devel-oped t h a t

c l a i m a n t s have been p a i d a l l b e n e f i t s t o which t h e y a r e

e n t i t l e d by v i r t u e of t h e Board d e c i s i o n . Appellants'

p e t i t i o n f o r r e v i e w s e e k s (1) a l e g a l d e t e r m i n a t i o n t h a t

t h e r e was a "work s t o p p a g e " and ( 2 ) r e i n s t a t e m e n t of t h e

d e c i s i o n of t h e a p p e a l s r e f e r e e . The p r e s e n c e of c l a i m a n t s

would, of c o u r s e , be n e c e s s a r y t o any f i n d i n g which c o u l d

prejudice t h e i r previously paid benefits. Hanson v. ~ e n c k l a

( 1 9 5 8 ) , 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283. How-

e v e r , t h e s e same p a r t i e s a r e n o t i n d i s p e n s a b l e t o a d e t e r -

m i n a t i o n of t h e l e g a l q u e s t i o n s i n v o l v e d .

S e c t i o n 39-51-2410 ( 2 ) , MCA, r e q u i r e s t h a t all p a r t i e s

t o t h e Board p r o c e e d i n g be made p a r t i e s f o r p u r p o s e s of

review. T h i s r e q u i r e m e n t p r e s u p p o s e s i s s u e s on j u d i c i a l

r e v i e w which c o u l d a f f e c t t h o s e p a r t i e s . Under t h i s h o l d i n g ,

c l a i m a n t s ' b e n e f i t s c a n n o t a d v e r s e l y be a f f e c t e d a n d , t h e r e -
f o r e , c l a i m a n t s a r e n o t i n d i s p e n s a b l e t o a r e v i e w of t h e

l e g a l q u e s t i o n s by t h e D i s t r i c t C o u r t .

A d e t e r m i n a t i o n of t h e work s t o p p a g e i s s u e under t h e

f a c t s of t h i s c a s e i s i m p o r t a n t t o t h e p a r t i e s which remain

i n t h e review proceeding. The Employment S e c u r i t y D i v i s i o n

f i l e d a n answer i n t h e D i s t r i c t C o u r t denying p e t i t i o n e r ' s

a l l e g e d "work s t o p p a g e " and a s k i n g t h a t t h e d e c i s i o n of t h e

Board of Labor Appeals be upheld. There i s a s u f f i c i e n t

j u s t i c i a b l e c o n t r o v e r s y between a p p e l l a n t s and t h e Employment

S e c u r i t y D i v i s i o n t o a l l o w t h e r e v i e w t o go forward.

W have r e n d e r e d moot t h e q u e s t i o n of s e r v i c e of c o p i e s .
e

S u f f i c i e n t c o p i e s were p r o v i d e d f o r s e r v i c e upon t h e Employ-

ment S e c u r i t y D i v i s i o n which i s t h e o n l y a d v e r s e p a r t y t o

a p p e l l a n t remaining i n t h e j u d i c i a l p r o c e e d i n g .

W h o l d t h a t t h e D i s t r i c t C o u r t may r e v i e w t h e l e g a l
e

q u e s t i o n of whether t h e r e was a "work s t o p p a g e " w i t h i n t h e

meaning of s e c t i o n 39-51-2410, MCA. The D i s t r i c t C o u r t can

make no d e t e r m i n a t i o n which c o u l d i n any way j e o p a r d i z e t h e

b e n e f i t s previously paid t o claimants.

W remand t h e c a s e t o t h e D i s t r i c t C o u r t f o r such h e a r -
e

i n g a s i s n e c e s s a r y t o d e t e r m i n e whether t h e r e was a work

stoppage.

W e concur:

Chief J u s t i c e

Justice
Justices
Mr. Justice John C. Sheehy concurring and dissenting:

I agree that the District Court acquired no jurisdiction.
I .disagree there is anything left in the case to litigate on
remand.
My careful reading of the majority opinion does not
disclose clearly what the majority Is up to. The apparent
result, which may seem preposterous, is that the cause is
remanded to the District Court on the issue of work stoppage
without an adversary party, the claimants. Moreover, the
work stoppage issue on remand is to be litigated between the
agency on the one side and the appellafits on the other. Yet,
these two parties, at all stages subject to review, agreed
that a work stoppage due to a labor dispute had occurred.
The agency twice has held against the claimants on that
issue. There is no dispute between the appellants and the
agency to litigate on remand.
In addition, the issues stated and discussed in the
majority opinion are not precisely the issues that were
raised by the appellants in their briefs and oral argument.
I

This is true particularly of the majority opinion's fourth
issue: whether review could be had against the Employment
Security Division (Division) in the absence of the individual
claimants. This issue, if it is an issue, arises because of
an untutored answer made by appellants' counsel to a question
posed by a justice during the oral argument of this cause.
When counsel was asked if he was seeking to continue the
case against the Division, counsel replied that litigation
against the Division might help with respect to the retrospective
rating of the appellants on their unemployment compensation
contributions. That answer was incorrect since the claimants
here already received their benefits, and the payment of
those benefits determines the appellants "experience factor"
and are now chargeable to the appellants' accounts. Section
39-51-1215, MCA.
Because the issues raised and discussed in the majority
opinion differ from those raised in the appellants' briefs,
it is worthwhile to discuss the appellants' issues here.
The issues raised by the appellants are:
1. Whether the District Court had jurisdiction to
review the actions of the Board of Labor Appeals (Board);
2. Whether the intervening union had standing to move
to dismiss the petitioner's appeals;
3. Whether the District Court abused its discretion by
failing to relax the statutory directives on appeal in this
instance.
The appellants contend that the District Court erred in
misinterpreting section 39-51-2410, MCA, the judicial review
statute, quoted above in the court's memorandum. They
contend that by "commencing an action" for review, the
District Court became vested with jurisdiction. They emphasize
the language of the review statute that "any party may
secure review by commencing an action" within 30 days of a
Board decision. Appellants argue the statute's requirement
that the unemployment compensation claimants be named as
respondents in the review petition is not a jurisdiction
requisite but only procedural. They argue the claimant
strikers can be made party defendants under the joinder
provisions of the Montana Rules of Civil Procedure. They
cite cases decided by United States Supreme Court to indicate
that a reviewing court must be presented with clear and
convincing evidence of no jurisdiction to justify a dismissal
of a review petition on jurisdiction grounds. See, Abbott
Laboratories v. Gardner (19671, 387 U.S. 136, 87 S.Ct.
1507, 18 L.Ed.2d 681. The appellants contend that a timely
petition was filed in the District Court; that judicial
review is favored in this instance and that joinder of
claimants or intervenor is possible under Rules 19 and 21,
M.R.Civ.P.
On the other hand, the union argues that the District
Court had no choice but to dismiss for lack of jurisdiction.
It contends that the failure to name and serve the claimants
with a copy of the petition constitutes a failure by appellants
to assert the District Court's jurisdiction over the claimants.
It asserts that failure to join the claimants as indispensable
parties in an action for review of an agency proceeding
requires dismissal. Cissell v. Colorado State Bd. of
Assessment App. (1977), 38 Colo.App. 560, 564 P.2d 124. The
union further argues that the appellants may not now amend
their review petition to add the claimants as parties because
the 30-day time limit for naming claimants as respondents
has expired.
The major issue here is whether the District Court had
jurisdiction to review the decisions of the Board. The
District Court held that the statutorily-imposed conditions
for jurisdiction were not satisfied by petitioning parties,
and therefore, the court had no power to review the agency's
decisions. The court was correct.
Jurisdiction should not be assumed lightly. The enable-
ment of the District Courts to adjudicate controversies is
delimited by the sovereign grant of power to the courts found
in our state constitution and in statutory law. "Jurisdiction"
means the right and authority of a court to adjudicate the
subject matter of the case and to make binding decisions
thereon. State v. Bonner (1950), 123 Mont. 414, 214 P.2d
747. The essential elements of jurisdiction are that the
court have authority to take cognizance of the class of
cases to which the adjudged case belongs; that proper parties
be present, and that the point decided be within the issue
presented. Deich v. Deich (1958), 136 Mont. 566, 323 P.2d
35. In that sense, courts are mere creations and instruments
of the law; independent of the law, they have no adjudicatory
existence. The law precedes and governs a court. Bond v.
Birk (1952), 126 Mont. 250, 247 P.2d 199.
The 1972 Mont. Const., Art. VII, § 4, provides that the
legislature may provide for a direct review by District
Courts of decisions of administrative agencies. Section 39-
51-2410, MCA, was enacted under that constitutional grant,
and operates to give statutory power to District Courts to
hear cases of the nature involved here. The District Court
here has the judicial power to adjucate such petitions for
review. Without such statutory grant, the District Court
would be without subject matter jurisdiction, which even
consent could not confer. Stanton Trust & Savings Bank v.
Johnson (1937), 104 Mont. 235, 65 P.2d 1188.
A court having jurisdiction of the subject matter must
further acquire jurisdiction of the parties. Jurisdiction

of the court over persons may be compelled by the plaintiff's
(or petitioner's) action or may be voluntarily conferred by
the defendant's (or respondent's) consent and submission to
the court. Haggarty v. Sherburne Mercantile Co. (1947),
120 Mont. 386, 186 P.2d 884.
The power to review decisions of the Board is governed
by the particular provisions of section 39-51-2410, MCA,

which must be followed in seeking review, especially those
particulars which are jurisdictional or mandatory. This
means that in seeking judicial review by commencing an
action, "any other party to the proceeding before the Board
shall be made a defendant" is a jurisdictional element.
This is consistent with the ordinary perception of jurisdiction
not only of this Court, but all courts.
We would not contend, in these days of omnipresent
office copying machines, the failure to provide the Board
with enough copies of the petition to serve all the defendants
is essential, but any fair reading of section 39-51-2410(2),
MCA, must lead to the conclusion that making "any other
party" a defendant to the action before the Board is a
mandatory elemental step to secure the right of review.
As we have noted, one of the elements of jurisdiction
is the power to make binding orders over proper parties present
and subject to the court. Here, the unemployment compensation
benefits claimants, the en:ployees, were not before the
District Court. The appellants could have compelled their
submission to the power of the District Court, on review, by
naming them as respondents under section 39-51-2410, MCA, but
did not do so. The claimants have not consented to the
jurisdiction of the District Court. Therefore, the District
Court further lacked jurisdiction of the claimants, the very
persons the adjudication was bound to affect.
The appellants next contend that the intervenor union
lacked standing to raise the jurisdiction defense. They
contend that the intervenor must accept all prior court orders
at the time of intervention, which in this case, included
the stipulation between the appellants and the Division providing
that issuance and service of process upon the Division had
been made pursuant to the judicial review statute. Appellants
also contend that the intervention by the union constituted
a general appearance which cured any jurisdiction defect in
their failing to name the c1ai:mants as party defendants to
the action for review.
As the first caption of the petitions for review dis-
close, the appellants did not make the intervenor or the
claimants parties to the actions; nor in fact did the appellants
make the Division a party to the action. The answers to the
appellants' contentions regarding the union's standing to
raise the jurisdiction issue lie to some extent in our
foregoing discussion of the elements of jurisdiction. At
the time that the order for intervention was granted, the
District Court was without jurisdiction because the procedural
steps necessary to vest the District Court with jurisdiction
to review had not been followed. A party contesting jurisdiction
may do so under our rules without filing a special appearance.
With regard to - personam jurisdiction, we stated in Knoepke
in
v. Southwestern R Co. (1980), - Mont . - 620 P.2d 1185,
:
?. ,
37 St.Rep. 1910, the following:
"If a party to a lawsuit plans to appear in
court to attack the court's personal juris-
diction, a special appearance of the party,
as opposed to a general appearance, is no
longer required. Rule 12, M.R.Civ.P., abolished
the distinction between special and general
appearances. Following service of process
a party can attack the court's personal juris-
diction simply by raising the jurisdiction issue
in an initial response to plaintiff's claim
by motion before answering the claim or in an
answer to the claim. If the party's initial
response to the opponent's claim raises a
personal jurisdiction issue, then the party
is not subject to the general power of the
court solely because of the response. See,
2A Moore's Federal Practice 1 12.12. "
In its initial response to the petition for review, the
union, by means of affirmative defenses, raised the juris-
diction issue. It did not waive the right to raise such an
issue by moving to intervene in the action, or securing an
order permitting intervention. The stipulation entered into
between the Division and the appellants, and the court order
approving that stipulation, which affected only the Division,
was not in any way binding on either the union or the claimants
who were not parties to the stipulation. Neither the stipulation
nor the court order approving the same cured the jurisdiction
defect that the elemental procedures required under section
39-51-2410, MCA, had not been followed.
The third issue raised by appellants is that the District
Court abused its discretion by failing to relax the statutory
directives necessary to perfect the appeals in this instance.
The appellants did not, by raising this issue admit the
propriety of the summary judgments by the District Court,
but raised the issue arguendo.
The appellants submit that section 39-51-2410, MCA,
grants them the right to an appellate review and that the
District Court should have considered the willfulness and
the extent of the Rules violation and the possible injustice
that might result from the summary judgment order. The
appellants further contend that although this Court has not
yet considered the relaxation of such judicial review require-
ments in an administrative setting, this Court has consistently
exercised its inherent judicial discretion to relax jurisdiction
requirements in appeals from the District Courts to the
Supreme Court.
In support of the contention on relaxation of rules for
appeals the appellants cite State ex rel. Helena Adjustment
Company v. District Court of Lewis and Clark County (19321,
92 Mont. 587, 19 P.2d 226; Krause v. Insurance Co. of North
America (1925), 73 Mont. 169, 235 P. 406; Lewis v. Lambros
(1922), 65 Mont. 366, 211 P. 212; and Stephens v. Conley
(1914), 48 Mont. 352, 138 P. 189.
In those cases will be found language that does indicate
support for the claim of the appellants. For example, in
S&phens v. Conley, supra, this Court stated that a notice of
appeal does not serve any higher purpose than a summons, and
its entire absence can be waived. In Krause v. Insurance
Company of North America, supra, it was held that substantial
compliance with appeals statutes is all that is required;
moreover, the law favors the right of appeal.
It should be recognized by practitioners in this State,
particularly since the adoption of the Montana Rules of
Appellate Civil Procedure in 1965, that this Court has
strongly stated that a timely filing of a notice of appeal
is mandatory to vest this Court with jurisdiction. Rule
4(a), M.R.App.Civ.P. provides:
"(a) Filing the notice of appeal. An
appeal shall be taken by filing a notice
of appeal in the district court. Failure
of an appellant to take any step other than
the timely filing of a notice of appeal does
not affect the validity of the appeal, but
is ground only for such action as the
supreme court deems appropriate, which may
include dismissal of the appeal."
In recent years, we have regarded the taking of that

step, the timely filing of a notice of appeal, as the sine

- - to our jurisdiction. We have dismissed appeals
qua non
where the notice of appeal has not been timely filed. See,
,
Snyder v. Gommenginger (1979), - Mont. - 600 P.2d 171,
36 St.Rep. 1426; Flathead Hay Cubing, Inc. v. Moore (19781,

- Mont . -1 - ,
P.2d - 35 St.Rep. 1260; First Nat.
Bank of Lewistown v. Fry, (1978), ,
Mont. - 575 P.2d 1325,
35 St-Rep. 276; Zell v. Zell (1977), 172 Mont. 496, 565
P.2d 311. In Snyder, we quoted from Payne v. Mountain
States Tel. and Tel. Company (1963), 142 Mont. 406, 385
P.2d 100, to the following effect:
"In our view, these statutes do not have
reference to the notice of appeal which is
jurisdictional. In such cases as Creek v.
Bozeman Water Works Co., 22 Mont. 327, 56
P. 362, and In Re Malick's Estate, 124 Mont.
585, 228 P.2d 963, we have held that the
appellant is charged with the duty of perfecting
his appeal in the manner and within the time
provided by law and unless such mandatory statutory
provisions are complied with this court acquires
no jurisdiction to entertain and determine the
appeal. We are of the opinion that the 'amending
provisions' contained in sections 93-8019 and
93-8021 apply only when this court has acquired
jurisdiction. Were it otherwise, our mandatory
provisions regarding appellate procedure would be
meaningless."
(Sections 83-8019 and 93-8021, R.C.M. 1947, above referred
to, were superseded by the adoption of the Montana Rules of
Appellate Civil Procedure in 1965. Those sections related
to defects in the record which could be cured by an amendment
following the notice of appeal, under the former statutory
appellate practice.)
In a recent case involving the perfection of an appeal
to the District Court from an administrative agency, Rierson
v. State (1980), ,
Mont. - 614 P.2d 1020, 37 St.Rep.
627, we had before us an appeal from an administrative
agency under the general provision for judicial review from
administrative agencies, section 2-4-702, MCA. That statute
provides that in seeking review, the party must file a
petition in the District Court within 30 days from the
service of the final decision of the agency and it further
provides that "copies of the petition shall be promptly
served upon the agency and all parties of record." In
Rierson, the decision hinged upon whether Rierson had "promptly"
served copies of his petition for review. The decision of

the majority of this Court against Rierson was based largely
upon his laches in not serving the copy of the petition for
review promptly, but inherent in the decision of the court
is the sense that compliance with the review provisions
necessary to vest jurisdiction in the District Court is
mandatory.
The appellants contend that under Rule 61, M.R. Civ.P.,
the court had the power to disregard any error or defect in
the proceeding which does not affect the substantial rights
of the parties. Appellants argue that since the union
intervened, and was before the District Court, no substantial
prejudice resulted to the unnamed parties arising out of the
failure to name them as party defendants and so the District
Court in the exercise of its discretion could disregard
defects in the steps taken by the appellants to seek judicial
review. The appellants also contend that the court could
have required the joinder of the unnamed parties under Rule
19, M.R.Civ,P., and that the pleadings thereafter could
relate back to the commencement of the action under Rule
15(c), 1fl.R.Civ.P.
The appellants cite Professor Moore's treatise with
respect to the reasonableness of the relation-back of corrective
amendments under Rule 15. 3 Moore's Federal Practice, 11

15.15 [4.1] . We disagree.
This is a case where we must put aside our personal
inclinations respecting our preference for decisions on the
merits, in the interest of consistency with respect to previous
decisions regarding appellate jurisdiction both from ~istrict
Courts to this Court, and from administrative agencies to
the District Courts. When statutes provide for review from
an administrative agency, or from a lower court, and set forth
the procedures necessary to obtain such review; including the
essential steps with respect to the notice to be given, the
time for such notice and the parties to be named or served;
the statutory procedure constitutes jurisdiction guides whic3
must be followed to vest authority in the reviewing or
appellate tribunal. Indeed, the presence of the require-
ments in the statutes gives us no other choice, because it
is only by virtue of statutes that the appellate adjudicatory
power or reviewing power vests in the other tribunal, as we
have indicated foregoing in our discussion of jurisdiction.
The District Court in these cases, after examining
carefully the defects in the procedure taken for review,
as is shown from its memorandum aforementioned, had no
discretion to overlook the defects. The court had no jurisdiction
to act, and no discretion to waive the jurisdiction
defects.
My final observation is that the Division may be surprised
to find itself still in the case on remand to the District
Court. On September 29, 1980, it had filed its written
notice with this Court that it was not taking a position on
the jurisdiction dispute between the appellants and the
intervenor union, and that it would continue in such position
and not submit a brief on the jurisdiction question presented
here.
I would affirm the dismissal by the District Court of
the petitions for review.

u Justice v
We concur in the foregoing concurring and dissenting
opinion.

\
Chief Justice

Justice